Present: Estey,
McIntyre, Wilson, La Forest and L'Heureux‑Dubé JJ.
on appeal from the court of appeal for new brunswick
Family
law ‑‑ Matrimonial property ‑‑ Division ‑‑
Acquisition and preservation of marital property resulting almost exclusively
from wife's efforts ‑‑ No significant contribution by husband to
child care, household management and financial provision ‑‑ Proper
exercise of trial judge's discretion to depart from the general principle of
equal division of marital property ‑‑ Marital Property Act, S.N.B.
1980, c. M‑1.1, ss. 2, 7.
The
parties divorced after 26 years of marriage. Appellant had acquired a
restaurant and, with hard work and the help of her children, successfully
expanded the business which, for some years, provided the major part of the
family income. Later, she was able to buy a house, a summer cottage and a car,
all of which were registered in her name. The respondent worked regularly in
the earlier years of the marriage but later only at occasional odd jobs. He was
an alcoholic and drank heavily on a daily basis. On the application for a
division of property under the New Brunswick Marital Property Act, the
trial judge found that, apart from a contribution of $1,000 towards the
purchase of the house and some occasional assistance to the appellant in the
operation of her business, the respondent had virtually contributed nothing by
way of child care, household management and financial provision during the
marriage. He concluded that, in the present circumstances, the respondent was
not entitled to an equal share of the marital property and awarded him the sum
of $6,000. The Court of Appeal set aside the trial judge's order. The Court
held that it was inconceivable that the husband had not performed during the
marriage "useful deeds", and that any contribution to the fulfillment
of the spouses' joint responsibilities entitles each spouse to an equal share
in the marital assets independent of the degree and quality of the
contribution.
Held: The appeal should
be allowed.
Under
s. 7 of the Marital Property Act, the court hearing the case may depart
from the general principle of equal division of marital property established in
s. 2 of the Act where it is of the opinion that an equal division would be
inequitable having regard to a number of factors set out in s. 7, including the
"(f) . . . circumstances relating to the acquisition, disposition,
preservation, maintenance, improvement or use of property
. . . ." This does not mean that a court should put itself
in the position of making fine distinctions regarding the respective
contributions of the spouses during a marriage. But where the property has been
acquired exclusively or almost wholly through the efforts of one spouse and
where there has been no, or a negligible, contribution to child care, household
management or financial provision by the other, then, there are circumstances
relating to the acquisition, maintenance and improvement of property that
entitle a court to exercise its discretion under s. 7(f). This was such
a case and the trial judge made no error in exercising his discretion as he
did.
Cases Cited
Referred
to:
Silverstein v. Silverstein (1978), 20 O.R. (2d) 185; Leatherdale v.
Leatherdale, [1982] 2 S.C.R. 743.
Statutes and
Regulations Cited
Marital Property Act, S.N.B. 1980, c. M‑1.1, ss. 2,
3, 7.
APPEAL
from a judgment of the New Brunswick Court of Appeal (1986), 68 N.B.R. (2d)
325, 25 D.L.R. (4th) 613, 1 R.F.L. (3d) 159, 175 A.P.R. 325, setting aside an
order of Creaghan J. (1984), 54 N.B.R. (2d) 388, 140 A.P.R. 388, made pursuant
to the Marital Property Act. Appeal allowed.
James
C. Letcher, for the appellant.
Michel
C. Léger, for the respondent.
The
judgment of the Court was delivered by
1. La Forest J.‑‑In
this case, the appellant wife, Florence Theresa LeBlanc, brought an action for
divorce against her husband, Jean‑Marie LeBlanc, and an application for a
division of property under the New Brunswick Marital Property Act,
S.N.B. 1980, c. M‑1.1. The divorce was granted and no appeal is taken
from that decision. This appeal is concerned solely with the division of
property under the Marital Property Act.
Facts
2. The
parties were married in 1957 when the wife was pregnant with their first child.
The husband was then seventeen and the wife, sixteen. Seven children were born
in the first eight years of the marriage.
3. The
husband worked fairly regularly for the first four or five years of the
marriage. Subsequently, he worked only at occasional odd jobs. He was an
alcoholic and drank heavily on a daily basis. He took virtually no part in the
bringing up of the children.
4. The
wife worked from time to time in the early years of the marriage, but the
family lived largely on welfare until the youngest child was born in 1965.
