Marshall v. Marshall, (2007) 261 N.S.R.(2d) 18 (SC)

• Jurisdiction: Nova Scotia
• Judge: Forgeron, J.
• Neutral Citation: 2008 NSSC 11
• Citation: (2007), 261 N.S.R.(2d) 18 (SC),2008 NSSC 11,47 RFL (6th) 327,261 NSR (2d) 18,261 NSR(2d) 18,(2007), 261 NSR(2d) 18 (SC),261 N.S.R.(2d) 18
• Date: 19 October 2006
• Court: Supreme Court of Nova Scotia (Canada)

Marshall v. Marshall (2007), 261 N.S.R.(2d) 18 (SC);

    835 A.P.R. 18

MLB headnote and full text

Temp. Cite: [2008] N.S.R.(2d) TBEd. JA.050

Loretta Marshall (petitioner) v. Darryl Marshall (respondent)

(1206-5230; 2008 NSSC 11)

Indexed As: Marshall v. Marshall

Nova Scotia Supreme Court

Family Division

Forgeron, J.

November 14, 2007.

Summary:

A wife petitioned for divorce. Issues of custody and access to the two children of the marriage were resolved by agreement. The wife sought spousal and child support, including retroactive support, an unequal division of marital property and an amount representing her contribution to the husband's business. The wife sought to have income imputed to the husband on the ground that he was underemployed.

The Nova Scotia Supreme Court, Family Division, granted a divorce, equally divided all marital property except the household contents (divided in wife's favour), imputed income to the husband and awarded the wife $8,000 lump sum spousal support to purchase a motor vehicle, $715 per month child support and $200 per month spousal support. The wife's claim for retroactive support was denied because of the husband's inability to pay.

Family Law - Topic 865

Husband and wife - Marital property - Distribution orders - Matrimonial home - A matrimonial home was valued at $75,000 - The wife, who wished to remain in the home until the two children of the marriage were no longer dependent, sought to have notional disposition costs deducted from the value of the home - The Nova Scotia Supreme Court, Family Division, stated that "except in unusual cases, disposition costs should routinely be deducted from the value of a home for division purposes" - The court stated that it was likely that the wife would sell the home once the children became independent - The court reduced the value of the home by 6% for a real estate commission and $1,500 for legal fees, plus G.S.T. - Accordingly, the value of the home for distribution was $68,160 - The court ordered an equal division of the value, with the wife to purchase the husband's interest within 90 days - The court rejected both the husband's request for an immediate sale of the home and the wife's request that payment of the husband's one-half interest be postponed for 12 years until the youngest child turned 19 - See paragraphs 25 to 51.

Family Law - Topic 880

Husband and wife - Marital property - Distribution orders - Contribution to business asset - A wife sought $10,000 for her contribution to her husband's business (self-employed mechanic) - The Nova Scotia Supreme Court, Family Division, awarded the wife $7,000 for her limited contributions - The court noted that the business operated out of the garage of the marital home and the husband paid no rent, although he did pay for the telephone and power - The wife occasionally took phone messages and assisted customers - Additionally, the wife was required to clean up the garage when the husband vacated the premises and left it in a deplorable state - See paragraphs 59 to 68.

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance awards - Retroactive awards - Spouses separated in March 2005 - The husband paid no spousal or child support, but did pay household bills such as the mortgage, water bill, insurance and phone bills - He also paid an allowance to his children and paid for extracurricular activities - The wife never sought support because of her financial inability to pay for legal fees and serious health problems - The Nova Scotia Supreme Court, Family Division, denied the wife's request for retroactive spousal and child support because the husband had no financial ability to pay it, given his current support obligations and lump sum awards to the wife to purchase a car and for her contributions to the husband's business - See paragraphs 90 to 98.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Support guidelines - Calculation or attribution of income - Spouses separated in March 2005 - From 2000 to 2006 the husband was a self-employed journeyman mechanic - The husband now worked as a mechanic for his common law partner's business and reportedly earned $26,000 per year, significantly less than his previous earnings - The partner's business operated under the husband's name, used his tools and used his existing client base - The wife sought to have income imputed to the husband on the ground that he was underemployed - The Nova Scotia Supreme Court, Family Division, imputed $50,000 annual income to the husband - If the husband's income was $26,000, he was clearly underemployed - The court was satisfied that the husband and his common law partner devised a scheme to limit the amount of income available for support purposes - See paragraphs 10 to 21.

Cases Noticed:

Coadic v. Coadic (2005), 237 N.S.R.(2d) 362; 754 A.P.R. 362 (S.C.), refd to. [para. 17].

