Snook v. Snook

Date: 20100920 Docket: 09/117 Citation: Snook v. Snook, 2010 NLCA 57 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: ALLAN H. SNOOK APPELLANT AND: SHERRY LYNN SNOOK RESPONDENT Coram: Wells, Welsh and Barry, JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Family Division 200202U11733 Appeal Heard: June 9, 2010 Judgment Rendered: September 20, 2010 Reasons for Judgment by Welsh, J.A. Concurred in by Wells and Barry, JJ.A Counsel for the Appellant: Donald MacBeath, Q.C. Counsel for the Respondent: Stephanie Newell, Q.C. Page: 2 Welsh, J.A.: [1] As a result of the dissolution of the parties’ marriage, the trial judge made orders regarding the division of property and payment of spousal support. Mr. Snook appeals the order awarding Ms. Snook a thirty-three percent interest in his fishing enterprise together with spousal support of $2,000 per month based on an imputed annual income of $50,000. BACKGROUND [2] The parties were married on June 17, 1978 and separated on January 5, 2002. A succinct summary of relevant facts for purposes of this appeal is found in the trial judge’s decision ((2007), 272 Nfld. & P.E.I.R. 106): [3] [Ms. Snook] has a Grade 11 education. She [was] 42 years of age [at the time of separation]. Sherry Lynn Snook states she has health concerns which existed during the marriage and which, she indicates, have not improved since separation. These include eye problems necessitating eye surgery, sarcoidosis (which she contracted after the birth of her second child). As a result of these health concerns, [Ms. Snook] takes the position she has been unable to maintain gainful employment since separation. Her previous work history included working for a short period of time in 1998 babysitting at $85 per week. In the years 2000 and 2001 Sherry Lynn Snook was placed on the crew list for a boat owned by [Mr. Snook] and received income of approximately $11,000 per year, as well as, employment insurance benefits, the eligibility of which arose out of the foregoing employment. Her duties as crew member included paying bills, doing some banking chores and purchasing groceries for the crew. [Mr. Snook] points out in his post-trial brief [Ms. Snook] indicated she had been looking for work and was open to retraining, possibly in the use of computers. All agree her only source of income at the present time is interim spousal support. [4] [Mr. Snook] has a Grade 8 education. He commenced fishing in 1977 at the age of 16. In 1983, subsequent to the marriage, he returned to school and obtained a Class II Fishing Master’s Ticket. In 1998 he acquired his own vessel and the last payment owing in respect of same was due in October, 2002. [Mr. Snook] acknowledges the parties enjoyed an ‘”excellent” lifestyle during the marriage. He argues, however, in 2001 the Department of Fisheries and Oceans changed the structure of the fishing industry to an individual quota system, thereby limiting the amount of codfish he was permitted to catch. As a result, he states his gross revenue decreased. [Mr. Snook] indicates, in recent years, he has developed a heart condition. It is his position this condition limits where he can fish to the inshore fishery. He submits it would be dangerous for him to fish offshore as were there to be a crisis he would be unable to expeditiously access the requisite healthcare. Page: 3 [3] The trial judge, after determining that the fishing enterprise is a business asset, awarded Ms. Snook a thirty-three percent interest, explaining: [70] Having considered the nature of the contribution of Sherry Snook to the fishing enterprise being the subject matter of this dispute and the case law as set out in the decision, I conclude [Ms. Snook] is entitled to a 33 percent share in the enterprise. In not awarding a 50 percent interest to her I am recognizing the additional effort brought to bear by [Mr. Snook] in successfully operating not only this fishing enterprise but all of his fishing ventures since 1977. The thirty-three percent interest was valued at $115,000. [4] With respect to spousal support, the trial judge, imputing an annual income of $50,000 to Mr. Snook, explained: [109] … I view $50,000 per year as the lowest gross income which [Mr. Snook] will generate based on his income record and his overall successes with fishing enterprises. Recognizing the particular circumstances of [Ms. Snook] and her very serious medical conditions, I order [Mr. Snook] [to] pay to her periodic spousal support in the sum of $2,000 per month. … ISSUES [5] At issue in this appeal is whether the trial judge erred: (1) In awarding Ms. Snook a thirty-three percent interest in the fishing enterprise; and (2) In ordering Mr. Snook to pay spousal support in the amount of $2,000 per month for an indefinite period. The award of a lump sum payment in addition to monthly spousal support, an order that Mr. Snook transfer $5,000 of his Registered Retirement Savings funds to Ms. Snook in compensation for her interest in funds withdrawn without her consent, and a directive