SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 671/13
DATE: 2014-09-30

RE: ANDREW HUGHES, Applicant

AND:

REBECCA IRWIN, Respondent

BEFORE: Fitzpatrick J.

COUNSEL:
Andrew Hughes, Self-Represented
Pamela L. Hebner, Counsel for the Respondent

HEARD: April 7, 2014 and June 27, 2014

ENDORSEMENT

[1] Each of the parties brought a motion argued before me over two days. The Applicant, Andrew Hughes (“Hughes”) brings a motion for interim spousal support. The Respondent, Rebecca Irwin brings a summary judgment motion seeking to dismiss Hughes’ claim for an equalization and division at source of Irwin’s pension. Each party adamantly opposes the relief sought by the other.

[2] The hearing for these motions was commenced on April 7, 2014. On that date, all argument was completed respecting the support issues. During the argument on the pension issue, Hughes sought to present a previously undisclosed letter from his trustee purporting to assign to him the equalization claim. Hughes was granted an adjournment to have this letter properly in evidence before the Court and/or to obtain an order permitting him to pursue the equalization or any other related claim. Argument on the pension issue was completed June 27, 2014. I reserved my decision.

[3] I have decided to grant Hughes’ motion for support and to grant Irwin’s motion to dismiss Hughes’ claim for an equalization and division at source of Irwin’s pension for the reasons set forth below.

Fact Findings

[4] Both parties filed affidavits on these motions. I note that there were no cross-examinations undertaken by either party. The below paragraphs represent my findings of fact on this motion.

[5] The parties commenced cohabiting around 1983. They married on May 31, 1986 and separated January 18, 2009.

[6] There is one child of their marriage, namely Selena Rose Hughes born June 22, 2000 (“Selena” now 14). Selena was adopted by the parties in 2000.

[7] Hughes and Irwin were each 53 years of age at separation.

[8] The parties agreed that Hughes would be the stay at home parent given that he was then unemployed having been recently placed on lay off from his employer, Manulife.

[9] The parties disagree on how long Hughes was to remain at home parenting and outside the workforce. Hughes suggests the plan was indefinite. Irwin says Hughes was only to remain in the home parenting until Selena commenced full time school attendance and he was to then obtain full time employment.

[10] Selena commenced full time attendance at a Montessori private school in 2003.

[11] Hughes only worked part-time following Selena’s adoption. He says that he was primarily responsible for Selena’s care and the domestics for the household. Hughes claims Irwin’s primary focus was her work, including regular travel for her employment, followed by her recreational equestrian interests and then her family. Not surprisingly, Irwin strongly disagrees with the Hughes characterization of her outside commitments and parenting role suggesting an equal division of the parenting responsibilities.

[12] Irwin is well educated having attained her veterinary degree with post-graduate education and training in epidemiology. She is a long term employee of the Public Health Agency of Canada earning a six figure income plus pension and other benefits.

[13] The parties agree that Irwin’s significant income was the foundation for the plan to adopt Selena.

[14] The parties agree that Hughes always earned a significantly more modest income to that of Irwin.

[15] Hughes suggests that he had always earned less prior to adopting Selena and his earnings continued to be diminished due to his parenting responsibilities following Selena’s adoption.

[16] Irwin argues that Hughes has lacked the motivation and effort to find and keep well paying work that he is otherwise capable of obtaining.

[17] Selena alternated her residence approximately equally between the home of each of her parents from the date of separation to some point in 2011 when she went to live with Irwin. Irwin says this change in residence for Selena occurred at August, 2011 and Hughes says it was December, 2011. Selena has remained living with Irwin to date.

[18] Both parties agree they had no significant debt at 2000 when Selena was adopted but had accumulated approximately $235,000.00 in mostly credit related debt by the date of separation.

[19] Irwin voluntarily paid Hughes $1,250.00 monthly in support on a without prejudice basis from the date of separation and for the remainder of calendar 2009. These payments ceased at 2010 when Irwin fractured both femurs resulting in her being hospitalized for three months and thereafter home convalescing.

