



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


Bain 
          v. Bain,







2008 
          BCCA 49



Date: 20080205

Docket: CA034219

Between:

Trudy 
    Irene Bain

Respondent

(
Plaintiff
)

And:

David 
    Ian Bain

Appellant

(
Defendant
)




Before:


The 
          Honourable Chief Justice Finch




The 
          Honourable Madam Justice Prowse




The 
          Honourable Madam Justice Huddart








J. 
          Dubas


Counsel for the Appellant




P.C.M. 
          Formby


Counsel for the Respondent




Place 
          and Date of Hearing:


Vancouver, British Columbia




23 November 2007




Place 
          and Date of Judgment:


Vancouver, British Columbia




5 February 2008








Written 
          Reasons by:




The 
          Honourable Madam Justice Huddart




Concurred 
          in by:




The 
          Honourable Chief Justice Finch
The Honourable Madam Justice Prowse



Reasons 
    for Judgment of the Honourable Madam Justice Huddart:

[1]

The primary issue on this appeal is the child care regime put in place 
    by orders made after a five-day trial in May 2006 (2006 BCSC 894) and a two-day 
    application on 31 August and 1 September for a reconsideration hearing 
    (2006 BCSC 1385).  The appellant alleges the misuse of character evidence 
    by the trial judge and the psychologist who prepared a report under s. 15 
    of the
Family Relations Act
, R.S.B.C. 1996 c. 128, lack of proper 
    care in the presentation of his case by his counsel and the trial judges 
    concern to complete the trial within the estimated time, resulted in child 
    care arrangements not in the best interests of the children of his marriage 
    to the respondent.  He asks this Court to set aside the orders, review the 
    trial record and the new evidence and make orders that do recognize the childrens 
    best interests and the relevant statutory provisions.  Alternatively, he seeks 
    a new trial on this issue before a different trial judge.

[2]

The appeal also raises secondary issues concerning the appellants 
    income under the
Federal Child Support Guidelines
, S.O.R./97-175, 
    a currency/coin collection, the reapportionment of family assets, and a restraining 
    order.  The cross-appeal challenges the trial judges finding that debts incurred 
    by the appellant on two credit cards before the separation should be paid 
    from the proceeds of sale of the family residence by way of reapportionment. 
     The appellant makes the same challenge to a debt the respondent incurred 
    to her family before and after the separation and before the triggering event.

[3]

In support of the grounds for appeal, the appellant seeks to introduce 
    affidavit evidence from himself.  Included in the exhibits to one of his affidavits 
    is a letter written on 29 September 2006 by his counsel to his treating psychiatrist, 
    Dr. Ancill, and the response dated 1 October 2006 which might be considered 
    as new evidence.  The letters were written after the application for reconsideration 
    of the same issues raised on this appeal, but, according to Dr. Ancills letter, 
    he had been Mr. Bains treating psychiatrist since July 2002 and had last 
    seen the appellant on 6 August 2006 i.e. before the application for reconsideration.

Background Facts

[4]

The parties started dating in 1991 having met when they both worked 
    for the same collection agency.  The same year the respondent began to work 
    in the collection department of ICBC.  She subsequently became a claims adjuster, 
    a position she still holds.  They moved in together in early 1992 and enjoyed 
    what appear to have been relatively peaceful and light-hearted years for them 
    both.  The appellant started to work for ICBC in the collection department 
    in 1996 and worked there until 1999, when he left late in the year to take 
    up the management of a collection business the couple had started.

[5]

Meanwhile, the parties had married on 11 October 1998, and the respondent 
    had moved from full-time to part-time employment.  The parties bought their 
    first and only home in Maple Ridge, and they moved into that home in April 
    1999 on the same day their first child was born.  The respondent went on maternity 
    leave.  To close the purchase, the couple used the respondents RRSP ($15,000) 
    acquired before their relationship began and an additional $5,000, the source 
    and exact amount of which is unclear from the evidence.

