Court File and Parties

COURT FILE NO.: FC-18-1624 DATE: 2019/07/15 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Breanna Lynn Beischer, Applicant AND Brent Robert Laurier Cournoyer, Respondent

BEFORE: Justice Engelking

COUNSEL: Tanya C. Davies, Counsel for the Applicant Marta Siemiarczuk, Counsel for the Respondent

HEARD: July 11, 2019

Endorsement

[1] Ms. Beischer has brought a Motion to Change the Final Order of Justice Warren of the Supreme Court of British Columbia dated December 1, 2017. In her Motion to Change, Ms. Beischer seeks an order for spousal support retroactive to the date of separation, as well as on an on-going basis, which is a variation of paragraph 41 of the Final Order of Justice Warren, and she seeks essentially to set aside paragraph 64 of the Final Order, in which Ms. Beischer waives any and all entitlement to Mr. Cournoyer’s military pension. In the context of Ms. Beischer’s Motion to Change, Mr. Cournoyer has brought a Motion seeking an order that Ms. Beischer produce to him a complete copy of her BC counsel’s file in relation to the matrimonial litigation, and Ms. Beischer has brought a Cross-Motion for temporary spousal support. The issues to be decided today are thus twofold:

(a) Should Ms. Beischer be ordered to produce to Mr. Cournoyer a complete copy of her lawyer, Ms. Amalia Schon’s file in relation to the parties’ matrimonial litigation in British Columbia, including all notes, records and correspondence?

(b) Should Mr. Cournoyer be ordered to pay temporary spousal support to Ms. Beischer?

[2] For the reasons provided below, I find that Ms. Beischer will be required to produce to Mr. Cournoyer a complete copy of Ms. Schon’s file, and that there will be no order that Mr. Cournoyer pay temporary spousal support.

Issue #1 – The Production of Ms. Schon’s File

Relevant Background Facts

[3] The parties married in September of 2006 and separated in April of 2017. Two children were born of the marriage, Morgan in 2009 and Avery in 2012. Mr. Cournoyer is a member of the Royal Canadian Navy and the family moved to British Columbia when he was posted there in 2013.

[4] The parties separated in April of 2017. Ms. Beischer returned to Ontario in the summer of 2017 with the children for a visit with both parties’ families, as was customary. There is a dispute as to whether Mr. Cournoyer consented to Ms. Beischer staying in Ontario after the visit, as was her express intention. In June of 2017, when he returned to shore, Mr. Cournoyer brought an application in the BC Supreme Court seeking an order that the children be returned to British Columbia, and other relief related to parenting time and financial matters. The matter was scheduled to Motion on August 29, 2017, at which Mr. Cournoyer was seeking a temporary order for the return of the children.

[5] On August 21, 2017, Mr. Cournoyer’s counsel sent a letter to Ms. Beischer, which he then also sent to her counsel, Ms. Schon, the following day, in which he made two proposals for Ms. Beischer’s consideration. The first proposal included Ms. Beischer returning to BC with the children. Included in that proposal were the following two provisions:

16. The entitlement you are to receive to Brent’s pension will be from 2011 to 2017 and it does not include the buy back period amount purchased with the Registered Retirement Savings Plan Brent acquired prior [sic] the relationship of the parties.
17. Brent will purchase from you her share of his pension and both parties will agree on an actuary to review the pension, determine the value of the relevant period and provide a written report to the parties setting out the purchase price.

