D. B. Applicant - v. -, 2023 NBKB 223

2023 NBKB 223 Court File No.: FDB-261-2020 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF BATHURST BETWEEN: D. B. Applicant - and - M. L. Respondent DECISION BEFORE: Madam Justice Michelle Boudreau-Dumas AT: Bathurst, New Brunswick DATES OF HEARING: September 11, 12, 13, 14 and 20, 2023 DATE OF DECISION: December 14, 2023 APPEARANCES: Martine Lanteigne, for the applicant; Joyce M. Richardson, for the respondent

Summary: Tort, unjust enrichment, decision-making responsibility, and support (common-law partner, children, retroactivity) [TRANSLATION] Boudreau-Dumas, J. OVERVIEW 1 . Ms. L and Mr. B cohabited for approximately 16 years (2004 to 2020). When they commenced their relationship, Mr. B was a member of the Canadian Armed Forces. He was posted in Halifax where he travelled to work from his home in the Acadian Peninsula. For her part, Ms. L was about to finalize the purchase of the veterinary clinic where she had been working for about two years. 2 . The couple’s son (MB) was born on [...], 2007.

The parties agreed that Mr. B would take 35 weeks parental leave (during which his employer paid 95% of his salary), while Ms. L would return to work after only a few weeks. 3 . Shortly after the birth of the eldest child, the couple moved into their home. The parties then opened a joint account. Ms. L and Mr. B each continued to hold a bank account in their sole name, in which they conducted most of their transactions, sheltered from and sometimes even unbeknownst to the other party. 4 . After the father returned to work, Ms.

L hired a nanny to look after their child, in addition to doing housework and preparing meals, among other tasks. In 2008, Ms. L took a medical leave of absence for about seven weeks due to exhaustion. 5 . Mr. B retired from the Armed Forces at the end of 2009 after 20 years of service. He did not work outside the home for about one year and was in receipt of his pension. The couple then decided to have a second child. A daughter (MaB) was born on [...], 2010. Despite the parents’ presence at home, the nanny continued to help the family looking after the toddlers and the household. Ms. L thus retained Ms.

Arseneau’s services until their younger daughter started kindergarten. After that, she was paid by one of Ms. L’s corporations to do housekeeping and other domestic chores. 6 . During her second maternity leave, which lasted three months, Ms. L worked with the architect to refine the construction plans for the Hôpital Vétérinaire de la Péninsule

(2004) Ltée. Mr. B was hired to carry out site preparation work. He then helped supervise the construction, being on site practically every day. He was paid $15 per hour for 40 hours per week. 7 . In early 2014, Ms. L acquired a building to house the Clinique Vétérinaire de Caraquet Ltée. Mr. B worked on the demolition of the interior and the preparation for the proper layout of the premises. He was paid on the same terms. The clinic welcomed its first clients at the end of March 2014. 8 . Thereafter, Mr. B carried out light maintenance work at his partner’s two veterinary clinics.

After a certain period, he was paid $16 an hour for 40 hours of work per week mowing the lawn, shovelling the porches and sidewalks, and changing filters, neon bulbs and defective door handles. In reality, these tasks took much less time than that for which he was being paid. 9 . Both parents were responsible for the care of the children. Ms. L paid most expenses relating to the children’s clothing, sports, and other activities, while the father sometimes contributed. Mr. B is the one who collected the children from school for their various appointments, while Ms.

L went to meet them at the health professionals’ offices. The father looked after the children when the mother

had to be away in the evenings and on weekends because of work emergencies. On the other hand, Ms. L took care of the children when her partner went to play hockey in the evening. 10 . Ms. L took another medical leave of absence in February 2017. In fact, she has not yet fully recovered from her personal and professional exhaustion. She has been diagnosed with ADHD, depression, anxiety, hypertension, and tachycardia, among other ailments. She is being followed by her family physician, a psychiatrist, and a psychologist for her health problems. 11 . During the relationship, Ms.

L and the children also consulted the veterans’ assistance service. They sought help to better equip themselves to manage Mr. B’s adjustment difficulties, mood swings and anger management following his retirement and over the ensuing years. The father did not attend these sessions, so no help could be offered to him. 12 . The couple’s relationship deteriorated as the years went by and there were several brief separations. When the couple finally broke up, it was agreed that Ms. L would live in her cottage and Mr. B would continue to live in their house.

Both parents took care of the children on an alternate weekly basis. However, this arrangement ended in March 2020, when the first incident of physical violence occurred. 13 . Ms. L then accompanied the children to the house to pick up some personal belongings and decided to retrieve a few items belonging to her. Mr. B was so angry to see his former partner at their home that he physically assaulted her in the presence of the children. For several months, the son refused to have any contact with his father. Their relationship is better now, but it is not like it used to be. 14 .

The younger child continued with the shared parenting time arrangement with her father until November 2020. This arrangement ended following an incident involving Mr. B’s girlfriend. However, the father maintains contact with his daughter, and he travelled with her to a hockey tournament in the United States. 15 . Criminal charges were laid against Mr. B for the March 2020 incident of violence. Another event occurred five months later, when Ms. L went to the couple’s residence to ask her former partner to move out of the house. Mr. B pleaded guilty to a charge of assault on Ms.

L and received a 12-month suspended sentence. There have been no further incidents of violence. 16 . Following fruitless negotiations, Mr. B initiated legal proceedings in December 2020. Among other things, he seeks a joint and shared parenting (formerly custody and access) order, a retroactive child support and special expenses order, imputation of income to Ms. L, a retroactive support order for himself, and an equal division of the parties’ assets and debts. 17 . In her Responding Document, Ms.

L asks for exclusive decision-making responsibility with respect to the children, supervised parenting time between Mr. B and their daughter, child support and his share of the children’s special expenses retroactively to the date of separation, restraining orders, and a division of the couple’s assets. 18 . On January 13, 2023, an Interim Consent Order was issued. Ms. L was required to provide financial information and Mr. B was subjected to a restraining order with respect to his former partner and the children. Less than two months later, another Interim Consent Order was made.

Exclusive possession of the house was granted to Ms. L. 19 . By way of an Amended Responding Document filed by her counsel on July 4, 2023, Ms. L seeks general, exemplary, and punitive damages for physical and mental violence. Mr. B disputes this claim. 20 . At the hearing, the parties agreed as follows: - There will be no parenting order in respect of the son , given his age; - Parenting time between the daughter and her father will be exercised according to the child’s wishes and desires, given her age; - The amount of child support payable by Mr.

B will be based on his income and retroactive to the date of separation of the parties; - The parties’ camping trailer has been sold and the associated debt has been paid;

- Ms. L will keep the couple’s home, the value of which shall be based on the market evaluation, and she will be responsible for the mortgage. Mr. B will receive half the equity in the property. CREDIBILITY 21 . Before addressing the issues in this matter, I will deal with the credibility of the parties, which is an important aspect of any litigation. Madam Justice Abella summarized the role of the trial judge as follows in Rick v. Brandsema [1] : It is inherent in disputes generally, and matrimonial conflicts in particular, that parties have inconsistent versions of the underlying events.

It is the trial judge’s job as judicial historian to sift through the record, watch and listen to the parties, and determine which version of disputed events is the most reliable. […] 22 . I did indeed have the opportunity to observe the parties during their testimony and throughout the trial. Mr. B and Ms. L were able to recognize some of the other’s strengths as parents and as individuals during their relationship. I note that Mr. B did not wish to harm his former partner. 23 . What struck me most throughout this hearing was how Ms.

L felt when her partner behaved inappropriately, later, and how she is still affected. Mr. B, on the other hand, did not seem to realize the seriousness of his actions and their impact on his partner and children during his testimony. However, he became very emotional several times during Ms. L’s testimony. His emotions were sincere, and I conclude that he finally became aware of the consequences of his acts of violence on the members of his family. 24 . Ms. L played down the work performed by her spouse during the construction and laying out of the veterinary clinics. She said that Mr.

