COURT OF APPEAL FOR ONTARIO

CITATION: Symmons v. Symmons, 2012 ONCA 747

DATE: 20121106

DOCKET: C55122 & C55545

Laskin, Rosenberg and Tulloch JJ.A.

BETWEEN

William Symmons

Applicant (Respondent)

and

Mary Lou Symmons

Respondent (Appellant)

Sarah Boulby, for the appellant

Aaron Franks and Michael Zalev, for the respondent

Heard: September 13, 2012

On appeal from the orders of Justice Peter Z. Magda of the Superior Court of Justice, dated January 31, 2012 and May 3, 2012.

By the Court:

A. introduction

[1] Mary Lou Symmons appeals an order requiring her to pay her husband, William Symmons, an equalization payment of $117,514.50 and costs of $25,500.

[2] The parties cohabited for five and a half years, were married for ten years, then separated in 2009. They settled all of their differences but one: the division of Mr. Symmons’ pension. That issue was tried and the trial judge, relying on expert evidence, valued each party’s interest in the pension and survivor benefits. His valuation yielded the equalization payment that Mrs. Symmons now appeals.

[3] Mrs. Symmons raises numerous issues on her appeal. Her overriding contention, however, is that the trial judge erred by not granting her a share in the amount Mr. Symmons’ pension interest accumulated during the period the parties cohabited before marriage. The specific issues Mrs. Symmons raises on appeal are as follows:

(1) The trial judge erred by failing to correctly apply the principles of unjust enrichment.

(2) The trial judge erred by failing to apply Bill 133, the legislative regime for valuing pensions introduced at the beginning of this year.

(3) The trial judge erred by failing to order an unequal division of the parties’ net family property under s. 5(6)(h) of the Family Law Act.

(4) The trial judge erred by failing to order that Mrs. Symmons be allowed to satisfy the equalization payment over time.

(5) The trial judge’s conduct of the trial deprived Mrs. Symmons of a fair trial.

(6) The trial judge’s costs award is unreasonable.

[4] We called on Mr. Symmons to respond only to issues 1, 4 and 5. For the brief reasons that follow, we dismiss Mrs. Symmons’ appeal.

B. background

(1) The Parties

[5] Mr. and Mrs. Symmons began living together in the fall of 1993. They married in February 1999, and separated in October 2009. Both were previously married and each has adult children. They have no children together. Mrs. Symmons is 56 years old. Mr. Symmons is 69 years old.

(2) Employment

[6] When the parties met, Mr. Symmons worked for Ontario Power Generation (“OPG”) as a project manager. Mrs. Symmons was employed as a representative for a printing card company. When the parties began living together, they resided in Mississauga. Soon after, OPG relocated Mr. Symmons to Pickering. To accommodate his relocation, the parties moved to Ajax. Mrs. Symmons claimed that the move made it more difficult for her to service her sales territory. She eventually abandoned her business as a greeting card representative and opened a flower store closer to home. She sold the store after Mr. Symmons retired in 2002.

(3) The OPG Pension

[7] Mr. Symmons was entitled to a pension from OPG. In June 1995, Mr. Symmons designated Mrs. Symmons the beneficiary of his OPG pension. In 2002, Mr. Symmons accepted an early retirement package from OPG, which included his full pension. As a result of his retirement his pension came into pay. He could have accepted a lump sum cash settlement from his pension plan. Instead, he elected a pension in pay with survivor benefits.

[8] Mrs. Symmons remains the beneficiary of the pension survivor benefits. When Mr. Symmons dies, she will receive for the rest of her life monthly payments equivalent to two-thirds of the monthly payments Mr. Symmons received while alive.

[9] In March 2000, a year after they were married, the parties signed a cohabitation agreement. It contains a written acknowledgement that both parties had waived the right to independent legal advice. In the agreement, Mr. Symmons agreed that he has no claim to any business owned by his wife “from this date forward”. Similarly, Mrs. Symmons agreed that she “has no claim to any pension of Bill’s from this date forward”. At trial, Mr. Symmons did not attempt to enforce the cohabitation agreement.

(4) Partial Settlement of the Litigation

[10] Shortly after the parties separated, Mr. Symmons began proceedings under the Family Law Act, R.S.O. 1990, c. F.3. In April 2011, the parties signed partial minutes of settlement. Mr. Symmons agreed to pay Mrs. Symmons an equalization payment of $205,875.84, reflecting all of the parties’ assets other than Mr. Symmons’ pension. In addition, Mr. Symmons agreed to pay spousal support of $1,400 per month.