[6] The second proposal included Ms. Beischer remaining in Ontario with the children and the following was provided:

14. There will be no division of Brent’s pension and you give up all entitlement to the pension.

[7] The evidence of both parties is that the temporary hearing was nevertheless scheduled to proceed on August 29, 2017. Mr. Cournoyer was present at court with his counsel, Mr. Cote and Mr. Sekhon. Ms. Beischer was still in Ontario and not present at court, but her counsel, Ms. Schon was there representing her. The parties commenced negotiating a solution to the Motion, and Ms. Beischer spoke to Ms. Schon several times by telephone during the course of those discussions. The issue of the value of Mr. Cournoyer’s pension was raised, and Mr. Cournoyer’s evidence is that Mr. Cote and Ms. Schon discussed the approximate value of his pension, and that they were able to approximate a very rough estimate of it’s worth based on calculating his pension contributions from a paystub that was in evidence and the number of years of entitlement during the marriage (which was six). Based on these discussions, it was agreed, or determined, that the value of Mr. Cournoyer’s pension was approximately $40,000. According to Mr. Cournoyer’s evidence, Ms. Schon appeared to be satisfied with the value of the pension and she agreed that Ms. Beischer would waive her entitlement to her share of it in favour of remaining in Ontario with the children. Mr. Cournoyer assumed that Ms. Schon had Ms. Beischer’s instructions to do so. The parties were able to come to an agreement in principle on the remaining issues, and the temporary hearing did not proceed.

[8] The day following the hearing, Mr. Sekhon and Ms. Schon had an email exchange regarding the pension documents referred to in the discussion the day before. This exchange is relevant and I set it out in full below:

Mr. Sekhon to Ms. Schon at 11:51 am on August 30, 2017

Amalia

WITHOUT PREJUDICE

The document we were referring to regarding the pension is attached to Mr. Cournoyer’s Financial Statement. Specifically, at or near the end of the attachments is a July pay statement that includes information related to Mr. Cournoyer’s current pension deductions. Under “superannuation” you’ll see the monthly deduction.

As we noted in our discussion, using this amount would have the pension value at or around approximately $40,000.00 however, because Mr. Cournoyer’s income is currently at at [sic] higher amount, the pension valued is likely closer to $30,000.00 by our calculation.

I’ve attached the document for your reference as well.

Regarding the draft order, expect to receive it soon for your review.

Ms. Schon to Mr. Sekhon at 2:45 pm on August 30, 2017

Paul, where does it say he has only been collecting it for 6 years? Perhaps I am missing it. We settled based on bona fide information provided to us as we did not have the documents at court. I would still like to see the documents out [sic] settlement was based on, for my records. I need the document where it says that he began contributing six years ago.

[9] On September 4, 2017, Mr. Cote sent a further email to Ms. Schon which provided as follows:

Mr. Cote to Ms. Schon at 8:04 pm on September 4, 2017

Amalia,

My office is going to reset the matter to speak to the consent order this week.

Mr. Cournoyer’s eligibility for a military pension started when he joined the regular force which was in 2011, hence the 6 years. While in the relationship Ms. Bisher [sic] obtained her Master’s Degree in education. The deal made by the parties is fair, particularly in light of Mr. Cournoyer agreeing to the children residing in Ottawa. That is a major concession. If Ms. Beisher [sic] wishes to reside in BC and divide the 6 years I suspect Mr. Cournoyer will gladly agree to that arrangement. He can arrange to have most if not all of his career on [sic] West coast.

My office has made final edits to the agreement and will have a copy over to you tomorrow. Let’s work this into final shape and finalize this matter.

[10] The parties continued to work towards finalizing the matter, and on December 1, 2017, the Final Order of Justice Warren was granted on consent. Paragraph 64 of the Final Order provides: “Breanna waives any and all entitlements to Brent’s military pension.”

[11] But for the exchange of emails on August 30, 2017, there was no further evidence before me as to whether Ms. Schon requested additional disclosure with respect to the Family Law Value of Mr. Cournoyer’s pension prior to the December 1, 2017 consent order being entered into.

[12] Mr. Cournoyer’s position with respect to protecting his pension during the negotiations that led to the Final Order was that if the children were going to remain in Ottawa, it would be his intention to return to Ottawa at the end of his then posting as well. However, such a move would come at a significant cost to him, as he would firstly have to relocate, secondly accept a lower paying position and thirdly significantly reduce his opportunities for advancement in the Navy as he would no longer be on the coast. He relied upon the agreement reached and, indeed, did move to Ottawa in March of 2018.

