



COURT OF APPEAL FOR ONTARIO

CITATION:
Symmons v. Symmons, 2012
    ONCA 747

DATE: 20121106

DOCKET: C55122 & C55545

Laskin, Rosenberg and Tulloch JJ.A.

BETWEEN

William Symmons

Applicant (Respondent)

and

Mary Lou Symmons

Respondent (Appellant)

Sarah Boulby, for the appellant

Aaron Franks and Michael Zalev, for the respondent

Heard: September 13, 2012

On appeal from the orders of Justice Peter Z. Magda of
    the Superior Court of Justice, dated January 31, 2012 and May 3, 2012.

By the
    Court:

A.

introduction

[1]

Mary Lou Symmons appeals an order requiring her to pay her husband,
    William Symmons, an equalization payment of $117,514.50 and costs of $25,500.

[2]

The parties cohabited for five and a half years, were married for ten
    years, then separated in 2009.  They settled all of their differences but one: 
    the division of Mr. Symmons pension.  That issue was tried and the trial
    judge, relying on expert evidence, valued each partys interest in the pension
    and survivor benefits.  His valuation yielded the equalization payment that
    Mrs. Symmons now appeals.

[3]

Mrs. Symmons raises numerous issues on her appeal.  Her overriding
    contention, however, is that the trial judge erred by not granting her a share
    in the amount Mr. Symmons pension interest accumulated during the period the
    parties cohabited before marriage.  The specific issues Mrs. Symmons raises on
    appeal are as follows:

(1)

The trial judge erred by failing to correctly apply the principles of
    unjust enrichment.

(2)

The trial judge erred by failing to apply Bill 133, the legislative regime
    for valuing pensions introduced at the beginning of this year.

(3)

The trial judge erred by failing to order an unequal division of the
    parties net family property under s. 5(6)(h) of the
Family Law Act
.

(4)

The trial judge erred by failing to order that Mrs. Symmons be allowed
    to satisfy the equalization payment over time.

(5)

The trial judges conduct of the trial deprived Mrs. Symmons of a fair
    trial.

(6)

The trial judges costs award is
    unreasonable.

[4]

We called on Mr. Symmons to respond only to issues 1, 4 and 5.  For the
    brief reasons that follow, we dismiss Mrs. Symmons appeal.

B.

background

(1)

The Parties

[5]

Mr. and Mrs. Symmons began living together in the fall of 1993.  They
    married in February 1999, and separated in October 2009.  Both were previously
    married and each has adult children.  They have no children together.  Mrs.
    Symmons is 56 years old.  Mr. Symmons is 69 years old.

(2)

Employment

[6]

When the parties met, Mr. Symmons worked for Ontario Power Generation
    (OPG) as a project manager.  Mrs. Symmons was employed as a representative
    for a printing card company.  When the parties began living together, they
    resided in Mississauga.  Soon after, OPG relocated Mr. Symmons to Pickering. 
    To accommodate his relocation, the parties moved to Ajax.  Mrs. Symmons claimed
    that the move made it more difficult for her to service her sales territory. 
    She eventually abandoned her business as a greeting card representative and
    opened a flower store closer to home.  She sold the store after Mr. Symmons
    retired in 2002.

(3)

The OPG Pension

[7]

Mr. Symmons was entitled to a pension from OPG.  In June 1995, Mr.
    Symmons designated Mrs. Symmons the beneficiary of his OPG pension.  In 2002,
    Mr. Symmons accepted an early retirement package from OPG, which included his
    full pension.  As a result of his retirement his pension came into pay.  He
    could have accepted a lump sum cash settlement from his pension plan.  Instead,
    he elected a pension in pay with survivor benefits.

[8]

Mrs. Symmons remains the beneficiary of the pension survivor benefits.  When
    Mr. Symmons dies, she will receive for the rest of her life monthly payments
    equivalent to two-thirds of the monthly payments Mr. Symmons received while
    alive.

[9]

In March 2000, a year after they were married, the parties signed a
    cohabitation agreement.  It contains a written acknowledgement that both
    parties had waived the right to independent legal advice.  In the agreement,
    Mr. Symmons agreed that he has no claim to any business owned by his wife from
    this date forward.  Similarly, Mrs. Symmons agreed that she has no claim to
    any pension of Bills from this date forward.  At trial, Mr. Symmons did not
    attempt to enforce the cohabitation agreement.

(4)

Partial Settlement of the Litigation

[10]

Shortly
    after the parties separated, Mr. Symmons began proceedings under the
Family
    Law Act,
R.S.O. 1990, c. F.3.  In April 2011, the parties signed partial
    minutes of settlement.  Mr. Symmons agreed to pay Mrs. Symmons an equalization
    payment of $205,875.84, reflecting all of the parties assets other than Mr.
    Symmons pension.  In addition, Mr. Symmons agreed to pay spousal support of
    $1,400 per month.

