French v. French, (1997) 162 N.S.R.(2d) 104 (SC)

• Judge: Hood, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: June 18, 1997
• Jurisdiction: Nova Scotia
• Citations: (1997), 162 N.S.R.(2d) 104 (SC)

French v. French (1997), 162 N.S.R.(2d) 104 (SC);

    485 A.P.R. 104

MLB headnote and full text

Temp. Cite: [1997] N.S.R.(2d) TBEd. SE.042

Marie Lorraine French (petitioner) v. Robert French (respondent)

(1206-002895\104486)

Indexed As: French v. French

Nova Scotia Supreme Court

Hood, J.

June 18, 1997.

Summary:

A husband and wife were married for 25 years and had two children, now aged 21 and 18. It was a traditional marriage. The wife worked outside the home for the first seven years, then stayed home with the children until 1993 when the husband opened his own chartered accountant's prac­tice. The wife then began salaried employ­ment as his receptionist/secretary. The wife petitioned for divorce and sought an unequal division of marital assets and debts, spousal and child support and exclusive possession of the matrimonial home.

The Nova Scotia Supreme Court fixed the date of separation, granted a divorce, equally divided marital assets, unequally divided marital debts and awarded the wife spousal and child support.

Family Law - Topic 631

Husband and wife - Marital property - Matrimonial home - Right to possession of - Following separation, the wife remained in the matrimonial home with her 18 year old daughter - The husband purchased another home and their 21 year old son lived with him - The Nova Scotia Supreme Court granted the wife exclusive pos­session of the matrimonial home - The wife and daughter had to live somewhere - The house would not sell for more than its $63,000 appraised value, so there was no justification for selling it - The court also held that it was not appropriate to discount the value of the home for notional disposition costs, where each spouse had one child living with them and each had a home for the children which at sometime in the future would be sold - See para­graphs 22 to 32.

Family Law - Topic 865

Husband and wife - Marital property - Distribution orders - Matrimonial home - [See Family Law - Topic 631 ].

Family Law - Topic 868.2

Husband and wife - Marital property - Distribution orders - Debts - The husband ran his own chartered accountant's practice - He had deferred income tax liability of almost $80,000 - The deferred monies were used as family funds during the marriage - The Nova Scotia Supreme Court held that the deferred liability was a matrimonial debt, not a business debt - See paragraphs 121 to 126.

Family Law - Topic 875

Husband and wife - Marital property - Distribution orders - Statutes requiring equal division - Exceptions - A husband and wife divorced after a 25 year tradi­tional marriage - The Nova Scotia Supreme Court ordered an equal division of marital assets, but ordered that the husband pay 65% of the marital debts - The bulk of the debt was the husband's $80,000 deferred tax liability, which he could pay off over nine years - If that debt were equally divided, the wife would have to pay her share of it now and would be forced to cash in RRSP's (adverse tax consequences) to fund the payment - An equal division of the debts would not be fair and equitable - See paragraphs 136 to 166.

Family Law - Topic 877

Husband and wife - Marital property - Distribution orders - Business, commercial or non-family assets - The husband oper­ated his own chartered accountant's prac­tice since 1993 - The wife initially worked as his receptionist/secretary, earning $30,000 per year (higher than traditionally paid) for income splitting purposes - At issue was whether 100% of the value of the proprietor's equity in the business was a business asset - The Nova Scotia Supreme Court held that $20,000 of the proprietor's equity was a matrimonial asset - The entire value of the equity was not held or used to produce income or profit - The court rejected the wife's claim that they were "partners" in the business - There was no joint venture - The wife was a well-paid employee - The husband's interest was a business asset and the wife was not entitled to share in it - See para­graphs 97 to 105.

Family Law - Topic 878

Husband and wife - Marital property - Distribution orders - Practice (incl. dis­covery and costs) - Spouses had divided success in combined divorce and marital property litigation - However, the wife wasted a half day of trial on an unjustified attack on the husband's integrity and pro­fessional ethics - The Nova Scotia Supreme Court declined to award costs to either spouse, with the exception of a­warding $750 to the husband for the wasted half day - See paragraphs 189 to 191.

