O'Regan v. O'Regan, 2009 NSSC 181

• Judge: Forgeron, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: June 12, 2008
• Jurisdiction: Nova Scotia
• Citations: 2009 NSSC 181;(2009), 278 N.S.R.(2d) 356 (SC)

O'Regan v. O'Regan (2009), 278 N.S.R.(2d) 356 (SC);

    886 A.P.R. 356

MLB headnote and full text

Temp. Cite: [2009] N.S.R.(2d) TBEd. JN.024

Douglas Lorne O'Regan (applicant) v. Sheila Marie O'Regan (respondent)

(41185; 2009 NSSC 181)

Indexed As: O'Regan v. O'Regan

Nova Scotia Supreme Court

Family Division

Forgeron, J.

June 5, 2009.

Summary:

Spouses separated after approximately 30 years of marriage. The husband petitioned for a divorce. At issue was the date of separation, whether marital assets should be unequally divided, whether the wife was entitled to compensation for her contributions to the husband's business, whether the wife should pay occupation rent for her post-separation occupation of the matrimonial home, the appropriate division of marital assets and debts, and the wife's entitlement to spousal support.

The Nova Scotia Supreme Court, Family Division, granted a divorce, fixed the separation date, ordered an equal division of marital assets and debts, divided business assets, awarded the husband $2,400 in occupation rent plus $200 per month until the home was sold, ordered the sale of the home and awarded the wife $973 per month spousal support for an indefinite period.

Evidence - Topic 102

Degree, standard or burden of proof - Standard or degree of proof - Proof in civil cases - The Nova Scotia Supreme Court, Family Division, stated that there was only one standard of proof in civil cases, being proof on a balance of probabilities - There were no degrees of probability within that civil standard - The court stated that "in every civil case, a judge should take into account the seriousness of the allegations or consequences, or inherent improbabilities; however, these considerations do not alter the standard of proof. In all cases, the court must scrutinize the evidence when deciding whether it is more likely than not that an alleged event occurred. The evidence must always be clear, convincing, and cogent to satisfy the balance of probabilities test. Testimony must not be considered in isolation, but rather examined upon the totality of the evidence" - See paragraph 14.

Evidence - Topic 4022

Witnesses - Credibility - Considerations - The Nova Scotia Supreme Court, Family Division, referred to a list of factors to be considered when considering the credibility of a witness - See paragraph 15.

Family Law - Topic 627

Husband and wife - Marital property - Matrimonial home - Occupation by one spouse - Claim for occupation rent - Following the breakdown of a 30 year traditional marriage, the wife remained in the matrimonial home when the husband was forced out in May 2005 - The Nova Scotia Supreme Court, Family Division, allowed the husband's claim for occupation rent - The matrimonial home was unencumbered by a mortgage - The wife only had to pay property taxes, water rates and insurance - Conversely, the husband had to pay rent - There were no dependent children at home - The wife did not expend significant sums on maintenance of the home - The home was the only significant asset of the marriage and the husband had been deprived of his share of its use for over four years - The home was worth $57,500 - The court awarded occupation rent for 12 months ($2,400) and a further $200 per month if the wife chose to remain in the home until it was sold - See paragraphs 38 to 43, 45.

Family Law - Topic 875

Husband and wife - Marital property - Distribution orders - Statutes requiring equal division - Exceptions (incl. judicial reapportionment) - A traditional marriage ended after more than 30 years - The wife sought an unequal division of marital property on the ground of unfairness or unconscionability - The Nova Scotia Supreme Court, Family Division, held that the wife failed to discharge the heavy burden on her - The court stated that "this was a lengthy marriage where both parties made substantial contributions to the acquisition of the limited assets which existed as of separation. Neither party contributed significantly more than the other. [The wife] did assist in the business. However, the time that she put into the business was considerably less than the hours worked by [the husband]. On the other hand, [the wife] spent more time fulfilling traditional child care and household tasks. She did not complete these tasks alone. She was also assisted by [the husband] when he was not working. The evidence overwhelmingly supports an equal division of the matrimonial assets." - See paragraphs 23 to 28.

Family Law - Topic 880

Husband and wife - Marital property - Distribution orders - Contribution to business asset - Spouses separated in 2004 after 30 years of marriage - The husband operated his own unincorporated small business until 2003 - All that was left was some tools and equipment - The wife, who assisted with the bookkeeping and banking for the business, brought a claim for her contributions to the business asset under s. 18 of the Matrimonial Property Act - The Nova Scotia Supreme Court, Family Division, held that the wife was entitled to one-half of the remaining tools and equipment and one-half of the sale proceeds of the company vans remaining - The court noted that the wife's unpaid services included "preparing estimates and invoices; completing bank deposits; answering phone calls from customers; writing cheques; and performing the majority of the secretarial work of the business." - It was not appropriate to make a monetary award, as there were no business investments or savings from which such an award could be drawn - See paragraphs 29 to 37.

