C.B.D. Applicant v. E.C.D., 2023 NBKB 31

2023 NBKB 031 FDSJ-418-2021 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF SAINT JOHN BETWEEN: C.B.D. Applicant -and- E.C.D. Respondent DECISION BEFORE: Madam Justice Danie Roy AT: Saint John, New Brunswick DATE OF HEARING: September 20, 2022 DATE OF DECISION: March 6, 2023 APPEARANCES: Kimberly A. McCurdy, for the Applicant Rodney Gillis, K.C., for the Respondent Roy, J. OVERVIEW 1 . The parties were married on October 27, 1979, and separated in May 2020, after 40 years. The children from the relationship are adults and living independently. 2 .

The Applicant, C.B.D., seeks reliefs pursuant to the Family Law Act , S.N.B. 2020, c.23 and the Marital Property Act , R.S.N.B. 2012, c.107 and seeks spousal support, an order for exclusive possession of the marital home, a division of assets and debts and an order of non-disposition of family and business assets. 3 . The Respondent, E.C.D., filed an Answer seeking similar relief, including spousal support and exclusive possession of the marital home. 4 . The hearing of the trial of this matter is scheduled from September 18 through September 20, 2023.

5 . The Respondent now seeks a

summary judgment with respect to a division of marital property. He says the Applicant agrees as to the value of the property to be divided and as to the manner that it is to be disposed. He requests an equalization payment in the sum of $205,750.00 payable by the Applicant in his favour. He also requests the remaining items of marital property be dealt with by consent agreement or further order of the court, meaning that he seeks a partial

summary judgment in regard to marital property. 6 . What the Respondent requests is

summary judgment as follows: i. The marital home (excluding the 1-acre lot having the C[…] building) and the Buick automobile, 2007 Yamaha and Remag trailer be transferred to the Applicant; ii. The Cat excavator, 2008 Arctic Cat, Kawasaki Brute Force 2005, Zero Radius lawn Tractor and tools in garage to be transferred to Respondent; iii. The items under the column Go to Auction be put up for auction with the reserve as set out and, if not met, to be sold privately by either party for the reserve price and, if not sold within six months, to again be placed in an auction to be sold with no reserve.

The proceeds less expenses shall be divided equally. iv. The one-acre lot with the C[…] building be listed for sale for $194,000 and, upon a sale, that $174,000 be paid to C[…] and the balance be divided equally. v. The Applicant pay the Respondent the sum of $205,750.00 at the time of the transfer of the marital home. 7 . The Applicant does not agree that

summary judgment is appropriate. She disputes there is an agreement as between the parties and says there are triable issues. 8 . The

summary judgment motion was heard on September 20, 2022. At the end of the hearing, the parties advised they may have an agreement on part of the relief sought, in which case, a consent order would follow. 9 . On October 21, 2022, counsel for the Respondent advised by letter addressed to the clerk that the parties did not reach consent and requested that Court render a decision based upon the evidentiary record and argument. In response, counsel for the Applicant requested by letter dated November 22, 2022, that the motion be dismissed. 10 .

I now provide my decision and I arrive at the conclusion that there are genuine issues that require a trial. I also conclude that this is not an appropriate situation for the Court to resort to the fact-finding powers of Rule 22.02. It is not an appropriate situation to conduct a "mini-trial.” Applying the principles of timeliness, affordability, and proportionality, I do not believe that a trial can be avoided. ISSUES 11 . Is the Court satisfied there is no genuine issue requiring a trial with respect to division of martial property? 12 .

If there may be a genuine issue regarding a trial, can the trial be avoided by resorting to the fact-finding powers of Rules 22.04(2) and (3). LAW AND ANALYSIS 13 . The Respondent requests

summary judgment be granted in regard to division of certain marital property. He does not request

summary judgment with respect to other reliefs sought, including spousal support. He also requests that the remaining items of martial property be dealt with at a later date by consent or further order of the court. 14 . The Respondent seeks a

summary judgment on the following grounds: i. The Applicant agreed under oath at an Examination for Discovery with the valuation and division of certain marital property which he accepts. ii. The division of most of the items of marital property would reduce the items in dispute to four remaining items.

