DONALD SAVOIE Petitioner v. FRANCINE BÉRUBÉ, 2023 NBKB 51

2023 NBKB 051 Court File Number: FDB-17-2019 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF BATHURST BETWEEN: DONALD SAVOIE Petitioner -and- FRANCINE BÉRUBÉ Respondent DECISION [TRANSLATION] BEFORE: The Honourable Justice Michel A. Robichaud AT: Bathurst, New Brunswick DATE OF HEARING: February 2, 2023 DATE OF DECISION: March 27, 2023

APPEARANCES: Martine Lanteigne, for the Petitioner Carole Sirois-Paquette, for the Respondent M.A. Robichaud, J. Introduction 1 . The parties got married in 1991 and separated in 2013. 2 . In 2017, the Petitioner filed a Petition under the Divorce Act for a divorce without corollary relief. 3 . The Respondent filed a Counter-Petition wherein she asks, inter alia , that the Petitioner [TRANSLATION] “.. .be required to deliver up half the value of the real and personal property...of Ferme Cadoff Inc. ... ,” a business formerly owned by the Petitioner and Respondent during their marriage. 4 . The Petitioner seeks a

summary judgment under Rule 22. He pleads res judicata on the basis that in 2016 the parties settled all issues outlined in a Notice of Application under the Family Services Act that was filed in 2014, including the division of Ferme Cadoff Inc. The settlement was confirmed in a Consent Order dated June 16, 2016. 5 . The Respondent submits, inter alia , that she was not mentally competent when she signed the Consent Order of June 16, 2016. Facts 6 . The Petitioner, formerly of Madran and Petit Rocher, is 54 years old and now lives in Dieppe. He works as an investigator for Service Canada. 7 .

The Respondent, formerly of Petit Rocher, is 53 years old and currently lives in Pointe-Verte. She used to work as a “Team Leader” for Service Canada but she is on Medical Retirement since 2019. 8 . Among their assets, the parties owned Ferme Cadoff Inc., a commercial agricultural business that is the main subject of this motion. 9 . Not long after the parties separated, the “barn” owned by Ferme Cadoff Inc. was destroyed by fire in November 2013. It was almost a total loss. The assets of Ferme Cadoff Inc. were insured. 10 .

The litigation between the parties began on July 16, 2014, when the Petitioner filed an Application under the Family Services Act for joint custody of the children, structured access, the equal division of debts and marital property, and the unequal division of the business assets of Ferme Cadoff Inc., among other things. That Application was filed by the Petitioner’s solicitor at that time, Nathalie Chiasson. 11 . The Respondent filed a Responding Document on September 4, 2014, by her solicitor at that time, Jean-Marc Benoit.

12 . In November 2014, the parties reached an agreement that was confirmed in an Interim Consent Order dated November 20, 2014. The significant provision of that Order which applies in this matter is that [TRANSLATION] “...the sum of $150,000.00 in the account of Ferme Cadoff Inc. at the Caisse Populaire des Fondateurs Ltée. be frozen until otherwise ordered...” 13 .

Thereafter, the Application was set down for trial, but the Respondent, by a letter from her solicitor dated September 17, 2015, requested that the Clerk remove the Trial Record from the docket to allow the parties to participate in an Examination for Discovery under Rule 32. 14 . An Examination for Discovery was held in May 2016. It was attended by both parties with their respective solicitors at that time, namely Guy Dumas for the Petitioner and Martin J. Siscoe for the Respondent. 15 .

A few weeks after the May 2016 Examination for Discovery, the parties agreed to a final settlement of the Application which was confirmed in a Consent Order dated June 16, 2016. This Order was drawn up and submitted to the Petitioner by Martin J. Siscoe, solicitor for the Respondent. 16 . The wording of the Consent Order of June 16, 2016, suggests that it settles all the issues in the Application, including the division of Ferme Cadoff Inc. These are the paragraphs in question: [TRANSLATION]

e) the sum of $150,000.00 of the Ferme Cadoff Inc. in its account at the Caisse Populaire des Fondateurs Ltée that was frozen under the Consent Order signed by the parties on November 18, 2014 [ibid], including interest for a total of $154,966.25 is released from any charge. Of this amount, $64,966.25 will be transferred to the Respondent’s solicitor Martin J. Siscoe in trust and the Applicant will retain $90,000.00. The amount of $64,966.25 is the Respondent’s share in the division of marital property .

