Citation: Werner v. Werner, 2013 NSCA 6
Date: 20130108
Docket: CA 389565
Registry: Halifax
Between:
Thomas Rolf Werner
Appellant
v.
Yvonne Werner
Respondent
Revised Decision: The text of the original decision has been corrected according to the erratum dated January 16, 2013. The text of the erratum has been appended to this decision.
Judges: Oland, Fichaud and Bryson, JJ.A.
Appeal Heard: November 27, 2012, in Halifax, Nova Scotia
Held: Appeal and cross-appeal are dismissed, per reasons for judgment of Bryson, J.A., Oland and Fichaud, JJ.A. concurring.
Counsel: Kenzie MacKinnon, for the appellant
Respondent, in person
Reasons for judgment:
Introduction:
[1] Having abandoned his young wife and infant child, and having failed to convince the German courts to seize custody of their child from his mother, Thomas Rolf Werner now asks this Court to restore an access which he did not seek and which he did not exercise after his initial resort to our courts. The trial judge would not accommodate him and neither should we.
[2] Mr. Werner says access to his young son is his principal concern on appeal. But he also challenges the trial judge’s decisions on child and spousal support as well as the division of property. He appeals the complete corollary relief order dated June 28, 2012, resulting from oral decisions of May 27, 2011 and November 24, 2011, and the written decision of June 14, 2012 (2012 NSSC 230).
[3] Ms. Werner also cross-appeals on issues of support, custody and property division. It will be convenient to address both the appeal and cross-appeal simultaneously under each issue.
Background:
[4] In contemporary parlance, the parties met “on line”. Almost immediately, Ms. Werner travelled to visit Mr. Werner in his Bavarian home. Within a month of their acquaintance, they were married. This unpropitious beginning had lamentably predictable consequences. Beyond the exhilarating tonic of a novel passion, the parties’ relationship ultimately foundered on an incompatibility which a fleeting ardour obscured.
[5] When they met, Mr. Werner was almost 57. Ms. Werner was 28. Both German citizens, Ms. Werner was then working in Switzerland as a software programmer. Mr. Werner had been a business consultant who had retired in 2005. He was divorced and had two children from his previous marriage. He was estranged from his daughter, but his son Maximilian lived with him.
[6] The Werners were married on February 29, 2008. Ms. Werner immediately returned to her job in Switzerland, staying with Mr. Werner on weekends. In October 2008, she became pregnant. Mr. Werner dreamed of a romantic pastoral life in the country – he planned to come to Canada. He persuaded his young wife to relinquish her career and accompany him to Nova Scotia. He assured her that he had the means to support them both in a genteel retirement.
[7] In December 2008, Mr. and Ms. Werner and Maximilian immigrated to Canada. Their son Clemens was born on July 6, 2009 at the IWK Hospital in Halifax. Maximilian began his studies at Dalhousie in September 2009.
[8] Ms. Werner claims that Mr. Werner emotionally abused and manipulated her throughout their marriage, culminating in a physical assault on November 11, 2009. She fled the house, never to return. Her son was delivered to her by the RCMP as she was still nursing.
[9] In January 2011, Mr. Werner pleaded guilty in Provincial Court to assaulting Ms. Werner. Although he denied the assault in the proceedings under appeal, the trial judge found otherwise.
[10] Within hours of Ms. Werner fleeing her home, Mr. Werner brought proceedings in the Nova Scotia Family Court seeking custody of Clemens and alleging that Ms. Werner was a danger to herself and their son. A consent order was negotiated but never signed by Mr. Werner’s counsel. Shortly after, in March 2010, Mr. Werner left the country and but for a brief exception, did not return until the fall of 2011. That exception was January 2011 to plead guilty to the assault charge. Mr. Werner made no effort at this time to contact or see Clemens.
[11] Through the family court process, both parents were ordered to undergo parental assessments. In the fall of 2010, Ms. Werner was favourably assessed. Mr. Werner refused to participate in the process that he had started. He moved to Germany, despite a family court order according him interim joint custody and unsupervised access to his son.
[12] In Germany, Mr. Werner commenced a series of applications before the German courts which challenged his wife’s mental health and the safety of his son whom he had incongruously abandoned to her care. He argued that Ms. Werner had no regard for Clemens and did not want him. The German courts were not persuaded. The Municipal Court in Schöneberg (Department of Family Matters) ruled in part:
An endangering of the child’s welfare, which would justify judicial action and would result in a transfer of the Determination Right of Residence for Clemens, as sought by the father, could not be established.
