Darlington v. Moore, (2015) 362 N.S.R.(2d) 7 (SC)

Judge:O'Neil, J.
Court:Supreme Court of Nova Scotia
Case Date:April 20, 2015
Jurisdiction:Nova Scotia
Citations:(2015), 362 N.S.R.(2d) 7 (SC);2015 NSSC 124
 
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Darlington v. Moore (2015), 362 N.S.R.(2d) 7 (SC);

    1142 A.P.R. 7

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Temp. Cite: [2015] N.S.R.(2d) TBEd. AP.058

Michelle Darlington (applicant) v. David Paul Moore (respondent)

David Moore and Sand, Surf & Sea Limited, a body corporate (plaintiffs) v. Michelle Darlington (defendant)

(SFHMCA 068167; 2015 NSSC 124)

Indexed As: Darlington v. Moore

Nova Scotia Supreme Court

Family Division

O'Neil, J.

April 20, 2015.

Summary:

Darlington and Moore began a common law relationship in 1990 and separated in late 2009. The law of unjust enrichment was relied on in part to support Darlington's claim to a share of the property in Moore's name or held jointly with Darlington. The court had previously determined Moore's income for the purpose of calculating his support obligation (see 330 N.S.R.(2d) 47;1046 A.P.R. 47). In a second ruling, the court determined Moore's ongoing and retroactive obligation to pay child support, including a contribution to the payment of special expenses, as well as his past and future obligation to pay spousal support (see 356 N.S.R.(2d) 6; 1126 A.P.R. 6). A determination of the quantum of spousal support was deferred so that a complete picture of the parties' condition, means and circumstances could be gained. The court also had to rule on issues arising from a lawsuit initiated by Moore and Sand, Surf & Sea Ltd. ("SSS Ltd.") against Darlington in 2012. That action was consolidated with the ongoing matrimonial litigation. A central issue pertained to each party's responsibility for the liabilities and benefits that flowed from the operation of a restaurant by SSS Ltd.

The Nova Scotia Supreme Court, Family Division, determined the issues. In summary, the court ordered as follows: Moore's ongoing spousal support obligation was $1,700 per month; Moore's retroactive spousal support obligation to April 30, 2015, was $59,500; Darlington had a claim to one half the value of the matrimonial home after disposition costs and the line of credit debt at separation were deducted; Darlington was entitled to 40% of the value of the parties' combined RRSPs at the time of division or at trial, whichever value was greater, less an adjustment for post separation contributions and growth/losses attributable to those contributions; Moore was to transfer the undisbursed RESP funds to the parties' son; Darlington had no claim to Moore's employment pension, Canada Pension or severance, nor did Moore have any claim to her Canada Pension entitlement; Darlington was not liable for the balance on the line of credit; Darlington was not liable to SSS Ltd. or to Moore for money advanced to her directly or indirectly from either; Darlington had no claim to SSS Ltd. or assets held by it or other assets held by Moore personally or through SSS Ltd.

Family Law - Topic 684

Husband and wife - Property rights during and after common law marriage or relationship - Family home - Darlington and Moore began a common law relationship in 1990 and separated in late 2009 - The "matrimonial home" (Lakeshore Drive) was held jointly by the parties - Moore said proceeds from the predecessor "matrimonial home" (which had been solely in his name) were used to assist with meeting the cost of purchasing/building the Lakeshore Drive home - The Nova Scotia Supreme Court, Family Division, stated that "I am satisfied the parties should equally share equity in the matrimonial home. Equity will be determined after payment of disposition costs and setting aside $86,393.37 as a contribution to the line of credit indebtedness. This later amount is the balance on the line of credit when the parties separated in late December 2009" - See paragraphs 179 to 184.

