Bouvier v Bouvier, 2020 SKCA 133

Court of Appeal for Saskatchewan Docket: CACV3112 Citation: Bouvier v Bouvier , 2020 SKCA 133 Date: 2020-11-26 Between: Claude Pierre Bouvier Appellant/Respondent (Respondent) And Jo-Ann Marie Bouvier Respondent/Applicant (Petitioner) Before: Whitmore, Tholl and Kalmakoff JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Tholl In concurrence: The Honourable Mr. Justice Whitmore The Honourable Mr. Justice Kalmakoff On appeal from: QB DIV 11 of 2012, Swift Current Appeal heard: November 6, 2020 Counsel: Danish Shah for the Appellant Jean Jordaan for the Respondent Tholl J.A. I.

Introduction [ 1 ] After an almost 29-year marriage, Jo-Ann Bouvier and Claude Bouvier separated. Ms. Bouvier had a petition issued, in which she sought divorce, equal division of the family home and unequal division of family property. While Mr. Bouvier initially retained counsel and filed a notice of intent to answer, he chose to not further participate in the matter in any meaningful way. Eventually, he was noted for default and Ms. Bouvier applied for judgment as an uncontested matter. She was granted judgment for divorce and the property was unequally divided. [ 2 ] Mr.

Bouvier filed a notice of appeal that appealed the entirety of the property division. He seeks to have the judgment overturned and the matter returned to the Court of Queen’s Bench for adjudication. Mr. Bouvier argues the judgment was granted on insufficient notice to him and should not have been granted without notice to his lawyer of record. Further, he asserts the Chambers judge erred by granting the judgment on insufficient evidence of value and by failing to consider whether it was fair and equitable to grant an unequal division of family property. Ms.

Bouvier counters all of these assertions and submits the Chambers judge did not err in granting the judgment. She has filed an application seeking to admit fresh evidence on the appeal, primarily to explain why Mr. Bouvier’s counsel of record was not served with notice of her application for judgment. [ 3 ] In my view, none of Mr. Bouvier’s grounds of appeal have any merit and the appeal must be dismissed. II. Background [ 4 ] The parties married in 1982 and separated in June 2011. The petition was issued on Ms. Bouvier’s behalf on February 15, 2012, with personal service on Mr. Bouvier on February 28, 2012. Ms.

Bouvier sought divorce, equal division of the family home and unequal division of family property. Mr. Bouvier retained counsel who filed a notice of intent to answer on July 18, 2012, but Mr. Bouvier never filed an answer. He failed to ever serve or file a property statement as required by The Queen’s Bench Rules . [ 5 ] A notice to disclose was served on Mr. Bouvier on June 25, 2012. He did not respond. Ms. Bouvier brought an application for an order requiring Mr. Bouvier to respond to the notice to disclose, serving Mr. Bouvier personally because his counsel had withdrawn on August 15, 2012.

The application was set to be heard on November 13, 2012, but Ryan-Froslie J., as she then was, had a conflict on the matter so it was adjourned to November 26, 2012. Mr. Bouvier did not attend Chambers on November 13th and Ms. Bouvier was ordered to serve him with notice of the new date. Mr. Bouvier was served with notice of the new date, but he still did not attend Chambers on November 26, 2012. In his absence, Keene J. granted an order requiring Mr. Bouvier to comply with the notice to disclose within ten days. One of the things that the order required Mr. Bouvier to disclose was his property statement. Mr.

Bouvier failed to comply and has never provided a property statement or any other financial information in response to the notice to disclose or otherwise. [ 6 ] Having had no success receiving any information directly from Mr. Bouvier, Ms. Bouvier applied for an order permitting the Rural Municipality of Pinto Creek, TD Canada Trust, Lafleche Credit Union and the Canada Revenue Agency to provide some information directly to her. Again, Mr. Bouvier failed to attend Chambers and the requested order was made in his absence on March 18, 2013. [ 7 ] Mr.