B lumbered the land where the building was to be constructed for fun. I find that his contribution was more than a hobby. ISSUES 1 . Should joint decision-making responsibility be granted to the parties concerning the child, [MaB], born on [...], 2010, given the role played by each parent in respect of the care of the child during the relationship and following separation, their parenting skills, the parents’ relationship following separation, and the role played by domestic violence? 2 . What exact amount of retroactive child support is owed by Mr.

B for the children, MB, born on [...], 2006, and MaB, born on [...], 2010? 3 . Should the parties contribute to the special expenses of the children, MB, born on [...], 2006, and MaB, born on [...], 2010? If so, which expenses, in what proportion and as of what date? 4 . Is Mr. B entitled to spousal support having regard to the length of the relationship, the children born to the couple, the role played by each of the parties during the relationship, and the respective incomes and assets of the parties? If so, what should be the terms of the order, i.e., the amount of support, start date and duration? 5 .

Should the parties’ assets and debts be subject to any division based on the doctrine of unjust enrichment and joint venture? 6 . Is Ms. L entitled to general, punitive, and exemplary damages as a result of the physical and psychological violence inflicted by Mr. B during the parties’ relationship and following their separation? THE LAW

Decision-making responsibility with respect to the youngest child, MB Should joint decision-making responsibility be granted to the parties concerning the child, [MaB], born on [...], 2010, given the role played by each parent in respect of the care of the child during the relationship and following separation, their parenting skills, the parents’ relationship following separation, and the role played by domestic violence? No, for the following reasons. 25 . The legislative framework for making parenting orders, which include decision-making responsibility, is found at

section 52 of the Family Law Act . [2]

Section 54 [3] refers to decision-making responsibility. 26 . Subsection 50(1) [4] of the Act codifies the Supreme Court of Canada’s decision in Young v. Young [5] by directing the Court to take into consideration only the best interests of the child in making an order relating to decision-making responsibility. 27 . The term “best interests of the child” is defined at subsection 50(2) [6] of the Family Law Act . Having considered all the factors, I find that the following are the most relevant in this case: (

e) the history of care of the child, (

h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child, (

i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child, (

j) any family violence and its impact on (

i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child. 28 . Mr. B seeks shared decision-making responsibility with respect to his daughter. He wants to be involved in decisions concerning her and, above all, he wants to be kept informed about her health, education, and sports activities. 29 The mother seeks exclusive decision-making responsibility with respect to the child, mainly because of the impact of the violence she suffered at the hands of her former partner.

In fact, since the couple separated, she alone has made all decisions affecting her daughter. 30. Mr. B and Ms. L are parents who were fully involved in their children’s lives. They gave their newborns bottles, fed them, changed their diapers, bathed them, cared for them, entertained and consoled them. The parties also attended medical and school appointments, as well as the children’s extracurricular and sports activities. 31. The couple agreed with respect to decisions taken concerning MB and MaB, both before and immediately after the parties separated.

The children spent equal time at each parent’s home after the break-up and the mother agreed that Mr. B should continue to live in the house. However, it turns out that Ms. L felt compelled to accept Mr. B’s requests. She also testified that she and the children walked on eggshells around the father during the relationship. 32. The father’s violent character continued to surface after the break-up; actually, his behaviour worsened. Mr. B insulted his former partner and her boyfriend and uttered threats to the point where the police were called.

This culminated in the two incidents of physical violence against the former partner, one of which occurred in the presence of the children. Following these assaults, Ms. L became so apprehensive of her former partner that she feared for her life. She communicated with Mr. B only when necessary and only in relation to MB and MaB. Most of the time, messages are sent through the children. 33. Their father’s violence also left its mark on MB and MaB. The son cut ties with his father after witnessing the assault on his mother, and the father-son relationship has not been the same since.

In addition, the children were affected by their father’s actions during the relationship, as attested by the social worker’s report. [7] 34. The youngest child is upset by her father’s refusal to communicate with her mother during parenting time. Further, as a result of her father’s lack of judgment when his drunken and naked girlfriend ended up in her room, MaB no longer wants to alternate between her

parents’ residences. 35. Ms. L testified that she does not feel comfortable in the presence of her former partner. Until last year, she had panic attacks when she saw Mr. B and she still feels she is under his control. Case law advises against compelling parents to collaborate and cooperate in order to jointly share decision-making responsibility with respect to their children in situations where there has been family violence. In this case, Ms. L’s fear is real and is not a tactic to get what she wants from the Court. 36. Mr.

B says he mostly wants to be kept informed in respect of his daughter’s health, education, and sports activities. This right is recognized in the Family Law Act . [8] He can thus obtain information himself from school authorities about his daughter’s academic progress, from health professionals involved with his child and from those in charge of the youngest child’s hockey teams and other recreational activities. It is therefore not for the other parent to bear this responsibility. 37. Ms.

L has been responsible almost exclusively for the care and maintenance of the children, in addition to the decisions taken with respect to them over the past three years. The father has not objected to the way in which the mother has looked after his son and daughter. His former partner has all the information (i.e., who is involved in respect of the health, education, and sports teams) concerning their daughter. The mother shall therefore be required to convey this information to Mr. B so that he can keep up to date.

I believe that such an order is in MaB’s best interests and will prevent her from witnessing further misunderstandings and acts of violence between her parents. Moreover, the child will be in the care of a parent who will be able to feel safer and assume her role with complete peace of mind. Exact amount of child support to be paid by Mr. B What exact amount of retroactive child support is owed by Mr. B for the children, MB, born on [...], 2006, and MaB, born on [...], 2010? 38. The Family Law Act [9] empowers this Court to make child support orders. Paragraph 3(1)(

a) of the Guidelines [10] sets out the formula to be used in determining the amount of support and

section 16 [11] provides for the determination of the payor’s income. In this case, Mr. B acknowledges his responsibility to provide support for his children as of the date of separation. Accordingly, the exact amount owing is calculated as follows: Year Income Amount Number of months Total 2023 $70,381.00 (estimated) $1,008.00 12 $12,096.00 2022 $75,382.00 $1,078.00 12 $12,936.00 2021 $66,965.48 $962.00 12 $11,544.00 2020 $53,799.48 $774.00 11 $8,184.00 $44,760.00 39. Mr. B must continue to pay child support in the amount of $1,008.00 per month until further order of the Court.

Special or extraordinary expenses for the children Should the parties contribute to the special expenses of the children, MB, born on [...], 2006, and MaB, born on [...], 2010? If so, which expenses, in what proportion and as of what date?

Section 7 of the Guidelines [12] authorizes the Court, in its discretion, to order an amount over and above support to cover certain particular special or extraordinary expenses, if they are necessary for the child and reasonable in relation to the means of the parents and their spending pattern prior to the separation.

41. A distinction is made in relation to extraordinary expenses for extracurricular activities in paragraphs 7(1.1)(

a) and (b). [13] 42. In this case, the evidence shows that the children have been involved for several years in hockey and soccer, both on competitive and recreational teams. The parents support their children’s commitment, participation, talent, and achievements in these areas. The father even agreed to coach one of his daughter’s teams when there were no volunteers to do so and took the youngest child to the United States, among other places, for a hockey tournament. 43. There is also the cost of health insurance premiums attributable to the children for which the parents are each responsible.

In addition, expenses have been incurred for counselling by health professionals that are not covered by the parties’ policies. Mr. B is aware that his children are being followed with respect to their mental health, especially since the March 2020 incident. 44 In their pleadings, the parties request that special expenses be paid retroactively to the date of separation. By way of her counsel’s brief, Ms.

L also claims a contribution from her former partner towards travel expenses related to medical expenditures, the cost of school trips, driving lessons, and expenses relating to the children’s education funds. 45 In MDS obo N.C. v. A.L. , [14] D’Entremont, J. discussed what expenses can constitute special or extraordinary expenses. At paragraph 62 of her decision, she states: Not all expenses incurred by a parent for a child qualify as special or extraordinary expenses.

