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January 2016
Gracing our cover this month is the winning entry from our first monthly photo contest. It was taken in St. Paul de Vence, France, by Melanie Bueckert, Legal Research Counsel for the Manitoba Court of Appeal. Melanie will receive a $50 giftcard for Starbucks. Thanks to Melanie and all who submitted entries — we welcome everyone to submit photos by February 15 for next month’s cover photo contest.
INSIDE THIS ISSUE: Featured Cases: P2
Contracts; Fire Damage; Extra Work; Quantum meruit ~ With Counsel Comments
P7
Family Law; Child Support; Spousal Support; Arrears ~ With Counsel Comments
P13 Procedure; Suitability of Summary Trial; Evidence P18
Class Actions; Unjust Enrichment; Unlawful Interference with Economic Relations; Patents
P22
Family Law; Child Support; Biological Children
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Hugh’s Contracting Ltd. v. Stevens, 2015 BCCA 491 Areas of Law: Contracts; Fire Damage; Extra Work; Quantum meruit ~Where parties have agreed for the provision of goods and services but failed to provide for terms of remuneration, they may be presumed to have intended a reasonable price and a contractual term to that effect may be implied~ CLICK HERE TO ACCESS THE JUDGMENT
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n September 2008, the home of the Respondent, Laurie Stevens, was damaged by fire. In consultation with her insurer, she sought and obtained bids for the cost of repairing the damage. She ultimately entered into a contract with the Appellant, Hugh’s Contracting Ltd. No changes were to be made to the contract without a written change order or other written agreement signed or initialled by both parties. When the contract was entered into the principal of the Appellant, Mr. Astrope, ordered blank change order forms for the purpose of evidencing agreed changes to the contract. All changes but one, however, were undertaken following discussion but without written change orders or any specific agreement as to their cost. These changes involved significant improvements to the home, well beyond the fire damage repair. The project was still not complete by March 2010, at which time a dispute had arisen. The Appellant refused to compromise on billing amounts, refused to continue work until the Respondent made payment, and refused to return building materials to the Respondent, which the Respondent believed she had paid for as part of a $110,000 payment
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Hugh’s Contracting Ltd. v. Stevens, (cont.)
the insured damage to the house, had the Appellant completed the contract. She retained an expert to estimate the portion of the total expenses that were incurred to finish the insured part of the work the Appellant had contracted to do. The expert estimated the total cost of the repair at $126,379.03 more than what the Appellant had agreed to charge. The Respondent counterclaimed for this amount. The judge deducted the Respondent’s insurer’s payment from this amount, leaving an adjusted claim for $47,800. However, the judge did not accept the expert’s estimate and held that the Respondent was entitled to $25,000 with court interest. The judge admitted that this was a “somewhat arbitrary” figure. The judgments resulted in a net debt of $8.628.49 owed by the Appellant to the Respondent.
toward the additional work. At trial, the judge found that the Appellant had repudiated the contract and that the Respondent was justified in terminating it. The judge assessed the Appellant’s entitlement to be paid for extra work in accordance with the principle of contractual quantum meruit, allowing claims for expenses and extra materials in the net amount of $126,371.51. Considering the $110,000 already paid, the judge held that the Respondent owed the Appellant $16,371.51. The judge found that the contract’s interest provision with respect to payments for the insured work did not apply, as there had been no agreement with respect to payments for the cost of extras. The Respondent counterclaimed, alleging that she had been obliged to spend more than she otherwise would have paid to repair
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Hugh’s Contracting Ltd. v. Stevens, (cont.)
