Kretschmer v. Terrigno, (2012) 539 A.R. 212

• Judge: Hunt, Paperny and Slatter, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: October 09, 2012
• Citations: (2012), 539 A.R. 212;2012 ABCA 345

Kretschmer v. Terrigno (2012), 539 A.R. 212; 561 W.A.C. 212 (CA)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. DE.001

Monica Valerie Kretschmer (respondent/plaintiff) v. Maurizio Dante Terrigno (appellant/defendant)

Antonietta Terrigno (appellant/plaintiff) v. Monica Valerie Kretschmer and Maurizio Dante Terrigno (respondents/defendants)

(1101-0112-AC; 1101-0198-AC; 2012 ABCA 345)

Indexed As: Kretschmer v. Terrigno

Alberta Court of Appeal

Hunt, Paperny and Slatter, JJ.A.

November 29, 2012.

Summary:

After 38 months' cohabitation, including 18 months' marriage, the parties divorced. There was one child of the marriage. Complex litigation ensued involving 12 actions, 35 applications and two appeals. The main support and matrimonial property action was tried with a related action by the husband's mother claiming an interest in certain matrimonial property. The husband failed to make full disclosure of his financial documentation.

The Alberta Court of Queen's Bench, in a decision reported at [2011] A.R. Uned. 281, attributed income to the husband, set child and spousal support, and divided matrimonial assets and debts. The husband appealed.

The Alberta Court of Appeal, Slatter, J.A., dissenting in part, dismissed the appeal.

Courts - Topic 691

Judges - Disqualification - Bias - Reasonable apprehension of bias - The parties commenced cohabitating in 2004, married in 2005, separated in 2007, and divorced in 2010 - Litigation ensued - During a pretrial hearing, the husband's father, who was not a party to the litigation, interjected that he knew the judge and that the judge had worked at a law firm that the father had previously retained - The judge advised that he believed that the father had been a client at the firm he had worked prior to his 2003 appointment to the bench, but that he had had no personal dealings with the parties - When the trial commenced, the lawyer for the husband and his mother addressed the bias concern, stating that he was doing so by way of explanation and as a courtesy because of the unorthodox nature of the father's intervention - The judge then advised that he had also patronized the restaurant owned by husband's family but had not done so for years - The trial proceeded - The husband and his mother appealed the resulting decision, asserting that the judge should have recused himself - The Alberta Court of Appeal rejected the assertion - The judge's only connection with the parties was indirect and arose because of a rebuttable presumption that members of a law firm would share confidences - The presumption was weak because the supposed source of the confidential information was remote from the marital issues - Merely eating at the restaurant, and meeting the proprietors in that context, would not create an apprehension of bias in the eyes of a reasonably informed bystander - A reasonable observer would not assume that a judge would adopt speculative grudges that his former firm might have developed after he left the firm - Further, a party that perceived a reasonable apprehension of bias had to act promptly - There was no clear application to have the judge recuse himself - If anything, the counsel's comments appeared to distance his clients from the father's objection - The ground now relied on (a grievance transferred from the firm) had not been previously raised - See paragraphs 1 and 47 to 53.

Family Law - Topic 868.2

Husband and wife - Marital property - Distribution orders - Debts - In dividing matrimonial debt, the trial judge concluded that neither party should be burdened with the other's premarital debt, that they should be jointly liable for debt incurred for or during the marriage, and that most debts incurred after separation should be the burden of the respective debtor - The Alberta Court of Appeal held that the trial judge did not err in his treatment of premarital debt - No single approach was mandated by legislation - The court had sanctioned several possible methodologies - In order to equitably divide matrimonial property, judges had to determine what constituted premarital, joint and post separation debt, all with a view toward fairness in property division - Where those numbers or their proper characterization were at issue, it was incumbent on judges to find the facts necessary to do a proper calculation of net matrimonial property and exempt property - The trial judge here engaged in that exercise - Nothing in the Matrimonial Property Act nor the jurisprudence precluded a spouse who did not incur the premarital debt from asserting that he or she should not be burdened with that debt in a division of property, or from asserting that credit had to be given where matrimonial assets, or matrimonial income, were used to pay off the other spouse's premarital debt - The court rejected an analysis that imposed a tracing requirement on all premarital debt that was paid off or down during the marriage - Nothing limited a judge's discretion to subtract both parties' premarital debt from the marital debt that would reduce the value of property available for distribution - See paragraph 18 to 26.

Family Law - Topic 880.18

Husband and wife - Marital property - Distribution orders - Tracing - [See Family Law - Topic 868.2 ].

Family Law - Topic 899

Husband and wife - Liability for spouse's debts - Debts incurred by spouse - General - [See Family Law - Topic 868.2 ].

