Fotheringham v Fotheringham - 1999canlii18995 - Unconscionable.pdf

Supreme Court of Newfoundland and Labrador, Court of Appeal
Fotheringham v. Fotheringham
Date: 1999-10-04
Graham C. Watton, Q.C., for the appellant;
Shelly A. Senior, for the respondent.
(99/01H009)
October 4, 1999.
[1] CAMERON, J.A.: This is the second appeal from decisions concerning the
dissolution of the marriage and division of the property of the parties. There is no point in
recounting, in detail, the grievances each has with the behaviour of the other during the
course of the marriage. Each has a litany of complaints. I shall restrict myself to matters
which are relevant to the questions before the court on this appeal.
1999 CanLII 18995 (NL CA)
[2] The parties were married on March 1, 1977 and on November 8, 1981 their
daughter, Jennifer, was born. The date of separation was a matter of dispute. After a
lengthy hearing the trial judge concluded that the date of separation was August 31, 1992,
approximately two years earlier than suggested by the wife and approximately 10 years
later than submitted by the husband. The issue of the date of separation was the subject
of Appeal 1998/166 which was heard at the same time as this appeal. At the conclusion of
the hearing the decision of this court was that in respect of Appeal 1998/ 166 no error had
been demonstrated and that appeal was dismissed with costs to the respondent.
[3] The court reserved its decision on this matter, which is concerned with a
decision of the trial judge regarding division of matrimonial assets. The appellant argues
that the trial judge erred in ordering an equal division of the matrimonial assets.
Specifically, the appellant submits that the trial judge erred: (1) in failing to consider and
apply all of the factors listed in s. 22 of the Family Law Act, R.S.N. 1990, c. F-2, as being
relevant to the issue; and, (2) in finding that it had not been shown that equal division of
matrimonial asset would be grossly unjust or unconscionable in the circumstances of this
case.

[4] Naturally enough, the trial judge did not turn his attention to the division of
assets until after the date of separation had been assertained as that date is critical in
deciding what assets are matrimonial assets. However, it seems that during the trial a
question arose about whether some of the assets were in fact business assets, though the
pleadings had not raised the issue. The trial judge, in the end, concluded that equal
division should prevail but he ordered that the appellant could apply to have determined
whether certain assets were business assets. This is important as, of course, under the
Family Law Act business assets are excluded from the definition of matrimonial assets.
[5] The issues raised on this appeal are: (1) Whether the trial judge erred in
concluding, in principle, that equal division was appropriate; and, (2) whether the trial
judge should have determined the characterization of the assets as matrimonial or
business assets prior to deciding if there should be equal or unequal division.
1999 CanLII 18995 (NL CA)
Standard of Review
[6] In Martin v. Martin (1998), 168 Nfld. & P.E.I.R. 181; 517 A.P.R. 181; 42
R.F.L.(4th) 251, at para. 5, I summarized the standard of review applicable in family law
cases as follows:
"... a trial judge's decision should not be interfered with absent an error in principle, a
failure to consider all relevant factors, a consideration of an irrelevant factor or a lack
of factual support for the judgment. ... Matters such as custody, support, and
matrimonial property generally require the trial judge to weigh and balance many
relevant factors and, as Justice Kerans suggests in Standards of Review
Employed by Appellate Courts (1994), 'the inclination of the reviewing courts has
always been to govern with a light hand.'"
Position of the Appellant
[7] Section 22 of the Family Law Act, which governs unequal division, states:
"22. The court may make a division of matrimonial assets that is not equal where the
court is satisfied that a division of these assets in equal shares would be grossly
unjust or unconscionable taking into account the following factors:
(a) the income, earning capacity, property and other financial resources that each
of the spouses has or is likely to have in the foreseeable future;

