Roach v. McNeil, 2014 NSSC 112

• Judge: Forgeron, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: September 19, 2013
• Jurisdiction: Nova Scotia
• Citations: 2014 NSSC 112;(2014), 343 N.S.R.(2d) 320 (SC)

Roach v. McNeil (2014), 343 N.S.R.(2d) 320 (SC);

    1084 A.P.R. 320

MLB headnote and full text

Temp. Cite: [2014] N.S.R.(2d) TBEd. AP.009

Joseph Roach (applicant) v. Kathryn McNeil (respondent)

(75305; 2014 NSSC 112)

Indexed As: Roach v. McNeil

Nova Scotia Supreme Court

Family Division

Forgeron, J.

April 7, 2014.

Summary:

Roach and McNeil began cohabiting in 1997 in a home owned by McNeil. Seven years later, they jointly purchased a "fixer-upper" home, with each paying one-half of the mortgage out of a joint bank account. Otherwise, they maintained separate accounts. McNeil contributed some of the $20,000 net sale proceeds from the sale of her home. Roach contributed substantial labour to renovate the home. The relationship began deteriorating in 2009 over money issues. In April 2011, Roach applied under the Matrimonial Property Act for custody (he had adopted McNeil's son from a previous relationship), child support, a division of assets, and exclusive possession of the shared home. McNeil's employment was terminated due to absence from work due to illness. Her return to work was subject to filing appropriate medical documents. She chose not to do so. Both remained in the home. The situation was acrimonious and became increasingly dangerous because of Roach's actions (cut electrical wires, nailed windows shut, etc.). In July 2012, McNeil obtained an interim order giving her exclusive interim possession. Roach was to pay half the mortgage and taxes, spousal support of $300 per month and $452 per month child support. As the Matrimonial Property Act did not apply (couple unmarried and not registered), Roach amended his application to seek relief respecting the shared home under the Partition Act. Now at issue was the claim for custody and child support for the 17 year old son, the wife's claim for spousal support, the relief to be granted under the Partition Act, and McNeil's unjust enrichment claim, where she sought to retain the property without having to pay Roach for his interest in the property.

The Nova Scotia Supreme Court, Family Division, awarded custody of the son to McNeil, with child support payable under the Federal Child Support Guidelines. Spousal support was reduced to the nominal sum of $1 per month, to be terminated when the home was sold. The home was ordered sold under the Partition Act, which limited the court's authority to partition or sale. The court had no jurisdiction to order a spousal buyout or set off. The sale was to be conducted by a real estate agent rather than the Sheriff. Finally, the net proceeds of sale were to be divided equally after certain adjustments.

Family Law - Topic 763

Husband and wife - Actions between husband and wife - Property - Action for partition and sale - When available - [See Real Property - Topic 6609 ].

Family Law - Topic 1004

Common law, same-sex or adult interdependent relationships - Family home - [See Real Property - Topic 6609 ].

Family Law - Topic 2326

Maintenance of spouses and children - Maintenance of spouses - Effect of income or potential income of claimant - [See Family Law - Topic 2328 ].

Family Law - Topic 2328

Maintenance of spouses and children - Maintenance of spouses - Effect of spouse's ability to work - Roach and McNeil began cohabiting in 1997 in a home owned by McNeil - Seven years later, they jointly purchased a "fixer-upper" home, with each paying one-half of the mortgage out of a joint bank account - Otherwise, they maintained separate accounts - McNeil contributed some of the $20,000 net sale proceeds from the sale of her home - Roach contributed substantial labour to renovate the home - The relationship began deteriorating in 2009 over money issues - In April 2011, Roach applied under the Matrimonial Property Act for custody (he had adopted McNeil's son from a previous relationship), child support, a division of assets, and exclusive possession of the shared home - McNeil's employment was terminated due to absence from work due to illness - Her re-employment was subject to filing appropriate medical documents - She chose not to do so - Both remained in the home - The situation was acrimonious and became increasingly dangerous because of Roach's actions (cut electrical wires, nailed windows shut, etc.) - In July 2012, McNeil obtained an interim order giving her exclusive interim possession - Roach was to pay half the mortgage and taxes, spousal support of $300 per month and $452 per month child support - Roach earned $55,000 per year - McNeil was capable of earning $34,000 to $36,000 per year if she returned to her employment rather than pursuing a college electrical course - The Nova Scotia Supreme Court, Family Division, reduced spousal support to $1 per month, to terminate when the home was sold - See paragraphs 29 to 33.