The basic child support amount payable under the tables includes a component for expenses generally incurred by a parent in raising a child . […] She then quoted Julian D. Payne and Marilyn A. Payne, who explain the concept. 46. My colleague continued in the next paragraph as follows: [15] [63] The list of special and extraordinary expenses found in

section 7 of the Federal Child Support Guidelines , is comprehensive. In the event that a claim does not fit into the specified categories, it cannot be granted. To further explain what is not considered to be an expense under

section 7, Prof. Payne in Child Support Guidelines in Canada, 2020 , [16] explains at page 265: Expenses such as entertainment, pets, vacations, school fees, school supplies, children’s allowances, meals outside the home, personal grooming, and clothing do not constitute expenses contemplated by

section 7 of the Federal Child Support Guidelines . (Emphasis mine) 47. Thus, expenses for school trips, driving lessons, and education funds do not fall into any of the categories listed in

section 7 of the Guidelines and are therefore not allowed. In any event, no documentary or oral evidence was led in support of this submission. 48. No evidence was led at the hearing as to the exact or even approximate amount of the special or extraordinary expenses for the children from the date of separation until the trial. Also, the nearly 400-page record does not even contain one receipt or supporting document quantifying these expenses. 49 In M.P. v. B.R. , [17] the Court denied a claim for retroactive reimbursement of special expenses because the father was not aware of the existence of the expenses.

In the case at bar, the father knows that his children are involved in sports. However, he was not consulted about the exact cost of these extraordinary expenses. Furthermore, no evidence was adduced to determine whether or not these expenses were reasonable. As a result, claims for retroactive payment of extraordinary expenses related to extracurricular activities are denied. 50. Ms. L testified that her gas expenses are paid by her corporations, as are certain hotel expenses incurred during sports team tournaments outside the Acadian Peninsula. The evidence shows that Mr.

B also paid travel expenses related to their daughter’s sports activities. The mother’s travel expenses for sports activities and medical appointments are therefore not allowed. 51. Thus, I find that the parents shall pay, on a pro rata basis, the retroactive and prospective special expenses, substantiated by receipts or supporting evidence, relating to the children’s health care costs that exceed health insurance coverage by more than $100.00 per year.

52. With regard to prospective extraordinary expenses for the children’s hockey and soccer, team and tournament registration fees as well as reasonable cost for the required equipment to play these sports will be allowed, with supporting receipts. Spousal support 7 . Is Mr. B entitled to spousal support having regard to the length of the relationship, the children born to the couple, the role played by each of the parties during the relationship, and the respective incomes and assets of the parties? If so, what should be the terms of the order, i.e., the amount of support, start date and duration?

Yes, the former partner is entitled to support for himself within the median range and for a definite period. 53. Mr. B’s application for support is governed by the Family Law Act . [18] The obligation to provide support for the other party applies to common-law partners who have cohabited in a situation of some permanence if a child was born of their union. [19] In this matter, the parents lived together in a stable relationship for about 16 years and two children were born of their union. Following the reasoning of my colleague Hackett, J. in C.B. v. J.S ., [20] I find that Mr.

B meets this statutory requirement. Accordingly, Ms. L has an obligation to support her former partner in accordance with his needs and to the extent that she is capable of doing so. [21] However, before setting the amount of support, the Court must consider the factors set out in subsection 18(1). [22] 54. In J.D.L. v. R.J.J.L , [23] the learned Walsh, J. summarized the purposes of a support order by citing the relevant doctrine. At paragraph 144 of his decision, he stated: […] Spousal support serves two purposes in Canadian family law.

Firstly it seeks to compensate the lower-earning spouse for sacrifices in earning power which he or she made during the relationship. This is the “compensatory” purpose of spousal support [...] Secondly, if the lower-earning spouse is in financial need, and if the other spouse has the ability to pay, spousal support seeks to address the need. This is sometimes referred to as the “non-compensatory” purpose of spousal support [...] While in many cases a single order of spousal support will be intended to both compensate and relieve need, the two purposes are conceptually distinct.

Either one, in the absence of the other, can be a sufficient basis for a spousal support award. If neither is present in a given fact pattern, there is unlikely to be any entitlement to spousal support found. (Wilton and MacDonald, Spousal Support in Canada , Carswell, 2012, at p. 1) 55. The fact that Mr. B had a part-time job, was the family’s secondary source of income, and was available to care for the children are factors identified by Professors Thompson and Rogers [24] that would justify a claim for compensatory support.

In fact, the father took 35 weeks of parental leave when the couple’s eldest son was born. This thus enabled the mother to return to work a few weeks after giving birth. Even though the father received 95% of his income during this leave and it had no negative impact on his career, the couple’s decision in this respect certainly benefited Ms. L. Knowing that the father was there to take care of their child, she could work the required hours with peace of mind. 56. This peace of mind continued for several of the relationship, particularly when the couple decided that Mr.

B would work for his partner’s veterinary clinics instead of elsewhere. In his light maintenance job, he only worked between 5 and 10 hours a week most of the time. Mr. B was therefore available to spend time with the children, in addition to taking them to their various appointments and sports activities. The mother could as a result concentrate on her work and catch up with her partner and the children at the very last minute. This contribution by Mr. B still does not compare to that of a partner who has sacrificed his or her career and/or supported his or her partner during the latter’s studies.

In addition, it should not be forgotten that a full-time nanny was also present at the family home to look after the children and perform certain domestic tasks. 57. At the beginning of their relationship, the couple had essentially the same income. After his retirement from the Canadian Armed Forces, Mr. B chose not to undertake training in his field of expertise. He testified that he no longer wanted to travel long hours to work outside the province. He also wanted to be closer to his children.

His income typically came from his pension fund, which he deposited in his bank account, and from his former partner’s clinics. The income gap then arose and continued as Ms. L’s companies prospered, thanks to the hard work of the veterinarian and her team. As a result, she paid the vast majority of the family’s expenses. Ms. L testified that her former life partner was spoiled by the fact that she assumed most of the expenses, that he did not work all the hours paid for by her corporations, and that he kept most of his income to himself. This thus confirms Mr. B’s dependence on his former partner and Ms.

L’s acceptance of Mr. B’s employment situation. 58. Since the Supreme Court of Canada’s decision in Bracklow v. Bracklow , [25] non-compensatory support has become predominant and provides a very broad basis for entitlement to spousal support. The elements to be considered can be summarized as follows: - the length of the relationship,

- a significant decline in the applicant’s standard of living following separation, and - the economic hardship experienced by the applicant. 59. In this case, the relationship between the parties lasted 16 years. Apart from the final separation, the others were of short duration. The couple has two children. The family lived comfortably, especially in the latter years. One or both parties notably owned a house, a cottage, vehicles, all-terrain vehicles, a boat, and investments. The family travelled, and the parties intended to continue doing so by acquiring a timeshare.

Unquestionably, the standard of living of both parties declined following the break-up. However, it is Mr. B’s standard of living that will be more affected in the long term because his lower income will remain stable and, unlike Ms. L, he does not have any assets that can generate more income for him. 60 Following the separation and the loss of his maintenance employment at the veterinary clinics, Mr. B managed to find other jobs that generated income similar to what he was earning before his retirement.

He will not be able to earn much more, however, given his age and limited work experience (maintenance) after his retirement from the army. The fact that the former partner undertook no studies after he left the army necessarily impacts his ability to become financially independent. At the time, he made this decision for his family. However, he will have the opportunity to undertake studies over the next few years. Mr. B will also be better off financially when he is no longer financially responsible for his children. Conversely, that is still several years away. 61.

Following the division of assets and debts described below, Mr. B will keep his military pension (which he receives in monthly instalments) in addition to half of the family assets. Ms. L will also keep half of the family assets in addition to her business assets. With her income and assets, she will be able to pay support to her former partner. Although Mr. B’s financial statement does not show a deficit, the amount of child support and of his share of special expenses for the benefit of the children do not appear on it. Once these amounts are added, it will result in a negative balance. 62. Ms.

L testified that, because of her health problems, she is unable to work full time and devote as much energy and the effort required for her companies to generate maximum profit. Her earning capacity in turn affects her ability to pay support to Mr. B. Had an order been made when Ms. L was earning a higher income, the amount of Mr. B’s support would probably have been higher. However, the evidence shows that Ms. L continued to earn a certain salary and received non-taxable health insurance benefits (which must be taken into consideration) and her businesses appear to be in relatively good financial health. 63.

