Family Compensation Act: Damages For Wrongful Death

Family Compensation Act: Damages For Wrongful Death

Valencia-Paiaciao v KCP Heavy Industries Ltd. 2022 BCSC 1171 provided a good review of the law in British Columbia relating to claims under the Family Compensation Act for damages for wrongful death.

In British Columbia the Family Compensation Act creates a statutory basis for the deceased’s surviving dependents, including a spouse, parents, and children, to recover damages against a person who experienced wrongful death.

At common law there is no action for wrongful death: Panghali v. Panghali, 2014 BCSC 647 at para. 27 [Panghali]

Section 2 of the Act states:

2. If the death of a person is caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not resulted, have entitled the party injured to maintain an action and recover damages for it, any person, partnership or corporation which would have been liable if death had not resulted is liable in an action for damages, despite the death of the person injured, and although the death has been caused under circumstances that amount in law to an indictable offence.

The Act provides that the action may be commenced by the deceased’s personal representative for the benefit of the deceased’s spouse, parent or child (s. 3(1)). The court may award “damages proportioned to the injury resulting from the death to the parties respectively for whose benefit the action has been brought” (s. 3(2)).

Damages may also be awarded for “any medical or hospital expenses which would have been recoverable as damages by the person injured if death had not ensued” and for “reasonable expenses of the funeral and the disposal of the remains of the deceased person” (s. 3(9)).

The purpose of the Act is to place claimants in the economic position they would have occupied but for the wrongful death: Keizer v. Hanna and Buch [1978] 2 S.C.R. 342 at p. 351 [Keizer].

The appellant is entitled to an award of such amount as will assure her the comforts and station in life which she would have enjoyed but for the untimely death of her husband.
[28] Claimants may recover pecuniary benefits they would otherwise have derived from their relationship with deceased but not non-pecuniary losses: Ruiz v. Bouaziz, 2001 BCCA 207 at para. 46. Recoverable losses may include the actual financial benefit of which the claimant has been deprived, and the financial benefit which might reasonably be expected to accrue in the future if death had not occurred: Panghali at para. 29.

 

Loss of Financial Support

Legal Principles

[30] An award for loss of financial support (or loss of dependency) is meant to reflect the portion of the deceased’s earnings that would have continued to provide financial support to the claimant: Panghali, at para. 40. In general, the amount is calculated by assessing what income the deceased would have earned but for the death and then reducing that amount to account for the deceased’s personal consumption: Panghali, para. 40. Values for future losses are to be discounted to reflect present values.

Since, in life, the deceased would have drawn on their after-tax income to support others, the assessment under this head of damages is net of income tax and must therefore be grossed up to account for effects of income tax: Mazloom v. Central Mountain Air Services Ltd., 1992 CanLII 1611 (B.C.C.A.).

Where the claimant is a child, additional considerations apply. First, the award is limited to the period in which the child would have remained dependent on the parent for financial support: Panghali, at para. 43. Second, the analysis must consider two categories of family expenses: those devoted exclusively to the children, and those which “constituted the lifestyle of the children as part of the family”: Ratansi v. Abery, 1994 CanLII 1529 (B.C.S.C.).

The latter are indivisible family expenses from which the child benefits.

While financial support most commonly flows down from parent to child, or horizontally between spouses, it can also flow upwards from child to parent. Where evidence exists to support such a claim, parents may advance claims for lost financial support from their child: Ayeras v. Front Runner Freight Ltd., 1998 CanLII 5455 at para. 18 (B.C.A.C.) [Ayeras].

In Keizer, Justice Dickson discussed the methodology for calculating loss of financial support. He said:

“An assessment must be neither punitive nor influenced by sentimentality. It is largely an exercise of business judgment. The question is whether a stated amount of capital will provide, during the period in question, having regard to contingencies tending to increase or decrease the award, a monthly sum at least equal to that which might reasonably have been expected during the continued life of the deceased.”