f) the Applicant, Donald Savoie, will become the sole owner of the business Ferme Cadoff Inc . The Respondent, Francine Bérubé, agrees to sign all necessary documents to transfer her shares to the Applicant, Donald Savoie. The parties acknowledge that all costs related to the refinancing of the business or the transfer of the shares to the Applicant will be the sole responsibility of the Applicant, Donald Savoie. [my emphasis] 17 . The parties participated in several legal proceedings between 2014 and 2017, namely two (2) applications, five (5) motions and one

(1) Examination for Discovery under Rule 32. 18 . On August 21, 2017, the Petitioner filed a Petition for Divorce. 19 . On September 29, 2017, the Respondent filed an Answer and Counter-Petition. 20 . On January 15, 2018, the Petitioner filed an Answer to Counter-Petition. 21 . On December 22, 2022, the Petitioner filed a motion for

summary judgment.

Summary Judgment - Rule 22

22 . I am of the view that the Rules of Court have been broadly interpreted to mean that Rule 22 applies to a counterclaim, a crossclaim, or a third-party claim. 23 . The Petitioner in this matter can therefore proceed with his motion under Rule 22.01(1). 24 . The moving party on a Rule 22 motion has the onus of proving, on a balance of probabilities, that there is no genuine issue requiring a trial. [1] 25 .

Summary judgment is no longer an exceptional remedy, the hearing and determination of any related motion now constitutes “a significant alternative model of adjudication.” [2] 26 . There is no genuine issue requiring a trial when the judge can reach a fair and just determination on the merits on a motion for

summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious, and less expensive means to achieve a just result. [3] 27 . The Rule provides a two-step process. In step one, the judge must determine if the evidence put before him reveals a genuine issue requiring a trial, without resorting to the fact-finding powers contained in Rules 22. 04(2) and (3).

If the assessment of the evidence at step one leads to the conclusion that there may be a genuine issue requiring a trial, the judge then needs to determine if that trial can be avoided by resorting to the fact-finding powers. [4] 28 . If the Court is satisfied that there is no genuine issue requiring a trial, it must grant

summary judgment. [5] 29 . The parties must put their “best foot forward” and the Respondent must “lead trump or risk losing.” [6] The Respondent cannot simply assert that the evidence will be better, or more abundant, at trial . [7] 30 . In determining whether

summary judgment should be granted the analysis must logically begin with an examination of the pleadings, the nature of the relief claimed, the facts alleged to support the claims of relief, any admissions and then an examination of the evidence presented on the motion for

summary judgment . [8] Pleadings Petitioner’s Petition for Divorce 31 . The Petition for Divorce seeks a divorce on the grounds that there has been a breakdown of the marriage, the spouses have lived separate and apart for more than a year, are currently living separate and apart, and there is no chance of reconciliation. Respondent’s Answer and Counter-Petition 32 . The Respondent’s Answer admits all the facts in the Petition except for the Petitioner’s declaration at para. 12 and the declaration of the solicitor for the Petitioner at para. 13, which declarations are prescribed by the Divorce Act . 33 . The Respondent’s Counter-Petition seeks: [TRANSLATION]

a) A divorce

b) Under the Divorce Act : n/a

c) Under the Marital Property Act : (

i) Pursuant to ss. 2, 3, and 32 that the Petitioner be required to deliver up half the value of the real and personal property, including the equipment and tractor and including the money he squandered according to the June 2014 financial statement of Ferme Cadoff Inc. since only the $150,000.00 frozen by the Court on November 29, 2014 [ibid], was divided by the parties.

