Brandon v. Brandon,

• Jurisdiction: Nova Scotia
• Judge: Jollimore
• Neutral Citation: 2010 NSSC 394
• Citation: 2010 NSSC 394,(2010), 296 N.S.R.(2d) 107 (SC),296 NSR(2d) 107,(2010), 296 NSR(2d) 107 (SC),296 N.S.R.(2d) 107
• Date: 13 October 2010
• Court: Supreme Court of Nova Scotia (Canada)

Brandon v. Brandon (2010), 296 N.S.R.(2d) 107 (SC);

    940 A.P.R. 107

MLB headnote and full text

Temp. Cite: [2010] N.S.R.(2d) TBEd. NO.009

Patricia Angela Brandon (petitioner) v. Gary Keith Brandon (respondent)

(1201-061257; 2010 NSSC 394)

Indexed As: Brandon v. Brandon

Nova Scotia Supreme Court

Family Division

Jollimore, J.S.C.

October 25, 2010.

Summary:

The Brandons separated after twenty-four years of marriage, during which they raised five children. The legal issues on the divorce proceeding were the division of their property, claims for a retroactive variation of child support and for prospective child and spousal support, and claims for costs.

The Nova Scotia Supreme Court, Family Division, granted the wife's request for a divorce and determined the issues.

Family Law - Topic 666

Husband and wife - Marital property - Practice - Consideration of marital property application before divorce maintenance - The Nova Scotia Supreme Court, Family Division, stated that "Where there are multiple issues, they must be approached in a sequence which places them in the appropriate and logical order. If there is a custody issue, this is addressed first because the parenting arrangement may be relevant to the division of assets, pursuant to section 13(h) of the Matrimonial Property Act ... In some cases, a property division may obviate a spousal support claim ... Alternately, the division of property may play a part in increasing or decreasing expenses that are relevant to spousal support. So, the division of property must precede support claims. In dealing with support applications under the Divorce Act ... child support must be addressed before spousal support. Finally, there may be the issue of costs" - See paragraph 3.

Family Law - Topic 880.3

Husband and wife - Marital property - Distribution orders - Exempt acquisitions - Gift, trust, bequest or award - [See second Family Law - Topic 880.47 ].

Family Law - Topic 880.47

Husband and wife - Marital property - Distribution orders - Particular property - Company shares, stock options, etc. - At issue was whether the husband's common shares in an Ontario company, incorporated by the husband's mother, were a matrimonial asset - Two pieces of property (the mother's home and the campground business were located on the property) were transferred to the company; the mother received preferred and common shares - In January 2005, she gave the common shares to the husband - The parties separated in July 2006 - The parties' children were not present on the property; there was no evidence that they visited Ontario during 2005; the wife had not visited since 2003 - The husband was not paid for the work he did for the campground, rather, the company paid his expenses (less than $1,800 per year) - The Nova Scotia Supreme Court, Family Division, held that the shares were not a matrimonial asset - As a gift, the shares and what they represented were not used for the benefit of the parties or their children - The company operated at a net loss in 2005 and 2006 - There was no factual basis for a claim that retained earnings in the company were a matrimonial asset - Payment of the husband's expenses was less than the market value rate of compensation - There was no property owned by the company which would, if owned by the husband, be a matrimonial asset - See paragraphs 17 to 31.

Family Law - Topic 880.47

Husband and wife - Marital property - Distribution orders - Particular property - Company shares, stock options, etc. - The Nova Scotia Supreme Court, Family Division, stated that "Corporate shares receive particular mention in section 4(4) of the Matrimonial Property Act. This section of the Act has the effect of making a spouse's shares in a corporation a matrimonial asset in certain circumstances. The circumstances arise where the corporation owns property that would be a matrimonial asset if the property was owned by the spouse. When this situation arises, then shares in the corporation, which have a market value equal to the value of the benefit the spouse derives from the property, are matrimonial assets" - See paragraph 23.

Family Law - Topic 2487

Maintenance of wives and children - Awards - Nominal or protective - [See Family Law - Topic 4020 ].

Family Law - Topic 4020

Divorce - Corollary relief - Maintenance and awards - Awards - Nominal (incl. protective orders) - The parties had a long marriage - The wife was primarily responsible for raising five children - The wife worked part-time and earned some $18,100 annually - The husband's Department of National Defence pension was to be equally divided in approximately three months - The husband received $37,703.64 from his pension in 2009, and $17,156.91 from his employment in the Naval Reserves - The husband argued that when his pension was divided he would have no ability to pay spousal support and the division would leave the wife with no need - The Nova Scotia Supreme Court, Family Division, ordered the husband to pay spousal support of $1 each year to maintain the wife's entitlement, and imposed disclosure obligations - Equalizing the pension would leave the parties with approximately equal income - However, there was potential for the husband to earn income from a company which he controlled - Until the pension division was effected, the interim spousal support order was to continue - See paragraphs 63 to 69.

