Burchill v. Savoie, 2008 NSSC 307

• Judge: O'Neil, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: June 18, 2008
• Jurisdiction: Nova Scotia
• Citations: 2008 NSSC 307;(2008), 270 N.S.R.(2d) 134 (SC)

Burchill v. Savoie (2008), 270 N.S.R.(2d) 134 (SC);

    865 A.P.R. 134

MLB headnote and full text

Temp. Cite: [2008] N.S.R.(2d) TBEd. OC.061

David Gordon Burchill (petitioner) v. Isabelle Savoie (respondent)

(1201-061267; 2008 NSSC 307)

Indexed As: Burchill v. Savoie

Nova Scotia Supreme Court

O'Neil, J.

October 22, 2008.

Summary:

When the parties met in British Columbia in 1994, the husband was employed in the high technology industry and the wife, who had a medical degree and a graduate degree in health administration, was employed as a researcher. The parties began cohabiting in 1995, married in 1996, and had two children, born in 1999 and 2001. In 2003, they relocated to Nova Scotia so that the wife could pursue a specialty in radiology. The husband stayed at home with the children. The parties separated in 2005. In December 2006, the husband petitioned for divorce and sought related relief.

The Nova Scotia Supreme Court granted a divorce and determined the related issues.

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance and awards - Retroactive awards - When the parties met in British Columbia in 1994, the husband was employed in the high technology industry and the wife, who had a medical degree and a graduate degree in health administration, was employed as a researcher - The parties began cohabiting in 1995, married in 1996, and had two children, born in 1999 and 2001 - In 2003, they relocated to Nova Scotia so that the wife could pursue a specialty in radiology - The husband stayed at home with the children - The parties separated in 2005 - The husband entered a B.Ed. program in September 2006 - At the same time, the wife became a part-time, rather than full-time, resident - In December 2006, the husband petitioned for divorce and sought spousal support - The wife had made spousal support payments up to September 2006 - The court determined that the husband was entitled to support - An income of $65,000 per year was imputed to the wife - See paragraphs 58 to 68 - At issue was the quantum and duration of periodic spousal support and retroactive support - The Nova Scotia Supreme Court ordered the wife to pay monthly spousal support of $980 for an indefinite period - Although the wife should have assisted the husband after September 2006, a retroactive award would be harsh - The wife was not currently in a position to pay retroactive support - Her failure to pay spousal support after September 2006 became a factor in the court's decision to award lump sum spousal support - If the husband became employed as a teacher, the wife was to pay nominal spousal support of $100 per month - See paragraphs 69 to 82.

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance and awards - Retroactive awards - When the parties met in British Columbia in 1994, the husband was employed in the high technology industry, earning $85,000 annually, and the wife, who had a medical degree and a graduate degree in health administration, was employed as a researcher - The parties began cohabiting in 1995, married in 1996, and had two children, born in 1999 and 2001 - In 2003, they relocated to Nova Scotia so that the wife could pursue a specialty in radiology - The husband stayed at home with the children - The parties separated in 2005 - The husband entered a B.Ed. program in September 2006 - At the same time, the wife became a part-time, rather than full-time, resident - In December 2006, the husband petitioned for divorce and sought ongoing and retroactive child support - An income of $65,000 was imputed to the wife - See paragraphs 58 to 68 - The Nova Scotia Supreme Court ordered the wife to pay the Federal Child Support Guidelines amount of child support ($917 per month) plus retroactive child support to September 2006 when the wife had unilaterally reduced the payments that she had been making - This represented an additional $462 per month for 24 months - The wife had been aware of her obligation, had negotiated a payment schedule and had subsequently changed her payments to reflect her part-time income - Her decision to do so was not justified - The husband sought a timely remedy - The wife would have the resources to meet a retroactive award - However, the court declined to award special or extraordinary expenses on a retroactive basis - See paragraphs 141 to 150.

Family Law - Topic 4010

Divorce - Corollary relief - Maintenance and awards - Awards - Periodic payments - [See first Family Law - Topic 4001.1 ].

