Respondent David-Seguin

Transcription

SCC File No. 33358
IN THE SUPREME COURT OF CANADA
(ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO)
BETWEEN:
MICHELE VANASSE
APPELLANT
(Respondent)
- and DAVID SEGUIN
RESPONDENT
(Appellant)
______________________________________________________________________________
FACTUM OF THE RESPONDENT
(pursuant to Rule 42 of the Rules of the Supreme Court of Canada)
______________________________________________________________________________
H. Hunter Phillips
MacKinnon & Phillips
802 - 200 Elgin Street
Ottawa, ON, K2P 1L5
Telephone:
(613) 236-0662
Fax:
(613) 236-8906
E-mail:[email protected]
Counsel for the Respondent David Seguin
John E. Johnson
Nelligan O’Brien Payne LLP
1500 - 50 O’Connor Street
Ottawa, ON, K1P 6L2
Telephone:
(613) 231-8253
Fax:
(613) 788-3653
E-mail:[email protected]
Counsel for the Appellant Michele Vanasse
TABLE OF CONTENTS
PART I - OVERVIEW AND STATEMENT OF FACTS .........................................................1
A.
Overview ................................................................................................................1
B.
Both parties employed ..........................................................................................1
C.
Moving to Nova Scotia ..........................................................................................3
D.
Reduction in work load ........................................................................................4
E.
Returning to Ottawa .............................................................................................5
F.
New home - joint tenancy .....................................................................................5
G.
Nine-to-five job ......................................................................................................5
H.
Sale of FastLane - retirement ...............................................................................6
I.
The parties separate ..............................................................................................6
J.
Financial benefits received by Applicant ............................................................7
K.
Trial Judge fails to follow S.C.C. decision .........................................................7
L.
Ontario Court of Appeal properly confirms value received approach ............9
PART II - STATEMENT OF QUESTIONS IN ISSUE ON APPEAL ..................................10
PART III - ARGUMENT............................................................................................................10
ISSUE ONE: Court of Appeal properly concluded that the value received approach
was to be used to determine the amount of the monetary award for
unjust enrichment
A.
Property rights of “common law” spouses .......................................................10
B.
Unjust enrichment principles .............................................................................13
C.
Majority v. minority decisions (clarity v. flexibility) ......................................15
D.
Ontario Court of Appeal consistently applies value received approach ........15
E.
Saskatchewan Court of Appeal approves use of value received .....................16
ii
F.
Manitoba Court of Appeal does not endorse value survived approach .........17
G.
Inconsistent application of value added and value survived approaches ......18
The British Columbia Court of Appeal ............................................................18
The Alberta Court of Appeal .............................................................................20
H.
Property rights in common law relationships - policy issues ..........................21
I.
Quantification of the award................................................................................21
J.
Provincial spousal support legislation considers many of the same factors ..23
K.
Conclusion ...........................................................................................................24
ISSUE TWO:
The Trial Judge failed to consider relevant evidence of the
respondent`s contribution to the relationship ..........................24
PART IV - COSTS ......................................................................................................................26
PART V - ORDER SOUGHT ....................................................................................................26
PART VI - TABLE OF AUTHORITIES
..................................................................................27
PART VII - RELEVANT LEGISLATION ..............................................................................28
A.
The Family Law Act, R.S.O. 1990, c. F.3, as amended, ss. 1 and 5.....................28
B.
The Family Property Act, S.S. 2000, c. 70, Amended by 2001, c. 51, s. 2(1) .....32
C.
The Family Property Act, S.M. 2002, c. 48, s 2.1 ...............................................33
PART I - OVERVIEW AND STATEMENT OF FACTS
A.
Overview
1.
The Appellant and Respondent lived in a common law relationship. When the
relationship ended, the Appellant claimed spousal support, child support and
compensation for unjust enrichment. At trial the Appellant was awarded $5,422 per
month for child support and $3,800.00 per month for spousal support. She was also
awarded a monetary award for unjust enrichment.
2.
The Trial Judge found that there was unjust enrichment as a result of Ms. Vanasse having
assumed primary responsibility for child care and household management over a period
of 3 ½ years during which period the Respondent, David Seguin was employed full time.
3.
The Trial Judge used a “value survived” approach and awarded Ms. Vanasse
$1,225,000.00 for her 3 ½ years of child care and household management.
4.
The Ontario Court of Appeal found that the Trial Judge had erred in applying a “value
survived” approach and ordered a new trial to calculate Ms. Vanasse’s damages for
unjust enrichment on a “value received” or quantum meruit basis.
5.
The Respondent’s position is that the Court of Appeal, in applying the judgment of this
court in Peter v. Beblow, correctly concluded that the “value received” approach is to be
used in valuing a monetary award for unjust enrichment.
B.
Both Parties Employed
6.
When the parties began to live together, Mr. Seguin was working for FastLane
Technologies Inc. (“FastLane”), a company that he had created, before cohabitation, with
2
a partner, Eric Kitchen. Ms. Vanasse was employed by CSIS, training to be an intelligence
officer.
Reference:
Evidence of David Seguin, Respondent’s Record, Tab 2B, p. 36, lines 2 to
22.
Evidence of Michele Vanasse, Respondent’s Record, Tab 2A, p. 2, lines 1
to 12.
7.
Mr. Seguin and Mr. Kitchen had developed a computer software product which helped
network administrators manage large computer networks. They incorporated FastLane to
develop and market this product.
Reference:
8.
Evidence of David Seguin, Respondent’s Record, Tab 2B, p. 43, line 12 to
p. 44, line 16.
Ms. Vanasse was not involved in the development of FastLane.
Reference:
Evidence of David Seguin, Respondent’s Record, Tab 2A, p. 44, lines 17
to 30.
Evidence of Eric Kitchen, Respondent’s Record, Tab 2C, p. 89, line 26 to
p. 90, line 15.
Trial Reasons, paragraph 103, Appellant’s Record, p. 30.
9.
During the first 3 ½ years of the relationship, while Ms. Vanasse was employed by CSIS,
the parties maintained separate finances. Mr. Seguin paid the mortgage, taxes and most
of the utilities. Ms. Vanasse paid for some of the utilities, some groceries and her own
clothes.
Reference:
p. 41, line 9.
Evidence of Michele Vanasse, Respondent’s Record, Tab 2A, p. 24, line 1
to p. 26 , line 18.
3
10.
In the summer of 1996 Mr. Seguin proposed to Ms. Vanasse and they became engaged,
but never progressed to the point of setting a date to be married or making specific
wedding plans.
Reference:
p. 42, line 19.
Evidence of Michele Vanasse, Respondent’s Record, Tab 2A, p. 27, lines
13 to 30, line 4.
C.
Moving to Nova Scotia
11.
In the fall of 1996 Terrence Matthews, CEO of Newbridge Networks Corporation,
purchased shares in FastLane. Mr. Matthews then arranged for incentives from the
government of Nova Scotia, in return for which it was necessary to move the company to
Nova Scotia and to significantly increase the number of employees.
Reference:
12.
p. 48, line 29.
Mr. Seguin sold his home in Ottawa and moved to Halifax in January, 1997. Ms.
Vanasse continued to work and live in Montreal. She finished working, taking a leave of
absence, in March, 1997, living with her parents until moving to Halifax in April/May,
1997.
Reference:
13.
p. 49, line 5.
By the time she moved to Halifax, Ms. Vanasse was pregnant with the parties’ first child,
Zachary, who was born August 3, 1997.
Reference:
Evidence of Michele Vanasse, Respondent’s Record, Tab 2A, p. 16, line
1 to p. 17, line 2.
4
D.
Reduction in Work Load
14.
