Carmichael v. Carmichael, 2005 NSSC 318

• Judge: Forgeron, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: September 01, 2005
• Jurisdiction: Nova Scotia
• Citations: 2005 NSSC 318;(2005), 238 N.S.R.(2d) 195 (SC)

Carmichael v. Carmichael (2005), 238 N.S.R.(2d) 195 (SC);

    757 A.P.R. 195

MLB headnote and full text

Temp. Cite: [2005] N.S.R.(2d) TBEd. NO.045

Rodney Archibald Carmichael (petitioner) v. Belinda Marie Carmichael (respondent)

(1206-004646; 2005 NSSC 318)

Indexed As: Carmichael v. Carmichael

Nova Scotia Supreme Court

Family Division

Forgeron, J.

November 10, 2005.

Summary:

A husband and wife married in August 1988 and separated in December 1999. The husband remained in the matrimonial home. In an action for divorce commenced in May 2004, the husband sought an unequal division of assets and a denial of the wife's claim for spousal support and occupation rent. The wife sought a retroactive, time limited, spousal support award or occupation rent with an equal division of assets.

The Nova Scotia Supreme Court, Family Division, ordered an equal division of assets, dismissed the wife's claim for spousal support, and ordered the husband to pay occupation rent of $200 per month for 36 months.

Family Law - Topic 627

Husband and wife - Marital property - Matrimonial home - Occupation by one spouse - Claim for occupation rent - A husband and wife separated in December 1999 after 11 years of marriage - There were no children of the marriage - After separation, the husband remained in the mortgage-free matrimonial home - The husband brought an action for divorce in May 2004 - The wife filed an answer in June 2005 - In the event that her request for spousal support was denied, the wife sought occupation rent for the 71 months that had passed since separation - The Nova Scotia Supreme Court, Family Division, ordered the husband to pay occupation rent of $200 per month for 36 months - As there were no children, each spouse had a presumptive equal need for equity in the home - The husband had received full credit for all interest and debt payments he had made since separation - The wife had to pay rent for inferior accommodation post-separation and had to live with her mother for a period - The husband's use of the mortgage-free home was a substantial financial benefit - Improvements that he made were minimal - However, the wife had delayed in seeking redress and the husband had maintained the home, paying taxes, insurance and other maintenance costs - The wife's delay and the husband's labour justified reducing the period of occupation rent from 71 to 36 months - The court indicated that if it erred in awarding occupation rent, it would have awarded retroactive, transitional spousal support of $200 per month for 36 months - See paragraphs 49 to 64 and 77.

Family Law - Topic 865

Husband and wife - Marital property - Distribution orders - Matrimonial home - The land on which a matrimonial home was built was deeded to the husband by his parents in November 1987 in contemplation of his marriage - The husband and wife married in August 1988 - The husband, who was a carpenter, built the home with the assistance of the family and friends of both himself and the wife - The husband and wife separated in December 1999 - In an action for divorce, the husband sought an unequal division of assets - The Nova Scotia Supreme Court, Family Division, ordered an equal division of assets including the matrimonial home - The husband failed to produce strong evidence to prove that an equal distribution would be unfair or unconscionable - The marriage was mid-length, rather than brief - The home was built as a joint effort for the benefit of both spouses - Both spouses contributed to paying the loan that financed construction - The husband's physical labour on the home didn't entitle him to an unequal distribution - Though the deed was registered in the husband's name, both spouses intended the home to be jointly owned - See paragraphs 34 to 48.

Family Law - Topic 875

Husband and wife - Marital property - Distribution orders - Statutes requiring equal division - Exceptions (incl. judicial reapportionment) - [See Family Law - Topic 865 ].

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance and awards - Retroactive awards - A husband and wife separated in December 1999 after 11 years of marriage - There were no children - After separation, the husband remained in the mortgage-free matrimonial home - The husband brought an action for divorce in May 2004 - The wife filed an answer in June 2005 - The wife applied, inter alia, for retroactive, time limited spousal support - She submitted that she had been unable to work after separation due to depression - In the event that her spousal support claim failed, the wife also sought occupation rent - The Nova Scotia Supreme Court, Family Division, dismissed the claim for spousal support but awarded the wife occupation rent of $200 per month for 36 months - The wife had not forfeited a career, educational pursuits or employment to support the family - The husband had not sought to have the wife remain at home in a traditional setting - Both spouses contributed significantly to the operation and management of the home - The wife was intelligent, articulate and had many job skills - Following separation, the wife was not diligent in seeking work and she had not proven an inability to work due to depression - The wife had completed an office training program after separation but had not made good faith efforts to find employment in that field - In light of the court's decision on occupation rent, there were no non-compensatory reasons to justify a spousal support award - The court indicated that if it erred in awarding occupation rent, it would have awarded retroactive, transitional spousal support of $200 per month for 36 months - See paragraphs 67 to 78.