Family Law - Topic 4011

Divorce - Corollary relief - Maintenance and awards - Awards - Lump sum - When the parties met in British Columbia in 1994, the husband was employed in the high technology industry, earning $85,000 annually, and the wife, who had a medical degree and a graduate degree in health administration, was employed as a researcher - The parties began cohabiting in 1995, married in 1996, and had two children, born in 1999 and 2001 - In 2003, they relocated to Nova Scotia so that the wife could pursue a specialty in radiology - The husband stayed at home with the children - The parties separated in 2005 - The husband entered a B.Ed. program in September 2006 - At the same time, the wife became a part-time, rather than full-time, resident - In December 2006, the husband petitioned for divorce and sought spousal support - The court determined that the husband was entitled to support - An income of $65,000 per year was imputed to the wife (see paragraphs 58 to 68) and periodic payments were ordered - At issue was whether a lump sum award was appropriate - The Nova Scotia Supreme Court ordered the wife to make a lump sum spousal support payment of $300,000 - Monthly payments could not adequately compensate the husband for the disadvantages he had suffered due to the breakdown of the parties' marriage and the career change that he had made - The husband was heavily in debt and starting over in a lower paying professional career - The court could not ignore the parties' express agreement that the husband would be compensated for his sacrifices - The wife could anticipate a salary of $400,000, while the husband's initial salary, if he became employed as a teacher, would be $43,000 - His income might never exceed 25% of the wife's income once both were fully employed - The amount arrived at ($300,000) reflected an assigned monetary value of $100,000 for each of three groups of considerations related to the parties' circumstances - See paragraphs 83 to 140.

Family Law - Topic 4012

Divorce - Corollary relief - Maintenance and awards - Awards - Lump sum and periodic payments - [See Family Law - Topic 4011 and Family Law - Topic 4021.2 ].

Family Law - Topic 4014

Divorce - Corollary relief - Maintenance and awards - Awards - To children and children defined - [See second Family Law - Topic 4001.1 ].

Family Law - Topic 4021.2

Divorce - Corollary relief - Maintenance and awards - Awards - Considerations - Leaving labour market for family responsibilities - When the parties met in British Columbia in 1994, the husband was employed in the high technology industry, earning $85,000 annually, and the wife, who had a medical degree and a graduate degree in health administration, was employed as a researcher - The parties began cohabiting in 1995, married in 1996, and had two children, born in 1999 and 2001 - In 2003, they relocated to Nova Scotia so that the wife could pursue a specialty in radiology - The husband stayed at home with the children - The parties separated in 2005 - The husband entered a B.Ed. program in September 2006 - At the same time, the wife became a part-time, rather than full-time, resident - In December 2006, the husband petitioned for divorce - At issue was the husband's entitlement to spousal support - The Nova Scotia Supreme Court held that the husband was entitled to spousal support - The husband's sacrifices had substantially enhanced the wife's earning capacity - He left an established career and had been required to start over in a new, lower paying, career - There was a significant disadvantage flowing to him from the marriage - Further, his actions to get retrained were reasonable and pursued with dispatch - The wife was ordered to make both periodic, for an indefinite period, and lump sum spousal support payments with the periodic payments to be recalculated if the husband became employed as a teacher - See paragraphs 34 to 46.

Family Law - Topic 4022.1

Divorce - Corollary relief - Maintenance and awards - Awards - To spouse - Extent of obligation - [See Family Law - Topic 4021.2 ].

Family Law - Topic 4022.2

Divorce - Corollary relief - Maintenance and awards - Awards - To husband - Considerations - [See Family Law - Topic 4021.2 ].

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Calculation or attribution of income - When the parties met in British Columbia in 1994, the husband was employed in the high technology industry and the wife, who had a medical degree and a graduate degree in health administration, was employed as a researcher - The parties began cohabiting in 1995, married in 1996, and had two children, born in 1999 and 2001 - In 2003, they relocated to Nova Scotia so that the wife could pursue a specialty in radiology - The husband stayed at home with the children - The parties separated in 2005 - The husband entered a B.Ed. program in September 2006 - At the same time, the wife became a part-time, rather than full-time, resident - In December 2006, the husband petitioned for divorce and sought spousal support - At issue was the determination of the wife's income - The Nova Scotia Supreme Court imputed an income of $65,000 per year to the wife for support purposes - The wife's decision to become a part-time resident was not reasonable - She was currently capable of full-time employment - She had altered her work schedule principally for strategic reasons related to the legal issues before the court - The figure of $65,000 was arrived at by adding $12,000 locum income to the annual salary ($53,000) for a full-time resident - See paragraphs 58 to 68.

Cases Noticed:

Foley v. Foley (1993), 124 N.S.R.(2d) 198; 345 A.P.R. 198 (S.C.), refd to. [para. 5].