(b) the financial needs, obligations and responsibilities that each of the spouses
has or is likely to have in the foreseeable future;
(c) the standard of living enjoyed by the spouses before the breakdown of the
marriage;
(d) the age of each party;
(e) the duration of the marriage;
(f) a physical or mental disability of either of the spouses;
(g) the contributions made by each of the spouses to the welfare of the family,
including a contribution made by a spouse in looking after the matrimonial home
or caring for the family;
(h) the loss of a potential benefit to a spouse by reason of a dissolution or
annulment of the marriage;
(i) the unreasonable impoverishment or dissipation of matrimonial assets by
either of the spouses;
(j) the length of time that the spouses have lived separate and apart from each
other during the marriage; or
(k) the date of acquisition of each matrimonial asset."
1999 CanLII 18995 (NL CA)
[8] The decision of the trial judge indicates that the husband argued, in particular,
paras. (g) and (i) as a basis for unequal division [see footnote 1]. Counsel for the appellant
submits that the trial judge erred in failing to consider all of the relevant factors in s. 22,
though he himself emphasized (g), (i), and (j) in his submissions to this court. In summary,
the appellant contends that the trial judge erred:
“1. In finding the parties' marriage to be a 'normal traditional marriage'; rather, the
appellant argues, the parties 'lived separate and apart' as contemplated by s. 22(j)
when the husband was away from the matrimonial home at River of Ponds;
“2. In failing to find the wife made little contribution to child care, no contribution to
household management and no financial contribution (i.e. - failed to fulfill the
traditional homemaker role), specifically in ignoring the evidence of the couples'
daughter, Jennifer, of Pearl Hynes, the woman with whom the appellant was living at
the time of trial, and the appellant regarding the respondent's shortcomings and
improperly inferring that because she had primary and sole responsibility for raising
Jennifer the respondent did so properly; and
“3. In ignoring evidence of unreasonable impoverishment and dissipation of
matrimonial assets by the respondent, specifically that the trial judge failed to
consider the monies that the appellant paid to the respondent throughout the years,
the fact that there was no mortgage on the matrimonial home, no loan payments to
be made, and no car payments to be made.”

Background
[9] The trial judge summarized the history of the relationship between the parties in
his decision respecting the date of separation. What follows is largely taken from that
decision.
[10] The respondent grew up in River of Ponds on the Northern Peninsula, the
appellant in Scotland. They met in Toronto in 1973 and began living together in 1974. The
respondent had a child, Jordana, born January 1, 1972 of an earlier relationship.
[11] The appellant had trained in Scotland as a high-voltage cable splicer, a highly
specialized trade. From the time the parties met until the divorce, he worked on projects in
various parts of Canada, the United States, in Egypt and elsewhere in the Middle East,
and in Central and South America. The respondent, with the except of two short periods of
time, did not work outside the home after she began living with the appellant.
1999 CanLII 18995 (NL CA)
[12] At first, the respondent travelled with the appellant wherever he went but when
Jordana began school, they decided to establish a permanent residence in River of
Ponds. In 1981, the year Jennifer was born, they bought a house. The marriage was a
troubled one. Each party complains about the other's behaviour. There were extra-marital
affairs. At times when he was away from River of Ponds the appellant lived with other
women. For example, during the respondent's pregnancy the appellant was living in
Edmonton with the respondent's 19 year old cousin. When Jennifer was born prematurely
and the respondent was discovered to have uterine cancer and needed help, that cousin,
on the appellant's suggestion, moved into the parties' house until the respondent became
suspicious and told her to leave. Generally, when not working elsewhere the appellant
returned to River of Ponds and, while there, resided with the respondent and their
daughter. On occasion the respondent and their daughter travelled to wherever the
appellant was working, and on one occasion to Scotland, to visit with him.
[13] The appellant supported his family during this time. In 1986 the appellant
purchased a motor vehicle and about the same time the respondent obtained her driver's
licence. She had unrestricted use of that car and other vehicles which replaced it over the