[11] In November 2011, the parties signed further minutes of settlement to deal with spousal support. Mr. Symmons agreed to pay time-limited support starting at $1,400 per month, increasing to $1,500 in May 2012, gradually declining to $1,305 in May 2016, and ending altogether in May 2021. At that time, Mr. Symmons will be 78 years of age, and Mrs. Symmons will be nearly 65.

[12] The issues over the division of the pension and the survivor benefits were set down for trial.

(5) The Trial

[13] The trial took two days. Mr. Symmons was represented by counsel; Mrs. Symmons was self-represented.

[14] The parties’ pension interests were valued by experts, using the methodology under the legislative regime that preceded Bill 133, Family Statute Law Amendment Act, 1st Sess, 39th Parl, 2009 (the legislative reform of family pensions that came into effect on January 1, 2012). In his reasons, the trial judge accepted the following figures for the purpose of calculating the equalization payment:

• The after tax capitalized value of Mrs. Symmons’ survivor benefits: $310,824

• The after tax capitalized value of Mr. Symmons’ pension interests accrued during marriage: $75,795

• The after tax capitalized value of Mr. Symmons’ pension interests accrued from the time the parties began cohabitating to the date of separation: $202,900

[15] Mrs. Symmons urged the trial judge, in apportioning the pension interest, to take into account its increase in value during the cohabitation period, on the basis of equitable principles. Mr. Symmons argued that he should only be required to share the growth of his pension during the marriage, in accordance with s. 4 of the Family Law Act.

[16] The trial judge ultimately accepted Mr. Symmons’ position. On the basis of the numbers above, he found that Mrs. Symmons owed an equalization payment to Mr. Symmons in the amount of $117,514.50 ($310,824 - 75,795 = 235,029 ÷ 2).

[17] If the value of the pension interests and survivor benefits had been shared over the entire relationship, including the five and a half years of pre-marriage cohabitation, then the equalizing sum would have been closer to $60,000.

C. the issues

(1) Unjust Enrichment

[18] The evidence at trial showed that the value of Mr. Symmons’ pension increased by $127,105 during the five and a half years the parties cohabited before marriage. On appeal, Mrs. Symmons again seeks an order for an equal share of that accrual – approximately $63,500 – on the basis of unjust enrichment. Such an order would reduce the equalizing sum she owes to Mr. Symmons by more than half.

[19] Mrs. Symmons puts forward her claim for unjust enrichment on two related grounds. First, she says that she and her husband were engaged in a “joint family venture” during the period of cohabitation, as primarily evidenced by their mutual effort and decision-making: Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, at paras. 87-99. Second, she says that Mr. Symmons was enriched by the parties’ move to Ajax because it allowed him to continue to accrue his pension during the period of cohabitation. She also claims that she suffered a corresponding deprivation because the family move led to the loss of her business as a greeting card representative.

[20] The trial judge rejected Mrs. Symmons’ unjust enrichment claim. He said:

I agree with Mr. Alexander that unless the respondent can show that there is somehow an implied resulting thrust or some unjust enrichment finding, finding a constructive trust to remedy any unfairness, the law in the Family Law Act is clear; the division of property is for married spouses.

I have listened very carefully to the respondent and I can see no valid reason in law to somehow find an implied constructive trust to assist her. I appreciate that during the cohabitation, both pre and post-marriage, that the parties were close and discussed many things. There is no evidence before me that would suggest, on the balance of probabilities, that the applicant made a promise to divide his pension inclusive of the cohabitation period. I accept that it was his intent to divide his pension in accordance with the law. He does not appear to me to be ungenerous; he did after all designate the respondent as the beneficiary of his plan, which will provide her with 66.66 percent of his pension after he passes on.

There is no deprivation here on the facts at all as I find it…

The cohabitation period prior to the marriage is therefore excluded. …

[21] The trial judge’s finding that there was no unjust enrichment is reasonable. We are not persuaded that we should interfere with it. Below, we will briefly address the two grounds Mrs. Symmons puts forward for her unjust enrichment claim, and explain why we find them unpersuasive. Before doing so, it is worth noting that this court has recently held “in the vast majority of cases, any unjust enrichment that arises as the result of a marriage will be fully addressed through the operation of the equalization provisions under the Family Law Act…”: McNamee v. McNamee, 2011 ONCA 533, 106 O.R. (3d) 401, at para. 66.

