Pope v. Pope

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  • Date: 2017

Pope v. Pope

42 O.R. (3d) 514

[1999] O.J. No. 242

Docket No. C27204

Court of Appeal for Ontario

Osborne, Charron and Moldaver JJ.A.

February 3, 1999

 

 

Family law — Property — Equalization of net family property

— Unequal division — Unconscionability — Parties living together for almost 14 years before marriage and for less than two years after marriage — “Cohabitation” for purposes of s. 5(6)(e) of Family Law Act including cohabitation before marriage — Equal division of difference between parties’ net family properties not unconscionable because of length of cohabitation — Fact that husband owned matrimonial home at date of marriage not rendering equal division unconscionable

— Family Law Act, R.S.O. 1990, c. F.3, s. 5(6)(e).

Family law — Support — Spousal support — Parties cohabiting for almost 16 years — Wife working at home throughout most of that period — Wife suffering from mental illness which limited her employability — Husband earning

$50,000 per annum — Non-time-limited support order of $1,400 per month not unreasonable.

The parties lived together for almost 14 years before their marriage and for less than two years after the marriage.

Throughout most of that period, the wife worked at home. At the time of separation, the husband owned the matrimonial home, which he had purchased before he and the wife began living together and which had a net value of $100,000. He had savings and investments of about $50,000 and was free of debt. The wife suffered from a major affective disorder which made it unlikely that she would be able to work in the future. The husband was ordered to make a net equalization payment of $49,276.76 and to pay spousal support of $1,400 per month. He appealed, arguing that the trial judge erred in not finding that an equal division of the difference between the parties’ net family properties was unconscionable. He relied in particular on s. 5(6)(e) of the Family Law Act, which provides that a court may order an unequal division of net family property if the court is of the opinion that             equalization would be unconscionable, having regard to the fact that a spouse would otherwise receive an equalization payment that is “disproportionately large in relation to a period of cohabitation of less than five years”. It was the husband’s position that “cohabitation” in s. 5(6)(e) of the Family Law Act means cohabitation after marriage. He also sought to vary the spousal support order.

 

Held, the appeal should be dismissed.

 

“Cohabitation” for the purposes of s. 5(6)(e) of the Act includes cohabitation prior to marriage. While the statutory definition of “spouse” requires the parties to be married before either of them can obtain an equalization payment under s. 5 of the Act, this eligibility factor is not determinative of the meaning to be given to “cohabitation” in s. 5(6)(e). There is no reason not to import the statutory definition of cohabit in s. 1(1) of the Act into s. 5(6)(e).

The fact that the husband owned the matrimonial home as of the date of the marriage could not reasonably be relied upon in determining whether an equal division of the net family property difference was unconscionable unless one were to conclude that the provision of the Family Law Act which required the husband to include the value of the matrimonial home in his net family property was itself unconscionable.

The $1,400 per month spousal support order was not unreasonable in the circumstances. The wife was economically disadvantaged as a result of her marriage and the extensive period of cohabitation that preceded it. The trial judge’s finding that the wife’s capacity to secure and maintain meaningful employment was limited was supported by the evidence. The trial judge did not err in not making a time- limited spousal support order. The wife’s career options were manifestly restricted by her age and her impaired health. There was no reasonably identifiable time by which one might conclude that she would be self-sufficient or even earning income that would reduce her need for spousal support.