[20] In addition, Irwin paid Hughes the lump sum of $30,000.00 at February 27, 2012 upon Irwin receiving a $450,000.00 settlement arising out of her contracting hepatitis “C” from a hospital stay during the marriage. Irwin’s position is that these monies were additional funds provided for Hughes’ use. Hughes argues these were not funds provided for his use but rather in partial repayment of debts owed by both parties to his mother.

[21] Hughes made an assignment in bankruptcy on April 19, 2010. He was discharged on April 20, 2012. The bankruptcy trustee did not pursue an equalization claim on Hughes’ behalf.

[22] Hughes issued his Application herein on September 18, 2013. Hughes’ Application checked off box 20 of the Claim By Applicant standard form indicating he was seeking an “equalization of net family properties”. The only property claim detailed in his Application is where Hughes asks for “An Order that the Respondent’s pension be valued and divided at source per current Pension Legislation.” In addition and among other relief, Hughes seeks spousal support.

[23] At no time has Hughes’ obtained any order permitting him to pursue the equalization claim or to seek a proprietary interest in Irwin’s pension.

Hughes’ Motion for Temporary Spousal Support

[24] Hughes’ Notice of Motion seeks spousal support from Irwin payable to him in the amount of $3,373.00 monthly based on his annual income imputed to $30,000.00, Irwin’s suggested annual income of $149,848.00 and the mid-range of the Spousal Support Advisory Guidelines (“SSAG”).

[25] The Court has the jurisdiction to make an interim spousal support order pursuant to Section 15.2(2) of the Divorce Act, R.S.C. 1985, c.3 ("the Divorce Act"). The factors which the court must take into consideration in making an interim order for spousal support are stipulated in Section 15.2(4) of the Divorce Act, which provides “The court shall take into consideration the condition, means, needs and other circumstances of each spouse, including:

a. the length of time the spouses cohabited;

b. the functions performed by each spouse during cohabitation; and,

c. an order, agreement or arrangement relating to support of either spouse.”

[26] The objectives of a spousal support order are set out in s. 15.2(6) of the Divorce Act where it directs that an order should:

a. recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

b. apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

c. relieve any economic hardship of the spouses arising from the breakdown of the marriage; and,

d. in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

[27] There should be no different application of the section 15.2(4) and 15.2(6) considerations on an interim motion than when assessing on a final basis at trial. However, the practical reality is that the Court on a motion determining a request for temporary spousal support is usually in the disadvantaged position of trying to make this decision with partial, often conflicting and untested evidence in the form of competing affidavits volleyed from each side.

[28] On an interim motion for spousal support, all Hughes must prove is a prima facie case for support. In establishing a prima facie case, a significant inquiry into the merits is unnecessary (see: Brink v. Young, 2011 CarswellOnt 11614 and Di Genova v. Monaco, 2012 ONSC 6390).

[29] The evidence on this motion is far from perfect or complete. The affidavit materials are in conflict on material points. No cross-examinations on the sworn affidavits or financial statements filed by the parties herein have been undertaken to assist the Court in reconciling differences or distilling the fundamental evidence. All of this is to say that any decision I am able to make on this motion can only be considered temporary and imperfect to be revisited at the instance of either or both parties at trial upon complete evidence, including cross-examinations.

[30] In my view, entitlement is not seriously at issue on the evidence before me. Counsel for Irwin, appropriately, conceded that the roles adopted in the marriage established entitlement, although Irwin submits that entitlement should only be for brief, transitional support. Irwin by her conduct in making the monthly support payments to Hughes in 2009 and the lump sum payment also concedes entitlement to some degree.

[31] The parties crafted a plan to adopt Selena based on two, related factors. One, Irwin would continue in her full time employment providing the financing for the family and household. Two and premised entirely on factor one, Hughes would be the stay at home parent. The parties dispute whether there was agreement as to the duration of the roles. However, the fact is that the parties agreed to these roles being undertaken to facilitate the adoption of Selena, these roles were in fact undertaken and remained until the date of separation.