APPELLATE DECISION
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he appeal was dismissed and the cross-appeal allowed. The Appellant argued that the trial judge erred in failing to allow two components of its claim for extras, being a $12,000 per month supervision fee and interest on the unpaid fee in the amount of 24% per month. The Appellant submitted that if it was entitled to the supervision fee, it was not in breach of contract by insisting on the fee’s payment. It maintained that the Respondent should be found in breach of the contract and, as a result, it should be found to have lost 10% profit on approximately $120,000 of insured work to be completed. The Appellant also took the position that the quantum meruit rule should not apply. The Respondent cross-appealed, arguing that the trial judge made a number of factual errors in calculating damages. She alleged that her claim for additional expenses was erroneously reduced by deducting the insurer’s payment. She also claimed that she should have been credited with a payment she made for flooring on the Appellant’s account, and that the cost of a fireplace for the house was erroneously considered to be an extra expense instead of part of the insured repairs. The Court of Appeal held that the trial judge relied on clear jurisprudence in concluding that where parties have agreed for the provision of goods and services but failed to provide for terms of remuneration, they may be presumed to have intended a reasonable price and a contractual term to that effect may be implied. Only had the contract provided for the payment of such services would the trial judge’s application of these principles be in error, and on the facts this was not the case. The judge made no error in principle, nor did he misapprehend the facts in this regard. On the cross-appeal, the Court held that the fireplace replacement was not extra work and that the insurance payment should not have been deducted from the amount owed to the Respondent. On this second finding the matter was remitted to trial for quantum assessment.
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COUNSEL COMMENTS Hugh’s Contracting Ltd. v. Stevens, 2015 BCCA 491
Counsel Comments provided by Andrew Bird, Counsel for the Respondent
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will content him; and such a ontractual contract is good enough.” quantum meruit has been around Cunning businesses might since 1609, when it was take advantage of this rule invented as a remedy for by waiting until after the innkeepers and tailors who customer has received the neglected to inform their goods to gouge the customer customers of their prices, with aggressive prices which Andrew Bird but whose customers clearly the customer by then would intended to create contractual not be able to escape. Accordingly, relations with them. At the time, no by 1621, the Court of King’s Bench action arose in debt because no definite amount was discussed; and nor in special held that “such promise to pay tantum quantum meruit is certain enough, and assumpsit because there was no express he shall make the demand what he undertaking. To grant relief, courts deserves, and, if he demand too much, implied a contractual term to pay the the jury shall abridge it according to their charges: “It is an implied promise of discretion.” every part, that is, of the part of the innkeeper that he will preserve the goods This remains essentially unchanged four of his guest, and of the part of the guest centuries later. Contractors ought to that he will pay all duties and charges know by now that if they fail to specify which he caused in his house.” By 1610 their prices in advance of the work, it was declared to be “the usual course the implied term is a reasonable price, to appoint a tailor to make a garment which may or may not be the same as or a smith to shoe his horse and that he January 2016
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COUNSEL COMMENTS Hugh’s Contracting Ltd. v. Stevens, (cont.)
the contractor’s usual price, or even the contractor’s price in previous dealings with the same client. Those things are merely evidence of what is reasonable. The contractor here failed to discuss prices for extras and then presented a whopping bill, about half of which was accepted as reasonable at trial. The contractor appealed, not on the basis that the trial judge erred in dismissing the charges as unreasonable, but on the basis that, though unreasonable, they were owing in contract, and “reasonableness has nothing to do with it.” As there was no express agreement as to price, the contractor argued there was an implied term to pay general supervision of $12,000 per month for the extras, because that sum was a component of the fixed price contract, which governed the original scope of work. The Court of Appeal upheld the longstanding rule that absent an express price, the implied term is to pay a reasonable price, and prior contractual dealings are merely evidence of what is reasonable. If a contractor wishes to charge an unreasonable amount, he must obtain the express agreement of his client before performing the work. Here, the supervision fees were unreasonable because the contractor achieved little progress – there was virtually nothing to supervise. The Court of Appeal found that whether there is an express price is a question of mixed fact and law, citing Sattva Capital Corp v. Creston Moly Corp 2014 SCC 53. Historically contractual interpretation has been a question of law, but Sattva reversed that, holding that it is usually a question of mixed fact and law, although there may be extricable questions of law. Determining whether the parties agreed on price is not one of them.”
