Volcko v. Volcko, (2015) 354 N.S.R.(2d) 360 (CA)

• Judge: Hamilton, Scanlan and Bourgeois, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: November 12, 2014
• Jurisdiction: Nova Scotia
• Citations: (2015), 354 N.S.R.(2d) 360 (CA);2015 NSCA 11

Volcko v. Volcko (2015), 354 N.S.R.(2d) 360 (CA);

    1120 A.P.R. 360

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. FE.005

Susan Scheuermann Volcko (appellant) v. John B. Volcko (respondent)

(CA 425885; 2015 NSCA 11)

Indexed As: Volcko v. Volcko

Nova Scotia Court of Appeal

Hamilton, Scanlan and Bourgeois, JJ.A.

February 3, 2015.

Summary:

The parties married in 1990 and separated in 2006. At issue on the husband's petition for divorce was the determination of the parties' separation date, the division of certain property and child and spousal support.

The Nova Scotia Supreme Court, Family Division, in a decision reported at (2013), 339 N.S.R.(2d) 131; 1073 A.P.R. 131, determined the issues. The wife appealed regarding a number of issues. The husband appealed from the order of costs ($17,750 in favour of the husband).

The Nova Scotia Court of Appeal allowed the wife's appeal only to the extent of increasing the amount of ongoing spousal support payable to the wife from $15,000 per month to $20,000 per month. The husband's costs appeal was dismissed.

Courts - Topic 562

Judges - Powers - To grant relief notwithstanding pleadings - The husband asserted that shares held in his name with his employer constituted business assets as defined in s. 2(a) of the Matrimonial Property Act - The wife asserted that the shares were matrimonial assets subject to equal division - The trial judge held that the shares were business assets not subject to division - On appeal, the wife asserted that the trial judge had erred in failing to consider whether the wife had contributed to the shares so as to be entitled to an award under s. 18 of the Marital Property Act (Contribution to business asset by spouse) and an unequal distribution under s. 13 - The Nova Scotia Court of Appeal dismissed the appeal - The wife had not pursued relief under s. 13 or 18 - The court rejected the wife's assertion that the pleadings had been broad enough to allow the judge to consider both ss. 13 and 18 - In light of the wife's stated position that she sought an equal distribution, the husband had no reason to believe that claims under ss. 13 and 18 were a live issue - For the judge to have considered a division under these sections would have been an error as it would have amounted to a breach of procedural fairness - See paragraphs 41 to 48.

Courts - Topic 562

Judges - Powers - To grant relief notwithstanding pleadings - The husband asserted that shares held in his name with his employer constituted business assets as defined in s. 2(a) of the Matrimonial Property Act - The wife asserted that the shares were matrimonial assets subject to equal division - The trial judge held that the shares were business assets not subject to division - On appeal, the wife asserted that the trial judge had erred in failing to consider whether the wife had contributed to the shares so as to be entitled to an award under s. 18 of the Marital Property Act (Contribution to business asset by spouse) and an unequal distribution under s. 13 - The Nova Scotia Court of Appeal dismissed the appeal - The court rejected the wife's assertion that the trial judge had erred by not determining a just result and finding her way to it through ss. 13 and 18 - That was not the analysis mandated by the Act - There was a presumption of an equal division of matrimonial assets - The burden of establishing entitlement under s. 13 was on the spouse seeking an unequal division - Similarly, the burden was on the wife to present evidence that she had contributed to the shares - The wife had assumed the family's domestic responsibilities while the husband's career had flourished - That, without more, did not establish that an equal division would be unfair or unconscionable - The judge had not erred by not considering ss. 13 and 18 - See paragraphs 49 to 52.

Family Law - Topic 862

Husband and wife - Marital property - Distribution orders - Separation - What constitutes - [See Family Law - Topic 3605 ].

Family Law - Topic 868

Husband and wife - Marital property - Distribution orders - Property subject to distribution - Shortly after the husband moved out of the family home in October 2006, he purchased a residential condominium for himself to live in - On the division of property, the parties' separation date was at issue - The husband asserted that the parties had separated in October 2006, while the wife asserted that the separation took place in June 2009, when she learned that the husband was in a new relationship - The trial judge found that the separation took place in October 2006 and divided the property accordingly - On appeal, the wife asserted that the trial judge had erred in not finding the husband's condo to be a matrimonial asset and dividing its net value between the parties - The Nova Scotia Court of Appeal dismissed the appeal - In light of the parties' positions, after finding the separation date was prior to the purchase of the condo, the judge said nothing about the condo in her reasons - The husband's evidence was that the condo was purchased with his personal line of credit and dividends from his shares that were not deposited into the joint bank account he had with his wife - He paid the condo fees from his separate personal account and later took out a traditional mortgage - Given this evidence and the wife's position at trial, the judge made no reviewable error by not ordering an equal division of the condo - See paragraphs 53 to 58.

