Oct 2, 2019

Summary of O.O.E. v A.O.E.

O.O.E. v A.O.E., 2019 SKQB 48 (CanLII)
Family Law – Division of Family Property
The respondent husband and petitioner were married in May 2011 and separated in October 2012. Before they met, the petitioner had obtained her medical degree and the respondent had completed his education as an engineer. He did not work in that field but became a property developer. The petitioner had married the respondent despite the fact that he had assaulted her in August 2010. The respondent pled guilty and received a conditional discharge. The petitioner petitioned for divorce in November 2012, requesting divorce, exclusive possession of the family home, and unequal division of both the home and the family property. The respondent filed his answer and counter-petition, agreeing that separation occurred in October 2012 and indicating that he did not oppose the divorce or the petitioner having exclusive possession of the family home, but requesting spousal support and unequal division of the home and property. In September 2014, the petitioner’s application for divorce was granted but the remaining issues were severed. The respondent attended the hearing and did not contest the divorce or the date of separation. However, he filed a second petition in January 2016, alleging that separation occurred in June 2014 and claiming division of property, thereby extending it to a much later date than the original petition. The new petition was struck because the divorce was final but the respondent then successfully applied in 2017 to amend his 2012 answer and counter-petition to add claims for unjust enrichment and constructive trust for property acquired by the petitioner from the date of the petition to June 2014. The judge noted that the matter could proceed along with the trial of the family property action and on the basis that it could be shown that the parties entered into a further relationship of co-habitation, separate and apart from the facts necessarily leading to the divorce. In October 2016, the petitioner issued a statement of claim against the respondent and his corporation that sought damages for assault, battery, negligent infliction of mental suffering and other causes, alleging that the respondent committed over 50 incidents of battery against her between August 2010 and 2014. The respondent denied all of the allegations excepting the one incident for which he had been charged in 2010. He also argued that all of the claims were barred by The Limitations Act because more than two years had passed after the last alleged occurrence. All of the foregoing actions were tried together. The issues consisted of: 1) whether the respondent had proven unjust enrichment and a constructive trust to property acquired by the petitioner after the petition date. After the separation, the petitioner purchased a building in which she established her own medical corporations and practice whereas before 2012, she had worked for other clinics. The respondent alleged that the parties had cohabited until June 2014. Although she denied that, the petitioner admitted that she continued to interact with the respondent after separating because she was trying to conceive a child through IVF and if she helped the respondent financially, he would cooperate by donating sperm. She also remained involved with the respondent because of their intermingled real estate investments; 2) the division of the family home and property. The petitioner had lived in the home for the past six years and wished to sell it. The majority of other family property consisted of 10 properties owned either by the petitioner, the respondent and/or corporations owned by them at the date of petition and acquired by the respondent as a developer; 3) whether the respondent should receive spousal support; and 4) whether the petitioner was entitled to damages in her civil action for assault and battery or whether her claim was statute-barred.
HELD: The court found with respect to the issue in each action that: 1) there was no unjust enrichment, a constructive trust had not arisen and the respondent had no claim to any of the petitioner’s property after the petition date. The parties had not resumed cohabitation after the petition. There was no evidence that the respondent contributed to the assets post-petition and he suffered no corresponding deprivation. His claim for division of family property was limited to that in existence at the date of petition under The Family Property Act (FPA); 2) the value of the family home would be divided equally as there were no exceptional circumstances under s. 22 of the FPA. However, the court could not divide the equity existing in the home at the petition date because the parties refinanced in 2014 to add a home line of credit. In addition, creditors had registered liens against it for other unpaid debts so after sale there would be no net proceeds to be distributed to the parties. The court ordered that the petitioner be given exclusive possession and the authority to sell it at any price. The respondent should be removed from the title. Regarding the family property, the court valued the various development properties and after considering debt, ordered the respondent to pay the petitioner $91,500; 3) the respondent was not entitled to spousal support on a compensatory basis because he had not suffered any economic disadvantage during the 18-month marriage and in fact was able to access additional financing for his business from the petitioner. There was no basis to award support to him on a non-compensatory basis either. Although the petitioner had the ability to earn more income than the respondent, she was deeply indebted. The respondent was well-educated and experienced and had the ability to meet his own needs; 4) it believed the petitioner’s evidence and concluded that the respondent had committed assault and battery in excess of 50 times between 2010 and 2014. The petitioner was awarded $40,000 in general damages and $5,000 in punitive damages for the physical and mental injuries she suffered as a result of the respondent’s violence against her. Although the petitioner’s claim was barred in its entirety pursuant to ss. 5 and 19 of The Limitations Act, s. 16 exempted her claims from the limitation period from: i) the time of their marriage to their separation pursuant to s. 16(1)(b)(i); and ii) from separation to June 2014 pursuant s. 16(1)(b)(ii) because the court accepted the petitioner’s evidence that she was still in a relationship of dependency with the respondent during that period.