Initially, when he moved to Halifax, Mr. Seguin was working long hours and traveling
frequently. This continued after Ms. Vanasse joined him in Halifax.
Reference:
15.
p. 52, line 4.
When Ms. Vanasse moved to Halifax she began to complain about Mr. Seguin’s work
hours. This resulted in Mr. Seguin reducing his hours, after Zachary’s birth in August, to
a regular 9:00 to 5:00, five day per week, schedule, to the annoyance of his business
associates who continued to work more demanding hours.
Reference:
Evidence of David Seguin, Respondent’s Record. p. 57, line 2 to p. 58,
line 15
16.
In order to justify the reduction in his hours of work, Mr. Seguin stepped down as
President and CEO of FastLane, partly on his own initiative and partly at the urging of
Mr. Kitchen and the Board of Directors.
Reference:
p. 58, line 15.
p. 95, line 29.
17.
In resigning his position as President and CEO, Mr. Seguin had to give up his entitlement
to stock options. This ultimately cost him approximately $2 million when the company
was ultimately sold.
Reference:
p. 97, line 11.
Evidence of David Seguin, Respondent’s Record, Tab 2B, p. 55, lines 7 to
24.
5
E.
Returning to Ottawa
18.
Despite the reduction in Mr. Seguin’s work hours, Ms. Vanasse was unhappy in Halifax
and was not supportive of Mr. Seguin’s efforts with FastLane. As a result, in September,
1998, Mr. Seguin moved the family back to Ottawa, again over the objections of Mr.
Kitchen and the Board of Directors who wanted Mr. Seguin, as a founder of the business,
to remain with the head office in Halifax.
Reference:
p. 60, line 21.
p. 102, line 19.
Evidence of Michele Vanasse, Respondent’s Record, Tab 2A, p. 30, line 5
to p. 32, line 10.
F. New Home - Joint Tenancy
19.
When the family moved back to Ottawa, Mr. Seguin purchased a home, title to which
was registered in the names of both parties as joint tenants.
Reference:
Evidence of Michele Vanasse, Respondent’s Record, Tab 2A, p. 19, line
32 to p. 20, line 14.
G.
Nine-to-Five Job
20.
In Ottawa, Mr. Seguin worked 9:00 to 5:00, five days a week, with little traveling. A
second child, Stephanie, was born August 17, 1999. Ms. Vanasse remained the primary
caregiver for the children, although Mr. Seguin was very involved when not at work.
Reference:
Evidence of May Gabbour, Respondent’s Record, Tab 2D, p. 103, line 22
to p. 105, line 4.
p. 65, line 25.
6
H.
Sale of FastLane - Retirement
21.
In September, 2000, FastLane was purchased by Quest Software. Mr. Seguin received
$11,095,123 for his shares. The proceeds were placed in a holding company,
Clearsummit Holdings Inc., the name of which was later changed to David Seguin
Holdings Inc.
Reference:
p. 71, line 4.
22.
After the sale of FastLane, Mr. Seguin effectively retired. He had a home office from
which he investigated new business and investment opportunities, but he was home
during the day and more actively involved with the care of the two children.
Reference:
p. 75, line 1.
I.
The Parties Separate
23.
The parties began couples counseling with Dr. Nahon in September, 2001, which they
continued, off and on, for three years. They eventually separated March 27, 2005.
Reference:
24.
Evidence of David Seguin, Respondent’s Record, Tab 11B, p. 162, line 2
to p. 165, line 31 and p. 171, line 13 to p. 175, line 21.
Following the sale of FastLane the parties had discussions about the possibility of a
cohabitation agreement/marriage contract. The parties were not in agreement and no
contract was negotiated.
Reference:
25.
p. 78, line 30 and p. 86, line 3 to p. 88, line 6.
At the time of separation Mr. Seguin was 40 years of age and Ms. Vanasse was 38.
7
J.
Financial Benefits Received by Appellant
26.
As a result of financial benefits conferred by Mr. Seguin, Ms. Vanasse had received a
half interest in the mortgage-free matrimonial home ($215,000.00) and a “spousal” RRSP
($44,486.18).
Reference:
27.
Trial Reasons, paragraph 141, Appellant’s Record p. 38.
When Ms. Vanasse left CSIS, she was earning approximately $44,000.00 per year. Had
she remained employed with CSIS from 1997 (when she went on leave) until September,
2000 (when FastLane was sold) her income would have increased from $43,920 to
$47,080.
Reference:
K.
Trial Judge Fails to Follow S.C.C. Decision
28.
The Trial Judge found unjust enrichment occurred during the middle 3 ½ years of the
relationship, from the time Ms. Vanasse moved to Halifax in the spring of 1997 until
FastLane was sold in September, 2000.
Reference:
29.
Trial Reasons, paragraphs 90 and 91, Appellant’s Record, p. 28.
Even during this 3 ½ year period, there were three distinct phases in the relationship:
a)
From the spring until September, 1997, Mr. Seguin worked very long hours and
traveled frequently;
b)
In September, 1997, following the birth of their first child and under pressure
from Ms. Vanasse, Mr. Seguin resigned as President and CEO of the company he
had co-founded, in order to work shorter hours and to assist Ms. Vanasse at home;
c)
In September, 1998, under further pressure from Ms. Vanasse, Mr. Seguin moved
8
the family back to Ottawa, further reducing his role in the company and working
9:00 to 5:00 so as to be even more available to assist with the children.
30.
The Trial Judge correctly applied the principles enunciated by this court in Peter v.
Beblow in determining that a monetary award was the appropriate remedy for the unjust
enrichment experienced by the Respondent.
Reference:
31.
Trial Reasons, paragraphs 95 to 99, 103 and 109, Appellant’s Record pp.
29 - 32.
The Trial Judge acknowledged the statement of McLaughlin J. at paragraph 29 of Peter v.
Beblow that, “For a monetary award, the value received approach is appropriate, the
value conferred on property is irrelevant”, but found there had been “a blurring of the
value received and valued survived approaches” in subsequent decisions of the Ontario
Court of Appeal.
Reference:
32.
Trial Reasons, paragraphs 110, 117 and 119, Appellant’s Record pp. 3234.
The Trial Judge then calculated the increase in the Respondent’s net worth over the 12
years of cohabitation, pro rated that for the 3 ½ years during which she found unjust
enrichment to have occurred, and awarded the Appellant one half of that pro rated
increase.
Reference:
33.
The Trial Judge is also inconsistent in her findings of fact, stating at paragraph 25, “In
September, 1998, the family moved back to Ottawa. Mr. Seguin ... worked out of an
office in Kanata usually from 9:00 a.m. to 5:00 p.m. and, at times from home as well.
There was minimal travel and more time at home”. Yet at paragraph 141 the Trial Judge
states, “[Mr. Seguin] worked extremely long hours away from the family for a good
portion of the three and one-half years [April, 1997 to September, 2000]”.
Reference:
Trial Reasons, paragraphs 25 and 141, Appellant’s Record pp. 13 and 38.
9
L.
Ontario Court of Appeal Properly Confirms Value Received Approach
34.
The Court of Appeal found that, after acknowledging that the “value received” approach
was appropriate, the Trial Judge incorrectly concluded that there had been “a blurring” of
the “value received” and “value added” approach in the prior Ontario Court of Appeal
decisions of Nasser v. Nasser-Mayer and Yackobeck v. Hartwig.
Reference:
35.
Reasons for judgement of the Court of Appeal, paragraphs 4, 8 and 9,
Appellant’s Record, pp. 64 and 65.
The Court of Appeal held, “The approach adopted by the trial judge to quantify the
compensation owed to Vanasse on the basis of unjust enrichment is precisely the
approach held was incorrect in Bell v. Bailey ... and Wylie v. Leclair...”.