In as far as the petitioner tries again to justify the endangering of the child’s welfare with the health condition of the child’s mother and her psychological illness several years ago as well as her attitude towards him during the separation phase in the year 2009, nothing has changed with regard to the evaluation of the previous proceedings on which the decisions of April 22, 2010 and June 8, 2010 by the Municipal Court, 22 F 102/11, as well as the appeal decision of the Supreme Court of July 7, 2010 – 3 UF 124/10 are based. The petitioner has not illustrated and credibly presented that new circumstances concerning the mental health of the child’s mother have since arisen. . . .
Also, the claim of the petitioner that the child’s mother has no interest in the child and does not want it, has been in no way supported. ...
[13] Meanwhile, the Canadian litigation proceeded without Mr. Werner. He did not appear at the regularly scheduled interim hearing before the family court on April 7, 2010. The matter was set over until October 12, 2010. Mr. Werner still did not appear. An interim family court order was issued which provided for a follow-up telephone conference on November 15, 2010. Mr. Werner did not participate in that call. As a result, a final court order was issued by the family court on December 21, 2010, granting Ms. Werner sole custody with supervised access to Mr. Werner.
[14] On February 1, 2011, Ms. Werner filed a divorce petition in the Supreme Court of Nova Scotia. An interim application was to be heard on April 15th before Justice Scanlan in Truro. Maximilian appeared and gave evidence regarding matrimonial assets in Canada, but Mr. Werner did not attend. The interim hearing was adjourned to May 27, 2011. Again, Mr. Werner was not there.
[15] Mr. Werner’s last unsuccessful appeal to the German courts for custody of Clemens was dismissed in August 2011. In that same month, Mr. Werner retained his current counsel and attended the Supreme Court trial before Justice Scanlan in November 2011.
[16] Justice Scanlan was unimpressed with the evidence of Mr. Werner and his son Maximilian. Where it differed from that of Ms. Werner, he preferred her evidence. As we shall see, his scepticism was well founded. At the conclusion of the November hearing, Justice Scanlan issued an oral decision on custody and access granting sole custody of Clemens to Ms. Werner. He ordered Mr. Werner to submit to a full psychiatric assessment. Property and support issues remained open to be the subject of further evidence in March 2012.
[17] Following the further hearing in March 2012, Justice Scanlan ordered Mr. Werner to pay Ms. Werner the lump sum of $125,000 representing an unequal division of matrimonial property and lump sum spousal maintenance. He did not distinguish between the two in this figure. He also ordered Mr. Werner to pay Ms. Werner child support of $592 a month retroactively beginning December 8, 2011.
[18] Mr. Werner protests the stridency of Justice Scanlan’s language and argues that his findings and decision are based on “no evidence”, “irrelevant moral judgments”, and a failure to apply appropriate statutory criteria to the issues before him.
Custody and Access:
[19] In his November 24, 2011 decision, Justice Scanlan ordered that Ms. Werner have sole custody of Clemens with no access for Mr. Werner. Mr. Werner reminds this Court that the Divorce Act emphasizes the importance of contact with both parents:
16. (8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.
(9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.
(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.
Counsel also quoted from McLachlin J. (as she then was) in Young v. Young, [1993] 4 S.C.R. 3, pp. 117-118:
Third, s. 16(10) provides that in making an order, the court shall give effect “to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child.” This is significant. It stands as the only specific factor which Parliament has seen fit to single out as being something which the judge must consider. By mentioning this factor, Parliament has expressed its opinion that contact with each parent is valuable, and that the judge should ensure that this contact is maximized. The modifying phrase “as is consistent with the best interests of the child” means that the goal of maximum contact of each parent with the child is not absolute. To the extent that contact conflicts with the best interests of the child, it may be restricted. But only to that extent. Parliament’s decision to maintain maximum contact between the child and both parents is amply supported by the literature, which suggests that children benefit from continued access: Michael Rutter, Maternal Deprivation Reassessed (1981), Robin Benians, “Preserving Parental Contact: a Factor in Promoting Healthy Growth and Development in Children”, in Jo Tunnard, ed., Fostering Parental Contact: Arguments in Favour of Preserving Contact Between Children in Care and Their Families (1982).
But the trial judge was well aware of this principle. In his November 2011 decision he said:
In reference to the custody and access arrangements, I make it very, very clear that I’m satisfied that it’s the best interests of Clemens that is at the forefront. . . . we start from the proposition that children are better off to have both parties act as caregivers for their children. ...
[20] In ordering sole custody with no access, Justice Scanlan made some strong findings:
THE COURT: ...I’m satisfied that as of today, sole custody should be with Mrs. Werner. Mrs. Werner has been the sole caregiver since Mr. Werner left for Germany several months ago. That is not the reason I award sole custody, Mrs. Werner. That’s simply the situation that we find ourselves in now.