 

Stewart v. Stewart (1990), 7 O.R. (3d) 426, 39 R.F.L. (3d) 88 (Gen. Div.), not folld

Reeson v. Kowalik (1991), 36 R.F.L. (3d) 396 (Ont. Gen. Div.), consd

 

Other cases referred to

 

Campbell v. Campbell (1996), 21 R.F.L. (4th) 283 (Ont. C.A.); Kessel v. Kessel (1993), 1 R.F.L. (4th) 324 (Ont. Gen. Div.); Krauss v. Krauss (1991), 33 R.F.L. (3d) 233 (Ont. C.A.); Moge v. Moge, [1992] 3 S.C.R. 813, 81 Man. R. (2d) 161, 99 D.L.R. (4th) 456, 145 N.R. 1, [1993] 1 W.W.R. 481, 43 R.F.L. (3d) 345; Morguard Properties Ltd. v. Winnipeg (City), [1983] 2 S.C.R. 493, 25 Man. R. (2d) 302, 3 D.L.R. (4th) 1, 50 N.R. 264, [1984] 2 W.W.R. 97, 24 M.P.L.R. 218; Silver v. Silver (1985), 54 O.R. (2d) 591, 13 O.A.C. 16, 49 R.F.L. (2d) 148 (C.A.); Smith v. Smith (1998), 55 B.C.L.R. (3d) 99, 39 R.F.L. (4th) 88 (B.C.S.C.) Statutes referred to Family Law Act, R.S.O. 1990, c. F.3, ss. 1(1) “cohabit”, “spouse”, 5(6)(e) Family Law Reform Act, R.S.O. 1980, c. 152, s. 4(4)(b)

Authorities referred to Sullivan, Driedger on the Construction of Statutes, 3rd ed. (Toronto: Butterworths, 1994), p. 159

 

APPEAL from a judgment ordering spousal support and an equalization payment.

Hamoody Hassan, for appellant.

D. Smith, for respondent.

 

The judgment of the court was delivered by

 

OSBORNE J.A.: — Mr. Pope appeals the judgment of the Honourable Mr. Justice W.A. Jenkins dated February 12, 1997. By that judgment, he was ordered to pay $1,400 per month indexed spousal support and an equalization payment of $55,776.76, of which $6,500 was paid before trial. Thus, the net equalization payment was $49,276.76.

 

Overview

 

Mr. Pope contends that the trial judge erred in not finding that an equal division of the difference between the parties’ net family properties was unconscionable. He relies, in particular, on s. 5(6)(e) of the Family Law Act, R.S.O. 1990, c. F.3, which provides that a court may order an unequal division of net family property if the court is of the opinion that equalization would be unconscionable, having regard to the fact that a spouse would otherwise receive an equalization payment that is “disproportionately large in relation to a period of cohabitation that is less than five years.”

There is no doubt that Mr. and Mrs. Pope cohabited for less than five years after their marriage. If “cohabitation”, as referred to in s. 5(6)(e) limits cohabitation to post-marriage cohabitation, as Mr. Pope submits it does, that subsection is engaged and should be considered in determining if an equal division of the net family properties is unconscionable. If, however, cohabitation in s. 5(6)(e) includes cohabitation before marriage, s. 5(6)(e) would not provide a basis upon which to conclude that an equalization payment representing one-half the difference between Mr. and Mrs. Pope’s net family properties is unconscionable, since Mr. and Mrs. Pope cohabited for many years before they married.

There are conflicting trial judgments dealing with the interpretation of s. 5(6)(e) of the Family Law Act. Although I think that, in the circumstances, the trial judge was correct in concluding that there was no basis upon which to find unconscionability, I propose, nonetheless, to consider the meaning to be given to “cohabitation” as it appears in s. 5(6) (e) of the Family Law Act.

Mr. Pope also contends that the trial judge erred in making the spousal support order that he did. He seeks to vary the $1,400-a-month spousal support order by substituting one of the following spousal support orders, one of which he contends should replace the spousal support order made by the trial judge:

(a)$750 per month, not time limited;

(b)  lump-sum spousal support of $36,000; or

(c)a time-limited spousal support, with spousal support to end in November 2000.

 

The Evidence

 

Mr. and Mrs. Pope began to live together in 1978 when Mr. Pope was 26 and Mrs. Pope 32 years of age. They had one child together, Adam, born September 15, 1979. They married on November 6, 1992 after almost 14 years of pre-marital cohabitation. They separated on September 18, 1994.