Family Law - Topic 3605

Divorce - Grounds - Separation - What constitutes "living separate and apart" - Spouses married in 1974 - After January 2002, the spouses stopped socializing as a couple - Their relationship was deteriorating - By the spring of 2003, they occupied separate bedrooms - They stopped using a joint bank account and did separate laundry in the summer of 2004 - On September 1, 2004, the husband presented the wife with a letter from his lawyer confirming the breakdown of the marriage and a severance of the marital consortium - From that point on, each sought to have the other leave the marital home - On May 15, 2005, the husband was forced to leave the home after the wife alleged that he assaulted her and police became involved - Criminal proceedings were resolved by the husband entering a peace bond - The wife submitted that they separated in September 2004 - The husband alleged that they separated in May 2005, when he was forced out of the home - The Nova Scotia Supreme Court, Family Division, held that the parties separated on September 1, 2004, when the husband delivered the lawyer's letter to his wife - It was at that point that the unhappy and deteriorating marital relationship dissolved into one where the spouses were living separate and apart - See paragraphs 17 to 22.

Family Law - Topic 4021.5

Divorce - Corollary relief - Maintenance awards - Awards - Support guidelines (incl. non-divorce cases) - Spouses divorced after over 30 years of a traditional marriage - The wife's ability to achieve economic independence was significantly hampered due to the number of years she was absent from the paid work force and because of the lack of any vocational training - Given her age, the wife was limited in her ability to achieve financial independence and had a definite need for support - The husband earned $50,000 per year - The wife earned $18,200 - Based on those income levels, the Spousal Support Advisory Guidelines suggested monthly spousal support of between $973 and $1,272 - The Nova Scotia Supreme Court, Family Division, awarded the wife indefinite spousal support of $973 per month - The court noted that "these Guidelines do not replace the obligation of the court to review, examine, and balance the unique factors of each case in conjunction with the legislative requirements" - See paragraphs 48 to 55.

Family Law - Topic 4022.1

Divorce - Corollary relief - Maintenance awards - To spouse - Extent of obligation - [See Family Law - Topic 4021.5 ].

Cases Noticed:

F.H. v. McDougall (2008), 380 N.R. 82; 260 B.C.A.C. 74; 439 W.A.C. 74; 2008 SCC 53, refd to. [para. 14].

Baker-Warren v. Denault (2009), 277 N.S.R.(2d) 271; 882 A.P.R. 271; 2009 NSSC 59, refd to. [para. 15].

Dupere v. Dupere (1974), 9 N.B.R.(2d) 554; 1 A.P.R. 554 (Q.B.), affd. (1974), 10 N.B.R.(2d) 148; 4 A.P.R. 148 (C.A.), refd to. [para. 20].

French v. French (1997), 162 N.S.R.(2d) 104; 485 A.P.R. 104 (S.C.), refd to. [para. 21].

Taylor v. Taylor, [1999] O.T.C. Uned. 744; 1999 CarswellOnt 4653 (Sup. Ct.), refd to. [para. 21].

Harwood v. Thomas (1981), 45 N.S.R.(2d) 414; 86 A.P.R. 414 (C.A.), refd to. [para. 25].

Jenkins v. Jenkins (1991), 107 N.S.R.(2d) 18; 290 A.P.R. 18 (T.D.), refd to. [para. 26].

Marshall v. Marshall (2007), 261 N.S.R.(2d) 18; 835 A.P.R. 18; 2008 NSSC 11 (Fam. Ct.), refd to. [para. 33].

Carmichael v. Carmichael (2005), 238 N.S.R.(2d) 195; 757 A.P.R. 195 (Fam. Ct.), refd to. [para. 39].

B.D.F. v. R.V.F. (2008), 271 N.S.R.(2d) 117; 867 A.P.R. 117; 2008 NSSC 236 (Fam. Ct.), refd to. [para. 39].

Goodwin v. Goodwin (2009), 276 N.S.R.(2d) 239; 880 A.P.R. 239; 2009 NSSC 109, refd to. [para. 39].

Mosher v. Mosher (1995), 140 N.S.R.(2d) 40; 399 A.P.R. 40 (C.A.), refd to. [para. 40].

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. 51].

Moge v. Moge (1992), 145 N.R. 1; 81 Man.R.(2d) 161; 30 W.A.C. 161; 99 D.L.R.(4th) 456 (S.C.C.), refd to. [para. 51].

Counsel:

Douglas Lorne O'Regan, on his own behalf;

Shannon Mason, for Sheila Marie O'Regan.

The matter was heard between June 12, 2008, and February 24, 2009, at Sydney, N.S., before Forgeron, J., of the Nova Scotia Supreme Court, Family Division, whose following oral judgment of June 5, 2009, was filed in writing on June 8, 2009.