[32] I have no difficulty in concluding that temporary spousal support is warranted. Whether this support is transitional or otherwise is something best left to the trial judge upon complete evidence, including the assistance of cross-examinations. The trial court will also be in the best position to characterize the payments already received by Hughes in the form of periodic payments in 2009 and the $30,000.00 lump sum payment in the overall analysis of retroactive and ongoing support obligations.

[33] A primary argument of Irwin in resistance to the claim for spousal support is her suggestion that Hughes has not made sufficient efforts to find full-time employment and related remuneration. Hughes counters by saying that his two current jobs constitute full-time hours and income. Typically, efforts to become self-sufficient will not be the focus of the Court at the interim support stage (see: Hotte v. Robertson, [1996] O.J. No. 1433). The fundamental fact on this motion is that the marital roles adopted removed Hughes from the workforce for an extended period and created a relationship of dependency.

[34] Hughes suggests that his income is approximately $25,000.00 annually from what he says is full-time employment but suggests this Court impute his income for support purposes to $30,000.00. Irwin argues Hughes’ income should be imputed to $50,000.00, which is about $10,000.00 more than what Hughes states he was earning when last employed full-time just prior to Selena’s adoption in 2000.

[35] Income may be imputed in circumstances where an individual is intentionally under-employed or unemployed (see: Drygala v. Pauli, 2002 41868 (ON CA), 2002 CarswellOnt 3228 (C.A.) and section 19(1) of the Guidelines). Prior to a court imputing income to a party under Section 19(1), they must undertake the three part analysis set out by the Court of Appeal in Drygala (2002). The onus is on Irwin to establish an evidentiary basis upon which to establish that Hughes is intentionally unemployed or underemployed. The Court in Smith v. Smith, 2012 CarswellOnt 3113 (S.C.J.) suggested factors to consider when assessing the evidence and determining whether the party seeking an imputation of income has met the burden of persuasion. There is no basis on the limited evidence before me to impute Hughes’ income beyond the $30,000.00 he suggests.

[36] Irwin’s base income is approximately $118,155.00. However, she has earned as much as $143,000.00 in recent years. The evidence before me suggests that the significant income received by Irwin recently beyond her base salary represent one time events whereby in 2009 she received a lump sum payment for a retroactive pay increase and a further lump sum in 2012 for a pre-retirement severance. I also note that I have no evidence before me to determine whether any of the $450,000.00 settlement received by Irwin was designated as compensation for lost income. Similar to the income analysis for Hughes, the limited evidence available on this motion does not persuade me that Irwin’s income for support purposes should be greater than the $118,155.00 figure she earns as base salary. The judge at trial will be at liberty to assess whether this income figure is appropriate.

[37] Applying the incomes of $118,155.00 for Irwin and $30,000.00 for Hughes, the Spousal Support Advisory Guidelines suggest a midpoint spousal support payment of $2,072.00. I hereby order that Irwin shall pay temporary spousal support to Hughes in the amount of $2,072.00 monthly commencing May 1, 2014 and is payable each 1st of the month thereafter until further court order or agreement of the parties. I have ordered that payments commence May 1st, being the 1st of the month following the date the argument on the support issues was completed.

Child Support Payable by Hughes

[38] Hughes’ Notice of Motion seeks an order that he pay Child Support Guidelines (“CSG”) support to Irwin for Selena in the amount of $245.00 monthly based on an imputed income of $30,000.00.

[39] I hereby order that Hughes shall pay basic child support to Irwin for Selena of $270.00 based on his income of $30,000.00 and the Child Support Guidelines. These payments shall commence May 1st, 2014 and are payable each 1st of the month thereafter until further court order or agreement of the parties.