Reference:
36.
Reasons for judgement of the Court of Appeal, paragraph 7, Appellant’s
Record, p. 64.
The Court of Appeal held that,
Given that the correct approach was to determine the “value received”
and perform a quantum meruit calculation, the value that each party
received from the other should have been assessed and set-off. See
generally Peter v. Beblow, [1993] 1 S.C.R. 980, Bell v. Bailey (2001), 20
R.F.L. (5th) 272, (Ont. C.A.), and Wylie v. Leclair (2003), 38 R.F.L. (5th)
227, (Ont. C.A.). In addition to Seguin’s financial contribution, the trial
judge should have considered relevant evidence pertaining to Seguin’s
non-financial contributions to the relationship during the second period of
cohabitation. for example, she did not appear to take into account that
shortly after the birth of their first child, Seguin cut back his hours and
resigned his position as President of the company which resulted in him
losing the opportunity to obtain any further stock options. Within a year
after their first child was born, the family returned to Ottawa at Vanasse’s
urging. The move resulted in a diminution of Seguin’s commitment to the
business, friction with his partners, and reduced the amount he ultimately
received from the sale of the business. [emphasis added]
Reference:
Record, pp. 66-67.
10
PART II - STATEMENT OF QUESTIONS IN ISSUE ON APPEAL
37.
The questions in issue on this appeal, as stated by the Appellant are:
Issue One:
Did the Court of Appeal err in law in insisting that a strict “value
received” approach be applied to quantifying a monetary award for unjust
enrichment?
Issue Two:
Did the Court of Appeal err in finding that the trial judge failed to consider
relevant evidence of Mr. Seguin’s contribution to the relationship?
38.
The Respondent’s position on Issue One is that the Court of Appeal was correct in
finding that a “value received approach” is to be applied to quantify a monetary award for
unjust enrichment.
39.
The Respondent’s position on Issue Two is that the Court of Appeal was correct in
finding that the trial judge failed to consider relevant evidence of Mr. Seguin’s
contribution to the relationship.
PART III - ARGUMENT
ISSUE ONE: Court of Appeal properly concluded that the value received approach was to
be used to determine the amount of the monetary award for unjust
enrichment
A.
Property Rights of “Common Law” Spouses
40.
In Nova Scotia (Attorney General) v. Walsh (Walsh v. Bona) , This Honourable Court
held that the establishment of a common law union was a lifestyle choice from which
different legal obligations flow than exist in marital unions, absent legislative or
contractual provisions to the contrary. Bastarache J. noted that many people involved in
11
non-marital relationships have chosen to avoid the institution of marriage and its legal
consequences. Personal autonomy should be respected. The courts should not impose a
marriage-like regime on couples who have chosen not to marry. To do so would
effectively nullify the individuals’ freedom to choose alternative family forms.
Reference:
41.
Nova Scotia (Attorney General) v. Walsh, [2002] 4 S.C.R. 325, paragraphs
40, 43 and 55 (Respondent’s Book of Authorities, Tab G).
This respect for personal autonomy is justified because persons who choose not to marry
can bind themselves to the same regime of economic partnership as married couples,
either by entering into a domestic contract, or, in the case of Nova Scotia, by registering
as domestic partners.
Reference:
42.
Nova Scotia (Attorney General) v. Walsh, Supra, paragraphs 49-50
(Respondent’s BOA, Tab G).
In Walsh v. Bona, Bastarache J. confirmed that mutual intention is what differentiates
married and non-married unions, stating:
In my view, people who marry can be said to freely accept mutual
rights and obligations. A decision not to marry should be respected
because it also stems from a conscious choice of the parties.
Reference:
43.
Nova Scotia (Attorney General) v. Walsh, Supra, paragraph 55
In Walsh this Court also recognized that unmarried couples who separate have remedies
available to them through provincial support legislation and equitable principles of
constructive trust. As stated by Bastarache J.,
It is true that certain unmarried couples may also choose to organize their
relationship as an economic partnership for the period of their
cohabitation. Similarly, some couples, without making a public and legally
binding commitment, may simply live out their lives together in a manner
akin to marriage. In these cases, the law has evolved to protect those
persons who may be unfairly disadvantaged as a result of the termination
of their relationship.
12
Firstly, provincial legislation provides that an unmarried cohabitant or
"common-law partner" may apply to a court for an order of maintenance
or support .. The court is empowered to take into consideration a host of
factors pertaining to the manner in which the parties organized their
relationship as well as the particular needs and circumstances of both of
the parties.
For those couples who have not made arrangements regarding their
property at the outset of their relationship, the law of constructive trust
remains available to address inequities that may arise at the time of the
dissolution. The law of constructive trust developed as a means of
recognizing the contributions, both pecuniary and non-pecuniary, of one
spouse to the family assets the title of which was vested wholly in the
other spouse... Those situations where the fact of economic
interdependence of the couple arises over time are best addressed through
the remedies like constructive trust as they are tailored to the parties'
specific situation and grievances.
All of these factors support the conclusion that the extension of the MPA
to married persons only is not discriminatory in this case as the distinction
reflects and corresponds to the differences between those relationships and
as it respects the fundamental personal autonomy and dignity of the
individual.
Reference:
44.
Nova Scotia (Attorney General) v. Walsh, Supra, paragraphs 59-62
In this case, Mr. Seguin and Ms. Vanasse never married. As a result the property
provisions of the Family Law Act do not apply to them and their respective property
rights must be determined in the context of the equitable doctrines of unjust enrichment
and constructive trust.
Reference:
45.
Nova Scotia (Attorney General) v. Walsh, Supra, (Respondent’s BOA,
Tab G).
The Family Law Act, R.S.O. 1990, c. F.3, as amended, ss. 1 and 5.
It remains open to any province to amend its matrimonial property legislation to extend
greater property rights to common law couples, as Manitoba did in 2002 in the Family
Property Act and Saskatchewan did in 2001 in its Family Property Act
13
Reference:
The Family Property Act, S.M. 2002, c. 48;
The Family Property Act, S.S. 2000, c. 70, Amended by 2001, c. 51.
B.
Unjust Enrichment Principles
46.
In Peter v. Beblow, this Honourable Court discussed the law of unjust enrichment and
the restitutionary relief of constructive trust. McLaughlin J., as she then was, cautioned
against the use of unjust enrichment as a means of dispensing fairness between the parties
where the doctrinal elements were not present. She stated,
There is a tendency on the part of some to view the action for unjust
enrichment as a device for doing whatever may seem fair between the
parties. In the rush to substantive justice, the principles are sometimes
forgotten. ..Occasionally the remedial notion of constructive trust is even
conflated with unjust enrichment itself, as though where one is found the
other must follow.”
Reference:
47.
A claim based on unjust enrichment arises when three elements are satisfied:
a)
an enrichment;
b)
a corresponding deprivation; and
c)
the absence of a juristic reason for the enrichment.
Reference:
48.
Peter v. Beblow, [1993] 1 S.C.R. 980 at paragraph 4 (Appellant’s BOA,
Tab J).
Peter v. Beblow, Supra, at paragraph 3, (Appellant’s BOA, Tab J).
The proper approach to the juristic reason analysis is in two parts: firstly the claimant
must show that no juristic reason exists from an established category. Secondly, if there
is no juristic reason from an established category, the claimant has made out a prima
facie case that can be rebutted by the respondent showing the existence of another reason
for denying recovery. It is at this stage that the courts have regard to two factors: the
legitimate or reasonable expectations of the parties and public policy considerations.
14
Reference:
49.
Garland v. Consumer’s Gas Co., [2004] 1 S.C.R. 629, at paragraphs 45
and 46, (Respondent’s BOA, Tab C).