Counsel for Mr. B argued that a higher income should be imputed to Ms. L because she is the majority shareholder in the corporations from which she derives her income and those corporations have net profits. I disagree. Firstly, the profits of the former partner’s businesses have declined in recent years due to the fact she has been on sick leave and has worked much less. Secondly, Ms. L’s return to work and her ability to work as she did before remain uncertain. Consequently, I cannot determine that in future years the veterinary clinics will be able to generate profits similar to those generated in the past.

Finally, companies need to retain a certain profit margin to enable them to operate. 64. Spousal support is based on a compensatory model, not on a fault-based model. The fact that Mr. B was violent towards Ms. L is not a bar to his entitlement to support. Although the factor set out at paragraph 18(1)(q) [26] refers to the “conduct of the parties,” I cannot find that “Ms. L’s ability to pay was unreasonably affected” by Mr. B’s conduct. No medical or other evidence was led at the hearing to show that Mr. B’s conduct was responsible for the decline in Ms. L’s earning capacity or, if so, to what degree.

Notwithstanding her inability to work as much as before, Ms. L continues to earn a very good income. 65. I therefore find that Mr. B meets the required elements and has satisfied his burden of proof to establish his entitlement to support based on a compensatory and non-compensatory claim. The amount of support will therefore fall within the median range and support and shall be paid for a period of twelve years. 66.

The issue of retroactive spousal support has been reviewed by the Supreme Court of Canada. [27] It was decided that the principles enunciated by the country’s highest court regarding retroactive child support apply. [28] However, since these applications involve adults, “concerns about notice, delay and misconduct generally carry more weight in relation to claims for spousal support.” [29] 67. In this case, Ms. L was informed of Mr. B’s application for support when he filed his Notice of Application in December 2020.

Although negotiations between counsel had taken place before then, no evidence was led to show that Ms. L was in fact aware of Mr. B’s claim before that date.

68 The following table explains the amount of support owed to Mr. B. Of course, these amounts are taxable in the hands of Mr. B and deductible in the hands of Ms. L. In addition, the monthly payments of $1,925.00 based on Ms. L’s annual income of $186,189.00 will continue until December 30, 2033. Year Ms. L’s income Mr.

B’s Income Amount Number of Months Total 2021 $160,685.00 $66,965.00 $1,574 12 $18,000.00 2022 $188,928.00 $75,381.00 $1,831 12 $21,972.00 2023 $186,189.00 $70,381.00 $1,925 12 $23,100.00 Total amount of arrears $63,072.00 Division of assets and debts Should the parties’ assets and debts be subject to any division based on the doctrine of unjust enrichment and joint venture? Assets commonly used by the family are part of a joint venture and therefore subject to division. The other assets are not, and I will explain why. 69. Mr. B and Ms. L are not married.

Thus, the presumption of equal division of marital property [30] does not apply to them. The only recourse open to them is therefore the Common Law based on the doctrine of unjust enrichment and joint family venture. 70. When the parties began cohabiting, Mr. B owned, among other assets, a duplex, a vehicle, a pension fund with the army that he had been building up for about 15 years, and a bank account. Throughout the parties’ relationship, these assets were considered the exclusive property of Mr. B. For example, Ms.

L testified that she was not informed about and never benefited from the proceeds of the sale of Mr. B’s duplex. 71. Each party kept a bank account sheltered from the other party during their relationship. In fact, all of Mr. B’s military pension funds were deposited in his account, at his sole disposal. Ms. L admitted that she does not know the balance of this account, notwithstanding that they shared their lives for more than 16 years. 72. At the time the parties decided to cohabit, Ms. L also had a bank account and was in the process of completing the purchase of a veterinary clinic.

Like her significant other, these assets belonged solely to her. Unlike her life partner, significant debts for which Ms. L continues to be entirely liable were associated with the acquisition of the clinic. 73. Over the years, the partners each continued to maintain their own bank account through which they could spend as they wish and buy items for their own personal use, without consulting or obtaining permission from the other. Ms. L also paid most of the children’s expenses through her personal account. 74. The couple purchased a house shortly after the birth of their eldest son. Although Ms.

L is the only one who contributed to the deposit ($11,220.00) [31] and has assumed most of the expenses, the parties are joint owners and are both legally responsible for the mortgage. 75. When the couple bought their home, they opened a joint account. Ms. L made transfers from her personal account to cover payments related to the house (for which she is responsible) and other jointly owned property. She did not use the joint account for personal purposes and did not deposit any additional amounts therein. 76. Mr. B usually deposits his employment income in this account, except for his income from the army.

With these funds, Mr. B pays the housing expenses for which he is responsible for (mainly insurance and half of the property taxes) as well as his share of other assets purchased jointly with his partner. He also paid for certain family expenses (e.g., groceries, purchases for the children) and personal expenses from time to time. 77. During their union, the couple acquired a camping trailer in both their names, Registered Education Savings Plans for the children,

and a timeshare in Florida. The evidence shows that the family also regularly and routinely used a pontoon boat, a Jacuzzi, a 2015 Hyundai Santa Fe, a 2016 Dodge Ram truck, an all-terrain vehicle, trailers, and a dock. A debt is also associated with the truck. 78. During her relationship with Mr. B , Ms. L acquired a vacant lot in her name located close to her parents’ home. The property was only used by the family on one or two occasions, Mr. B was not consulted with respect to the purchase, and he made no financial or other contribution regarding the property. 79.

A few months before the couple broke up permanently, Ms. L, with her cousin, bought a lot on which two cottages are found. [32] Once again, Ms. L never discussed this purchase with Mr. B. Thus, his name does not appear anywhere on the deed of transfer or the mortgage, and his only contribution is to have plowed the driveway with the all-terrain vehicle on one occasion. Moreover, he only went to the property a few times. 80. At the time of the separation, Mr. B kept snowmobiles, the two trucks, his personal bank account, and his entire army pension fund.

He is also responsible for a line of credit and a loan for his truck. 81. For her part, Ms. L has a Registered Retirement Savings Plan, a bank account, and a loan. Mr. B admits that he has no knowledge of the value of his life partner’s retirement or other investments. 82. When the couple separated, Ms. L also held shares in three companies: Hôpital vétérinaire de la Péninsule

(2004) Ltée, Clinique vétérinaire de Caraquet Ltée and MLB Investments Ltd. All required transactions with respect to these companies are made through Ms. L’s personal bank account. Mr. B holds no shares, he has never been involved in making decisions concerning these corporations nor is he a guarantor of any of their debts. 83. Since their break-up, the parties have sold the camping trailer and paid off the related debt. Mr. B agreed to transfer to Ms. L his interest in the timeshare purchased shortly after the separation.

As no one has produced any evidence about the equity in this property, I find there is none. Finally, the parents have agreed that the children’s RESPs shall remain invested for the benefit of their children. These items will therefore not appear in the table of assets. 84. Mr. B requests that all assets and debts be divided in equal shares, or at least that a percentage of his former partner’s businesses be allocated to him. Ms. L submits that only the net profit on the house should be divided equally. Unjust enrichment 85.

The country’s highest court has identified three essential elements for establishing a claim for unjust enrichment. [33] They can be summarized as follows: (

a) an enrichment (of Ms. L); (

b) a corresponding deprivation (of Mr. B); and (

c) the absence of a juristic reason. 86. According to the Supreme Court of Canada, when reviewing an unjust enrichment claim, “ ... courts must ask whether the contribution is ‘ sufficiently substantial and direct’ to entitle the plaintiff to an interest in the property in question.” [34] 87. Mr. B alleges that he is entitled to half or, if not, to a share of all the assets, including his former partner’s companies, because, among other things, he took care of the children and undertook chores around the house.