years. The appellant told the trial judge that there was a row over money during his visit at
Christmas 1986 because the respondent had spent $24,000 between April and December
and from that point on the appellant provided the respondent with a monthly amount of
$1,500 which was reduced to $1,200 when Jordana left home in 1992.
[14] In 1995 the appellant transferred virtually all of his savings and investments,
nearly $360,000, to the name of Pearl Hynes.
Approach Dictated by the Family Law Act
[15] As s. 19 of the Family Law Act demonstrates, the general philosophy reflected
in the Act is the recognition that both parties share the responsibilities for child care,
household management and financial support of the family, that those responsibilities may
be met in different ways, and that as a general rule each spouse is entitled, on marriage
breakdown, to an equal division of the matrimonial assets acquired during the course of
the marriage. There are numerous cases which have emphasized that the party seeking
unequal division has a heavy onus to discharge. Justice Marshall, of this court, in Franey
v. Franey (1997), 148 Nfld. & P.E.I.R. 181; 464 A.P.R. 181, at p. 186 described the
condition to be established for unequal division as "flagrant unfairness." Others have said
that "unconscionable" is equated with "shocking", that it requires conditions or
circumstances which shake the conscience of the court. (See, for example, Belman v.
Belman (1995), 26 O.R.(3d) 56.)
1999 CanLII 18995 (NL CA)
Periods of Time Living Separate and Apart During the Marriage
[16] The words "separate and apart" are also used in the Divorce Act where to
establish breakdown of a marriage the parties may prove that they "have lived separate
and apart for at least one year immediately preceding the divorce proceeding ... ." The
choice of the phrase "separate and apart" in the Family Law Act was no doubt deliberate,
since actions under the two Acts are so often taken at the same time. It is therefore
reasonable to interpret the phrase in the same way. (See: Wood v. Wood (1981), 23
R.F.L.(2d) 77 (Man. C.A.)) The words "living separate and apart" require proof of an
"animus separandi" in addition to the factum of separation. (See: Shorten v. Shorten

(1985), 65 N.B.R.(2d) 429; 167 A.P.R. 429 and Rushton v. Rushton (1968), 1 R.F.L. 215
(B.C.S.C.)) In Rushton, a divorce action, Mclntyre, J., said:
"The words 'separate and apart' are disjunctive. They mean, in my view, that there
must be a withdrawal from the matrimonial obligation with the intent of destroying the
matrimonial consortium, as well as physical separation. The two conditions must be
met."
Section 22(j) then is directed to any periods during the marriage when the parties might
have separated with the intent of destroying the consortium.
[17] It is clear from the evidence that because of his work, the appellant spent a
great deal of time away from the family home in River of Ponds. However, this is not the
type of separation which is intended to be a factor considered for unequal division. The
trial judge recognized that in Newfoundland it is not unusual for one member of the family,
usually the husband, to leave home and travel to other parts of the province, country or
the world in order to obtain employment. Many successful, happy families follow such
patterns with the husband "living" in the same household as the rest of the family for only
short periods during the year. This pattern is common, for example, when a husband
works on boats on the Great Lakes, or in construction camps in Labrador or northern
Canada or, like the appellant here, holds a rare skill which might be in demand anywhere
in the world. A similar pattern might be seen with servicemen who take overseas postings
away from their families for extended periods of time.
1999 CanLII 18995 (NL CA)
[18] There is little doubt that the parties' marriage was an unhappy one, but such
subjective considerations are not part of the factors under s. 22. There was evidence upon
which the trial judge could make the findings he did. The onus was upon the appellant to
prove, on the balance of probabilities, that both conditions of "separate and apart" were
met. He failed to do so. There is no basis upon which to disturb the findings of the trial
judge.
The Contribution of the Respondent
[19] Under this heading, in effect, the appellant argues that this was not a traditional
marriage, albeit, the husband worked outside the home and the wife remained at home