In making a determination as to the custody of Clemens at this point in time, I say unequivocally that I have grave concerns as to any care that Mr. Werner might provide to Clemens. This goes beyond the issue of custody and caregiving. It also includes the issue of access. I say that for many reasons and I’m going to enumerate some of those reasons now. In saying it, I want to make it clear to Mr. Werner this is not intended to be a permanent arrangement but until I have some information and I’m satisfied he’s taken certain steps, it’s not going to be changed.
Mr. Werner, I’m satisfied, can be described as nothing less than a self-centered and manipulative bully. I’m not at all satisfied that Mr. Werner could, even for short periods of time, put the best interests of Clemens ahead of his stubborn desire to make Ms. Werner’s life miserable in his efforts. To impoverish her to the greatest extent possible are the forefront in terms of his objectives or at least they have been to date, even if this means harming Clemens in the process, because Clemens has been harmed in some of the things that Mr. Werner has done to date. . . . Mr. Werner is and has been prepared to sacrifice Clemens’ well-being.
[21] Justice Scanlan went on to say that Mr. Werner was a violent man. Ms. Werner had undergone a very severe beating at his hands. He expressed concern that Mr. Werner was painting Ms. Werner a psychotic, psychiatric misfit who was a danger to herself and her child. The trial judge found that Mr. Werner had done whatever he could to divest himself of assets and move them out of the jurisdiction to make them inaccessible to Ms. Werner and by extension, to Clemens. In contrast he was paying his eldest son Maximilian an average of $3,000 a month to live and study in Halifax. Justice Scanlan accepted Ms. Werner’s evidence that Mr. Werner “...tried to buy Clemens from her for the price of a car.” The trial judge saw these efforts as a prelude to alienating Clemens from his mother, much as Maximilian had been alienated from his mother.
[22] Justice Scanlan decided that access arrangements could be reviewed at the resumed hearing in March 2012 by which time Mr. Werner would have at least started programmes of anger management and psychiatric assessment. He concluded by saying that at the end of the day it may transpire that Mr. Werner had no psychiatric problems that would impede his parenting of Clemens.
[23] The hearing resumed in March 2012. Mr. Werner did not submit to any counselling or testing as ordered by Justice Scanlan. Nor did he provide the further financial disclosure anticipated by the court.
[24] In his June 14, 2012 decision, the trial judge reiterated his concerns:
[51] ...The Court has grave concerns as to the safety and welfare of Clemens being with Mr. Werner unless, or until, a psychological assessment can be completed. ...
[52] ...He has displayed a callous disregard for Ms. Werner and his son Clemens to whom he has professed such enduring love.
[25] Mr. Werner says that Justice Scanlan was wrong to blame him for the alienation between Maximilian and his mother. Mr. Werner claims he was prepared to raise Clemens in Canada and there was no basis for Justice Scanlan’s comments that Mr. Werner would return to Germany and turn Clemens against his mother. He denies trying to “starve out” Ms. Werner. Mr. Werner always paid the $300 a month child support ordered by the family court. He complains that it was wrong for the trial judge to make a finding that he was violent based solely on the assault. It was also wrong for the judge to criticize him for portraying his wife as a psychotic, dangerous to herself and her child and that Mr. Werner simply wanted Ms. Werner back in Germany to support him and their child. Mr. Werner implies that the trial judge’s concerns about Clemens’ safety in his care were relatively trivial. The trial judge mentions two. The first was Mr. Werner’s insistence on giving Clemens bananas to “suck on” when he knew that the child could not digest them and they gave him pain. The second was Mr. Werner’s insistence on placing the infant in the rear seat of his car with a large German Shepherd.
[26] Finally, Mr. Werner argues that it was wrong for the trial judge in effect to “diagnose” Mr. Werner with psychiatric problems and order him to undergo a psychiatric evaluation as there was no evidence that Mr. Werner has any psychiatric issues.