[13] The parties were having a disagreement about the appropriate increases to Mr. Cournoyer’s parenting time in Ottawa and they attempted mediation. Mr. Cournoyer stated that it was in the context of their attempted, but unsuccessful, mediation that he learned of Ms. Beischer’s position that the equalization of the parties’ property was faulty. In July of 2018, Mr. Cournoyer, for the first time, received information from his pension holder with respect to the value of his pension. That information indicated that the estimated value of Ms. Beischer’s interest in his pension was $233,000 based on:

Service Dates: September 06, 2011 to Current (July 05, 2018);

Cohabitation Date: September 24, 2006 to April 7, 2017; and,

Buyback Date: April 6, 1995 to Feb 28, 2007 – Purchased back Jan 2016.

[14] Ms. Beischer commenced her Motion to Change in August of 2018, seeking primarily a variation of spousal support from zero based on the material change of circumstances of Mr. Cournoyer having relocated to Ottawa. Although there is no claim to set aside her waiver of her entitlement to a share of Mr. Cournoyer’s pension in the Form 15: Motion to Change, she does request it in her Form 15A: Change Information Form. In “Schedule A” of her Change Information Form, Ms. Beischer claims the following:

In paragraph 12: “The agreement/order drafted was poorly done.”

In paragraph 15: “The Applicant then had to negotiate a separation agreement, which was made into a court order, while she was already living in Ontario. She was afraid that she would be ordered to return to BC. This explains why some issues were simply not addressed, such as the Respondent’s pension.”

In paragraph 21: “The Respondent has a government pension, the value of which was never disclosed. There was a clause in the separation agreement that said that the Applicant wife waived an interest in his pension. This should be set aside. The value of the pension was never disclosed. The Applicant could not give up a right to an asset about which she had no information. There should be proper financial disclosure, including a pension valuation and division.”

Analysis

[15] It is based on Ms. Beischer’s challenge to paragraph 64 of the Final Order of Justice Warren that Mr. Cournoyer seeks an order for disclosure of Ms. Schon’s file. Ms. Beischer is adamantly opposed to such an order, based on the sacrosanctity of solicitor/client privilege. It is trite law that solicitor-client privilege is “a principle of fundamental justice and civil right of supreme importance in Canadian law” [1] , including in the sphere of Family Law [2] . It is also trite law that the privilege is not absolute. [3] Mr. Cournoyer agrees that the contents of Ms. Schon’s file are privileged, but he takes the position that Ms. Beischer has waived her privilege in taking the position she has. I agree.

[16] This case is, in my view, very much like that of Einstoss v. Starkman, 2010 CarswellOnt 4685, wherein the wife was seeking: “An order setting aside the equalization payment made pursuant to J. Chapnick [sic] dated May 2, 2000 and a determination of a proper equalization payment to the Respondent/Mother”. [4] Although not properly plead in these proceedings, this is essentially exactly what Ms. Beischer is seeking.

[17] In Einstoss, the wife’s position was that she did not receive full disclosure at the time of the settlement, and that the husband was hiding something. Ms. Starkman denied that “in advancing this position she is questioning the legal advice provided to her by Torkin Manes at the time.” [5]

[18] Ms. Beischer is taking the position in this case that the fault lies with Mr. Cournoyer and/or his counsel in British Columbia, Mr. Cote and Mr. Sekhon. She submits that she and her counsel were materially mislead (she goes so far as to suggest knowingly and purposely so) [6] by Mr. Sekhon, in particular, in relation to his “on the fly” calculation of the value of Mr. Cournoyer’s pension on August 29, 2017, which he confirmed by email to Ms. Schon on August 30, 2019. Ms. Beischer suggests that her position with respect to the faulty nature of her waiver has nothing whatsoever to do with Ms. Schon, but everything to do with this alleged material misrepresentation by Mr. Sekhon. Her position is that access to Ms. Schon’s file is irrelevant, and the privilege she enjoys in respect thereto should not therefore be interfered with. [7]

[19] However, as Justice Kelly stated in Einstoss, at paragraph 32 of the judgment:

32. Where a client puts in issue his or her state of mind or knowledge with respect to matters on which she alleges a breach of duty by his or her solicitors, the client will be deemed to have waived privilege as to all communications and advice received by him or her relating to such matters.

