Boutilier-Stonehouse v. Stonehouse, 2008 NSSC 74

JudgeForgeron, J.
CourtSupreme Court of Nova Scotia (Canada)
Case DateDecember 03, 2007
JurisdictionNova Scotia
Citations2008 NSSC 74;(2008), 263 N.S.R.(2d) 252 (SC)

Boutilier-Stonehouse v. Stonehouse (2008), 263 N.S.R.(2d) 252 (SC);

    843 A.P.R. 252

MLB headnote and full text

Temp. Cite: [2008] N.S.R.(2d) TBEd. MR.034

Stacy Boutilier-Stonehouse (applicant) v. Mark Stonehouse (respondent)

(1206-5267; 2008 NSSC 74)

Indexed As: Boutilier-Stonehouse v. Stonehouse

Nova Scotia Supreme Court

Family Division

Forgeron, J.

March 6, 2008.

Summary:

After a brief marriage, the parties separated. Most of the assets, including the matrimonial home, were owned by the husband before the marriage. The parties disputed the date of separation, whether disposition costs should be deducted from the value of the matrimonial home, the assets and debts that were subject to division, and whether an unequal division should be granted.

The Nova Scotia Supreme Court, Family Division, determined the issues.

Family Law - Topic 865

Husband and wife - Marital property - Distribution orders - Matrimonial home - The parties separated after a brief marriage - The parties agreed, based on the appraisal, that the market value of the matrimonial home was $182,000, but could not agree whether disposition costs should be deducted from that amount for division purposes - The Nova Scotia Supreme Court, Family Division, cited the leading cases in this area and stated that "there is overwhelming authority that disposition costs should be deducted to establish the equity in a home" - The court agreed with the comments of Goodfellow, J., in Robski v. Robski (N.S.S.C.) that "except in unusual cases, disposition costs should routinely be deducted from the value of a home for division purposes" - The court reduced the value of the home by total disposition costs of $13,018 for sales commission, legal fees and G.S.T. - See paragraphs 10 to 12.

Family Law - Topic 868

Husband and wife - Marital property - Distribution orders - Property subject to distribution - The parties separated after a brief marriage - They "hotly contested" the classification of certain insurance proceeds and certain debts - The matrimonial home and contents were destroyed by fire before separation - The home was owned by the husband before the marriage - The parties agreed that the home and contents purchased from the insurance proceeds were matrimonial property and subject to division - The wife sought to include an additional amount of $7,000 of the insurance proceeds, paid to the husband as compensation for living expenses while the home was being constructed - The husband used $5,000 of the proceeds to repay a family loan for the parties' wedding and the balance of $2,000 for his living expenses - The Nova Scotia Supreme Court, Family Division, held that $2,000 of the $7,000 insurance payment was a matrimonial asset pursuant to s. 4 of the Matrimonial Property Act - The court noted that the wedding costs exceeded $10,000, that the wife did not pay for the wedding, and that the husband paid off more than half of the loan in less than a year - "I accept that the wedding loan was capable of legal enforcement and that it was incurred for the benefit of the parties" - See paragraphs 21 to 24.

Family Law - Topic 868.2

Husband and wife - Marital property - Distribution orders - Debts - The parties separated after a brief marriage - They "hotly contested" the classification of certain insurance proceeds and certain debts - The matrimonial home and contents were destroyed by fire before separation - The home was owned by the husband before the marriage - For division purposes, the parties agreed that the home and contents purchased from the insurance proceeds were matrimonial property - The mortgage balance was $130,500 - The wife sought to exclude that portion of the mortgage, $31,794, which was borrowed to pay the husband's consolidation loans, on the basis that the loans were not matrimonial debts - The Nova Scotia Supreme Court, Family Division, found that the portion of the consolidated loans used to buy the husband's vehicle and the engagement ring were matrimonial debts - They were used for the benefit of the parties - The court also included a proportionate share of the cost of borrowing - The portion of the mortgage subject to division was $112,521 - See paragraphs 25 to 28.

Family Law - Topic 868.2

Husband and wife - Marital property - Distribution orders - Debts - The parties separated in July 2006, after a brief marriage - The parties "hotly contested" the classification of certain insurance proceeds and certain debts - The matrimonial home and contents were destroyed by fire in May 2006 - The husband acquired materials to enlarge the garage for storage while the new home was being constructed - He sought to include the cost of the materials in the amount of $2,195 as a matrimonial debt - The debt was paid off ten days before the date of separation - The Nova Scotia Supreme Court, Family Division, declined to include the expense as a matrimonial debt - See paragraph 30.