Family Law - Topic 880

Husband and wife - Marital property - Distribution orders - Contribution to busi­ness asset - In 1993, the husband left a chartered accountant's firm and com­menced his own practice - For income splitting purposes, he employed his own wife as receptionist/secretary, and paid her $30,000 per year (more than the going rate) - The wife applied under s. 18 of the Matri­monial Property Act for a share of the business asset (the professional prac­tice) - The Nova Scotia Supreme Court held that where the wife was a well-paid salaried employee, she was fully compen­sated for any contribution she made to the business - The application was dismissed - See paragraphs 167 to 172.

Family Law - Topic 880.30

Husband and wife - Marital property - Distribution orders - Professional practice -[See Family Law - Topic 877 ].

Family Law - Topic 3605

Divorce - Grounds - Separation - What constitutes "living separate and apart" - In the fall of 1995, the wife became increas­ingly independent of her husband - She went out evenings without telling him - She stopped wearing her wedding ring and would not dress or undress in front of the husband - She applied for credit cards in her own name - On December 8, 1995, the wife moved out of the marital bedroom - Sporadic sexual relations became nonex­istent - The husband claimed the spouses separated on December 8, 1995, notwith­standing that they continued to reside in the same home and shared some family activities (meals, housework, etc.) - The wife claimed that they separated as of March 1, 1996, when she commenced divorce proceedings - The Nova Scotia Supreme Court held that the spouses sep­arated as of December 8, 1995, when they were in effect living "separate and apart" under the same roof with no intention of resuming the matrimonial consortium - See paragraphs 6 to 15.

Family Law - Topic 4010

Divorce - Corollary relief - Maintenance awards - Periodic payments - The hus­band and wife had a traditional 25 year marriage - The wife worked the first seven years of the marriage, then stayed home with two children, now aged 18 and 21 - When the husband opened his own chartered account­ant's practice in 1993, the wife became his salaried receptionist/sec­retary - The wife was currently unem­ployed and receiving employment insur­ance benefits, with no guarantee of future employment - The marriage interrupted the wife's career for 15 years, with the consequent loss of seniority, promotions, security, etc. - The husband's estimated yearly earnings were $45,000 - The wife currently received $16,300 per year in em­ployment insurance - The Nova Scotia Supreme Court awarded the wife $400 per month spousal support and $3,000 lump sum maintenance to buy a new com­puter and software - The court declined to award lump sum maintenance for retrain­ing (no evidence to support) or for house repairs (repairs were minor and were never a priority in the past) - See paragraphs 34 to 90.

Family Law - Topic 4011

Divorce - Corollary relief - Maintenance awards - Lump sum - [See Family Law - Topic 4010 ].

Family Law - Topic 4014

Divorce - Corollary relief - Maintenance awards - To children - A mother and father divorced after 25 years - The 18 year old daughter, ready to start university, resided with the mother - The 21 year old son, in university, resided with the father - The father earned $45,000 per year - The mother earned $16,300 per year in em­ployment insurance benefits - Monies in trust for the children, intended for post-graduation, had to be encroached upon to help pay for university - The son's fund was larger than the daughter's fund - Of the total family income of $61,300, 32% (or $19,600) was attributable to child care costs - The Nova Scotia Supreme Court ordered that the father pay $475 per month support for the daughter - See paragraphs 91 to 96.

Family Law - Topic 4175

Divorce - Practice - Costs - General - [See Family Law - Topic 955 ].

Cases Noticed:

McKenna v. McKenna (1974), 10 N.S.R.(2d) 268; 2 A.P.R. 268 (C.A.), refd to. [para. 9].

J.B. v. A.W.B. (1958), 13 D.L.R.(2d) 218 (Ont. C.A.), refd to. [para. 10].

Woolgar v. Woolgar (1995), 129 Nfld. & P.E.I.R. 13; 402 A.P.R. 13; 10 R.F.L.(4th) 309 (Nfld. U.F.C.), refd to. [para. 11].

Wood v. Wood (1980), 6 Man.R.(2d) 36 (Q.B.), refd to. [para. 12].

Gillis v. Gillis (1995), 145 N.S.R.(2d) 241; 418 A.P.R. 241 (S.C.), refd to. [para. 29].

Gomez-Morales v. Gomez-Morales (1991), 100 N.S.R.(2d) 137; 272 A.P.R. 137 (C.A.), refd to. [para. 29].