regarding life insurance are also addressed. ANALYSIS The Fishing Enterprise [6] The Family Law Act, RSNL 1990, c. F-2, governs for the purpose of determining whether the trial judge erred in awarding Ms. Snook an interest Page: 4 in the fishing enterprise. Section 5 states the purpose of the Act, section 18 defines “business asset”, and section 29 directs the circumstances in which the court may award an interest in a business asset to a spouse claiming to have contributed to it: 5. The purpose of Parts I and II is to reform the law with respect to matrimonial property in order to (a) recognize the contribution made by each spouse to a marriage; … (d) provide for judicial discretion in sharing business assets built up by a spouse during a marriage. … 18. In this Part (a) “business assets” means property primarily used or held for or in connection with a commercial, business, investment or other income or profit producing purpose; … 29. Where one spouse has contributed work, money or money’s worth in respect of the acquisition, management, maintenance, operation or improvement of a business asset of the other spouse, the contributing spouse may apply to the court and the court shall by order (a) direct the other spouse to pay an amount that the court orders to compensate the contributing spouse; or (b) award a share of the interest of the other spouse in the business asset to the contributing spouse in accordance with the contribution, and the court shall determine and assess the contribution without regard to their spousal relationship or the fact that the acts constituting the contribution are those of a reasonable spouse in the circumstances. [7] The trial judge found that the fishing enterprise is a business asset and that Ms. Snook “contributed both directly and indirectly to the establishment and ongoing success of the fishing enterprise” (paragraph 64). Everything connected with the fishing enterprise clearly is a business asset as defined in section 18 of the Act. It is property primarily used for a commercial profit Page: 5 producing purpose. Ms. Snook was not involved in the management or operation of the business. The trial judge did not err in characterizing the fishing enterprise as a business asset. Consequently, it could not be construed to be matrimonial property under the legislation. [8] Mr. Snook submitted that the fishing enterprise is a business asset, but he took the position that section 29 of the Act, which would provide Ms. Snook with either a share in the business or compensation for her contribution, was not engaged because Ms. Snook had not contributed work, money or money’s worth to the acquisition, management, maintenance, operation or improvement of the business asset. This position was rejected by the trial judge. Relying on submissions of Ms. Snook, the trial judge identified, and appears to have relied upon, five factors to support her conclusion that Ms. Snook should be awarded an interest in the fishing enterprise. I will address these in turn. Mortgage on the Matrimonial Home to Secure a Loan [9] A mortgage was placed on the matrimonial home to secure a loan when the fishing enterprise was first established. During the hearing in this Court, Mr. Snook conceded that participation in the mortgage would constitute a contribution by Ms. Snook to the business asset. I agree. A collateral mortgage on a couple’s home to secure a loan for a business operated by one spouse involves an assumption of personal risk by both spouses since, if the business should fail prior to discharge of the mortgage, loss of the home is a potential consequence (Franey v. Franey (1997), 148 Nfld. & P.E.I.R. 181 (NLCA), at paragraphs 40 to 42). The trial judge did not err in considering the collateral mortgage to be a contribution to the business asset in this case. [10] The effect of a contribution of this type will depend on the particular circumstances. One factor that may be considered is the extent to which the matrimonial home was at risk until the mortgage was discharged. For example, in Dobbin v. Dobbin (2009), 284 Nfld. & P.E.I.R. 6 (NLSCTD), LeBlanc J. concluded, at page 21: 5) … The mortgage was paid off subsequently in full after a relatively short period of time and I find that there was little, if any, risk to the ownership of the property as a result of that transaction. Page: 6 [11] However, the extent and nature of all contributions, taken together, should be considered in determining the appropriate order, that is, whether to award a share of an interest in the business (section 29(b) of the Act), or to order payment of an amount to compensate the contributing spouse (section 29(a) of the Act). [12] In this case, the trial judge assessed Ms. Snook’s contribution related to the mortgage on the basis of a mortgage for $38,000. However, on appeal, counsel for Mr. Snook pointed to Ms. Snook’s evidence that approximately $4,000 of this amount was used to clear previous matrimonial debt and that, in fact, the amount of the mortgage monies used to finance