LeBlanc v. LeBlanc, [1988] 1 S.C.R. 217

Florence T. LeBlanc Appellant

v.

Jean‑Marie LeBlanc Respondent

indexed as: leblanc v. leblanc

File No.: 19952.

1987: November 30; 1988: February 11.

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.