Reardon v. Smith, (1999) 180 N.S.R.(2d) 339 (CA)

• Judge: Glube, C.J.N.S., Hart and Freeman, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: October 06, 1999
• Jurisdiction: Nova Scotia
• Citations: (1999), 180 N.S.R.(2d) 339 (CA);1999 NSCA 147

Reardon v. Smith (1999), 180 N.S.R.(2d) 339 (CA);

 557 A.P.R. 339

MLB headnote and full text

Temp. Cite: [1999] N.S.R.(2d) TBEd. DE.005

Holly Reardon (Smith) (appellant) v. Christopher Adam Smith (respondent)

(C.A. 155948; 1999 NSCA 147)

Indexed As: Reardon v. Smith

Nova Scotia Court of Appeal

Glube, C.J.N.S., Hart and Freeman, JJ.A.

November 25, 1999.

Summary:

A couple separated after cohabitating for 27 months which included 18 months of marriage. The wife petitioned for divorce.

The Nova Scotia Supreme Court, in a decision not reported in this series of reports, granted the divorce. The court determined custody of the couple's son, distribution of property and child support. The wife appealed. The issues on appeal related to the distribution of certain stocks, matching stocks and stock options, an unequal division of the assets, retroactive child support and the timing of awarding child support and child care costs.

The Nova Scotia Court of Appeal allowed the appeal in part.

Family Law - Topic 870

Husband and wife - Marital property - Distribution orders - Appeals - The Nova Scotia Court of Appeal discussed the role of the Court of Appeal in reviewing deci­sions under the Divorce Act and the Mat­rimonial Property Act - The court stated that "[t]he court can interfere with the exercise of discretion by the trial judge if the judge gave no weight or insufficient weight to the considerations he ought to have weighed ... or misdirected himself or is so clearly wrong as to amount to an injustice." - See paragraphs 13 and 14.

Family Law - Topic 880.47

Husband and wife - Marital property - Distribution orders - Particular property - Company shares, stock options, etc. - During cohabitation, a couple purchased 83 shares of the wife's employer - The wife conceded that these shares were matrimo­nial property - The employer granted the wife matching stocks to take effect three years after the date of the stock purchases -The employer also granted stock options that were not exercisable for four years - The couple separated before the matching stocks and stock options were exercisable -The Nova Scotia Court of Appeal held that the matching stocks and the stock options were matrimonial property and had to be equally divided - The tax conse­quences were to be equally divided - See para­graphs 15 to 35.

Family Law - Topic 882

Husband and wife - Marital property - Considerations in making distribution orders - Relevant considerations - Income tax - [See Family Law - Topic 880.47 ].

Family Law - Topic 888

Husband and wife - Marital property - Considerations in making distribution orders - Valuation - Time for - The Nova Scotia Court of Appeal stated that "I know of no requirement in Nova Scotia to assign a single valuation date for all matrimonial assets." - See paragraphs 38.

Family Law - Topic 888

Husband and wife - Marital property - Considerations in making distribution orders - Valuation - Time for - During cohabitation, a wife's employer granted her matching stocks to take effect three years after the date of stock purchases that the couple made - The employer also granted stock options that were not exercisable for four years - The couple separated before the matching stocks and stock options were exercisable - The trial judge held that the matching stocks and stock options were matrimonial property and fixed the valuation date as the date of the order - The wife was subsequently terminated and forced to exercise the matching stocks and stock options - The Nova Scotia Court of Appeal held that the trial judge was not wrong in the date that he chose - How­ever, the court held that their actual value should be used now that the matching stocks and the stock options were exer­cised - See paragraphs 36 to 39.

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance awards - Retroactive awards - The Nova Scotia Court of Appeal stated that "[a]l­though the [Divorce Act] specifically allows retroactivity on a variation order (s. 17(1)), s. 15 neither specifically authorizes nor prohibits retroactive payments. In my opinion, courts can consider such an appli­cation" - See paragraph 62.

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance awards - Retroactive awards - A couple separated - They agreed that the husband would pay the joint debts and the wife would incur the costs of a nanny - The husband claimed that in paying the debts he was paying $250 over what the wife was paying in nanny costs which he con­sidered would offset child support - The wife earned substantially more than the husband - The wife petitioned for divorce -The trial judge refused to order retroac­tive child support, stating that "the parties had an arrangement that worked reasonably well" - The Nova Scotia Court of Appeal refused to interfere with the trial judge's decision - Although the trial judge's rea­sons were the bare minimum required by s. 15.1(6) of the Divorce Act (reasons for departing from Guidelines), there was some evidence which he must have accepted to support his finding that "an arrangement" had been reached - See paragraphs 54 to 70.

Family Law - Topic 4045.6

Divorce - Corollary relief - Maintenance - Support guidelines - Exceptions and ex­emptions - [See second Family Law - Topic 4001.1 ].

Family Law - Topic 4170

Divorce - Practice - Appeals - Duty of appellate court - Discretionary orders - [See Family Law - Topic 870 ].