[6]

In the spring of 2000, the respondent returned to her part-time work 
    as a claims adjuster, working about half-time.  Around the same time, the 
    collection business was moved to the family home.  It appears not to have 
    done well and was shut down not long after.  The appellant looked after their 
    child while the respondent was at work.  Then in October 2000, the appellant 
    suffered what has been diagnosed as a traumatic closed head brain injury from 
    which he has not recovered sufficiently to take up full-time work.  Their 
    second child was born on 24 February 2002.  After her birth, the respondent 
    again took a years maternity leave.

[7]

The appellant did not lead any direct medical evidence as to his current 
    mental state, relying instead on his testimony and the report of his condition 
    in the s. 15 report, as relayed from Dr. Ancill, his psychiatrist, to Dr. England, 
    the psychologist who prepared the report.  He was receiving a monthly Canada 
    Pension Disability Pension of about $950.  He was also working about 60 hours 
    monthly as a handyman, receiving income the trial judge fixed at $900 monthly 
    for a gross monthly income of $1,850 or $22,200 annually.  As well, he had 
    the benefit of rent-free accommodation in exchange for work done for his landlord. 
     At the time of the trial, the respondent was in the same job-share arrangement 
    with ICBC, earning $27,928.27 annually.

[8]

After the second childs birth the parties relationship became difficult. 
     The trial judge did not chronicle the many matters canvassed in evidence 
    in the context of the breakdown and destruction of the marriage.  Quite properly, 
    he concentrated on those matters that had, as he wrote, potential to reflect 
    adversely on the best interests of the children.  I will do the same in these 
    reasons.

[9]

It will be sufficient to note the parties separated within the family 
    home in August 2004, that the respondent obtained an order for exclusive occupancy 
    of the family home, accompanied by an order to remove the appellant from the 
    home and an interim restraining order in January 2005, and that a divorce 
    order was granted on 21 November 2005.  That is the event that triggers the 
    determination and division of family assets under Part 5 of the
Family 
    Relations Act
.

[10]

The respondent gave birth to another child, with a different father, 
    two weeks before the trial in May 2006.  She and her three children were living 
    with her parents.  Marriage to the father of the child seemed unlikely, although 
    he was helping her financially.

[11]

Because of the over-riding importance of the child care issue, with 
    which the restraining order is interwoven, I will consider those two issues 
    before embarking on a discussion of the property issues.  I will conclude 
    with the child support order.

The Child Care Regime

[12]

The trial judge granted the respondent sole guardianship and sole custody 
    of the parties two children.  He ordered specified overnight access on alternate 
    weekends, and one week during each of Christmas vacation, Spring break, the 
    month of July and the month of August.  Those visits were confined to British 
    Columbia within a 50-mile radius of the respondents municipality of residence, 
    and the respondent was ordered to have possession of the childrens passports. 
     The trial judge ordered that the pick-up and drop off of the children was 
    to be supervised by a person approved by the respondent in writing until at 
    least September 2006, and gave the appellant liberty to apply to remove that 
    provision if the parties had not agreed to do so before the end of that month.  
    The trial judge also continued the restraining order, precluding the appellant 
    from entering the property where the respondent is residing or communicating 
    with her except by specified means for the purpose of facilitating his access 
    visits with the children.  Before the order was entered, the trial judge heard 
    and rejected the appellants application for reconsideration of the custody 
    and access orders.

[13]

The respondent had wanted the court to restrict access to supervised, 
    non-overnight visits, the arrangement that had been in place since the orders 
    of January 2005.  The appellant had sought joint custody and joint guardianship 
    with the childrens time divided equally between their two parents on an alternate 
    week basis.  He understood this arrangement would mean he and the respondent 
    would have to live in the same neighbourhood.

Character of the Appellant

[14]

The essence of the trial judges reasoning is found in paras. 6-9 and 
    24-31 of his reasons.  The trial judge chronicled what the appellants counsel 
    calls character evidence in determining whether joint custody and guardianship 
    were appropriate.  Included were references to the appellants mood disorder 
    and depression, pornographic material, inappropriate language, involvement 
    in marijuana grow operations, alleged suicidal behaviour, and unusual fascination 
    with the Hells Angels.  The appellant does not suggest there was no evidence 
    to support the trial judges findings.  Rather, he says, that evidence was 
    inflammatory, highly prejudicial and of little probative value, should not 
    have been admitted and should have been excluded from his consideration.