[27] Essentially, all of these challenges are to findings of fact of the trial judge to which this Court owes great deference. Absent a palpable and overriding error, this Court cannot intervene and overturn findings of fact for which there is support in the record:
[9] In both support and division of property cases, a deferential standard of appellate review has been adopted: Corkum v. Corkum (1989), 20 R.F.L. (3d) 197 (N.S.C.A.); MacIsaac v. MacIsaac (1996), 150 N.S.R. (2d) 321 (C.A.); Roberts v. Shotton (1997), 156 N.S.R. (2d) 47 (C.A.). The determination of support and division of property requires the exercise of judicial discretion. Provided that the judge of first instance applies correct principles and does not make a palpable and overriding error of fact, the exercise of such discretion will not be interfered with on appeal unless its result is so clearly wrong as to amount to an injustice: Heinemann v. Heinemann (1989), 91 N.S.R. (2d) 136 (S.C.A.D.) at 162; LeBlanc v. LeBlanc, [1988] 1 S.C.R. 217 at 223 ‑ 24; Elsom v. Elsom, [1989] 1 S.C.R. 1367 at 1374 ‑ 77; Hickey v. Hickey, [1999] 2 S.C.R. 518 at paras. 10 ‑ 13.
[MacLennan v. MacLennan , 2003 NSCA 9, per Cromwell, J.A.]
[28] The extent of Mr. Werner’s subterfuge concerning his resources is elaborated upon further below. There was ample evidence for the judge to conclude that Mr. Werner was “starving out” his wife and infant son.
[29] The trial judge was worried that Mr. Werner would take Clemens to Germany and alienate him from Ms. Werner who would have to support Mr. Werner and his exclusive custody of Clemens. Mr. Werner denied this. But under oath, Mr. Werner advised the court that it was he who would have custody of Clemens under German law. Moreover, the whole purpose of the German litigation was to obtain custody of Clemens and convince the German Courts that Ms. Werner neither wanted nor could she care for Clemens. It was not unreasonable for the trial judge to conclude that this was Mr. Werner’s intention all along,
[30] The trial judge also formed a poor opinion of Maximilian’s credibility and found him to be an evasive witness who was in effect supporting his father’s position to the detriment of Ms. Werner and Clemens. The trial judge did express concern that Mr. Werner had influenced Maximilian’s alienation from his own mother. There was evidence sustaining this concern. Mr. Werner encouraged Maximilian to sue his mother in the German courts for support. To excuse his negligible support for Ms. Werner and Clemens, Mr. Werner told Justice Scanlan that he had given Maximilian $300,000 in trust for his education. He had earlier told the family court that Maximilian “owned” this money:
Q. Okay. Thank you. Paragraph 45 of your affidavit, you indicate that you have $300,000 in chequing accounts.
A. That’s not my money. Yes.
Q. I’m sorry. You say it’s not your money?
A. No, it is not my money.
Q. Whose money is it?
A. It is . . . most of the money is my son’s money.
. . .
A. . . . he . . . what is called, has . . . he’s the owner of the money but he credited me to finance a home.
Q. I’m sorry. He’s the owner of the money.
A. He’s the owner of the money, but he gave me a credit.
[31] But this ownership interest “disappeared” when he gave evidence before the German courts. He filed an affidavit before the local Court in Celle, Germany saying that Maximilian did not own these funds:
...with regard to the question as to whether I had an account back then that had approximately 300,000 Canadian Dollars in it at the beginning of spring 2010, I can state that this money was earmarked for Maximilian. However, he never actually owned the money.
[32] Similarly, Mr. Werner told the Nova Scotia Family Court that his house in Germany had been transferred to his brother prior to his marriage to Ms. Werner. Then in the same affidavit as quoted above, he alleged that this never actually occurred – it was only his “intention” to transfer the property to his brother. This evidence assisted Maximilian in his suit against his mother for support. It is unsurprising that Justice Scanlan was offended by Mr. Werner’s apparent deceit in supporting Maximilian’s legal attack on his mother. That could hardly foster good relations between mother and son.
[33] The trial judge’s assessment of Mr. Werner as violent was not confined to his November 2009 assault on his wife. He accepted Ms. Werner’s evidence of psychological abuse. The judge also had the advantage of observing Mr. Werner on the witness stand. He commented on Mr. Werner becoming angry and requiring an adjournment during trial. The trial judge was best placed to assess Mr. Werner’s penchant for violence and temper control.
[34] Mr. Werner submitted that the trial judge’s reliance on the “banana” and “German Shepherd” incidents elevated trivial events to unwarranted importance. But the concern of the trial judge was more fundamental. He was as troubled by the assertive attitude of Mr. Werner as with the acts themselves. As the trial judge said:
...the reason you feed the banana to the child is just to prove that you’re in control, you’re the boss.
Likewise, whether or not the German Shepherd was a serious threat to Clemens when left alone in the back seat with him, Ms. Werner’s anxiety should have prompted Mr. Werner to support his wife and alleviate her concern rather than insisting on being “right”.