Questions of the “legitimate expectations of the parties” and “flexibility” go to the issue
of the presence or absence of a juristic reason for the enrichment.
Reference:
50.
Peter v. Beblow, Supra at paragraphs 9 and 10, (Appellant’s BOA, Tab J).
Once the three elements are established, the court must choose between two possible
remedies: a monetary payment, or the imposition of a proprietary interest via constructive
trust (called “value survived”).
Reference:
51.
Peter v. Beblow, Supra at paragraph 3, (Appellant’s BOA, Tab J).
In Peter v. Beblow This Honourable Court confirmed that,
For a monetary award, the "value received" approach is
appropriate; the value conferred on the property is irrelevant.
Reference:
52.
Peter v. Beblow, Supra, paragraph 29, (Appellant’s BOA, Tab J).
In order for the imposition of a constructive trust to be appropriate, it is necessary to find
that a monetary award would be inadequate and it is necessary for the claimant to
establish a direct link between the services rendered and the property which is the subject
of the trust.
Reference:
53.
Peter v. Beblow, Supra, paragraphs 3 and 31, (Appellant’s BOA, Tab J).
In determining whether a monetary award is insufficient, the court may take into account
the probability of the award being paid as well as the special interest in the property
acquired by the contributions.
Reference:
15
54.
Once the threshold of a substantial and direct contribution has been met, the extent of the
contribution governs the extent of the constructive trust.
Reference:
Peter v. Beblow, Supra, paragraphs 27 to 29, (Appellant’s BOA, Tab J).
55.
Even where a constructive trust is imposed and a “value survived” approach is used, not
e
every contribution will entitle a claimant to a one-half interest in the property. At p
paragraph 27, McLaughlin J. quoted Dickson C.J. from Petkus v. Becker, stating,
The extent of the interest must be proportionate to the contribution, direct
or indirect, of the claimant. Where the contributions are unequal, the
shares will be unequal.
Reference:
Peter v. Beblow, Supra, paragraph 27 to 29, (Appellant’s BOA, Tab J).
C.
Majority v. Minority Decisions (Clarity v. Flexibility)
56.
The Appellant argues for “flexibility in the choice of valuation approaches”. In doing so,
reliance is placed on the minority decision of Cory J. in Peter v. Beblow.
57.
McLaughlin J., writing for the majority stated “... the concern for clarity and doctrinal
integrity with which this Court has long been preoccupied in this area mandates that the
legal principles governing the rights and remedies for unjust enrichment remain the same
for all cases”.
Reference:
D.
The Ontario Court of Appeal Consistently Applies Value Received Approach
58.
The Ontario Court of Appeal has consistently followed the majority decision in Peter v.
Beblow, finding that a monetary award requires a “value received approach”. Simply
determining the increase in the value of the other party’s property is not the proper route
to follow.
16
Reference:
59.
Bell v. Bailey (2001), 20 R.F.L. (5th) 272, (Ont. C.A.), paragraphs 26 and
35, (Respondent’s BOA, Tab A);
Roseneck v. Gowling (2002), 35 R.F.L. (5th) 177, (Ont. C.A.) at paragraph
33, (Respondent’s BOA, Tab I);
Wylie v. Leclair (2003), 38 R.F.L. (5th) 227, (Ont. C.A.) at paragraph 19,
(Respondent’s BOA, Tab J).
Even in Nasser v. Mayer-Nasser, the Court of Appeal was critical of the trial judge for not
valuing the Applicant’s contributions on a quantum meruit basis. However the Court of
Appeal held that an award of $170,000 was not inappropriate having regard to the
complexities of a 23 year period of cohabitation.
Reference:
60.
Nasser v. Mayer-Nasser, (2000) 5 R.F.L. (5th) 100 (Ont. C.A.), at
paragraphs 43 and 45, (Appellant’s BOA, Tab F).
In Yackobeck v. Hartwig, there was no analysis by the Ontario Court of Appeal of the
manner in which a monetary award for unjust enrichment was valued. The Court of
Appeal simply held that there was no reason to interfere with an award of $34,350.00 after
a 15 year relationship.
Reference:
61.
Yackobeck v. Hartwig, [2000] O.J. No. 4458, (Ont. C.A.) at paragraph 8,
(Appellant’s BOA, Tab Q).
In the present case, the Court of Appeal distinguished these two cases and confirmed that
the results in both cases were driven by the facts of those cases. As stated by the Court of
Appeal, “Nasser does not stand for the general proposition that the “value received” and
“value survived” approaches can be blurred. Rather, the result in Nasser was driven by
the facts of the case.”
Reference:
Reasons for judgement of the Court of Appeal, paragraphs 8 and 9,
Appellant’s Record, pp. 64-65.
E.
Saskatchewan Court of Appeal Approves Use of Value Received
62.
In Mackay v. Nickason, Allbright J. acknowledged the two alternative remedies available
17
upon a finding of unjust enrichment, those being a monetary award based on the value of
services received and a constructive trust based on a value survived approach. Allbright J.
then made a monetary award calculated on the value of the services received by the
respondent and provided by the petitioner.
Reference:
63.
Mackay v. Nickason, [1997] CarswellSask 594 (Sask Q.B.), paragraphs 164
and 166, (Respondent’s BOA, Tab D).
On appeal, Sherstobitoff J.A. stated,
After careful consideration of all of the evidence, we can find no reversible
error in respect of the findings of the judge in respect of unjust enrichment
and the consequent monetary award. While we do not necessarily agree
with everything said in the reasons for decision, the judge acted on correct
principles and came to a very reasonable result. He took the law from the
leading authority, Peter v. Beblow ... and his findings of fact were
supported by the evidence.
Reference:
Mackay v. Nickason, [1999] CarswellSask 352, (SA C.A.) at paragraph 2,
(Respondent’s BOA, Tab E).
F.
Manitoba Court of Appeal Does Not Endorse Value Survived Approach
64.
McDougall v. Gesell Estate is the only decision of the Manitoba Court of Appeal dealing
with unjust enrichment in a family matter. However, that decision does not support the
use of a “value survived” approach in valuing a monetary award for unjust enrichment.
Reference:
65.
McDougall v. Gesell Estate, [2001] CarswellMan 2, (Man. C.A.),
(Appellant’s BOA, Tab E).
Huband J.A. stated:
...it is not necessary for this Court to undertake yet another review of the
legal authorities dealing with unjust enrichment, resulting trusts, and
constructive trusts of a non-resulting nature” and,
The learned trial judge, quite properly, made no determination as to
whether the plaintiff's claim should be satisfied by the declaration of
18
a constructive trust attaching to the lands in question or by a simple
money judgment. That decision will wait upon the master's report on
values.
Reference:
66.
McDougall v. Gesell Estate, Ibid, at paragraphs 1 and 25 (Appellant’s
BOA, Tab D).
In the trial decision, Beard J. stated:
If there is an unjust enrichment but no link between that unjust enrichment
and the acquisition, improvement and/or maintenance of the property of the
recipient, a monetary award is appropriate to compensate the claimant for
the unjust enrichment, which will usually be calculated on the basis of the
"value received" approach, taking into account the contribution to the
relationship of each party. ... If there is a link between the unjust
enrichment and the acquisition, improvement and/or maintenance of the
property of the claimant and/or the recipient, the value of that unjust
enrichment will usually be calculated on the basis of the "value survived"
approach. [emphasis added]
Reference:
67.
McDougall v. Gesell Estate, [1999] CarswellMan 342 (Man. Q.B.), at
paragraph 50(iii) and (iv), (Respondent’s BOA, Tab F).
The decision of Beard J. follows the majority decision in Peter v. Beblow and neither the
trial decision nor the Court of Appeal decision is inconsistent with the approach followed
by the Ontario Court of Appeal.
