Strecko v. Strecko,

• Jurisdiction: Nova Scotia
• Judge: O'Neil
• Neutral Citation: 2013 NSSC 49
• Citation: 2013 NSSC 49,(2013), 328 N.S.R.(2d) 51 (SC),328 NSR(2d) 51,(2013), 328 NSR(2d) 51 (SC),328 N.S.R.(2d) 51
• Date: 07 February 2013
• Court: Supreme Court of Nova Scotia (Canada)

Strecko v. Strecko (2013), 328 N.S.R.(2d) 51 (SC);

    1039 A.P.R. 51

MLB headnote and full text

Temp. Cite: [2013] N.S.R.(2d) TBEd. MR.005

Jane Wagner Strecko (applicant) v. Brian Frank Strecko (respondent)

(1201-063118; 2013 NSSC 49)

Indexed As: Strecko v. Strecko

Nova Scotia Supreme Court

Family Division

O'Neil, A.C.J.

February 7, 2013.

Summary:

The parties married in 1985, separated in 2008, and divorced in March 2011. They had two sons born in 1991 and 1992. The oldest would begin a full year of employment in December 2012 as part of the co-op engineering program at Dalhousie University. The youngest was in his second year of studies at Dalhousie. He shared an apartment in Halifax and spent weekend time at his mother's home outside Halifax. The March 17, 2011 Corollary Relief Order incorporated Minutes of Settlement dated April 29, 2010. The husband was ordered to pay spousal support of $3,500 and child support of $2,525.26. The Minutes provided that "On or after July 2012, issues of spousal support entitlement, quantum and duration may be reviewed". The wife filed a variation application on November 29, 2011. Pursuant to s. 17 of the Divorce Act, she sought changes to child and spousal support. The husband sought changes to child support and a termination of spousal support effective July 1, 2012.

The Nova Scotia Supreme Court, Family Division, determined the child support payable by the husband with respect to the younger son, and the parties' contributions to his university expenses. The court ordered that spousal support would continue at $3,500 per month until March 2015 when it would terminate unless, at that time, the wife satisfied the court that she had been unable to secure full time employment in nursing or achieve a level of income comparable to that earned by a nurse working full time.

Family Law - Topic 2358.1

Maintenance of wives and children - Maintenance of children - Payments - To whom - [See Family Law - Topic 4045.12 ].

Family Law - Topic 3997

Divorce - Corollary relief - General - Economic self-sufficiency - The parties married in 1985, separated in 2008, and divorced in March 2011 - They had two sons born in 1991 and 1992 - The March 17, 2011 Corollary Relief Order (CRO) incorporated Minutes of Settlement dated April 29, 2010 - The husband was ordered to pay spousal support of $3,500 per month - The Minutes provided that "On or after July 2012, issues of spousal support entitlement, quantum and duration may be reviewed" - The wife filed a variation application on November 29, 2011, seeking a change to spousal support - The husband sought a termination of spousal support effective July 1, 2012 - The court was also asked to impute income to the wife on the basis that she could be working full time as a nurse - The wife argued that her pursuit of specialty nursing employment in the area of rheumatology had been reasonable - She maintained that she now had part time work in that area and should be permitted the opportunity to make it full time - The Nova Scotia Supreme Court, Family Division, found that the wife did not agree to a term that her entitlement to spousal support would terminate on July 1, 2012 - The court attributed an income of $30,000 to the wife - At a minimum, she was capable of earning that amount - Nevertheless, the wife required additional time to achieve self sufficiency - The court ordered that spousal support continue at $3,500 until March 2015 when it would terminate unless, at that time, the wife satisfied the court that she had been unable to secure full time employment in nursing or achieve a level of income comparable to that earned by a nurse working full time - See paragraphs 87 to 111.

Family Law - Topic 3998

Divorce - Corollary relief - General - Children's post-secondary education - [See Family Law - Topic 4045.12 ].

Family Law - Topic 4021.4

Divorce - Corollary relief - Maintenance awards - Considerations - Ability to pay (incl. potential to earn income and calculation of income) - [See Family Law - Topic 4045.5 ].

Family Law - Topic 4022.1

Divorce - Corollary relief - Maintenance awards - To spouse - Extent of obligation - [See Family Law - Topic 3997 ].

Family Law - Topic 4027

Divorce - Corollary relief - Maintenance and awards - Awards - Effect of income or potential income of claimant - [See Family Law - Topic 3997 ].

Family Law - Topic 4039

Divorce - Corollary relief - Maintenance awards - Spousal support - Suspension or termination of - [See Family Law - Topic 3997 ].

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Calculation or attribution of income - At issue was a husband's income for child and spousal support purposes - The husband received profit sharing, i.e. bonus income, and he received dividend income annually - The Nova Scotia Supreme Court, Family Division, held that the husband's income should be the sum of his salary, bonus and grossed up taxable dividends - The bonus income and dividend income were recurring - They were appropriately considered as income for purposes of determining his child and spousal support obligations - See paragraphs 62 to 72.

Family Law - Topic 4045.11

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Children over the age of majority - [See Family Law - Topic 4045.12 ].