In Johnson v. Carter, 2007 BCSC 622, Justice Slade outlined the following “conventional approach” to determining an award for loss of future earning under the Act, based on Coger Estate v. Central Mountain Air Services Ltd., 1992 CanLII 1611 (B.C.C.A.) [Coger Estate]

1. A calculation is made of the income which has been lost up to the date of trial.
2. A calculation is made of the loss of future earnings.
3. A reduction is then made for personal consumption of the deceased.
4. Contingencies are reviewed to determine if a further reduction is required.

Coger Estate adds a fifth step, being to apply the tax gross up to the award. Counsel seek the opportunity to make further submissions on the appropriate tax gross-up after judgment. I give leave to do so.
Assessing loss of earning capacity is always an “inquiry into the unknowable”: Morrison v. Moore, 2009 BCSC 1656 at para. 30 [Morrison]. Courts are required to consider future hypothetical events, assessed on a standard of real and substantial possibilities and weighted “according to the percentage chance they would have happened or will happen.”: Rosvold v. Dunlop, 2001 BCCA 1 at para. 9

The task is even more challenging when the deceased is young and there is little in the way of a work history from which inferences might be drawn as to future events: Cox v. Fleming, 1995 CanLII 3127 (B.C.C.A.).

Loss of Guidance

Legal Principles

A claim for loss of guidance seeks to compensate a claimant, usually a child, for the loss of the pecuniary advantage they would have derived from the continuing guidance of the deceased had the deceased lived. It has been variously referred to as loss of “care, guidance and affection” (McVea v. B.(T.), 2002 BCSC 1407 [McVea]), “care, guidance, training and affection” (Plant v. Chadwick, 1986 CanLII 951 (B.C.C.A.)) “love and guidance” (Collins v. Savovich, 1996 CanLII 1080 (B.C.S.C.)); and “care, guidance, training and encouragement” (Coe Estate v. Tennant, 1988 CanLII 3165 (B.C.S.C.) [Coe Estate]). As counsel point out, “guidance” is the common element in all these. As with all damages under the Act, this must be assessed as, and limited to, a pecuniary loss: Roberts v. Morgan, 2019 BCSC 2313 at para. 34.

Loss of Household Services
Legal Principles

An award for loss of household services compensates claimants for the lost pecuniary benefit of household services provided to them in life by the deceased. The value of the award may be determined by the cost of hiring replacement services: McTavish v. MacGillivray et al., 2000 BCCA 164. There are two case-specific factual considerations: the level of services that the deceased would have provided and the chance that the claimant may replace those lost services with a new spouse: McVea at para. 63.

 

DAMAGES:

By way of summary, I award damages as follows:

Loss of financial support
Ms. Valencia-Palaciao $372,000
Juan Diego Gomez $78,000
Alicia Gomez $78,000
Noridia Obando Arena and Arbey Gomez Soto (Mr. Gomez’s parents) $60,000

Loss of guidance

Juan Diego Gomez $45,000
Alicia Gomez $45,000

Loss of inheritance

Ms. Valencia-Palaciao $20,000
Juan Diego Gomez $20,000
Alicia Gomez $20,000

Loss of household services

Ms. Valencia-Palaciao $50,000
Juan Diego Gomez $25,000
Alicia Gomez $25,000

Special Damages $36,643.45

Wills Variation: Daughter Awarded 30% Net Estate

Termination of a Marriage-Like Relationship

Pascuzzi v Pascuzzi 2022 BCSC 907 is a wills variation action ( S 60 WESA) where a 32-year-old daughter of the deceased, who was disinherited pursuant to a will done when she was nine years of age, was awarded 30% of her father’s $1.8 million estate, with the surviving widow receiving the balance of the residue.

The case was a good review of the legal principles relating to an adult independent child versus a second, long time spouse.

LEGAL PRINCIPLES

[108] Section 60 of the Act reads as follows:

Maintenance from estate
60 Despite any law or enactment to the contrary, if a will-maker dies leaving a will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the will-maker’s spouse or children, the court may, in a proceeding by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the will-maker’s estate for the spouse or children.