G.
Inconsistent Application of Value Added and Value Survived Approaches:
The British Columbia Court of Appeal
68.
Although the Appellant relies on decisions of the courts of British Columbia for the
proposition that the “value survived” approach can be applied regardless of whether the
appropriate remedy is a constructive trust or a monetary award, the reality is that the
British Columbia Court of Appeal has been inconsistent in its approach.
19
69.
In Clarkson v. McCrossen, Hinds J.A., writing for the majority, finds that the amount
awarded by the trial judge “...was neither inordinately high nor inordinately low as an
assessment of the "value received" for the services and relationships I have above
described and which were rendered by the respondent to Mr. McCrossen”.
Reference:
70.
Clarkson v. McCrossen, [1995] CarswellBC 39, (B.C.C.A.), paragraph 81,
(Respondent’s BOA, Tab B).
The passage from Clarkson v. McCrossen quoted in the Appellant’s Factum is from Chief
Justice MacEachern’s minority decision.
71.
In Pickelein v. Gillmore, although the B.C.C.A. endorsed the use of the “value survived”
approach, Huddart J.A. did state:
The value received approach will be appropriate where the unjust
enrichment is an uncompensated but measurable contribution to the
defendant's general estate that is not reflected in a particular property.
Reference:
72.
Pickelein v. Gillmore, [1997] CarswellBC 307, (B.C.C.A.), paragraph 43,
(Respondent’s BOA, Tab H).
In Pickelein, Huddart J.A. stated, “In Peter, the court preferred the "value survived"
approach over the "value received" approach in part because it accorded with what the
court considered would be the expectations of most parties, that they share in the wealth
generated by their partnership rather than receive compensation for services performed
during the relationship.”
Reference:
73.
Pickelein v. Gillmore, Supra at paragraph 34, (Respondent’s BOA, Tab H).
The passage above demonstrates a misunderstanding of this court’s position in Peter.
McLaughlin J. stated “In effect, the trial judge found the monetary award to be inadequate
on the grounds that it would not be paid and on the ground of a special contribution to the
property. These findings support the remedy of constructive trust in the property.” A
“value survived” approach was used in Peter because a constructive trust was imposed.
20
Reference:
74.
Peter v. Beblow, Supra at paragraph 32, (Appellant’s BOA, Tab J).
In Pickelein, Huddart J.A. also relies on the minority decision of MacEachern C.J.B.C. in
Clarkson v. McCrossen.
Reference:
Pickelein v. Gillmore, Supra at paragraph 34, (Respondent’s BOA, Tab H).
The Alberta Court of Appeal
75.
In Panara v. de Ascenzo the Alberta Court of Appeal relied on Pickelein, thus repeating
Huddart J.A.’s errors. Russell J.A. stated, “Huddart J.A. agreed with McEachern C.J. in
Clarkson v. McCrossen Estate ... that the comments in Peter were not meant to prohibit
courts from using a "value survived" approach in quantifying a monetary award where a
constructive trust remedy is inappropriate.”
Reference:
76.
Panara v. de Ascenzo, [2005] A.J. No. 95 (AB C.A.) at paragraph 55
(Appellant’s BOA, Tab H).
In Panara the Alberta Court of Appeal made a monetary award of half the increase in the
value of the restaurant, owned by Mr. de Ascenzo, over the period of cohabitation, stating,
... over the course of the relationship, the restaurant was a joint enterprise
from which the entire family benefited. Both parties received a pay cheque,
but most of their assets were held in the corporation, which realized a
substantial profit as a result of their joint efforts. Despite the difference
between the respective roles of the parties, considering the wife's hours of
work, her commitment to the success of the restaurant and her assumption
of a portion of the domestic duties, her contributions to the development
and success of the business suggest a degree of effort comparable to the
husband's. In this context, the greater earning power of the husband as chef
is irrelevant, when the wife was working the same hours, and both parties
received salaries reflecting their different positions. In these circumstances
the parties should equally share the increase in value of the restaurant
during the period of common law cohabitation. [emphasis added]
Reference:
Panara v. de Ascenzo, Supra, at paragraph 58, (Appellant’s BOA, Tab H).
21
H.
Property Rights in Common Law Relationships - Policy Issues
77.
The Respondent agrees that when one person is unjustly enriched, the other person is
entitled to compensation and that indirect or non-financial contributions, such as
household services, deserve legal recognition and need to be compensated. That is why
the Respondent did not appeal the trial judge’s findings that he had been enriched and that
the Appellant was entitled to compensation.
78.
Recognition that non-financial contributions need to be compensated does not require that
the “value added” approach be applied. The legal underpinning to unjust enrichment is
the principle of restitution, which requires that the aggrieved party be restored to the
position that he/she would have been in had he/she not provided the goods or services for
which he/she has not been compensated.
I.
Quantification of the Award
79.
The Appellant argues that “value survived” should be the preferred approach in most
cases, because the “value received” approach is impractical, demeaning and inconsistent
with the reasonable expectations of the parties.
80.
Cory J. stated, in Peter:
Here, the trial judge undertook the same type of quantum meruit analysis
employed in Herman v. Smith (1984), 42 R.F.L. (2d) 154 (Alta. Q.B.). That
is, he calculated the appellant's contributions on the basis of what the
respondent would have been required to pay a housekeeper. It has to be
noted that his calculations were favourable to the respondent in that he used
the amount paid prior to the commencement of the common law
relationship as a basis for the calculation and then reduced it by 50 percent
to allow for the value of the accommodation that the appellant received
from the respondent. This was a fair means of calculating the amount due
to the appellant. [emphasis added]
Reference:
Peter v. Beblow, Supra, at paragraph 104, (Appellant’s BOA, Tab J).
22
81.
In McDougall v. Gesell Estate, the trial judge stated:
The calculation of the unjust enrichment using the value received approach
is not difficult, as it is the amount the defendant would have had to pay for
the services on a purely business basis to any other person doing the work
that was provided by the claimant. The calculation using the value survived
approach is not so simple.” [emphasis added]
Reference:
82.
McDougall v. Gesell Estate, Supra, at paragraph 39.
Both the majority and minority decisions in Peter confirm that the extent of the interest
granted must be proportionate to each party’s contribution.
Reference:
83.
Peter v. Beblow, Supra at paragraphs 29 and 103, (Appellant’s BOA, Tab
J).
In Pickelein v. Gilmore, Huddart J. stated:
The facts of this case force a consideration of the relative contributions to
the current net worth of both parties, not only by them and by market
forces, but also by third parties. Without an examination of the total
contributions to the properties, a just award cannot be determined.”
[emphasis added].
Reference:
84.
Pickelein v. Gilmore, Supra at paragraph 32, (Respondent’s BOA, Tab H).
A proper application of the “value survived” approach in this case would require a careful
determination of contributions made to the growth of FastLane by Eric Kitchen (Mr.
Seguin’s founding partner), Terry Matthews (who purchased shares and negotiated
incentives from the Government of Nova Scotia) and others, during a period when Mr.
Seguin’s role in the company was diminished and marginalized as a result of Ms.
Vanasse’s demands that he reduce his hours and then move to Ottawa. Such an exercise
would be far more complicated than would be required by the use of a “value received”
approach.
23
85.
As to the Appellant’s assertion that use of the “value receive” approach is “demeaning”,
there is no such finding in any of the case law and it cannot be demeaning to require any
claimant (regardless of the cause of action) to lead evidence as to his/her damages.
J.
Provincial Spousal Support Legislation Considers Many of the Same Factors
86.
The remedies available to common law spouses are not restricted to those afforded
through the application of the principles of unjust enrichment. Provincial legislation
provides entitlement to spousal support, the determination of which involves many of the
same factors as unjust enrichment.