[20] In paragraphs 25, 27 and 31 of her affidavit sworn on May 24, 2019, Ms. Beischer deposes as follows:

25. Prior to August 29, 2017, discussions with Amalia and I were focused on mobility since that was the point of the hearing of the applicant. But instead of it being a mobility hearing they showed up at the courthouse stating either I return to BC with the children or stay in Ottawa but waive my rights to the Respondent’s pension ($40,000 or less pension) and agree to his increased parenting time. They said that if I did not agree, that they would request to be heard by any judge/master to force me back to BC. I decided that taking a risk with any judge/master who did not know family law was too big a risk and so I chose to waive my rights to the $40,000 or less pension and allow the Respondent his increased parenting time if it did not impact the children negatively when he was here.

26. I understood that the Respondent’s pension and my entitlement would be half of $40,000 if I returned to BC with the children. I chose to stay in Ottawa and waive my rights to half of the $30,000 - $40,000 amount that his lawyers calculated on August 29, 2017. His lawyers mislead us into believing the amount of the Respondent’s pension by only supplying the one pay stub and continually stating that by using this paystub the calculations are clear. This has shown to be untrue as his pension is worth $233,962.

27. The bottom line here is I understood that I was waiving a pension with a small value because that is the information that was provided to me, provided to me by counsel of the Respondent and the Respondent himself. All that information is before the Court.

[21] Clearly Ms. Beischer, in this affidavit and in her Change Information Form referred to in paragraph 14 above, has put “her state of mind or knowledge” about the negotiations between her counsel and Mr. Cournoyer’s at issue. Ms. Beischer submits, however, that her case is distinct from Einstoss in that she is not alleging a breach of duty by her solicitor; she is rather alleging a breach of duty by Mr. Sekhon. Nevertheless, the person with the highest duty to Ms. Beischer in the negotiations that took place between August 22 and December 1, 2017 was Ms. Schon. Having advanced a position that lack of proper disclosure and/or misrepresentation as to the value of the pension were the problems, puts squarely into issue either 1) what her counsel did to ensure proper disclosure was obtained prior to final agreement being reached, or conversely, 2) what advice she gave in the face of inadequate disclosure.

[22] In Einstoss, Justice Kelly stated at paragraph 36:

36. The correspondence between Torkin Manes and the wife (and any other memoranda) at the time of settlement is relevant if there were discussions about the disclosure provided to date and whether they considered the disclosure to be adequate. It may be more relevant if Torkin Manes concluded that the disclosure was not adequate, advised the wife but she disregarded such advice.

[23] The same holds true in this case. I find that while there has been no express waiver of privilege by Ms. Beischer, she has impliedly waived privilege by advancing the position she has and putting her state of mind in respect thereto in issue. I order the Ms. Beischer is to produce to Mr. Cournoyer a complete copy of Ms. Schon’s file pertaining to the parties’ matrimonial litigation in British Columbia.

[24] The issue of the actual value of Mr. Cournoyer’s pension from September 24, 2006 to April 7, 2017, once the 11 years of buyback is taken into account, if for another day.

Issue #2 – Temporary Spousal Support

[25] Leading up to and in her Notice of Cross-Motion, Ms. Beischer was seeking a temporary order for:

Spousal support arrears in the amount of $10,616 from the date of separation to December 2017;

Spousal support arrears in the amount of $16,632 from December 2017 to present; and,

Ongoing spousal support in the amount of $924 per month.

