MacLennan v. MacLennan,

• Jurisdiction: Nova Scotia
• Judge: Glube, C.J.N.S., Cromwell and Oland, JJ.A.
• Neutral Citation: 2003 NSCA 9
• Citation: 2003 NSCA 9,(2003), 212 N.S.R.(2d) 116 (CA),35 RFL (5th) 384,[2003] NSJ No 15 (QL),212 NSR (2d) 116,665 APR 116,[2003] NS.J. No 15 (QL),212 N.S.R.(2d) 116,665 A.P.R. 116,212 NSR(2d) 116,(2003), 212 NSR(2d) 116 (CA)
• Date: 30 September 2002
• Court: Court of Appeal of Nova Scotia (Canada)

MacLennan v. MacLennan (2003), 212 N.S.R.(2d) 116 (CA);

 665 A.P.R. 116

MLB headnote and full text

Temp. Cite: [2003] N.S.R.(2d) TBEd. FE.037

Allan Frederick MacLennan (appellant) v. Colleen Elizabeth MacLennan (respondent)

(CA 176686; 2003 NSCA 9)

Indexed As: MacLennan v. MacLennan

Nova Scotia Court of Appeal

Glube, C.J.N.S., Cromwell and Oland, JJ.A.

January 21, 2003.

Summary:

A husband petitioned for divorce. The issues included child and spousal support, disposition and occupation of the marital home and occupational rent.

The Nova Scotia Supreme Court, Family Division, in a decision reported at 201 N.S.R.(2d) 214; 629 A.P.R. 214, ordered, inter alia, an unequal division of the matri­monial home, spousal support of indefinite duration in favour of the wife and support for the parties' 22 year old son. The husband appealed.

The Nova Scotia Court of Appeal substan­tially affirmed the order.

Family Law - Topic 627

Husband and wife - Marital property - Matrimonial home - Occupation by one spouse - Claim for occupation rent - Spouses separated - The husband sought a sale and equal division of the marital home - The wife sought to stay in the home until the youngest child (Adam, age 15) com­pleted high school - The wife had trouble with the children after separation, but in the past year had achieved "tranquillity" - The wife and husband had annual incomes of $15,000 and $55,000-$60,000, re­spectively - The trial judge held that it would be unfair and unconscionable to cause the wife and children to move - The trial judge ordered that the home remain a joint asset until Adam turned 19, at which point the wife could purchase the hus­band's interest - The trial judge denied occupational rent where the wife lacked the necessary means - Further, she was responsible for maintaining the home - The Nova Scotia Court of Appeal stated that the postponement created an unequal di­vision, but it was justified - However, the trial judge erred in maintaining joint ownership of the home for such an ex­tended period absent unusual circum­stances - The court directed that the prop­erty be conveyed to the wife and that she execute a mortgage to secure the husband's post­poned interest - The court affirmed the denial of occupational rent and, for the same reasons, refused to order interest on the mortgage - See paragraphs 10 to 29.

Family Law - Topic 631

Husband and wife - Marital property - Matrimonial home - Right to possession of - [See Family Law - Topic 627 ].

Family Law - Topic 865

Husband and wife - Marital property - Distribution orders - Matrimonial home - [See Family Law - Topic 627 ].

Family Law - Topic 4010

Divorce - Corollary relief - Maintenance awards - Periodic payments - A husband and wife separated after 17 years of mar­riage - During the marriage, the wife stayed at home and took care of the home and children - The husband had an annual income of $55,000-$60,000 - The wife returned to work post separation at the age of 38 - She had an annual income of $15,000 supplemented by the Child Tax Credit and G.S.T. rebate - The trial judge held that the wife had suffered economic hardship as a result of staying at home and the marriage breakdown - The trial judge concluded that the wife was entitled to ongoing support and ordered the husband to pay her $650/month - The Nova Scotia Court of Appeal affirmed the decision - See paragraphs 51 to 59.

Family Law - Topic 4014

Divorce - Corollary relief - Maintenance awards - To children and children defined - The Nova Scotia Court of Appeal stated that a child at or over the age of majority was not automatically a child of the mar­riage for support purposes simply by virtue of being a full time undergraduate univer­sity student, although most such students qualified - The Divorce Act required that the party claiming support show that the child was unable to withdraw from the parental charge - Each case had to be examined carefully in light of its own facts - The weighing of the facts and exercising judgment in relation to them was particu­larly in the province of the trial judge - The authorities had developed lists of rele­vant considerations - Such lists should not be used in place of the language of the statute or be invoked to impose a burden on parties to call evidence about the ob­vious or on judges to address non-issues - Judges were entitled to draw reasonable, common sense inferences from the proven facts and to consider notorious facts such as education costs, the availability of well paid part time work and the limited time available for work - See paragraphs 39 to 41.