87.
For example, s. 33(8) of the Ontario Family Law Act provides:
An order for the support of a spouse should,
(a)
recognize the spouse's contribution to the relationship and the economic
consequences of the relationship for the spouse;
(b)
share the economic burden of child support equitably;
(c)
make fair provision to assist the spouse to become able to contribute to his or her
own support; and
(d)
relieve financial hardship, if this has not been done by orders under Parts I (Family
Property) and II (Matrimonial Home).
Reference:
88.
The Family Law Act, R.S.O. 1990, c. F.3, s. 33(8).
Section 33(9) requires that the court consider, amongst other factors
(l)
if the dependant is a spouse,
(ii)
the effect on the spouse's earning capacity of the responsibilities assumed
during cohabitation,
(v)
any housekeeping, child care or other domestic service performed by the
spouse for the family, as if the spouse were devoting the time spent in
performing that service in remunerative employment and were contributing
24
the earnings to the family's support,
(vi)
Reference:
the effect on the spouse's earnings and career development of the
responsibility of caring for a child
The Family Law Act, R.S.O. 1990, c. F.3, s. 33(9).
K.
Conclusion
89.
Elevating the “value survived” approach to the status of “the preferred approach”, as
advocated by the Appellant, would be a major change in the law that is not supported by
any of the case law. Moreover, it would have the effect of imposing a regime of property
on unmarried couples, ignoring their diverse reasons for deciding not to marry, contrary to
the principles enunciated by this Honourable Court in Walsh.
Reference:
90.
Nova Scotia (Attorney General) v. Walsh, Supra, (Respondent’s BOA, Tab
G).
It should not be forgotten that the Court of Appeal did not dismiss Ms. Vanasse’s claim
for an award for unjust enrichment. Rather the Court of Appeal ordered a new trial to
determine the amount of the monetary award using a “value received” approach.
Reference:
91.
Record, p. 66.
In addition, it must be remembered that Ms. Vanasse was awarded $5,422 per month for
child support and $3,800.00 per month for spousal support, neither of which were subject
to appeal.
ISSUE TWO:
The Trial Judge failed to consider relevant evidence of the
respondent`s contribution to the relationship
92.
In addressing the quantification of the monetary award, the Trial Judge stated, “... Mr.
25
Seguin was unjustly enriched and Ms. Vanasse deprived for three and one-half years of
their relationship, during which times Seguin often worked day and night and traveled
frequently while in Halifax.”
Reference:
93.
This finding is inconsistent with the Trial Judge’s earlier findings that:
a)
“After Ms. Vanasse arrived [in Halifax], Mr. Seguin tried to balance the demands
of his personal and work life. ... He was spending more time working at home and
traveling less, which created friction with other Fastlane executives...”;
b)
following the birth of their first child, “...Mr. Vanasse needed even more of Mr.
Seguin’s physical and emotional support”, with the result that Seguin “reluctantly
agreed to step down as CEO and President in September, 1997"; and
c)
“although Mr. Seguin was now traveling less, Ms. Vanasse continued to be lonely
and unhappy”.
Reference:
94.
Trial Reasons, paragraphs 19 to 23, Appellant’s Record p. 13.
The Trial Judge found that “After resigning as CEO, Mr. Seguin was no longer entitled to
receive company stock options.” However, she does not mention this when quantifying
the monetary award.
Reference:
95.
Trial Reasons, paragraphs 21, 137 and 141 and , Appellant’s Record pp.
13, 37 and 38.
Although acknowledging Mr. Seguin’s reluctance to move back to Ottawa, the displeasure
of the executives of Fastlane at this decision and the fact that Mr. Seguin worked 9:00 to
5:00 with minimal traveling after returning to Ottawa ( 2 years of the 3 ½ year period of
unjust enrichment), no mention is made of these facts when the Trial Judge addressed the
quantification of the monetary award.
Reference:
Trial Reasons, paragraphs 23 to 25, 137 and 141, Appellant’s Record pp.
13, 14, 37 and 38.
26
PART IV - COSTS
96.
The Respondent seeks his costs of this appeal, the motion for leave to appeal and in the
Courts below.
PART V - ORDER SOUGHT
97.
The Respondent requests that this Appeal be dismissed, with costs to the Respondent.
All of which is respectfully submitted.
Dated at Ottawa, March
, 2010
____________________________________
H. HUNTER PHILLIPS
Solicitor for the Respondent
27
PART VI - TABLE OF AUTHORITIES
TAB IN BOOK OF
AUTHORITIES
CASE NAME
CITED AT
PARAGRAPH
A
Bell v. Bailey [2001] CarswellOnt 2914,
(Ont. C.A.)
58
B
Clarkson v. McCrossen, [1995]
CarswellBC 39, (B.C.C.A.)
63, 70
C
Garland v. Consumer’s Gas Co., [2004] 1
S.C.R. 629
48
D
Mckay v. Nickason, [1997] CarswellSask
594 (Sask Q.B.)
62
E
Mckay v. Nickason, [1999] CarswellSask
353 (SA C.A.)
63
Appellant’s BOA,
Tab E
McDougall v. Gesell Estate, [2001]
CarswellMan 2, (Man. C.A.)
64, 65
F
McDougall v. Gesell Estate, [1999]
CarswellMan 342 (Man. Q.B.)
66, 81
Appellant’s BOA,
Tab F
Nasser v. Nasser-Mayer, [2000]
CarswellOnt 530 (Ont. C.A.)
59
G
Nova Scotia (Attorney General) v. Walsh,
[2002] 4 S.C.R. 325
40, 41, 42, 43, 44, 89
Appellant’s BOA,
Tab H
Panara v. de Ascenzo, [2005] A.J. No. 95
(AB C.A.)
75. 76
Appellant’s BOA,
Tab J
Peter v. Beblow, [1993] 1 S.C.R. 980
46, 47, 49 to 55, 57, 73,
80, 82
H
Pickelein v. Gillmore, [1997] CarswellBC
307, (B.C.C.A.)
71, 72, 74, 83
I
Roseneck v. Gowling (2002), 35 R.F.L. (5th)
177, (Ont. C.A.).
58
J
Wylie v. Leclair [2003], CarswellOnt 1996,
(Ont. C.A.)
58
28
Appellant’s BOA,
Tab Q,
Yackobeck v. Hartwig, [2000] O.J. No.
4458, (Ont. C.A.)
29
PART VII - RELEVANT STATUTORY PROVISIONS
A.
The Family Law Act, R.S.O. 1990, c. F.3, as amended, ss. 1, 5 and 33:
Definitions
1. 1. (1) In this Act,
“child” includes a person whom a parent has demonstrated a settled intention to treat as a child of
his or her family, except under an arrangement where the child is placed for valuable
consideration in a foster home by a person having lawful custody; (“enfant”)
“child support guidelines” means the guidelines established by the regulations made under
subsections 69 (2) and (3); (“lignes directrices sur les aliments pour les enfants”)
“cohabit” means to live together in a conjugal relationship, whether within or outside marriage;
(“cohabiter”)
“court” means the Ontario Court of Justice, the Family Court of the Superior Court of Justice or
the Superior Court of Justice; (“tribunal”)
“domestic contract” means a domestic contract as defined in Part IV (Domestic Contracts);
(“contrat familial”)
“parent” includes a person who has demonstrated a settled intention to treat a child as a child of
his or her family, except under an arrangement where the child is placed for valuable
consideration in a foster home by a person having lawful custody; (“père ou mère”)
“paternity agreement” means a paternity agreement as defined in Part IV (Domestic Contracts);
(“accord de paternité”)
“spouse” means either of two persons who,
(a) are married to each other, or
(b) have together entered into a marriage that is voidable or void, in good faith on the part of a
person relying on this clause to assert any right. (“conjoint”) R.S.O. 1990, c. F.3, s. 1 (1); 1997, c.
