Breed v. Breed, 2016 NSSC 42

• Judge: Beaton, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: November 05, 2015
• Jurisdiction: Nova Scotia
• Citations: 2016 NSSC 42;(2016), 371 N.S.R.(2d) 207 (SC)

Breed v. Breed (2016), 371 N.S.R.(2d) 207 (SC);

    1169 A.P.R. 207

MLB headnote and full text

Temp. Cite: [2016] N.S.R.(2d) TBEd. MR.038

Caryn Grace Breed (petitioner/respondent) v. Perley Stephen Breed (respondent/applicant)

(SCHD No. 1201-064992; 2016 NSSC 42)

Indexed As: Breed v. Breed

Nova Scotia Supreme Court

Family Division

Beaton, J.

March 22, 2016.

Summary:

A wife petitioned for divorce in 2010. A 2012 Partial Agreement and Minutes of Settlement was adopted in a 2013 Corollary Relief Order (CRO), and provided that the wife was to have exclusive use and occupation of the parties' farm property, and that the husband was to pay spousal support of $24,800/month. This sum recognized the costs associated with the wife's occupation and maintenance of the farm property pending its sale, and the fact that she had no independent source of funds to contribute to her own support. The husband was also required to make certain third party payments, such as farm property taxes. The husband applied for a variation order, seeking a reduction in spousal support.

The Nova Scotia Supreme Court, Family Division, allowed the application.

Family Law - Topic 2383

Maintenance of spouses and children - Variation of - Jurisdiction - [See Family Law - Topic 4018 ].

Family Law - Topic 2384

Maintenance of spouses and children - Variation of - Grounds (incl. changed circumstances) - A wife petitioned for divorce in 2010 - A 2012 Partial Agreement and Minutes of Settlement was adopted in a 2013 Corollary Relief Order (CRO), and provided that the wife was to have exclusive use and occupation of the parties' farm property, and that the husband was to pay spousal support of $24,800/month - This sum recognized the costs associated with the wife's occupation and maintenance of the farm property pending its sale, and the fact that she had no independent source of funds to contribute to her own support - The husband applied to reduce spousal support, arguing that a material change in circumstances arose from the wife's lack of efforts to achieve self-sufficiency - The Nova Scotia Supreme Court, Family Division, allowed the application - While the wife had worked during the marriage, she was not working at the date of the CRO, and post-divorce had not made any attempt at training, education or employment - The divorce left the wife with an unequal division of assets in her favour, a plan for raising further capital through the farm, sizeable monthly support to enable the farm to continue until that time, and an agreement on her part to pursue some measure of self-sufficiency - Her complete lack of action or effort could not have been contemplated when the Minutes were signed - See paragraphs 39 to 55.

Family Law - Topic 2384

Maintenance of spouses and children - Variation of - Grounds (incl. changed circumstances) - A wife petitioned for divorce in 2010 - A 2012 Partial Agreement and Minutes of Settlement was adopted in a 2013 Corollary Relief Order (CRO), and provided that the wife was to have exclusive use and occupation of the parties' farm property, and that the husband was to pay spousal support of $24,800/month - This sum recognized the costs associated with the wife's occupation and maintenance of the farm property pending its sale, and the fact that she had no independent source of funds to contribute to her own support - The husband applied to reduce spousal support, arguing that a material change in circumstances arose from the fact that the wife had significantly diminished the value of the farm asset - The Nova Scotia Supreme Court, Family Division, allowed the application - There had been a shocking decline in the state of the farm since 2013 - The wife provided no logical or reasonable explanation for the instructions given and destructive actions taken by herself or on her behalf - The unforeseen depletion of a core asset, brought about by the wife's unilateral actions, could not reasonably have been contemplated by the husband at the time the CRO was issued - See paragraphs 56 to 66.