the fishing enterprise by purchasing a groundfish licence was approximately $34,000. The effect of the mortgage in determining an appropriate order under section 29 is discussed below following assessment of what, if any, additional contributions were made to the business asset by Ms. Snook. Use of Registered Retirement Savings Plan Funds [13] The trial judge concluded that money from a Registered Retirement Savings Plan had been provided to the business. She wrote: [66] … Added to this [mortgage on the matrimonial home] is the de-registering of $40,000 RRSP funds for purposes of cash infusion into the acquisition of business assets. [14] This was an error of fact which apparently arose from Mr. Snook’s evidence that, to obtain the funds to buy the groundfish licence, he proposed either to obtain a loan, which is the course he followed, or to use Registered Retirement Savings Plan funds, which he did not do. Ms. Snook could not point to any evidence supporting a contrary conclusion. It follows that the trial judge erred in considering an infusion of funds of $40,000 from a Registered Retirement Savings Plan. Accelerated Payment of Loan [15] The trial judge appears to have accepted Ms. Snook’s submission that, prior to the couple’s separation, Mr. Snook accelerated payment of the mortgage on the fishing vessel M.V. Sarah Marie, paying approximately $175,000 of the original $188,000 principal within three and one-half years, with a resultant loss of income for the family. No further reference is made to this factor in the decision. Page: 7 [16] There is no evidence to support the conclusion that accelerated payments were made. On cross-examination, Mr. Snook testified that the mortgage was amortized over five years and that it was not discharged before that time. When, during cross-examination, it was suggested by counsel for Ms. Snook that this “seems it’s a very rapid pay down rate”, Mr. Snook replied: Well, we made a few dollars in ’98, ’99 and 2000. We had a competitive fishery. So we could afford to pay it down. I’m glad she was paid off when we lost the competitive fishery. Like we were turning over like around $300,000 on cod. We lost the competitive fishery and right now, we got a job to make $30,000 on cod a year. So we wouldn’t be in a very nice position with a $30,000 payment. That’s why she was paid off rapidly. [17] There is no basis on which to conclude that the five year mortgage was discharged other than according to its terms. The trial judge erred to the extent that she accepted Ms. Snook’s submission on this point. Assumption of Child Care and Home Management by Ms. Snook [18] In assessing Ms. Snook’s entitlement to an interest in the fishing enterprise, the trial judge considered what is described as an indirect contribution to the business by assuming primary responsibility for raising the couple’s children. The judge wrote: [68] The Small v. Small [(1987), 85 N.B.R. (2d) 1 (Q.B. Fam. Div.)] case referred to in Parsons [v. Parsons (1992), 127 N.B.R. (2d) 442 (Q.B. Fam. Div.)] not only allowed compensation to a wife for time spent on attending to administrative tasks of the business but also recognized her indirect contribution as primary caregiver to the three children of the marriage with little help from her husband. The Court observes at paragraph 27 of Small “… the wife not only held up her end of the marriage but a considerable portion of his as well. That left him with the opportunity to concentrate on his fishing endeavours – an opportunity which eventually made him relatively well off and successful …”. In the result, the judge awarded Mrs. Small a 40 percent share in the business assets. [69] The foregoing is true in the present case. Sherry Snook not only contributed directly to the business but also assumed primary care of raising her two sons while her husband fished and pursued his business interests. When he returned to school to obtain a Class 2 Fishing Master’s Ticket she continued to run both the household and care for the children, in his absence. I note here that Mr. Snook obtained his mate’s and master’s tickets in 1983 and 1989, long before establishing the fishing enterprise in 1997 and 1998. Page: 8 [19] In assessing entitlement to an interest in the fishing enterprise, the trial judge erred when she considered Ms. Snook’s contribution to child care and household management. This error arose from her reliance on the decisions of the New Brunswick family court in Parsons and Small. [20] Language substantially the same as section 29 of the Newfoundland and Labrador Family Law Act was considered by the Supreme Court of Canada in Leatherdale v. Leatherdale, [1982] 2 S.C.R. 743. The relevant legislation in Leatherdale is set out at pages 747 to 748 of the decision: 8. Where one spouse or former spouse has contributed work, money or money’s worth in respect of the acquisition, management, maintenance, operation or improvement of property, other than family assets, in which the other has or had an interest, upon application, the court