Family Law - Topic 877

Husband and wife - Marital property - Distribution orders - Business, commercial or non- family assets - Darlington and Moore began a common law relationship in 1990 and separated in late 2009 - In 1995, Moore incorporated Sand, Surf & Sea Ltd. ("SSS Ltd.") - He was its sole shareholder, officer and director - In 2012, Moore initiated litigation against Darlington claiming she was indebted to SSS Ltd. because of the use of SSS Ltd. funds - That action was consolidated with ongoing matrimonial litigation - The Nova Scotia Supreme Court, Family Division, stated that "As between Ms. Darlington and Mr. Moore I have concluded Mr. Moore is responsible for the debts and liabilities arising from various business pursuits and litigation. I am satisfied that Ms. Darlington is not liable to 'SSS Ltd.' for any mingling of the company's insurance proceeds with the parties' personal financial affairs. I am also dismissing any claim she asserts to other personal or real property Mr. Moore has acquired through the company or through use of the company's resources. This includes any claim by her to a Florida property (ies) and vehicles Mr. Moore has acquired. These assets are clearly a product of Mr. Moore's business activities to which Ms. Darlington has disavowed any significant role. Similarly, she does not want any liability for the losses flowing from Mr. Moore's business activities" - The claim of SSS Ltd. and Moore against Darlington was therefore dismissed - See paragraphs 159 to 178.

Family Law - Topic 880.28

Husband and wife - Marital property - Distribution orders - Particular property - Pensions - Darlington and Moore began a common law relationship in 1990 and separated in late 2009 - Darlington sought a 50% interest in Moore's pension entitlement, earned over the course of the parties' relationship, reflecting his years of service with the RCMP - The Nova Scotia Supreme Court, Family Division, held that Darlington had no claim to Moore's employment pension - The court stated that "I am satisfied that as far as Mr. Moore's pension is concerned Mr. Moore was not unjustly enriched; that the accrual of his pension entitlement was not at Ms. Darlington's expense. Further, her contributions to the relationship were not linked to the pension entitlement of Mr. Moore" - See paragraphs 196 to 209.

Family Law - Topic 880.32

Husband and wife - Marital property - Distribution orders - Particular property - Registered Retirement Savings Plans, R.E.S.P.'s, Income Funds, unregistered investments, etc. - Darlington and Moore began a common law relationship in 1990 and separated in late 2009 - The Nova Scotia Supreme Court, Family Division, stated that "In the case of the RRSPs, I am satisfied that each contributed to the realization of this asset. RRSPs are a discretionary investment, retirement vehicles and in this case, were paid for with funds otherwise available to the family, which funds the parties agreed were for their ongoing expenses but were directed to the purchase of RRSPs. The mingling of the household income made this possible and the mingled resources were the source of the funds used to 'purchase' RRSPs. ... The RRSPs have also grown since separation ... Clearly, Mr. Moore's earnings were the source of the RRSP funds he invested and he received the corresponding tax benefit. However, the opportunity for him to do so in the form of his access to disposable income for this purpose was contributed to by Ms. Darlington. ... The value of the RRSPs to be divided is the value at the time of the September 2014 trial or the value at the time of division whichever is higher; less an adjustment for post separation contributions and growth/losses attributable to these contributions. ... I conclude the appropriate ratio of division of the total value of all RRSPs is 60:40 in favour of Mr. Moore recognizing he began the relationship with a significant RRSP portfolio and contributed significantly more to the growth of the account than would Ms. Darlington" - See paragraphs 187 to 195.

Family Law - Topic 880.33

Husband and wife - Marital property - Distribution orders - Particular property - Severance or retirement allowance - Darlington and Moore began a common law relationship in 1990 and separated in late 2009 - The Nova Scotia Supreme Court, Family Division, stated that "Moore's severance was paid out in 2013. Mr. Moore's severance, once determined, is income. A severance payment is an earned right analogous to Mr. Moore's pension. Ms. Darlington has no entitlement to this benefit or a share of it" - See paragraph 185.

Family Law - Topic 1004

Common law or same-sex relationships - Family home - [See Family Law - Topic 684 ].

Family Law - Topic 1009

Common law, same-sex or adult interdependent relationships - Joint family venture - Darlington and Moore began a common law relationship in 1990 and separated in late 2009 - They did not register as a domestic partnership as permitted by Part II of the Vital Statistics Act - The law of unjust enrichment was relied on in part to support Darlington's claim to a share of the property in Moore's name or held jointly with Darlington - The court also had to rule on issues arising from a lawsuit initiated by Moore and Sand, Surf & Sea Ltd. ("SSS Ltd.") against Darlington in 2012 - That action was consolidated with the ongoing matrimonial litigation - A central issue pertained to each party's responsibility for the liabilities and benefits that flowed from the operation of a restaurant by SSS Ltd. - The Nova Scotia Supreme Court, Family Division, found that the parties were a joint family venture - The court stated that "I am satisfied that Ms. Darlington should receive a substantial part [40%] of the parties' RRSP account; an equal share of the 'equity ' in the matrimonial home and relief from liability to pay other liabilities associated with the line of credit and should be found not liable to 'SSS Ltd.' for the insurance proceeds. In my view this outcome balances the asset and debt distribution as between the parties and reflects a just outcome of their joint family venture. Finally I am satisfied 'SSS Ltd.' is unlikely to have any value and Mr. Moore cannot be described as benefiting from retaining this entity" - See paragraphs 208 to 209.