The Petitioner squandered money and personal property belonging to Ferme Cadoff Inc. without the Respondent’s knowledge and failed to make full disclosure of the assets of Ferme Cadoff Inc. to the Respondent. (ii) That the Petitioner be required to make full and complete disclosure of the assets of Ferme Cadoff Inc., including the value of real and personal property, including the equipment and tractor, and including the money he has squandered according to the June 2014 financial statement.

d) Under the Family Services Act: In accordance with s. 116 (

i) That the Petitioner be required to maintain the Respondent [ibid.] as a beneficiary of his health and dental insurance for as long as they are eligible for coverage and the employer provides such coverage, until the Respondent retires, specifically until her retirement. (ii) That the Petitioner reinstate the coordination of Sun Life insurance benefits for the children of the marriage that was cancelled by the Petitioner in September 2016.

In accordance with ss. 115 and 116 (iii) That the special expenses and support the Respondent is required to pay for the child Frederic Savoie be varied downward, as the Respondent’s income has decreased, retroactive to April 1, 2017, as she has been on sick leave since February 23, 2017, and the Petitioner is aware of this because they work at the same location. (iv) That the support and special expenses paid for the child Frederic Savoie be paid directly to him , as he is a university student.

e) In accordance with the Rules of Court (

i) Costs , pursuant to Rule 59 of the New Brunswick Rules of Court

f) That the Petitioner be required to stop harassing, interfering with and threatening the Respondent .

g) Such other relief as the Court finds just and equitable.

[my emphasis] Petitioner’s Answer to Counter-Petition 34 . The Petitioner’s Answer to the Counter-Petition pleads res judicata and asks, inter alia , that the Respondent be required to pay support and a share of the special expenses for the child Frederic. The Petitioner states, inter alia , that he has disclosed everything to the Respondent, that he has never received a disclosure request from the Respondent, the child is a beneficiary on his health and dental insurance, and consequently, he asks that the Respondent’s Counter-Petition be dismissed. Respondent’s grounds 35 . The Respondent’s primary grounds in support of her Counter-Petition are summarized as follows:

a) Mental health : The Respondent states at para. 5 of her Affidavit that in June 2016 she was suffering from situational anxiety, panic attacks and insomnia, that she was tense, that she was suffering from asthenia exhaustion and that she was therefore not mentally competent at the time the Consent Order was signed on June 16, 2016;

b) Harassment: The Respondent states at para. 11 of her Affidavit that she was subjected to harassment and duress by the Petitioner prior to the signing of the Order of June 16, 2016; and

c) Non-disclosure : The Respondent states at para. 12 of her Affidavit that she did not receive full disclosure of the affairs of Ferme Cadoff Inc. prior to the signing of the Order of June 16, 2016. 36 . Considering the wording of her pleadings and her Affidavit, I do not quite understand what the Respondent is seeking: is this a claim to set aside or vary only paragraphs 2(

e) and 2(

f) of the Order of June 16, 2016, or is it a claim to set aside the Order in its entirety, as she argues that she was not mentally competent to sign the Order on June 16, 2016? 37 . I can hardly understand how I could be convinced, if there was evidence, that she was only unfit to sign paragraphs 2(

e) and 2(f), but not all the other provisions of said Order of June 16, 2016. Petitioner withdraws his claims if the motion is granted 38 . It is noted in the Petitioner’s brief, and in his solicitor’s closing remarks at the hearing on the motion, that the Petitioner would withdraw all the other claims in his Answer to Counter-Petition should his motion for

summary judgment be granted. Evidence Petitioner’s Affidavit 39 . The Petitioner filed an Affidavit in which he refers to the June 16, 2016, Consent Order in this matter, and argues that the Order conclusively settles, inter alia , the division of the shares of Ferme Cadoff Inc.

Respondent’s Affidavit 40 . The Respondent filed a Record on Motion containing one thousand seven hundred and seven (1,707) pages, including her Affidavit, which is found at page 68. 41 . The Respondent’s Affidavit contains eight (8) pages of text in addition to one thousand six hundred and thirty-one (1,631) pages of exhibits, for a total of one thousand six hundred and thirty-nine (1,639) pages of evidence. 42 . At the hearing on the motion, the Petitioner objected to the content of the Respondent’s Affidavit on the grounds that it contained a great deal of “opinion evidence” and a great deal of “hearsay.” 43 .