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MacCarthy v. MacCarthy, 2015 BCCA 496 Areas of Law: Family Law; Child Support; Spousal Support; Arrears ~In determining whether child support arrears should be cancelled, the court must consider whether there has been a material change in circumstances and whether it would be grossly unfair not to cancel the arrears. This is a distinct test from the one to apply in considering whether to award retroactive child support~ CLICK HERE TO ACCESS THE JUDGMENT
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he Appellant, Robert MacCarthy, and the Respondent, Maria MacCarthy, were married in 1983 and separated in 2004. The Appellant worked as a logger and made around $100,000 per year. The Respondent helped him with his books and was the primary caregiver to their three children. She had a grade 10 education, and had worked as a
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hairdresser and a waitress. The couple divorced in 2006, at which time the children were aged 19, 16, and 13. The Respondent had recently become certified as a real estate agent, after three unsuccessful attempts to pass the real estate examinations. At trial the judge considered the Respondent’s career prospects uncertain and imputed $10,000 per year as her income while
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MacCarthy v. MacCarthy, (cont.) imputing an income of $110,000 per year to the Appellant. The trial judge ordered the Appellant to pay child support in accordance with the Federal Child Support Guidelines. The order provided that the parties would exchange financial information yearly and “automatically adjust the child support.” The spousal support order was set at $2000 per month, with the provision that the Appellant could apply for a review at any time after one year (the “review order”). In October 2013 the Appellant filed a notice of application seeking a review of spousal support by way of a trial de novo. The Respondent filed a notice of application shortly thereafter seeking a recalculation of spousal support from July 1, 2007, judgment for arrears of spousal support, recalculation of child support from July 1, 2007, payment of arrears of child support, and a s. 7 order for special and extraordinary expenses for the children. The matter was heard in chambers. The judge found the Appellant’s income for calculating child and spousal support to be $145,000. He found the Respondent’s income to be $30,000. He made an indefinite order for spousal support at $3,500 per month. The application for unpaid child support and unpaid s. 7 expenses was dismissed.
APPELLATE DECISION
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he appeal was dismissed and the cross-appeal allowed. The Appellant took the position that the chambers judge erred in his interpretation of the trial judge’s review order. The Court of Appeal did not agree, noting that the chambers judge interpreted the review order to apply to the quantum of spousal support, not the Respondent’s entitlement to it. This not in error. The Appellant also argued that the chambers judge failed to impute higher income to the Respondent, and confused the burden on the Respondent to prove she was making reasonable efforts to become self-sufficient with an onus to show changed circumstances. The Court did not see any such error in the chambers judge’s reasoning. The Court also cited jurisprudence to the effect that trial judges must
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MacCarthy v. MacCarthy, (cont.)
be given considerable deference on reviewing spousal and child support orders. The party seeking to have income imputed to the other spouse has the burden of establishing an evidentiary basis. The chambers judge committed no palpable or overriding error in his analysis or conclusion in imputing income to the Respondent. On cross-appeal, the Respondent argued that the chambers judge mistakenly applied the test for refusing a retroactive award for child support to cancel the Appellant’s arrears. The Appellant argued that he was not in arrears. The Court noted that the Appellant had unilaterally decreased his child support payments in 2007 despite an increase in income, and consistently underpaid child support based on his self-assessment of his obligations. The Court of Appeal was
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satisfied that the Appellant was in arrears. In considering whether to cancel arrears the court must consider whether there is a material change in circumstances and whether it would be grossly unfair not to cancel or reduce the arrears. In determining the appropriateness of a retroactive child support award, the court must consider separate factors that are not meant to apply in situations where arrears have accumulated. The chambers judge did not find, as required, that there was a material change in circumstances and that the Appellant’s financial situation rendered him unable to pay the arrears at present or in the future. He erred in finding that the Respondent’s delay in seeking payment of the arrears constituted a material change in circumstances.