Lynk v. Lynk (1989), 92 N.S.R.(2d) 1; 237 A.P.R. 1; 1989 CarswellNS 60 (C.A.), refd to. [para. 22].

Gomez-Morales v. Gomez-Morales (1990), 100 N.S.R.(2d) 137; 272 A.P.R. 137 (C.A.), refd to. [para. 26].

Prince v. Prince (1997), 163 N.S.R.(2d) 28; 487 A.P.R. 28 (C.A.), refd to. [para. 26].

Robski v. Robski (1997), 166 N.S.R.(2d) 161; 498 A.P.R. 161 (S.C.), refd to. [para. 26].

Harwood v. Thomas (1981), 45 N.S.R.(2d) 414; 86 A.P.R. 414 (C.A.), refd to. [para. 44].

Ritcey v. Ritcey (2002), 206 N.S.R.(2d) 75; 645 A.P.R. 75 (Fam. Div.), refd to. [para. 44].

Jenkins v. Jenkins (1991), 107 N.S.R.(2d) 18; 290 A.P.R. 18 (T.D.), refd to. [para. 4].

Fisher v. Fisher (1994), 131 N.S.R.(2d) 367; 371 A.P.R. 367 (C.A.), refd to. [para. 44].

Jess v. Strong (1998), 169 N.S.R.(2d) 271; 508 A.P.R. 271 (S.C.), refd to. [para. 44].

Clancey v. Clancey (1990), 99 N.S.R.(2d) 147; 270 A.P.R. 147; 1990 CarswellNS 218 (T.D.), refd to. [para. 47].

MacLennan v. MacLennan (2003), 212 N.S.R.(2d) 116; 665 A.P.R. 116 (C.A.), refd to. [para. 49].

Rushton v. Rushton (2006), 244 N.S.R.(2d) 242; 774 A.P.R. 242 (S.C.), refd to. [para. 63].

French v. French (1997), 162 N.S.R.(2d) 104; 485 A.P.R. 104 (S.C.), refd to. [para. 63].

Crosby v. Crosby (2002), 207 N.S.R.(2d) 195; 649 A.P.R. 195 (S.C.), refd to. [para. 63].

Baggs v. Baggs (1997), 161 N.S.R.(2d) 81; 477 A.P.R. 81 (S.C.), refd to. [para. 63].

Mason v. Mason (1981), 47 N.S.R.(2d) 435; 90 A.P.R. 435 (C.A.), refd to. [para. 63].

MacDonald v. MacDonald (2007), 255 N.S.R.(2d) 270; 814 A.P.R. 270 (S.C.), refd to. [para. 64].

Pelrine v. Pelrine (2006), 251 N.S.R.(2d) 29; 802 A.P.R. 29 (S.C.), refd to. [para. 64].

Todd v. Todd (1995), 144 N.S.R.(2d) 340; 416 A.P.R. 340 (S.C.), refd to. [para. 64].

Sproule v. Sproule (1986), 73 N.S.R.(2d) 131; 176 A.P.R. 131 (C.A.), refd to. [para. 64].

MacDougall v. MacDougall (2005), 231 N.S.R.(2d) 270; 733 A.P.R. 270 (S.C.), refd to. [para. 65].

Reid v. Reid (1989), 99 N.S.R.(2d) 207; 270 A.P.R. 207 (S.C.), refd to. [para. 65].

Campbell v. Campbell (1986), 74 N.S.R.(2d) 25; 180 A.P.R. 25 (S.C.), refd to. [para. 65].

Bracklow v. Bracklow (1999), 236 N.R. 79; 120 B.C.A.C. 211; 196 W.A.C. 211; 1999 CarswellBC 532 (S.C.C.), refd to. [para. 79].

Gossen v. Gossen (2003), 213 N.S.R.(2d) 217; 667 A.P.R. 217; 2003 CarswellNS 121 (S.C.), refd to. [para. 86].

D.B.S. v. S.R.G. (2006), 351 N.R. 201; 391 A.R. 297; 377 W.A.C. 297; 2006 SCC 37, refd to. [para. 91].

Donald v. Donald (1991), 103 N.S.R.(2d) 322; 282 A.P.R. 322 (C.A.), refd to. [para. 92].

Lidstone v. Lidstone (1993), 121 N.S.R.(2d) 213; 335 A.P.R. 213 (C.A.), refd to. [para. 92].

Counsel:

Alan Stanwick, for the petitioner;

Bill Burke, for the respondent.

This case was heard on October 19, 2006, and March 27-28, 2007, before Forgeron, J., of the Nova Scotia Supreme Court, Family Division, whose following oral decision of November 14, 2007, was delivered in writing on January 11, 2008.