Real Property - Topic 6609

Partition - General - Jurisdiction - Roach and McNeil began cohabiting in 1997 in a home owned by McNeil - Seven years later, they jointly purchased a "fixer-upper" home, with each paying one-half of the mortgage - McNeil contributed some of the $20,000 net sale proceeds from the sale of her home - Roach contributed substantial labour to renovate the home - The relationship began deteriorating in 2009 over money issues - In April 2011, Roach applied under the Matrimonial Property Act for, inter alia, a division of assets and exclusive possession of the home - The Matrimonial Property Act did not apply, as they were neither married nor registered - In July 2012, McNeil obtained an interim order giving her exclusive interim possession of their shared home - Roach was to pay half the mortgage and taxes, spousal support of $300 per month and $452 per month child support - McNeil sought to have the full interest in the home based on unjust enrichment (unequal division) - She claimed to have made a greater contribution to the acquisition and maintenance of the home - The Nova Scotia Supreme Court, Family Division, held that the court's authority under the Partition Act was limited to partitioning the property or ordering its sale - The court had no jurisdiction to order a buy out or set off between co-owners - Since no partition was requested, or appropriate, the court ordered the sale of the property - A sale using a listing agent was ordered to maximize the potential market and sale price - McNeil's claim for an unequal division of the home based on unjust enrichment was denied - Assuming an enrichment and corresponding deprivation, McNeil failed to prove the absence of a juristic reason for that enrichment and deprivation - Subject to adjustments, the net sale proceeds were to be divided equally - See paragraphs 34 to 67.

Restitution - Topic 64

Unjust enrichment - General - Juristic reason for enrichment - [See Real Property - Topic 6609 ].

Cases Noticed:

Allen et al. v. Carver et al. (1981), 44 N.S.R.(2d) 345; 83 A.P.R. 345 (C.A.), refd to. [para. 36].

MacMillan v. MacMillan (2013), 337 N.S.R.(2d) 220; 1067 A.P.R. 220; 2013 NSSC 393, refd to. [para. 37].

Deloisio v. Dolejs (1994), 137 N.S.R.(2d) 368; 391 A.P.R. 368 (C.A.), refd to. [para. 47].

Lynch v. Nova Scotia (Attorney General), 1997 CarswellNS 535 (T.D.), refd to. [para. 48].

Finanders v. Finanders (2005), 234 N.S.R.(2d) 80; 745 A.P.R. 80; 2005 NSSC 145, refd to. [para. 48].

Soubliere v. MacDonald, [2011] N.S.R.(2d) Uned. 45; 2011 NSSC 98, refd to. [para. 52].

Anderson v. Wilson (1986), 73 N.S.R.(2d) 1; 176 A.P.R. 1 (T.D.), refd to. [para. 52].

Primeau v. Richards, [2004] N.S.R.(2d) Uned. 100; 2004 NSSF 86, refd to. [para. 52].

MacDonald v. Jollymore, [2006] N.S.R.(2d) Uned. 95; 2006 NSSC 152, refd to. [para. 52].

Davis v. Munroe, [2011] N.S.R.(2d) Uned. 8; 2011 NSSC 14, refd to. [para. 52].

Kerr v. Baranow (2011), 411 N.R. 200; 300 B.C.A.C. 1; 509 W.A.C. 1; 274 O.A.C. 1; 2011 SCC 10, refd to. [para. 58].

Statutes Noticed:

Partition Act, R.S.N.S. 1989, c. 333, sect. 28(1)(a) [para. 38].

Counsel:

William Burke, for the applicant;

Kathryn McNeil, on her own behalf.

This matter was heard on May 13 and 14, August 6 and September 19, 2013, at Sydney, N.S., before Forgeron, J., of the Nova Scotia Supreme Court, Family Division, who delivered the following judgment on April 7, 2014.