[11]

In
    November 2011, the parties signed further minutes of settlement to deal with
    spousal support.  Mr. Symmons agreed to pay time-limited support starting at
    $1,400 per month, increasing to $1,500 in May 2012, gradually declining to
    $1,305 in May 2016, and ending altogether in May 2021. At that time, Mr.
    Symmons will be 78 years of age, and Mrs. Symmons will be nearly 65.

[12]

The
    issues over the division of the pension and the survivor benefits were set down
    for trial.

(5)

The Trial

[13]

The
    trial took two days.  Mr. Symmons was represented by counsel; Mrs. Symmons was
    self-represented.

[14]

The
    parties pension interests were valued by experts, using the methodology under
    the legislative regime that preceded Bill 133,
Family Statute Law Amendment
    Act
, 1st Sess, 39th Parl, 2009 (the legislative reform of family pensions
    that came into effect on January 1, 2012).  In his reasons, the trial judge
    accepted the following figures for the purpose of calculating the equalization
    payment:

·

The after tax capitalized value of Mrs. Symmons survivor
    benefits: $310,824

·

The after tax capitalized value of Mr. Symmons pension interests
    accrued during marriage: $75,795

·

The after tax capitalized value of Mr. Symmons pension interests
    accrued from the time the parties began cohabitating  to the date of
    separation: $202,900

[15]

Mrs.
    Symmons urged the trial judge, in apportioning the pension interest, to take
    into account its increase in value during the cohabitation period, on the basis
    of equitable principles.  Mr. Symmons argued that he should only be required to
    share the growth of his pension during the marriage, in accordance with s. 4 of
    the
Family Law Act
.

[16]

The
    trial judge ultimately accepted Mr. Symmons position.  On the basis of the
    numbers above, he found that Mrs. Symmons owed an equalization payment to Mr.
    Symmons in the amount of $117,514.50 ($310,824 - 75,795 = 235,029 ÷ 2).

[17]

If
    the value of the pension interests and survivor benefits had been shared over
    the entire relationship, including the five and a half years of pre-marriage
    cohabitation, then the equalizing sum would have been closer to $60,000.

C.

the  issues

(1)

Unjust Enrichment

[18]

The
    evidence at trial showed that the value of Mr. Symmons pension increased by
    $127,105 during the five and a half years the parties cohabited before
    marriage.  On appeal, Mrs. Symmons again seeks an order for an equal share of
    that accrual  approximately $63,500  on the basis of unjust enrichment.  Such
    an order would reduce the equalizing sum she owes to Mr. Symmons by more than
    half.

[19]

Mrs.
    Symmons puts forward her claim for unjust enrichment on two related grounds. 
    First, she says that she and her husband were engaged in a joint family
    venture during the period of cohabitation, as primarily evidenced by their
    mutual effort and decision-making:
Kerr v. Baranow
, 2011 SCC 10,
    [2011] 1 S.C.R. 269, at paras. 87-99. Second, she says that Mr. Symmons was
    enriched by the parties move to Ajax because it allowed him to continue to
    accrue his pension during the period of cohabitation.  She also claims that she
    suffered a corresponding deprivation because the family move led to the loss of
    her business as a greeting card representative.

[20]

The
    trial judge rejected Mrs. Symmons unjust enrichment claim.  He said:

I agree with Mr. Alexander that unless the respondent can show
    that there is somehow an implied resulting thrust or some unjust enrichment
    finding, finding a constructive trust to remedy any unfairness, the law in the
Family
    Law Act
is clear; the division of property is for married spouses.

I have listened very carefully to the respondent and I can see
    no valid reason in law to somehow find an implied constructive trust to assist
    her.  I appreciate that during the cohabitation, both pre and post-marriage,
    that the parties were close and discussed many things.  There is no evidence
    before me that would suggest, on the balance of probabilities, that the
    applicant made a promise to divide his pension inclusive of the cohabitation
    period.  I accept that it was his intent to divide his pension in accordance
    with the law.  He does not appear to me to be ungenerous; he did after all
    designate the respondent as the beneficiary of his plan, which will provide her
    with 66.66 percent of his pension after he passes on.

There is no deprivation here on the facts at all as I find it

The cohabitation period prior to the marriage is therefore
    excluded.

[21]

The
    trial judges finding that there was no unjust enrichment is reasonable.  We are
    not persuaded that we should interfere with it.  Below, we will briefly address
    the two grounds Mrs. Symmons puts forward for her unjust enrichment claim, and explain
    why we find them unpersuasive.  Before doing so, it is worth noting that this
    court has recently held in the vast majority of cases, any unjust enrichment
    that arises as the result of a marriage will be fully addressed through the
    operation of the equalization provisions under the
Family Law Act
:
McNamee
    v. McNamee
, 2011 ONCA 533, 106 O.R. (3d) 401, at para. 66.