[26] At the commencement of her Cross-Motion, Ms. Beischer changed her position to one of seeking only ongoing spousal support, conceding that the issue of retroactive may be best left to the Motion to Change proper. Mr. Cournoyer had not been advised of this change in position prior to the commencement of the Cross-Motion.

[27] The Final Order of Justice Warren dated December 1, 2017, contains the following provisions with respect to spousal support:

Spousal Support

41. Brent will pay Breanna spousal support in the amount of $0.00 (the “Current Spousal Support Payment”) until a material change in circumstances is established.

42. For the purposes of this Order, a material change in circumstances will include Brent moving back to Ottawa or within a 100 kilometer radius of Ottawa.

43. Once a material change in circumstances has been established, Breanna is at liberty to apply to vary the Current Spousal Support Payment by Court order.

[28] Ms. Beischer’s position is that a material change in circumstances has occurred as a result of paragraph 42 and Mr. Cournoyer’s return to Ottawa in March of 2018. She seeks an order of temporary support based on the parties’ respective 2018 Line 150 incomes.

[29] While Mr. Cournoyer concedes that his move to Ottawa was contemplated to constitute a material change of circumstances, his position is that no temporary variation of the Final Order should be made. That, he submits, is the purpose of the Motion to Change. Mr. Cournoyer’s alternative position, if the court is satisfied that a temporary order should be made, is that any support payable by Mr. Cournoyer should be calculated on the basis of his actual income for 2018, which excludes his one-time relocation allowance and includes his rental income, and on an imputed income of $60,000 to Ms. Beischer.

Analysis

[30] The test for a temporary variation of a Final Order for spousal support is not the same as is that to make a temporary order for spousal support in the first instance. In the latter case, a temporary order may be made, without a full inquiry, where a prima facie case for entitlement has been made out. An order for interim support in the face of an application has been characterized as “a holding order to maintain the accustomed lifestyle if possible pending final disposition as long as the claimant is able to present a triable case for economic disadvantage” [8] .

[31] Not so with a temporary variation of a Final Order. In Innocente v. Innocente, 2014 ONSC 7082, Justice Gauthier reviews the existing case law with respect to same. At paragraph 45 of that judgment, Justice Gauthier states:

45. In those cases where temporary or interim variation of a final order has been granted, the courts have found what are in my view, exceptional circumstances:

(a) To prevent undue hardship. Dancsecs v. Dancsecs (1994), 5 R.F.L. (4th) 64 (Ont. Gen. Div.);

(b) Where the failure to make the interim order would be incongruous or absurd. Rogers v. Rogers (1990), 27, R.F.L. (3d) 214 (Ont. H.C.) and French v. Woods (1992), 42 R.F.L. (3d) 345 (Ont. Gen Div.); and

(c) Where there is a pressing and immediate urgency. See McTaggart v. Hilton, [1994] O.J. No. 1069.

[32] Justice Gauthier ultimately finds that there is jurisdiction of the court to make an interim variation of a Final Order where circumstances warrant it [9] , but that the test to do so is a high one, as was identified in the case of Hayes v. Hayes, 2010 CarswellOnt 4796 (On.S.C.J.) at paragraph 38:

…An interim variation of the underlying support order is the most drastic intervention a court could make pending a final hearing of a motion to change. The cases are not clear on what is required to show that continuation of the order would be “incongruous and absurd.” The plain meaning of these terms would suggest the order is inappropriate, unreasonable or ridiculous.

[33] Certainly, Ms. Beischer has been “at liberty to apply to vary” spousal support since Mr. Cournoyer moved to Ottawa in March of 2018, and she has done so. Whether the existing order should be varied, however, is a question that, in my view, is one that is properly to be answered on the Motion to Change.

