Law Times

Page 6 February 10, 2014 • Law Times www.lawtimesnews.com COMMENT Reject sunshine list exemption for Crowns hould Crown prosecutors be exempt from Alberta's new sunshine list disclosing the salaries of public employees who earn more than $100,000 a year? With the province set to release its fi rst-ever sunshine list on Jan. 31, an unidentifi ed Crown secured a temporary injunction pre- venting the disclosure of Crown prosecutors' salaries. e order by the Alberta Court of Queen's Bench meant the government had to scram- ble to scrub Crowns from the list before releasing it the next day. According to e Canadian Pre ss, lawyer Paul Moreau, who was representing the unidentifi ed prosecutor, argued the salary disclo- sure would create safety risks, including fraud and identity the , given Crowns' dealings with dangerous people who don't like them. In issuing the order, Court of Queen's Bench Justice Doreen Sulyma accepted that the release of specifi c salary information could cause ir- reparable harm. e order is temporary pending the court's decision on a permanent injunction. ere are lots of reasons to criticize sunshine lists. ey raise obvi- ous privacy concerns and, while they function as a tool for fi nancial accountability, they probably create just as much pressure to raise public sector salaries by allowing employees to see what their col- leagues are making. And, of course, there's a strong voyeuristic ele- ment to the lists. But it's hard to see why Crowns should be an exception to ankruptcy issues are complex. ey become even more com- plex when they aff ect the equal- ization process in family law cases. is complexity is apparent in Za- varella v. Zavarella, a very recent decision of the Ontario Court of Appeal. Justice Eileen Gillese wrote the ma- jority reasons and Justice Russell Juri- ansz provided a compelling dissent. is case is a good one with compelling dis- cussions on a number of issues in prop- erty division matters by both the major- ity and the dissent. I would recommend it to anyone who practises family law. While the appeal dealt with several issues, the bankruptcy question is, in my view, the most interesting aspect. e facts of this case are fairly straight- forward. Filomena Zavarella had about $60,000 in consumer debt just prior to her marriage to Rony Zavarella. e par- ties decided she ought to make an assign- ment in bankruptcy, which she did just prior to the date of marriage. Roughly nine months later, several months a er the wedding, she obtained a discharge without having had paid anything on ac- count of her debt. Given that she had fi led for bank ruptcy before the date of marriage, should her pre-existing debt factor into the calculation of her net family property for the purpose of equalization? e trial judge held that, despite the assignment in bankruptcy, the debt existed on the date of marriage and should there- fore factor into the calculation of net family property (which reduces the equalization pay- ment she'll receive). e ma- jority of the Court of Appeal overturned this decision with a dissent on the issue by Juriansz. I struggled with this case as there are compelling policy and statutory reasons for both positions, but ultimately, I tend to agree with the majority on this one. While not explicitly clear in the rea- sons, the question put to the court really seems to be not whether the debt existed on the date of marriage, (because it did, pending Filomena's discharge) but rath- er what value the court should ascribe to it. e argument goes that given the premarital assignment in bankruptcy, the liability was contingent pending a discharge in full or in part and therefore subject to discounting. Gillese followed the ratio- nale of the court's earlier de- cision in Greenglass v. Green- glass when discussing the val- uation of contingent liabilities in the equalization process. She noted that the court, in determining an equalization calculation, must assess the "reasonable likelihood" of debt repayment. is approach contrasts with the dissenting reasons whereby Juriansz held that as of the date of marriage, the debt wasn't a con- tingent liability. He found it was a liqui- dated debt with a fi xed face value that must factor into the equalization calcu- lation and was a fully owing debt pend- ing any discharge. Juriansz quite rightly explained that the legislature created a formulaic structure for the calculation of equalization of net family property of spouses that removes discretion from judges hearing family law cases. I tend to agree with this rationale. However, given that there was solid evidence (no- tably from both the husband and the wife's experts) that full repayment was unlikely, my view is that the court ought to treat this particular debt as a contin- gent liability it would have to discount for the contingency of the probability of collection. While the discharge from bankruptcy would have eliminated the debt in its en- tirety a er the date of marriage, the fact that the assignment was made prior to the parties' marriage, in my view, took this debt into the realm of contingent, rather than liquidated, liabilities war- ranting an assessment by the court of the appropriate discounting. Had Filomena fi led for bankruptcy a er the date of marriage, I think the debt would have been fairly refl ected (as per the confi nes of the Family Law Act equalization provisions) at its full-face amount on her net family property state- ment because no contingency would have actually existed on the date of mar- riage. But even on such facts, I can see arguments to the opposite eff ect. LT Marta Siemiarczuk is a lawyer practis- ing family law litigation and collaborative family law at Nelligan O'Brien Payne LLP in Ottawa. She can be reached at marta. siemiarczuk@nelligan.ca. ©2014 Thomson Reuters Canada Ltd. All rights reserved. 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Salary ranges for Crown prosecutors are already available, so people who have a ven- detta against them can already get a good idea of what they make. At the same time, given that there are lots of government employees in legal roles that might put them at odds with members of the public, an exception for Crowns would be quite arbitrary. And with sunshine lists in place else- where for many years, the concern about Crowns' safety seems a bit of an exaggeration. So whatever people think about sunshine lists, there's no reason for the court to exempt Crown prosecutors. e unidentifi ed Alberta Crown may not like the disclosure, but that's too bad. Let's hope the court rejects the Crown's arguments when it considers whether to make the injunction permanent. — Glenn Kauth Family Law Marta Siemiarczuk S B

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