Family Law - Topic 1013

Common law, same-sex or adult interdependent relationships - Maintenance - Darlington and Moore were in a common law relationship from 1990 to late 2009 - Darlington had received $900 per month as spousal support since April 2010 as directed by Justice MacDonald - The 2010 order was based on Moore having an assumed income of $108,000 and Darlington having an income of $33,639 - In light of a court ruling that disability income was to be considered when the income of the parties was calculated, Moore's income was now determined to be significantly higher - The Nova Scotia Supreme Court, Family Division, set Moore's grossed up total income at $145,266.88 for 2010 and ongoing for the purposes of support - The court considered that Moore was responsible for a very high level of indebtedness attributable to the family's lifestyle and he had been managing that obligation since the parties' separation - It was also relevant that Moore's much higher DVA income became a reality around the time of the parties' separation - It was not in any way attributable to the relationship with Darlington - The court stated that "A significant part of Mr. Moore's income is analogous to 'post separation' income. This is a very relevant consideration when considering the Spousal Support Advisory Guidelines. I am satisfied Mr. Moore's spousal support obligation should be set below the low end of the Spousal Support Advisory Guidelines as a consequence" - Darlington was earning $40,000 per year and Moore was receiving $145,267 (grossed up income) - The court ordered that Moore's ongoing spousal support obligation was $1,700 per month - His retroactive spousal support obligation to April 30, 2015 was $59,500 - See paragraphs 125 to 158.

Family Law - Topic 4021.5

Divorce - Corollary relief - Maintenance and awards - Awards - Support guidelines (incl. non-divorce cases) - [See Family Law - Topic 1013 ].

Restitution - Topic 62

Unjust enrichment - General - What constitutes - [See Family Law - Topic 1009 ].

Cases Noticed:

Soubliere v. MacDonald, [2011] N.S.R.(2d) Uned. 45; 2011 NSSC 98, refd to. [para. 34].

Sand, Surf and Sea Ltd. v. Nova Scotia (Minister of Transportation and Public Works) (2005), 236 N.S.R.(2d) 201; 749 A.P.R. 201; 2005 NSSC 233, refd to. [para. 43].

Kerr v. Baranow, [2011] 1 S.C.R. 269; 411 N.R. 200; 300 B.C.A.C. 1; 509 W.A.C. 1; 274 O.A.C. 1; 2011 SCC 10, refd to. [para. 89].

Walsh v. Bona, [2002] 4 S.C.R. 325; 297 N.R. 203; 210 N.S.R.(2d) 273; 659 A.P.R. 273; 2002 SCC 83, refd to. [para. 96].

A. v. B., [2013] 1 S.C.R. 61; 439 N.R. 1; 2013 SCC 5, refd to. [para. 96].

Quebec (Attorney General) v. A. - see A. v. B.

Kerr v. Baranow (2009), 266 B.C.A.C. 298; 449 W.A.C. 298; 2009 BCCA 111, refd to. [para. 101].

Kerr v. Baranow, [2012] B.C.T.C. Uned. 1222; 37 B.C.L.R.(5th) 398; 2012 BCSC 1222, refd to. [para. 101].

Thompson v. Thompson, [2013] O.T.C. Uned. 5500; 2013 ONSC 5500, refd to. [para. 143].

James v. Canada, 2013 TCC 164, refd to. [para. 156].

Authors and Works Noticed:

Justice Canada, Spousal Support Advisory Guidelines: A New and Improved User's Guide to the Final Version (2010), p. 51 [para. 144].

McInnes, Mitchell, The Canadian Law of Unjust Enrichment and Restitution (2014), pp. 1202, 1203 [para. 104].

Counsel:

Peter D. Crowther, for Ms. Darlington;

David P. Moore, self represented.

This matter was heard on October 15-17 and 21, 2013, and June 10 and 11 and September 8-11, 2014, at Halifax, N.S., before O'Neil, J., of the Nova Scotia Supreme Court, Family Division, who delivered the following decision on April 20, 2015.

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