iii. It addresses the issue of exclusive possession of the marital home and provide funds for the Respondent to pay for his home. 15 . The Rules of Court provide that

summary judgment can be granted if the court is satisfied there is no genuine issue requiring a trial with respect to a claim or defence, or if the parties agree to have all or part of the claim determined by a

summary judgment and the court is satisfied it is appropriate to grant

summary judgment. Rule 22.04 reads as follows: General

(1) The court shall grant

summary judgment if (

a) the court is satisfied there is no genuine issue requiring a trial with respect to a claim or defence, or (

b) the parties agree to have all or part of the claim determined by a

summary judgment and the court is satisfied it is appropriate to grant

summary judgment. Powers

(2) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and may exercise any of the following powers for the purpose, unless it is in the interests of justice for those powers to be exercised only at a trial: (

a) weighing the evidence; (

b) evaluating the credibility of a deponent; and (

c) drawing a reasonable inference from the evidence. Oral Evidence (mini-trial)

(3) For the purposes of exercising the powers set out in this subrule, a judge may order that oral evidence be presented by one or more parties, with or without time limits on its presentation. If Only Genuine Issue is Amount

(4) If the court is satisfied the only genuine issue is the amount to which the moving party is entitled, the court may direct a trial of that issue. If Only Genuine Issue is Question of Law

(5) If the court is satisfied the only genuine issue is a question of law, the court may determine that question and grant judgment accordingly. If Only Claim is for an Accounting

(6) If the only claim is for an accounting and the defendant fails to satisfy the court there is some preliminary issue to be tried, the court may grant judgment on the claim and give directions for an accounting. 16 . The Applicant does not agree to have part of the claim determined by

summary judgment. Therefore, the court needs to be satisfied there is no genuine issue requiring a trial with respect to a division of marital property. 17 .

Summary judgment allows a motion judge to summarily dispose of matters where the evidence discloses no genuine issue requiring a trial in this matter. It is an "alternative model of adjudication.” It encourages resolution in a more expeditious, accessible, and proportionate fashion.

Summary judgment is a remedy that is available to family law proceedings. (New Brunswick (Minister of Social Development) v.A.G., 2019 NBQB 39 and Nouveau-Brunswick (Famille et des Enfants) c. J-S.M. 2019 NBBR 81 . 19. In Russel et al. v. Northumberland Co-operative Limited, 2019 NBCA 70, our Court of Appeal explains a two-step process todetermine if there is a genuine issue that requires a trial. 20. In step one, the judge must determine if the evidence reveals a genuine issue requiring a trial. If, on the filed evidence alone, thejudge can fairly and justly adjudicate the dispute, there will be no genuine issue requiring a trial and the judge must grant

summaryjudgment. There is no discretion under the Rule to refuse to do so. 21. A judge only proceeds to step two if the assessment of the filed evidence leads to the conclusion that there may be a genuine issueregarding a trial. Then, the judge needs to determine if the trial can be avoided by resorting to the fact-finding powers of Rules 22.04(2)and (3).

The guiding principle being that it will always be in the interest of justice for the judge to make use of these fact-finding powers,if applying the principles of timeliness, affordability and proportionality, the judge believes a trial can be avoided and a fair and justresult can be obtained. 22. The burden of proof to establish there is no genuine issue requiring a trial is balance of probabilities. Step One 23. In order to determine whether there is a genuine issue requiring trial, I need to make the necessary findings of fact, if possible, applythe law to those findings, and satisfy myself that the

summary process is the most proportionate and least expensive to achieve a justresult. I need to have confidence in my conclusions. 24. The standard of fairness is not whether the procedure is as exhaustive as a trial, but whether it gives me the confidence that I canfind the necessary facts and apply the relevant legal principles to resolve the dispute. 25. A process that does not give me confidence in my conclusions cannot be the proportionate way to resolve a dispute (Hyrniak v.Mauldin 2014 SCC 7 , [2014] 1 S.C.R. 87, at paragraph 50). 26.

In this matter, the parties have already divided RRSPs and personal bank accounts and have not disclosed any significant debts. TheRespondent’s evidence is that they have both received approximately $700,000.00. 27. In support of his motion, the Respondent says the Applicant agreed at an examination for discovery with the valuation and divisionof certain martial property, which he accepts.