may by order, (a) direct the payment of an amount in compensation therefor; or (b) award a share of the interest of the other spouse or former spouse in the property appropriate to the contribution, and the court shall determine and assess the contribution without regard to the relationship of husband and wife or the fact that the acts constituting the contribution are those of a reasonable spouse of that sex in the circumstances. [21] Laskin C.J.C. rejected the proposition that child care and household management constituted a relevant factor under this provision. Speaking for the majority, at page 752, he accepted the view expressed by the Ontario Court of Appeal that: … “A wife is not entitled to an award under s. 8 simply because she has been a zealous wife and mother, freeing the husband for the pursuit of great income and assets, which may become non-family [business] assets”. The Chief Justice then concluded, at page 752: I have no difficulty in agreeing with Arnup J.A. on this view of s. 8. It is clear that the trial judge went too far in attributing work in the home to the acquisition of non-family [business] assets under s. 8. … The trial judge was, as stated above, wrong in bringing into account the work of the wife in the home. … [22] This interpretation was applied in this Province in Hart v. Hart (No.2) (1985), 60 Nfld. & P.E.I.R.280 (NLUFC), at paragraphs 23 and 24, and, more recently, in Dobbin, at paragraph 51. (See also: Hiscock v. Hiscock, [1995] N.J. No. 193 (Q.L.) (NLUFC), at paragraph 13; Murphy v. Page: 9 Murphy (No.1) (1989), 77 Nfld. & P.E.I.R. 36 (NLUFC), at paragraphs 37 to 40; and Wedgwood v. Wedgwood (No.2) (1989), 74 Nfld. & P.E.I.R. 181 (NLUFC), at paragraphs 45 and 46.) [23] I would add that this interpretation is consistent with a distinction the Act draws between business assets and matrimonial assets. Section 22 of the Family Law Act provides that a court may make an unequal distribution of matrimonial assets where an equal division would be “grossly unjust or unconscionable”. One factor to be considered in this assessment is “the contributions made by each of the spouses to the welfare of the family, including a contribution made by a spouse in looking after the matrimonial home or caring for the family” (section 22(g)). There is no similar provision that would permit consideration of that factor in the determination of spousal entitlement to an interest in a business asset. [24] The conclusion follows from a proper interpretation of the language of the legislation that the assumption of child care and household management by one spouse is not a factor to be considered in determining whether that spouse is entitled to a share of an interest in a business asset. In the result, the trial judge erred when she took account of this factor in assessing Ms. Snook’s contribution under section 29 of the Act. I would add here that, in appropriate circumstances, a spouse’s primary assumption of child care and household management may be a relevant factor when determining an order for spousal support and, as noted above, in the possible unequal division of matrimonial assets. Direct Contributions to the Fishing Enterprise [25] Ms. Snook submitted that she made direct contributions to the fishing enterprise, in addition to her contribution by way of the mortgage. The trial judge noted that Ms. Snook had been listed as a crew member on Mr. Snook’s boat during 2000 and 2001 when she received approximately $11,000 per year together with consequent employment insurance benefits. The trial judge accepted that her duties as a crew member included paying bills, doing some banking and purchasing groceries for the crew. There is no evidence that she participated in bookkeeping, administration, management or decision making for the enterprise. [26] The trial judge undertook an extensive review of judicial decisions relating to the division of fishing enterprises, and, having stated that each Page: 10 case must be decided on its own facts, summarized her conclusions regarding contributions by a spouse: [44] … The nature of the contributions range from investment of monies at the inception of the business; co-signing on loans to inject operating monies into a business; working physically at the enterprise without fair remuneration and even an acknowledgement that a spouse’s efforts at home may be worthy of consideration where they “enrich the husband’s opportunities to nurture and grow his business”. (emphasis added) [27] The trial judge also quoted from the decision in Zahn v. Zahn (1995), 135 Nfld. & P.E.I.R. 76 (NLUFC), in which Orsborn J., as he then was, wrote: [24] In these circumstances, her contribution is best reflected by the Court’s assessment of the value to the business of her efforts. This assessment takes into account that she was not formally compensated as an employee for her work; at the same time, it is clear that she derived personal benefit from funds that were extracted from the company. (emphasis added) See also: Brenton v. Brenton (1995), 