with the children. The appellant submits that the wife did not perform any role, she was not
contributing financially, she was not caring for the children and she was not managing the
household. In short, the submission is that she contributed so little to the marriage that
equal division would be grossly unjust or unconscionable.
[20] As an adjunct to this submission, the appellant maintains that the trial judge
failed to consider the evidence of the parties' daughter Jennifer, as well as the evidence of
Pearl Hynes and the appellant himself. (Jennifer lived with her mother from her birth to
May 1991, when she began living with her father. Subsequently she boarded with a family
in River of Ponds where she was completing high school.)
1999 CanLII 18995 (NL CA)
[21] It is true that the trial judge in his decision did not summarize the evidence of
Jennifer. However, he specifically refers to Jennifer's evidence in the context of his
decision on this submission, acknowledging, by implication, its negative content. It is clear,
therefore, that in considering the appellant's argument and weighing the evidence,
Jennifer's evidence was considered though obviously not given the weight the appellant
wished it to have. The trial judge concluded that the respondent had, with little help from
the appellant, taken on and discharged the duty of caring for the children. In the process,
he noted that the respondent had some shortcomings. However, it must also be
underlined that there were positive statements about the respondent from other witnesses.
Dissipation of Assets
[22] The appellant argues that the respondent unreasonably impoverished or
dissipated matrimonial assets. This is not supported by the evidence. Black's Law
Dictionary defined "dissipate" as "to destroy or waste, as to expend funds foolishly." It is
clear that generally speaking the appellant controlled the funds. In later years the amount
given to the respondent to support herself and the children was precisely determined by
the appellant. The amount provided was modest. I fail to see how the fact that the
respondent had exclusive use of the family home and car for most of the year can
demonstrate either dissipation or impoverishment of matrimonial assets on the part of the
respondent. Normal use of an asset cannot be said to be dissipation of that asset. The
appellant complained, in particular, about the respondent having spent $24,000 in

approximately 9 months in 1986, six years before they separated. (It was after this that the
appellant sent only a specified amount to the respondent for her support and that of the
children.) To place the amount in context, in the years from 1984 to 1989, the appellant's
annual income, according to his income tax returns, ranged from a low of $80,149 to a
high of $138,917. There is no pattern of waste, nor is the expenditure of $24,000 for the
support of three persons during a period of 9 months proof of dissipation. I am confident
that during every marriage one spouse purchases items which the other sees as wasteful.
The test required by the Act is not whether the appellant approved of the respondent's
management of money. The question is whether in the circumstances of the parties the
questioned expenditures demonstrate that degree of wastefulness so as to meet the high
test of the Act. That is not present in this case.
1999 CanLII 18995 (NL CA)
Other Factors in s. 22
[23] As noted above, the onus is upon the appellant to prove that equal division
would be grossly unjust or unconscionable. I would expect that where there is an arguable
case based on the evidence related to the factors listed in s. 22, counsel for the appellant
would point out both the evidence and the factors to which the evidence relates. It is clear
that in this case the submissions of the appellant were based not on all the factors listed in
s. 22 but only on those which have been dealt with on this appeal. The Family Law Act
does not require that all the factors in s. 22 be considered in every case. This is not akin to
s. 31 of the Children's Law Act, R.S.N. 1990, c. C-13, where a court is directed to
consider a number of factors in deciding issues of custody of or access to a child. Here
the onus is upon the party seeking unequal division to establish that any one or more of
the circumstances enumerated in s. 22 of the Family Law Act demands such an order. In
the absence of such an application the court is entitled to proceed on the basis that equal
division is proper.
[24] As noted above, this case proceeded in a somewhat unusual way, no doubt
because of the stark difference between the parties as to the date of separation and the
relevance of that issue to the other matters to be determined. In the normal course of
events I would expect that prior to a consideration of whether there should be unequal
division of matrimonial assets there would be a determination of what assets comprise the

matrimonial assets and, further, if there are business assets, whether the other spouse
has made a contribution to acquisition, management, maintenance, operation or
improvement of the business asset, thereby entitling him or her to an order under s. 29 of
the Act. Since the financial resources of the parties in the future is a factor for
consideration under s. 22(a) and (b) the elimination of an asset from the pool of
matrimonial assets could have an impact on the determination under s. 22. In this case,
however, when the matter was raised with counsel for the respondent, she indicated that
her client was prepared to proceed with the appeal, accepting that the determination had
been made on the principle of unequal division and accepting the consequences if some
of the assets under consideration were held not to be matrimonial assets. In short, the
respondent was prepared to take the chance that there were no business assets or, if
there were, there would be little impact on the final division. In the circumstances,
therefore, the failure to determine whether there were business assets is not sufficient to
disturb the finding of the trial judge.
1999 CanLII 18995 (NL CA)
[25] For the reasons noted the appeal is denied with costs to the respondent.
Appeal dismissed.
Footnotes
1. In the defence, reference is made to s. 22(a), (b), (e), (g), (i), (j) and (k).