Bouvier filed a notice of change of solicitors on April 9, 2013, changing his solicitors to Scharfstein Gibbings Walen Fisher LLP. This did not result in a change of his level of participation in the matter. In June 2016, his new counsel informed Ms. Bouvier’s counsel that he had attempted to contact Mr. Bouvier for some time to obtain instructions, but had no success. The new

counsel gave Ms. Bouvier’s counsel written permission to deal directly with Mr. Bouvier. [ 8 ] On March 30, 2017, the petition was noted for default and Ms. Bouvier applied for judgment without notice to Mr. Bouvier as an uncontested proceeding. When she reviewed the material on March 31, 2017, Schwann J., as she then was, determined Mr. Bouvier should receive notice of the application and directed that the matter be heard in Chambers on notice. Mr. Bouvier was personally served with notice of the application on June 14, 2017, and the matter came before the Chambers judge on June 26, 2017. III.

Judgment under appeal [ 9 ] Mr. Bouvier failed to attend Chambers on June 26, 2017, in response to the application for judgment. The Chambers judge granted judgment with the following reasons: “The Petitioner originally applied without notice. Justice Schwann ordered that Mr. Bouvier be given notice. He was served and did not appear in Court on the return date. The draft judgment filed on June 26, 2017, may issue with the exception that paragraph 2(

k) is to be removed”. [ 10 ] The judgment granted divorce, ordered that the titles to certain farmland be vested in Ms. Bouvier’s sole name and the titles to other farmland be vested in Mr. Bouvier’s sole name, removed Ms. Bouvier as a director of a corporation and ordered that each party retain all other property in their possession free from any claim by the other party. [ 11 ] On July 26, 2017, Mr. Bouvier filed a notice of appeal. Pursuant to Rule 15 of The Court of Appeal Rules , execution of the judgment was automatically stayed. Over the next 13 months, Mr. Bouvier took no steps to advance his appeal.

In response to a referral by the Registrar of the Court of Appeal to have his appeal dismissed as abandoned, Mr. Bouvier filed an application on October 18, 2018, seeking an order allowing him to proceed. A consent order issued, permitting him to proceed with the appeal and requiring it to be perfected by April 10, 2019, failing which his appeal would be dismissed as abandoned. His factum and appeal book were filed on April 10, 2019. Ms. Bouvier filed her factum on June 10, 2020. The appeal hearing was set for October 6, 2020. Mr.

Bouvier’s counsel sought and obtained leave to withdraw and the appeal was adjourned to November 6, 2020. By that time, Mr. Bouvier had retained his current counsel. IV. Issues [ 12 ] While the notice of appeal initially set out several grounds of appeal, the grounds that are being pursued can be distilled to the following: (

a) Was there inadequate notice of the application for judgment? (

b) Was the evidence of value sufficient for the Chambers judge to grant the judgment? (

c) Did the Chambers judge err in granting an unequal division of family property? V. Analysis A. Inadequate notice [ 13 ] Mr. Bouvier’s overall submission is that the cumulative effect of the problems with notice in this matter represents an error that requires the matter be sent back to the Court of Queen’s Bench to be adjudicated on its merits. Mr. Bouvier raises three separate issues in support of this contention. First, he submits he only received 12 days’ notice of the application for judgment, when he should have received a minimum of 14 days’ notice.

Second, he notes his lawyer of record never formally withdrew, so it was an error to grant judgment without the application being served on his counsel. Last, he argues that the application for judgment referred to the numbers for the Rules under the previous version of the Rules, thereby adding confusion to the notice. I will address each of these submissions separately, keeping in mind that the cumulative effect of various issues can sometimes lead to a result that would not arise out of a single issue. 1. Length of notice provided to Mr. Bouvier [ 14 ] Mr.

Bouvier had been noted in default because he had not served and filed an answer to the petition in the five years since he had been served with the petition. As such, no notice of the application for judgment was required to be provided to him: Rule 15-1 and Rule 15-23 of The Queen’s Bench Rules . However, when the matter came before Schwann J., she made the following determination: “Given the extensive nature of the relief sought in the draft judgment, the Petitioner’s application should proceed by way of notice to the Respondent. He has a right to make representations.

If he chooses to not appear, that will be his choice”. [ 15 ] Notice of the application for judgment was served personally on Mr. Bouvier on June 14, 2017, and the application proceeded on June 26, 2017. While Mr. Bouvier submits there was no proof of such service, he is mistaken because an affidavit of personal service is contained in the Court of Queen’s Bench file. [ 16 ] Mr. Bouvier further argues that he was entitled to 14 days’ notice as set out in Rule 15-19; but he received only 12 days’ notice. He contends the application could not be heard absent an application and order abridging the time for service.