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COUNSEL COMMENTS MacCarthy v. MacCarthy, 2015 BCCA 496
Counsel Comments provided by Douglas King, Counsel for the Respondent
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applications.
his judgment clarifies several important principles that arise in support
Firstly, the judgment clarifies that there is no burden upon a recipient of spousal support to prove on a balance of probabilities that she has satisfied a “duty” to make reasonable efforts to be-come self-sufficient. While spouses seeking support must also make reasonable efforts to support themselves, there is no burden of proof on the party seeking support to prove that they could not become self-sufficient. Rather, the party seeking to have income imputed must establish and evidentiary basis for it. This is important in practice, because of the practical difficulties in proving a negative. Payors often make bald statements that spousal recipients are under-employed or should be making
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more money in whatever work they pursue. It also clarifies that when an order does not specify whether it was made pursuant to the Divorce Act or the Family Relations Act or the Family Law Act, and there are no objective indicia to indicate the basis of the order, the doctrine of paramountcy applies such that the order will be founded in the Divorce Act. With the many differences introduced in the Family Law Act, this doctrine of paramountcy has become more important. Keeping this in mind, counsel may choose to argue support under the statute with more preferable provisions so as to improve their client’s position on review. The most important aspect of the decision is the Court’s treatment of the “automatic adjustment” clause in the child support order. The Court held that the chambers judge properly characterized the mother’s claim for the amounts the father should
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COUNSEL COMMENTS MacCarthy v. MacCarthy, (cont.)
have paid if he had automatically adjusted his payments in accordance with his income as a claim for arrears, rather than a claim for retroactive child support. The effect of this distinction is of crucial importance, because of the different test that applies to arrears. “Automatic adjustment” clauses are routinely used and are very efficient. The case law disclosed confusion as to how a failure to automatically adjust should be treated and which test should apply to amounts that should have been but were not paid. The Court properly placed the burden on the payor to pay what should be paid, rather than on the parent who is shouldering the greater burden of the care of the children, and who is in most cases the least able to bring a court application to enforce the order. As noted by the Court, an automatic adjustment clause should not require enforcement, and allowing a payor to avoid payment if he delayed long enough would reward the breach of an order. This judgment, with its clear direction to child support payors to comply with orders and ensure that increases in income are shared with their children, will have a beneficial impact on children in the Province, and custodial parents who are, primarily, women. The custodial parent who is burdened with the care of the children will not also be tasked with policing the payor’s financial affairs. When acting for a support recipient, an automatic adjustment clause will strengthen the recipient’s right to seek arrears.”
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Morin v. 0865580 B.C. Ltd., 2015 BCCA 502 Areas of Law: Procedure; Suitability of Summary Trial; Evidence ~A summary trial is not appropriate where there is a serious conflict in the evidence regarding a central issue in the case~ CLICK HERE TO ACCESS THE JUDGMENT
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he Appellants, Andrea Morin, James Sclater, Eugenio Pugliese and 0724237 B.C. Ltd., were parties to contracts for the purchase of subdivision lots on two properties in Chilliwack. Two companies owned the properties (the “former owners”), and the Appellant Ms. Morin owned the companies with her then common-law partner, Mr. Gaukel. The other Appellants had signed lot purchase agreements (“LPAs”) with the former owners. The former owners granted mortgages as security for the investors’ down payments. These mortgages ranked behind mortgages already held by Reliant Capital Ltd. and a Mr. Steeves, who was an investor not party to the litigation. The Reliant mortgages were in default in 2008 and Reliant commenced foreclosure proceedings. Mr. Gaukel persuaded a friend, the Respondent Mr. Chester, to buy out Reliant’s mortgages. Mr. Chester did this through his numbered company, the Respondent 0865580 BC Ltd. (“086”). Mr. Chester also purchased Mr. Steeves’ mortgage. A subsequent