[22]

In
    regards to Mrs. Symmons first ground, a joint family venture is characterized
    by a relationship in which the contributions of both parties have resulted in
    an accumulation of wealth.  It can be identified with reference to the mutual
    effort of the parties, their degree of economic integration, their actual
    intent during the relationship, and the prioritization of the family unit in
    decision-making:
Kerr v. Baranow
, at paras. 87-99. For the purposes of
    an unjust enrichment claim, the applicant party must demonstrate that one party
    has retained a disproportionate share of the economic fruits of their joint
    efforts:
Kerr v. Baranow
, at para. 60

[23]

It
    is arguable whether the relationship between Mr. and Mrs. Symmons during the
    cohabitation period can properly be characterized as a joint family venture. 
    The acknowledgements in the cohabitation agreement, though not relied on at
    trial, are some evidence of the parties intentions with regards to their
    economic integration. As we have said, Mr. Symmons acknowledged that he had no
    prospective claim to his wifes business, and Mrs. Symmons acknowledged that
    she had no prospective claim to her husbands pension.  Further, their period
    of cohabitation before marriage was relatively short, and they had no children
    together.

[24]

Even
    if the relationship exhibited some characteristics of a joint family venture,
    there is insufficient evidence that Mr. Symmons retained a disproportionate
    share of the assets accrued as the result of their joint efforts  namely, the
    pension.  His pensionable service at the time of retirement was twenty-five
    years, only five and a half of which he spent cohabiting with Mrs. Symmons. 
    However, as a result of the beneficiary designation, she received an interest in
    the pension worth over $300,000, before equalization.  Relative to Mr. Symmons
    interest in the pension, which according to his financial statements is around
    $600,000, Mr. Symmons share does not seem disproportionate.

[25]

On
    the second ground, although Mrs. Symmons contends that the move to Ajax caused
    a deprivation to her and her business, the evidence at trial suggests
    otherwise.  While Mrs. Symmons claim to unjust enrichment is based on the
    cohabitation period,  this court has held that a judge may consider the
    relative status of the parties at the end of a marriage in ascertaining the
    merits of an unjust enrichment claim relating to the pre-marital period:
Roseneck
    v. Gowling
(2002), 62 O.R. (3d) 789, at paras. 28-30.

[26]

Although
    Mrs. Symmons was required to change her employment during the period of
    cohabitation, the value of her business appears to have increased significantly
    by the end of the relationship.  On the date of marriage, Mrs. Symmons
    business had a nominal value of $8,872.93.  In her financial statement of July
    2011, she listed the estimated market value of her business interests on the
    valuation date as $126,347.

[27]

The
    relative overall increase in each partys net worth during marriage also
    undermines Mrs. Symmons claim for unjust enrichment.  According to the
    respondent, Mr. Symmons net worth increased by $328,742.90.  Mrs. Symmons net
    worth increased by $653,221.26, virtually double that of her husband.  Mrs.
    Symmons did not contest these figures on appeal.

[28]

A
    final piece of evidence that suggests Mrs. Symmons has not been unjustly
    deprived in relation to the pension is the spousal support Mr. Symmons will pay
    out of his already equalized pension interest until May of 2021.

[29]

For
    these reasons, we decline to give effect to Mrs. Symmons unjust enrichment
    claim.

(2)

Bill 133

[30]

Effective
    January 1, 2012, both the
Family Law Act
and the
Pension Benefits
    Act
, R.S.O. 1990, c. P.8, were amended by Bill 133 to introduce a new
    legislative regime for the valuation of pension interests.  Under the
    transition provisions of the
Family Law Act
, ss. 10.1(8) and (9), the
    new regime applies even in cases where the valuation date preceded the coming
    into force of the amending legislation.  Thus, this new legislative regime
    applied to the valuation of the parties interest in Mr. Symmons pension.

[31]

In
    his reasons, the trial judge said that the amendment was of no assistance to
    Mrs. Symmons.  During argument, he said that it did not apply because he was
    dealing with a matter that arose before the amendment.  Counsel for Mr. Symmons
    acknowledges that the trial judge erred in law by holding that Bill 133 did not
    apply.  Counsel for Mrs. Symmons asks that we order a new trial at which the
    parties pension interests would be valued under the new legislative regime.