Family Law - Topic 4014

Divorce - Corollary relief - Maintenance awards - To children and children defined - Allan, the 20 year old son of a divorced couple, left university because of finances -He had over $11,000 in student loans - He resided with and was supported in part by the wife - The husband was ordered to pay Guideline child support if Adam returned to university - The husband appealed, asserting that the trial judge erred by her implied holding that Allan would automati­cally be a child of the marriage if he was in full time attendance at university - The evidence of Allen's intention to return to university was not definite - The Nova Scotia Court of Appeal held that the fact that support was conditional overcame the weak evidence of settled intention to return to university - While generally, the trial date was the "material time" for determin­ing a child's status, in the case of a con­ditional order premised on foreseeable future events in known circumstances, the material time was the date at which the condition was fulfilled - The conclusion that Allan would be a child of the marriage if he returned to full time attendance in the near future was reasonable - The trial judge was entitled to take into account common knowledge about the cost of education and the difficulty of a full time student being self-sufficient - However, the court amended the condition to require full time attendance within four months of the trial judge's decision - See paragraphs 30 to 48.

Family Law - Topic 4021.1

Divorce - Corollary relief - Maintenance awards - Considerations - Financial conse­quences of child care and household re­sponsibilities - [See Family Law - Topic 4010 ].

Family Law - Topic 4022.1

Divorce - Corollary relief - Maintenance awards - To spouse - Extent of obligation -[See Family Law - Topic 4010 ].

Cases Noticed:

Corkum v. Corkum (1989), 20 R.F.L.(3d) 197 (N.S.C.A.), refd to. [para. 9].

MacIsaac v. MacIsaac (1996), 150 N.S.R.(2d) 321; 436 A.P.R. 321 (C.A.), refd to. [para. 9].

Roberts v. Shotton (1997), 156 N.S.R.(2d) 47; 461 A.P.R. 47 (C.A.), refd to. [para. 9].

Heinemann v. Heinemann (1989), 91 N.S.R.(2d) 136; 233 A.P.R. 136 (C.A.), refd to. [para. 9].

Leblanc v. Leblanc, [1988] 1 S.C.R. 217; 81 N.R. 299; 84 N.B.R.(2d) 33; 214 A.P.R. 33, refd to. [para. 9].

Elsom v. Elsom, [1989] 1 S.C.R. 1367; 96 N.R. 165, refd to. [para. 9].

Hickey v. Hickey, [1999] 2 S.C.R. 518; 240 N.R. 312; 138 Man.R.(2d) 40; 202 W.A.C. 40, refd to. [para. 9].

Sampson v. Sampson (1999), 180 N.S.R.(2d) 248; 557 A.P.R. 248 (C.A.), folld. [para. 13].

Donald v. Donald (1991), 103 N.S.R.(2d) 322; 282 A.P.R. 322 (C.A.), refd to. [para. 18].

Fisher v. Fisher (1994), 131 N.S.R.(2d) 367; 371 A.P.R. 367 (C.A.), refd to. [para. 18].

Smith v. Smith, [2001] N.S.R.(2d) Uned. 3 (S.C.), refd to. [para. 23].

Kennedy-Dowell v. Dowell (2002), 203 N.S.R.(2d) 130; 635 A.P.R. 130 (S.C. Fam. Div.), refd to. [para. 23].

Best v. Best (1991), 102 N.S.R.(2d) 61; 279 A.P.R. 61 (C.A.), refd to. [para. 23].

Giorno v. Giorno (1992), 110 N.S.R.(2d) 87; 299 A.P.R. 87 (C.A.), refd to. [para. 37].

Martell v. Height (1994), 130 N.S.R.(2d) 318; 367 A.P.R. 318 (C.A.), refd to. [para. 38].

Yaschuk v. Logan (1992), 110 N.S.R.(2d) 278; 299 A.P.R. 278 (C.A.), refd to. [para. 40].

Cole v. Cole (1995), 143 N.S.R.(2d) 378; 411 A.P.R. 378 (Fam. Ct.), refd to. [para. 41].

Farden v. Farden (1993), 48 R.F.L.(3d) 60 (B.C.S.C. Master), refd to. [para. 41].

Darlington v. Darlington (1997), 99 B.C.A.C. 134; 162 W.A.C. 134; 32 R.F.L.(4th) 406 (C.A.), refd to. [para. 41].

Wesemann v. Wesemann (1999), 13 B.C.T.C. 233; 49 R.F.L.(4th) 435 (S.C.), refd to. [para. 48].

Huggins v. Huggins (2000), 183 N.S.R.(2d) 194; 568 A.P.R. 194 (C.A.), refd to. [para. 57].

Authors and Works Noticed:

Hainsworth, T.W., Support for Adult Children (1999-2000), 17 Can. Fam. L.Q. 39, pp. 51-53 [para. 41].

MacDonald, James C., and Wilson, Ann C., Child Support Guidelines Law and Practice (2002 Looseleaf Update) (Release No. 2), p. 9.15.5 [para. 48].

Counsel:

Theresa M. Forgeron, for the appellant;

Elaine N. Gibney, for the respondent.

This appeal was heard on September 30, 2002, by Glube, C.J.N.S., Cromwell and Oland, JJ.A., of the Nova Scotia Court of Appeal. Cromwell, J.A., delivered the fol­lowing reasons for judgment of the court on January 21, 2003.