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Morin v. 0865580 B.C. Ltd., (cont.) dispute between the Appellants and Mr. Chester resulted in this litigation. The Appellants pleaded that Mr. Chester had agreed to protect their investments and to proceed with the subdivision and allocation of their lots to them, in exchange for their agreement not to seek other financing and to accept the Reliant foreclosure. The Appellants alleged that the Respondents breached these agreements by filing orders absolute debarring the Appellants’ mortgages, and thereafter failing to honour the LPAs. They also submitted that Ms. Morin had suffered loss in the value of her shares in the former owners, loss of interest in the properties, and loss of profits, all as a result of a breach of trust by the Respondents
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and a breach of fiduciary duty by Mr. Chester. Finally, the Appellants alleged unjust enrichment against the Respondents. The Respondents denied any agreements with the Appellants or that the Appellants had any interest in the property, and denied any fiduciary or trust relationship. The Respondents filed an application for summary trial following months of discoveries and cross-examinations. The summary trial judge considered the issues raised were discrete and well-suited for disposition by summary trial. He also found that the actual conflicts between the parties’ evidence were relatively minor. He held that the to the extent there was conflicting evidence, the conflicts could be fairly resolved by weighing that evidence against the affidavit
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Morin v. 0865580 B.C. Ltd., (cont.)
Actually... what you don’t know can hurt you. evidence given by non-parties and against the documentary evidence, and by “testing the affiants’ contentions against common sense.” On the substantive questions raised, he found the LPAs unenforceable for uncertainty, holding that the Appellants other than Ms. Morin had no interest in the land. The trial judge further held that the orders absolute obtained by Mr. Chester barred the action on the basis of res judicata. Although Ms. Morin stated in her affidavit that she and Mr. Gaukel had been “forced” to transfer 51% of their shares in the former owners to Mr. Chester, on cross-examination she admitted that she had based her evidence entirely on what she had been told by Mr. Gaukel and his lawyer. The trial judge found that no binding agreement had been reached with Ms. Morin, and dismissed the Appellants’ claims in their entirety. APPELLATE DECISION
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he appeal was allowed. The majority acknowledged the discretion owed to the trial judge, but held that there were clear conflicts in the evidence of a degree that warranted the trial judge seeing the Appellants and Mr. Chester in person. The trial judge did not explain how the evidence of non-parties and recourse to common sense led to the resolution of evidentiary conflicts in the
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Morin v. 0865580 B.C. Ltd., (cont.)
Respondents’ favour. The conflicts were substantive, not minor. There were also some “red flags” in the case, including difficulties in document disclosure and suggestions that some of the Respondents had tried to persuade witnesses not to give evidence. The trial judge erred in failing to give sufficient weight to the existence of a serious conflict in the evidence pertaining to the central issue in the case. The majority declined to decide the other issues raised on appeal, including the enforceability of the LPAs and the doctrine of res judicata, considering them matters for trial. In dissenting reasons, Madam Justice Fenlon agreed in large part with the majority but ultimately would have found that given the great deal of evidence including contemporaneous correspondence between the parties before the judge, and his thorough review of it, the trial judge’s conclusions regarding the decision to proceed by summary trial, and the disposition of the trial itself, were reasonable. She noted that although the hearing of the summary trial occupied one day, this did not reflect the time the judge spent reviewing and considering the evidence. The trial judge’s decision to proceed as he did was not clearly wrong, and so the appeal should be dismissed.