[35] Mr. Werner’s submissions really invite this Court to reverse the findings, inferences and conclusions of the trial judge about Mr. Werner. That is not our task:
[26] This is an appeal. It is not a retrial on the written record or a chance to second guess the judge's exercise of discretion. The appellate court is not, therefore, to act on the basis of its own fresh assessment of the evidence or to substitute its own exercise of discretion for that of the judge at first instance. This Court is to intervene only if the trial judge erred in legal principle or made a palpable and overriding error in finding the facts. The advantages of the trial judge in appreciating the nuances of the evidence and in weighing the many dimensions of the relevant statutory considerations mean that his decision deserves considerable appellate deference except in the presence of clear and material error: Family and Children’s Services of Lunenburg County v. G.D. , [2003] NSJ No 416 (Q.L.) (C.A.) at para. 18; Family and Children’s Services of Kings County v. B.D. (1999), 177 N.S.R. (2d) 169 (C.A.); Nova Scotia (Minister of Community Services) v. C.B.T. (2002), 207 N.S.R. (2d) 109; Van de Perre v. Edwards, [2001] 2 S.C.R. 1014 at paras. 10 ‑ 16.
[Children’s Aid Society of Cape Breton-Victoria v. A.M., 2005 NSCA 58, per Cromwell, J.A.]
[36] Justice Scanlan’s denial of access to Mr. Werner was unusual but was justified on the evidence. Moreover, it was not necessarily permanent. The judge was prepared to review it in March 2012 after Mr. Werner commenced counselling – something he refused to do. The judge did not “diagnose” Mr. Werner with psychiatric problems, but expressed grave concern about him owing to his behaviour. He wanted an assessment – he did not make a “diagnosis”.
[37] Justice Scanlan ordered that Mr. Werner undergo a psychiatric assessment at the IWK Children’s Hospital. The Court was informed that the IWK no longer performs these assessments. Accordingly I would vary Justice Scanlan’s order by providing that a similar assessment could be undertaken at a comparable facility to the IWK. If necessary, application could be made to the Supreme Court for further direction regarding the appropriateness of a proposed alternative facility.
Cross-Appeal on Custody:
[38] In her cross-appeal, Ms. Werner asks the Court to confirm the trial decision but add a provision that she may be able to move her place of residence with Clemens, other than to Germany, without the consent of Mr. Werner or further order of the court.
[39] This is not something that was explicitly addressed by the trial judge. It is relief that Ms. Werner could request of the Supreme Court in a later application to vary the complete corollary relief order of Justice Scanlan, if Ms. Werner’s circumstances changed so as to merit such an application.
Child Support:
[40] Mr. Werner submits that monthly maintenance of $592 for Clemens was too much. His total annual income is only $5,719.32. He protests the judge’s attribution of $70,000 a year to him.
[41] Mr. Werner objects to Justice Scanlan’s finding that he was trying to “starve out” Ms. Werner and, by extension, his infant son. He says that he paid the $300 child support agreed to and ordered by the family court. He says Ms. Werner never sought either spousal support or an increase in the child support while the family court order was in effect.
[42] In November 2009, Ms. Werner had adequate income from her German parental support payments. When she no longer had this money, she sought increased support, which Mr. Werner ignored, despite Justice Scanlan’s interim order of July 2011. Because she had no help from Mr. Werner, she had to turn to social services and friends – sources upon whom she and Clemens still rely. Mr. Werner attempts to excuse lack of support for Ms. Werner and Clemens by citing his expenses during the 2006-2011 period, the “contract” or “trust” (the evidence varied) of $300,000 for Maximilian, and the fact that he did not “own” his Bavarian home, (another “fact” which varied, according to Mr. Werner’s convenience).
[43] There was ample evidence before Justice Scanlan to support his criticism of Mr. Werner for “starving out” his new family. First, Mr. Werner had to convince Canadian authorities that he was worth $800,000 in order to immigrate to Canada. Second, he had access to funds for whatever purpose he cared to indulge – whether it was $120,000 plus for legal fees, or tens of thousands for Maximilian, or money for cars or residences. Third, Mr. Werner was evasive about his resources and failed to fully disclose original documentation to the court. Fourth, Mr. Werner’s evidence was inconsistent regarding the $300,000 “trust” for Maximilian. Variously he described this money as “owned” by Maximilian or not owned by him. What was clear was that Mr. Werner had access to it whenever he wanted it. Fifth, Mr. Werner was inconsistent about ownership of his Bavarian home. In January 2010, he said it was owned by his brother; then in January 2011, he said it was owned by Maximilian. But again, it was clear that he had access to the proceeds of sale from the house when he wanted them. What was equally clear is that he never used this money to pay any support to Ms. Werner or Clemens (other than the originally ordered $300 a month). The judge’s finding that Mr. Werner was “starving out” Ms. Werner was supported by the evidence.