20, s. 1; 1999, c. 6, s. 25 (1); 2005, c. 5, s. 27 (1, 2); 2006, c. 19, Sched. C, s. 1 (1, 2, 4).
Equalization of net family properties
5. (1) When a divorce is granted or a marriage is declared a nullity, or when the spouses are
separated and there is no reasonable prospect that they will resume cohabitation, the spouse
whose net family property is the lesser of the two net family properties is entitled to one-half the
difference between them. R.S.O. 1990, c. F.3, s. 5 (1).
Order for support
33. (1) A court may, on application, order a person to provide support for his or her dependants
and determine the amount of support. R.S.O. 1990, c. F.3, s. 33 (1).
30
Purposes of order for support of spouse
(8) An order for the support of a spouse should,
(a) recognize the spouse’s contribution to the relationship and the economic consequences of the
relationship for the spouse;
(b) share the economic burden of child support equitably;
(c) make fair provision to assist the spouse to become able to contribute to his or her own support;
and
(d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property)
and II (Matrimonial Home). R.S.O. 1990, c. F.3, s. 33 (8); 1999, c. 6, s. 25 (5); 2005, c. 5, s. 27
Determination of amount for support of spouses, parents
(9) In determining the amount and duration, if any, of support for a spouse or parent in relation to
need, the court shall consider all the circumstances of the parties, including,
(a) the dependant’s and respondent’s current assets and means;
(b) the assets and means that the dependant and respondent are likely to have in the future;
(c) the dependant’s capacity to contribute to his or her own support;
(d) the respondent’s capacity to provide support;
(e) the dependant’s and respondent’s age and physical and mental health;
(f) the dependant’s needs, in determining which the court shall have regard to the accustomed
standard of living while the parties resided together;
(g) the measures available for the dependant to become able to provide for his or her own support
and the length of time and cost involved to enable the dependant to take those measures;
(h) any legal obligation of the respondent or dependant to provide support for another person;
(i) the desirability of the dependant or respondent remaining at home to care for a child;
(j) a contribution by the dependant to the realization of the respondent’s career potential;
(k) Repealed: 1997, c. 20, s. 3 (3).
(l) if the dependant is a spouse,
(i) the length of time the dependant and respondent cohabited,
31
(ii) the effect on the spouse’s earning capacity of the responsibilities assumed during cohabitation,
(iii) whether the spouse has undertaken the care of a child who is of the age of eighteen years or
over and unable by reason of illness, disability or other cause to withdraw from the charge of his
or her parents,
(iv) whether the spouse has undertaken to assist in the continuation of a program of education for
a child eighteen years of age or over who is unable for that reason to withdraw from the charge of
his or her parents,
(v) any housekeeping, child care or other domestic service performed by the spouse for the
family, as if the spouse were devoting the time spent in performing that service in remunerative
employment and were contributing the earnings to the family’s support,
(v.1) Repealed: 2005, c. 5, s. 27 (12).
(vi) the effect on the spouse’s earnings and career development of the responsibility of caring for
a child; and
(m) any other legal right of the dependant to support, other than out of public money. R.S.O.
1990, c. F.3, s. 33 (9); 1997, c. 20, s. 3 (2, 3); 1999, c. 6, s. 25 (6-9); 2005, c. 5, s. 27 (10-13).
Loi sur le droit de la famille
1. L.R.O. 1990, CHAPITRE F.3
Définitions
2.1. (1) Les définitions qui suivent s’appliquent à la présente loi.
«accord de paternité» Accord de paternité au sens de la partie IV (Contrats familiaux). («paternity
agreement»)
«cohabiter» Vivre ensemble dans une union conjugale, qu’il y ait eu mariage ou non. («cohabit»)
«conjoint» L’une ou l’autre de deux personnes qui, selon le cas :
a) sont mariées ensemble;
b) ont contracté, de bonne foi selon toute personne qui se fonde sur le présent alinéa pour faire
valoir un droit quel qu’il soit, un mariage nul de nullité relative ou absolue. («spouse»)
«contrat familial» Contrat familial au sens de la partie IV (Contrats familiaux). («domestic
contract»)
«enfant» S’entend en outre de la personne dont le père ou la mère a manifesté l’intention bien
arrêtée de la traiter comme s’il s’agissait d’un enfant de sa famille, sauf si cette personne est
placée, contre valeur, dans un foyer d’accueil par celui qui en a la garde légitime. («child»)
«lignes directrices sur les aliments pour les enfants» Les lignes directrices qui sont établies par les
32
règlements pris en application des paragraphes 69 (2) et (3). («child support guidelines»)
«père ou mère» S’entend en outre de la personne qui a manifesté l’intention bien arrêtée de traiter
un enfant comme s’il s’agissait d’un enfant de sa famille, sauf si elle a accueilli, contre valeur,
dans un foyer d’accueil un enfant qui y est placé par celui qui en a la garde légitime. («parent»)
«tribunal» Cour de justice de l’Ontario, Cour de la famille de la Cour supérieure de justice ou
Cour supérieure de justice. («court») L.R.O. 1990, chap. F.3, par. 1 (1); 1997, chap. 20, art. 1;
1999, chap. 6, par. 25 (1); 2005, chap. 5, par. 27 (1) et (2); 2006, chap. 19, annexe C, par. 1 (1),
(2) et (4).
Égalisation des biens familiaux nets
5. (1) Si un jugement conditionnel de divorce est prononcé, que le mariage est déclaré nul ou que
les conjoints sont séparés et qu’il n’existe aucune perspective raisonnable qu’ils cohabitent de
nouveau, le conjoint qui possède le moins de biens familiaux nets a droit à la moitié de la
différence entre les biens familiaux nets de son conjoint et les siens. L.R.O. 1990, chap. F.3, par.
5 (1).
Décès du conjoint
(2) Si un conjoint décède et que ses biens familiaux nets excèdent ceux du conjoint survivant, ce
dernier a droit à la moitié de la différence entre eux. L.R.O. 1990, chap. F.3, par. 5 (2).
Ordonnance alimentaire
33. (1) Le tribunal peut, à la suite d’une requête, ordonner à une personne de fournir des aliments
à ses personnes à charge, et fixer le montant de ces aliments. L.R.O. 1990, chap. F.3, par. 33 (1).
Buts de l’ordonnance d’aliments à l’égard d’un conjoint
1. (8) L’ordonnance alimentaire à l’égard d’un conjoint devrait :
a) reconnaître l’apport du conjoint à l’union et les conséquences économiques de l’union pour le
conjoint;
b) distribuer équitablement le fardeau économique que représentent les aliments à fournir à un
enfant;
c) comprendre des dispositions équitables en vue d’aider le conjoint à devenir capable de subvenir
à ses propres besoins;
d) alléger les difficultés financières, si les ordonnances rendues en vertu de la partie I (Biens
familiaux) et de la partie II (Foyer conjugal) ne l’ont pas fait. L.R.O. 1990, chap. F.3, par. 33 (8);
1999, chap. 6, par. 25 (5); 2005, chap. 5, par. 27 (9).