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Low v. Pfizer Canada Inc., 2015 BCCA 506 Areas of Law: Class Actions; Unjust Enrichment; Unlawful Interference with Economic Relations; Patents ~Where legislation does not confer a direct benefit or protection on a consumer, the absence of an enforcement mechanism in the legislation should not be taken as implying a common law private cause of action by a consumer~ CLICK HERE TO ACCESS THE JUDGMENT
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he Respondent, Britton Low, brought an action based on unlawful misuse of the patent system. He alleged that the Appellants, Pfizer Canada Inc., Pfizer Inc., Pfizer Ireland Pharmaceuticals, Pfizer Research and Development Company N.V./S.A., were overcharging consumers of Viagra while the Appellants held a patent that was determined to be invalid for insufficient disclosure, contrary to the Canadian Patent Act. In 2006 another pharmaceutical company attempted to obtain certification in Canada by filing a notice of compliance. It challenged the Appellants’ patent on the basis that it was invalid for insufficiency of disclosure. In 2012 the Supreme Court of Canada (“SCC”) found the Appellants’ patent invalid. The Respondent argued
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Low v. Pfizer Canada Inc., (cont.)
that the Appellants obtained an unlawful monopoly over the drug through their invalid patent, and alleged that the difference between the revenue the Appellants collected by charging the price they did, and the revenue they would have collected in the presence of generic competition, represented “ill-gotten gains.” He sought recovery for the tort of unlawful interference with economic relations and for unjust enrichment, and alleged that the time period for which he and other members of his proposed class should be compensated was January 1, 2006 to November 30, 2012, being roughly the time between the generic manufacturer’s notice of compliance being filed, and the determination of the SCC. In chambers, the judge noted that in determining whether a claim discloses a cause of action under the Class Proceedings Act the test will be satisfied unless, assuming all facts pleaded are true, it is “plain and obvious that the plaintiff’s claim will not succeed.” The
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Appellants argued that the statutes and regulations govern completely the marketing of patented drugs, including all rights and remedies, and so in the absence of a cause of action for individual purchases, the Respondent’s claim could not succeed. The chambers judge relied on the SCC decision in R. v. Saskatchewan Wheat Pool for the principle that a breach of statute can be evidence of a cause in negligence. He distinguished this case from others such as Koubi v. Mazda Canada Inc., in which it was found that no cause of action could exist parallel to the governing statute, because in Koubi the statute provided the plaintiff with a specific statutory remedy. The Patent Act provides no right of action for consumers arising directly from its breach, and so the chambers judge held that it was not plain and obvious that the statute barred the Respondent’s action. He found that the claim on its merits was not bound to fail, and certified the action.
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Low v. Pfizer Canada Inc., (cont.)
APPELLATE DECISION
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he appeal was allowed. The Respondent argued that because his claim was based in common law, the “complete code” argument did not apply. He sought to distinguish his claim from those other drug manufacturers might have against the Appellants, conceding that as between drug producers the patent regulatory regime was a complete code. The Court of Appeal did not accept the Respondent’s submission that a right to a civil action could be inferred if the statutory remedy was inadequate. The patent regulatory regime does not confer a direct benefit or protection on a consumer. Therefore, the absence of an enforcement mechanism in the legislation should not be taken as implying a common law private cause of action by a consumer. The Court considered Saskatchewan Wheat Pool, which provides that there is no common law breach of statute. Such breaches should generally be subsumed under the law of negligence, but in this case there was no independent claim available in negligence. While the Respondent alleged unlawful interference with economic relations and unjust enrichment, the foundation of his claim was the Appellants’ failure to make disclosure in accordance with the provisions of the Patent Act. The Appellants’ breach of the statute was not itself a component of a civil action. The claim for unlawful interference with economic relations had no chance of success, as it was parasitic on the generic drug manufacturer’s claim, and the generic drug manufacturer had no cause of action on this ground against
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Low v. Pfizer Canada Inc., (cont.)
the Appellants because of the patent regulatory regime. The claim in unjust enrichment similarly had no chance of success, as there was a juristic reason for the Appellants’ apparent enrichment at the Respondent’s expense. The contracts between the Appellants and direct purchasers, such as pharmacies or distributors, were not illegal and could not be challenged simply because the prices charged could or should have been lower. One juristic reason is all that is required to defeat an unjust enrichment claim.
