Miller v. Miller, 2009 NSSC 294

• Judge: Duncan, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: May 13, 2009
• Jurisdiction: Nova Scotia
• Citations: 2009 NSSC 294;(2009), 282 N.S.R.(2d) 355 (SC)

Miller v. Miller (2009), 282 N.S.R.(2d) 355 (SC);

    895 A.P.R. 355

MLB headnote and full text

Temp. Cite: [2009] N.S.R.(2d) TBEd. OC.025

Joanne (Light) Miller (petitioner) v. Reginald Miller (respondent)

(SDD 056576; 2009 NSSC 294)

Indexed As: Miller v. Miller

Nova Scotia Supreme Court

Duncan, J.

October 15, 2009.

Summary:

Spouses began cohabiting in 1991, when the husband was 41 and the wife was 39. Both had been previously married and divorced. They married in 1996 and separated 7.5 years later in 2003. They had no children. The wife sought spousal support on compensatory and non-compensatory grounds and a division of marital property.

The Nova Scotia Supreme Court held that the wife, now self-sufficient, was not entitled to ongoing compensatory spousal support. However, she was awarded a lump sum of $6,000 as retroactive non-compensatory support to reflect the short-term economic disadvantages that were clearly associated with the marriage breakdown. The court resolved the marital property division, particularly by ordering an equal division of the only major asset, a property in Nova Scotia.

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance awards - Retroactive awards - The 41 year old husband and 39 year old wife, both previously married and divorced, commenced cohabitation in 1991, married in 1996 and separated in 2003 - They had no children - The wife returned to Canada - The husband remained overseas - Although the wife incurred some short-term economic disadvantage, she expressed no intention to seek spousal support until 2006 - It was not until 2008, five years after separation, that she applied for ongoing and retroactive support - By that time, the wife was employed or receiving employment insurance benefits in a manner consistent with her employment history before and during the marriage - Prior to separation, the spouses earned similar incomes, as they continued to do now - The wife provided vague and misleading financial information, which rendered it impossible to determine her true financial state - Her income was sufficient to support a very modest lifestyle, yet she made RRSP contributions, charitable donations, etc., while being homeless and allegedly dependent upon friends and family for her survival - The marriage and its breakdown did not negatively impact the wife's career path - The Nova Scotia Supreme Court held that the wife, having become self-sufficient, was not entitled to ongoing compensatory support - However, she was entitled to some non-compensatory support as some of her current financial difficulties were directly caused by the marriage and its breakdown - The court fixed that retroactive support at $6,000 and ordered that it be paid by way of a lump sum - See paragraphs 49 to 122.

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance awards - Retroactive awards - The Nova Scotia Supreme Court stated that "(1) A spousal support order may be made retroactive to the date of the parties' separation. In addition, recent caselaw ... suggest that all maintenance under the Divorce Act may be made retroactive to a date prior to the filing of the petition for divorce. (2) A delay in seeking spousal support may disqualify the recipient from an entitlement to support for a period during which support was not sought, as the payor is taken to have structured their affairs according to 'known obligations', so that it would be unfair to impose an additional retroactive burden. This does not appear to be a hard rule, however, and will be subject to the particular circumstances." - See paragraph 48.

Family Law - Topic 4011

Divorce - Corollary relief - Maintenance awards - Lump sum - [See first Family Law - Topic 4001.1 ].

Family Law - Topic 4022.1

Divorce - Corollary relief - Maintenance awards - To spouse - Extent of obligation - [See first Family Law - Topic 4001.1 ].

Family Law - Topic 4023

Divorce - Corollary relief - Maintenance awards - Effect of delay or laches - [See second Family Law - Topic 4001.1 ].

Cases Noticed:

T.L.S. v. D.J.M. (2009), 275 N.S.R.(2d) 357; 877 A.P.R. 357; 2009 NSSC 79, refd to. [para. 46].

J.A.L. v. S.B.J.L., [2009] N.S.R.(2d) Uned. 40; 2009 NSSC 87, refd to. [para. 46].

Donald v. Donald (1991), 103 N.S.R.(2d) 322; 282 A.P.R. 322 (C.A.), refd to. [para. 49].

Lidstone v. Lidstone (1993), 121 N.S.R.(2d) 213; 335 A.P.R. 213 (C.A.), refd to. [para. 50].

Reardon v. Smith (1999), 180 N.S.R.(2d) 339; 557 A.P.R. 339 (C.A.), refd to. [para. 52].

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. 54].

Burchill v. Savoie (2008), 270 N.S.R.(2d) 134; 865 A.P.R. 134; 2008 NSSC 307, refd to. [para. 56].

Lu v. Sun (2005), 235 N.S.R.(2d) 353; 747 A.P.R. 353; 2005 NSCA 112, refd to. [para. 61].

Andries v. Andries (1998), 126 Man.R.(2d) 189; 167 W.A.C. 189 (C.A.), refd to. [para. 61].

Horne v. Horne (2007), 252 N.S.R.(2d) 179; 804 A.P.R. 179; 2007 NSSC 61 (Fam. Div.), refd to. [para. 63].

MacNeil v. MacNeil (1994), 129 N.S.R.(2d) 284; 362 A.P.R. 284 (C.A.), refd to. [para. 110].

Hemming v. Hemming (1983), 58 N.S.R.(2d) 65; 123 A.P.R. 65 (C.A.), refd to. [para. 110].

Leith v. Leith (1999), 178 N.S.R.(2d) 160; 549 A.P.R. 160 (S.C.), refd to. [para. 113].

Pettigrew v. Pettigrew (2006), 246 N.S.R.(2d) 298; 780 A.P.R. 298; 2006 NSCA 98, refd to. [para. 114].

Authors and Works Noticed:

Hainsworth, Terry W., Divorce Act Manual (Looseleaf), §§ 15.12.03 [para. 60]; 15.22.03 [para. 109].

Counsel:

Oliver Janson, for the petitioner;

Donald Peverill, for the respondent.

This matter was heard on May 13, 2009, at Digby, N.S., before Duncan, J., of the Nova Scotia Supreme Court, who delivered the following judgment on October 15, 2009.