[22] In regards to Mrs. Symmons first ground, a joint family venture is characterized by a relationship in which the contributions of both parties have resulted in an accumulation of wealth. It can be identified with reference to the mutual effort of the parties, their degree of economic integration, their actual intent during the relationship, and the prioritization of the family unit in decision-making: Kerr v. Baranow, at paras. 87-99. For the purposes of an unjust enrichment claim, the applicant party must demonstrate that one party has retained a disproportionate share of the economic fruits of their joint efforts: Kerr v. Baranow, at para. 60

[23] It is arguable whether the relationship between Mr. and Mrs. Symmons during the cohabitation period can properly be characterized as a joint family venture. The acknowledgements in the cohabitation agreement, though not relied on at trial, are some evidence of the parties’ intentions with regards to their economic integration. As we have said, Mr. Symmons acknowledged that he had no prospective claim to his wife’s business, and Mrs. Symmons acknowledged that she had no prospective claim to her husband’s pension. Further, their period of cohabitation before marriage was relatively short, and they had no children together.

[24] Even if the relationship exhibited some characteristics of a joint family venture, there is insufficient evidence that Mr. Symmons retained a disproportionate share of the assets accrued as the result of their joint efforts – namely, the pension. His pensionable service at the time of retirement was twenty-five years, only five and a half of which he spent cohabiting with Mrs. Symmons. However, as a result of the beneficiary designation, she received an interest in the pension worth over $300,000, before equalization. Relative to Mr. Symmons’ interest in the pension, which according to his financial statements is around $600,000, Mr. Symmons’ share does not seem “disproportionate.”

[25] On the second ground, although Mrs. Symmons contends that the move to Ajax caused a deprivation to her and her business, the evidence at trial suggests otherwise. While Mrs. Symmons’ claim to unjust enrichment is based on the cohabitation period, this court has held that a judge may consider the relative status of the parties at the end of a marriage in ascertaining the merits of an unjust enrichment claim relating to the pre-marital period: Roseneck v. Gowling (2002), 2002 CanLII 45128 (ON CA), 62 O.R. (3d) 789, at paras. 28-30.

[26] Although Mrs. Symmons was required to change her employment during the period of cohabitation, the value of her business appears to have increased significantly by the end of the relationship. On the date of marriage, Mrs. Symmons’ business had a nominal value of $8,872.93. In her financial statement of July 2011, she listed the estimated market value of her business interests on the valuation date as $126,347.

[27] The relative overall increase in each party’s net worth during marriage also undermines Mrs. Symmons’ claim for unjust enrichment. According to the respondent, Mr. Symmons’ net worth increased by $328,742.90. Mrs. Symmons’ net worth increased by $653,221.26, virtually double that of her husband. Mrs. Symmons did not contest these figures on appeal.

[28] A final piece of evidence that suggests Mrs. Symmons has not been unjustly deprived in relation to the pension is the spousal support Mr. Symmons will pay out of his already equalized pension interest until May of 2021.

[29] For these reasons, we decline to give effect to Mrs. Symmons’ unjust enrichment claim.

(2) Bill 133

[30] Effective January 1, 2012, both the Family Law Act and the Pension Benefits Act, R.S.O. 1990, c. P.8, were amended by Bill 133 to introduce a new legislative regime for the valuation of pension interests. Under the transition provisions of the Family Law Act, ss. 10.1(8) and (9), the new regime applies even in cases where the valuation date preceded the coming into force of the amending legislation. Thus, this new legislative regime applied to the valuation of the parties’ interest in Mr. Symmons’ pension.

[31] In his reasons, the trial judge said that the amendment was of no assistance to Mrs. Symmons. During argument, he said that it did not apply because he was dealing with a matter that arose before the amendment. Counsel for Mr. Symmons acknowledges that the trial judge erred in law by holding that Bill 133 did not apply. Counsel for Mrs. Symmons asks that we order a new trial at which the parties’ pension interests would be valued under the new legislative regime.