With respect to the “opinion evidence”, the Petitioner objected generally to all opinion offered by the Respondent in the text of her Affidavit and requested the specific exclusion of exhibits “B,” “C,” “D,” “E”, “F” and “F-2” on that ground. 44 . With respect to the “hearsay” evidence, the Petitioner said that he would rely on the Court’s discretion to give it the weight it considered appropriate, as the time allotted for the hearing of the motion did not allow him to review each of the 1,639 pages in an acceptable time frame and he did not want an adjournment to do so. 45 .

The Petitioner also requested the exclusion of Exhibit “G,” which includes, inter alia , notes from the Respondent and documents from the RCMP and BNPP, on the basis that they were not relevant to the issues before the Court. 46 . In reply, the Respondent also said she would rely on the Court’s discretion as to the weight to be given to the content of her Affidavit. 47 .

Considering the above comments of the parties with respect to the many exhibits to the Respondent’s Affidavit, I sustain the Petitioner’s objection and exclude exhibits “B,” “C,” “D,” “E,” “F,” “F-2” and “G” from evidence, as they contain “opinion evidence” contrary to Rule 22.02(3), as well as other material that is irrelevant in this matter. 48 . With respect to the other exhibits, I will give them the weight that I consider appropriate while being mindful of the rules of evidence regarding “hearsay” and the Respondent’s personal “notes.” Respondent’s mental health 49 .

The Respondent claims that she was incompetent, due to her mental health, to sign the Order of June 16, 2016. 50 . To support her declaration of incompetence by reason of her mental health, the Respondent appended to her Affidavit exhibits “B,” “C,” “D,” “E,” “F” and “F-2”. These exhibits were excluded from evidence as result of the Petitioner’s objection which I sustained for the reasons outlined above. 51 . Other than the exhibits referred to above, the Respondent’s evidence on this issue is found in the text of her Affidavit at paragraphs 2 and 5, where she states the following facts:

a) She has been on Medical Retirement since 2019;

b) She has been on sick leave since 2017;

c) Her mental health was diagnosed in 2005 as “ overwork, anxiety, panic and anesthesia”;

d) She was off work between 2005 and 2006;

e) She consulted a psychologist in 2012;

f) She was off work for a second time in 2013;

g) Her family doctor renewed and increased her antidepressants in 2016; and

h) In June 2016, she suffered from situational anxiety, panic attacks and insomnia, she was tense, and she suffered from asthenia exhaustion. 52 . The following facts are disclosed in Exhibit “H” of the Respondent’s Affidavit:

a) She worked as a “Team Leader” for Service Canada in 2014 (see p. 53) and for “Public Works and Government Services Canada” until February 2017 (see p. 634);

b) She worked in 2016, having earned an income of $60,889.84 (see para. 11 on p. 634); and

c) She filed a long-term disability insurance claim with Sun Life (see para. 16 on p. 635), which was denied in a letter from Sun Life dated August 31, 2017 (see p. 654). 53 . Pages 1071 and 1092 reveal that the Respondent apparently signed a document entitled “ État d’attribution de fonds en fiducie ” [Statement of Trust Funds Allocation] and a “Transfer” in February and July 2016 for the to sale of two properties, being before and after the Consent Order of June 16, 2016, without any mention of her mental incapacity. Disclosure 54 .

The Respondent claims that the Petitioner did not fully disclose his information regarding Ferme Cadoff Inc. to her prior to the signing of the Order of June 16, 2016. 55 .

In reply, the Petitioner argues that an Examination for Discovery was held in the presence of the parties’ solicitors before the Consent Order of June 16, 2016, was signed; that he made full disclosure of the requested information prior to the signing of said Order; that the parties were represented by solicitors at the time the Order was signed; that the solicitor for the Respondent drew up the Order; and that he never received a request for disclosure from the Respondent until now. 56 .

Although the information the Respondent seeks was never specified or conveyed to the Petitioner prior to the hearing of this motion, it appears to me that the information in question relates to the value of the shares of Ferme Cadoff Inc., or so I gather from the comments of the Respondent’s solicitor during the hearing. 57 . It appears to me that the Respondent wanted to know how much money the corporation received from its insurance company following the “barn” fire in 2013 and argues that it would have increased the value of the corporation’s shares. 58 .

