Court File and Parties

CITATION: Depatie v. Squires, 2012 ONSC 1399 COURT FILE NO.: DC-877-11 DATE: 2012-02-29

SUPERIOR COURT OF JUSTICE – ONTARIO (Divisional Court)

RE: Julie Depatie, Applicant (Appellant) AND: Christopher Squires, Respondent (Respondent)

BEFORE: Smith, C.J.S.C.O., Gauthier, R.S.J., Matlow, J.

COUNSEL: Richard K. Guy, for the Applicant Christopher D. McInnis, for the Respondent

HEARD: February 27, 2012 at Sudbury, Ontario

Endorsement

[1] This is an appeal from the Judgment of Hennessy J. dated March 22, 2011.

Compromising the Appearance of Justice/Bias:

[2] The Appellant Wife (“wife”) while testifying, was regrettably excluded from the trial for a brief period of time. Although it would have been preferable that she be allowed to remain in the courtroom, in the circumstances of this case, the exclusion was of no consequence.

[3] That exclusion coupled with the other complaints about the trial judge’s rulings and alleged impatience, fail to establish that the trial judge was biased. We are also not satisfied that there was any compromise to the appearance of justice. Accordingly, no new trial is required.

The Child Support Order:

[4] The trial judge found that the guideline amount was $707, but applied the subtraction methodology, and took into consideration the $500 per month that the biological father was voluntarily paying for the child’s support. The biological father also was contributing to a RESP for the child, and more than $7,000 had already been set aside for the child.

[5] The amount of child support paid by the biological father was admitted as fact, warranting an apportionment of the Husband’s obligation to provide child support.

[6] The trial judge’s order, taken together with the biological father’s undertaking to continue support was intended to ensure payment of the full guideline amount for the child.

[7] We find no error in the trial judge’s exercise of her discretion in regard to the quantum of the child support.

Time-Limited Spousal Support:

[8] The wife sought an indefinite support order based on her disability and economic dependency.

[9] The parties cohabited for 12.5 years, having been married for the last 4 years. For the first 10 years of cohabitation, the wife had been employed on a full-time basis and she had contributed to the couple’s living expenses.

[10] The wife’s annual income was in the area of $28,000, and the husband’s was approximately $78,000.

[11] In November, 2006, the wife began receiving disability income in the amount of $26,000 annually.

[12] The trial judge did a needs and means analysis and found that the wife’s inability to be employed did not affect her need, given that the disability benefit was similar to the amount of income she had earned when she had been employed.

[13] The trial judge awarded spousal support of $1,082 per month for a fixed period of 9 years from the date of separation, because (1) she found that the wife’s economic dependency did not arise from her disability, (2) there was no evidence that compensatory support was warranted, and (3) such order would allow the wife a proper adjustment period and also allow the husband to anticipate the end of the relationship.

[14] Essentially, the trial judge’s needs and means analysis led her to conclude that after a mid-term relationship of 12.5 years, 9 years of spousal support would provide ample time for the 37 year old wife to re-train, if possible, and to adjust her standard of living to one commensurate with her own income.

[15] We find no error in the learned trial judge’s finding that the time limited spousal support order was both appropriate and reasonable in the circumstances.

Unjust Enrichment Claim:

[16] The wife seeks 1/3 of the assets accumulated by the husband in the period of cohabitation prior to the date of marriage, as a remedy for the husband’s unjust enrichment.

[17] The wife made a claim for constructive trust against two assets that the husband claimed to have had at the date of marriage, that is, a RRSP and a LIRA. The parties had agreed at trial that the combined value of those assets was $36,455.

[18] The trial judge found that “the only assets that were assets that were accumulated in the period of cohabitation were the roll-over from the pension from Bristol machine, in the amount of $27,000 and the proceeds from the sale of the business in the amount of $8,000 to $12,000.”

[19] The trial judge found that there was no unjust enrichment and therefore no basis for the claim for constructive trust because:

(a) There was no evidence that the wife made any employment sacrifices to assist in any joint family venture or to assist the husband in his business or employment;

(b) There was no evidence that she was underemployed as part of a family arrangement in order to make a greater contribution to the family; and

(c) During the years of cohabitation prior to marriage, the parties lived under the same roof, shared some expenses, but maintained separate financial lives. Theirs was not an interdependent economic relationship.

[20] There was no evidence to satisfy the test for unjust enrichment which requires an enrichment or benefit to the husband, a corresponding detriment to the wife and no juristic reason for the enrichment. The wife’s financial contribution of ½ of the couple’s living expenses did not enrich the husband to the detriment of the wife.

[21] We find no error on the part of the trial judge in denying the claim for constructive trust.

Costs:

[22] The trial judge awarded costs to the husband for ¾ of his costs claimed on a partial indemnity basis, in the amount of $15,000.

[23] The wife claimed that the husband’s behaviour had been unreasonable and she sought full costs of the proceeding. The trial judge found that the wife’s indictment of the husband’s behaviour was “without merit and the last minute decision to make a claim for unjust enrichment added to the trial time and complexity. It was made without adequate preparation and was ultimately unsuccessful.”

[24] The trial judge found that the husband was successful on four of the five issues and that the parties had mixed results on the fifth issue. She stated that “the claims for unjust enrichment and the value of the garage contents proceeded without any supportive evidence. The husband was required to prepare for trial on these issues while the wife had not done so.”

[25] There is a presumptive entitlement to costs for a successful litigant in accordance with Rule 24 of the Family Law Rules. The husband was clearly the successful litigant at trial, especially in the context of the offer to settle that he made prior to trial.

[26] Accordingly, we find no error in the learned trial judge’s disposition of the issue of costs.

Disposition:

[27] For the reasons set out herein, the appeal is dismissed.

[28] If counsel are unable to agree on costs of the appeal, counsel may make written submissions regarding costs by exchanging them and by depositing them, in triplicate, with the office of this court at Sudbury on or before April 1, 2012, failing which there shall be no order as to costs.

Smith, C.J.S.C.O.

Gauthier, R.S.J.

Matlow, J.

RELEASED: February 29, 2012