Family Law - Topic 2384

Maintenance of spouses and children - Variation of - Grounds (incl. changed circumstances) - A wife petitioned for divorce in 2010 - A 2012 Partial Agreement and Minutes of Settlement was adopted in a 2013 Corollary Relief Order (CRO), and provided that the wife was to have exclusive use and occupation of the parties' farm property, and that the husband was to pay spousal support of $24,800/month - This sum recognized the costs associated with the wife's occupation and maintenance of the farm property pending its sale, and the fact that she had no independent source of funds to contribute to her own support - The husband applied to reduce spousal support, arguing that a material change in circumstances arose from the fact that the wife had failed to continue to market the farm for sale as required by the Minutes - The Nova Scotia Supreme Court, Family Division, allowed the application - The Minutes contemplated the wife's cooperation to achieve a sale of the farm, following which spousal support would be reviewable - The wife refused to cooperate with the realtor or do anything that would allow marketing to happen - Her failure to list the farm could not have been contemplated when the CRO was issued - See paragraphs 67 to 72.

Family Law - Topic 3997

Divorce - Corollary relief - General - Economic self-sufficiency - [See first Family Law - Topic 2384 ].

Family Law - Topic 4017

Divorce - Corollary relief - Maintenance and awards - Awards - Variation of periodic payments or lump sum award - [See all Family Law - Topic 2384 ].

Family Law - Topic 4017

Divorce - Corollary relief - Maintenance and awards - Awards - Variation of periodic payments or lump sum award - A wife petitioned for divorce in 2010 - A 2012 Partial Agreement and Minutes of Settlement was adopted in a 2013 Corollary Relief Order (CRO), and provided that the wife was to have exclusive use and occupation of the parties' farm property, and that the husband was required to pay spousal support of $24,800/month - This sum recognized the costs associated with the wife's occupation and maintenance of the farm property pending its sale, and the fact that she had no independent source of funds to contribute to her own support - The husband applied to vary the amount of spousal support payable - The Nova Scotia Supreme Court, Family Division, allowed the application - A material change in circumstances arose from the fact that the wife (1) failed to make any efforts at self-sufficiency; (2) significantly diminished the value of the farm asset; and (3) failed to continue to market the farm for sale as required by the Minutes - The court rejected the wife's argument that it should increase spousal support to prevent the "ongoing slide" in her financial situation - There was no basis upon which to order an increase in spousal support - See paragraphs 81 to 88.

Family Law - Topic 4017

Divorce - Corollary relief - Maintenance and awards - Awards - Variation of periodic payments or lump sum award - A wife petitioned for divorce in 2010 - A 2012 Partial Agreement and Minutes of Settlement was adopted in a 2013 Corollary Relief Order (CRO), and provided that the wife was to have exclusive use and occupation of the parties' farm property, and that the husband was required to pay spousal support of $24,800/month - This sum recognized the costs associated with the wife's occupation and maintenance of the farm property pending its sale, and the fact that she had no independent source of funds to contribute to her own support - The husband applied to reduce spousal support - The Nova Scotia Supreme Court, Family Division, allowed the application - A material change in circumstances arose from the fact that the wife (1) failed to make any efforts at self-sufficiency; (2) significantly diminished the value of the farm asset; and (3) failed to continue to market the farm for sale as required by the Minutes - The quantum of support should be reduced because (1) the wife's expenses had been reduced (for example, labour wages and electricity); (2) the asset designed to assist with her future financial security had been devalued; and (3) she chose not to strive for any degree of self-sufficiency - It was no longer appropriate to tie the sale of the farm to the quantum of support - Reducing support to $15,000/month was an appropriate response to the change in circumstances - See paragraphs 89 to 98.

Family Law - Topic 4018

Divorce - Corollary relief - Maintenance awards - Variation of - Jurisdiction - A wife petitioned for divorce - A 2012 Partial Agreement and Minutes of Settlement was adopted in a 2013 Corollary Relief Order (CRO), and required the husband to pay spousal support of $24,800/month - The husband applied to reduce spousal support because, inter alia, the wife failed to continue to market their farm property for sale as required by the Minutes - The wife argued that the court did not have jurisdiction to hear the application because matters pertaining to the farm were required by the Minutes to be put to binding arbitration - The Nova Scotia Supreme Court, Family Division, rejected the wife's argument - The court's jurisdiction came from three sources - First, a 2014 variation order clearly permitted future variations of the CRO on the issue of spousal support, regardless of the timing of the future variation relative to any other orders made - Second, the Minutes were replete with statements recognizing the capacity of the parties to review the quantum of spousal support and/or conduct a review pursuant to the Divorce Act - Third, there was nothing about the circumstances of this case that displaced the court's authority to consider the variation application as found in s. 17 of the Divorce Act - See paragraphs 16 to 28.

