SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Alain Labrèche, Applicant
AND
Marie Lorraine Labrèche, Respondent
BEFORE: Justice H. J. Williams
COUNSEL: Sabrina J. Herscovitch, Counsel for the Applicant
Mimi Marrello, Counsel for the Respondent
HEARD: August 8, 2017
ENDORSEMENT
OVERVIEW
1The respondent Marie Lorraine Labrèche (“Ms. Labrèche”) seeks summary judgment dismissing the claims of the applicant Alain Labrèche (“Mr. Labrèche”), other than Mr. Labrèche’s claim for a divorce order.
2In his application, in addition to a request for a divorce order, Mr. Labrèche seeks:
An order that Ms. Labrèche pay to Mr. Labrèche retroactive child support and a portion of expenses under section 7 of the Child Support Guidelines relating to the couple’s son, Eric (“Issue #1”);
An order for equalization of net family property (“Issue #2”); and
In the alternative, if necessary, an order for division of Ms. Labrèche’s pension based on the doctrine of resulting trust (“Issue #3).
3Ms. Labrèche brings her summary judgment motion under Rule 16 of the Family Law Rules, O. Reg. 114/99, as am. (the “FLRs”).
FACTUAL BACKGROUND
4Most of the relevant facts are not in dispute.
5The parties married in March, 1992.
6They had two sons, Eric who was born in 1993 and Mathieu who was born in 1996.
7Eric turned 18 in June, 2011 and finished secondary school shortly afterwards.
8The couple separated in October, 2011. (Mr. Labrèche’s affidavit made reference to two attempts at reconciliation in 2012 but Mr. Labrèche’s notice of application said that October, 2011 was the date of the separation, the same separation date provided by Ms. Labrèche in her affidavit.)
9Following the couple’s separation, Mathieu lived with Ms. Labrèche and Eric lived with Mr. Labrèche.
10After finishing secondary school in 2011, Eric worked part-time. He did not return to school until September of 2014. He was a full-time student from September of 2014 until April of 2015.
11Mathieu turned 18 in 2014. Mathieu did not pursue post-secondary education.
12Mr. Labrèche was a federal civil servant who was on disability leave for almost 10 years during the couple’s marriage, from August of 2002 until April or May of 2012, when he returned to work.
13Ms. Labrèche was employed by a federal Crown corporation throughout the marriage.
14In May of 2012, Mr. Labrèche made a consumer proposal under the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, s. 69.3. Mr. Labrèche completed the terms of his consumer proposal in May, 2017.
15Ms. Labrèche made an assignment in bankruptcy in June of 2012.
16In the statement of affairs attached to her notice of bankruptcy, Ms. Labrèche did not include her pension as an asset and did not name Mr. Labrèche as a creditor.
17Ms. Labrèche was discharged from bankruptcy in March, 2014.
18Mr. Labrèche issued his application in Family Court on October 14, 2016.
LAW AND ANALYSIS
19This is a motion for summary judgment under Rule 16 of the FLRs.
20Ms. Labrèche relies upon Rule 16(8) of the FLRs which provides as follows:
If the only genuine issue is a question of law, the court shall decide the issue and make a final order accordingly.
21Ms. Labrèche also relies upon Rule 16(12) of the FLRs which sets out the options available to a court on a motion for summary decision on a legal issue, which include deciding a question of law and dismissing a case on the basis that the court has no jurisdiction to hear it.
22The principles in Hryniak v. Mauldin 2014 SCC 7 have been applied in many summary judgment motions under Rule 16 of the FLRs.
ISSUE #1: Mr. Labrèche’s request for an order for retroactive child support and section 7 expenses in relation to the couple’s older son
23Mr. Labrèche is seeking support and section 7 expenses for a defined period of time, from September of 2014 to April of 2015, when the couple’s son Eric was enrolled in a college program.
24Eric was enrolled in a two-year program but attended for only two semesters.