[32]

We
    do not accept Mrs. Symmons position.  Under s. 134(6) of the
Courts of
    Justice Act
, R.S.O. 1990, c. C.43, this court may order a new trial only
    where a substantial wrong or miscarriage of justice has occurred.  We have no
    evidence to show that valuing Mr. Symmons pension under the previous
    legislative regime produced a substantial wrong or a miscarriage of justice. 
    Indeed, we do not know whether a valuation under the new regime would have made
    any material difference, and even if it did, whether it would have benefited
    Mrs. Symmons or Mr. Symmons.

[33]

The
    parties agreed that the trial would proceed on the basis of the valuations
    before the court.  Neither party put forward at trial valuation based on Bill
    133 methodology.  Neither party asked for an adjournment to obtain one.

[34]

In
    this court, Mrs. Symmons did not seek leave to introduce as fresh evidence a
    valuation based on Bill 133.  In oral argument, her counsel acknowledged that a
    Bill 133 valuation would not include the pre-marriage period of cohabitation. 
    Thus, we see no merit in putting the parties to the expense of a new trial
    simply to obtain a new valuation of the parties pension interests.  We decline
    to order a new trial for this purpose.

(3)

An Equal Division Under Section 5(6)(h) of the
Family Law Act

[35]

As
    an alternative to her unjust enrichment claim, Mrs. Symmons seeks an unequal
    division of net family property under s. 5(6) of the
Family Law Act
. 
    Under s. 5(6), a court may award more or less than half the difference between
    the net family properties if equalizing would be unconscionable.  Mrs. Symmons submits
    that the trial judge erred in failing to order an unequal division.  We do not
    accept this submission.

[36]

This
    court has stressed that the threshold of unconscionability under s. 5(6) is
    exceptionally high.  A party seeking an unequal division must show that an
    equal division of net family property would shock the conscience of the
    court:
Serra v. Serra
, 2009 ONCA 105, 93 O.R. (3d) 161, at para.
    47.  In this case, the equalization of net family property does not come close
    to meeting this standard.  Accordingly, this ground of appeal fails.

(4)

Payment Over Time

[37]

Ordinarily
    a party required to make an equalization payment must make the payment right
    away.  However, s. 9(1)(c) of the
Family Law Act
gives the court
    discretion to order payments in instalments for a period of up to ten years,
    if necessary to avoid hardship.

[38]

Mrs.
    Symmons submits that the trial judge ought to have allowed her to satisfy the
    equalization payment to Mr. Symmons over a period of seven years.  She points
    out that she cannot access her survivor benefits now, and may not be able to do
    so for years.  Thus, it would have been reasonable to allow her to pay in
    instalments.

[39]

There
    is some merit in Mrs. Symmons submission.  However, we are not satisfied that
    she has met the statutory standard of hardship to justify an order under s.
    9.  An important factor in deciding whether equalization should be paid in
    instalments is whether the payor spouse has funds available to pay a lump sum:
Serra
    v. Serra
(2007), 36 R.F.L. (6th) 66, varied on other grounds,
Serra v.
    Serra
,

2009 ONCA 105, at para. 158.  Mrs. Symmons has already
    paid $60,000 of the equalization payment.  She has assets in excess of $300,000
    to satisfy the remaining $57,000 payment.  We therefore decline to order
    instalment payments.

(5)

Conduct of Trial

[40]

As
    we have said, Mrs. Symmons represented herself at trial.  She contends that the
    trial judge deprived her of a fair trial by discouraging her from
    cross-examining her husband to elicit evidence to support her unjust enrichment
    claim, by excessively intervening in her presentation of her case, and by
    making comments that demonstrated he had prejudged the case.

[41]

We
    do not accept Mrs. Symmons contention.  We have reviewed the record.  We are
    satisfied that the trial judge fulfilled his duty to a self-represented
    litigant.  He explained his role in the trial process to Mrs. Symmons at the
    outset of the hearing, he assisted her from time to time, and he gave her a
    fair opportunity to present her case.  Moreover, we see no evidence that he
    prejudged the case.  This ground of appeal, therefore, fails.

(6)

Costs

[42]

Mr.
    Symmons was successful at trial.  He did better than several  of his offers to
    settle.  He asked for costs of approximately $86,000.  The trial judge awarded
    him $25,500.

[43]

Mrs.
    Symmons submits that in making this costs award, the trial judge did not take
    into account her means.  We disagree.  In awarding Mr. Symmons substantially
    less than he sought, the trial judge expressly stated that he was mindful of
    Mrs. Symmons circumstances.  We therefore see no basis to interfere with the
    trial judges costs award.  Leave to appeal costs is refused.

D.

conclusion

[44]

The
    appeal is dismissed.  The parties may make written submissions on the costs of
    the appeal within ten days of the release of these reasons.

Released: November 6, 2012

JL                                                                              John
    Laskin J.A.

M.
    Rosenberg J.A.

M.
    Tulloch J.A.


