Dubois v. Dubois, (2015) 313 Man.R.(2d) 110 (QBFD)

• Judge: Goldberg, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: January 20, 2015
• Jurisdiction: Manitoba
• Citations: (2015), 313 Man.R.(2d) 110 (QBFD);2015 MBQB 13

Dubois v. Dubois (2015), 313 Man.R.(2d) 110 (QBFD)

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. FE.008

Tracey-Lyn Marie Dubois (petitioner) v. Thomas Michael Dubois (respondent)

(FD 00-01-60970; 2015 MBQB 13)

Indexed As: Dubois v. Dubois

Manitoba Court of Queen's Bench

Family Division

Winnipeg Centre

Goldberg, J.

January 20, 2015.

Summary:

At issue on the wife's petition for divorce was the enforceability of a settlement agreement, the husband's request for an unequal division of family property, the husband's application to set aside a protection order and the wife's request for child support for one of the parties' children.

The Manitoba Court of Queen's Bench, Family Division, held that the settlement agreement was enforceable and denied the husband's request for an unequal division and the wife's request for child support. The protection order was set aside.

Barristers and Solicitors - Topic 1164

Authority - Extent of - Respecting settlements - [See Family Law - Topic 3261 ].

Family Law - Topic 637

Husband and wife - Marital property - Constructive trusts - Title to the family home was placed in the wife's sole name because, as the husband testified, "we were opening a business" and "if we went broke, we didn't want to lose the house" - At issue in the division of family property was the husband's assertion that the parties' joint intention was that the property be held in trust for both of them and that he had a beneficial interest in the home - The Manitoba Court of Queen's Bench, Family Division, rejected the husband's position - The title was placed in the wife's name with the husband's full knowledge and agreement - His intention was to shield the home from potential creditors - He could not now argue a different intent in order to share in the home's increase in value - The wife's statement during cross-examination that the property was a "joint asset" was not determinative of the legal characterization of the asset - The parties' original intention governed - Further, a comment after the fact did not change the husband's original intention - See paragraphs 27 to 37.

Family Law - Topic 875

Husband and wife - Marital property - Distribution orders - Statutes requiring equal division - Exceptions (incl. judicial reapportionment) - The parties agreed that as of the date of separation in 2003, the family home (which was solely in the wife's name) was valued at $191,000 with a mortgage balance of $65,659.84 - At trial, the wife acknowledged that the property's current value was about $350,000 - Under minutes of settlement, the parties agreed that, on an equal division of family property, the wife would owe the husband $75,000 - However, the husband's claim for an unequal division remained open - At trial, the husband sought an unequal division of the family home to compensate him for its appreciation in value since separation - The Manitoba Court of Queen's Bench, Family Division, declined to make an unequal division - Equalization would not be grossly unfair or unconscionable - There were no extraordinary circumstances - The property's current value was due to market conditions, rather than the parties' efforts - Granting an unequal division would encourage parties to delay resolution of family property matters - See paragraphs 38 to 45.

Family Law - Topic 875

Husband and wife - Marital property - Distribution orders - Statutes requiring equal division - Exceptions (incl. judicial reapportionment) - The parties agreed that as of the date of separation in 2003, the family home (which was solely in the wife's name) was valued at $191,000 with a mortgage balance of $65,659.84 - At trial, the wife acknowledged that the property's current value was about $350,000 - Under minutes of settlement, the parties agreed that, on an equal division of family property, the wife would owe the husband $75,000 - However, the husband's claim for an unequal division remained open - At trial, the husband sought an unequal division of the family home to compensate him for its appreciation in value since separation - The Manitoba Court of Queen's Bench, Family Division, declined to make an unequal division - The court rejected the husband's assertion that he was entitled to an unequal division under the common law remedy of unjust enrichment - The relief had not been pled - Further, there was no unjust enrichment here - The husband's complaint was that he had been deprived of his equalization payment for over 10 years while the wife had the benefit of retaining the home and its increase in value - However, the inequity arose from the delay in payment, not from the increase in value - This could be remedied by an award of interest in favour of the husband - See paragraphs 46 to 51.

Family Law - Topic 1150

Domestic violence or exploitation - Anti-stalking legislation - Protection order - Setting aside - The husband committed various assaults against the wife prior to and during 2003 - They separated in 2003 - The husband pled guilty to various charges arising from the assaults - He received a conditional sentence and supervised probation - The wife obtained a without notice protection order - As the legislation then permitted, the order had no expiration date - In 2014, the husband applied to set aside the order - The Manitoba Court of Queen's Bench, Family Division, allowed the application - No offending behaviour had occurred since the protection order was granted - The presumption in the current legislation was that, in most cases, the risk of harm abated after three years - While the wife asserted that she was still afraid of the husband, no objective evidence indicated that she would be subject to violence in the absence of a protection order - See paragraphs 52 to 58.

Family Law - Topic 3261

Separation agreements, domestic contracts and marriage contracts - Enforcement - General - By an order of reference, a Master was to make an accounting and valuation of the parties' assets and liabilities - A date was set for the substantive hearing - Neither party was present on that date, but both of their (then) counsel appeared and advised the Master that they were concluding by way of minutes of settlement - The wife's counsel prepared draft minutes of settlement that were forwarded to the husband's counsel - Subsequently, the wife refused to sign - At issue was whether the agreement was enforceable - The Manitoba Court of Queen's Bench, Family Division, held that the "wife is bound by the representation of her (then) counsel; and is bound by the agreement reached on her behalf." - Both counsel testified that the wife's (then) counsel represented that he was authorized to settle the accounting and valuation issues on the wife's behalf - See paragraphs 11 to 26.

Interest - Topic 5319

Interest as damages (prejudgment interest) - Interest on payment of money or debt withheld - Share of matrimonial assets withheld - [See second Family Law - Topic 875 ].

Practice - Topic 9855.1

Settlements - Enforceability - Where a party refuses to execute settlement - [See Family Law - Topic 3261 ].

Restitution - Topic 62

Unjust enrichment - What constitutes - [See second Family Law - Topic 875 ].

Restitution - Topic 123

Unjust enrichment - Remedies - Constructive trust - [See second Family Law - Topic 875 ].

Trusts - Topic 2346

Constructive trusts - Basis for imposition - Unjust enrichment - [See second Family Law - Topic 875 ].

Cases Noticed:

Fehr v. Fehr (2003), 177 Man.R.(2d) 1; 304 W.A.C. 1; 2003 MBCA 68, refd to. [para. 33].

Dashevsky v. Dashevsky (1986), 40 Man.R.(2d) 58 (Q.B. Fam. Div.), refd to. [para. 35].

Gallant v. Gallant (1998), 131 Man.R.(2d) 15; 187 W.A.C. 15 (C.A.), refd to. [para. 40].

Horch v. Horch (2012), 286 Man.R.(2d) 72; 2012 MBQB 343 (Fam. Div.), refd to. [para. 41].

Horch v. Horch (2014), 304 Man.R.(2d) 295; 2014 MBQB 89 (Fam. Div.), refd to. [para. 41].

Kerr v. Baranow, [2011] 1 S.C.R. 269; 411 N.R. 200; 300 B.C.A.C. 1; 509 W.A.C. 1; 274 O.A.C. 1; 2011 SCC 10, refd to. [para. 47].

Counsel:

T.-L.M. Dubois, appeared in person;

Terry P. Beley, for the respondent.

This action was heard by Goldberg, J., of the Manitoba Court of Queen's Bench, Family Division, Winnipeg Centre, who delivered the following judgment on January 20, 2015.