Family Law - Topic 868.2

Husband and wife - Marital property - Distribution orders - Debts - The parties separated after a brief marriage - They "hotly contested" whether certain debts were matrimonial debts - The Nova Scotia Supreme Court, Family Division, noted that "Although the term 'matrimonial debt' is not found in the Matrimonial Property Act, case law supports the use of such terminology" - The court further noted that "The party who seeks to include a debt in the equalization schedule bears the burden of proof in two respects. First, the party must show that the debt was incurred for family or matrimonial purposes. Second, the party must show that the debt is capable of legal enforcement ..." - See paragraphs 26 to 27.

Family Law - Topic 872

Husband and wife - Marital property - Distribution orders - Deductions - [See Family Law - Topic 865 ].

Family Law - Topic 875

Husband and wife - Marital property - Distribution orders - Statutes requiring equal division - Exceptions (incl. judicial reapportionment) - [See Family Law - Topic 883 ].

Family Law - Topic 883

Husband and wife - Marital property - Considerations in making distribution orders - Contributions of parties (incl. unequal contributions) - The parties separated, after a marriage of less than one year - The husband owned most of the assets before the marriage - The wife made "minimal contribution to the acquisition and growth of the matrimonial assets" - The home was owned by the husband before the marriage, and he paid the mortgage, taxes and insurance - The husband sought an unequal division of the matrimonial assets and debts - He proposed that there be no equalization payment - The wife sought an equal division - The Nova Scotia Supreme Court, Family Division, ordered an unequal division, and that the husband make an equalization payment of $8,332 to the wife - The court conducted an extensive review of the case law and the evidence, and noted the presumption of an equal division of matrimonial assets under s. 12 of the Matrimonial Property Act - The court was satisfied under s. 13 of the Act, that an equal division would result in unfairness or unconscionability to the husband - "An equal division would result in the redistribution of capital and a financial windfall" to the wife - See paragraphs 36 to 54.

Family Law - Topic 899

Husband and wife - Liability for spouse's debts - Debts incurred by spouse - General - The parties separated after a brief marriage - They "hotly contested" the classification of certain insurance proceeds and certain debts - The husband sought to exclude the wife's Visa balance as a matrimonial debt - The wife submitted no proof of the separation balance, but gave viva voce evidence - The Nova Scotia Supreme Court, Family Division, found that $5,000 of the Visa balance was a matrimonial debt - The court noted that the wife had a low credit limit before the parties cohabited, and that she increased the spending limit after the parties' relationship began, to pay for a trip, incidentals and esthetic services, with the husband's knowledge - See paragraph 32.

Cases Noticed:

Dupere v. Dupere (1974), 9 N.B.R.(2d) 554; 1 A.P.R. 554 (Q.B.), affd. (1974), 10 N.B.R.(2d) 148; 4 A.P.R. 148 (C.A.), refd to. [para. 8].

French v. French (1997), 162 N.S.R.(2d) 104; 485 A.P.R. 104 (S.C.), refd to. [para. 8].

T.H. v. W.H. (2007), 250 N.S.R.(2d) 334; 796 A.P.R. 334 (S.C.), refd to. [para. 8].

J.E.M. v. L.G.M. (2007), 252 N.S.R.(2d) 61; 804 A.P.R. 61 (S.C.), refd to. [para. 8].

Blue v. Blue (2006), 249 N.S.R.(2d) 330; 792 A.P.R. 330 (S.C.), refd to. [para. 8].

Gardner v. Gardner (2005), 232 N.S.R.(2d) 68; 737 A.P.R. 68 (S.C.), refd to. [para. 8].

Gomez-Morales v. Gomez-Morales (1990), 100 N.S.R.(2d) 137; 272 A.P.R. 137 (C.A.), refd to. [para. 11].

Prince v. Prince (1997), 163 N.S.R.(2d) 28; 487 A.P.R. 28 (C.A.), refd to. [para. 11].

Robski v. Robski (1997), 166 N.S.R.(2d) 161; 498 A.P.R. 161 (S.C.), appld. [para. 11].

Jovcic v. Jovcic, [2005] N.S.R.(2d) Uned. 73; 2005 CarswellNS 305 (S.C.), refd to. [para. 26].

Larue v. Larue (2001), 195 N.S.R.(2d) 336; 609 A.P.R. 336 (S.C.), refd to. [para. 26].

Grant v. Grant (2001), 192 N.S.R.(2d) 302; 599 A.P.R. 302 (S.C.), refd to. [para. 26].

Rossiter-Forrest v. Forrest (1994), 129 N.S.R.(2d) 130; 362 A.P.R. 130 (S.C.), refd to. [para. 27].