Ms. Bouvier counters that Schwann J.’s fiat did not transform the application under Rule 15-23 to an application under Rule 15-19 simply because notice had to be given to Mr. Bouvier pursuant to that fiat. She argues notice was given and that notice was satisfactory to the Chambers judge. Ms. Bouvier further points out that Mr. Bouvier did not appear in Chambers on June 26, 2017, to argue that he needed more time and has not supplied any evidence, even on appeal, to demonstrate any prejudice he suffered by the application being brought on 12 days’ notice

versus 14 days’ notice. [17] In my view, Mr. Bouvier’s argument cannot succeed. Justice Schwann’s order did not convert the application for judgment to aRule 15-19 application. The application remained an application pursuant to Rule 15-23, so the notice provisions of Rule 15-19 did notapply. Justice Schwann had ordered notice be given, but she did not require any specific length of notice.

While it would seem to be goodpractice for a party to provide at least 14 days’ notice, the determination of the length and adequacy of the notice – when unspecifiednotice is ordered for a Rule 15-23 application – remains a discretionary decision.

Discretionary decisions are accorded significantdeference upon appeal: Dubelt v Muranetz-Dubelt, 2010 SKCA 5 at paras 12–13, 343 Sask R 215; Riley v Riley, 2011 SKCA 5 at para 5,336 Sask R 110; and D.B.B. v D.M.B., 2017 SKCA 59 at para 172. [18] In this matter, the Chambers judge was fully aware of Schwann J’s fiat and would have noted from the other fiats on file thatMr. Bouvier had not appeared on any of the three previous Chambers dates and had been noted in default. He knew from Ms. Bouvier’saffidavit that Mr.

Bouvier had not complied with the order requiring him to respond to the notice to disclose, had not paid the costs thathad been ordered and did not meaningfully participate in the matter over a period of more than five years. Mr. Bouvier’s absence inChambers on June 26, 2017, in the face of an application for judgment, spoke volumes about the utility of further notice. There is noevidence Mr. Bouvier suffered any prejudice by receiving 12 days’ notice as opposed to some longer period of time. On the other side ofthe equation, the Chambers judge also had to be mindful of fairness to Ms.

Bouvier who had initiated the process five years earlier andhad her counsel appear in Chambers to argue the application for judgment. In all of these circumstances, it was within the Chambersjudge’s discretion to determine that 12 days’ notice was adequate. 2. Service on the lawyer of record [19] Mr. Bouvier submits that his former counsel had not formally withdrawn, pursuant to Rule 2-41, so he remained the lawyer ofrecord at the Court of Queen’s Bench. As a result, he says judgment should not have been granted without the application for judgmentbeing served on his former counsel. Mr.

Bouvier argues there was an obligation on the Chambers judge to confirm that counsel wasproperly served, and to make inquiries as to why he was not served, in order to ensure the procedures of the court were not being abused.He relies on the general doctrine of abuse of process for this assertion.

He further relies on s. 7.2-6 of the Law Society’s Code ofProfessional Conduct (Regina: Law Society of Saskatchewan, 2012): Communications 7.2-6 Subject to Rules 7.2-6A and 7.2-7, if a person is represented by a lawyer in respect of a matter, another lawyer must not, exceptthrough or with the consent of the person’s lawyer: (

a) approach, communicate or deal with the person on the matter; or (

b) attempt to negotiate or compromise the matter directly with the person. [20] Ms. Bouvier responds by seeking to have fresh evidence admitted on the appeal that establishes Mr. Bouvier had failed to stayin contact and provide instructions to his former counsel, resulting in that counsel providing written authorization for Ms. Bouvier’scounsel to deal directly with Mr. Bouvier. As such, she argues notice to his former counsel was not required and would have beenpointless. [21] The fresh evidence Ms.

Bouvier seeks to have admitted on this issue consists of an affidavit attaching a letter from ScharfsteinGibbings Walen Fisher LLP, to Ms. Bouvier’s counsel, dated June 14, 2016 [June 14 letter]. The entirety of the body of that letter follows: Thank you for your letter of June 10, 2016. We have attempted to obtain instructions from Mr. Bouvier for quite some time to no avail. Accordingly, you may contact Mr. Bouvierdirectly. [22] In response, Mr. Bouvier seeks to introduce an affidavit attaching a letter from Scharfstein Gibbings Walen Fisher LLP to hisown subsequent counsel dated July 25, 2017.