[109] The legal principles applicable to the matter at bar have been well settled, pursuant to the jurisprudence arising from s. 2 of the Wills Variation Act, R.S.B.C. 1996, c. 490, the former legislation that governed this area.

[110] The Wills Variation Act was repealed in March 2014 and replaced by the Act. The relevant provisions, however, are virtually the same, and the courts continue to be guided by that jurisprudence. As shown above, the legislation provides that if in the court’s opinion a will fails to make adequate provision for the proper maintenance and support of the testator’s—that is, the will maker’s—spouse or children, the court is empowered, in its discretion, to vary the will to make provisions that it considers adequate, just, and equitable in the circumstances.

[111] While the principles are well settled, applying the principles in light of modern values and expectations remains a challenge. As captured by McLachlin J. (as she then was) in Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807, which continues to be the leading authority for wills variation action, the application of the variation provisions involves “the search for contemporary justice”: Tataryn at 814–815.

[112] There are two fundamental interests protected by the relevant legislation: (1) adequate, just, and equitable provision for the testator’s spouse and children, and (2) the testator’s testamentary autonomy—that is, the testator’s decision to dispose of their interest as they see fit. While both interests are protected, testamentary autonomy must yield to what is adequate, just, and equitable: Tataryn at 815–816.

[113] In a wills variation action, the court must determine whether the will made adequate provision for the proper maintenance and support of the applicant spouse and/or children. If no such provision was made, the court must consider what provision would be adequate, just, and equitable in the circumstances: Tataryn at 814.

[114] What is adequate, just, and equitable in the circumstances is guided by contemporary legal and moral obligations. For this determination, the court may ask whether the testator, in their lifetime, legally owed any obligation to the applicant spouse and/or children. The court may alternatively ask whether the testator met their moral obligations to the applicant in the context of “society’s reasonable expectations of what a judicious person would do in the circumstances by reference to contemporary community standards”: Tataryn at 820–821. In other words, the court must objectively assess the adequacy of the testator’s provision in the context of contemporary community standards.

[115] Where the application for variation is brought by a self-sufficient adult child of the testator, their moral claim may be more tenuous than that of a spouse or dependent child. However, the weight of the jurisprudence makes it clear that where the size of the estate permits, some provision for such children should be made, unless there are circumstances that would negate such an obligation: Tataryn at 822–823.

[116] As summarized by Ballance J. in Dunsdon v. Dunsdon, 2012 BCSC 1274, para. 134, the courts have accepted the following circumstances as relevant to the existence and strength of a testator’s moral duty to self-sufficient adult children:

a) relationship between the testator and claimant, including abandonment, neglect, and estrangement by one or the other;
b) size of the estate;
c) contributions by the claimant;
d) reasonably held expectations of the claimant;
e) standard of living of the testator and claimant;
f) gifts and benefits made by the testator outside the will;
g) testator’s reasons for disinheriting;
h) financial need and other personal circumstances, including disability, of the claimant;
i) misconduct or poor character of the claimant; and
j) competing claimants and other beneficiaries.

[117] There are “valid and rational” reasons for disinheritance that will negate the testator’s moral obligations. To constitute as “valid and rational” reasons justifying disinheritance, the reason must be based on true facts, and the reason must be logically connected to the act of disinheritance: Clucas v. Royal Trust Corporation of Canada es qual, 1999 CanLII 5519 (B.C.S.C.), 25 E.T.R. (2d) 175 at para. 12.

[118] For instance, a testator’s moral obligations may be negated where there has been a lengthy estrangement. A testator who has been rejected by a member of his family is not required morally to ignore the rejection, nor to treat all family members equally, even when all are in need and the estate is small. While the testator must be judicious, they need not be impervious: Price v. Lypchuk Estate (1987) 11 B.C.L.R. (2d) 371 (C.A.) at 381.