Bracklow v. Bracklow (1999), 236 N.R. 79; 120 B.C.A.C. 211; 196 W.A.C. 211; 1999 CarswellBC 532 (S.C.C.), refd to. [para. 32].

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. 33].

Coadic v. Coadic (2005), 237 N.S.R.(2d) 362; 754 A.P.R. 362 (Fam. Ct.), refd to. [para. 59].

McCarthy v. Workers' Compensation Appeals Tribunal (N.S.) et al. (2001), 193 N.S.R.(2d) 301; 602 A.P.R. 301 (C.A.), refd to. [para. 59].

Montgomery v. Montgomery (2000), 182 N.S.R.(2d) 184; 563 A.P.R. 184; 3 R.F.L.(5th) 126 (C.A.), refd to. [para. 64].

J.A.M. v. D.L.M. (2008), 326 N.B.R.(2d) 111; 838 A.P.R. 111; 2008 CarswellNB 24 (C.A.), refd to. [para. 64].

Crane v. Crane (2008), 262 N.S.R.(2d) 93; 839 A.P.R. 93 (Fam. Ct.), refd to. [para. 64].

J.B.P. v. L.J.S. (2008), 263 N.S.R.(2d) 192; 843 A.P.R. 192 (C.A.), refd to. [para. 89].

Morris v. Morris (1988), 85 N.S.R.(2d) 307; 216 A.P.R. 307 (T.D.), refd to. [para. 92].

Cole v. Cole (1989), 88 N.S.R.(2d) 432; 225 A.P.R. 432 (T.D.), refd to. [para. 96].

Monks v. Monks (1993), 84 Man.R.(2d) 268 (Q.B. Fam. Div.), refd to. [para. 100].

Ormerod v. Ormerod, [1990] O.J. No. 1035 (U.F.C.), refd to. [para. 103].

Babij - see DeFaveri v. Toronto-Dominion Bank et al.

DeFaveri v. Toronto-Dominion Bank et al., [1999] O.A.C. Uned. 80 (C.A.), refd to. [para. 105].

Prince v. Prince (1997), 163 N.S.R.(2d) 28; 487 A.P.R. 28 (C.A.), refd to. [para. 107].

C.L.R. v. A.E.R. (1996), 156 N.S.R.(2d) 232; 461 A.P.R. 232; 27 R.F.L.(4th) 31; 1996 CarswellNS 432 (S.C.), refd to. [para. 108].

Kearst v. Kearst (1986), 1 R.F.L.(3d) 401; 1986 CarswellOnt 257 (Dist. Ct.), refd to. [para. 109].

Fletcher v. Fletcher, [2003] A.R. Uned. 656; 2003 CarswellAlta 1534; 2003 ABQB 890, refd to. [para. 112].

Stefanyk v. Stefanyk (1996), 156 N.S.R.(2d) 161; 461 A.P.R. 161; 1996 CarswellNS 509 (S.C.), refd to. [para. 113].

Stefanyk v. Stefanyk (1994), 128 N.S.R.(2d) 335; 359 A.P.R. 335 (S.C.), refd to. [para. 114].

De Beeld v. De Beeld (1999), 129 B.C.A.C. 101; 210 W.A.C. 101 (C.A.), refd to. [para. 115].

Greenberg v. Daniels (2005), 194 O.A.C. 115 (C.A.), refd to. [para. 117].

Vynnk v. Baisa, [2007] O.T.C. Uned. 123 (Sup. Ct.), refd to. [para. 119].

D.B.S. v. S.R.G. (2006), 351 N.R. 201; 391 A.R. 297; 377 W.A.C. 297 (S.C.C.), refd to. [para. 142].

Conrad v. Rafuse (2002), 205 N.S.R.(2d) 46; 643 A.P.R. 46 (C.A.), refd to. [para. 148].

MacIsaac v. MacIsaac (1996), 150 N.S.R.(2d) 321; 436 A.P.R. 321 (C.A.), refd to. [para. 148].

Authors and Works Noticed:

McLeod, James Gary, and Mamo, Alfred A., Annual Review of Family Law (2007), pp. 332, 333 [para. 56]; 340 [para. 88]; 388 [para. 57].

Counsel:

Kenzie MacKinnon and Mark Dunning (articled clerk), for the petitioner;

B. Lynn Reierson, Q.C., and Leigh Davis for the respondent.

This action was heard at Halifax, Nova Scotia, on March 4-6, May 1 and 5 and June 18, 2008, by O'Neil, J., of the Nova Scotia Supreme Court, who delivered the following judgment on October 22, 2008.