Walker v. Walker (1990), 92 N.S.R.(2d) 127; 237 A.P.R. 127 (T.D.), refd to. [para. 27].

Abbott v. Abbott (2002), 208 N.S.R.(2d) 79; 652 A.P.R. 79; 2002 CarswellNS 395 (S.C.), refd to. [para. 27].

Harwood v. Thomas (1981), 45 N.S.R.(2d) 414; 86 A.P.R. 414 (C.A.), refd to. [para. 43].

Ritcey v. Ritcey (2002), 206 N.S.R.(2d) 75; 645 A.P.R. 75 (S.C.), refd to. [para. 43].

Jenkins v. Jenkins (1991), 107 N.S.R.(2d) 18; 290 A.P.R. 18 (T.D.), refd to. [para. 43].

Fisher v. Fisher (1994), 131 N.S.R.(2d) 367; 371 A.P.R. 367 (C.A.), refd to. [para. 43].

Jess v. Strong (1998), 169 N.S.R.(2d) 271; 508 A.P.R. 271 (S.C.), refd to. [para. 43].

MacIsaac v. MacIsaac (1996), 150 N.S.R.(2d) 321; 436 A.P.R. 321 (C.A.), refd to. [para. 45].

Goyetche v. Goyetche (2007), 252 N.S.R.(2d) 24; 804 A.P.R. 24 (C.A.), refd to. [para. 46].

Roberts v. Shotton (1997), 156 N.S.R.(2d) 47; 461 A.P.R. 47 (C.A.), refd to. [para. 47].

Gossen v. Gossen (2003), 213 N.S.R.(2d) 217; 667 A.P.R. 217; 2003 CarswellNS 121 (S.C.), refd to. [para. 48].

MacLeod v. MacLeod (1994), 135 N.S.R.(2d) 49; 386 A.P.R. 49 (S.C.), refd to. [para. 49].

Adams v. French, [2007] N.S.R.(2d) Uned. 29; 2007 CarswellNS 97 (S.C.), refd to. [para. 50].

Statutes Noticed:

Matrimonial Property Act, R.S.N.S. 1989, c. 275, sect. 12, sect. 13 [para. 42].

Counsel:

Nash Brogan, for Stacy Boutilier-Stonehouse;

Alan Stanwick, for Mark Stonehouse.

This matter was heard in Sydney, Nova Scotia, on December 3, 2007, February 8 and March 6, 2008, before Forgeron, J., of the Nova Scotia Supreme Court, Family Division, who delivered the following oral decision on March 6, 2008, with written reasons issued on March 25, 2008.

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2 practice notes
  • MacLean v. Cox,
    • Canada
    • Supreme Court of Nova Scotia (Canada)
    • December 5, 2017
    ...two year marriage in Green, (1989), [1990] 23 R.F.L. (3d) 398 (A.D.); the less than 2 year marriage in Boutilier-Stonehouse v. Stonehouse, 2008 NSSC 74; and the approximately 2 year marriage in Zimmer (1989), 90 N.S.R. (2d) 243 (T.D.). [40] In Briggs [1984] W.D.F.L. 1459 (A.D) the Court of ......
  • Papasodaro v. Papasodaro, 2014 ONSC 30
    • Canada
    • Ontario Superior Court of Justice of Ontario (Canada)
    • January 3, 2014
    ...insurance proceeds can form part of a spouse's net family property: Katz v. Katz , 2010 ONSC 158; and Boutilier-Stonehouse v. Stonehouse , 2008 NSSC 74. A person's income per ss. 16 to 20 of the Child Support Guidelines is determined by the "Total income" entry on the spouse's T1 tax return......
2 cases
  • MacLean v. Cox,
    • Canada
    • Supreme Court of Nova Scotia (Canada)
    • December 5, 2017
    ...two year marriage in Green, (1989), [1990] 23 R.F.L. (3d) 398 (A.D.); the less than 2 year marriage in Boutilier-Stonehouse v. Stonehouse, 2008 NSSC 74; and the approximately 2 year marriage in Zimmer (1989), 90 N.S.R. (2d) 243 (T.D.). [40] In Briggs [1984] W.D.F.L. 1459 (A.D) the Court of ......
  • Papasodaro v. Papasodaro, 2014 ONSC 30
    • Canada
    • Ontario Superior Court of Justice of Ontario (Canada)
    • January 3, 2014
    ...insurance proceeds can form part of a spouse's net family property: Katz v. Katz , 2010 ONSC 158; and Boutilier-Stonehouse v. Stonehouse , 2008 NSSC 74. A person's income per ss. 16 to 20 of the Child Support Guidelines is determined by the "Total income" entry on the spouse's T1 tax return......

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