[40] In addition to his basic monthly child support payment, Hughes shall also contribute to Selena’s section 7 extraordinary expenses. The two such expenses set out in the evidence before me are her horseback riding and dance in the total amount of $1,000.00 monthly. Hughes’ proportionate contribution to these expenses is 37 per cent, namely $370.00 monthly. These payments shall commence May 1, 2014 and are payable each 1st of the month thereafter until further court order or agreement of the parties.

[41] I have ordered that child payments commence May 1st, being the 1st of the month following the date the argument on the support issues was completed. In doing so, I recognize that both Hughes and Irwin had a child support obligation commencing from the date of separation when Selena was splitting her residence between Hughes’ and Irwin’s home. Hughes’ child support obligation to Irwin continued from the point Selena commenced residing primarily with Irwin. However, there was no retroactive claim for child support before me. In fact, it was Hughes not Irwin who brought the motion for child support before me. Given this and the limited evidence before me as to the parties’ incomes, the issue of retroactive child support shall be left for the trial judge along with spousal support as noted above.

[42] Support Deduction Order to issue for the spousal and child support, including section 7 contributions ordered above.

Irwin’s Motion to Dismiss Claim to Pension

[43] Irwin’s Notice of Motion seeks a summary judgment dismissing Hughes’ claim for a division of her pension.

[44] Irwin’s position is simply that Hughes’ request to a share in her pension is part of the larger equalization issue. More specifically, the only right Hughes had was to share in the growth in the value of the pension over the marriage as part of the equalization accounting and calculation for all matrimonial assets and liabilities. Irwin argues that the pension is not property independent of that equalization calculation. She states that a pension is no different from any other marital asset such that it must be accounted for and form part of the overall equalization valuation and calculation. On that basis, Irwin argues that any equalization claim Hughes had, which would incorporate any claim to a share in her increased pension value over the marriage, was released and forever lost by his bankruptcy discharge.

[45] Hughes states that Irwin’s pension was an asset exempted from the bankruptcy process and, as a result, extant for him to share in. Said another way, the pension was not an asset available for the bankruptcy trustee to call upon to satisfy Hughes’ creditors and, therefore, was not part of the bankruptcy process. Given the exempted pension could not form part of the bankruptcy, Hughes argues his claim to a share in the pension was not released by his discharge and is available for him to now pursue. Alternatively, Hughes argues that his bankruptcy discharge did not release his claim to share in Irwin’s pension given that his Application seeking that relief was issued subsequent to that discharge.

[46] The analysis of these competing arguments requires a brief discussion of the interplay between equalization claims and bankruptcy proceedings.

[47] Once an assignment in bankruptcy has been made, all claims against the bankrupt are automatically stayed. However, a creditor may apply to the court seeking an order to undo this automatic stay thereby permitting the applicant creditor to pursue his/her claim (see section 69.4 of the Bankruptcy and Insolvency Act).

[48] Subject to a creditor obtaining an order permitting a claim to be pursued and very limited exceptions for child and spousal support debts or debts arising from the commission of fraud, the bankrupt’s debts are released upon a discharge being granted (see section 178 of the Bankruptcy and Insolvency Act). The formal language of section 178(2) states that “an order of discharge releases the bankrupt from all claims provable in bankruptcy” (see section 121 of the Bankruptcy and Insolvency Act for the definition of what a “claim provable” is in a bankruptcy proceeding).

[49] Ontario has adopted an equalization payment regime for separating or divorcing spouses. In very simple terms, an equalization regime provides now separated spouses with the right to share equally in the increased value of marital property (assets less liabilities) measured from the date of marriage to separation. This regime involves an itemizing and valuation of the marital property for each spouse. The spouse with the higher property value owes a payment of one-half the difference to the spouse with the lesser value thereby providing each with equal shares. The payment to equalize is a debt owing by the spouse with the higher property value to the other spouse. Neither spouse is entitled to any proprietary interest in the marital property of the other. Each spouse retains their respective property items.