25To the affidavit he filed in response to Ms. Labrèche’s motion, Mr. Labrèche attached emails and correspondence from 2013 and 2014 setting out requests he had made to Ms. Labrèche to settle the issues relating to their separation, including support for Eric. Mr. Labrèche also requested that Ms. Labrèche participate in mediation. A lawyer wrote a letter on behalf of Mr. Labrèche to Ms. Labrèche in March, 2015. This correspondence all either pre-dated or was contemporaneous with Eric’s full-time enrolment in college.
26In her affidavit, Ms. Labrèche did not refer to Mr. Labrèche’s requests for support for Eric or provide an explanation for her failure to contribute to Eric’s support or expenses during the period of time he was enrolled in post-secondary education.
27Mr. Labrèche said in his affidavit that he had paid $300.00 per month in support as well as extraordinary expenses to Ms. Labrèche for Mathieu until Mathieu turned 19 in March of 2014. (Mathieu would have turned 18 in March of 2014.)
Ms. Labrèche’s position
28Ms. Labrèche says that Mr. Labrèche is not entitled to claim retroactive child support and section 7 expenses in relation to Eric because Eric was not a “child of the marriage” at “the material time” in accordance with sections 2(1) and 15.1(1) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), as am.
29Ms. Labrèche says that “the material time” for purposes of determining whether a child is a “child of the marriage” is the time the spouse seeking support began their legal proceeding.
30Ms. Labrèche says that at the time Mr. Labrèche began his application in Family Court in October, 2016, Eric was over the age of majority, was not a student, was working full-time and was living independently of his parents; he was not, therefore, a “child of the marriage”.
31In the alternative, Ms. Labrèche argues that any retroactive support she may be ordered to pay on behalf of Eric should be reduced by the amount of retroactive support Mr. Labrèche may owe to her on behalf of Mathieu. (I note that under the Child Support Guidelines, the $300.00 per month Mr. Labrèche said he paid to Ms. Labrèche on behalf of Mathieu corresponds with an annual income of less than half the annual income Mr. Labrèche’s notices of assessment indicate he earned in 2013 and 2014. The amount may have been commensurate with Mr. Labrèche’s 2012 income; there was no evidence before me with respect to Mr. Labrèche’s 2012 income.)
32Ms. Labrèche says that there was never any written agreement or order dealing with the issue of child support or, in fact, any issue relating to the couple’s separation.
Mr. Labrèche’s position
33Mr. Labrèche says that, although he did not start his application against Ms. Labrèche until October, 2016, he had raised the issue of support and expenses for Eric and had made demands of Ms. Labrèche while Eric was living with him, both before and while Eric was enrolled in college.
34Mr. Labrèche says that he paid Ms. Labrèche support and extraordinary expenses for Mathieu but that Ms. Labrèche had never contributed to Eric’s support or expenses.
Analysis
35Mr. Labrèche seeks retroactive support and section 7 expenses from September of 2014 to April of 2015, the months Eric was enrolled in college.
36Under section 15.1(1) of the Divorce Act, a court may make an order requiring a spouse to pay support for a “child of the marriage” (“enfant à charge”).
37Section 2(1) of the Divorce Act defines a “child of the marriage” as a child of two spouses or former spouses who, at the material time (“à l’époque considerée”), is under the age of majority and who has not withdrawn from the spouses’ charge, or who is the age of majority or over and under the spouses’ charge but is unable, by reason of illness, disability or other cause (which may include the pursuit of education) to withdraw from their charge or to obtain the necessaries of life.
38In S. (D.B.) v. G. (S.R.), 2006 SCC 37 (“D.B.S.”) the Supreme Court of Canada considered the issue of retroactive child support. At para. 56, Bastarache J. described the child support regime under the Divorce Act as “application-based” and noted that except where a court is already seized of a divorce or separation matter, the court’s jurisdiction over child support payments will arise “only upon application by a person authorized pursuant to the legislation.”