The exhibits to the Respondent’s Affidavit contain a great deal of information regarding the valuation of said shares, namely financial statements, accountants’ reports, settlement proposals, correspondence between the Respondent and her solicitor, and the valuation report for said shares before and after the 2013 fire. 59 . In particular, the following facts are revealed in the exhibits:

a) The Respondent had in her possession a great deal of information concerning Ferme Cadoff Inc.;

b) The Respondent had a copy of the 2014 balance sheet for Ferme Cadoff Inc.;

c) The Respondent had in her possession a copy of the insurance policy of Ferme Cadoff Inc. (see p. 1259);

d) The Respondent knew the amount that Ferme Cadoff Inc. had claimed from its insurers (see p. 1612);

e) The Respondent participated in several mediation sessions with the Petitioner and the corporation’s accountant totalling approximately 30 hours over a period of three (3) weeks (see

Schedule “A” to the Affidavit);

f) The shares of the corporation were valued after the 2013 fire and before the Order of June 16, 2016, was signed; and

g) An examination for discovery was held prior to the signing of the Order in the presence of two solicitors representing each of the parties respectively. Harassment 60 . The Respondent’s evidence of harassment is found primarily in Tabs “G” and “G-1” of her Affidavit, at pages 405 to 612. Respondent’s other grounds 61 . The Respondent claims that the Petitioner “squandered” money from the Ferme Cadoff Inc. accounts. I cannot find any probative evidence of this allegation. Analysis 62 .

Having read the Consent Order of June 16, 2016, I find that the Order is a final determination of the original Application filed in this matter on July 16, 2014, and specifically of the division of the assets of Ferme Cadoff Inc. 63 . The Petitioner has therefore met his burden of proof in this regard. 64 . That said, the Respondent’s Affidavit challenges the validity of the Order in her Counter-Petition and in particular the division of Ferme Cadoff Inc. based on her “ mental incapacity. ” Therefore, the burden of proving such incapacity is on her. 65 .

To establish that the Respondent was not mentally competent to sign the Consent Order of June 16, 2016, she would have had to introduce at least one Affidavit from a physician expressing that opinion, provided that the physician qualified as an expert witness and was therefore allowed to express that opinion at trial. [9] 66 .

The evidence shows that the Respondent worked in 2016, that her title was “Team Leader,” that she earned $60,889.94 in 2016, that her claim for long-term disability benefits was denied in 2017, that she was involved in the sale of two properties to third parties in February and July 2016, that she was represented by her solicitor during the Examination for Discovery, that she was represented by a solicitor in connection with the sale of two properties in 2016, and that she was represented by her solicitor when she signed the Order of June 16, 2016. 67 .

Having no evidence from any physician(s), psychologist(s), psychiatrist(

s) or other expert(

s) relating to her mental health, I find

that the evidence filed by the Respondent failed to meet her onus with regard to this issue. 68. With respect to the “disclosure,” the Respondent had every opportunity to obtain the information she wanted from the Petitionerby invoking the provisions of Rules 31 to 36 of the Rules of Court prior to the signing of the June 16, 2016, Consent Order in this matter. 69.

Considering the information the Respondent had in her possession prior to the signing of the Order of June 16, 2016,particularly the insurance policy and insurance claim, and considering the information the Respondent could have obtained under theRules of Court before the Order was signed, the Respondent’s evidence failed to meet her onus regarding this issue. 70.

With respect to the “harassment” alleged by the Respondent, although the evidence shows that the parties exchangedcorrespondence and messages that were sometimes inappropriate, I find that the Respondent was not under any duress or undue influenceby the Petitioner to sign the June 16, 2016, Order in this matter. I find that she has failed to meet her onus regarding this issue. 71. Regarding the June 16, 2016, Order in this matter the Court of Appeal, in MacDonald v.

MacDonald, 2011 NBCA 25, a matterwherein the pleadings and arguments closely resemble those in this matter, states the following on this subject at paragraph 8: From the motion judge’s reasons for decision, it is clear she understood the law with respect to duress and undue influence regardingseparation agreements: she relied on Lietz v. Lietz (1990), (NB KB), 111 N.B.R. (2d) 128 (Q.B.), [1990] N.B.J.No. 1003 (QL), in which Riordon J. dealt with a similar situation.