Family Law - Topic 4021.5

Divorce - Corollary relief - Maintenance awards - Awards - Support guidelines - A husband successfully applied to reduce the amount of spousal support that he was required to pay pursuant to a Corollary Relief Order (CRO) - Although the Spousal Support Advisory Guidelines (SSAG) were not applied in the CRO, the wife argued that they should be applied in the variation application - The Nova Scotia Supreme Court, Family Division, rejected this argument, stating "In my view there is no obligation on the Court to now utilize the SSAG in this variation decision, when it was not previously applied in this case, merely because the tool exists ... There are many unique features of this case that in my view make the use of the SSAG unhelpful ... The unique features here include the amount of the payor's annual income, the prior agreement of the parties, and the lack of reliable evidence as to the payee's current expenses, which goes in hand with a lack of opportunity to objectively assess her standard of living. [The wife] should not automatically now be entitled to achieve a higher amount of support ... simply on the basis that by applying the SSAG she could achieve a higher quantum, particularly when it would be most difficult to do anything other than 'guess' at what income might properly be imputed to her." - See paragraphs 77 to 80.

Cases Noticed:

L.M.P. v. L.S. (2011), 424 N.R. 341; 2011 SCC 64, refd to. [para. 27].

R.P. v. R.C., [2011] 3 S.C.R. 819; 425 N.R. 1; 2011 SCC 65, refd to. [para. 29].

Rondeau v. Rondeau (2011), 299 N.S.R.(2d) 244; 947 A.P.R. 244; 2011 NSCA 5, refd to. [para. 30].

Daigle v. Daigle, [2013] N.S.R.(2d) Uned. 150; 2013 NSSC 205, refd to. [para. 31].

Black v. Black (2015), 441 N.B.R.(2d) 257; 1152 A.P.R. 257; 2015 NBCA 63, refd to. [para. 32].

Dedes v. Dedes (2015), 372 B.C.A.C. 70; 640 W.A.C. 70; 2015 BCCA 194, refd to. [para. 33].

Baker-Warren v. Denault (2009), 277 N.S.R.(2d) 271; 882 A.P.R. 271; 2009 NSSC 59, refd to. [para. 35].

Strecko v. Strecko (2014), 347 N.S.R.(2d) 61; 1098 A.P.R. 61; 2014 NSCA 66, refd to. [para. 39].

Bethune v. Bethune (2015), 357 N.S.R.(2d) 316; 1127 A.P.R. 316; 2015 NSSC 95, dist. [para. 40].

Chutter v. Chutter et al. (2008), 263 B.C.A.C. 109; 443 W.A.C. 109; 2008 BCCA 507, refd to. [para. 42].

Moge v. Moge, [1992] 3 S.C.R. 813; 145 N.R. 1; 81 Man.R.(2d) 161; 30 W.A.C. 161, refd to. [para. 42].

Fisher v. Fisher (2008), 232 O.A.C. 213; 2008 ONCA 11, refd to. [para. 42].

Leskun v. Leskun (2006), 349 N.R. 158; 226 B.C.A.C. 1; 373 W.A.C. 1; 2006 SCC 25, refd to. [para. 52].

Allaire v. Allaire (2003), 170 O.A.C. 72 (C.A.), refd to. [para. 52].

Gray v. Gray (2014), 325 O.A.C. 117; 2014 ONCA 659, refd to. [para. 75].

Fermin v. Yang, [2009] N.S.R.(2d) Uned. 130; 2009 NSSC 222 (Fam. Div.), refd to. [para. 105].

Higgins v. Bourgeois Higgins, [2015] N.S.R.(2d) Uned. 199; 2015 NSSC 293, refd to. [para. 105].

Counsel:

Yvonne LaHaye, Q.C., and Deborah Gillis, Q.C., for the applicant, Perley Stephen Breed;

Christopher Robinson, for the respondent, Caryn Grace Breed.

This application was heard in Halifax, N.S., on July 20-24, September 18, and November 5, 2015, before Beaton, J., of the Nova Scotia Supreme Court, Family Division, who delivered the following judgment on March 22, 2016.