39D.B.S. held that when a spouse is seeking retroactive child support, “the material time” for purposes of determining whether the child in relation to whom the support is sought is a “child of the marriage” is the time the spouse began their legal proceeding:
88 […] The question then arises when the “material time” is for retroactive child support awards. If the “material time” is the time of the application, a retroactive child support award will only be available so long as the child in question is a “child of the marriage” when the application is made. On the other hand, if the “material time” is the time to which the support order would correspond, a court would be able to make a retroactive award so long as the child in question was a “child of the marriage” when increased support should have been due.
89 In their analysis of the Guidelines, J. D. Payne and M. A. Payne conclude that the “material time” is the time of the application: Child Support Guidelines in Canada (2004), at p. 44. I would agree. While the determination of whether persons stand “in the place of . . . parent[s]” is to be examined with regard to a past time, i.e., the time when the family functioned as a unit, this is because a textual and purposive analysis of the Divorce Act leads to this conclusion; but the same cannot be said about the “material time” for child support applications: see Chartier v. Chartier, [1999] 1 S.C.R. 242, at paras. 33-37. An adult, i.e., one who is over the age of majority and is not dependent, is not the type of person for whom Parliament envisioned child support orders being made. This is true, whether or not this adult should have received greater amounts of child support earlier in his/her life. Child support is for children of the marriage, not adults who used to have that status.
40D.B.S. dealt with four cases, one of which was Henry v. Henry. In Henry, one of the children on behalf of whom a mother was seeking retroactive support was not a child of the marriage at the time the mother filed the notice of motion in which she requested support. The court concluded that it nonetheless had jurisdiction to deal with the matter because, before filing the notice of motion, the mother had served a notice demanding disclosure of the father’s income. Bastarache J. took into account that the disclosure notice was a formal legal procedure contemplated by the Child Support Guidelines:
- I would add that the eldest child affected by Rowbotham J.’s order was no longer a child of the marriage when the Notice of Motion for retroactive support was filed. In the circumstances of this appeal, however, this fact has no effect on the jurisdiction of the court to make a retroactive child support order under the Divorce Act. Because Mr. Henry did not disclose his income increase to Ms. Henry earlier, she was compelled to serve him with a Notice to Disclosure/Notice of Motion in order to ascertain his income for the years relevant to this appeal. This formal legal procedure, contemplated in the Guidelines and a necessary antecedent to the present appeal, sufficed to trigger the jurisdiction of the court under the Divorce Act. Because it was completed prior to the time the eldest child ceased being a child of the marriage, the court was able to make a retroactive order for this daughter.
41As noted above, Mr. Labrèche had sent emails to Ms. Labrèche in 2013 and 2014, before and during Eric’s enrolment in college, asking Ms. Labrèche to discuss the support issue. He had also sent a notice which he described as “une demande formelle” (a formal demand) that she participate in a mediation. A lawyer wrote to Ms. Labrèche on behalf of Mr. Labrèche in March, 2015. However, there was no evidence of any formal legal procedure before Mr. Labrèche’s application was issued in October, 2016.
42I appreciate that there may be not always be a clear line or a flare marking the endpoint of “child of the marriage” status. I am also mindful that because it appears that Eric had enrolled in a two-year college program but did not attend after the second semester of the first year, Mr. Labrèche may have expected Eric to continue to be a full-time student, thereby maintaining “child of the marriage” status, for more a year longer than he actually did. However, Mr. Labrèche’s application was not issued until 18 months after Eric ceased being a post-secondary student in April of 2015. It would have been apparent to Mr. Labrèche more than one year before the application was started that Eric was not going to be returning to college in the summer or fall of 2015.
43Since D.B.S. was decided, the case law has created exceptions to the rule that a child on behalf of whom support is sought must be a “child of the marriage” at the time of the application, but these exceptions apply to applications to vary child support orders and not to originating support applications. (Smith v. McQuinn, 2016 ONSC 7997, per Doyle J., paras. 42 to 59.)
