Law Times

PAGE 6 u EDITORIAL OBITER By Glenn Kauth Governments failing at transparency Energy Minister Chris Bentley's actions on the gas-plant fi le sparked a debate over whether he had acted in contempt of parliament by refus- ing to release documents related to the cancellation of energy projects in Oakville and Mississauga, Ont. Around the same time, federal parlia- mentary budget offi cer Kevin Page mused about possibly taking the gov- ernment to court for withholding information about spending cutbacks. Both situations involve important public-interest matters. On the A provincial level, Bentley argued that in the case of the Mississauga plant, litigation and solicitor-client privilege, as well as the commercial sensitiv- ity of the some of the information, prevented him from releasing docu- ments. On the federal front, offi cials have argued they'll release details about the cutbacks later and that, given that people' prudent for them to withhold the information for the time being. Bentley complied with a legislative committee' ments last week aſt er negotiations over the Mississauga plant wrapped up. But opposition MPPs claim the government is still holding some information back and argue it shouldn't have refused to release it in the fi rst place given the public' s jobs are at stake, it's s request for docu- cancellations. In fact, earlier in September, legislature Speaker Dave Le- vac found a prima facie case for contempt on Bentley' s right to know details about the gas-plant s part. the decision wasn't unanimous, I believe it's important to consider the dissent as well. Th e parties involved had been mar- T ried for about 11 years. Th ey had children together and although Carolyn Ward had earned a high income prior to having kids, the parties decided she would leave the workforce and stay home with them. Mur- ray Ward was a high-income earner as well. Th e marriage had been tumultuous fundamental to and necessary for the proper func- tioning of the assembly, to former House of Commons Speaker Peter Mil- liken' against production for reasons similar to those noted by Bentley, parliamentary privilege should prevail. Levac went on to refer to Milliken' s 2010 fi nding that while ministers may argue to parliamentarians to fi nd a compromise through solutions such as allowing legislators to view the s exhortation "Th e right to order production of documents is " he told MPPs. Levac referred documents while holding back sensitive details from public release. Th e government, of course, would have been wise to follow that path in the fi rst place. Both the gas-plant and federal budgetary issues involve matters of vital public interest. But it seems neither the federal the nor provincial government wants parliamentarians or the public to know about them. Both governments, it seems, have a problem with transparency. — Glenn Kauth Wife's use of gift for family home prior to separation not unconscionable he Ontario Court of Appeal may have expanded the sphere of equalization litigation with its re- cent decision in Ward v. Ward. As the Family Law Act. Th e trial judge agreed with her position and ordered an equalization payment payable to her plus a further $90,000 amounting to half of the money she used to pay down the line of credit. On a general reading of the Family Law for about four years before the separation. Th ree months before the parties sepa- rated, Carolyn received a cash giſt from her father of $200,000. According to her evidence, the father didn't want her to share the money with her husband. Her inclina- tion was to save the money for retirement, but Murray wanted her to use the funds to pay down the line of credit registered against the family home. She agreed to that and put $180,000 of the giſt ed funds down on the line of credit. Th ree short months later, Murray told Carolyn he had bought a condo and was leaving. (His evidence was that the decision to separate was mutual.) Carolyn, then, sought an unequal divi- sion of net family property under s. 5(6) of Law Times facts of this case, it appears that the decision largely came down to the short timespan between the fi nancial trans- actions and the separation. A cursory reading of the facts may lead one to believe that Carolyn may have been duped into a fi nancially detrimental decision. Th e majority of the Court of Appeal involving justices Kath- ryn Feldman and Robert Sharpe agreed with the trial judge' Siemiarczuk Marta benefi t from using the funds as she did as her equity in the home also increased. At the same time, it' It's not as though Carolyn derived no Simmons, however, wrote a compelling and careful dissent that in my view cor- rectly applies Ontario' s decision. Justice Janet scheme. Th e crux of the decision revolves around the concept of unconscionabil- ity. Was the fact that Murray profi ted by $90,000 three months before the separa- tion unconscionable? I agree, as many people would, that s legislated property all other things being equal, the situa- tion may not be fair to Carolyn. She gave bled the money away aſt er she gave it over. Was he enriched by the transaction? s not as though Murray gam- Certainly. Is there an element of unfair- ness to that enrichment? Certainly. Should it shock the conscience of the court? My respectful view is that it shouldn't. Th e de- cision may not have been a wise one on Carolyn' ther's warnings not to share the money. But s part, particularly given her fa- it was a risk and one that was hers to take. Section 5(6) of the Family Law Act clearly states: "Th e court may award a spouse an amount that is more or less than Thomson Reuters Canada Ltd. 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Single copies are $4.00 Circulation www.lawtimesnews.com evidence that she applied the funds in part because she wanted to try to save her rocky marriage. Certainly, there was never a guarantee that doing so would achieve her desired result. Th ere was no evidence proff ered at trial that Murray unduly pressured her to do what she did. Th is wasn't an abusive relationship, psycho- logically or physically, or at least there was nothing in the record suggesting this. half the diff erence between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable having regard to" a list of factors. A number of enumerated factors follow. In my view, only two factors listed in s. 5(6) apply: fi rst, the part of a spouse' net family property consisting of giſt s by the other spouse and second, any other circumstance relevant to the acquisition, disposition, preservation, maintenance or improvement of property. Th e driving force, however, is still whether equalization would be unconscionable. Faced with a stringent standard or re- s number of recent situations both provincially and feder- ally indicate that governments in Canada have a problem with transparency. Last week, of course, former attorney general and current COMMENT OctOber 1, 2012 • Law times view issue related to the deference given to trial judges on discretionary fi ndings, Simmons goes to great pains to sur- mount that obstacle by sorting carefully through the evidence actually presented at trial. I think she aptly gets over the hurdle. It will be interesting to see how this decision aff ects future jurisprudence under s. 5(6) and claims related to un- equal division of property. LT Marta Siemiarczuk is a lawyer practis- ing family law litigation and collaborative family law at Nelligan O'Brien Payne LLP in Ottawa. 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