[15]

The problem with this submission is that, as the record reveals, when 
    the respondent was testifying about some of the most controversial of the 
    husbands alleged behaviour, the trial judge questioned its relevance.  He 
    allowed the questions after he was persuaded the respondent was explaining 
    why she feared what the father might do in a fit of anger, that the father 
    was a danger to himself and that he might remove the girls from Canada.  That 
    was a legitimate reason for admitting the evidence.

[16]

As for the appellants complaint that the trial judge gave this character 
    evidence too much weight, the record and his reasons suggest otherwise.  His 
    reasons demonstrate he was alert to the possibility, even likelihood, that 
    the respondent was exaggerating and over-reacting.  He said so in his reasons 
    (at para. 17).  He rejected some of her evidence (at paras. 19 and 21). 
     He saw none of it as decisive.  He had the benefit of Dr. Englands report 
    that suggested the respondents personality type was consistent with over-reaction 
    and exaggeration.  But he also had Dr. Englands report of the appellants 
    uncontradicted history of conflicted familial relationships, and there was 
    support for some strange behaviour on his part from other witnesses.  That 
    the trial judge did not give much weight to the character evidence is also 
    evident from the overnight visits he ordered in the face of the respondents 
    testimony, the recommendation for mediation of the need for supervision of 
    the exchanges, and the order giving liberty to apply to withdraw that condition 
    for access.

[17]

After reviewing all the testimony and exhibits to which the appellant 
    referred this Court on the custody and access issue, including Dr. Englands 
    report and the affidavits on the fresh evidence motion, I have reached the 
    view the trial judges orders were appropriate, given the parents relationship, 
    the girls ages, the fact they had not stayed overnight with their father 
    for 18 months, and the exchange difficulties.

[18]

The evidence is overwhelming that these two parents could not communicate 
    sufficiently to permit them to co-parent two young girls.  That inability 
    to communicate, regardless of the reason giving rise to it, precluded an order 
    for joint custody at the time of the trial, and made joint guardianship problematic. 
     At the ages of 7 and 4, where access had been specified and restricted to 
    daytime visits twice a week for 18 months, the staged process for increasing 
    access recommended by Dr. England was entirely reasonable.

[19]

The trial judge, like Dr. England, saw that the relationship with their 
    father was important to the girls and needed nourishment by the mother and 
    to be fostered by the court.  The mother agreed the father had never been 
    physically violent with them, and she did not think he would be.  She simply 
    worried he might do something inappropriate, given the volatility of his behaviour, 
    worse since leaving the home, and the nasty difficulties during some access 
    visit exchanges.

[20]

Custody and access orders are not set in stone for all time.  Children 
    grow older and more independent.  Parents form new relationships and their 
    previous relationship settles down as they come to accept the new reality 
    and see that their children continue to love, depend on and need both of them. 
     Despite their parents conflicts, both children have enjoyed a good start 
    to their new circumstances.  The court-appointed expert, Dr. England, saw 
    the children with both parents and was highly complimentary of both of them. 
     Somehow these parents, despite their interpersonal conflicts, are doing a 
    good job of putting their children first in their lives.

[21]

As both counsel recognized, this Court rarely interferes with a child 
    care regime put in place by a trial judge.  It may do so only when there is 
    a material error, a serious misapprehension of the evidence or an error in 
    law:
Hickey v. Hickey
, [1999] 2 S.C.R. 518,
Van de Perre 
    v. Edwards
, 2001 SCC 60, [2001] 2 S.C.R. 1014.  The trial judge has 
    the advantage this Court can never have.  He has seen and heard the parents 
    and in this case members of their extended families and friends.  In this 
    case, I could find no basis in the record to set aside the custody and access 
    orders, to make a different order or to direct a new trial.  The appellants 
    counsel could point to no omission that would give rise to the reasoned belief 
    that the trial judge must have forgotten, ignored or misconceived the evidence 
    in a way that affected his conclusion:
Van Mol (Guardian ad litem 
    of) v. Ashmore
, 1999 BCCA 6, 168 D.L.R. (4th) 637, leave to appeal 
    to S.C.C. refused, [2000] 1 S.C.R. vi.