In Dempsey & Edwards , [35] Campbell, J. warned courts against giving more rights to business assets to common-law partners than to married spouses. He stated as follows: [TRADUCTION] [31] Si les services indirects pouvaient être liés à des biens autres que ceux utilisés quotidiennement par la famille, il serait possible pour

une conjointe de fait d’obtenir une indemnité plus importante que celle qu’elle pourrait se voir attribuer si elle était légalement mariée. Il en est ainsi du fait que, sous le régime de la loi intitulée Matrimonial Property Act , S.N.S. 1980, c. 9 , les biens non matrimoniaux, tels que les actifs commerciaux, sont, à première vue, exclus de la répartition. Le droit de l’enrichissement injustifié ne fait pas de distinction entre les biens matrimoniaux et les biens non matrimoniaux.

Étendre la contribution d’un conjoint de fait, comme le soin des enfants et les tâches ménagères, à des biens qui, dans un mariage légal, seraient des biens non matrimoniaux, reviendrait à permettre que cette contribution crée des droits plus importants qu’il n’en serait sous le régime de la loi intitulée Matrimonial Property Act , précitée . (Emphasis mine) 88. The judge went on to say: [36] [TRADUCTION] [34] Il convient de noter qu’il serait très étrange qu’un requérant n’ait pas contribué aux soins des enfants (s’il a des enfants), aux tâches ménagères et à d’autres tâches domestiques.

Il ne s’ensuit pas automatiquement que le fait d’apporter une telle contribution suffit pour que la doctrine de l’enrichissement injustifié s’applique. (Emphasis mine) 89. In this case, Mr. B’s contribution to the alleged tasks was not substantial since the services of a full-time nanny were retained to take care of the children, perform certain domestic chores, and prepare meals. In addition, the former partner was paid for full-time work by Ms. L’s corporations for several years, even though the tasks he performed took him much less time. 90. Mr.

B also submits that his former partner was enriched because he supported her when she developed her businesses, and he was underpaid for the work done at her veterinary clinics. In discussing enrichment, the Supreme Court of Canada stated, at paragraph 38: [37] “Moreover, the benefit must be tangible...”. Accordingly, I find that the former partner’s [TRANSLATION] “support” alone cannot confer an enrichment on Ms. L that would entitle him to an interest in Ms. L’s companies. 91. Moreover, the evidence clearly shows that Mr. B did not contribute to Ms.

L’s career advancement as a veterinarian nor to the acquisition or operation of her businesses. He invested no money, he is not a shareholder, he contracted no debt or mortgage, and he certainly never had any financial responsibility in this regard. In his affidavit and brief, Mr. B refers to [TRANSLATION] “our corporations” and to the hard work that went into setting up and maintaining the businesses, etc. Rather, the evidence shows that it was Ms. L and her team of employees who worked to build up the client base of the veterinary hospital and clinic. 92.

The former partner’s contribution was thus limited to the labour work performed during the construction of the veterinary hospital in 2011 and the renovations of the Caraquet clinic in 2014. During his testimony, Mr. B admitted that he wanted to be compensated for the hours he worked during these construction projects. He maintains that the $15 an hour for 40 hours a week that he was paid was far less than what he should have received, as he considered himself the foreman of the construction sites and had to work evenings and weekends.

It should be noted that the financial wealth of the corporations was less solid at the time, and the carpenter responsible for the entire construction of the veterinary hospital was paid $30,000.00 for his services. 93. It is admitted that Mr. B cleared part of the land for the veterinary hospital and was present on site during the construction to coordinate the work of the subcontractors, order and/or go get missing materials and run errands, among other tasks. However, it was Ms. L who supervised the project with the architect, made all the final decisions and paid all the bills.

As for the clinic building in Caraquet, Mr. B demolished the interior and carried out some interior and exterior work over a period of several months, based on the architect’s plans and his partner’s instructions. Mr. B coordinated the various subcontractors, but again, all the decisions were made by his life partner, and she was financially responsible for everything. 94. After the clinics opened, Mr.

B was responsible for light maintenance work, including mowing the lawn, shovelling snow from the porches, sidewalks, and dog parks, changing filters, neon bulbs and defective door handles, and responding to security alarms. For this work, he continued to be paid $15 an hour for 40 hours per week (which amounts to $600.00), even though in reality he worked no more than 5 to 10 hours per week (which amounts to $75.00 to $150.00). When Mr. B was dismissed from his position in March 2020, no one was hired to replace him. 95. Here are the amounts earned by Mr.

B from his work for his former partner’s companies: 2011: $23,712.00 2012: $6,240.00 2013: $4,009.00

2014: $7,488.00 2015: $0.00 2016: $0.00 2017: $25,800.00 2018: $29,400.00 2019: $32,520.00 2020: $9,600.00 96. In 2017, a company owned by Ms. L acquired Mr. B’s truck for $14,000.00. However, he continued to drive the vehicle, whose insurance and certain gas expenses were paid by the company. Following the separation, he kept the said vehicle. Since the vehicle registration had not been changed at the time of the purchase, Mr. B sold the truck a second time and kept the $10,000.00 profit. 97. Considering that Mr.

B received approximately $150,000.00 from his partner’s companies over a period of less than 10 years, and that he received employment insurance benefits on account of this employment in addition to the profit from the sale of his truck, which he kept, I consider that he was amply compensated for the work he performed. In fact, it is he who has been enriched, not the other way around. 98. Given my finding regarding the absence of enrichment of Ms. L (and rather that Mr. B was enriched), Mr. B has not met the first element required to establish his claim for unjust enrichment.

I therefore do not have to consider the corresponding deprivation of Mr. B (second element) nor the absence of a juristic reason (third element). Joint family venture 99. Another category of unjust enrichment was recognized by the Supreme Court of Canada in Kerr v. Baranow , [38] namely that based on joint family ventures. It is described as follows at paragraph 60: At least one other basis for an unjust enrichment claim is easy to identify. It consists of cases in which the contributions of both parties over time have resulted in an accumulation of wealth.

The unjust enrichment occurs following the breakdown of their relationship when one party retains a disproportionate share of the assets which are the product of their mutual efforts. The required link between the contributions and a specific property may not exist, making it inappropriate to confer a proprietary remedy. However, there may clearly be a link between the joint efforts of the parties and the accumulation of wealth ; in other words, a link between the “value received” and the “value surviving”, as McLachlin J. put it in Peter , at pp. 1000-1001.

Thus, where there is a relationship that can be described as a “joint family venture”, and the joint efforts of the parties are linked to the accumulation of wealth, the unjust enrichment should be thought of as leaving one party with a disproportionate share of the jointly earned assets. (Emphasis mine) 100. Cromwell, J. continued his analysis by stating the following: “Cohabitation does not, in itself, under the Common Law of unjust enrichment, entitle one party to a share of the other’s property or any other relief.

However, where wealth is accumulated as a result of joint effort, as evidenced by the nature of the parties’ relationship and their dealings with each other, the law of unjust enrichment should reflect that reality.” [39] 101. At paragraph 89, [40] the country’s highest court set out four main headings to assist the courts in determining whether a joint family venture actually exists, namely: (

a) mutual effort; (

b) economic integration; (

c) actual intent; and (

d) priority of the family.

102. In the case at bar, I find that there is a distinction to be made between assets jointly acquired and/or used commonly by or for the family versus assets in the sole name of one party, used and/or kept almost exclusively by one of the partners. 103. When the parties decided to form a family, they had a common project and devoted efforts to it. That is the context in which they decided to buy a house and then other assets for the benefit of the members of the family. They wanted to ensure the future well-being of their children.

As a result, the parents each drew up a will and a power of attorney to ensure the financial security of their offspring in the event of their death. The evidence shows that the parents’ efforts in respect of childcare, housework, domestic chores, etc. relating to the children are intricately linked to their contributions and purchases of family assets. Each of them contributed according to their ability to do so, whether in terms of money or time. 104. Ms. L might well argue that her financial contribution with respect to the assets was greater than Mr.

B’s and that, as a result, there should be an unequal division in her favour. However, this position could not be accepted given that the parties formed a team regarding the children and the family and each devoted efforts toward the same goal. None of them kept track of his or her specific contributions. Thus, the house, the joint account, the parties’ vehicles used by the family, the boat, the Jacuzzi, and the all-terrain vehicle will be divided equally between the parties. 105. Concerning the parties’ pension funds, investments, and corporations, I cannot find that there was a joint family venture.