He submitted in evidence an excerpt of the discovery transcript, which he has used toprepare a list of the assets and values, resulting in an equalization payment of $205,750.00 payable by the Applicant (Exhibit E toAffidavit of E.C.D., sworn August 19, 2022, at page 136 of the Record on Motion). 28. The Applicant does not agree with the list prepared by the Respondent in advancing the motion for

summary judgment. Althoughshe concedes that there are items that the parties agree should be sold, she does not agree this list represents the discussions between theparties. 29. In the excerpt of discovery proceedings submitted, the Applicant does agree that some items she wishes to retain, others she doesnot want and also agrees to the value of some items. However, I find an excerpt of discovery proceedings of little help as it provides onlya snapshot of the matters at issue.

It does not provide a complete picture of the entire circumstances, which are relevant in decidingmarital property issues in this matter. 30. As noted by the Ontario Court of Appeal in Baywood Homes Partnership et al. v. Haditaghi, 2014 ONCA 450, at paragraph 44,the motion judge must take great care to ensure that decontextualized affidavit and transcript evidence does not become the means bywhich substantive unfairness enters, in a way that would not likely occur in a full trial.

31 . Even if the parties were to agree on the general principle of an equal division, it is insufficient to grant

summary judgment. As noted by Madam Justice Bélanger-Richard in C.M.S. v. R.L.S. [2019] N.B.J. No. 341 , while parties may agree on the general principle of an equal division, to then argue there is no genuine issue requiring trial is a simplistic view of the issues. An equal division entails the issues of what assets and debts must be included in the division and the values of these assets and debts for the purpose of a division. 32 . As per the Respondent’s calculation, the Applicant owes him the sum of $205,750.00.

However, the evidentiary record highlights a number of contentious issues included in that calculation that cannot be resolved on the evidentiary record. And as I will comment below, a partial

summary judgment on some of these assets is not appropriate in this matter. 33 . In the list prepared by the Respondent, he includes items that remain to be decided: a loan to the party’s son in the amount of $50,000, the collection of snow babies, as well as coins and jewellery in a safe. At the very least, as there is no agreement between the parties as to value and division of these items, these will need to be adjudicated. 34 . To highlight the contentious issues that cannot be determined based on the evidentiary record, I provide some examples below. CAT Excavator 35 .

The parties disagree as to the value of the CAT excavator. This is reflected in the table prepared by the Respondent where he suggests meeting halfway. 36 . The Respondent suggests a market value of $80,000.00. This comes from a letter dated December 3, 2021, that he sought and received from Toromont CAT. 37 . The Applicant has suggested the market value is $90,000.00, resulting from an appraisal of her own. Although, she also says that the current location of this asset is unknown to her. 38 . I am unable to determine which value is the appropriate one on the filed evidence.

I cannot determine what weight to accord to the different appraisals. 2018 Challenger Demon 39 . The parties have a 2018 Dodge Challenger. The Respondent’s evidence does not disclose the location and the condition of the vehicle, but he says it has a value of $75,000.00. 40 . The evidence of the Applicant is that she has obtained a valuation of $170,000 and a potential buyer, based upon the vehicle’s history reflected by its VIN, for the amount of $163,000.00.

It is also her evidence that the vehicle has been removed from Canada, was potentially damaged in a drag race, and the resulting damage would not be insured. 41 . It is the Respondent’s position that since both parties wish to retain this asset, the only option is to sell it at a public auction and the proceeds be divided equally. Still, there remains the issue of whether or not the Respondent has caused this asset to be damaged and suffering a loss in value. Even if I were to order that it be sold at a public auction, I am unable to determine if there is a loss of value since separation caused by the Respondent.

That is relevant to the division of marital assets . And I am unable to determine this based on the evidentiary record. C[…] Limited 42 . The parties are shareholders in C[…] Limited. At the time of the separation, the shares were 55% owned by the Respondent and 45% owned by the Applicant. The manner in which this asset should be divided or disposed of is regrettably highly disputed between the parties. 43 . The Respondent says it is a private corporation and that the corporation has assets which are not the property of either of the shareholders.

In his affidavit sworn April 22, 2021, he expressed that if there are questions concerning the corporation, it should be dealt with pursuant to the provisions of the Business Corporation Act , S.N.B. 1981, c. B-9.1 , and any court application for an oppression remedy if necessary.

44 . Then later, in his affidavit sworn August 19, 2022, he says that he had believed the Applicant and himself had divided the shares according to the corporation structure with him having 55% and the Applicant having 45% but that, in order to bring this matter to a conclusion, he agrees that it be divided with an equalization payment of $89,500 payable by himself to the Applicant. That is, the number of shares to be divided equally. 45 .