Both Mr. and Mrs. Pope have one child from previous relationships. Mr. Pope’s daughter, Lisa, was born on September 30, 1972. She was not dependent on either Mr. or Mrs. Pope at the time of trial. Mrs. Pope’s daughter, Tara, was born on January 3, 1974 and was also not a dependent child at the time of trial.

Mr. and Mrs. Pope’s son, Adam, lived with Mrs. Pope following the parties’ separation in September 1994. Before trial, he was convicted of assaulting Mrs. Pope and possession of narcotics and at the time of trial, he resided with Mr. Pope.

When the parties commenced cohabitation in 1978, Mr. Pope was employed with his family company as a plumber. That employment continued to the time of trial. Mrs. Pope was employed at the Federal Business Development Bank as a receptionist when she and Mr. Pope commenced cohabitation.

Mr. and Mrs. Pope chose to provide their children with full- time home care with the result that it was agreed that Mrs.

Pope would not return to work outside the home after Adam was born. When the parties separated in 1994, she had no income or assets.

At the time of separation Mr. Pope owned the matrimonial home having a net value of $100,000. He purchased the matrimonial home in 1978, before he and Mrs. Pope began to live together. He had savings and investments of about $50,000 and he was free of debt.

Throughout the relationship, Mrs. Pope suffered from a mental illness. I see no need to consider Mrs. Pope’s medical problems in any detail. Her psychiatrist, Dr. Mountain, diagnosed her condition as a “major affective disorder”. Her symptoms impaired all of her life skills. Dr. Mountain stated that it was not possible to provide a prognosis as to when she might recover from her illness. Mr. Pope admitted at trial that he did not expect that Mrs. Pope would be able to work in the future.

The trial judge found that Mrs. Pope helped manage and operate four income properties that Mr. Pope owned. The work included cleaning, painting, garden maintenance, collecting cheques and keeping financial records. Mr. Pope claimed in his testimony that he was responsible for collecting the rents 90 per cent of the time.

In 1985, Mr. Pope established Lambeth Sports, a small sporting goods business. Mrs. Pope assisted him in the operation of Lambeth Sports for about three and one-half years. She assumed managerial responsibilities at Lambeth Sports after the existing manager quit suddenly. She earned about $250 a week. That money was spent on the family.

Mrs. Pope also assisted her husband in a business, C.A.F. Marketing Inc., which he started in about 1993. She testified that she helped Mr. Pope run the business by planning his trips and meetings, doing billings and answering the telephone.

After the parties separated in September 1994 Mrs. Pope had to apply for welfare which she received in December 1994. In January 1995, Browne J. made an interim child support order of $500 a month and an interim spousal support order in the same amount. He also gave Mrs. Pope interim custody of Adam. In May 1995, Flinn J. varied the interim child and spousal support orders to $1,500 a month. That figure covered both interim child and spousal support. The $1,500 a month interim child and spousal support order was reduced to $1,000 a month in January 1996 when Adam left Mrs. Pope and began to live with Mr. Pope. In his judgment, the trial judge expunged $5,500 of accumulated interim support arrears. Mrs. Pope has not appealed from that part of the trial judgment.

At the time of trial, Mr. Pope was a 45-year-old plumber who worked in his family plumbing business, R.W. Pope and Sons Plumbing. His average income over the seven years preceding the trial was about $50,000 per year. I see no need to review the evidence concerning Mr. Pope’s income since the trial judge’s finding that he was earning about $50,000 a year is supported by the evidence and no issue is taken with it.

At trial, Mrs. Pope filed a financial statement which included a monthly budget of $1,925. She sought spousal support of $1,700 a month on the premise that she would purchase a modest condominium with her equalization payment. Her list of expenses totalled $1,368 a month. This included medication of $260 per month. In the end, as I have said, she was awarded spousal support of $1,400 a month.

After assessing the entirety of the relationship of both Mr. and Mrs. Pope, the trial judge concluded that Mrs. Pope made significant contributions to the “family endeavours”.

