Klefenz v. Klefenz, 2015 NSSC 196

• Judge: MacDonald, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: July 02, 2015
• Jurisdiction: Nova Scotia
• Citations: 2015 NSSC 196;(2015), 363 N.S.R.(2d) 42 (SC)

Klefenz v. Klefenz (2015), 363 N.S.R.(2d) 42 (SC);

    1143 A.P.R. 42

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. JL.014

Dawn Marie Klefenz (petitioner) v. Byron Kees Klefenz (respondent)

(1201-066790; 2015 NSSC 196)

Indexed As: Klefenz v. Klefenz

Nova Scotia Supreme Court

Family Division

MacDonald, J.

July 2, 2015.

Summary:

Spouses cohabited since 1993, married in 1996 and separated in 2011. The wife sought a divorce, child support for their one child (age 18), spousal support and an equal division of matrimonial property (including any assets classified as business assets).

The Nova Scotia Supreme Court, Family Division, granted a divorce, awarded spousal and child support, and unequally divided matrimonial property in the wife's favour, which resulted from the court not requiring the wife to repay the husband one-half of the monies he expended to pay off matrimonial debt. The court did not award the wife a share of the value of the husband's business assets.

Family Law - Topic 868.2

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

Family Law - Topic 875

Husband and wife - Marital property - Distribution orders - Statutes requiring equal division - Exceptions (incl. judicial reapportionment) - [See Family Law - Topic 877 ].

Family Law - Topic 877

Husband and wife - Marital property - Distribution orders - Business, commercial or non- family assets - Spouses cohabited since 1993, married in 1996 and separated in 2011 - The husband worked for a company since 2002, became general manager in 2006 and was given shares in the company several months before separation - Later that fall, the company was purchased by another company and the husband acquired shares - It appeared, but was not proved by evidence, that the new company would purchase the existing company only if the husband remained an employee - The wife claimed that the value of the shares were matrimonial property and, alternatively, if not, she was entitled to a share of the shares as a business asset because of her contribution to their acquisition - The Nova Scotia Supreme Court, Family Division, held that the shares constituted a business asset - The wife had been paid for her contribution to the company in the line of accounting work - Nothing the wife did resulted in the husband obtaining an interest in the company - Alternatively, if the shares had been classified as matrimonial assets, the value of the shares would have been unequally divided in the husband's favour - Remaining matrimonial assets were divided equally, but the matrimonial debts paid off by the husband were not to be divided equally, as it would be unfair for the wife to now have to repay the husband one-half of that amount - See paragraphs 12 to 41.

Family Law - Topic 880.47

Husband and wife - Marital property - Distribution orders - Particular property - Company shares, stock options, etc. - [See Family Law - Topic 877 ].

Family Law - Topic 4021

Divorce - Corollary relief - Maintenance and awards - Awards - Considerations - General - The Nova Scotia Supreme Court, Family Division, in discussing the jurisprudence relating to spousal support claims, stated in part that "Generally a non-compensatory claim in a short to mid length marriage is satisfied when a spouse becomes self-supporting and, in such a case, neither the payor spouse's greater income nor the inability of a recipient spouse to replicate a previous lifestyle, is a factor entitling a spouse to continuing support. When spouses have not had a lengthy relationship and the only effect of the relationship has been that a spouse has enjoyed a better lifestyle than he or she could afford alone, the duration of support will likely be for a period required to ease the recipient spouse's transition to economic independence. Self-sufficiency, however, is a relative concept. It constitutes something more than an ability to meet basic living expenses. It incorporates an ability to provide a reasonable standard of living from earned and other income exclusive of spousal support." - See paragraph 48.

Family Law - Topic 4022.1

Divorce - Corollary relief - Maintenance awards - To spouse - Extent of obligation - Spouses cohabited since 1993, married in 1996 and separated in 2011 - The husband's income for 2014 was $106,826 - During the marriage the wife provided bookkeeping services, earning at most $24,642 in 2010 and $900 in 2013 - However, the wife primarily remained at home during the marriage to care for their child, the household and the husband - The wife suffered from health problems, including anxiety, had arthritis and was on a wait list for a double knee replacement - The wife was capable of earning some income from bookkeeping - The Nova Scotia Supreme Court, Family Division, attributed $5,000 annual income to the wife - This was a long-term relationship (18 years) - The court held that the wife had a significant entitlement to compensatory support at the higher level of the range in the Spousal Support Advisory Guidelines - The husband was ordered to pay indefinite spousal support of $2,600 per month - See paragraphs 42 to 66.

Family Law - Topic 4027

Divorce - Corollary relief - Maintenance and awards - Awards - Effect of income or potential income of claimant - [See Family Law - Topic 4022.1 ].

Cases Noticed:

Tibbetts v. Tibbetts (1992), 119 N.S.R.(2d) 26; 330 A.P.R. 26 (C.A.), refd to. [para. 24].

Roberts v. Shotton (1997), 156 N.S.R.(2d) 47; 461 A.P.R. 47 (C.A.), refd to. [para. 24].

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. 43].

Linton v. Linton (1990), 42 O.A.C. 328; 1990 CarswellOnt 316 (C.A.), refd to. [para. 45].

Bracklow v. Bracklow, [1999] 1 S.C.R. 420; 236 N.R. 79; 120 B.C.A.C. 211; 196 W.A.C. 211, refd to. [para. 46].

Keller v. Black, [2000] O.T.C. 845; 2000 CarswellOnt 74 (Sup. Ct.), refd to. [para. 46].

Authors and Works Noticed:

MacDonald and Ferruerm Canadian Divorce Law and Practice (2nd Ed.), c. 8-WS, generally [para. 54].

Nova Scotia, Law Reform Commission, Reform of the Law Dealing with Matrimonial Property in Nova Scotia (March 1997), generally [para. 22].

Rogerson, Carol, Spousal Support Post-Bracklow: The Pendulum Swings Again? (2001), 19 Can. Fam. L.Q. 185, p. 224 [para. 47].

Counsel:

Jennifer K. Reid, for the petitioner;

Jean Beeler, Q.C., for the respondent.

This matter was heard on April 20-21, 2015, at Halifax, N.S., before MacDonald, J., of the Nova Scotia Supreme Court, Family Division, who delivered the following judgment on July 2, 2015.