[44] Justice Scanlan was satisfied that it was reasonable to impute an annual income to Mr. Werner. As suggested above, there was ample evidence for him to do so because:
• Mr. Werner was admitted to Canada on the basis of $800,000 net worth;
• Mr. Werner always had access to funds, notwithstanding the notional $300,000 trust fund for Maximilian. He testified – and the judge accepted this – that he freely borrowed from the “trust” to meet his own needs;
• Although “retired”, Mr. Werner had previously earned hundreds of thousands a year as a business consultant. In 2008, he turned down work that would have paid him hundreds of thousands of dollars;
• Mr. Werner had secreted and transferred funds out of the country;
• Mr. Werner had failed to provide original documentation to corroborate his pleas of poverty, the net proceeds of the sale of his Bavarian house or the funding of Maximilian’s “trust”.
[45] In contrast, the trial judge was satisfied that Ms. Werner had been financially devastated by the marriage and the family’s financial reliance on her while her income lasted. More importantly, her ability to earn an income had been seriously compromised by her early departure from her Swiss employer and the relative modesty of her education (she is working towards high school equivalency). He did not think it reasonable that she could presently earn a living in all the circumstances. The judge made no palpable and overriding error in his assessment of the needs and means of the parties.
Cross-Appeal on Child Support:
[46] Ms. Werner cross-appeals, seeking restoration of the May 2011 order of support, arguing that the judge should have imputed full pension income of $85,000 to Mr. Werner. She also seeks reimbursement for $193.67 a month in medical insurance payments.
[47] Ms. Werner argues that Justice Scanlan had originally awarded child support of $725 a month, based on Mr. Werner’s estimated pension income of $85,000 a year. She relies on judicial criticism of Mr. Werner’s unrealized capacity to work to urge that the interim order should be restored. She cross-appeals for maintenance of $725 a month.
[48] It seems that at the May 2011 interim hearing Justice Scanlan thought that Mr. Werner would be shortly drawing a pension of $85,000, based on the evidence then before him. (It will be recalled that Mr. Werner declined to appear at that time.) Subsequent evidence clarified that the pension would not be payable until 2017.
[49] Justice Scanlan balanced the relevant factors when imputing income to Mr. Werner. If circumstances change, Ms. Werner could later apply to vary the support order. I would dismiss Ms. Werner’s cross-appeal.
Spousal Support:
[50] Mr. Werner resists payment of any spousal support because the marriage was short-lived and Ms. Werner had a greater ability to recover financially from the breakdown of their marriage. He blames her for remaining in Canada when she should be able to earn a large income in Germany or Switzerland.
[51] Mr. Werner denies misleading Ms. Werner about his finances or planning to have her fund his retirement, as the trial judge concluded. He says that the parties always kept their finances separate. Ms. Werner never asked for spousal support during seven family court appearances. No support should be paid to either party.
[52] Ms. Werner counters that she was financially disadvantaged by the marriage because:
(a) she lost a valuable job as a software programmer to indulge Mr. Werner’s ambitions for a pastoral life in Canada;
(b) her reputation in her industry was impaired by the speed and manner of her departure;
(c) she lost present and future insurance and pension benefits.
[53] Here again, the trial judge was constrained by Mr. Werner’s lack of candour. He found the federal spousal guidelines of little help. In awarding spousal support, Justice Scanlan recited the factors in s. 15(4) and (5) of the Divorce Act. He found that Ms. Werner was economically disadvantaged by the marriage; that Ms. Werner was likely to bear the greatest financial burden of caring for Clemens. He was “keenly aware” of the short duration of the marriage and the future potential of Ms. Werner for retraining and employment. He observed that there is a commonality between many of the factors relevant to spousal support and division of matrimonial assets.
[54] As for requiring Ms. Werner to return to Germany where she might be more “employable”, the trial judge was satisfied that, given Mr. Werner’s threats and actions, Ms. Werner’s custody of Clemens would be at risk, placing Clemens at risk. It was reasonable that she not return to Germany.
[55] After hearing from both parties at trial, he found:
...Mrs. Werner was led to believe that Mr. Werner had amassed enough money to support them in his retired lifestyle. [November 24, 2011 Decision]
Mr. Werner . . . had nowheres near enough money required for his retired lifestyle that he espoused unless he could make his young bride go to work and support him and her. [ibid, p. 70]
[56] Again, in his June 14, 2012 decision, the judge found:
[43] As I said, the money does not in any way add up to explain how Mr. Werner could have promised, or expected, to do all the things he promised the Petitioner and pay Maximilian the $300,000.00.