Conduct of Appellants Trial Counsel

[22]

As I reviewed the record, I kept in mind the submissions of counsel 
    about the failures of the appellants trial counsel and the trial judge.  I 
    am satisfied the appellant received a fair hearing from the trial judge, and 
    I am not persuaded  that failures on the part of trial counsel departed significantly 
    from objective norms of conduct in family cases and affected the result.  So 
    I need not consider whether the principles with regard to conduct of counsel 
    in criminal and child protection cases should be extended to cases of child 
    custody and access, other than to note that a trial judge who has reasonable 
    grounds for believing that one or both parties may not be advancing a childs 
    best interests has the inherent jurisdiction as
parens patriae
to ensure 
    he can make a proper enquiry into those interests.

[23]

No trial is perfect; resources of time and money are always limited. 
     Strategic decisions must be made.  Failures are most easily seen in hindsight. 
     Counsel, with the assistance of the court-ordered s. 15 psychological evaluation, 
    put before this trial judge a sufficient picture of the childrens circumstances 
    to permit a fair decision as to a care regime that would be in their best 
    interests among those available at the time of the trial.

Admission of Fresh Evidence

[24]

Before I came to this conclusion, I also read and considered the potential 
    effect of the views Dr. Ancill expressed in his letter to the appellants 
    counsel of 1 October 2006, had they been expressed at trial without cross-examination. 
     Had he testified to the same effect, the trial judge is likely to have been 
    reassured that the appellant was of no danger to himself and to have had a 
    better understanding of the effect of his brain injury on his ability to care 
    for his daughters.  His reasons would have reflected that understanding.  His 
    scepticism about some of the respondents testimony might have been reinforced. 
     But I am not persuaded the result could reasonably be expected to have been 
    different.

[25]

Thus the letter of Dr. Ancill does not meet the test laid down for 
    the admission of fresh evidence in
R. v. Palmer
(1979), [1980] 
    1 S.C.R. 759 at 775 or
Cory v. Marsh
(1993), 22 B.C.A.C. 
    118, 77 B.C.L.R. (2d) 248 at para. 28.

[26]

For these reasons, I would not admit the letter of Dr. Ancill as evidence 
    on this appeal and would dismiss the appeal of the custody and access orders.

The 
    Restraining Order

[27]

The appellant complains that the restraining order made under s. 37 
    of the
Family Relations Act
restricts his liberty and interferes 
    with his childrens right to see him in a free and unfettered way like any 
    other children would be able to see their father.  The restraining order has 
    minimal effect.  It precludes only contact with the respondent and entry on 
    property where she is residing.  That means he must wait off the property 
    while the children come from the house to meet him and again while they go 
    into the house when he returns them.  The order allows certain e-mail and 
    telephone communications necessary to facilitate access visits.

[28]

The appellant asks this Court to set the order aside because the respondent 
    did not prove the reasonable apprehension of fear necessary to establish he 
    was a risk to her safety, in the absence of any physical assault.  The trial 
    judge agreed there had been no direct physical assault of the respondent. 
     He was, however, satisfied that the appellant had threatened and intimidated 
    the respondent and that his conduct on occasions involving access visits 
    has been inappropriate.  There was evidence to support that finding.  It 
    may be that the risk the judge found to be real has by now diminished such 
    that the order is no longer necessary.  If so, the appellant can seek to have 
    the order set aside on a new application to the Supreme Court.  As stated 
    by Madam Justice Rowles in
C.R.H. v. B.A.H.
, 2005 BCCA 277 at 
    para. 27 the proper course for the challenge of the order on the basis of 
    events subsequent to the order is a variation application.

I would 
    not set the restraining order aside.