132 Nfld. & P.E.I.R. 91 (NLSCTD), at paragraph 25. [28] I agree with the conclusion flowing from these comments, including those of the trial judge, that, where a spouse has been fairly remunerated as an employee for work done for the business enterprise, that work cannot be said to be a contribution to the business asset as contemplated by section 29 of the Act. In those circumstances, it cannot be said that the spouse has “contributed” work, money or money’s worth. It follows that the trial judge erred when she took into account work for which Ms. Snook received remuneration from the business. Summary – Contribution and Valuation [29] The trial judge erred to the extent that she considered contributions to the fishing enterprise other than Ms. Snook’s participation in the mortgage on the matrimonial home. As a result, her decision to award a thirty-three percent interest in the business must be set aside. However, in the circumstances, I am satisfied that it is unnecessary to return the matter to the Page: 11 trial judge for a reassessment because a determination under section 29 of the Act can be made on the basis of the information before this Court. [30] The mortgage, the sole basis of Ms. Snook’s contribution, was not discharged until the house was sold in October 2005, during the time of trial. The outstanding balance on the mortgage at that time was approximately $8,000. Until the mortgage was discharged, there was some risk, even if minimal, that the house could be lost. [31] The question, then, is whether an order should be made under paragraph (a) or (b) of section 29 of the Act. In making this decision, the extent and nature of Ms. Snook’s contribution must be considered. Generally, where the contribution is small and does not involve participation by the spouse in the management or operation of the business, an award of compensation under paragraph (a) would be appropriate. (See, for example: Dobbin v. Dobbin, supra, at paragraph 69; Gosse v. Sorensen-Gosse (2009), 292 Nfld. & P.E.I.R. 322 (NLUFC), at paragraph 71.) [32] In the circumstances of this case, the objective of the Act is best satisfied with an order under section 29(a) of the Act, payment of an amount to compensate Ms. Snook for her contribution to the fishing enterprise. Mr. Snook acknowledged that, given the particular facts of this case, an amount in the range of one-tenth of the value of the fishing enterprise may be appropriate. While determining a proper award is an imprecise exercise, taking into account the size of the mortgage and the minimal but continuing risk to the matrimonial home until the house was sold approximately eight years later, I would order payment of $30,000 to compensate Ms. Snook for her contribution to acquisition of the fishing enterprise. Spousal Support [33] Mr. Snook has conceded Ms. Snook’s entitlement to spousal support. However, he submitted that the trial judge erred in ordering support of $2,000 per month for an indefinite period. I begin by reiterating that a trial judge’s decision regarding spousal support will be given significant deference by this Court. In Hickey v. Hickey, [1999] 2 S.C.R. 518, at paragraphs 10 to 12, L’Heureux-Dubé J., for the Court, emphasized the advantageous position of the trial judge hearing the evidence and the value of promoting finality in family law matters. Pointing out that the role of the appeal court is not to reassess and re-weigh the evidence, she summarized: Page: 12 [11] Our Court has often emphasized the rule that appeal courts should not overturn support orders unless the reasons disclose an error in principle, a significant misapprehension of the evidence, or unless the award is clearly wrong. … [34] In her decision in the case before this Court, the trial judge set out the relevant portions of section 15.2 of the Divorce Act, RSC 1985, c. 3 (2nd supp.). Subsection (4) requires the court to consider the means, needs and other circumstances of both spouses. The provision makes specific reference to the length of time of cohabitation, functions performed by the spouses during that time, and any agreement or order relating to spousal support. Subsection (5) states: … the court shall not take into consideration any misconduct of a spouse in relation to the marriage. Subsection (6) states the objectives of a spousal support order: An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should (a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; (c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. [35] The trial judge made determinations regarding Ms. Snook’s means and needs, concluding that Ms. Snook, who is in her forties, has limited education and employment experience since, during the marriage, she had primary responsibility for the care and raising of the children and for management of the household. Since breakdown of the marriage, she has had sporadic employment earning minimal income. She has a health condition which results in breathing difficulties and carries a potential that she will become legally blind