44In Dnistrianskyj v. Savard, 2014 ONSC 2152, a father had paid child support on behalf of a daughter until the end of 2012. The mother first claimed what she described as “retroactive adult-child support” in a pleading in January, 2013.
45Minnema J. concluded that he had no jurisdiction to award child support because, at the time the mother made her claim for support, the daughter was 22 years old and was no longer a student:
Mr. Dnistrianskyj's main argument was that I have no authority to make a child support order. I agree. There is no dispute that Nicole was no longer a "child of the marriage", as defined in s. 2 of the Divorce Act, when Ms. Savard brought her claim. As noted in S.(D.B.) v. G. (S.R.), supra, paras. 85 to 90, in such a situation I do not have jurisdiction to order child support, either prospectively or retroactively. I therefore dismiss the child support claim for that reason.
Conclusion
46For the same reasoning as Minnema J Dnistrianskyj, I conclude that I have no jurisdiction over Mr. Labrèche’s claim for support and expenses for Eric. At the time Mr. Labrèche’s application was started in October, 2016, Eric was 23 years old and had not been enrolled in college since April, 2015. He was not, therefore, a “child of the marriage” “at the material time” in accordance with sections 2(1) and 15.1(1) of the Divorce Act.
47Mr. Labrèche’s claim for support and expenses for Eric does not raise a genuine issue requiring a trial.
48Because the court has no jurisdiction over the issue, the claim is dismissed under Rule 16(12)(c)(i) of the FLRs.
ISSUE #2: Mr. Labrèche’s claim for division of net family property
49Mr. Labrèche seeks an order for equalization of net family property.
50The only asset to have survived Ms. Labrèche’s bankruptcy and Mr. Labrèche’s consumer proposal was Ms. Labrèche’s pension. (In his affidavit, Mr. Labrèche acknowledged that he has a “modest pension”; Ms. Labrèche has not asserted a claim against Mr. Labrèche’s pension.)
Ms. Labrèche’s position
51Ms. Labrèche says that Mr. Labrèche’s equalization claim was a claim that was provable in bankruptcy. Ms. Labrèche says that Mr. Labrèche took no steps to seek leave from Ms. Labrèche’s bankruptcy trustee to pursue his claim for equalization before Ms. Labrèche was discharged from bankruptcy in March, 2014. Ms. Labrèche says that once she was discharged from bankruptcy, she was released from Mr. Labrèche’s right to pursue equalization.
52Ms. Labrèche relies on the Supreme Court of Canada decision in Schreyer v. Schreyer, 2011 SCC 35, [2011] 2 S.C.R. 605.
Mr. Labrèche’s position
53Mr. Labrèche’s arguments were as follows:
(a) That because Ms. Labrèche did not list him as a creditor or include her pension as an asset in her bankruptcy, Mr. Labrèche had no opportunity to request leave to pursue his claim for equalization;
(b) That, based on the decision of Kershman J. re Re Scott 2014 ONSC 5566, pensions are exempt from the reach of creditors in a bankruptcy so there is no prejudice to creditors if leave is granted to permit a spouse to pursue a claim against a bankrupt for equalization of family property;
(c) That his claim for equalization was not provable in bankruptcy because it had not been made at the time of Ms. Labrèche’s bankruptcy; and
(d) That Schreyer v. Schreyer is distinguishable on its facts; that Ms. Labrèche had failed to disclose her pension to her bankruptcy trustee whereas there was there was no indication that the husband in Schreyer v. Schreyer had failed to disclose the exempt asset in that case, a farm, to his bankruptcy trustee.