First, the parties clearly intended to keep certain of their assets separate from each other’s and were entitled to do so. Throughout this relationship, the partners had no knowledge of each other’s bank account balances or investments. Mr. B kept his pension funds out of his partner’s reach and each of the parties decided on several occasions to acquire assets in their sole name and for their sole benefit, for example, the vacant lot and cottage acquired by Ms. L and the snowmobiles purchased by Mr. B.

The couple’s intention and reality with respect to these assets were not the same as regards joint or family assets. 106. The same reasoning applies to Ms. L’ companies. It was she who studied long hours to obtain her degree and then worked hard to gain experience in veterinary medicine. The couple was not together at the time. Moreover, Mr. B never took any

part in business decisions, he never invested in and took no financial responsibility in respect of his partner’s businesses. Finally, he was paid handsomely for the work he performed in the clinics over the years. His support for his partner’s work is comparable to the support she provided when Mr. B worked away from the home, as most parents do. It was a contribution to the family’s common project or for the children rather than a contribution to the other partner’s assets. This is another reason in support of Mr. B’s entitlement to spousal support. 107.

Contrary to several cases cited, including the recent decision in Hennigar v. Doucet , [41] Mr. B is not and has never been an integral part of Ms. L’s corporations. They do not owe their success to the efforts or sacrifices of Mr. B, who provided no valuable or unpaid contribution and took no financial risk. The value of assets and debts 108. The couple’s home remains the most valuable family asset to be divided. I accept the figure of $330,000.00 stated in the report prepared by North East Appraisals Ltd. [42] as the market value of the property.

This figure is more realistic than the property assessment for real property tax purposes, which does not consider the current real estate market. Although a property inspection report was introduced into evidence, [43] I will attach no weight to it. The inspector did not testify as to the need for these repairs, since when they are needed, the associated cost and whether these repairs would have an impact on the property’s market value. At the hearing, Ms. L testified that she wanted to become the sole owner of the home. That will be so, as Mr. B has no objections. 109.

The property was subject to a mortgage at the time of separation. Although Mr. B continued to live in the house, Ms. L made the payments on this debt. An Interim Consent Order granted exclusive possession of the house to Ms. L as of March 1, 2023. [44] She was also ordered to pay the mortgage. [45] 110. Since Ms. L has been granted the exclusive right to live in the house and is legally liable to make the mortgage payments alone as of March 1, 2023, Mr. B will no longer be liable to make payments on the debt as from that date.

Considering that both parties had the same interest in the property from the date of the break-up (January 7, 2020) until the date of the order (March 1, 2023), Mr. B will have to reimburse his former partner for half of the mortgage payments made during this period. 111. Notwithstanding all the witnesses heard and documents led at the hearing, there is no evidence of the exact amount paid by

Ms. L against the mortgage over this period. When she testified, she stated that she paid $288.00 per week, her financial statement filed on September 6, 2023, indicates that the weekly debt payment is $310.18, while her affidavit filed on December 7, 2022, confirmed that she had paid an amount of $21,984.28 towards the mortgage as of November 18, 2022. [46] The parties will therefore have to agree on the total amount paid by Ms. L . 112. Mr. B paid the fire insurance premiums ($1,200.00 to $1,300.00 per year) after the break-up.

The Interim Order confirms his obligation to pay this amount until the expiration of the contract on June 5, 2023. [47] Given that Mr. B lived in the residence and his responsibility was recognized in a court order, Ms. L will not have to reimburse him any amount in this respect. 113. Regarding the property taxes, both parties will be equally liable for the amount owing at the time of the hearing, i.e., $20,908.36. [48] 114. Ms. L will become the sole owner of the house once she has paid Mr. B his share in the house and he is released from his liability towards the mortgage. 115.

The parties testified that, following separation, Mr. B was responsible for making the payments with respect to the camping trailer registered in both parties’ names. Mr. B claims that he paid $61.00 per week until the trailer was sold in the summer of 2023. Once again, the evidence led by the parties was deficient with respect to the total amount paid by Mr. B, half of which Ms. L will be required to reimburse to him given that the trailer is a family asset. The parties will also have to agree on the total amount paid by Mr. B for the camping trailer. 116.

The evidence shows that the family regularly and routinely used a pontoon boat ($4,000.00), [49] a Jacuzzi ($5,000.00), [50] a 2015 Hyundai Santa Fe ($15,000.00), [51] a 2016 Dodge Ram ($25,000.00), [52] an all-terrain vehicle and trailers ($7,000.00), [53] and a dock ($4,000.00). [54] I find that these assets are subject to equal division between the partners, as is the debt related to Mr. B’s truck in the amount of $26,235.96. [55] 117. The parties swore several financial statements assigning different values to some of their assets.

No supporting documentation was adduced as to the actual market value of these items on the date of separation. I have therefore arbitrarily used the amounts found in the first financial statements filed by Mr. B and Ms. L, as I consider that their value of the items must have been more accurate shortly after the separation than a few years later. 118. At the time of the break-up, snowmobiles ($1,800.00) [56] and a second truck ($10,000.00) [57] were registered in Mr. B’s name. There is no evidence that these assets were used by the family. Accordingly, they will be the exclusive property of Mr. B.

He maintains that he is also responsible for a line of credit ($14,812.64). [58] However, no evidence was led as to the source of the expenses that led to this debt. Accordingly, Mr. B will be responsible for it. 119. At the time of separation, Mr. B still owned his personal bank account, in which his entire army pension, which he has been receiving for about ten years, is deposited (total amount paid was approximately $200,000.00 at the time of break-up). Mr.

B offered no explanation for the low balance of $5,007.15 [59] in this account, which he amassed over all these years, despite his meagre contribution to the family’s expenses and which came mainly from his employment income with the veterinary clinic. Notwithstanding his denial that he continued to gamble after his retirement, Ms. L’s theory to the contrary would offer a logical explanation for the value of Mr. B’s assets at the end of their union. 120. The only information presented regarding the value of Mr. B’s pension fund with the Army is an estimate of the amount that would be payable to Ms.

L if she were entitled to it, i.e., $81,620.00 (for a cohabitation period of approximately 5 years). [60] I find that Ms. L has no entitlement to this asset, since Mr. B contributed on his own for the vast majority of their relationship, Mr. B kept the pension fund sheltered throughout their union and Ms. L has not proved that there has been any unjust enrichment. Unfortunately, absent evidence, I cannot quantify the value of this asset. Considering that Ms. L’s estimated portion represents 25% of the total value of Mr. B’s pension fund, I would candidly value this asset held by Mr.

B at several hundred thousand dollars. 121. Ms. L acquired the vacant lot in 2012 for the sum of $20,000.00. [61] This figure will be used as the current market value of the property, being more realistic than the provincial tax assessment value ($4,000.00). [62] This property has not been regularly used by the family. Mr. B was not consulted about its purchase. In fact, he was only informed later. In addition, he made no financial or other contribution with respect to the property. Mr. B will have no interest in the property.

122. Shortly before the final separation, Ms. L and her cousin bought a piece of land on which two cottages are built for $225,000.00. [63] Once again, Ms. L never discussed this purchase with Mr. B. He testified that he learned about it later. His name does not appear anywhere, and he made no contribution, so to speak. In fact, he only went to the property a few times. Ms. L added that she unilaterally decided to buy the cottage with funds from her bank account so that she could go there to recharge her batteries, as needed.

Although her name appears on a mortgage, [64] she testified that her share of $112,500.00 ($225,000.00 ÷ 2) is net. This is the value that I will attribute to the cottage, in which Mr. B will have no interest. 123. At the time of separation, Ms. L had a Registered Retirement Savings Plan worth $97,800.66, [65] a bank account with a total balance of $41,619.44 [66] ($19,703.50 + $16,354.18 + $5,561.76) and a loan of $34,815.73 [67] for which she was solely responsible. Mr. B admitted that he had no knowledge of the value of Ms.