She considered the following facts: the appellant had a lawyer atvarious times during the periods following the separation, he had the intelligence to appreciate the nature and significance of theagreement reflected in the consent order, and he had a job with the federal government (he worked for the past 15 years for PublicWorks and Government Services Canada, Pension Division). The motion judge found there was no evidence of any duress or theexercise of undue influence on the appellant by the respondent.

The motion judge was of the view that the financial stress the appellantfound himself under following separation was no different than most others in the same situation. She concluded he was not under duressor undue influence when he signed the consent order. The motion judge made findings of fact which were open to her to make on theevidence, and she came to a conclusion that is untainted by any reversible error (see Hartshorne v. Hartshorne, 2004 SCC 22, [2004] 1S.C.R. 550 in which Bastarache J. cautions courts to be reluctant to second-guess the arrangement on which parties are reasonablyexpected to rely).

Competent negotiation skills on the part of the respondent’s lawyer cannot be confused with the legal notions of undueinfluence and inequality of bargaining power. I would not disturb the trial judge’s findings and, therefore, the division of the pensionand other marital property contained in the consent order must stand. [my emphasis] 72. In this matter, the Respondent was represented by solicitors from the beginning of the litigation in 2014 until the signing of theConsent Order of June 16, 2016, namely by Jean-Marc Benoit of Martin J. Siscoe Law Office C.P. Inc. and by Martin J. Siscoe.

In 2017,she was represented by solicitor Céline Haché and she has been represented by solicitor Carole Sirois-Paquette since 2018. 73. It was Martin J. Siscoe who represented the Respondent at the Examination for Discovery, it was he who drew up the ConsentOrder of June 16, 2016, and it was he who witnessed the Respondent’s signature on the June 16, 2016, Order. 74. The Petitioner signed the Consent Order on June 8, 2016, and the Respondent signed it two days later, on June 10, 2016. Shetherefore had 48 hours after the Petitioner signed it to consider it. 75. The wording of said Order, at paragraphs 2(

e) and 2(f), is clear and specific: [TRANSLATION] “...$64,966.25 is the Respondent’s share under the division of marital property."

“ the Applicant, Donald Savoie, will become the sole owner of the business Ferme Cadoff. ” 76 . Given the type of employment the Respondent had between 2014 and 2016, I find that she possessed the intelligence to understand the content of the June 16, 2016, Order in this matter. 77 . Considering the evidence in its entirety, I find that the Respondent has failed to meet her onus to satisfy me that the June 16, 2016, Order in this matter, should be set aside, varied, or altered on the grounds raised in her pleadings. 78 . The divorce is granted given that it is uncontested. 79 .

Since the child, Frederic, is no longer a child of the marriage, the relief sought by the Respondent with respect to him is no longer relevant. 80 . The divorce having been granted, the relief sought by the Respondent in relation to the Sun Life health insurance and benefits is no longer relevant, as these benefits will now be determined by the administrators of the Petitioner’s employment benefits. 81 .

Notwithstanding the Respondent’s allegations of harassment by the Petitioner, I do not consider that there is sufficient probative evidence to persuade me to order “ That the Petitioner be required to stop harassing, interfering with and threatening the Respondent .” 82 . Accordingly, I find that the evidence in this matter reveals no genuine issue requiring a trial and the Petitioner’s motion is granted. Having reached this conclusion, I have no residual discretion and must grant

summary judgment. [10] Dispositions 83 . The Petitioner’s motion for

summary judgment is granted. 84 . The Respondent’s claim to set aside, vary, and/or alter the June 16, 2016, Order in this matter is denied, the Respondent’s Counter-Petition pleadings are struck out, and all relief sought by the Respondent is denied. 85 . The June 16, 2016, Order in this matter remains enforceable, without alteration. 86 . The divorce is granted. 87 . The residual relief claimed by the Petitioner in his counterclaim is withdrawn. Costs 88 . The Petitioner is awarded costs in the amount of $2,500 plus disbursements and HST.

_______________________________ Michel A. Robichaud, J.C.K.B.