[119] Lastly, while needs or maintenance is no longer the sole factor in governing variation claims, a consideration of needs is still relevant: Clucas at para. 12.

[120] The court, in deciding the award, may provide a single global percentage award.

[121] The date of the deceased’s death is the appropriate date at which to assess the value of the estate: Eckford v. Van Der Woude Estate, 2014 BCCA 261 at para. 50.

Appointing an Administrator of a Will

Appointing an Administrator of a Will

Berlinguette Estate 2022 BCSC 1098  discussed the criteria for appointing an administrator of a will and Sections 130 and 132 WESA.

Sections 130 and 132 of WESA address the appointment of an administrator for a person who dies without a will:

130 If a person dies without a will, the court may grant administration of the deceased person’s estate to one or more of the following persons in the following order of priority:

(a) the spouse of the deceased person or a person nominated by the spouse;
(b) a child of the deceased person having the consent of a majority of the children of the deceased person;
(c) a person nominated by a child of the deceased person if that person has the consent of a majority of the deceased person’s children;
(d) a child of the deceased person not having the consent of a majority of the deceased person’s children;
…
132 (1) Despite sections 130 and 131, the court may appoint as administrator of an estate any person the court considers appropriate if, because of special circumstances, the court considers it appropriate to do so.

(2) The appointment of an administrator under subsection (1) may be
(a) conditional or unconditional, and
(b) made for general, special or limited purposes.

In order for the court to appoint an administrator under WESA, that person must be independent and indifferent to the outcome of the estate’s distribution.

The Court of Appeal in Ruffolo v. Juba-Ruffolo, 2005 BCCA 26, determined that one of the relevant considerations for appointing an administrator was whether the potential appointee could act with detachment and even-handedness:

[15] In this case, there is a need for detachment and even-handedness to ensure that the estate is administered for the benefit of each of the beneficiaries under the statute, that is, the appellant widow and the child. With the respondent’s acknowledged animosity toward the appellant, it is not possible to conclude that the detachment required to properly administer the estate would be present.

In Raye v. Phillip Estate, 2021 BCSC 387 at para. 27, Justice Norell considered the factors a court must consider in exercising its discretion to appoint an administrator, including neutrality and a lack of actual or perceived conflict of interest:

[27] In exercising its discretion to appoint an administrator, the court must consider the best interests of the estate and all persons interested in the estate. The court should appoint an administrator who is likely best able to convert the estate to the advantage of those who are interested in it: Flores v. Mendez, 2014 BCSC 951 at paras. 35-41. The support of the majority of beneficiaries is a significant factor in determining an appropriate administrator: Godby Estate (Re), 2015 BCSC 1809 at para. 47. An administrator must act with “detachment and even handedness” and without animosity: Ruffolo v. Juba-Ruffolo, 2005 BCCA 26 at para. 15. An administrator should play a neutral role and not pick sides between beneficiaries and should be indifferent as to how the estate is to be divided: Kolic Estate (Re), 2016 BCSC 1312 at paras. 25-26. An actual or perceived conflict of interest may cause a court to appoint a new executor or administrator: Ching Estate (Re), 2016 BCSC 1111 at para. 22.

In El-Adams Estate (Re), 2022 BCSC 75, Justice Forth considered whether the mother of a deceased daughter should be appointed the interim administrator of her daughter’s estate. The mother was engaged in a legal proceeding with a person with whom her daughter had been in a relationship. That individual claimed that he should be declared the daughter’s husband, thus entitling him to inherit her estate. The mother of the deceased opposed the application for such a declaration and sought to be appointed the estate administrator.
Justice Forth acknowledged that the deceased’s mother was a person of integrity, but held that it was inappropriate to appoint her as the administrator because she was in litigation regarding the estate with the individual seeking a declaration that he was deceased’s husband. In setting out why the court must avoid appointing the mother, Forth J. commented on the importance of the administrator being neutral and indifferent to the outcome:
[39] I turn now to whether the petitioner is the appropriate person to be appointed. I have no hesitation in accepting that the petitioner is a person of integrity that has strived to do her best to care for Jenna. As a mother, she has the tragic burden of coping with the loss of her daughter. However, in my view, appointing her as an interim administrator will likely result in more strife between the respondent and Jenna’s family. It is unfortunate that issues of distrust have already arisen. An administrator must act with “detachment and even-handedness” and without animosity: Ruffolo v. Juba-Ruffolo, 2005 BCCA 26 at para. 15.