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Calculation or attribution of income - A husband gave evidence that he had income of $60,000 per year from his family's restaurant - The trial judge concluded that income should be imputed to the husband for child support purposes to capture the "means" which were not reflected in his income tax returns - That included housing and other benefits that he received from the restaurant on an ongoing basis - He was not in a non-arms length relationship with his employer - His evidence that his income was $60,000 was unclear and contradictory - The judge noted that costs over $140,000 spent on a wedding party had been written off by the restaurant but could have been included as a benefit to the husband - The judge imputed an income of $197,926, the amount requested by the wife, but stated that he could have imputed more - Where it was unlikely that the parties would ever be able to easily ascertain the husband's income and the prospect of adjusting support annually would invite a revisitation of the same issues at untold expense, the judge imputed the same amount income ($197,926) on an ongoing basis - The Alberta Court of Appeal dismissed the husband's appeal - Although lifestyle was not income it was evidence from which it could be inferred that the payor had undisclosed income that might be imputed - Here, there was considerable evidence of the husband's lifestyle to support an attribution of income - His late and inadequate financial disclosure also provided a basis for imputing income - The fact that the judge found the basis for the $60,000 to be contradictory did not disentitle him from grossing up that amount in the circumstances - Both the husband and his brother (the restaurant's CFO) testified that that was the correct number - The judge did not improperly exercise his discretion in imputing the income on an ongoing basis - See paragraphs 4 to 17.

Cases Noticed:

Bak v. Dobell (2007), 224 O.A.C. 10; 86 O.R.(3d) 196; 2007 ONCA 304, refd to. [para. 13].

Verwey v. Verwey (2006), 207 Man.R.(2d) 41; 2006 MBQB 149 (Fam. Div.), refd to. [para. 13].

D.R.J. v. M.J. (2009), 464 A.R. 16; 467 W.A.C. 16; 13 Alta. L.R.(5th) 1; 2009 ABCA 272, refd to. [paras. 19, 45].

Jensen v. Jensen - see D.R.J. v. M.J.

Hodgson v. Hodgson (2005), 361 A.R. 190; 339 W.A.C. 190; 2005 ABCA 13, refd to. [para. 19].

Carmichael v. Carmichael (2007), 404 A.R. 144; 394 W.A.C. 144; 2007 ABCA 3, refd to. [para. 20].

Abbott v. Abbott (2006), 391 A.R. 266; 377 W.A.C. 266; 2006 ABCA 204, refd to. [para. 21].

Hill v. Hill (2003), 327 A.R. 51; 296 W.A.C. 51; 2003 ABCA 94, refd to. [para. 21].

Jackson v. Jackson (1986), 5 R.F.L.(3d) 8; 1986 CarswellOnt 342 (S.C.), refd to. [para. 23].

McDonald v. McDonald (1995), 17 R.F.L.(4th) 258; 1995 CarswellOnt 1086 (Gen. Div.), refd to. [para. 23].

Belgiorgio v. Belgiorgio, [2000] O.T.C. 556; [2000] W.H.F.L. 746; 2000 CarswellOnt 3060 (Sup. Ct.), refd to. [para. 23].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 42].

R. v. R.D.S., [1997] 3 S.C.R. 484; 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241, refd to. [para. 43].

Lavesta Area Group Inc. v. Energy and Utilities Board (Alta.) et al. (2012), 522 A.R. 88; 544 W.A.C. 88; 2012 ABCA 84, refd to. [para. 43].

Gahir v. Workers' Compensation Board Appeals Commission (Alta.) et al. (2009), 448 A.R. 135; 447 W.A.C. 135; 1 Alta. L.R.(5th) 290; 2009 ABCA 59, refd to. [para. 43].

Hickey v. Hickey, [1999] 2 S.C.R. 518; 240 N.R. 312; 138 Man.R.(2d) 40; 202 W.A.C. 40, refd to. [para. 44].

D.B.S. v. S.R.G., [2006] 2 S.C.R. 231; 351 N.R. 201; 391 A.R. 297; 377 W.A.C. 297; 2006 SCC 37, refd to. [para. 44].

Moge v. Moge, [1992] 3 S.C.R. 813; 145 N.R. 1; 81 Man.R.(2d) 161; 30 W.A.C. 161, refd to. [para. 44].

Elsom v. Elsom, [1989] 1 S.C.R. 1367; 96 N.R. 165, refd to. [para. 45].

Morton v. Morton, [2008] A.R. Uned. 59; 52 R.F.L.(6th) 248; 2008 ABCA 144, refd to. [para. 45].

Hamilton v. Open Window Bakery Ltd. et al., [2004] 1 S.C.R. 303; 316 N.R. 265; 184 O.A.C. 209; 2004 SCC 9, refd to. [para. 46].

N.M. v. F.W. (2004), 348 A.R. 143; 321 W.A.C. 143; 33 Alta. L.R.(4th) 17; 2004 ABCA 151, refd to. [para. 46].

