Taillefer v. Taillefer, (2013) 316 O.A.C. 90 (DC)

• Judge: Linhares de Sousa, Lafrance-Cardinal and Kane, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: June 21, 2013
• Jurisdiction: Ontario
• Citations: (2013), 316 O.A.C. 90 (DC);2013 ONSC 6105

Taillefer v. Taillefer (2013), 316 O.A.C. 90 (DC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2014] O.A.C. TBEd. FE.029

Marguerite Taillefer (applicant/respondent on appeal) v. Richard Taillefer (respondent/appellant)

(12-DV-1819; 2013 ONSC 6105; 2013 ONCS 6105)

Indexed As: Taillefer v. Taillefer

Court of Ontario

Superior Court of Justice

Divisional Court

Linhares de Sousa, Lafrance-Cardinal and Kane, JJ.

October 18, 2013.

Summary:

The parties separated in 2000 after 36 years of marriage when the wife was 60 years old and the husband was 61 years old. In a 2007 divorce order, the husband was ordered to pay the wife monthly spousal support of $3,000 with provision for annual indexation. In 2012, the husband moved to terminate his obligation to pay spousal support.

The Ontario Superior Court dismissed the motion. The husband appealed.

The Ontario Divisional Court dismissed the appeal.

Courts - Topic 686

Judges - Disqualification - Bias - By trial or applications judge - The parties separated in 2000 after 36 years of marriage when the wife was 60 years old and the husband was 61 years old - In a 2007 divorce order, the husband was ordered to pay the wife monthly spousal support of $3,000 with provision for annual indexation - The husband waived the receipt of an equalization payment from the wife - This was in full and final resolution of all of the family property issues between the parties, including any trust claim the wife might have had to the husband's share in Taillefer Estates Inc. (a real estate company owned by the husband's family) - The husband's income was made up of an employment salary and from dividends received from Taillefer Estates - The wife's income was minimal - In 2010, the husband received a $600,000 dividend from Taillefer Estates - In 2011, the husband retired - In 2012, he moved to terminate his obligation to pay spousal support - The motion judge dismissed the motion - The husband appealed, asserting that the motion judge, by way of making certain comments in the course of the argued motion, such as comparing the husband's situation to a "wall street business man", demonstrated a bias against the husband - The Ontario Divisional Court dismissed the appeal - While perhaps "a little colourful", the comments made by the motion judge could only be understood in the context of his trying to point out the different tax treatment between dividend income and other income - In this factual and legal context, the court was not persuaded that the motion judge demonstrated a bias against the husband - See paragraphs 55 to 58.

Family Law - Topic 4009.1

Divorce - Corollary relief - Maintenance awards - Effect of retirement of spouse - The parties separated in 2000 after 36 years of marriage when the wife was 60 years old and the husband was 61 years old - In a 2007 divorce order, the husband was ordered to pay the wife monthly spousal support of $3,000 with provision for annual indexation - The husband waived the receipt of an equalization payment from the wife - This was in full and final resolution of all of the family property issues between the parties, including any trust claim the wife might have had to the husband's share in Taillefer Estates Inc. (a real estate company owned by the husband's family) - The husband's income was made up of an employment salary and from dividends received from Taillefer Estates - The wife's income was minimal - In 2010, the husband received a $600,000 dividend from Taillefer Estates - In 2011, the husband retired - In 2012, he moved to terminate his obligation to pay spousal support - The motion judge dismissed the motion - The husband appealed, asserting that the motion judge erred in his apprehension of the evidence by concluding that the husband's annual income was $12,000 instead of $7,000 - The Ontario Divisional Court dismissed the appeal - The motion judge could reasonably have come to that conclusion on the evidence - The husband's regular sources of income after retirement were made up of Canada Pension Plan and Old Age Security benefits which totalled $817.47 per month (approximately $9,809.64 per year) - The husband's financial statements declared an income of $11,609.64 per year - See paragraphs 37 to 39.

Family Law - Topic 4021.4

Divorce - Corollary relief - Maintenance awards - Considerations - Ability to pay (incl. potential to earn income and calculation of income) - [See Family Law - Topic 4009.1 ].