He suggests that the value to owner per common share would be the midpoint between $17,310 and $18,490 based on the advice of Louis-Pierre Francoeur, CPA, CA, CBV that he received on August 17, 2022. Based on this, the Respondent suggests the value of the Applicant’s shares on September 8, 2020, would be $805,500 and the shares held by him on that date would be $984,500. 46 . There is no evidence from Mr. Francoeur in the evidentiary record. But, even if there was, I would still need to be satisfied that the division of this asset is a simple division of shares, if I were to accept the Respondent's position. 47 .

The Respondent suggests he is prepared to buy out the Applicant’s shares. However, the Applicant does not want to sell her shares. 48 . The Applicant position is that the corporation is a marital asset. During the majority of their marriage, they owned and operated C[…], which holds Tim Hortons franchises. She says this corporation has been providing for their income and continues to do so. In 2020, the parties entered into a succession plan with their son and TDL (Tim Horton’s parent company).

Since then, the corporation has been the vehicle by which they are realizing upon this succession plan with regular monthly income, balloon payments and with a payout to occur approximately five years after the separation, in 2025. 49 . The Applicant says the holding company is a simple asset which consists of a building, a large bank account and an agreement from which the corporation generates income. 50 .

The evidence of the Applicant is that since separation, the Respondent: • removed at least $400,000.00 from the family assets held within C[…]; • disposed of company shares which are family assets; • held an improper meeting of shareholders to have her removed as a director with the resulting purpose of eliminating her ability to be able to review corporate transactions, being income; • converted corporate funds to personal use, including professional fees associated with this litigation. 51 . The evidentiary record does not allow me to be confident that I can make a determination as to the facts.

I am unable to make a determination as to the manner the corporation C[…] should be divided based on the evidentiary record. Spousal support 52 . In family law proceedings, the issues of the division of marital property are often interconnected with other reliefs sought, including spousal support. The Respondent seeks a

summary judgment on marital property alone. 53 . Spousal support is in issue and it is connected to the division of property, which is plead by both parties. They both say they have had no income since separation and they are living off their savings. And the exclusive possession of the marital home is an issue that required an intervention from this court on an interim basis. 54 . The Respondent says that he wants to resolve all issues of division of property and not provide exclusive possession of the marital home to the Applicant. The exclusive possession of the marital home is tied to the issue of spousal support. It cannot be determined in silos.

55. In Butera et al. v. Chown, Cairns LLP et al. 2017 ONCA 783, at paragraphs 34 and 38, the Ontario Court of Appeal found that itwas an error in principle to fail to consider whether partial

summary judgment was appropriate in the context of the litigation as a wholeand provides the following helpful comments: [34] When bringing a motion for partial

summary judgment, the moving party should consider these factors in assessing whether themotion is advisable in the context of the litigation as a whole. A motion for partial

summary judgment should be considered to be a rareprocedure that is reserved for an issue or issues that may be readily bifurcated from those in the main action and that may be dealt withexpeditiously and in a cost-effective manner. Such an approach is consistent with the objectives described by the Supreme Courtin Hryniak and with the direction that the Rules be liberally construed to secure the just, most expeditious and least expensivedetermination of every civil proceeding on its merits. … [38] As explained in Hryniak, the exercise of powers under the

summary judgment rule generally attracts deference. Here the motionjudge made an extricable error in principle in failing to consider whether partial

summary judgment was appropriate in the context ofthe litigation as a whole. As the appellants point out, the action is proceeding to trial on the Arthur Wishart Act claims, which includeallegations of a breach of the duty of fair dealing and deficient disclosure, the claims in negligence and for breach of contract. Theseclaims are intertwined with the misrepresentation claims. An award of partial

summary judgment in these circumstances may lead toinconsistent results to the extent the misrepresentation claims were not barred due to a limitation period. On the other hand, had thelitigation as a whole been considered, partial

summary judgment would not have been an appropriate award as it would not serve theobjectives of proportionality, efficiency and cost effectiveness. 56. The objectives of spousal support include the economic consequences arising from the marriage or its breakdown. The exercise ofjudicial discretion in ordering support requires an examination of the objectives set out in the Divorce Act. An equitable distribution ofthe consequences can be achieved in many ways: by spousal and child support, by the division of property and assets or by acombination of property and support entitlements. (Moge v.