Property 
    Issues

Currency/Coin 
    Collection

[29]

The appellant alleges the trial judge erred when he found the currency/coin 
    collection to be a family asset.  The trial judge did not explain his finding.  
    The appellant testified he had been putting the collection together over seven 
    years for the children.  The respondent agreed he had told her that.  Neither 
    said it was the childrens property.  The intention to keep an asset for the 
    children is undoubtedly a family purpose and qualifies the collection as a 
    family asset.  The only real issue for the judge was to determine what to 
    do with it.  Since the parties could not agree and the only evidence of its 
    value was the respondents guess, it is not unremarkable the trial judge made 
    the order he did.  The trial judge gave the appellant two weeks from the date 
    of judgment to elect to accept the respondents guess as to the value of the 
    collection.  Failing that, the collection was to be delivered to the respondents 
    solicitor to be sold, and the proceeds were to be divided equally between 
    the parties.  On the appellants application for reconsideration, the judge 
    extended the time for the appellant to exercise his option and adjourned the 
    reconsideration on this issue.  Consequently, the final order provided that 
    the appellant has liberty to apply to reconsider this term of the Order and 
    to review the disposition of the coin/currency collection.  I would not interfere 
    with that order.  The issue remains open for resolution by the trial judge.

Reapportionment

Appellants 
    Credit Card debt

[30]

Each party finds error in the trial judges treatment of their debts 
    upon separation.  Not surprisingly, their debts were substantial, the appellant 
    having been unable to work and contribute to the familys support in any significant 
    way for the five years preceding the triggering event.  The trial judge found 
    that a CIBC Visa and Home Depot debts (approximately $46,000 in total) were 
    incurred for the benefit of the family, and there is no dispute with this 
    finding.  However, the trial judge also found that the additional debts to 
    Capital One ($25,000) and MBNA Mastercard ($14,387.24), were incurred by the 
    appellant for a family purpose and not for his personal purposes.  The respondent 
    cross-appeals this finding.

[31]

While the trial judge did not explain precisely why he was persuaded 
    the Capital One and MBNA Mastercard debts had been incurred for a family purpose, 
    they were incurred before the parties separated and, as the trial judge noted 
    at para. 38 of his reasons [t]he parties were heavily in debt due primarily 
    to the total lack of earning capacity of the defendant following his accident.  
    The respondent testified these cards had consolidated debts from the CIBC 
    card.  Additionally, the respondent acknowledged she had bought a Nikon camera 
    on the appellants direction using one of the cards, and that one of the cards 
    had been used to pay for their last and most expensive trip to Antigua.  In 
    these circumstances, I see no reason to interfere with the trial judges finding 
    of fact, nor with his order that the parties share the payment of those debts 
    equally.  Consequently, I would dismiss the cross-appeal.

Money from Respondents Family

[32]

Beginning in 2004, the respondent turned to her parents and brother 
    for help to maintain the family residence and lifestyle.  She testified that 
    she borrowed money from her mother in 2004 to help with living expenses, food 
    and clothing ($3,940) and for the older daughters school tuition ($2,400).  
    In 2005, the amounts were significantly higher totalling $27,968.85.  They 
    included $8,000 for tax arrears and $7,628 for mortgage arrears, Telus and 
    Rogers bills, the Bay, other cheques and cash.  The respondent testified that 
    at least some of the money from her brother was used to pay her half of the 
    cost of Dr. Englands s. 15 report.

[33]

The trial judge was entitled to accept the evidence of the respondent 
    and her mother that the amounts advanced from the respondents family were 
    loans, and not gifts.  He fixed the debt at $34,308.85.  With the exception 
    of the funds advanced by the brother to cover the cost of Dr. Englands s. 
    15 report, there can be no question the proceeds were used for family purposes. 
     As the family had been doing for years, they were living beyond their income 
    on borrowed money.  I would not interfere with the trial judges order that 
    the loans from the respondents family be shared equally and paid from the 
    proceeds being held in trust except that I would deduct one half of the cost 
    of Dr. Englands report from the amount that was fixed as the total debt by 
    the trial judge.  Dr. Englands report is a court cost.  The appellant should 
    not be required to pay any portion of that cost by way of a reapportionment 
    of family assets.