These were conclusions available to the trial judge on the evidence of Ms. Werner and in light of Mr. Werner’s protestations that a trust fund for Maximilian took most of his liquid assets (although he could borrow from them) and that he did not actually own his house in Bavaria (variously described as owned by him, his brother or Maximilian).
[57] The judge was satisfied that Mr. Werner had concealed assets. He expected – but did not receive – further financial disclosure from Mr. Werner following the November 2011 trial.
[58] In the end, the judge concluded:
[37] I am satisfied that Mr. Werner has the option of drawing on those same funds to support his son Clemens. The monies are trust monies in name only. The trust is part of a sham created after the marriage breakdown to deny Ms. Werner, and Clemens, from ever receiving support from Mr. Werner. There is enough money in those accounts to pay the child support at the levels I have directed even if Mr. Thomas Werner chooses not to work.
All these conclusions were available to him on the evidence. It is not for this Court to overturn findings of fact so grounded.
[59] The trial judge awarded a lump sum to Ms. Werner of $125,000 representing both spousal support and unequal division of matrimonial assets. This is addressed further under the next issue.
Cross-Appeal on Spousal Support:
[60] Ms. Werner reviews the consequences of her marriage breakup and the effect it has had on her and Clemens. She argues for monthly spousal support of $1,500 retroactive to December 2009 and prospectively for an indefinite period. She also seeks help with her own education.
[61] For the same reasons which apply to Mr. Werner’s appeal, I would dismiss Ms. Werner’s cross-appeal. She makes good arguments – but these were considered by the trial judge. We cannot substitute our own discretion for his, provided he considered correct principles, (MacLennan and A.M., paras. 27 and 35 above).
[62] Moreover, reading “between the lines”, it appears that Justice Scanlan felt that a lump sum award was more appropriate in this case, probably because it was likely to be easier to collect – although collection may be difficult. He was almost certainly right about this in light of Mr. Werner’s conduct to date.
Property Division:
[63] The division of matrimonial property is governed by the Matrimonial Property Act. The presumption is for an equal division. But s. 13 allows for an unequal division:
13 Upon an application pursuant to Section 12, the court may make a division of matrimonial assets that is not equal or may make a division of property that is not a matrimonial asset, where the court is satisfied that the division of matrimonial assets in equal shares would be unfair or unconscionable taking into account the following factors:
(a) the unreasonable impoverishment by either spouse of the matrimonial assets;
(b) the amount of the debts and liabilities of each spouse and the circumstances in which they were incurred;
(c) a marriage contract or separation agreement between the spouses;
(d) the length of time that the spouses have cohabited with each other during their marriage;
(e) the date and manner of acquisition of the assets;
(f) the effect of the assumption by one spouse of any housekeeping, child care or other domestic responsibilities for the family on the ability of the other spouse to acquire, manage, maintain, operate or improve a business asset;
(g) the contribution by one spouse to the education or career potential of the other spouse;
(h) the needs of a child who has not attained the age of majority;
(i) the contribution made by each spouse to the marriage and to the welfare of the family, including any contribution made as a homemaker or parent;
(j) whether the value of the assets substantially appreciated during the marriage;
(k) the proceeds of an insurance policy, or an award of damages in tort, intended to represent compensation for physical injuries or the cost of future maintenance of the injured spouse;
(l) the value to either spouse of any pension or other benefit which, by reason of the termination of the marriage relationship, that party will lose the chance of acquiring;
(m) all taxation consequences of the division of matrimonial assets. R.S., c. 275, s. 13; revision corrected.
[64] Mr. Werner says that there should be an unequal division as follows:
• each party should retain what he or she had prior to marriage;
• assets acquired during the marriage should be equally divided;
• assets acquired after separation should be retained by each party.
[65] Mr. Werner supplements his argument by saying that this accords with the “marriage contract” entered into when they married in Germany.
[66] Ms. Werner denied any marriage contract. There is nothing in writing. The judge said he would not be bound by the “contract”, even if there were one as described. He found:
• Mr. Werner’s resources were preserved in part because Ms. Werner depleted all her income and assets to support the family after the move to Canada: (para. 50 and 51);
• Ms. Werner had been adversely impacted by the marriage, its breakdown, and Mr. Werner’s subsequent conduct: (para. 51);
• Ms. Werner would be unreasonably impoverished if Mr. Werner were permitted to keep all assets (para. 51);
• Mr. Werner’s conduct adversely affected Ms. Werner’s ability to return to Germany or to earn an income there or in Canada: (para. 51);
• Mr. Werner could earn a respectable income if he tried: (para. 60);
• It would be unconscionable to deny Ms. Werner a “share of matrimonial assets”.