L’s retirement or other investments, which are transacted through his former partner’s bank account. I find that Mr. B has not discharged his burden of proof to be awarded a share of these assets. 124. In order to determine the market value of Ms. L’s corporations, the parties submitted into evidence a bundle of 472 pages of company tax returns and financial statements without offering any explanation whatsoever as to the meaning of the various figures contained in these documents. Of course, there was no testimony from any accountant or other expert in this regard either. As was the case with Mr.

B’s pension fund, I cannot assign a market value to Ms. L’s businesses. The only findings I can make are that there are substantial retained earnings (especially for the Hôpital vétérinaire de la Péninsule

(2004) Lté

e) and that these earnings have declined since the parties separated (except for MLB Investments Ltd). Here is an overview of the companies’ retained earnings since the final separation: Hôpital vétérinaire de la Péninsule

(2004) Ltée $536,935.00 (retained earnings) 2022 $523,568.00 (retained earnings) 2021 $553,285.00 (retained earnings) 2020 Clinique vétérinaire de Caraquet $96,767.00 (retained earnings) 2022 $167,341.00 (retained earnings) 2021 $145,976.00 (retained earnings) 2020 MLB Investments Ltd Undetermined 2022 $16,271.00 (retained earnings) 2021 $6,129.00 (retained earnings) 2020 The assets and debts to be divided equally are as follows: Assets Assets Retained by Ms. L Mr. B’s share House $330,000.00 $165,000.00 Home contents divided in kind between the parties Ms.

L’s vehicle (2015 Hyundai Santa Fe) $15,000.00 $7,500.00 Mr. B’s vehicle (2016 Dodge Ram) $25,000.00 - 26,235.96 = -$1,235.96 $617.98 Pontoon boat $4,000.00 $2,000.00 Trailers $1,000.00 $500.00 Jacuzzi $5,000.00 $2,500.00 All-terrain vehicle $6,000.00 $3,000.00 Docks $4,000.00 $2,000.00 Camping trailer sold Timeshare transferred to Ms. L Gross share owing to Mr. B $183,117.98 Debts Debts Ms. L Mr. B Mortgage ½ balance as at 02-28-2023 ½ balance as at 02-28-2023

Mortgage payments made by Ms. L (between 01-07- 2020 and 02-28-2023) undetermined ½ of the payments to be reimbursed by Mr. B Insurance Ms. L responsible as of June 6, 2023 Mr. B responsible until June 6, 2023 Property taxes $10,454.18 $10,454.18 Camping trailer payments made by Mr. B between January 7, 2020, and the date of sale. ½ of the payments to be reimbursed by Ms. L undetermined The assets being the exclusive property and the debts being the sole responsibility of each of the parties are as follows: Hôpital vétérinaire de la Péninsule

(2004) Ltée MLB Investments Ltd undetermined Clinique vétérinaire de Caraquet undetermined MLB Investments Ltd undetermined RRSP – Ms. L Bank accounts – Ms. L $97,800.66 $41,619.44 Vacant lot – Ms. L $20,000.00 Cottage – Ms. L $112,500.00 Personal loan – Ms. L ($34,815.73) Pension fund – Mr. B undetermined Truck – Mr. B $10,000.00 Snowmobiles – Mr. B $1,800.00 Bank account – Mr. B $5,007.15 Line of credit – Mr. B ($14,812.64) 125. Looking at the above tables and the equalization amount to be paid to Mr. B, each of the parties will retain a significant share of assets.

Damages for physical and mental violence Can Ms. L claim general, aggravated and punitive damages for the physical and mental violence inflicted by Mr. B in an application filed in the Family Division? If so, has the burden of proof been met to quantify the former partner’s claim? Yes, a tort claim can be brought in the Family Division. However, Ms. L’s claim cannot succeed in this case for the following reasons. 126. Counsel for Ms. L relied primarily on the Ontario decision in Ahluwalia to support her client’s claim. The trial judge [68] recognized a new tort specific to family violence.

However, this innovation was not upheld by the Ontario Court of Appeal [69] given that new torts are only introduced where existing remedies are inadequate. Ontario’s highest court confirmed that numerous remedies already exist in the context of family law proceedings. In addition, it upheld the amount of compensatory and aggravated damages awarded for the torts of assault, battery, and intentional infliction of mental suffering. 127 In the amended Responding Document to the Application , counsel for Ms. L requested that the applicant (Mr.

B) pay general, exemplary and punitive damages for physical and mental violence (emphasis mine). [70] Since this tort does not exist, I extrapolate that the relief sought by Ms. L is for the tort of assault, battery and intentional infliction of mental suffering like in the cases cited by her counsel in support of her claim. Counsel for Mr. B also interprets her colleague’s claim this way, based on her oral and written submissions. 128. A claim in tort is not governed by any statute. As in the case of unjust enrichment, these claims in Equity are thus decided according to the Common Law. 129.

To support her submissions, counsel for Ms. L mostly cites the comments of the Ontario trial judge. [71] She argues that to require her client to commence an action in Trial Division to assert her rights to obtain relief in tort against her former partner, in addition to proceedings in the Family Division with respect to remedies under the Family Law Act and pursuant to the Common Law (unjust enrichment), would be too onerous and unrealistic and would deprive her client of access to justice. I agree with this position.

130. Since claims for unjust enrichment can be brought before the Trial Division (e.g., where the parties have not been in a relationship as a couple) [72] and before the Family Division where the parties have been in a romantic relationship, as in the case at bar, the same should apply to claims in tort. This is indeed the case in other provinces where the courts have agreed to combine the two cases or where an originating process is used for all the remedies sought. [73] 131. In order to determine which matters may be dealt with in the Trial Division and in the Family Division in New Brunswick, one must look at the Judicature Act , [74] more specifically the following provisions:

section 9 , subsections 11 (1.1), 11(3) and 11(4), and

Schedule A(v). 9

(1) Notwithstanding anything in the provisions of this or any other Act or the Rules of Court , the Trial Division shall have and exercise general and original jurisdiction in all causes and matters including jurisdiction in the following matters, namely: (

a) all causes and matters, civil and criminal, that were within the exclusive cognizance of the Supreme Court in the exercise of its original common law jurisdiction, before the commencement of the Judicature Act, 1909 ; (

b) all causes and matters that prior to July 1, 1966, were assigned to or cognizable by the Chancery Division; (

c) all causes and matters that prior to September 4, 1979, were within the jurisdiction of the County Court of New Brunswick; and (

d) all causes and matters that prior to September 4, 1979, were within the jurisdiction of the Queen’s Bench Division of the Supreme Court. 11

(1.1) In

Schedule A “family” includes 2 persons cohabiting in a conjugal relationship that is a permanent relationship, whether or not married, or the survivor of either, and includes the children of both or either, natural or adopted or to whom either stands in loco parentis , and any person lawfully related to any of the aforementioned persons. 11

(3) The Family Division has the jurisdiction vested in the Trial Division. 11

(4) Subject to subsection (5), the Family Division is constituted to hear and determine proceedings with respect to matters set out in

Schedule A, and for such purposes the Family Division may also exercise the jurisdiction vested in the Provincial Court of New Brunswick and The Probate Court of New Brunswick, and in a judge of such courts, and, without limiting the scope of the above, may exercise the jurisdiction of a court or a judge under any provision set out in

Schedule B.

SCHEDULE A (

v) actions in tort where the defendant, or any defendant, is a member of the same family as the plaintiff[.] 132. In short, the Family Division of the Court of King’s Bench of New Brunswick has jurisdiction to hear cases in tort between common-law partners. 133. Counsel for Mr. B invoked the Limitation of Actions Act [75] in support of her client’s position to have Ms. L’s claim dismissed on the ground that it had been submitted too late. Indeed, the Limitation of Actions Act provides that a claim is barred after two years from the date on which the act occurred. [76] 134. Ms.