[40] Until the issue of the respondent’s status is determined, there are steps that the interim administrator may have to take to deal with the two outstanding lawsuits. The two actions are: the respondent’s action that he has continued against Adams Glass; and the action that Kayla has against Adams Glass and Jenna. In my view, it is inappropriate for the petitioner, as the mother of Kayla, to be providing instructions on behalf of the defendants in this lawsuit, where her daughter is the plaintiff. I anticipate that the petitioner may well be a witness in that action, in that it involves Kayla’s allegations of undue influence against her sister, Jenna, respecting their father, Mr. Adams.
…
[42] As matters currently stand, both the petitioner and respondent are in a potential conflict since one or the other will be inheriting the Estate. An administrator should play a neutral role. An administrator should not pick sides between beneficiaries, and should be indifferent as to how the estate is to be divided: Raye at para. 27. Neither of these parties is indifferent.

Marriage Agreements

Marriage Agreements

The BC Supreme Court in Drummond v Billing 2022 BCSC 1076 reviewed the principles of law relating to marriage agreements.

In that case the court set aside a marriage agreement based on unfairness due to the number of years the wife was out of the work force due to child raising, and that the parties did not address that issue when the agreement was entered into, nor did they revise it from time to time as was provided for.

Marriage agreements are reviewable at common law as a matter of contract and under the applicable statutory regime, which in this case is governed, as noted above, by the FRA: L.E.M. v. D.M.I., 2013 BCSC 450 at para. 79 [L.E.M.].

With respect to the review at common law, a marriage agreement will not be enforceable where it is unconscionable, either in the process leading up to its negotiation and execution, or if it deviates substantially from the statutory objectives set out in the relevant statues dealing with the consequences of marriage breakdown: L.E.M. at para. 81; Dhaliwal v. Dhaliwal, 2021 BCCA 72 at paras. 15–20 [Dhaliwal].

As the Court noted in Dhaliwal at para. 21, if the agreement is set aside as unconscionable, the statutory regime then applies to the division of property.

If the agreement is set aside as unconscionable, the statutory regime then applies to the division of property between spouses. Under the FRA, this starts from the presumption of equal division of family assets, a presumption that can only be displaced by demonstrating that equal division would be unfair considering the factors set out in s. 65(1) of the FRA: S.B.M. v. N.M., 2003 BCCA 300 at para. 23.

If the agreement is not set aside as unconscionable, there is a second stage of review in which the agreement is to be looked at to determine whether the terms of the agreement no longer reflect the parties’ intentions at the time of execution and whether it complies at the time of trial with the objectives of the statutory regime: L.E.M. at para. 85.

The analysis is to be conducted through an examination of the factors set out in s. 65(1) of the FRA. The issue to be determined is the fairness of the agreement at the time of the triggering event, in light of the s. 65 factors, see Dhaliwal at paras. 22, 24.

The Court noted in Dhaliwal at para. 23:

This analysis does not start from a presumption that equal division of family assets would be fair but from a presumption that the division under the agreement is fair, unless otherwise shown: H.S.S. v. S.H.D., 2018 BCCA 199 at para. 71.

Finally, in Dhaliwal at paras. 26-27 the Court set out the approach to be followed in this second stage analysis as follows.