Proceeds of sale of family residence

[34]

Fortunately, the parties had sufficient equity in the family residence 
    when it was sold in December 2005 to permit payment of their debts and leave 
    about $90,000 to be divided between them.  The appellant finds error in the 
    trial judges reapportionment of those trust monies 2/3 to the respondent 
    and 1/3 to him.  The trial judge explained his reasoning at paras. 51-52 of 
    his reasons for judgment:

51        
    There will be an unequal re-apportionment of the asset balance held in trust 
    that remains from the proceeds of the sale of the matrimonial home in favour 
    of the plaintiff to reflect in particular the provisions of Section 65 (1) 
    (e) and (f) of the
Family Relations Act
.  There was an unequal contribution 
    to the original acquisition of the matrimonial home weighing in favour of 
    the plaintiff.  The plaintiff has had the burden of payment of the mortgage 
    and taxes since the plaintiff's accident in October 2000.  It falls to the 
    plaintiff to assume the burden of finding adequate replacement accommodation 
    for the parties' children and to continue their primary care.  The defendant 
    has paid no child maintenance nor spousal support since separation.

52        
    The $90,530.41 balance of the proceeds remaining in trust from the sale of 
    the matrimonial home, net of the payment of family debts I have allowed, will 
    be apportioned two-thirds to the plaintiff and one-third to the defendant.

[35]

The appellant considers this to be a veiled means of providing retroactive 
    spousal support that he is not and would never have been required to pay because 
    of his inability to work and his modest disability income since separation 
    in contrast with the respondents greater income-earning capacity.  He raises 
    his need to provide a suitable home for the children to meet the conditions 
    of the access order.  Further, he submits it was a mistake for the trial judge 
    to consider the expenses of maintaining the family residence in 2005 because 
    the appellant has contributed to their payment by being required to share 
    equally the amount the respondent paid for tax and mortgage arrears (about 
    $15,000).  The appellant also argues that the trial judge erred in not considering 
    the respondents failure to pay occupation rent for living in the house in 
    2005.  Furthermore, he considers there should have been no allowance for the 
    respondents contribution of pre-cohabitation savings to the purchase of the 
    home given the length of the marriage and the equal nature of their partnership. 
     Finally, while the appellant does not mention the possibility of settling 
    his ICBC claim, particularly for past income loss, he suggests that the possibility 
    of the respondents marriage to the father of her third child should have 
    been considered.

[36]

The onus is on the party seeking reapportionment to establish that 
    the mandated equal division is unfair at the triggering event which, in this 
    case, was the date of the divorce order 21 November 2005.  The ultimate question 
    for the trial judge was whether equal ownership of this particular family 
    asset was unfair, and if it was, what reapportionment would be necessary to 
    make the division fair, having regard to the disparity of contribution and 
    the comparable needs to become and remain self-sufficient.  Because the errors 
    I identify below may have affected the trial judges determination of both 
    those questions, this court must determine whether an equal division would 
    be unfair and if so how that unfairness might best be remedied on the facts 
    of the case as the trial judge found them.

[37]

The trial judges finding that both parties are and can remain self-sufficient 
    does not neutralize s. 65(1)(e), as the appellant would have this Court hold.  
    But it does suggest a more comprehensive analysis of the needs of both parties 
    is required.  That analysis often begins with the standard of living the parties 
    enjoyed during marriage.  These parties lived above their means right up to 
    the triggering event, together and separately, borrowing heavily to do so.  
    The analysis in this case must begin with their means or their potential means 
    to remain self-sufficient while fulfilling their obligations to their children.

[38]

The significant factor the trial judge identified in reapportioning 
    the net proceeds from the sale of the family residence is the respondents 
    need to provide the primary home for the children.  What is missing in the 
    trial judges analysis is a weighing of the respondents need to provide the 
    childrens primary home with the appellants need to acquire accommodation 
    better suited to weekend and longer visits with his daughters.  This should 
    have been considered not only in light of their respective incomes but also 
    in light of their income-earning capacities as best they could be determined 
    in November 2005.  When the trial judge came to consider the issue of child 
    support, he determined the appellants annual income to be a minimum amount 
    of $22,200, an amount he expected would increase.  He had earlier found the 
    respondent capable of working full-time, with an earning capacity of about 
    $55,000 annually.

[39]

In reapportioning the proceeds of the sale of the family residence, 
    the trial judge did not err in considering that the appellant failed to financially 
    assist the respondent in 2005.  The appellants failure to pay any child support 
    when he was earning income is a factor that affects the respondents ability 
    to remain self-sufficient.  Nor did the trial judge err in considering that 
    the respondent bore the burden of maintaining the family residence in 2005 
    including the payment of mortgage and property taxes in that year.

