Court of Appeal for Ontario
Date: 2019-11-15 Docket: C66955
Judges: Pepall, Tulloch and Benotto JJ.A.
Between
Margaret Teri-Lynn Widner as Representative of the Estate of Joanne Underhill Province Applicant (Respondent in Appeal)
and
Chantel Province Co-Applicant (Respondent in Appeal)
and
Jason Province Co-Applicant (Respondent in Appeal)
and
Jim Province Respondent (Appellant)
Counsel
Paul Ledroit, for the appellant
Joel J.W.G. Szaefer, for the respondent
Heard and Released Orally
November 15, 2019
On Appeal From
The order of Justice John A. Desotti, of the Superior Court of Justice, dated April 23, 2019.
Reasons for Decision
[1] James ("Jim") Province appeals the order of Desotti J. which finalized a long and horrible saga which began with a high conflict matrimonial proceeding and ended when he brutally murdered his wife in her home. Two of the three children were in the home at the time. The youngest was eight years old. The appellant was found guilty of first-degree murder on December 1, 2015 and sentenced to life imprisonment. This court unanimously dismissed his appeal and referred as follows to the family law litigation:
Rancour was its predominant characteristic. The appellant bristled at the amounts he was required to pay for spousal and child support. He warned the deceased that she was "not going to get" his money. (R. v. Province (2019) ONCA 638 at para 127.)
[2] After the murder, the matrimonial litigation devolved to the Estate of the deceased, but it remained high conflict. Mr. Province failed to comply with a court order restricting him from depleting his property. He misrepresented his financial information. He dissipated other assets through his brother, Tom Province, in Florida. Of the approximately $260,000 in dissipated funds, about $180,000 went missing through his brother's actions. The Estate claimed against the brother as part of its efforts to determine the amount of money available for equalization payments. Despite receiving a judgment of over $125,000 against Tom Province, the Estate did not pursue the collection efforts due to the complexities of Florida law.
[3] The Estate has only been able to periodically enforce Mr. Province's child support obligations for the youngest child and it bears the cost of these court orders.
[4] Finally, the Estate moved to finalize the equalization payment. After multiple adjournments, the motion judge granted the final order in April 2019. It was the same case-management judge who, seven years earlier had made several orders, including the non-dissipation order.
[5] The motion judge ordered that Mr. Province pay the Estate an equalization payment of $410,000, plus interest at 4% per year, commencing from November 8, 2009; the payment be paid through a vesting order on the appellant's property; the funds in the CIBC bank accounts be vested in the Estate on account of child support payable; and 50% of the appellant's Dow Chemical pension be transferred to and vested in the Estate.
[6] Mr. Province appeals on the basis of:
- a lack of procedural fairness;
- the trial judge's reliance on a net family property statement that was prepared for a settlement conference (we note that this issue raised in the factum was not pursued in oral submission);
- the granting of an unequal equalization payment; and
- a failure by the trial judge to adjust child support and unfreeze the respondent's assets.
[7] We accept none of these submissions.
[8] There was no procedural unfairness. The appellant repeatedly disobeyed court orders for child support, non-dissipation and financial disclosure. The Estate's motion for the equalization payment was originally returnable on May 20, 2018. The appellant asked for and received 10 adjournments, some of which were marked peremptory to him. Although the appellant had legal counsel, he requested many of the adjournments on the basis that he needed to find legal counsel.
[9] Although the case management judge gave no formal written reasons for his order, a review of the history of the case and the continuing record make his reasons clear.
[10] The motion judge made no error in granting the equalization payment. He relied on a sworn Net Family Property statement (NFP) prepared by the appellant shortly before the murder. Under these unique circumstances, it was reasonable for the motion judge to exercise his discretion and rely on the Net Family Property Statement.
[11] The decision to award an unequal division of net family property was entirely discretionary and justified here.
[12] Finally, there was no basis to "adjust" child support.
[13] In summary, the appellant has presented no reason to interfere with the discretion of the motion judge in bringing to a finality this long and sordid case.
[14] The appeal is dismissed.
[15] The appellant is to pay costs to the Estate fixed in the amount of $20,000 inclusive of disbursements and applicable taxes.
S.E. Pepall J.A.
M. Tulloch J.A.
M.L. Benotto J.A.