Shortly thereafter, the wife began working full time at a take‑out
restaurant, working a 3 p.m. to 3 a.m. shift. Eventually, she took out a loan
for $12,000 and bought the restaurant. By dint of hard work and the help of the
children, she was able to expand the business, which for some years has
provided the major part of the family's income. The husband's participation in
the business over the years consisted in occasionally running errands and
aiding in contractual arrangements for the purchase of delivery vehicles and
repairs.
5. In
1975, the wife bought a house for the family, which was and remains in her
name. She and her husband contributed $1,000 each to the down payment. The rest
of the purchase price was borrowed. The loan was paid in installments out of
income from the restaurant. Some time later, the wife purchased land upon which
a cottage was built. The husband contributed to the building of the cottage by
participating in the supervision and hiring of workers and seeing to the
landscaping, fencing and planting of trees. The wife at some time purchased a
new automobile which was and is registered in her name.
The Courts Below
6. The
overall finding of the trial judge, Creaghan J., was that the husband
"made no contribution to child care, that he made no contribution to
household management, and in fact he made no financial contribution to the
family in any way, shape or form": (1984), 54 N.B.R. (2d) 388, at p. 393.
Consequently, he held that "adequate and sufficient grounds have been
established for an unequal division of the family assets". He was
"unable to find that the respondent is entitled to any percentage of the
family assets". Later in his judgment, however, he recognized that the
husband "did in fact contribute $1,000 towards the purchase price of the
dwelling" and that "[i]n addition and since then he has been of
assistance to the petitioner in the operation of her business . . .
particularly when from time to time it was necessary to purchase vehicles and
also when it was necessary to negotiate contracts for the repairs of the
business premises". As "compensation", the trial judge ordered
that the husband be paid the "arbitrary" sum of $6,000.
7. A
majority of the New Brunswick Court of Appeal (Rice and Angers JJ.A., Hoyt J.A.
dissenting) (1986), 68 N.B.R. (2d) 325 overturned the decision of the trial
judge, finding at p. 329 that there was
some type of communication between the spouses as seven
children were born and raised . . . and during the last eight years of the
marriage they vacationed in California and Florida together; the expense of one
of those trips was paid partly by the husband. It is inconceivable that during
this lengthy period there were no communications between the husband and his
children so as to negate any fatherly advice, generosity, and love or aid and
other useful deeds inherent to child care, household management and even
financial provision.
The court went on
to hold that "[a]ny contribution to the fulfillment of [the spouses']
joint responsibilities entitles each spouse to an equal share in the marital
assets independent of the degree and quality of the contribution" (p.
330).
8. In
brief, despite the testimony of the children regarding the husband's entire
abdication of responsibility as a father, the majority in the Court of Appeal
speculated that it was inconceivable that the husband had not performed
"useful deeds". Whatever these were, however, one should not overlook
the trial judge's finding that the husband contributed nearly nothing to the
family over a period of twenty‑six years. Most importantly, the majority
in the Court of Appeal characterized the Marital Property Act as
instituting a regime that leaves the trial judge with virtually no discretion
to divide the marital property on anything other than an equal basis in
situations like this.
Analysis
9. In
my view, neither the words of the Act nor the authorities cited by the Court of
Appeal support the restricted interpretation of the trial judge's discretion
adopted by the majority of the Court of Appeal. The words of the Act are not
ambiguous. The relevant sections interact as follows. Section 2 is an
interpretative provision in the nature of a preamble announcing the general
framework and philosophy of the legislation. It reads:
2 Child care, household management and financial
provision are joint responsibilities of spouses and are recognized to be of
equal importance in assessing the contributions of the respective spouses to
the acquisition, management, maintenance, operation or improvement of marital
property; and subject to the equitable considerations recognized elsewhere
in this Act the contribution of each spouse to the fulfillment of these
responsibilities entitles each spouse to an equal share of the marital property
and imposes on each spouse, in relation to the other, the burden of an equal
share of the marital debts. [Emphasis added.]
The provisions of
ss. 3 and 7, inter alia, work this framework out in detail. Section 3(1)
states the practical effect of the principle set forth in s. 2: the marital
property is to be divided equally on the breakdown of the marriage. Section 7, inter
alia, spells out the circumstances in which the principle may be departed
from or its consequences attenuated.