Family Law - Topic 4021.4

Divorce - Corollary relief - Maintenance awards - Considerations - Ability to pay (incl. potential to earn income and calculation of income) - The parties separated in 2000 after 36 years of marriage when the wife was 60 years old and the husband was 61 years old - In a 2007 divorce order, the husband was ordered to pay the wife monthly spousal support of $3,000 with provision for annual indexation - The husband waived the receipt of an equalization payment from the wife - This was in full and final resolution of all of the family property issues between the parties, including any trust claim the wife might have had to the husband's share in Taillefer Estates Inc. (a real estate company owned by the husband's family) - The husband's income was made up of an employment salary and from dividends received from Taillefer Estates - The wife's income was minimal - In 2010, the husband received a $600,000 dividend from Taillefer Estates - In 2011, the husband retired - In 2012, he moved to terminate his obligation to pay spousal support - The motion judge dismissed the motion - The husband appealed, asserting that the motion judge failed to recognize that the wife had abandoned her trust claim to the husband's shares in Taillefer Estates - The Ontario Divisional Court dismissed the appeal - The motion judge was aware that it had been accepted that at the time of the separation Taillefer Estates had no value and that the wife had not received a share of her husband's interest in that family corporation as part of the family law settlement between the parties - Consequently, taking account of the receipt in 2010 of the husband's dividends in comparing the "conditions, means and needs" of the parties was not a case of sharing of assets twice or "double dipping" - See paragraphs 40 to 43.

Family Law - Topic 4021.4

Divorce - Corollary relief - Maintenance awards - Considerations - Ability to pay (incl. potential to earn income and calculation of income) - The parties separated in 2000 after 36 years of marriage when the wife was 60 years old and the husband was 61 years old - In a 2007 divorce order, the husband was ordered to pay the wife monthly spousal support of $3,000 with provision for annual indexation - The husband waived the receipt of an equalization payment from the wife - This was in full and final resolution of all of the family property issues between the parties, including any trust claim the wife might have had to the husband's share in Taillefer Estates Inc. (a real estate company owned by the husband's family) - The husband's income was made up of an employment salary and from dividends received from Taillefer Estates - The wife's income was minimal - In 2010, the husband received a $600,000 dividend from Taillefer Estates - In 2011, the husband retired - In 2012, he moved to terminate his obligation to pay spousal support - The motion judge dismissed the motion - The husband appealed, asserting that erred in concluding that the dividends the husband received in 2010 from Taillefer Estates should be treated as income instead of a return of capital, where the dividends were a result of a sale of a property owned by the corporation - The Ontario Divisional Court dismissed the appeal - The husband's 2010 dividend receipts were declared as part of his "total income" in the relevant income tax general form by the Canada Revenue Agency - Further, when the parties reached their agreement in 2007 for spousal support, a substantial portion of the husband's income which was used to determine the quantum of support was made up of the dividends - "If those dividends were at that time considered part of his 'income' why would they not be considered part of his 'income' now?" - The only difference was the magnitude of the amount of dividends received - It was not logical that quantum alone could change the characterization of such funds as "income" to the husband for support purposes - The court was not convinced that the motion judge was incorrect in law in finding that the dividends received by the husband in 2010 should be considered income to him for the purpose of determining his continuing obligation to pay spousal support - See paragraphs 45 to 54.

Cases Noticed:

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. 14].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 14].

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. 15].

Wewayakum Indian Band v. Canada and Wewayakai Indian Band, [2003] 2 S.C.R. 259; 309 N.R. 201; 231 D.L.R.(4th) 1; 2003 SCC 45, refd to. [para. 17].

Stetler et al. v. Agriculture, Food and Rural Affairs Appeal Tribunal (Ont.) et al. (2005), 200 O.A.C. 209; 76 O.R.(3d) 321 (C.A.), refd to. [para. 17].

Moge v. Moge, [1992] 3 S.C.R. 813; 145 N.R. 1; 81 Man.R.(2d) 161; 30 W.A.C. 161; 43 R.F.L.(3d) 345, refd to. [para. 31].

Linton v. Linton (1990), 42 O.A.C. 328; 1 O.R.(3d) 1 (C.A.), refd to. [para. 31].

Willick v. Willick, [1994] 3 S.C.R. 670; 173 N.R. 321; 125 Sask.R. 81; 81 W.A.C. 81, refd to. [para. 35].

Boston v. Boston, [2001] 2 S.C.R. 413; 271 N.R. 248; 149 O.A.C. 50; 2001 SCC 43, refd to. [para. 41].

Austin v. Austin, [2007] O.T.C. Uned. M94; 2007 CarswellOnt 7130 (Sup. Ct.), refd to. [para. 50].

Riel v. Holland (2003), 177 O.A.C. 162; 2003 CarswellOnt 3828 (C.A.), refd to. [para. 50].

Lahanky v. Lahanky (2011), 376 N.B.R.(2d) 1; 970 A.P.R. 1; 2011 CarswellNB 421 (Fam. Div.), refd to. [para. 50].

Counsel:

E. Jane Murray, for the applicant/respondent on appeal;

Yanik S. Guilbault, for the respondent/appellant.

This appeal was heard at Ottawa, Ontario, on June 21, 2013, by Linhares de Sousa, Lafrance-Cardinal and Kane, JJ., of the Ontario Divisional Court. The following reasons on appeal of the Divisional Court were delivered by Linhares de Sousa, J., on October 18, 2013.