[50] The equalization payment regime in Ontario is to be contrasted with a division of property regime that provides for a right to divide the actual marital property items themselves.

[51] The Ontario Court of Appeal addressed the intersection of an equalization and bankruptcy claim in Thibodeau v. Thibodeau, 2011 ONCA 110 at paragraph 37 stating as follows:

Ontario's Family Law Act adopted an equalization payment regime. Separating spouses are not entitled to receive a division of property. Rather, they are entitled (generally speaking) to receive one-half of the value of the property accumulated during the marriage. An equalization payment is the chosen legislative default position. On the bankruptcy side, unsecured creditors are to be treated equally and the bankrupt’s assets to be distributed amongst them equally subject to the scheme provided in section 136 of the Bankruptcy and Insolvency Act Parliament has not accorded any preferred or secured position to a claim for an equalization payment. While it has recently chosen to amend the Bankruptcy and Insolvency Act to give certain debts or liabilities arising in relation to claims for support and/or alimony a preferred status, Parliament has made no such provision for equalization claims in relation to family property.

[52] Distilled to its fundamental principle, the Ontario Court of Appeal in Thibodeau made it clear that an equalization payment creates a debtor and creditor relationship between the spouses. This equalization debt is unsecured and has no preferred status in a bankruptcy proceeding. As such, any provable equalization claim is released upon discharge of the bankrupt.

[53] The intersection of equalization and bankruptcy claims came before the Supreme Court of Canada in Schreyer v. Schreyer, 2011 SCC 35, [2011] 2 S.C.R. 605. In that case, the Court addressed the issue of whether an equalization claim could survive bankruptcy and be subsequently enforced against property exempt from the bankruptcy process, namely a family farm where the non-bankrupt spouse had no notice of the bankruptcy, was not named as a creditor within those proceedings and only became aware of the bankruptcy proceedings after the discharge.

[54] The Supreme Court in Schreyer reviewed the equalization regime followed in Manitoba, which is similar to that of Ontario. Consistent with the Court in Thibodeau, the Court determined that the equalization process gives rise to a monetary claim which establishes a "debtor-creditor relationship" where it stated:

[15] The equalization model involves a valuation of the family assets and accounting. The value of the assets is then divided between the spouses usually in equal parts, although family courts have a limited discretion to order an unequal division. The valuation and division give rise to a debtor-creditor relationship in the sense that the creditor spouse obtains a monetary claim against the debtor spouse. But the assets themselves are not divided. Each spouse retains ownership of his or her own property both before and after breakdown of the marriage. Neither acquires a proprietary or beneficial interest in the other’s assets. Assets are transferred only at the remedial stage, as agreed by the parties or as ordered by the family court in exercising its discretion, as a form of payment or execution of the judgment.

[55] Further to the above and again consistent with Thibodeau, the Court in Schreyer noted that any provable equalization claim is released upon discharge of the bankrupt where stating at paragraph 20. “…every claim is swept into the bankruptcy and that the bankrupt is released from all of them upon being discharged unless the law sets out a clear exclusion or exemption."

[56] The next issue considered by the Court in Schreyer was whether an equalization claim was a claim provable under the Bankruptcy and Insolvency Act and the impact of the timing for such claims where the Court wrote:

[26] Section 121 Bankruptcy and Insolvency Act contains a broad definition of a provable claim, which includes all debts and liabilities that exist at the time of the bankruptcy or that arise out of obligations incurred before the day the debtor went into bankruptcy. Thus, s. 121 provides that "[a]ll debts and liabilities, present or future, to which the bankrupt is subject on the day on which the bankrupt becomes bankrupt or to which the bankrupt may become subject before the bankrupt's discharge by reason of any obligation incurred before the day on which the bankrupt becomes bankrupt" are deemed to be provable claims. According to s. 121(2), the trustee must apply s. 135 Bankruptcy and Insolvency Act to determine whether contingent or unliquidated claims are provable. If the debt exists and can be liquidated, if the underlying obligation exists as of the date of bankruptcy and if no exemption applies, the claim will be deemed to be provable.