Moge, (SCC), [1992] 3 S.C.R. 813) 57. In response to a question from the Court, counsel for the Respondent suggested that to determine spousal support, you need to lookat the income tax returns. The issue of spousal support is much more complex. The determination of the issues of entitlement, amountand duration of spousal support requires more than looking at income tax returns as it requires the Court to be concerned with the overallcircumstances. 58. I am unable to order an equalization payment at this juncture on the basis of the evidentiary record.

There is an indivisibility ofcertain issues that demand that all matters be heard together. (Baywood Homes; Joanis v. Bourque, 2014 ONSC 6183, at paragraph 35) 59. I am not satisfied that the filed evidence demonstrates, on a balance of probabilities, that there is no genuine issue requiring a trial. Step Two 60. I am unable to make a fair and just determination on the basis of the filed evidence. I therefore need to proceed to step two whichallows me to resort to the fact-finding powers of Rules 22.04(2) and (3). 61.

In the present matter, neither party asked to present oral evidence and there was no cross-examination on the affidavit evidence. 62. In any event, in my view, this is not an appropriate situation where it would be appropriate for the court to do a mini-trial andpermitting oral evidence. To embark in such an exercise would not result in an efficient and cost-effective process. 63. The Respondent submits, in making reference to the decision in Hryniak, that

summary judgment will be most appropriate wherethe action is document driven, with few witnesses and limited contentious factual issues, or when the record could be supplemented byoral evidence on discrete points. This is not the situation before the court. 64. The Applicant says that discovery proceedings of the Respondent has commenced, and that a number of requested undertakingswere refused. Her counsel submits that, upon production of such disclosure, the discovery of the Respondent can resume. 65. By order dated May 2, 2022, the Court required that the Respondent provide information based upon the Child Support Guidelines

concerning the operations of the business. The Applicant says that minimal information was provided. 66 . The Applicant’s evidence of lack of disclosure from the Respondent is concerning. I would need to be convinced that disclosure is complete prior to ordering a mini trial, and I am not. 67 . The manner in which the corporation C[…] is to be divided is in issue. The Respondent has obtained an opinion as to the value of shares, but that opinion is not before the Court. At the time of the hearing of this motion, it had not been provided to the Applicant. She may wish to retain an expert of her own. 68 .

There are highly contentious issues with respect to value of assets. There are appraisals that are in dispute. The 2018 Challenger Demon is a martial asset. Its valuation is in issue and whether or not the Respondent has depleted this asset is in issue. The Applicant is entitled to disclosure of its location and its condition. 69 . I therefore decline to resort to the fact-finding powers of Rule 22.04(2) and (3) as it would not allow, applying the principles of timeliness, affordability, and proportionality, reaching a fair and just result without a trial. 70 .

The Respondent has requested, should the Court find there are one or more genuine issues requiring a trial, directions defining those issues. The issues are inherently intertwined with appropriate disclosure. The Applicant does request disclosure. 71 . The Respondent is required to comply with the previous Order requiring disclosure. 72 . I also order the Respondent to disclose the location of the 2018 Challenger Demon and documentation relating to any damage and repair to the vehicle since the date of separation. And the location of all other marital assets in his possession. 73 .

The Applicant submits the Respondent is required to disclose documents he intends to rely upon at trial, including any valuations or documents relating to C[…]. I make no order in this regard . There are rules with respect to trial procedure, evidence at trial and expert witness and both parties are required to abide by the New Brunswick Rules of Court . 74 . I order the Respondent to pay costs in the amount of $1500.00 pursuant to Rule 59 of the Rules . In making this order, I have considered the Respondent’s failure to address the lack of disclosure. DISPOSITION 75 . The Respondent’s request for

summary judgment pursuant to Rule 22.04 of the New Brunswick Rules of Court is dismissed. 76 . The Respondent is required to comply with Order dated May 2, 2022. 77 . The Respondent shall disclose the location of the 2018 Challenger Demon and documentation relating to any damage and repair to the vehicle since the date of separation, within the next 30 days. 78 . The Respondent shall disclose the location of all other marital assets in his possession, within the next 30 days. 79 . The Respondent shall pay costs to the Applicant in the amount of $1500.00 plus HST forthwith. DATED at Saint John, NB the 6 th day of March 2023.

______________________________ Danie Roy Judge of the Court of King’s Bench New Brunswick