The Equalization Payment

 

Mr. Pope submits that the trial judge was wrong in not making an unequal division of the difference between the value of his net family property and that of Mrs. Pope. He submits that an equal division is unconscionable in the circumstances of their relationship. As I have said, he relies in particular on s. 5(6)(e) of the Family Law Act as the basis of his unequal division position. On the broader issue of unconscionability, in addition to the short duration of the marriage, he emphasizes that he purchased the matrimonial home before he married Mrs. Pope; indeed, he purchased the matrimonial home before he and Mrs. Pope began to live together.

 

The relevant parts of s. 5 of the Family Law Act are:

 

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.

. . . . .

(6)  The court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable, having regard to,

(a)  a spouse’s failure to disclose to the other spouse debts or other liabilities existing at the date of the marriage;

(b)  the fact that debts or other liabilities claimed in reduction of a spouse’s net family property were incurred recklessly or in bad faith;

(c)  the part of the spouse’s net family property that consists of gifts made by the other spouse;

(d)  a spouse’s intentional or reckless depletion of his or her net family property;

(e)  the fact that the amount a spouse would otherwise receive under subsection (1), (2) or (3) is disproportionately large in relation to a period of cohabitation that is less than five years;

(f)  the fact that one spouse has incurred a disproportionately larger amount of debts or other liabilities than the other spouse for the support of the family;

(g)  a written agreement between the spouses that is not a domestic contract; or

(h)  any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property.

 

Mr. Pope contends that he and Mrs. Pope “cohabited” for less than five years if cohabitation is measured from the date of the marriage (November 6, 1992) to the date of separation (September 18, 1994). Thus, he submits that s. 5(6)(e) of the Family Law Act is engaged and the less-than-two-year period of cohabitation should be taken into account in considering whether an equal division of the difference between the parties’ net family properties is unconscionable. He relies upon the judgment of Fleury J. in Stewart v. Stewart (1990), 7 O.R.  (3d) 426, 39 R.F.L. (3d) 88 (Ont. Gen. Div.) in support of his interpretation of s. 5(6)(e) of the Family Law Act.

Mrs. Pope contends that the interpretation of s. 5(6)(e) suggested by Mr. Pope is too narrow and that “cohabitation” as referred to in s. 5(6)(e) should be interpreted in a manner consistent with the Family Law Act definition of “cohabit”.

Section 1(1), the general definition section of the Family Law Act, defines “cohabit” in this way:

1(1) In this Act,

. . . . .

“cohabit” means to live together in a conjugal relationship, whether within or outside marriage;

Mrs. Pope submits that if “cohabitation” in s. 5(6)(e) covers that period during which Mrs. Pope lived together in a conjugal relationship, s. 5(6)(e) is not engaged since the relevant period of cohabitation would include the 14-year period before the parties married in 1992.

There are conflicting trial decisions on the issue whether “cohabitation” for the purposes of s. 5(6)(e), includes cohabitation before the marriage. As I noted earlier, Mr. Pope relies upon the decision of Fleury J. in Stewart v. Stewart. In Stewart, Fleury J. noted that the division of the value of net family properties established by Part I of the Family Law Act is only relevant to spouses as defined in the Family Law Act.

Section 1(1) of the Family Law Act defines “spouse” in this way:

“spouse” means either of a man and woman 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 the person asserting a right under this Act.

He relied on this eligibility provision in holding that only cohabitation after marriage counts for purposes of the calculation required by s. 5(6)(e).

Feldman J. reached a different conclusion in Reeson v. Kowalik (1991), 36 R.F.L. (3d) 396 (Ont. Gen. Div.). After she resolved conflicting evidence about the date when the parties began to cohabit, Feldman J. concluded that “cohabitation” included the period during which the parties cohabited before they married. Although she found that s. 5(6)(e) applied as the period of cohabitation (including pre-marital cohabitation) was less than five years, Feldman J. looked at the parties’ “entire relationship” in concluding that an equal division of the difference in the parties’ property was not unconscionable.