Family Law - Topic 4002.4

Divorce - Corollary relief - Maintenance and awards - Circumstances when refused - [See Family Law - Topic 4001.1 ].

Family Law - Topic 4022.1

Divorce - Corollary relief - Maintenance and awards - Awards - To spouse - Extent of obligation - [See Family Law - Topic 4001.1 ].

Family Law - Topic 4026

Divorce - Corollary relief - Maintenance and awards - Awards - Effect of use of marital home - [See Family Law - Topic 4001.1 ].

Family Law - Topic 4029

Divorce - Corollary relief - Maintenance and awards - Awards - Effect of capacity of claimant - [See Family Law - Topic 4001.1 ].

Cases Noticed:

Doucette v. Doucette, [2002] N.S.R.(2d) Uned. 40 (S.C.), refd to. [para. 30].

Donald v. Donald (1991), 103 N.S.R.(2d) 322; 282 A.P.R. 322 (C.A.), refd to. [para. 35].

Jenkins v. Jenkins (1991), 107 N.S.R.(2d) 18; 290 A.P.R. 18 (T.D.), refd to. [para. 36].

Fisher v. Fisher (1994), 131 N.S.R.(2d) 367; 371 A.P.R. 367 (C.A.), refd to. [para. 37].

Young v. Young (2003), 216 N.S.R.(2d) 94; 680 A.P.R. 94 (C.A.), refd to. [para. 38].

Higgins v. Higgins, [2001] O.T.C. 576; 2001 CarswellOnt 2729 (Sup. Ct.), refd to. [para. 50].

Kazmierczak v. Kazmierczak (2001), 292 A.R. 233; 2001 CarswellAlta 943 (Q.B.), refd to. [para. 51].

Stoodley v. Stoodley (1997), 172 N.S.R.(2d) 101; 524 A.P.R. 101 (S.C.), refd to. [para. 53].

MacLennan v. MacLennan (2003), 212 N.S.R.(2d) 116; 665 A.P.R. 116 (C.A.), refd to. [para. 54].

MacLeod v. MacLeod (1994), 135 N.S.R.(2d) 49; 386 A.P.R. 49 (S.C.), refd to. [para. 54].

Taylor v. Taylor (1984), 65 N.S.R.(2d) 294; 147 A.P.R. 294; 1984 CarswellNS 46 (T.D.), refd to. [para. 54].

Prince v. Prince (1996), 153 N.S.R.(2d) 356; 450 A.P.R. 356 (S.C.), revd. in part (1997), 163 N.S.R.(2d) 28; 487 A.P.R. 28 (C.A.), refd to. [para. 54].

Best v. Best (1991), 102 N.S.R.(2d) 61; 279 A.P.R. 61 (C.A.), refd to. [para. 54].

Gardner v. Gardner (2005), 232 N.S.R.(2d) 68; 737 A.P.R. 68; 2005 CarswellNS 163 (S.C.), refd to. [para. 54].

Mailman v. Mailman (1991), 107 N.S.R.(2d) 33; 290 A.P.R. 33 (T.D.), refd to. [para. 55].

Comeau v. Comeau, [1997] N.S.R.(2d) Uned. 109; 1997 CarswellNS 405 (S.C.), refd to. [para. 55].

Nauss v. Nauss (2002), 201 N.S.R.(2d) 345; 629 A.P.R. 345; 2002 CarswellNS 56 (S.C.), refd to. [para. 55].

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. 68].

Lidstone v. Lidstone (1993), 121 N.S.R.(2d) 213; 335 A.P.R. 213 (C.A.), refd to. [para. 77].

Lu v. Sun (2005), 235 N.S.R.(2d) 353; 747 A.P.R. 353; 2005 NSCA 112 (C.A.), refd to. [para. 77].

Statutes Noticed:

Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, sect. 15.2(4) [para. 69]; sect. 15.2(6) [para. 70].

Matrimonial Property Act. R.S.N.S. 1989, c. 275, sect. 13(d), sect. 13(e) [para. 39].

Counsel:

Lee Ann MacLeod-Archer, for the petitioner;

Lisa Fraser-Hill, for the respondent.

This action was heard in Sydney, Nova Scotia, on August 19 and September 1, 2005, by Forgeron, J., of the Nova Scotia Supreme Court, Family Division, who delivered the following judgment on November 10, 2005.