The leading decision on the approach to considering whether an agreement would be unfair in its operation at the time of trial, pursuant to s. 65 of the FRA, is Hartshorne v. Hartshorne, 2004 SCC 22. In summary, this stage of analysis requires the judge to first consider what the result at trial would be if the terms of agreement were applied. Secondly, the judge must consider the factors in s. 65(1) to determine whether the agreement operates unfairly, considered in the context of whether the parties’ current circumstances were in their contemplation at the time the agreement was entered into: Hartshorne at paras. 43–47; Santelli at para. 72. This latter stage of the analysis also considers whether the agreement operates in a way that reflects the objectives of the governing legislation: Miglin at para. 87; Nicholl at para. 30.

Where the current circumstances were not previously contemplated, the burden of establishing that the agreement operates unfairly, justifying a reapportionment of property division, is somewhat lighter: H.S.S. at para. 57. Where the current circumstances were in the parties’ contemplation at the time the agreement was made, the burden to establish that the agreement is unfair is heavier: Hartshorne at para. 47. The goal is to strike an appropriate balance between deference to the parties’ intentions and the assurance of an equitable result: H.S.S. at para. 57, citing Hartshorne at para. 47.

As noted above, the presumptions and burden of proof differ depending on the stage of the analysis. If the marriage agreement is set aside as unconscionable, the statutory regime applies and the analysis proceeds from a presumption of equal division of family assets. If the agreement is not set aside as unconscionable, the analysis under s. 65 proceeds from the presumption that the marriage agreement is fair unless otherwise shown.

Is the Agreement unconscionable?

The notice of family claim seeks an order setting aside the Agreement. This pleading is directed to a finding on unconscionability at common law. Ms. Drummond submits that the lack of identification in the Agreement of which accounts are to constitute separate property, coupled with the absence of disclosure of the amounts in those accounts, renders the Agreement unconscionable.

  1. Both parties are satisfied with the knowledge each has of the other’s assets and liabilities and neither of them desires nor requires further or better particulars of the assets and liabilities of the other for the purpose of this Agreement.

Were there circumstances of vulnerability or a fundamental flaw in the negotiation process?

The first step in the analysis is an inquiry into the circumstances surrounding the negotiation and execution of the Agreement. The Court is to consider if there were circumstances of vulnerability or a fundamental flaw in the negotiation process that vitiated the bargaining process. In the present case I find that there is no suggestion that either party laboured under a significant vulnerability nor was there a fundamental flaw in the negotiation process.

In that regard, I note that both parties had the benefit of independent legal advice. Ms. Drummond’s counsel submits that the disclosure of Mr. Brilling’s assets was deficient in that the account numbers and totals for the RBC accounts were not listed. However, there is no evidence that these accounts were significant in relation to the IG Funds, the balance of which was disclosed. It is common ground that no additional disclosure was requested.

[        Mr. Brilling was the one who wanted a marriage agreement and it is clear that the Agreement reflected his wishes. Ms. Drummond did not want such an agreement but ultimately, she did agree, having had independent advice. Her reluctance in the circumstances does not amount to a fundamental flaw in the negotiation or execution of the Agreement.

Was the Agreement consistent with the objectives of the legislation at the time of signing?

[54]         Neither party directed submissions specifically in relation to this question. The burden of proof lies with Ms. Drummond to establish that the Agreement is unconscionable. I find that she has not discharged this burden. Accordingly, the analysis moves to the second stage.

Are the provisions for division of property unfair having regard to the factors set out in s 65(1) of the FRA?

As noted In Dhaliwal, this stage of the analysis requires the judge to first consider what the result at trial would be if the terms of the agreement were applied. Secondly, the judge must consider the factors in s. 65(1) to determine whether the agreement operates unfairly, considered in the context of whether the parties’ current circumstances were in their contemplation at the time the agreement was entered into, together with whether the agreement operates in a way that reflects the objectives of the governing legislation.

What does the Agreement provide?

The first part of the analysis at this stage is to apply the Agreement and address the financial entitlements from all sources available to each spouse under the Agreement.