Family Law - Topic 875

Husband and wife - Marital property - Distribution orders - Statutes requiring equal division - Exceptions - [See second Courts - Topic 562 ].

Family Law - Topic 877

Husband and wife - Marital property - Distribution orders - Business, commercial or non- family assets - The husband asserted that shares held in his name with his employer constituted business assets as defined in s. 2(a) of the Matrimonial Property Act - The wife asserted that the shares were matrimonial assets subject to equal division - The trial judge held that the shares were business assets not subject to division - The purchase of the shares was not an automatic or mandatory feature of the husband's compensation - Nor were the shares a cornerstone of the family's financial planning - The history of financial decisions made by the parties had clearly resulted in their having paid down debt early on and accumulating a healthy asset pool - However, regarding the shares, the husband alone assumed the risk associated with them and carried the loans - The purchase of the shares had the requisite entrepreneurial character that made them business assets - The Nova Scotia Court of Appeal dismissed the wife's appeal - The judge made no palpable and overriding error in her findings of fact - The evidence supported the judge's finding that the shares "were not a cornerstone of the couple's financial planning" - Her decision was entitled to deference - See paragraphs 20 to 40.

Family Law - Topic 880

Husband and wife - Marital property - Distribution orders - Contribution to business asset - [See second Courts - Topic 562 ].

Family Law - Topic 880.4

Husband and wife - Marital property - Distribution orders - Exempt acquisitions - Post- separation - [See Family Law - Topic 868 ].

Family Law - Topic 880.47

Husband and wife - Marital property - Distribution orders - Particular property - Company shares, stock options, etc. - [See Family Law - Topic 877 ].

Family Law - Topic 942

Husband and wife - Marital property - Distribution orders - Practice - Pleadings (incl. form) - [See first Courts - Topic 562 ].

Family Law - Topic 966

Husband and wife - Actions between husband and wife - Practice - Costs (incl. interim costs) - [See Family Law - Topic 4175 ].

Family Law - Topic 3605

Divorce - Grounds - Separation - What constitutes "living separate and apart" - At issue was the parties' separation date - The husband asserted that it was in October 2006, when he left the matrimonial home and soon purchased another residence without the wife's input - The wife asserted that the separation took place in June 2009, when she learned that the husband was in a new relationship - Between those dates, the parties maintained close contact and attended counselling sessions - The trial judge held that the parties had separated in October 2006 - The husband had clearly formed an intention to live separate and apart and outside of a marriage state in 2006 as required under s. 3(a) of the Divorce Act - The husband's efforts to remain amicable and the parties' participation in marriage counselling did not blunt or negate the cumulative effect of all of the factors that pointed to a separation in 2006 - The parties' relationship after October 2006 was in the context of their mutual concern and consideration for their children - The Nova Scotia Court of Appeal dismissed the wife's appeal - The judge took into account all of the evidence and considered the appropriate law - She made no error in finding the date of separation - See paragraphs 12 to 19.

Family Law - Topic 3998

Divorce - Corollary relief - General - Children's post-secondary education - [See Family Law - Topic 4045.11 ].

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance awards - Retroactive awards - [See Family Law - Topic 4010 and Family Law - Topic 4045.11 ].

Family Law - Topic 4010

Divorce - Corollary relief - Maintenance awards - Periodic payments - The parties married in 1990 and separated in 2006 - Since the late 1990s, the husband had been the sole income earner, following the parties' mutual decision that the wife would leave the workforce to focus on raising the parties' children and providing flexibility for the husband's employment - At issue was spousal support - The trial judge ordered spousal support of $15,000 per month, based on the husband's 2012 annual income of $686,936, for an indefinite period - The Nova Scotia Court of Appeal allowed the wife's appeal - The judge's belief that the parties had agreed that the husband's income was $686,936 was mistaken - The record indicated that the husband's income in 2012 was $1,520,976; $1,546,923 in 2010; $1,282,936 in 2011 and at least $1,248,756 in 2013 - An appropriate amount of support considering the parties' circumstances was $20,000 per month - The trial judge had not erred in refusing to order retroactive spousal support - The wife's access to the parties' joint bank account from 2006 to 2009 had ensured that she had enough money to maintain her pre-separation lifestyle - She had saved $143,000 - She had suffered no disadvantage in the retroactive period - See paragraphs 70 to 87.

Family Law - Topic 4019

Divorce - Corollary relief - Maintenance awards - Appeals (incl. jurisdiction) - At issue on the wife's appeal was spousal and child support, the division of property and the trial judge's award of costs - The Nova Scotia Court of Appeal discussed the standard of review for each issue - See paragraphs 7 to 11.