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Sullivan v. Struck, 2015 BCCA 521 Areas of Law: Family Law; Child Support; Biological Children ~The actual fact of forming a new family is an important factor in determining that a spouse stood in the place of a parent, and carries more weight than considerations of the stepparent’s financial contributions to the child, in determining whether the child is a child of the marriage~ CLICK HERE TO ACCESS THE JUDGMENT
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marriage. At trial the Appellant agreed that he stood in the place of a parent to Hannah, but the Respondent claimed that she never stood in the place of a parent to Sydney. She said that the Appellant and Sydney’s biological mother made all parental decisions about her, and that she had no control over disciplining the child. The trial judge applied the factors set out by the Supreme Court of Canada in Chartier v. Chartier, particularly considering the evidence that the Respondent had no control over Sydney’s discipline, did not contribute financially to Sydney, and did not make parenting decisions regarding the child, to conclude that the Respondent did not stand in the place of a parent. He also considered significant the fact that at the time of the trial Sydney appeared to be living with her biological mother and that when the Respondent wished to see Sydney the visit came out of her biological mother’s time with her.
he Appellant, Bernd Struck, and the Respondent, Korin Struck, began living together in 2003 and married in 2007. At the time they moved in together each had a young daughter. The Respondent’s daughter, Hannah, was 3.5 years old and the Appellant’s daughter, Sydney, was 1.5 years old. The Appellant had sole custody of his daughter, and her biological mother had access to her on holidays and alternate weekends. The Respondent had de facto custody of her daughter. The girls grew up as stepsisters and shared a bedroom. In August 2011, the Respondent moved out of the house and filed a notice of family claim under the Divorce Act and the Family Relations Act. The parties subsequently signed a separation agreement and settled all issues apart from child support for the two daughters. The Appellant sought child support for Sydney and the Respondent filed a response pleading that Sydney was not a child of the
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Sullivan v. Struck, (cont.) APPELLATE DECISION
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he appeal was allowed in part. The Appellant argued that the trial judge incorrectly applied the factors in Chartier and that the judge relied on irrelevant post-separation facts, ignored material evidence about how the family functioned at the relevant time, and failed to grasp that forming a new family is a key factor in the analysis. The Court of Appeal agreed that the trial judge erred in applying the Chartier test. It was evident that the Respondent
stood in the place of a parent to the Appellant’s daughter for the purposes of the Divorce Act. Chartier provides that the actual fact of forming a new family is key in drawing the inference that the stepparent treats the child as a child of the marriage. The Court also found that the trial judge significantly misapprehended certain aspects of the Respondent’s evidence. A new family was clearly formed in this case, and in failing to recognize the formation of this new family the
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Sullivan v. Struck, (cont.)
trial judge gave insufficient weight to the Respondent’s evidence that she played the role of primary caregiver to both girls during the marriage. She played this role from the time Sydney was 1.5 until she was around 10. The only reasonable inference is that she performed all the usual duties of a parent during this time. Significantly, the Respondent attended parent-teacher interviews concerning Sydney, thus representing to the world that she was acting as a parent concerned about the child’s education and development. The trial judge relied on the fact that the Appellant required Sydney’s biological mother to go through him when dealing with parenting issues, but did not indicate why this was relevant to the Respondent’s role as a parent. He also did not explain why he placed weight on Sydney having two biological parents involved in her life as a factor displacing a parental role for the Respondent. The post-separation living arrangements were not relevant to determining whether the Respondent stood in the place of a parent when the parties were living together as a family unit. Having found that the Respondent stood in the place of a parent for Sydney, it was not necessary for the Court to address the Appellant’s argument that the trial judge erred in finding the Respondent did not owe child support under the Family Relations Act, or the Respondent’s argument that the claim for child support under that legislation was out of time. The Appellant also appealed the trial judge’s orders relating to his Guideline income and support obligations in respect of Hannah, but the appeal was dismissed on these grounds.
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