[32] We do not accept Mrs. Symmons’ position. Under s. 134(6) of the Courts of Justice Act, R.S.O. 1990, c. C.43, this court may order a new trial only where a substantial wrong or miscarriage of justice has occurred. We have no evidence to show that valuing Mr. Symmons’ pension under the previous legislative regime produced a substantial wrong or a miscarriage of justice. Indeed, we do not know whether a valuation under the new regime would have made any material difference, and even if it did, whether it would have benefited Mrs. Symmons or Mr. Symmons.

[33] The parties agreed that the trial would proceed on the basis of the valuations before the court. Neither party put forward at trial valuation based on Bill 133 methodology. Neither party asked for an adjournment to obtain one.

[34] In this court, Mrs. Symmons did not seek leave to introduce as fresh evidence a valuation based on Bill 133. In oral argument, her counsel acknowledged that a Bill 133 valuation would not include the pre-marriage period of cohabitation. Thus, we see no merit in putting the parties to the expense of a new trial simply to obtain a new valuation of the parties’ pension interests. We decline to order a new trial for this purpose.

(3) An Equal Division Under Section 5(6)(h) of the Family Law Act

[35] As an alternative to her unjust enrichment claim, Mrs. Symmons seeks an unequal division of net family property under s. 5(6) of the Family Law Act. Under s. 5(6), a court may award more or less than half the difference between the net family properties if equalizing would be unconscionable. Mrs. Symmons submits that the trial judge erred in failing to order an unequal division. We do not accept this submission.

[36] This court has stressed that the threshold of unconscionability under s. 5(6) is exceptionally high. A party seeking an unequal division must show that an equal division of net family property would “’shock the conscience of the court’”: Serra v. Serra, 2009 ONCA 105, 93 O.R. (3d) 161, at para. 47. In this case, the equalization of net family property does not come close to meeting this standard. Accordingly, this ground of appeal fails.

(4) Payment Over Time

[37] Ordinarily a party required to make an equalization payment must make the payment right away. However, s. 9(1)(c) of the Family Law Act gives the court discretion to order payments in instalments for a period of up to ten years, “if necessary to avoid hardship”.

[38] Mrs. Symmons submits that the trial judge ought to have allowed her to satisfy the equalization payment to Mr. Symmons over a period of seven years. She points out that she cannot access her survivor benefits now, and may not be able to do so for years. Thus, it would have been reasonable to allow her to pay in instalments.

[39] There is some merit in Mrs. Symmons submission. However, we are not satisfied that she has met the statutory standard of “hardship” to justify an order under s. 9. An important factor in deciding whether equalization should be paid in instalments is whether the payor spouse has funds available to pay a lump sum: Serra v. Serra (2007), 2007 CanLII 2809 (ON SC), 36 R.F.L. (6th) 66, varied on other grounds, Serra v. Serra,2009 ONCA 105, at para. 158. Mrs. Symmons has already paid $60,000 of the equalization payment. She has assets in excess of $300,000 to satisfy the remaining $57,000 payment. We therefore decline to order instalment payments.

(5) Conduct of Trial

[40] As we have said, Mrs. Symmons represented herself at trial. She contends that the trial judge deprived her of a fair trial by discouraging her from cross-examining her husband to elicit evidence to support her unjust enrichment claim, by excessively intervening in her presentation of her case, and by making comments that demonstrated he had prejudged the case.

[41] We do not accept Mrs. Symmons’ contention. We have reviewed the record. We are satisfied that the trial judge fulfilled his duty to a self-represented litigant. He explained his role in the trial process to Mrs. Symmons at the outset of the hearing, he assisted her from time to time, and he gave her a fair opportunity to present her case. Moreover, we see no evidence that he prejudged the case. This ground of appeal, therefore, fails.

(6) Costs

[42] Mr. Symmons was successful at trial. He did better than several of his offers to settle. He asked for costs of approximately $86,000. The trial judge awarded him $25,500.

[43] Mrs. Symmons submits that in making this costs award, the trial judge did not take into account her means. We disagree. In awarding Mr. Symmons substantially less than he sought, the trial judge expressly stated that he was mindful of Mrs. Symmons’ circumstances. We therefore see no basis to interfere with the trial judge’s costs award. Leave to appeal costs is refused.

D. conclusion

[44] The appeal is dismissed. The parties may make written submissions on the costs of the appeal within ten days of the release of these reasons.

Released: November 6, 2012

“JL” “John Laskin J.A.”

“M. Rosenberg J.A.”

“M. Tulloch J.A.”