[40]

However, the trial judge did err in failing to consider that the respondent 
    paid these expenses with loans from her family.  The order requiring the appellant 
    to bear an equal share of these loans goes a considerable distance toward 
    removing the weight to be given to the lack of financial assistance to the 
    respondent during that year.  And any remaining weight is fully removed given 
    that the respondent had the benefit of living in the family residence without 
    paying rent during 2005.

[41]

As well, the trial judge did not err in taking into consideration the 
    disparity of contribution to the acquisition of the family residence.  There 
    is evidence to support the finding that the respondent contributed more than 
    the appellant to the purchase of the family residence in April 1999.  While 
    the significance of a difference in contributions made from pre-cohabitation 
    savings diminishes as the years of marriage pass, the importance of the respondents 
    contribution of the RRSP she had acquired before the parties began cohabiting 
    was not totally diminished when they divorced less than seven years later 
    after over a years separation.  While that disparity in itself would not 
    justify a finding of unfairness and a consequential reapportionment, the trial 
    judge did not err in considering it in his overall fairness assessment.

[42]

However, in my view, any benefit the appellant received from the respondents 
    greater contribution to the purchase of the family residence in 1999 was offset 
    by the benefit the respondent received from the use of the proceeds of the 
    family loans in 2005.

[43]

The trial judge found both the appellant and the respondent can support 
    themselves.  If the appellant pays the support required to be paid under the
Federal Child Support Guidelines
and the order of the trial 
    judge, the respondents needs as the primary caregiver of the children will 
    be met.  The appellant need not be deprived of his interest in the major family 
    asset to assure the respondent is able to remain self-sufficient and not required 
    to deplete her modest capital to support the children on her own. The child 
    support order can be secured by the retention of the appellants interest 
    in the family residence in trust until such time as the trial court is persuaded 
    security is no longer required.

[44]

In summary, in my view, the trial judge erred in his exercise of the 
    discretion granted to him by s. 65 by failing to include in his analysis: 
    the appellants need to accommodate the children during visits in light of 
    his lesser earning capacity; the effect of the order that the appellant be 
    equally responsible for the family loan to the respondent; the benefit the 
    respondent enjoyed from the rent-free use of the family residence; the benefit 
    the respondent received from the use of the proceeds of the family loans in 
    2005; and the ability of the child support order to ensure the respondents 
    continued self-sufficiency.

[45]

For these reasons, I would set aide the reapportionment order and substitute 
    for it an order that the parties are each entitled to one-half the net proceeds 
    of the family residence.  Additionally, I would order that the appellant's 
    share be held to provide security for the payment of child support.

Child Support

[46]

There is ample evidence to support the trial judges finding that the 
    appellant was earning a minimum of $22,200 annually and was capable of continuing 
    to earn at least that amount without including the benefit he was receiving 
    by way of free rent in exchange for work being done for his landlord.  The 
    child support order should reflect the amount required to be paid by the
Federal 
    Child Support Guidelines
based on that income.  I can see nothing 
    in the evidence to suggest he was entitled at that time to any reduction on 
    the basis of hardship.  As circumstances change, both parents are entitled 
    to seek a variation of child support.  The new evidence relevant to the hardship 
    issue contained in the affidavits the appellant seeks to have admitted may 
    be relevant on such applications.

[47]

I would affirm the trial judges order that the appellant pay $350 
    per month to the respondent for child support, commencing on 1 June 2006 and 
    monthly thereafter on the first day of each month.

Conclusion

[48]

In summary, I would deduct one half of the cost of Dr. Englands report 
    from the shared debt to the respondents family, dismiss the fresh evidence 
    motion, set aside the order reapportioning the trust funds, order the appellants 
    share to be held as security for the payment of future child support and otherwise 
    dismiss the appeal.  If counsel cannot agree on an appropriate security order 
    that will minimize costs of its implementation, they may address the terms 
    and conditions in written submissions.

[49]

In view of the divided success, I would make no order as to costs.

The 
    Honourable Madam Justice Huddart

I agree:

The Honourable Chief Justice Finch

I agree:

The Honourable Madam Justice Prowse