Analysis
54In Schreyer v. Schreyer, a husband made a post-separation assignment in bankruptcy. He did not list his wife as a creditor. The husband owned a farm which, like a pension, was exempt from execution by creditors. The Supreme Court held that the wife’s claim for equalization was provable in bankruptcy. Because the farm was exempt from execution by creditors, the wife, Ms. Schreyer, could have applied to bankruptcy court for leave to pursue a claim against the farm and permitting her to do so would not have prejudiced creditors. After obtaining leave from the bankruptcy court, Ms. Schreyer then could have asked the family court to attribute to her an interest in the farm to satisfy her equalization claim. However, Ms. Schreyer did not know about Mr. Schreyer’s bankruptcy and did not take these steps. The Supreme Court held that Ms. Schreyer’s rights in relation to the farm were extinguished by Mr. Schreyer’s discharge from bankruptcy.
55Except for the nature of the exempt asset, a farm rather than a pension, the situation in Schreyer v. Schreyer is similar to the Labrèches’ situation.
56Mr. Labrèche argued that he had no opportunity to request leave to pursue his claim for equalization because Ms. Labrèche had not listed him as a creditor in her bankruptcy. However, the situation in Schreyer v. Schreyer was the same in this respect and this had no bearing on the Supreme Court’s conclusion that Mr. Schreyer’s discharge from bankruptcy released Mr. Schreyer from Ms. Schreyer’s claim against the farm. I note also that there was some evidence on the motion before me (an email dated March 14, 2013 from Mr. Labrèche to Ms. Labrèche) that Mr. Labrèche, unlike Ms. Schreyer, was aware of his estranged spouse’s bankruptcy prior to the discharge.
57Kershman J.’s decision in Re Scott does not assist Mr. Labrèche. It was a bankruptcy court decision and the leave application in that case was brought before the bankrupt’s discharge.
58Mr. Labrèche also argued that because his claim for equalization of net family property had not been made at the time of Ms. Labrèche’s bankruptcy, it was not provable in bankruptcy. This is not determinative. Mr. Labrèche’s right to seek equalization arose as of the date of separation and the separation pre-dated Ms. Labrèche’s bankruptcy. In any event, section 121(1) of the Bankruptcy and Insolvency Act, which defines claims provable in bankruptcy, refers to “present or future” debts and liabilities:
121(1) All 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 shall be deemed to be claims provable in proceedings under this Act.
59Mr. Labrèche also argued that Schreyer v. Schreyer is distinguishable on its facts because Ms. Labrèche had failed to disclose the existence of her pension to her bankruptcy trustee while there was no indication that the husband in Schreyer v. Schreyer had failed to disclose the existence of the farm to his trustee. I do not believe that this argument, which is really to the effect that Ms. Labrèche’s bankruptcy trustee was not aware of an exempt asset, adds anything to Mr. Labrèche’s previous argument that he was not aware of his rights under his wife’s bankruptcy because of her failure to list him as a creditor.
Conclusion
60I agree with Ms. Labrèche’s position in relation to the effect of her bankruptcy and subsequent discharge on Mr. Labrèche’s right to seek equalization of net family property.
61I find that Ms. Labrèche’s discharge from bankruptcy released her from Mr. Labrèche’s claim for equalization.
62I find that this is a question of law that does not raise a genuine issue requiring a trial. Mr. Labrèche’s claim for equalization is dismissed under Rules 16(8) and 16(12)(a) of the FLRs.
63Mr. Labrèche argued that Ms. Labrèche’s failure to list him as a creditor and to list her pension as an asset was intentional and designed to escape her obligations to him as a creditor. As the lawyer for Ms. Labrèche pointed out during the hearing of the motion, if this is the case, Mr. Labrèche may have other remedies available to him. I make no further comment about the merits of any other remedies Mr. Labrèche may choose to pursue as they were not before me on this motion.
ISSUE #3: Mr. Labrèche’s alternative argument based on a resulting trust
Ms. Labrèche’s position
64Ms. Labrèche argued that there is no basis for a resulting trust in this situation and that no facts in support of a resulting trust argument were pleaded by Mr. Labrèche.