Frost v. Frost (1996), 154 N.S.R.(2d) 341; 452 A.P.R. 341 (S.C.C.), refd to. [para. 30].

MacIsaac v. MacIsaac (1996), 150 N.S.R.(2d) 321; 436 A.P.R. 321 (C.A.), refd to. [para. 41].

Messier v. Delage, [1983] 2 S.C.R. 401; 50 N.R. 16, refd to. [para. 44].

Sproule v. Sproule (1986), 73 N.S.R.(2d) 131; 176 A.P.R. 131 (C.A.), refd to. [para. 46].

Moge v. Moge, [1992] 3 S.C.R. 813; 145 N.R. 1; 81 Man.R.(2d) 161; 30 W.A.C. 161; [1993] 1 W.W.R. 481; 43 R.F.L.(3d) 345, refd to. [para. 47].

Heinemann v. Heinemann (1989), 91 N.S.R.(2d) 136; 233 A.P.R. 136 (C.A.), refd to. [para. 49].

Levesque v. Levesque (1994), 155 A.R. 26; 73 W.A.C. 26; 4 R.F.L.(4th) 375 (C.A.), refd to. [para. 66].

Lawrence v. Lawrence (1981), 47 N.S.R.(2d) 100; 90 A.P.R. 100 (C.A.), refd to. [para. 102].

Prince v. Prince (1996), 153 N.S.R.(2d) 356; 450 A.P.R. 356 (S.C.), refd to. [para. 103].

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. 103].

McNulty v. McNulty (1989), 94 N.S.R.(2d) 387; 247 A.P.R. 387 (T.D.), refd to. [para. 103].

Best v. Best (1991), 102 N.S.R.(2d) 61; 279 A.P.R. 61 (C.A.), refd to. [para. 103].

Solomon v. Solomon (1991), 100 N.S.R.(2d) 73; 272 A.P.R. 73 (T.D.), refd to. [para. 111].

Carmichael v. Carmichael (1991), 110 N.S.R.(2d) 21; 299 A.P.R. 21 (T.D.), refd to. [para. 112].

Wilson v. Wilson (1984), 66 N.S.R.(2d) 361; 152 A.P.R. 361 (T.D.), refd to. [para. 114].

Tibbetts v. Tibbetts (1992), 119 N.S.R.(2d) 26; 330 A.P.R. 26 (C.A.), refd to. [para. 117].

Donald v. Donald (1991), 103 N.S.R.(2d) 322; 282 A.P.R. 322 (C.A.), refd to. [para. 155].

Archibald v. Archibald (1981), 48 N.S.R.(2d) 361; 92 A.P.R. 361 (T.D.), refd to. [para. 155].

Davey v. Davey (1994), 133 N.S.R.(2d) 202; 380 A.P.R. 202 (S.C.), refd to. [para. 157].

Bailey v. Bailey (1990), 98 N.S.R.(2d) 9; 263 A.P.R. 9 (T.D.), refd to. [para. 157].

Chaytor v. Chaytor (1994), 133 N.S.R.(2d) 43; 380 A.P.R. 43 (S.C.), refd to. [para. 159].

Cameron v. Cameron (1995), 144 N.S.R.(2d) 124; 416 A.P.R. 124 (S.C.), dist. [para. 160].

Stapleton v. Stapleton (1995), 135 N.S.R.(2d) 241; 386 A.P.R. 241 (C.A.), dist. [para. 160].

Webb v. Webb (1994), 135 N.S.R.(2d) 161; 386 A.P.R. 161 (S.C.), dist. [para. 160].

Durling v. Durling (1988), 86 N.S.R.(2d) 58; 218 A.P.R. 58 (C.A.), refd to. [para. 168].

Statutes Noticed:

Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, sect. 15(7) [para. 40].

Matrimonial Property Act, R.S.N.S. 1898, c. 275, sect. 2(a) [para. 101]; sect. 4(1)(e) [para. 100]; sect. 13 [para. 136]; sect. 18 [para. 167].

Counsel:

Elizabeth Cusack Walsh, for the petitioner;

Theresa Marie Forgeron, for the respon­dent.

This action was heard on December 10-12, 1996, and January 8-9, 1997, at Sydney, N.S., before Hood, J., of the Nova Scotia Supreme Court, who delivered the following judgment on June 18, 1997.