The portions of that letter relevant to the issue at hand are as follows: In terms of background, our office took over this file from Morris Bodnar, Q.C., on or about April 8th, 2013 (14 months after the actionwas commenced). … From April 2013 to the summer of 2016 I had on-going (but occasional) communications with the Petitioner’slawyer Erin Connick. … I was unable to get instructions from Mr. Bouvier during such period and in June of 2016 I invited Ms. Connick to contact Mr. Bouvierdirectly. Hearing nothing further from Mr.

Bouvier, I returned the balance of his retainer to him earlier this month. [23] The test for the admission of fresh evidence on appeal is set out in R v Palmer, (SCC), [1980] 1 SCR 759. Thetest was recently summarized and applied by Kalmakoff J.A. in the context of a family law appeal in M.H. v A.B., 2019 SKCA 135, 36RFL (8th) 261 (leave to appeal to the SCC refused, ): [16] ... The fresh evidence will only be admitted if: (

a) it could not, even with the exercise of due diligence, have been adduced at trial; (

b) it is relevant in the sense that it bears upon a decisive, or potentially decisive, issue in the action; (

c) it is credible, in the sense that it is reasonably capable of belief; and (

d) it is of such a nature that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to haveaffected the result.

[ 24 ] Applying this test to the portions of the affidavit that refer to and attach the June 14 letter, I find that evidence should be admitted as fresh evidence on this appeal. While the letter existed prior to the application in Chambers, the exercise of due diligence would not have required it to be filed on the application because the issue it relates to could not have been anticipated. It is credible and confirmed by Mr. Bouvier’s own evidence.

It is relevant and can reasonably be expected to affect the result given that it provides a complete answer to this ground of appeal that would not otherwise be available based on the record. Absent this highly credible evidence, the Court would be left with an erroneous impression of how the matter proceeded. As such, the June 14 letter is admitted as fresh evidence on this appeal. [ 25 ] Mr. Bouvier’s counsel had, for all intents and purposes, withdrawn in this matter. Mr. Bouvier was self-represented and was personally served. There was no requirement that his former counsel be served with the application.

There is no merit to the argument that the judgment should not have been granted absent such service. 3. Reference to old rules [ 26 ] Mr. Bouvier points out that the application for judgment filed by Ms. Bouvier refers to the Rule numbers under the former version of The Queen’s Bench Rules . He recognizes this is a minor procedural error, but submits it adds to the list of errors in this matter. In my view, this error is of no consequence. The material served on Mr. Bouvier clearly set out the property Ms.

Bouvier says was family property, along with its values, and included details on how she wanted it to be divided. The documents provided detailed and unambiguous notice of the remedy being sought. 4. Noting in default without notice [ 27 ] While Mr. Bouvier originally argued in his factum that Ms.

Bouvier failed to give reasonable notice that she was going to note him in default, that argument was not pursued at the hearing of the appeal, presumably because the date of the noting of default was different than the parties had believed in their arguments and the remainder of the fresh evidence sought to be tendered by Ms. Bouvier answered this issue. There is no need to address this issue further, other than to dismiss the remainder of Ms. Bouvier’s fresh evidence application as being unnecessary, given that this issue is no longer being pursued. 5.

Conclusion on inadequate notice [ 28 ] In my view, the Chambers judge did not err in his conclusion that Mr. Bouvier had received sufficient notice of the judgment being sought by Ms. Bouvier. There is no merit in this ground of appeal. B. Sufficiency of the evidence regarding value [ 29 ] Mr. Bouvier submits the Chambers judge did not have sufficient evidence of the value of the family property to determine how it should be divided. In his factum, he notes the land was being actively farmed and no allowance was made for the fact that Mr. Bouvier would have seeded the land by the date the judgment was granted.

He further argues that there was no evidence of value of the farmland at application date or adjudication date so the value chosen by the Chambers judge is not in accordance with the requirements of s. 2(1) of The Family Property Act , SS 1997, c F-6.3 . In his oral argument, Mr. Bouvier also took the Court to the titles of the farmland filed on the application for judgment and contended that there were encumbrances registered on some of the titles that the Chambers judge failed to take into account. [ 30 ] With regard to the alleged impropriety of transferring farmland to Ms.