[34] The reasons for this are several. First, it is difficult to ascertain what Ms. Beischer’s income for support purposes actually is. In her affidavit sworn on May 24, 2019, Ms. Beischer included two DivorceMate calculations, one of which noted her income to be $10,976 and the other which noted it to be $29,700. At the Motion, Ms. Beischer presented a third DivorceMate calculation which noted her income to be $29,305. This latter number was consistent with Ms. Beischer’s Line 150 income of $29,308.53 in her Income Tax Return for 2018. However, Mr. Cournoyer was able to demonstrate that Ms. Beischer deducted certain business related expenses from the income earned from both of her part-time pursuits, most if not all of which should likely be added back into her income for support purposes. Ms. Beischer reported income of $19,500 from her part-time employment with Algonquin College, and deducted $4,488.18 from it for business related expenses. Similarly, Ms. Beischer reported income of $17,404.95 from her part-time employment in data entry and deducted $4,708.47 from it for (the same) business related expenses. Her total income, when these business related expenses are added back in, as some or all of them may be for support purposes, equals $46,101.60.

[35] Second, there is a question as to what Mr. Cournoyer’s income is. Ms. Beischer’s DivorceMate calculations note it to be either $94,798 or $96,718, however, Mr. Cournoyer states that approximately $15,000 of that constitutes a one-time relocation allowance, as he moved back to Ottawa in 2018. Mr. Cournoyer’s position is that his 2018 income for support purposes is $78,420 in employment income and $5,193 in net rental income, for a total of $83,613.

[36] Third, and perhaps most significantly, there is a very live issue as to whether, and if so, in what amount, income should be imputed to Ms. Beischer, including from the time she returned to Ottawa. Ms. Beischer had employment with an income of approximately $65,000 before the family moved to British Columbia. While in British Columbia, Ms. Beischer obtained her Master’s Degree in Education. Since returning to Ottawa, Ms. Beischer has chosen to work in two part-time jobs, the combined income from which are set out above. Mr. Cournoyer submits that Ms. Beischer is voluntarily under-employed, and that a post-separation income of at least $65,000 to $70,000 should be imputed to her in keeping with her age, ability, level of experience and education.

[37] Finally, while Ms. Beischer has stated in paragraph 15 of her affidavit sworn on July 8, 2019, that she has “a need for spousal support, and the Respondent has an ability to pay”, that is not the test on this Motion. Ms. Beischer has not demonstrated undue hardship such that the court should intervene on a temporary basis. I am unable to find that a continuation of the existing order pending a final hearing of the Motion to Change would be inappropriate, unreasonable or ridiculous. Ms. Beischer’s Cross-Motion is, therefore, dismissed.

Order

[38] My order is as follows:

(a) Within 30 days, the Applicant shall produce to the Respondent a complete copy of Ms. Amalia Schon’s file in relation to the parties’ matrimonial litigation in British Columbia, including all notes, records and correspondence; and,

(b) The Applicant’s Cross-Motion is dismissed.

Costs

[39] Mr. Cournoyer is the successful party on the Motion and Cross-Motion, and is presumptively entitled to costs. If the parties are unable to agree on a quantum by July 31, 2019, counsel will make written submissions of no more than three pages, along with copies of their bills of costs and offers to settle, to me at intervals of 10 days from that date and I will make an order.

Justice Engelking Date: July 15, 2019

Footnotes:

[1] Lavallee, Rackel & Heintz v. Canada (Attorney General), 2002 SCC 61, paragraph 36 [2] Eizenshtein v. Eizenshtein, paragraph 16 [3] Lavallee, supra, paragraph 36, with reference to paragraphs 32 and 34-35 of R. v. McClure, 2001 SCC 14 [4] Einstoss v. Starkman, 2010 CarswellOnt 4685, paragraph 8. [5] Ibid., paragraph 29 [6] I can state that but for Ms. Beischer’s accusation, there was nothing in evidence before me to support improper conduct by Mr. Sekhon or Mr. Cote. [7] This despite that in Einstoss, the wife was also not alleging a breach of duty by her own lawyer. [8] Maelbrancke v. Proctor, 2016 ONSC 1788, paragraph 11 [9] Innocente, supra, at paragraph 48