Family Law - Topic 4045.11

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Children over the age of majority - At issue was child support for the parties' 19 year old child, who was in the second year of undergraduate university studies - The trial judge refused the wife's request for retroactive and ongoing child support - Instead, she ordered the husband to be solely responsible for the child's education and living expenses that were not covered by RESP accounts and to pay any other extraordinary expenses (s. 7 of the Federal Child Support Guidelines) as decided between the father and child - Regarding retroactive support, the children had been well cared for and all of their needs had been met, first through the use of the parties' joint account and later through the payment of child support - There was no basis on which a retroactive award was justified - Regarding ongoing support, the evidence was much too vague for conducting an analysis under ss. 3(2)(a) or 3(2)(b) of the Guidelines - The Nova Scotia Court of Appeal dismissed the wife's appeal - No adjournment was sought to enable more evidence to be presented regarding ongoing support - The trial judge had not erred in relying on the husband's undertaking to be solely responsible for the child's education and living expenses, given the "laudable manner in which the husband financially supported his children and wife following separation" - Regarding retroactive support, the evidence was clear that the husband had ensured that the children were financially secure - See paragraphs 59 to 69.

Family Law - Topic 4045.12

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Where income over $150,000 - [See Family Law - Topic 4045.11 ].

Family Law - Topic 4161

Divorce - Practice - Appeals - General - [See Family Law - Topic 4019 ].

Family Law - Topic 4175

Divorce - Corollary relief - Practice - Costs - General (incl. considerations) - The trial judge awarded the husband costs of $17,750 to recognize his success on the issues of date of separation, his shares, retroactive child and spousal support and prospective child support - She also determined that the amount should recognize the wife's success on extraordinary expenses, resisting imputation of income and the quantum and duration of ongoing spousal support - She took into account that the husband's financial situation was markedly better than the wife's, but noted that the wife was not impecunious given the substantial ongoing spousal support - She recognized that the issues the husband was successful on were the ones involving the greatest dollar amount, but noted that he had "misled" the wife to some extent by attending marriage counselling for several years despite his certainty that the marriage was over - She specifically refused to order disbursements given the lack of evidence - The husband appealed, seeking costs of $183,063.81, plus disbursements - The Nova Scotia Court of Appeal dismissed the appeal - See paragraphs 93 to 99.

Family Law - Topic 4188

Divorce - Corollary relief - Practice - Costs - Appeals from costs order - [See Family Law - Topic 4175 ].

Practice - Topic 1335

Pleadings - The issues - Issues to be raised must be pleaded - [See first Courts - Topic 562 ].

Cases Noticed:

Hickey v. Hickey, [1999] 2 S.C.R. 518; 240 N.R. 312; 138 Man.R.(2d) 40; 202 W.A.C. 40, refd to. [para. 7].

MacLennan v. MacLennan (2003), 212 N.S.R.(2d) 116; 665 A.P.R. 116; 2003 NSCA 9, refd to. [para. 8].

Wong v. Wong, [2008] N.S.R.(2d) Uned. 96; 2008 NSCA 43, refd to. [para. 9].

Fraser et al. v. Westminer Canada Ltd. et al. (2005), 233 N.S.R.(2d) 201; 739 A.P.R. 201; 2005 NSCA 27, refd to. [para. 10].

Young v. Young (2003), 216 N.S.R.(2d) 94; 680 A.P.R. 94; 2003 NSCA 63, refd to. [para. 11].

J.W.L. v. C.B.M. (2008), 267 N.S.R.(2d) 86; 853 A.P.R. 86; 2008 NSSC 215, refd to. [para. 23].

Bellefontaine v. Slawter (2012), 318 N.S.R.(2d) 29; 1005 A.P.R. 29; 2012 NSCA 48, refd to. [para. 48].

Bell v. Bell (2009), 272 B.C.A.C. 207; 459 W.A.C. 207; 2009 BCCA 280, refd to. [para. 79].

Bell v. Bell (2010), 284 B.C.A.C. 316; 481 W.A.C. 316; 2010 BCCA 138, refd to. [para. 79].

Ross v. Ross (1995), 168 N.B.R.(2d) 147; 430 A.P.R. 147; 16 R.F.L.(4th) 1 (C.A.), refd to. [para. 80].

Counsel:

Mary Jane McGinty and Angela A. Walker, for the appellant;

William L. Ryan, Q.C., for the respondent.

This appeal was heard at Halifax, N.S., on November 12, 2014, by Hamilton, Scanlan and Bourgeois, JJ.A., of the Nova Scotia Court of Appeal. On February 3, 2015, Hamilton, J.A., delivered the following reasons for judgment for the court.