[27] The date of the bankruptcy is of critical importance. If the equalization claim was liquidated before the bankruptcy, there is no doubt that the claim is provable. If it was still unliquidated as of the date of the bankruptcy, the issue becomes whether it remained too uncertain to allow the trustee to value it under s. 135 Bankruptcy and Insolvency Act. In the instant case, given the nature of Manitoba's equalization scheme, I consider the claim to have been provable. The Family Property Act establishes a principle of equality between spouses. The accounting of assets and liabilities under s. 15 Family Property Act leads to an equal division, subject to a limited judicial discretion under s. 14 to depart from the formula provided for in s. 15. A right to payment existed in this case from the time of separation of the spouses, and hence existed at the time of the bankruptcy. All that remained was to determine the quantum by applying a clear formula that left little scope for judicial discretion. In such circumstances, the claim could not be considered so uncertain that s. 135 Bankruptcy and Insolvency Act could not apply. On the contrary, the appellant's claim, which had arisen before the bankruptcy and was determinable under the Family Property Act, was provable”.

[57] Irwin seeks summary judgment dismissing Hughes’ claim for an equalization and division at source of Irwin’s pension.

[58] In Hryniak v. Mauldin, 2014 SCC 7, the Supreme Court of Canada set forth the analysis to be undertaken on a summary judgment motion. The Court reviewed the so called “full appreciation test” for summary judgment set forth by the Ontario Court of Appeal in Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764 and considered when summary judgment can be granted on the basis that there is “no genuine issue requiring a trial” as per rule 20.04(2)(a). The court also considered when it is against the “interest of justice” for the new fact-finding powers in rule 20.04(2.1) to be used on a summary judgment motion.

[59] The threshold consideration is to determine when summary judgment may be granted. The Supreme Court in Hryniak noted that summary judgment must be granted where there is no genuine issue requiring a trial and further provided as follows:

There will be no genuine issue requiring trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

[60] The Court in Hryniak stated that the fundamental question to be answered is whether a summary judgment motion will provide a “fair process and just adjudication”. The court went on to say that “the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute”.

[61] The Supreme Court in Hryniak also reflected on the powers provided to the motions judge under rule 20.04 subrules (2.1) and (2.2). The Court stated these tools are presumptively available and only become unavailable where it is in the interest of justice for such powers to be exercised only at trial. In her judgment, Justice Karakatsanis commented that “The interest of justice cannot be limited to the advantageous features of a conventional trial, and must account for proportionality, timeliness and affordability. Otherwise, the adjudication permitted with the new powers – and the purpose of the amendments – would be frustrated.”

[62] The Court noted that, “when the use of the new powers would enable a judge to fairly and justly adjudicate a claim, it will generally not be against the interest of justice to do so.” However, the inquiry must go further, and must also consider the consequences of the motion in the context of the litigation as a whole. The motion judge must engage in a comparison between the advantages of proceeding by way of summary judgment versus proceeding by way of trial. Such a comparison may include an examination of the relative cost, the speed of both procedures, the evidence to be presented and the opportunity to properly examine it.

[63] The Court suggested a two-step approach to determining a summary judgment motion.

[64] The first step is for the court to “determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-findings powers. There will be no genuine issue requiring trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure under rule 20.04(2)(a).”

[65] If the Court determines there is a genuine issue requiring a trial then the second step is to assess whether a trial can be avoided by using the new powers under rule 20.04 subrules (2.1) and (2.2). The Court in Hryniak observed that these powers are discretionary and available if “their use is not against the interests of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.”

[66] Before applying these principles to the motion before me, I do want to comment with respect to the ongoing obligations of a party responding to a summary judgment motion. It is well settled that the Responding party, namely Hughes, must put his best foot forward presenting sworn evidence of specific facts showing that there is a genuine issue requiring a trial (see Canadian Imperial Bank of Commerce v. Mitchell, 2010 ONSC 2227, [2010] O.J. No. 1502 and Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764).