Calcul du montant des aliments à fournir au conjoint ou au père ou à la mère
33
(9) Dans le calcul du montant et de la durée des aliments éventuellement dus en fonction des
besoins à fournir à un conjoint ou au père ou à la mère, le tribunal tient compte de la situation
globale des parties, notamment des points suivants :
a) les ressources et l’actif actuels de la personne à charge et de l’intimé;
b) les ressources et l’actif dont disposeront vraisemblablement la personne à charge et l’intimé
dans l’avenir;
c) la capacité de la personne à charge de subvenir à ses propres besoins;
d) la capacité de l’intimé de fournir des aliments;
e) l’âge et la santé physique et mentale de la personne à charge et de l’intimé;
f) les besoins de la personne à charge, compte tenu du niveau de vie habituel lorsque les parties
résidaient ensemble;
g) les mesures à la disposition de la personne à charge pour qu’elle devienne capable de subvenir
à ses propres besoins, et le temps et l’argent nécessaires à la prise de ces mesures;
h) toute autre obligation légale pour l’intimé ou la personne à charge de fournir des aliments à une
autre personne;
i) l’opportunité que la personne à charge ou l’intimé reste à la maison pour prendre soin d’un
enfant;
j) l’apport de la personne à charge à la réalisation du potentiel professionnel de l’intimé;
k) Abrogé : 1997, chap. 20, par. 3 (3).
l) si la personne à charge est un conjoint :
(i) la durée de sa cohabitation avec l’intimé,
(ii) l’effet des responsabilités dont le conjoint s’est chargé pendant la cohabitation sur sa capacité
de gain,
(iii) les soins que le conjoint a pu fournir à un enfant qui a dix-huit ans ou plus et qui est
incapable, en raison d’une maladie, d’une invalidité ou pour un autre motif, de se soustraire à la
dépendance parentale,
(iv) l’aide que le conjoint a pu apporter à la continuation de l’éducation d’un enfant de dix-huit
ans ou plus qui est incapable pour cette raison de se soustraire à la dépendance parentale,
(v) les travaux ménagers ou domestiques que le conjoint a faits pour la famille, ainsi que les soins
donnés aux enfants, comme si le conjoint consacrait ce temps à un emploi rémunéré et apportait
les gains de cet emploi au soutien de la famille,
(v.1) Abrogé : 2005, chap. 5, par. 27 (12).
(vi) l’effet, sur les gains du conjoint et sur son développement professionnel, de la responsabilité
qui consiste à prendre soin d’un enfant;
m) les autres droits alimentaires de la personne à charge, sauf ceux qui seraient prélevés sur les
deniers publics. L.R.O. 1990, chap. F.3, par. 33 (9); 1997, chap. 20, par. 3 (2) et (3); 1999, chap.
34
6, par. 25 (6) à (9); 2005, chap. 5, par. 27 (10) à (13).
B.
The Family Property Act, S.S. 2000, c. 70, Amended by 2001, c. 51, s. 2(1).
Saskatchewan Current to Gazette Vol. 106:3 (January 22, 2010)
2. Interpretation
2(1) In this Act:
"spouse" means either of two persons who:
(a) at the time an application is made pursuant to this Act, is legally married to the other or is
married to the other by a marriage that is voidable and has not been voided by a judgment of
nullity;
(b) has, in good faith, gone through a form of statutory marriage with the other that is void, where
they are cohabiting or have cohabited within the two years preceding the making of an application
pursuant to this Act; or
(c) is cohabiting or has cohabited with the other person as spouses continuously for a period of
not less than two years;
and includes:
(d) a surviving spouse who continues or commences an application pursuant to section 30 and
who was the spouse, within the meaning of clause (a), (b) or (c), of the deceased spouse on the
day of the spouse's death; and
(e) where the applicant is a spouse within the meaning of clause (b), the other party to the void
marriage;
LOI DE 1997 SUR LES BIENS MATRIMONIAUX ch. F-6,3
Définitions
2(1) Les définitions qui suivent s'appliquent à la présente loi.
35
«conjoint» Soit l'une ou l'autre de deux personnes qui, selon le cas :
a) au moment où une requête est présentée en vertu de la présente loi, sont légalement mariées
ensemble ou ont contracté un mariage qui est annulable et qui n'a pas fait l'objet d'un jugement de
nullité;
b) ont de bonne foi contracté ensemble un mariage légal qui est nul, mais cohabitent ou ont
cohabité durant les deux ans précédant la requête présentée en vertu de la présente loi;
c) cohabitent ou ont cohabité comme conjoints de façon continue pendant au moins deux ans; la
présente définition comprend également:
d) le conjoint survivant qui continue ou introduit une requête en vertu de l'article 30 et qui était,
au sens de l'alinéa a), b) ou c), le conjoint du conjoint défunt le jour de son décès;
e) dans le cas où la partie requérante est conjoint au sens de l'alinéa b), l'autre partie au mariage
nul. ("spouse")
C.
The Family Property Act, S.M. 2002, c. 48, s 2.1;
Manitoba Current to Gazette Vol. 138:43 (October 24, 2009)
DIVISION 1.1
1. APPLICATION TO COMMON-LAW PARTNERS
Common-law partners
2.1(1) Except as otherwise provided in this Act, this Act applies to all common-law partners,
whether they commenced cohabitation before or after the coming into force of this section, and
whether cohabitation began within Manitoba or in a jurisdiction outside Manitoba,
(a) if the habitual residence of both common-law partners is in Manitoba;
(b) where each of the common-law partners has a different habitual residence, if the last common
habitual residence of the common-law partners was in Manitoba; or
(c) where each of the common-law partners has a different habitual residence and the commonlaw partners have not established a common habitual residence since the commencement of their
common-law relationship, if the habitual residence of both at the time that the common-law
relationship commenced was in Manitoba.
36
Common-law partners living separate and apart
2.1(2) The provisions of this Act respecting an application for an accounting and equalization of
the assets of common-law partners during the lives of the common-law partners do not apply to
parties who cohabited in a conjugal relationship for at least three years before the coming into
force of this section but who were living separate and apart from each other on the day this
section comes into force, unless those common-law partners, after that date, resume cohabitation
and
(a) register their relationship under section 13.1 of The Vital Statistics Act; or
(b) continue to cohabit for a period of at least 90 days after the day this section comes into force.
Loi sur les Biens Familiaux
SECTION 1.1
1. APPLICATION DE LA LOI AUX CONJOINTS DE FAIT
Conjoints de fait
2.1(1) Sous réserve des exceptions prévues ailleurs dans la présente loi, celle-ci s'applique à tous
les conjoints de fait, que la cohabitation ait débuté avant ou après l'entrée en vigueur du présent
article, au Manitoba ou ailleurs :
a) si le lieu de résidence habituelle des deux conjoints de fait se trouve au Manitoba;
b) si le dernier lieu de résidence commune habituelle des conjoints de fait se trouvait au
Manitoba, lorsque chaque conjoint de fait a un lieu de résidence habituelle différent;
c) si le lieu de résidence habituelle des deux conjoints de fait se trouvait au Manitoba au début de
leur union de fait, lorsque chaque conjoint de fait a un lieu de résidence habituelle différent et que
les deux conjoints de fait n'ont pas établi de lieu de résidence commune habituelle depuis le début
de leur union de fait.
Conjoints de fait vivant séparés l'un de l'autre
2.1(2) Les dispositions de la présente loi concernant toute demande de reddition de comptes et de
compensation des éléments d'actif des conjoints de fait du vivant de ceux-ci ne s'appliquent pas
aux conjoints de fait qui ont vécu dans une relation maritale pendant au moins trois ans avant
l'entrée en vigueur du présent article mais qui vivaient séparés l'un de l'autre à la date d'entrée en
vigueur du présent article, sauf si, après cette date, ils reprennent la cohabitation et, selon le cas :
a) font enregistrer leur union de fait en vertu de l'article 13.1 de la Loi sur les statistiques de l'état
civil;
b) continuent de vivre ensemble pendant une période d'au moins 90 jours après cette date.
L.M. 2002, c. 48, art. 16.

Respondent David-Seguin

Transcription

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