in the future. The trial judge concluded that Ms. Snook’s “very limited education” “combined with her proven health Page: 13 conditions does not bode well in terms of her employment future” (paragraph 80). In summary, the judge wrote: [104] [Ms. Snook], on the other hand, has attempted to find employment and reduce her financial dependency upon [Mr. Snook]. Her testimony satisfies me that the years since separation have been extremely difficult. [Ms. Snook] called medical evidence which would indicate she will remain in a precarious position insofar as her future employment is concerned. She requires increased financial security and will have needs that may escalate her personal expenses beyond what is usual. I agree with the argument she is entitled to spousal support both on compensatory and non-compensatory grounds. I can see no situation where this support should be time limited and any order must go forward indefinitely. Ms. Snook requested spousal support of $2,500 per month which the trial judge considered to be reasonable. [36] The trial judge also considered Mr. Snook’s evidence and submissions regarding his ability to generate income for purposes of paying spousal support. She wrote: [102] … [Mr. Snook] testified he will be unable to generate income comparable to that set out in his returns for the years 1989 to 2000, inclusive, for two reasons. The first, relates to what he argues is a downturn in the fishing industry and the second, to his health status. I have some concerns with the credibility of Allan Snook. A review of his income profile illustrates the decline in income reported commenced in the year 2001 ($22,633) and continued into the year 2002 ($18,042). The evidence establishes in the year 2001 the parties separated for a number of months then attempted a reconciliation. In January of 2002 they separated for a final time. In 2003 Allan Snook’s income increases to approximately $40,000. Since that time he has borrowed sufficient funds to buy the Hodder fishing enterprise for the sum of $150,000. His purchase signals a belief that he will be able to earn a living in the inshore fishery. Coincidental with these occurrences is his transfer of the fishing enterprise M.V. Sarah Marie to his son by way of leasehold arrangement, without consideration. The evidence before the Court is the enterprise continues to flourish and on the testimony of [Mr. Snook] is generating income for Paul Snook between $40,000 and $50,000 annually. Allan Snook maintains control of the company, Sarah Marie Inc. and monies flow back through that company as evidenced by the unaudited statements in the calendar year 2005. The company continues to generate impressive revenue off the fishery. The foregoing raises the inference [Mr. Snook] is able to garner a reasonable livelihood, not too dissimilar to that enjoyed by him throughout the 90’s, despite his personal statements to the contrary. [37] Regarding Mr. Snook’s health concerns, the trial judge concluded: Page: 14 [107] [Mr. Snook] argues his health precludes him from participation in an offshore fishery. His family physician, Dr. Beckley, concurred based, in part, on Allan H. Snook’s expression of concern in working offshore. No opinion was obtained from heart specialist, Dr. Stone, on this point. I am not satisfied [Mr. Snook] has, on a balance of probability, established his health is so precarious so as to preclude participation offshore. Even if this is so the income to be generated by him from his acquisition of the Hodder enterprise remains yet to be determined. If the inshore fishery provides a lesser income, than his historical income, he still maintains control over all monies which flow through Sarah Marie Inc. Should the latter enterprise continue to prosper, as the evidence suggests it is doing, [Mr. Snook] will be able to supplement his lower gross income from the inshore fishery with monies arising out of the profitability of Sarah Marie Inc. [38] Mr. Snook submitted that the trial judge erred in making these factual findings and inferences. However, he has failed to establish a basis for this submission. The trial judge gave reasons for why she was not persuaded by Mr. Snook’s explanations. Factual findings and inferences of this nature are within the realm and expertise of the trial judge and will only be interfered with in the limited circumstances referenced in Hickey. [39] Mr. Snook also submitted that the trial judge erred by considering his conduct because section 15.2(5) stipulates that “the court shall not take into consideration any misconduct of a spouse in relation to the marriage”. However, the trial judge’s comments regarding Mr. Snook’s conduct must be read in context. She wrote: [103] Of further concern is the manner in which Allan H. Snook has approached the breakup of his marriage. His behaviours suggest an individual who does not really believe his wife ought to have a share of anything. From the outset he maintained personal control over all of the matrimonial assets including the matrimonial