In Kessel v. Kessel (1993), 1 R.F.L. (4th) 324 (Ont. Gen. Div.), Dilks J. found no reason to disagree with Fleury J.’s analysis in Stewart of the meaning to be given to “cohabitation” in s. 5(6)(e). However, when he went on to consider the broader issue of unconscionability he adopted Feldman J.’s approach in Reeson v. Kowalik (at pp. 336-37):

I am much indebted to Fleury J. for his careful analysis of the matter in Stewart v. Stewart [cite] and I am unable to disagree with his conclusion that cohabitation in s. 5(6)(e) refers to cohabitation within the marriage.

. . . . .

. . . When one reflects that no resort, however, could have been had to the subsection [s. 5(6)(e)] if the cohabitation in this case had lasted for another five and a third months, it is not easy to conclude that an equalization payment of slightly more than $30,000 to the wife would be disproportionate to the length of cohabitation. Even if it were, the division could not be characterized as unconscionable when one takes into account, as well, the period of cohabitation before marriage (see Reeson v. Kowalik [cite] where the cohabitation within, as well as prior to, marriage was still less than five years, but where Feldman J. took into account the parties’ prior non-cohabitational relationship in deciding that an equalization payment of over $100,000 was not unconscionable). (Emphasis added)

For the reasons that follow, I disagree with Fleury J.’s conclusion in Stewart, and find that “cohabitation” for the purposes of s. 5(6)(e) includes cohabitation prior to marriage. I agree with Fleury J.’s observation that the statutory definition of “spouse” requires the parties to be married before either of them can obtain an equalization payment under s. 5 of the Family Law Act. I do not, however, think that this eligibility factor is determinative of the meaning to be given to “cohabitation” in s. 5(6)(e). I see no reason not to import the statutory definition (s. 1(1)) of “cohabit” into s. 5(6) (e). If that is done, cohabitation in s. 5(6)(e) would include cohabitation “within or outside marriage”.

I do not think that that part of the statutory definition of cohabit — “within or outside marriage” — is mere surplusage, as Fleury J. held in Stewart. It is a fundamental principle of statutory interpretation that where possible meaning should be attributed to all of the words that the legislature has chosen to use. In Ruth Sullivan, Driedger on the Construction of Statutes, 3rd ed. (Toronto: Butterworths, 1994), the author sets out the principle in this way, under the title, “The Presumption Against Tautology” (at p. 159):

It is presumed that the legislature avoids superfluous or meaningless words, that it does not pointlessly repeat itself or speak in vain. Every word in a statute is presumed to make sense and to have a specific role to play in advancing the legislative purpose.

 

(Emphasis added)

 

Estey J. in Morguard Properties Ltd. v. Winnipeg (City), [1983] 2 S.C.R. 493, 3 D.L.R. (4th) 1 made the same point. He said at p. 9:

Some meaning must be attributed to the word . . . as otherwise it is mere surplusage, and courts in the application of the principles of statutory construction endeavour, where possible, to attribute meaning to each word employed by the Legislature in the statute.

There is, in my view, no reason to ascribe a meaning to the noun “cohabitation” as it appears in s. 5(6)(e), that differs from the definition of the verb “cohabit” as set out in the general definition section of the Family Law Act. The legislature chose to define “cohabit” to include that period of cohabitation (living together in a conjugal relationship), before the marriage. I would not interpret the word “cohabitation” in s. 5(6)(e) more narrowly.

Although not determinative of the issue, I note that s. 4(4)

(b) of the Family Law Reform Act, R.S.O. 1980, c. 152, which provided for the unequal division of family assets, specifically referred to “the duration of the period of cohabitation under the marriage” added). It seems to me that had the legislature, in drafting the Family Law Act, intended that cohabitation be limited to cohabitation under the marriage, or within marriage to use Family Law Act terminology, the legislature would have said so, as it did in s. 4(4)(b) of the Family Law Reform Act.