The trial judge concluded:
[60] Based on all the facts I referred to above, I am satisfied Mr. Werner could earn a respectable income if he decided to try. Ms. Werner will require some time to readjust and retrain so she can support herself. She finds herself in her present situation, not just because of the marriage and the marriage breakdown, but because of Mr. Werner’s actions post breakdown. I am satisfied it would be appropriate in the present circumstances to order a lump sum spousal maintenance award in the amount of $125,000.00. If paid this will assist Ms. Werner in attaining self sufficiency in a more reasonable time frame. In making that award I note it would most likely have to be paid out of matrimonial assets, not income Mr. Werner is currently earning. It would be unfair to double dip in terms of those assets and require a further payment to effect a division of matrimonial assets. Many of the factors considered in dividing assets are the same factors considered in spousal support awards. The $125,000.00 represents both a lump sum spousal support award and an unequal division of matrimonial assets in favour of Mr. Werner. The unequal division, while unequal in Mr. Werner's favour, takes into account the source of the assets.
[67] As indicated above, this Court will not override the highly discretionary decision of a trial judge on such things as spousal support and division of property, assuming appropriate legal principles have been applied.
[68] The trial judge’s novel joinder of spousal support and property division is understandable, given Mr. Werner’s evasiveness about ownership and location of assets and his failure to attend court and supply further evidence in March 2012. But the two cannot be assimilated. They have different prerequisites, functions and consequences. I would vary the $125,000 award by ascribing $30,000 to a division of matrimonial property and $95,000 as a lump sum for spousal support. The $30,000 represents that amount which the trial judge found that Ms. Werner had given Mr. Werner and which he ordered returned to her following the interim hearing in May 2011. I would order payment of a lump sum of $95,000 for spousal support and a lump sum of $30,000 representing an unequal division of matrimonial property.
Cross-Appeal on Matrimonial Property:
[69] Ms. Werner cross-appeals, effectively seeking $172,000 in “damages” arising from the marriage and Mr. Werner’s conduct. While her argument has a certain logic, she does not identify a legal error by the trial judge. As for factual “errors”, the trial judge exercised his discretion when making an award in Ms. Werner’s favour. Parties are always financially prejudiced by the collapse of a marriage. The court does not award “damages” for the unfortunate and inevitable losses that result.
Enforcement:
[70] Ms. Werner also cross-appeals, asking this Court to order an enforcement of its decision in various ways. As a general proposition, the court cannot confer powers on maintenance enforcement authorities that they do not have by legislation. Ms. Werner may wish to seek advice on enforcement of the order outside Canada.
Conclusion:
[71] Although the trial judge was very critical of Mr. Werner and used strong language in his condemnation of Mr. Werner’s character and conduct, he made no palpable and overriding errors in doing so. Nor did he err in law. I would dismiss the appeal and cross-appeal except that I would vary the $125,000 lump sum for spousal support and property division as indicated above. I would also vary the terms of psychiatric assessment of Mr. Werner also as indicated above, on the understanding that the IWK Children’s Hospital no longer performs them. The
trial judge awarded Ms. Werner $10,000 in costs. She was successful on the appeal, but unsuccessful on her cross-appeal. I would award her $3,500.
Bryson, J.A.
Concurred in:
Oland, J.A.
Fichaud, J.A.
NOVA SCOTIA COURT OF APPEAL
Citation: Werner v. Werner, 2013 NSCA 6
Date: 20130108
Docket: CA 389565
Registry: Halifax
Between:
Thomas Rolf Werner
Appellant
v.
Yvonne Werner
Respondent
Revised Judgment: The text of the original judgment has been corrected according to this Erratum dated January 16, 2013.
Judges: Oland, Fichaud and Bryson, JJ.A.
Appeal Heard: November 27, 2012, in Halifax, Nova Scotia
Held: Appeal and cross-appeal are dismissed, per reasons for judgment of Bryson, J.A.; Oland and Fichaud, JJ.A. concurring.
Counsel: Kenzie MacKinnon, for the appellant
Respondent, in person
Erratum:
[72] Page 2, paragraph 5, third sentence where it reads “Ms. Werner was then working in Switzerland as a software programmer”, it should read “Ms. Werner was then working in Switzerland as a software consultant”.
[73] Page 15, paragraph 52(a), where it reads, “she lost a valuable job as a software programmer”, it should read “she lost a valuable job as a software consultant”.
Bryson, J.A.
Concurred in:
Oland, J.A.
Fichaud, J.A.