Bouvier without allowance for the value of the growing crops after Mr. Bouvier had paid for all of the input costs for the crop year, I find that issue is now moot. As a result of the delay caused by the appeal, Mr. Bouvier would have harvested the 2017 crop, along with the three subsequent years’ crops. [ 31 ] Turning to the choice of a valuation date, Mr. Bouvier is correct that family property must be valued at either the application (petition) date or the adjudication date, as set out in s. 2(1) of The Family Property Act :

Interpretation 2(1) In this Act: … “value” means: (

a) the fair market value at the time an application is made pursuant to this Act, or at the time of adjudication, whichever the court thinks fit; or (

b) if a fair market value cannot be determined, any value at the time an application is made pursuant to this Act, or at the time of adjudication, that the court considers reasonable. («valeur») [ 32 ] The petition date in this matter was February 15, 2012. The adjudication date was June 26, 2017. In her application for judgment, Ms. Bouvier filed an appraisal for the farmland dated November 5, 2014. Mr. Bouvier argues there was no evidence of value of the farmland as of either of the permitted dates, so the Chambers judge erred by dividing the family property as he did. In my view, this argument cannot succeed.

While the Chambers judge did not explicitly indicate which valuation date he was choosing, he had the benefit of a professional appraisal that set out the values of all of the land to be divided. In the absence of any evidence establishing values had substantially changed, he was entitled to use the appraisal as a proxy for the value of the farmland at one of the permitted dates: Rodway v Reardon , 2019 SKCA 99 at para 79 . There was no evidence to the contrary, either in Chambers or through an application to adduce fresh evidence at this appeal.

Additionally, the Chambers judge divided the farmland in specie, which would further enhance the suitability of using the only available valuation information as a proxy for one of the valuation dates. [ 33 ] Lastly, I turn to Mr. Bouvier’s oral argument that the Chambers judge failed to consider that there were encumbrances

registered against the titles to the farmland that affected their value. In my view, the Chambers judge had no obligation to determine that the encumbrances registered against the farmland should affect the division of property, without further evidence. The interests registered against title told the Chambers judge nothing about the amount , or even the continued existence, of any obligations. In her property table filed on the application for judgment, Ms. Bouvier disclosed Mr. Bouvier’s debts that she was aware of, including one for $46,953 to TD Canada Trust.

She additionally disclosed, and undertook to take responsibility for, a mortgage and a writ registered against some of the farmland that she sought to have vested in her name. This was all in the application for judgment served on Mr. Bouvier and set out in a simple, easy to follow table. If he had evidence of additional debts, he had an obligation to file evidence about them in Chambers. He chose to not do so. I observe that he also has not sought to put any evidence of any such debts in front of this Court as part of a fresh evidence application on appeal.

I can find no error in the Chambers judge’s treatment of alleged debts. C. Unequal division of family property [ 34 ] The judgment granted by the Chambers judge provided Ms. Bouvier with an unequal distribution of the family property as requested in the petition and the application. The basis upon which Ms. Bouvier claimed an unequal distribution of family property was set out in her affidavit. She averred that Mr. Bouvier had retained all of the income from the farmland since the separation.

She further averred that, during the marriage, her father had gifted the parties land and gifted her the money that she held as investments. Broadly speaking, she sought to have each party keep the investments that were in his or her name, have the farmland divided in specie and have Mr. Bouvier retain the vehicles and equipment valued at $325,000. This provided Ms. Bouvier with approximately $1.1 million more in property than Mr. Bouvier in the context of the property that was known. [ 35 ] Mr. Bouvier submits the Chambers judge erred by granting judgment for an unequal division of property.

He argues the Chambers judge failed to examine and give reasons why an equal distribution would be unfair and inequitable. Mr. Bouvier further asserts the evidence was insufficient to support an unequal distribution. [ 36 ] Section 21(1) of The Family Property Act requires that family property be divided equally between the parties, subject to the exceptions, exemptions and equitable considerations set out in the Act. In her application for judgment, Ms. Bouvier relied on the equitable consideration set out in s. 21(3) (

e) of The Family Property Act . The relevant portions of the Act are as follows: Distribution of family property 21

(1) On application by a spouse for the distribution of family property, the court shall, subject to any exceptions, exemptions and equitable considerations mentioned in this Act, order that the family property or its value be distributed equally between the spouses.