L’s a mended Responding Document to the Application was filed on July 4, 2023. Under the Limitation of Actions Act , [77]

the limitation period would therefore have run from July 5, 2021. 135. In Natasha Poirier v. Bruce Randolph “Randy” Van Horlick,[78] Ouellette, J. clearly explained the difference between the tort ofassault, battery and intentional infliction of mental suffering as well as the burden of proof required. At paragraph 40 of his decision, hestated as follows: [40] In Hurley v. Moore [1993] N.S. No 283, the Court of Appeal cited Linden, Canadian Tort Law, in defining assault and alsodistinguishing it from battery. It states: “An assault, in law, is to be distinguished from battery.

Linden, Canadian Tort Law, 5th edition, commencing at p. 42 describes anassault as the intentional creation of the apprehension of imminent harmful or offensive conduct whereby damages arerecoverable by someone who is made apprehensive of immediate physical conduct even though that conduct never actuallyoccurs. Conduct that intentionally arouses apprehension of an imminent battery constitutes an assault. Battery, as described in JusticeLinden at p. 40 of his text, occurs when a person intentionally causes harmful or offensive contact with another person.

A battery isan act of the defendant which directly and either intentionally or negligently causes some physical contact with the person of the plaintiff without the plaintiff’s consent: Halsbury’s Laws of England, 4th edition, vol. 45, para. 1311. (emphasis added).” 136. In the case at bar, the evidence shows that there were two incidents of assault by Mr. B against his former partner. Theseincidents occurred in March and August 2020 when he stepped towards her before physically touching her. I find that he thenintentionally created a reasonable apprehension of imminent harm or offensive conduct against Ms. L.

However, Ms. L has not met herburden of proving that she had this apprehension of physical contact before the separation or after August 20, 2020. 137. Counsel for Ms. L argued that her client had been the victim of assault when Mr. B threatened her new boyfriend and when herefused to return her cat. As there was no apprehension of physical contact from Ms. L, I cannot consider these actions as assaults. Thelast incident of assault therefore occurred on August 20, 2020. 138. Moreover, Mr. B committed the acts of battery when he physically touched Ms. L by taking her and throwing her out of theresidence.

In so doing, he intentionally caused a harmful and offensive contact with Ms. L without her consent. The last act of batteryalso occurred on August 20, 2020. 139. The judge of this Court discussed the tort of intentional infliction of mental suffering as follows at paragraph[s] 43 [and 44] of hisdecision:[79] [43] In Prinzo v.

Baycrest Centre for Geriatric Care, , the Court of Appeal for Ontario confirmed that there arethree elements of the tort of intentional infliction of mental suffering: (1) flagrant or outrageous conduct; (2) calculated to produce harm; and (3) resulting in a visible and probable illness. [44] The test was adopted by Grant J in Rancourt Cairns v. Saint Croix Printing and Publishing Company Ltd 2018 NBQB 19. 140. In fact, in Ahluwalia v. Ahluwalia, at paragraph 69, the Ontario Court of Appeal referred to the case cited by Ouellette, J.[80] 141. Ms.

L testified that she was psychologically and emotionally abused and controlled by her former partner during theirrelationship, in particular because he spoke loudly and/or shouted, was ill-tempered, banged hard on the counter and exerted too muchauthority over the children, he sometimes controlled the use of cell phones by family members, he insulted her (calling her a lesbian,stating that she dressed like a lesbian, that she was not a good mother because she sometimes worked long hours, etc.), he revved theengine of his truck and made noise with his vehicle when leaving the property.

142. I agree that Mr. B’s actions during the parties’ relationship are unacceptable. They created a climate of fear and hypervigilance in his children and former partner, to the point where they walked on eggshells when Mr. B was present. Although Mr. B did not acknowledge the extent of the impact of his actions, he is aware of the steps taken by his former partner and the children to obtain counselling services to help them deal with his behaviours and mood during the relationship. In addition, I accept Ms.

L’s poignant testimony that she repeatedly tried to convince her partner to seek help, but to no avail. 143. Understandably, Mr. B’s actions caused harm. Ms. L testified that she suffers from exhaustion, anxiety, and panic attacks, among other problems. Since 2017, she has been on full and then partial leave from work, she consults with a family doctor, a psychiatrist, and a psychologist, and she takes several prescribed medications for these mental health problems. Ms. L also suffers from physical health problems for which she is taking medication. 144. The difficulty with Ms.

L’s claim in this regard is the complete lack of medical evidence. While I accept that expert medical evidence is not required to prove the third element of ‘visible and probable illness,’ [81] in my view it would have been important to know the link between the domestic violence and Ms. L’s (psychological and physical) injuries. The evidence does show a high level of stress associated with being a veterinarian and Ms. L suffered from exhaustion before the onset of the domestic violence. 145. Ms. L maintains that this abuse and control continued after the break-up, as Mr.

B threatened her new boyfriend, he did not pay child support, he refused to leave the house before 2023, he did not pay the expenses related to the house while he lived in it, he refused to return his former partner’s cat or did not properly care for it, he refused to return the family dog and he agreed to coach their daughter’s hockey team. In this respect, I find that only the threats against Ms. L’s new boyfriend while she was in his presence can satisfy the three stated elements to establish the tort of intentional infliction of mental suffering . 146. When the parties separated, Ms. L agreed to allow Mr.

B to remain in the house and the financial expenses arrangement continued. When Mr. B refused Ms. L’s request to move into the house in August 2020, Ms. L took no legal action to assert her rights. A motion was only filed on December 14, 2022, notwithstanding the fact that Ms. L had been represented by an experienced family law lawyer since shortly after the separation. In addition, Ms. L had a place to stay with the children (her cottage). Therefore, I cannot find that there was financial abuse or control by Mr. B, as argued by counsel for Ms. L. 147. I also cannot find that Mr. B was financially abusing Ms.

L and controlling her by not paying any child support. The same argument could be made by Mr. B because Ms. L has not paid any support for his benefit, despite a claim to that effect in his Notice of Application. Ms. L had the means and resources to assert her rights, and I cannot characterize this act as constituting flagrant or outrageous conduct calculated to produce harm. 148. With respect to the pets, no evidence was adduced to show that Ms. L had indeed expressed her desire to retrieve the dog and the cat.

Besides, no steps were taken in this regard (e.g., letter, e-mail or text message between the parties or counsel or motion filed before the court). Although Ms. L felt that Mr. B was keeping the animals in order to hurt or control her, I cannot find that Mr. B acted with intent to produce harm. Mr. B’s testimony that the cat was sick and that he therefore took it to the vet is credible. I have not been able to find any intention on the part of Mr. B to harm the cat in order to cause harm to his former partner. 149. Finally, I cannot ascribe to the former partner any intention to cause harm to Ms.

L by agreeing to act as hockey coach for their daughter’s team. Moreover, I cannot characterize this act as flagrant or outrageous, despite the fact that Mr. B was prohibited from having direct contact with Ms. L under an undertaking to the Provincial Court. I believe the former spouse when he explains that he was approached by the team management, since no one else had come forward to fill the position, and his daughter and the other members of the team were at risk of not playing during that season.

The fact that he was prohibited from holding such a position because he had a criminal record did not dawn on him or to the team representative until Ms. L’s friend brought this matter to their attention. 150. The feelings and reactions, and therefore the impact on Ms. L of the abuse that she suffered at the hands of her former partner in the past must not be confused with the tortious acts of assault, battery, and intentional infliction of mental suffering. They are consequences of torts that occurred in the past, but they are not tortious acts per se . Thus, Mr.

B’s agreement to coach his daughter’s hockey team did not constitute flagrant or outrageous conduct calculated to produce harm. Notwithstanding Ms. L’s resulting feelings of fear and panic attacks in this regard, she does not meet the three necessary elements. 151. Counsel for Ms. L argues that the acts of violence perpetrated by Mr. B are continuous, that is, they continued after the break-up and are ongoing. Accordingly, the two-year limitation period set out in subsection 5(1) of the Limitation of Actions Act [82] would not apply under

section 6 [83] and would therefore not have expired. I must disagree with this

interpretation. In Gaudet v. Canada (Attorney General) , [84] I. Robichaud, J. held that even if the harm resulting from an action taken by the defendant continued to increase as the

years passed, this did not make the act one that continued without

[…]