Family Law - Topic 4022

Divorce - Corollary relief - Maintenance and awards - Awards - To wife - Considerations - [See Family Law - Topic 4020 ].

Family Law - Topic 4034

Divorce - Corollary relief - Maintenance and awards - Awards - Effect of division of matrimonial property - [See Family Law - Topic 4020 ].

Cases Noticed:

Harwood v. Thomas (1980), 43 N.S.R.(2d) 292; 81 A.P.R. 292 (T.D.), affd. (1981), 45 N.S.R.(2d) 414; 86 A.P.R. 414 (C.A.), refd to. [para. 3].

Morash v. Morash (2004), 221 N.S.R.(2d) 115; 697 A.P.R. 115; 2004 NSCA 20, refd to. [para. 9].

Clarke v. Clarke, [1990] 2 S.C.R. 795; 113 N.R. 321; 101 N.S.R.(2d) 1; 275 A.P.R. 1, refd to. [para. 17].

Curren v. Curren (1987), 81 N.S.R.(2d) 118; 203 A.P.R. 118; 1987 CanLII 131 (T.D.), refd to. [para. 17].

Ryan v. Ryan, [2009] N.S.R.(2d) Uned. 18; 2009 NSSC 61 (Fam. Div.), affd. (2010), 286 N.S.R.(2d) 371; 909 A.P.R. 371; 2010 NSCA 2, dist. [para. 22].

McNulty v. McNulty (1989), 94 N.S.R.(2d) 387; 247 A.P.R. 387 (T.D.), consd. [para. 23].

Osmond v. Osmond (1990), 96 N.S.R.(2d) 19; 253 A.P.R. 19; 1990 CanLII 2405 (C.A.), consd. [para. 24].

Sangster v. Sangster (1990), 100 N.S.R.(2d) 248; 272 A.P.R. 248 (T.D.), refd to. [para. 25].

Green v. Green (1989), 23 R.F.L.(3d) 386 (N.S.T.D.), affd. (1989), 23 R.F.L.(3d) 398 (N.S.C.A.), consd. [para. 27].

Jovcic v. Jovcic, [2005] N.S.R.(2d) Uned. 73; 2005 NSSC 183 (Fam. Div.), refd to. [para. 27].

Simmons v. Simmons (2001), 196 N.S.R.(2d) 140; 613 A.P.R. 140; 2001 CanLII 4617 (Fam. Div.), consd. [para. 35].

Moore v. Moore (2003), 218 N.S.R.(2d) 294; 687 A.P.R. 294; 2003 NSCA 116, refd to. [para. 35].

Reardon v. Smith (1999), 180 N.S.R.(2d) 339; 557 A.P.R. 339; 1999 NSCA 147, refd to. [para. 35].

Bailey v. Bailey (1990), 98 N.S.R.(2d) 9; 263 A.P.R. 9; 1990 CanLII 4116 (T.D.), refd to. [para. 42].

Ellis v. Ellis (1999), 175 N.S.R.(2d) 268; 534 A.P.R. 268; 1999 CanLII 4274 (C.A.), refd to. [para. 42].

Cameron v. Cameron (1995), 144 N.S.R.(2d) 124; 416 A.P.R. 124; 1995 CanLII 4433 (S.C.), affd. (1996), 150 N.S.R.(2d) 156; 436 A.P.R. 156; 1996 CanLII 5598 (C.A.), refd to. [para. 42].

D.B.S. v. S.R.G. (2006), 351 N.R. 201; 391 A.R. 297; 377 W.A.C. 297; 2006 SCC 37, refd to. [para. 58].

T.A.R. v. L.J.W. - see D.B.S. v. S.R.G.

Henry v. Henry - see D.B.S. v. S.R.G.

Hiemstra v. Hiemstra - see D.B.S. v. S.R.G.

Murphy v. Bert, [2008] N.S.R.(2d) Uned. 2; 2007 NSSC 376 (Fam. Ct.), refd to. [para. 60].

Statutes Noticed:

Matrimonial Property Act, R.S.N.S. 1989, c. 275, sect. 4(1) [para. 6]; sect. 4(1)(a) [para. 19]; sect. 4(4) [para. 6]; sect. 13(b) [para. 54].

Counsel:

Deborah I. Conrad, for the petitioner;

Angela Walker, for the respondent.

This proceeding was heard on October 13, 2010, by Jollimore, J.S.C., of the Nova Scotia Supreme Court, Family Division, who delivered the following decision orally on October 25, 2010, with written decision dated October 28, 2010.