Metz v. Weisgerber - see N.M. v. F.W.

Conway et al. v. Zinkhofer, [2008] A.R. Uned. 306; 2008 ABCA 392, refd to. [para. 46].

Deans et al. v. Thachuk et al. (2005), 376 A.R. 326; 360 W.A.C. 326; 2005 ABCA 368, refd to. [para. 46].

Dool Estate, Re (2009), 448 A.R. 1; 447 W.A.C. 1; 2009 ABCA 70, refd to. [para. 46].

Nazarewycz v. Dool - see Dool Estate, Re.

Committee for Justice and Liberty Foundation et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115, refd to. [para. 51].

Wewayakum Indian Band v. Canada and Wewayakai Indian Band, [2003] 2 S.C.R. 259; 309 N.R. 201; 2003 SCC 45, refd to. [para. 51].

MacDonald Estate v. Martin and Rossmere Holding (1970) Ltd., [1990] 3 S.C.R. 1235; 121 N.R. 1; 70 Man.R.(2d) 241, refd to. [para. 52].

R. v. Curragh Inc. et al., [1997] 1 S.C.R. 537; 209 N.R. 252; 159 N.S.R.(2d) 1; 468 A.P.R. 1, refd to. [para. 54].

Ghirardosi v. British Columbia (Minister of Highways), [1966] S.C.R. 367, refd to. [para. 54].

H.L. v. Canada (Attorney General) et al., [2005] 1 S.C.R. 401; 333 N.R. 1; 262 Sask.R. 1; 347 W.A.C. 1; 2005 SCC 25, refd to. [para. 72].

R. v. Regan (G.A.), [2002] 1 S.C.R. 297; 282 N.R. 1; 201 N.S.R.(2d) 63; 629 A.P.R. 63; 2002 SCC 12, refd to. [para. 72].

Wilde et al. v. Archean Energy Ltd. et al. (2007), 422 A.R. 41; 415 W.A.C. 41; 82 Alta. L.R.(4th) 203; 2007 ABCA 385, refd to. [para. 72].

Harrower v. Harrower (1989), 97 A.R. 141; 68 Alta. L.R.(2d) 97 (C.A.), refd to. [para. 87].

Devaynes v. Noble; Baring v. Noble (Clayton's Case), [1814-23] All E.R. Rep. 1; 1 Mer. 572; 35 E.R. 781, refd to. [para. 93].

Polish Combatants Association Credit Union Ltd. v. Moge et al., [1984] 5 W.W.R. 97 (Man. C.A.), refd to. [para. 93].

Mahe et al. v. Boulianne, [2010] A.R. Uned. 25; 21 Alta. L.R.(5th) 277; 2010 ABCA 74, refd to. [para. 115].

Tomich Estate, Re, [2011] A.R. Uned. 344; 70 E.T.R.(3d) 1; 2011 ABCA 257, refd to. [para. 115].

Koma v. Tomich Estate - see Tomich Estate, Re.

Campbell (Donald) and Co. v. Pollak, [1927] A.C. 732 (H.L.), refd to. [para. 116].

Apex Corp. et al. v. Ceco Developments Ltd. (2008), 429 A.R. 110; 421 W.A.C. 110; 88 Alta. L.R.(4th) 26; 2008 ABCA 125, refd to. [para. 116].

Larter v. Freightliner of Canada Ltd. et al. (1991), 113 N.B.R.(2d) 18; 285 A.P.R. 18; 50 C.P.C.(2d) 66 (C.A.), refd to. [para. 116].

Larter v. Universal Sales Ltd. - see Larter v. Freightliner of Canada Ltd. et al.

Henry and Henry v. Pham and Ramsay (1987), 81 A.R. 276; 55 Alta. L.R.(2d) 227 (C.A.), refd to. [para. 116].

Authors and Works Noticed:

Dunlop, Charles Richard Bentley, Creditor-Debtor Law in Canada (2nd Ed. 1995), p. 25 [para. 93].

MacLeod, James G., Annotation to Jackson v. Jackson (1986), 5 R.F.L.(3d) 8; 1986 CarswellOnt 342 (S.C.), generally [paras. 23, 88].

Orkin, Mark M., The Law of Costs (2nd Ed. 2010), pp. 2-59, 2-60, 2-61 [para. 116].

Counsel:

D.L. Harms, for the respondent, Monica Valerie Kretschmer;

D.P. Castle, for the appellant, Antonietta Terrigno and the appellant/respondent, Maurizio Dante Terrigno.

This appeal was heard on October 9, 2012, by Hunt, Paperny and Slatter, JJ.A., of the Alberta Court of Appeal. The judgment of the court was filed at Calgary, Alberta, on November 29, 2012, with the following opinions:

Hunt and Paperny, JJ.A. - see paragraphs 1 to 37;

Slatter, J.A., dissenting in part - see paragraphs 38 to 124.