Mr. Labrèche’s position
65Mr. Labrèche argued that if the court finds that he had a provable claim at the time of Ms. Labrèche’s bankruptcy that was extinguished by Ms. Labrèche’s discharge, he should nonetheless be entitled to a division of Ms. Labrèche’s pension on the basis of a resulting trust.
66Mr. Labrèche argues that his entitlement to a resulting trust arises because he stayed at home with the children for almost 10 years while Ms. Labrèche was able to advance in her career and enhance the value of her pension.
Analysis
67Mr. Labrèche relies on the decision of Ramsey v. Proffitt (2001), 22 RFL (5th) 393; 29 CBR (4th) 266.
68In Ramsey v. Proffitt, a couple had signed a separation agreement which gave the wife, Ms. Ramsey, the right to apply in the future for an equal division of the husband’s pension. Without informing Ms. Ramsey, the husband, Mr. Proffitt, went bankrupt and was subsequently discharged. On two occasions, funds were transferred from Mr. Proffitt’s pension into RRSPs.
69Mackinnon J. held that because of the wording of the separation agreement, Ms. Ramsey’s claim was not provable in bankruptcy; Ms. Ramsey’s right to make an application for division of the pension in the future was not a right or claim to an equalization payment. Mackinnon J. also held that a resulting trust was created by the couple’s separation agreement and that Mr. Proffitt held half of his pension in trust for Ms. Ramsey. Mackinnon J. held that, alternatively, because of the separation agreement, Mr. Proffitt was acting in a fiduciary capacity and his transfers of the pension funds to RRSPs amounted to a breach of fiduciary duty. Consequently, Ms. Ramsey’s claim was not extinguished by Mr. Proffitt’s discharge from bankruptcy.
70In Ramsey v. Proffitt, Mackinnon J. found that it was the separation agreement which pre-dated Mr. Proffitt’s bankruptcy that created the resulting trust and gave rise to the fiduciary duty. As I noted in the preceding paragraph, Mackinnon J. also concluded that it was because of the wording of the separation agreement that Ms. Ramsey’s claim was not provable in bankruptcy.
71Ramsey v. Proffitt is distinguishable for these reasons and does not assist Mr. Labrèche.
Conclusion
72Although I appreciate that Mr. Labrèche was a stay-at-home father for 10 years of the couple’s marriage while he was receiving a disability pension and that Ms. Labrèche worked outside the home throughout this period, I agree with Ms. Labrèche that there is no factual foundation for a resulting trust claim pleaded in Mr. Labrèche’s notice of application, nor is there any evidence in support of a resulting trust in his affidavit.
73I find that there is no genuine issue requiring a trial in relation to Mr. Labrèche’s claim for a resulting trust. Mr. Labrèche’s claim for a resulting trust is dismissed under Rules 16(8) and 16(12)(a) of the FLRs.
SUMMARY OF ORDERS
74Mr. Labrèche’s request for an order for a divorce may proceed.
75The balance of Mr. Labrèche’s application is dismissed.
COSTS
76The parties may make submissions with respect to costs, not exceeding three pages in length.
77Ms. Labrèche shall serve and file her submissions within two weeks of the date of release of these reasons.
78Mr. Labrèche shall serve and file his responding submissions within two weeks of the date of service of the submissions of Ms. Labrèche.
79Ms. Labrèche may make reply submissions within two weeks of the date of service of Mr. Labrèche’s responding submissions.
Madam Justice H.J. Williams
Date: 2017/11/07
CITATION: Labrèche v Labrèche, 2017 ONSC 6702
COURT FILE NO.: FC 16-2229
DATE: 2017/11/07
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Alain Labrèche, Applicant
AND
Marie Lorraine Labrèche Respondent
BEFORE: Justice H. J. Williams
COUNSEL: Sabrina J. Herscovitch, Counsel for the Applicant
Mimi Marrello, Counsel for the Respondent
HEARD: August 8, 2017
ENDORSEMENT
Madam Justice H.J. Williams
Released: 2017/11/07