Family Law - Topic 4045.12

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Where income over $150,000 - The parties divorced in March 2011 - The Corollary Relief Order (CRO), which incorporated Minutes of Settlement dated April 29, 2010, required the husband to pay child and spousal support - In November 2011, the wife brought a variation application, which raised the issue of the husband's obligation to pay support for the parties' youngest son (Stefan), who was born in 1992 and in his second year of studies at Dalhousie University - Stefan lived in the Bedford area and spent weekend time at his mother's home outside Halifax - The wife said the husband should be required to pay her the full table amount of child support of $3,186 per month, reflecting an income of $408,750 in 2012, and 80% of Stefan's university expenses - The husband argued that any support he was ordered to pay should be paid to Stefan directly - The Nova Scotia Supreme Court, Family Division, was satisfied that over the academic year Stefan did not live with his mother 40% of the time as that language was used in clause 17 of the CRO - The wife agreed that the full table amount of child support would not be payable in such a circumstance - The court ordered child support payable for December 2012, February 2013 and April 2013 at a rate of $1,000 per month to reflect Stefan's anticipated increased time at his mother's home over the Christmas break, the winter break and in April, when exams were typically written - For the other months during the academic year child support would not be payable - For the months May to August, the full table amount of child support would be payable if Stefan was living full time with his mother - If Stefan was not living full time with his mother, he would receive child support directly from his father at the rate of $1,000 per month - The husband's additional support for Stefan would be in the form of a partial payment of his university expenses - Those were estimated to be $11,935 less $5,600 leaving a balance of $6,335.40 - The husband was to pay $2,000 of that amount, Stefan $2,000 and the wife $2,000 - See paragraphs 7 to 86.

Cases Noticed:

Pollock v. Rioux - see J.P. v. R.R.

J.P. v. R.R. (2004), 278 N.B.R.(2d) 351; 728 A.P.R. 351; 2004 NBCA 98, refd to. [para. 16].

Nova Scotia (Minister of Community Services) v. A.A. et al. (2009), 279 N.S.R.(2d) 166; 887 A.P.R. 166; 2009 NSSC 206, refd to. [para. 18].

Francis v. Baker, [1999] 3 S.C.R. 250; 246 N.R. 45; 125 O.A.C. 201; 1999 CanLII 659, refd to. [para. 31].

Lu v. Sun (2005), 235 N.S.R.(2d) 353; 747 A.P.R. 353; 2005 NSCA 112, refd to. [para. 33].

Niles v. Munro, [2010] N.S.R.(2d) Uned. 188; 2010 NSSC 221, refd to. [para. 34].

Provost v. Marsden (2009), 286 N.S.R.(2d) 138; 909 A.P.R. 138; 2009 NSSC 365, refd to. [para. 34].

Eyking v. Eyking (2012), 323 N.S.R.(2d) 213; 1025 A.P.R. 213; 2012 NSSC 409, refd to. [para. 37].

Glaspy v. Glaspy (2011), 381 N.B.R.(2d) 137; 984 A.P.R. 137; 2011 NBCA 101, refd to. [para. 45].

Leet v. Beach, [2010] N.S.R.(2d) Uned. 281; 2010 NSSC 433, refd to. [para. 71].

Burchill v. Savoie (2008), 270 N.S.R.(2d) 134; 865 A.P.R. 134; 2008 NSSC 307, refd to. [para. 91].

Bracklow v. Bracklow, [1999] 1 S.C.R. 420; 236 N.R. 79; 120 B.C.A.C. 211; 196 W.A.C. 211; 1999 CarswellBC 532, refd to. [para. 92].

Moge v. Moge, [1992] 3 S.C.R. 813; 145 N.R. 1; 81 Man.R.(2d) 161; 30 W.A.C. 161; 1992 CanLII 25, refd to. [para. 93].

D.B.S. v. S.R.G. (2006), 351 N.R. 201; 391 A.R. 297; 377 W.A.C. 297 (S.C.C.), refd to. [para. 103].

Richards v. Richards (2012), 312 N.S.R.(2d) 282; 987 A.P.R. 282; 2012 NSCA 7, refd to. [para. 106].

Marshall v. Marshall (2007), 261 N.S.R.(2d) 18; 835 A.P.R. 18; 2008 NSSC 11 (Fam. Div.), refd to. [para. 107].

L.M.P. v. L.S. (2011), 424 N.R. 341; 2011 SCC 64, refd to. [para. 111].

R.P. v. R.C. (2011), 425 N.R. 1; 2011 SCC 65, refd to. [para. 111].

Coadic v. Coadic (2005), 237 N.S.R.(2d) 362; 754 A.P.R. 362 (S.C.), refd to. [para. 112].

Robertson v. Robertson, [2007] N.S.R.(2d) Uned. 48 (Fam. Ct.), refd to. [para. 112].

McCarthy v. Workers' Compensation Appeals Tribunal (N.S.) et al. (2001), 193 N.S.R.(2d) 301; 602 A.P.R. 301; 2001 NSCA 79, refd to. [para. 112].

Conrad v. Rafuse (2002), 205 N.S.R.(2d) 46; 643 A.P.R. 46; 2002 NSCA 60, refd to. [para. 118].

MacIsaac v. MacIsaac (1996), 150 N.S.R.(2d) 321; 436 A.P.R. 321 (C.A.), refd to. [para. 118].

Counsel:

M. Jean Beeler, Q.C., for Ms. Strecko;

B. Lynn Reierson, Q.C., for Mr. Strecko.

This application was heard on November 19-21, 2012, before O'Neil, A.C.J., of the Nova Scotia Supreme Court, Family Division, who delivered the following judgment on February 7, 2013.