home. He did not provide his estranged spouse with any reasonable level of income and was eventually required to pay an amount of modest significance after Sherry Snook applied for interim support. Not only did [Mr. Snook] keep all of the assets, he commenced disposing of them. Subsequent to separation, he de-registered $10,000 of the couple’s Registered Retirement Savings Plan funds; he sold 19-21 Logwoood Road; and knowing he was faced with legal action he leased the vessel and fishing licenses of Sarah Marie Inc. to his son. All of the foregoing he did without the knowledge and consent of his wife. [40] A reading of the decision leads to the conclusion that the trial judge directed her comments regarding Mr. Snook’s conduct to his manner of dealing with the couple’s property and his failure to ensure that Ms. Snook Page: 15 had adequate income after the separation. The comments were made in the context of assessing Mr. Snook’s credibility when determining his ability to provide spousal support. The trial judge did not address her comments to his conduct “in relation to the marriage”. [41] Mr. Snook has not provided any basis on which to conclude that the trial judge erred in ordering that he pay spousal support in the amount of $2,000 per month indefinitely. Other Issues Retroactive Lump Sum Award [42] At the hearing in this Court, Mr. Snook conceded that, if the order for payment of spousal support of $2,000 per month is upheld, he would not challenge the lump sum payment of $15,000 in retroactive support to be paid either in cash or by transfer of Registered Retirement Savings Plan funds. Mr. Snook’s Withdrawal of Registered Retirement Savings Plan Funds [43] The trial judge also ordered Mr. Snook to compensate Ms. Snook for her share of the $10,000 he withdrew from a Registered Retirement Savings Plan. The judge wrote: [59] … At separation the couple also held a further $10,000 in their Registered Retirement Savings Plan. Allan Snook withdrew this sum. It is his evidence he used the monies to contribute to the educational needs of his son, Wade Snook. [Mr. Snook] did not offer evidence in proof of this contention. Even had he done so, it cannot be said he had a right to dispose of Sherry Snook’s one-half interest in the $10,000, without her consent. Accordingly, Allan Snook must transfer an additional $5,000 of his Registered Retirement Savings funds to Sherry Snook in compensation for her interest in the foregoing sum. [44] There is no basis on which to conclude that the trial judge erred in making this order. Direction Regarding Life Insurance [45] At the conclusion of her discussion regarding spousal support, the trial judge stated: [119] [Mr. Snook] is directed to seek out term life insurance information in an amount of $300,000 or less and the premiums required to be paid to place such insurance and to provide the said information to [Ms. Snook]. If the parties can Page: 16 agree and the amounts are reasonable then such a policy will be put in place to the benefit of [Ms. Snook] on [Mr. Snook’s] life. [120] Should [Mr. Snook] not be able to take out the aforementioned insurance then the parties are given leave to apply, further, in respect to arguing some arrangement ought to be put in place to secure [Ms. Snook’s] ongoing periodic support, now and into the future. [46] As the trial judge noted, this directive is intended as a means to secure continuing financial support for Ms. Snook following dissolution of a marriage in which her contribution to the marriage has negatively affected her ability at this stage to achieve financial independence. There is no basis on which to interfere with the directive. SUMMARY AND DISPOSITION [47] The trial judge erred to the extent that she considered contributions to the fishing enterprise other than Ms. Snook’s participation in the mortgage on the matrimonial home. As a result, her decision to award a thirty-three percent interest in the business must be set aside. In the circumstances, to compensate Ms. Snook for her contribution to the acquisition of the business asset by means of the mortgage, pursuant to section 29(a) of the Family Law Act, Mr. Snook is ordered to pay to Ms. Snook the amount of $30,000. [48] Mr. Snook has not provided any basis on which to conclude that the trial judge erred in ordering that he pay spousal support in the amount of $2,000 per month indefinitely. [49] Accordingly, the appeal is allowed in part insofar as the award of a thirty-three percent share of Mr. Snook’s interest in the fishing enterprise is set aside and replaced with an order for the payment of compensation in the amount of $30,000. In other respects, the decision of the trial judge is affirmed. [50] Given Mr. Snook’s limited success on appeal, the parties shall bear their own costs of the appeal. There shall be no change to the order as to costs in the Court below. ______________________________ B. G. Welsh, J.A. Page: 17 I Concur: __________________________ C. K. Wells, J.A. I Concur: __________________________ L. D. Barry, J.A.