10. In
common with similar provisions in other jurisdictions, s. 2 establishes the
general principle that each spouse is entitled to an equal share of marital
property. The principle is put into effect on the dissolution, nullity or
breakdown of a marriage by s. 3(1). The principle must be respected. In
applying that principle, courts are not permitted to engage in measurements of
the relative contributions of spouses to a marriage. Nevertheless, it should
not be overlooked that the principle is expressly made subject to the equitable
considerations recognized elsewhere in the Act. Among these considerations are
those spelled out in s. 7. That provision enables the court hearing the matter,
notwithstanding ss. 2 and 3, to award unequal shares where it is of the opinion
that an equal division would be inequitable having regard to a number of
factors therein spelled out, including the residual consideration in s. 7(f),
namely:
(f) any other circumstances relating to the
acquisition, disposition, preservation, maintenance, improvement or use of
property rendering it inequitable for the division of marital property to be in
equal shares.
11. While
a court should, in the words of Galligan J. in Silverstein v. Silverstein
(1978), 20 O.R. (2d) 185 (H.C.), at p. 200, "be loath to depart from [the]
basic rule [of equal division]", it should nonetheless, as he indicates,
exercise its power to do so "in clear cases where inequity would result,
having regard to one or more of the statutory criteria set out in cls. (a)
to (f)." This does not, as previously indicated, mean that a court
should put itself in the position of making fine distinctions regarding the
respective contributions of the spouses during a marriage. Nonetheless, where
the property has been acquired exclusively or almost wholly through the efforts
of one spouse and there has been no, or a negligible contribution to child
care, household management or financial provision by the other, then, in my
view, there are circumstances relating to the acquisition, maintenance and
improvement of property that entitle a court to exercise its discretion under
s. 7(f).
12. This
is such a case. While the trial judge found that the husband did contribute
$1,000 as part of the down payment of the matrimonial home, and was from time
to time of some assistance in the operation of the wife's business, his overall
findings are sufficient to warrant the exercise of his discretion. Without
entering into details, he found the husband's drinking was "to say the
least excessive, continuous and persistent". All the assets were in the
wife's name, and these had been "earned entirely by her labour, with a
great deal of assistance of her children when they were old enough to enter the
labor force"; ". . . the husband made no contribution to child care,
... to household management, and in fact he made no financial contribution to the
family in any way, shape or form".
13. Counsel
for the husband referred to a number of cases which he contended supported his
point of view. However, an examination of these fails to convince. Thus counsel
enlists this Court's decision in Leatherdale v. Leatherdale, [1982] 2
S.C.R. 743, in which, indeed, the Court held, at p. 759, that a
"substantial" contribution need be no more than "beyond de
minimis, a matter of the evidence in the particular case", in order
for the general rule of equal distribution to apply. This, however, is not
controverted. The question here is whether, on facts such as those in this
case, the circumstances are such as to permit a court to exercise its
discretion under s. 7(f) to depart from the general rule. In Leatherdale
itself, this Court implicitly gave this question a positive answer. The Court,
at p. 757, felt obliged to distinguish, without disapproving, a series of
cases, including Silverstein v. Silverstein, supra, in all of
which one spouse had "carried the larger share of the joint
responsibilities", warranting a larger share of the family assets.
14. I
have no difficulty concluding that the wife in this case is entitled to the
lion's share of the marital property. Some problems, it is true, arise from the
manner in which the trial judge stated his reasons. He did not explicitly rely
on s. 7(f) and there is an apparent contradiction in his original
statement that the husband had made absolutely no contribution to the family and
his later holding that the husband should be "compensated" for the
small contribution he did make. The judge also described the $6,000 awarded to
respondent as "compensation".
15. But
these irregularities should not blind us to the essentials of what the trial
judge determined. He clearly found, as a matter of fact, that the acquisition,
preservation and improvement of the marital property resulted almost
exclusively from the wife's efforts and that there was no significant contribution
by the husband in child care, household management or financial provision.
This, in his view, constituted sufficient grounds for the exercise of his
discretion to depart from the usual rule of equal division. Nor does the trial
judge's general description of the payment of $6,000 to the husband as
"compensation" make a difference. What the trial judge in fact did,
correctly in my view, was to make a division of the marital property so as to
avoid the inequity that would have resulted from an equal division, namely,
$6,000 to the husband and the remainder to the wife. Hoyt J.A. observed that
this if anything appears to be generous to respondent. It is sufficient for me
to say that in the circumstances the trial judge was entitled to exercise his discretion
under s. 7(f) and that he made no error in exercising it as he did.
Disposition
16. I
would allow the appeal, reverse the judgment of the Court of Appeal and restore
the judgment of the trial judge. The appellant is entitled to costs in this
Court and in the Court of Appeal.
Appeal
allowed with costs.
Solicitor
for the appellant: James C. Letcher, Moncton.
Solicitor
for the respondent: Michel C. Léger, Shediac.
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