Cases Noticed:

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181; 14 C.R.(3d) 22 (Eng.); 17 C.R.(3d) 34, refd to. [para. 7].

Cavanagh v. Cavanagh (1999), 175 N.S.R.(2d) 331; 534 A.P.R. 331 (C.A.), dist. [para. 7].

Roberts v. Shotton (1997), 156 N.S.R.(2d) 47; 461 A.P.R. 47 (C.A.), refd to. [para. 13].

Elsom v. Elsom, [1989] 1 S.C.R. 1367; 96 N.R. 165, refd to. [para. 14].

Heinemann v. Heinemann (1989), 91 N.S.R.(2d) 136; 233 A.P.R. 136 (C.A.), refd to. [para. 14].

Ellis v. Ellis (1999), 175 N.S.R.(2d) 268; 534 A.P.R. 268 (C.A.), refd to. [para. 14].

Connolly v. Connolly (1999), 172 N.S.R.(2d) 382; 524 A.P.R. 382 (C.A.), refd to. [para. 14].

MacDonald v. MacDonald (1997), 209 A.R. 178; 160 W.A.C. 178 (C.A.), leave to appeal refused (1998), 227 N.R. 399 (S.C.C.), refd to. [para. 27].

Gardiner v. Gardiner (1996), 191 A.R. 139 (Q.B.), refd to. [para. 27].

Faulkner v. Faulkner, [1997] A.R. Uned. 357 (Q.B.), affd. (1998), 228 A.R. 49; 188 W.A.C. 49; 166 D.L.R.(4th) 378 (C.A.), refd to. [para. 27].

Schnarr v. Schnarr (1999), 3 B.C.T.C. 217 (S.C.), refd to. [para. 27].

McPhee v. McPhee (1998), 166 N.S.R.(2d) 237; 498 A.P.R. 237 (C.A.), refd to. [para. 31].

Adie v. Adie (1994), 134 N.S.R.(2d) 60; 383 A.P.R. 60 (S.C.), refd to. [para. 33].

Clarke v. Clarke, [1990] 2 S.C.R. 795; 113 N.R. 321; 101 N.S.R.(2d) 1; 275 A.P.R. 1; 28 R.F.L.(3d) 113; 73 D.L.R.(4th) 1, refd to. [para. 33].

Stoodley v. Stoodley (1997), 172 N.S.R.(2d) 101; 524 A.P.R. 101 (S.C.), refd to. [para. 37].

Mason v. Mason (1981), 47 N.S.R.(2d) 435; 90 A.P.R. 435 (C.A.), refd to. [para. 37].

Lynk v. Lynk (1989), 92 N.S.R.(2d) 1; 237 A.P.R. 1 (C.A.), refd to. [para. 37].

Tibbetts v. Tibbetts (1993), 119 N.S.R.(2d) 26; 330 A.P.R. 26 (C.A.), refd to. [para. 37].

Ray v. Ray (1993), 121 N.S.R.(2d) 340; 335 A.P.R. 340 (S.C.), refd to. [para. 37].

Harwood v. Thomas (1981), 45 N.S.R.(2d) 414; 86 A.P.R. 414 (C.A.), refd to. [para. 47].

Toneguzzo-Norvell et al. v. Savein and Burnaby Hospital, [1994] 1 S.C.R. 114; 162 N.R. 161; 38 B.C.A.C. 193; 62 W.A.C. 193; [1994] 2 W.W.R. 609; 18 C.C.L.T.(2d) 209; 110 D.L.R.(4th) 289; 87 B.C.L.R.(2d) 1, refd to. [para. 61].

McColl v. McColl (1995), 13 R.F.L.(4th) 449 (Ont. Gen. Div.), refd to. [para. 62].

Shiels v. DeCarli (1996), 23 R.F.L.(4th) 95 (Ont. Gen. Div.), refd to. [para. 64].

Steinhuebl v. Steinhuebl, [1970] 2 O.R. 683 (C.A.), refd to. [para. 67].

Lidstone v. Lidstone (1993), 121 N.S.R.(2d) 213; 335 A.P.R. 213 (C.A.), refd to. [para. 68].

MacNeal v. MacNeal (1993), 50 R.F.L.(3d) 235 (Ont. Gen. Div.), refd to. [para. 68].

Statutes Noticed:

Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, sect. 15.1(5), 15.1(6), 15.1(7), 15.1(8) [para. 69].

Divorce Act Regulations (Can.), Federal Child Support Guidelines, SOR/97-175, sect. 1 [para. 65]; sect. 3(1) [para. 66].

Federal Child Support Guidelines - see Divorce Act Regulations (Can.).

Matrimonial Property Act, R.S.N.S. 1989, c. 275, sect. 13(b), sect. 13(d), sect. 13(e) [para. 46].

Counsel:

B. Lynn Reierson and Susan L. Kennedy, for the appellant;

Deborah I. Conrad, for the respondent.

This appeal was heard on October 6, 1999, before Glube, C.J.N.S., Hart and Freeman, JJ.A., of the Nova Scotia Court of Appeal. Glube, C.J.N.S., delivered the following decision on November 25, 1999.