[67] In summary and without detracting or deviating from the decision in Hryniak, the obligation on all parties and the court has remained constant in my view. The parties have the duty to place all available, relevant evidence before the court to consider on the motion. The court must determine whether the evidence before it, including any evidence that may be obtained through the additional powers under rule 20.04, is sufficient to make the findings needed to arrive at a final determination of the issue(s). If yes then judgment can be made on the summary motion. If not then a trial is required.

[68] In my view, Thibodeau and Schreyer address the arguments advanced by Hughes.

[69] Irwin and Hughes separated on January 18, 2009. Separated spouses such as Irwin and Hughes have the right to share equally in the increased value of marital property measured from the date of marriage to separation pursuant to the equalization regime followed in Ontario. The evidence that I do have before me depicts limited marital property with related uncomplicated equalization calculation. As stated in Schreyer “A right to payment existed in this case from the time of separation of the spouses, and hence existed at the time of the bankruptcy. All that remained was to determine the quantum by applying a clear formula that left little scope for judicial discretion”. Any equalization claim Hughes or Irwin had was provable from their date of separation forward and prior to Hughes’ assignment in bankruptcy on April 19, 2010.

[70] Hughes did not advance any evidence on the motion before me that he was owed an equalization payment. I have no ability to determine whether Hughes or Irwin were entitled to an equalization payment from the other but for the bankruptcy. Ontario's Family Law Act adopted an equalization payment regime. As such, I am at a loss to appreciate how I can provide Hughes with an interest in Irwin’s pension without first determining he is entitled to an equalization payment from her. Based on my review of the caselaw and applicable statutes, the Court must first find an equalization debt owing before moving on to the derivative issue of whether the Court will exercise its discretion to order an interest in a particular property item of the debtor spouse to ensure payment of that equalization debt.

[71] Essentially, Hughes bypassed the threshold matter of establishing he is owed an equalization payment presumably accepting that any such claim had been released by his bankruptcy. Instead, Hughes argued entitlement to divide Irwin’s pension at first instance on the basis of it being exempted property not forming part of the bankruptcy. In my view, accepting Hughes’ argument would be tantamount to adopting a division of property regime. I am not prepared to do this.

[72] Any equalization claim Hughes had was released when he was discharged from bankruptcy on April 20, 2012. As noted at paragraph 25. in Schreyer, the only option available to Hughes would have been to obtain an order from the bankruptcy court permitting him to pursue the equalization claim or to seek a proprietary interest in Irwin’s pension. I, in fact, adjourned this motion on April 7th specifically to permit Hughes an opportunity to obtain such an order. He took no steps to do so and, on the return of the motion, argued he was not required to obtain an order to pursue an interest in property exempted from the bankruptcy.

[73] I am satisfied that there is no genuine issue requiring a trial. This case does not present any genuine material fact requiring resolution at trial. Quite the contrary, the parties to this motion agree on the material facts for this motion. The parties differ on whether the material facts permit a claim for equalization and/or property division. This determination is a matter of law. A summary judgment motion, in my view, is perfectly suited to the final resolution of this motion where the only dispute is the determination of a matter of law on settled facts.

[74] Given the only issue to determine is whether an equalization and/or property division claim is available to Hughes and referencing the language in Hryniak, I conclude that the evidence before me allows for the necessary findings of fact and application of related legal principles to reach a just and fair determination of the issues in this case without resorting to the fact finding powers provided by rule 20.04 subrules (2.1) and (2.2).

[75] Irwin’s motion for summary judgment is granted. Hughes’ claim for an equalization and/or division of Irwin’s pension is dismissed.

Costs

[76] In my view, there was divided success on this hearing given that each party succeeded on their respective motions and both motions were dealing with significant issues. As such, there shall be no costs payable on for either Hughes’ or Irwin’s motion.

Fitzpatrick J.

Date: September 30, 2014