(2) Subject to

section 22, where, having regard to the matters mentioned in subsection (3), the court is satisfied that it would be unfair and inequitable to make an equal distribution of family property or its value, the court may: (

a) refuse to order any distribution; (

b) order that all the family property or its value be vested in one spouse; or (

c) make any other order that it considers fair and equitable.

(3) For the purposes of subsection (2), the court shall have regard to the following: … (

e) the contribution, whether financial or in some other form, made directly or indirectly by a third party on behalf of a spouse to the acquisition, disposition, operation, management or use of the family property … . [ 37 ] A fundamental problem with Mr. Bouvier’s overall assertion under this ground of appeal is that there is no way of ascertaining whether there truly was an unequal distribution of family property in favour of Ms. Bouvier.

She received an unequal distribution of the family property that she provided in her list filed with her application for judgment, but that does not mean there was an unequal distribution of family property. As pointed out by Ms. Bouvier in her submissions, because Mr. Bouvier chose to not disclose any financial information of any kind, it remains highly uncertain who received a larger share of the family property. Mr. Bouvier, who had asymmetrical control of all of the information regarding the farming operation, the farming corporation and his personal assets, chose to not provide that information.

He chose to do so despite his obligations under The Queen’s Bench Rules , in defiance of a court order requiring such disclosure, after being served with an application for judgment and subsequent to the judgment being granted. [ 38 ] If Mr. Bouvier had evidence that supported his position regarding the unfairness and inequity of the judgment, he should have applied to the Court of Queen’s Bench, pursuant to Rules 10-13 and 15-2, to have the noting in default and the judgment set aside and to be given leave to file an answer. Of course, this would have required Mr.

Bouvier to participate in the matter and to have disclosed his financial information. He chose to do neither. [ 39 ] It may well be that one party ended up with a bigger share than the other. While judgments are not made on the basis of such speculation, they also cannot be unmade on the basis of bare assertions by a party who, to this day, has steadfastly refused to provide any information of any kind to permit an examination of his largely unknown financial position. All the Court is left with are bold assertions by Mr.

Bouvier, while he continues to refuse to disclose the evidence that may or may not support his case. Having chosen to breach his duty to disclose financial information within his control, he cannot now continue to conceal that information and ask this Court to allow his appeal based on representations and theoretical arguments. Mr. Bouvier made decisions and must now live with the consequences of those choices. [ 40 ] While it is my view that Mr. Bouvier’s lack of disclosure would be sufficient to dispose of this ground of appeal, I will address the other arguments for the sake of completeness.

[ 41 ] Turning to the alleged evidentiary deficit, Mr. Bouvier points to two problems. First, he says the land that was gifted is not identified nor is value ascribed to that land. While it would have been better for Ms. Bouvier to have more precisely identified the exact land that was gifted to them, I note that the land was divided in specie with Mr. Bouvier receiving land with 47% of the total value of the land and Ms. Bouvier receiving 53% of the land value, after taking into account the mortgage and writ for which Ms. Bouvier retained responsibility. By that point in time, Mr.

Bouvier had retained 100% of the income from all of the farmland for the five crop years that had passed since the petition was issued and has now retained that income for another four years. It is difficult to see an inequity in these circumstances that would justify appellate intervention. As a second evidentiary issue, Mr. Bouvier submits Ms. Bouvier’s affidavit states the land and money were gifted to both parties. On this point, Mr. Bouvier is simply in error. Ms.

Bouvier’s affidavit does state the land was gifted to both of them, but it states the money was gifted solely to her. [ 42 ] Lastly, I find the Chambers judge’s reasons sufficient for the circumstances at hand. He was faced with an uncontested application for judgment, with a disinterested and obstructive party on the other side. He considered the material and, after doing so, modified the draft judgment that had been filed and granted judgment. The evidence was not perfect, but when a party will not participate, eventually a judge has to make a decision on the basis of what is in front of him or her.

The bottom line is that the Chambers judge’s decision is supportable on the evidence filed in this matter and is entitled to deference from this Court. There is no merit in this ground of appeal. VI. Conclusion [ 43 ] The appeal is dismissed in its entirety with costs to Ms. Bouvier in the usual way for both the appeal and her application to adduce fresh evidence. “Tholl J.A.” Tholl J.A. I concur. “Whitmore J.A.” Whitmore J.A. I concur. “Kalmakoff J.A.” Kalmakoff J.A.