Goodwin v. Goodwin, (2009) 276 N.S.R.(2d) 239 (SC)

• Judge: O'Neil, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: January 26, 2009
• Jurisdiction: Nova Scotia
• Citations: (2009), 276 N.S.R.(2d) 239 (SC);2009 NSSC 109

Goodwin v. Goodwin (2009), 276 N.S.R.(2d) 239 (SC);

    880 A.P.R. 239

MLB headnote and full text

Temp. Cite: [2009] N.S.R.(2d) TBEd. AP.015

Dwayne Ross Edward Goodwin (petitioner) v. Patricia Darlene Goodwin (respondent)

(1201-61780; 2009 NSSC 109)

Indexed As: Goodwin v. Goodwin

Nova Scotia Supreme Court

O'Neil, J.

April 8, 2009.

Summary:

Outstanding issues in the husband's divorce action included the husband's request for an unequal division of the matrimonial home and for an order under s. 11(1)(b) of the Matrimonial Property Act requiring the wife to make payments to him to reflect her exclusive occupation of the home.

The Nova Scotia Supreme Court determined the issues accordingly.

Family Law - Topic 627

Husband and wife - Marital property - Matrimonial home - Occupation by one spouse - Claim for occupation rent - The parties married in 1987 - In 1989, they purchased a home - The husband's mother provided $45,000 to the parties for the purpose of constructing an add-on apartment to the parties' home - In 1992, the husband's mother moved into the apartment - In 2006, the parties separated - The wife was granted exclusive possession of the home where she remained with the two children - The husband moved into an apartment - In April 2007, the son moved in with the father - In August 2007, the husband's mother moved in with him as it was determined that she could no longer live without his assistance - The husband sought an order under s. 11(1)(b) of the Matrimonial Property Act requiring the wife to make payments to him to reflect her exclusive occupation of the home - The Nova Scotia Supreme Court ordered the wife to pay the husband $250 per month from August 2007 and continuing until her exclusive occupation of the home ended - The circumstances had changed since the wife was granted exclusive occupation - The son had moved in with the father, resulting in a split custody situation - Further, the husband's mother had joined them - The husband was required to devote a significant portion of his income, which was significantly lower than the wife's, to housing - The husband should receive some compensation - The process of quantifying the amount gave the court wide discretion - The court considered the parties' respective housing costs and the fact that the apartment had remained vacant - The husband's rent had varied from $895 to $910 per month - The wife's housing costs were in the range of $300 to $400 per month (there was no mortgage) - See paragraphs 52 to 78.

Family Law - Topic 631

Husband and wife - Marital property - Matrimonial home - Right to possession of - The parties married in 1987 - In 1989, they purchased a home - The husband's mother provided $45,000 to the parties for the purpose of constructing an add-on apartment to the parties' home - In 1992, the husband's mother moved into the apartment - In 2006, the parties separated - The wife was granted exclusive possession of the home where she remained with the two children - The husband moved into an apartment - In April 2007, the son moved in with the father - In August 2007, the husband's mother moved in with him as it was determined that she could no longer live without his assistance - The husband sought an order requiring the wife to sell her interest in the matrimonial home to him - The Nova Scotia Supreme Court held that there was no compelling or persuasive reason for granting exclusive possession to either party or for ordering either party to transfer his or her interest to the other - The wife's desire to have the daughter remain in the home was not much more of a factor than the husband's desire for the son to return to the home - If the court were to order a transfer, it would have ordered the wife to transfer her interest to the husband so that the husband's mother could be restored to the apartment - However, the mother was elderly and fragile - Her stay in the apartment would not be long term - The loss of the apartment to her could not be compensated - Unless the parties could agree on the terms of a transfer, the home was to be listed for sale - See paragraphs 20 to 33.

Family Law - Topic 865

Husband and wife - Marital property - Distribution orders - Matrimonial home - The parties married in 1987 - In 1989, they purchased a home - The husband's mother provided $45,000 to the parties for the purpose of constructing an add-on apartment to the parties' home - In 1992, the husband's mother moved into the apartment - In 2006, the parties separated - The wife was granted exclusive possession of the home where she remained with the two children - The husband moved into an apartment - In April 2007, the son moved in with the father - In August 2007, the husband's mother moved in with him as it was determined that she could no longer live without his assistance - The husband sought an unequal division of the matrimonial home - The Nova Scotia Supreme Court held that an equal division would be unfair and unconscionable - The funds donated by the husband's mother were not an outright gift - The parties accepted a responsibility to provide housing and light care for the mother - The husband was now meeting those obligations alone - The property division had to reflect that - The court concluded that the husband's mother had received 80% of the housing and personal services that the parties had agreed to provide - The value of the parties' unfulfilled obligation was 20% of $45,000 or $9,000 - The husband was to receive $9,000 more of the equity in the home than the wife - See paragraphs 34 to 51.

Family Law - Topic 875

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

Cases Noticed:

Sampson v. Sampson (1999), 180 N.S.R.(2d) 248; 557 A.P.R. 248; 1999 NSCA 136, refd to. [para. 24].

Gallant v. Gallant (2005), 234 N.S.R.(2d) 47; 745 A.P.R. 47; 2005 NSSC 151 (Fam. Div.), refd to. [para. 24].

Mason-Cramm v. Cramm, [2008] N.S.R.(2d) Uned. 152; 2008 NSSC 308, refd to. [para. 24].

MacLennan v. MacLennan (2003), 212 N.S.R.(2d) 116; 665 A.P.R. 116; 2003 NSCA 9, refd to. [para. 25].

Mailman v. Mailman (1991), 107 N.S.R.(2d) 33; 290 A.P.R. 33; 1991 CarswellNS 182 (T.D.), refd to. [para. 26].

Kapoor v. Kapoor (1999), 177 N.S.R.(2d) 201; 542 A.P.R. 201; 1999 CarswellNS 221 (S.C.), refd to. [para. 26].

Thackeray v. Thackeray, [2008] N.S.R.(2d) Uned. 130; 2008 NSSC 223 (Fam. Div.), refd to. [para. 26].

Ferla v. Ferla (2007), 251 N.S.R.(2d) 159; 802 A.P.R. 159; 2007 NSSC 30 (Fam. Div.), refd to. [para. 45].

Rossiter-Forrest v. Forrest (1994), 129 N.S.R.(2d) 130; 362 A.P.R. 130 (S.C.), refd to. [para. 46].

Klain v. Klain (1998), 170 N.S.R.(2d) 331; 515 A.P.R. 331 (S.C.), refd to. [para. 46].

Marshall v. Marshall (2007), 261 N.S.R.(2d) 18; 835 A.P.R. 18; 2008 NSSC 11 (Fam. Div.), refd to. [para. 48].

Andrews v. Andrews, [2006] N.S.R.(2d) Uned. 47; 2006 CarswellNS 159 (Fam. Div.), refd to. [para. 52].

MacLean v. MacLean (2005), 237 N.S.R.(2d) 374; 754 A.P.R. 374; 2005 NSSC 284, refd to. [para. 68].

Carmichael v. Carmichael (2005), 238 N.S.R.(2d) 195; 757 A.P.R. 195 (Fam. Div.), refd to. [para. 70].

Higgins v. Higgins, [2001] O.T.C. 576 (Sup. Ct.), refd to. [para. 70].

Counsel:

Graydon D. Lally, for the petitioner;

Peter Katsihtis, for the respondent.

This action was heard at Halifax, Nova Scotia, on January 26, 2009, by O'Neil, J., of the Nova Scotia Supreme Court, who delivered the following decision on April 8, 2009.