I should add that, in my opinion, the fact that Mr. Pope owned the matrimonial home as of the date of the marriage cannot reasonably be relied upon in determining whether an equal division of the net family property difference is unconscionable unless one were to conclude that the provision of the Family Law Act that requires Mr. Pope to include the value of the matrimonial home in his net family property is itself unconscionable. Again, the interpretation of the Family Law Act put forward by Mr. Pope appears to contradict the intention of the Legislature, as expressed in the terms of the Act.

In any case, I see no basis in the evidence to conclude that equal division of the difference between the parties’ net family properties would be “unconscionable” when all of the circumstances, including the lengthy period of cohabitation, are taken into account. I therefore see no merit in this ground of appeal.

 

Spousal Support

 

Mr. Pope appeals the trial judge’s spousal support order, which required him to pay $1,400 a month to Mrs. Pope. He does so on a number of grounds. I see no merit in any of them. As I have said, he takes no issue with his obligation to pay support.

It has been frequently said that this court will not revisit the quantum of spousal support where the spousal support order comes within “the generous ambit within which reasonable disagreement is possible:” see Silver v. Silver (1985), 54 O.R. (2d) 591, 49 R.F.L. (2d) 148 (C.A.); Campbell v. Campbell (1996), 21 R.F.L. (4th) 283 (Ont. C.A.). In my opinion, the $1,400 per month spousal support order comes within the ambit of reasonableness having regard to those factors set out in s. 33(9) of the Family Law Act. Mrs. Pope was economically disadvantaged as a result of her marriage and the extensive period of cohabitation that preceded it: see Moge v. Moge, [1992], 3 S.C.R. 813, 99 D.L.R. (4th) 456. The trial judge’s finding that Mrs. Pope’s capacity to secure and maintain meaningful employment is limited is supported by the evidence. I see no basis upon which to reduce spousal support to $750 per month. Nor do I see a basis upon which to make a lump sum spousal support order of $36,000, as requested by the appellant.

There remains to be considered whether the trial judge erred in not making a time limited spousal support order. Again, I find there was no such error. Mrs. Pope worked in the home during most of her relationship with Mr. Pope. Her career options are now manifestly restricted by both her age and her impaired health. Indeed, Mr. Pope acknowledged her entitlement to support so that the only issues before the trial judge were how much support and in what form. This court held in Krauss v. Krauss (1991), 33 R.F.L. (3d) 233 that the following factors militated against making a time limited spousal support order:

—  a long marriage;

—  during most of the marriage the wife devoted most of her time to child care and household management and was therefore unable to work outside the home;

—  the age of the parties;

—  the wife’s health which in the circumstances compromised her ability to obtain gainful employment;

—  limited employment opportunities.

All of the Krauss factors apply in this case, if, for purposes of determining appropriate support, the entire period of the parties cohabitation (1978 to 1994) is taken into account. Over this lengthy period, Mrs. Pope devoted most of her time to child care and household management. She was in her 50s as of the time of trial and in precarious health. By any reasonable assessment of the evidence her capacity to obtain employment is limited. There is no reasonably identifiable time by which one might conclude that she will be self-sufficient, or for that matter earning income that would even reduce her need for spousal support. The trial judge was, in my view, entirely correct in making a spousal support order that was not time limited.

 

Costs

 

In his notice of appeal and factum, Mr. Pope contended that the trial judge erred in ordering him to pay costs fixed at $22,261.19. He submits that in the circumstances, the parties should pay their own costs. This issue was not pressed in oral argument. In any case, I see no merit in Mr. Pope’s submission on this issue. As the trial judge noted when he dealt with costs, after receiving submissions from both sides, Mrs. Pope was successful at trial. In my view, it was open to the trial judge to deal with costs as he did. I would not grant leave to appeal costs.

For these reasons, I would dismiss the appeal with costs.

 

Appeal dismissed.