 

 

The results of the operation of the Agreement are now to be assessed in light of the factors of s. 65(1) of the FRA, having regard to the intentions of the parties, whether the current circumstances were foreseen, and whether the operation of the Agreement reflects the objectives of the statute.

In engaging in the exercise, the Court is to give appropriate deference to the parties’ choices: Hartshorne v. Hartshorne, 2004 SCC 22 at para. 47 [Hartshorne]. The overall process is described in Hartshorne as follows:

[47]      The ultimate point then is this: in determining whether a marriage agreement operates unfairly, a court must first apply the agreement. In particular, the court must assess and award those financial entitlements provided to each spouse under the agreement, and other entitlements from all other sources, including spousal and child support. The court must then, in consideration of those factors listed in s. 65(1) of the FRA, make a determination as to whether the contract operates unfairly. At this second stage, consideration must be given to the parties’ personal and financial circumstances, and in particular to the manner in which these circumstances evolved over time. Where the current circumstances were within the contemplation of the parties at the time the Agreement was formed, and where their Agreement and circumstances surrounding it reflect consideration and response to these circumstances, then the plaintiff’s burden to establish unfairness is heavier. Thus, consideration of the factors listed in s. 65(1) of the FRA, taken together, would have to reveal that the economic consequences of the marriage breakdown were not shared equitably in all of the circumstances. This approach, in my view, accords with the underlying principle of the FRA, striking an appropriate balance between deference to the parties’ intentions, on the one hand, and assurance of an equitable result, on the other.

In conducting the analysis, the court should not conclude that an agreement is unfair simply by demonstrating that it deviates from the statutory matrimonial property regime, i.e., the FRA or FLA: Johnstone v. Wright, 2005 BCCA 254 at para. 32, citing Hartshorne at para. 67.

The parties’ contemplation at the time of the agreement

The Agreement provides:

  1. The parties wish to confirm that:

…(iii)       either of them may choose not to pursue economic opportunities because of their relationship but each party recognizes that certain sacrifices will be made within, and because of, the relationship, and the consequences of those choices will not be used to avoid the terms of this Agreement.

That is suggestive of a contemplation that time out of the workforce represents a “sacrifice”, the consequences of which will not constitute a basis to avoid the terms of the Agreement. However, the terms of clause 33 do not appear to contemplate that there will be a period of time in which one of the parties is not employed in the workforce outside of the home.

In addition, the Agreement provides for the possibility of a review and amendment in clause 41. No such review was requested or undertaken. That is suggestive of a conclusion that the parties believed that the unfolding of events was consistent with what the Agreement contemplated.

In the result, it is not evident that the parties turned their minds to the possibility that Ms. Drummond would spend a number of years outside of the workforce as a result of pregnancy and child care responsibilities.

At the time they signed the Agreement both were employed, earning roughly equal salaries. Mr. Brilling had the IG Funds, which he wished to protect. Other than the IG Funds, there is no evidence that either party had any assets of significance. But for the IG Funds, the parties were in a situation of financial equality at the time the Agreement was executed.

At the time of trial Mr. Brilling’s participation in the workforce had not been disrupted to any significant degree. His wage earning potential was significantly higher than Ms. Drummond as a result of completion of his red seal certification. He was able to amass savings during this period. By contrast, Ms. Drummond remained out of the workforce for much of the marriage as a result of pregnancy and child care responsibilities. As noted above, the operation of the Agreement at the time of trial produces a result far from rough equality with Mr. Billing’s share being 77% of the assets, including the IG Funds but excluding the RESP, and Ms. Drummond’s 23%.

The court held  that the parties did not predict accurately at the time of the formation of the Agreement what their actual circumstances would be at the time of distribution.

   Having due regard for the intentions of the parties and operating from a presumption that the Agreement is fair, and considering the factors listed in s. 65(1) of the FRA, I find the economic consequences of the marriage breakdown were not shared equitably in all of the circumstances.