Volcko v. Volcko,

• Jurisdiction: Nova Scotia
• Judge: Beaton
• Neutral Citation: 2013 NSSC 342
• Citation: (2013), 339 N.S.R.(2d) 131 (SC),2013 NSSC 342,339 NSR(2d) 131,(2013), 339 NSR(2d) 131 (SC),339 N.S.R.(2d) 131
• Date: 30 December 2013
• Court: Supreme Court of Nova Scotia (Canada)

Volcko v. Volcko (2013), 339 N.S.R.(2d) 131 (SC);

    1073 A.P.R. 131

MLB headnote and full text

Temp. Cite: [2014] N.S.R.(2d) TBEd. JA.004

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

(1201-64277; 2013 NSSC 342)

Indexed As: Volcko v. Volcko

Nova Scotia Supreme Court

Family Division

Beaton, S.C.J.F.D.

December 30, 2013.

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, determined the issues.

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 Nova Scotia Supreme Court, Family Division, 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 - See paragraphs 29 to 42.

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 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 relationship - Between those dates, the parties maintained close contact and attended counselling sessions - The Nova Scotia Supreme Court, Family Division, 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 wife might have chosen to interpret the husband's actions in a particular light during the period between 2006 and 2009, but those same actions, viewed objectively, demonstrated the required intention, despite the husband's efforts to remain amicable - 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 - See paragraphs 7 to 28.

Family Law - Topic 3997

Divorce - Corollary relief - General - Economic self-sufficiency - [See Family Law - Topic 4010 ].

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 and awards - Retroactive awards - In October 2011, the parties executed a without prejudice interim agreement which stated in part that "The [father] has paid child support for the children since separation, and paid their private school and university expenses." - It also required the father to pay child support of $2,645.00 per month - The mother sought a payment of $60,000, representing her calculation of the shortfall between the child support actually paid and the amounts stipulated in the Federal Child Support Guidelines, for the period from June 2009 to the date of the hearing - The Nova Scotia Supreme Court, Family Division, declined to make a retroactive award - There was no explanation for why retroactive support was not sought earlier nor was there any wrongdoing or misconduct by the father - 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 - See paragraphs 47 to 54.

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance and awards - Retroactive awards - In refusing the wife's request for a retroactive award of spousal support, the Nova Scotia Supreme Court, Family Division, stated, "It is difficult to accept that any hardship might be suffered by the Husband were he required to make payment of the retroactive amount claimed by the Wife; his overall financial picture could hardly sustain a suggestion that he might be prejudiced under the weight of such a payment, positioned as he is with income and assets at his disposal sufficient to meet the amount claimed. Nevertheless, I decline to require the Husband to pay retroactive support in any amount as the evidence does not establish any disadvantage suffered by the Wife during the retroactive period; rather the Wife's entitlement to have her pre-separation standard of living perpetuated as far as possible was met by the Husband during the relevant period. ... The evidence does not point to or allow me to conclude the Wife suffered any economic displacement during the period in question. Permitting the Wife's claim for retroactive support would remedy no loss to her; it would serve only to transfer monies to her under the thinly veiled guise of spousal support." - See paragraphs 68 to 70.

Family Law - Topic 4010

Divorce - Corollary relief - Maintenance and awards - 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 wife sought support of $20,036 per month, which was the mid-range of the Spousal Support Advisory Guidelines for the husband's 2012 annual income of $686,936, for an indefinite period - The Nova Scotia Supreme Court, Family Division, ordered spousal support of $15,000 per month - The wife was entitled to both compensatory and non-compensatory support - The wife's need was difficult to assess - She would have an asset pool resulting from the division of matrimonial property that would allow her to generate a modest income - Her evidence made it clear that she had chosen not to work - However, that did not eliminate her legal obligation to explore a reasonable measure of self-sufficiency - Spousal support was not to be seen as a lifetime pension, but the duration of the husband's obligation was not easily determined at this point - The court rejected the husband's request that it impute an annual income of $90,000 to $100,000 to the wife - That range was purely speculative - Rather than speculate in that manner, it was appropriate to limit spousal support to an amount that could be supported on the evidence - See paragraphs 55 to 67.

Family Law - Topic 4021.1

Divorce - Corollary relief - Maintenance and awards - Considerations - Financial consequences of child care and household responsibilities - [See Family Law - Topic 4010 ].

Family Law - Topic 4021.2

Divorce - Corollary relief - Maintenance and awards - Awards - Considerations - Leaving labour market for family responsibilities - [See Family Law - Topic 4010 ].

Family Law - Topic 4021.4

Divorce - Corollary relief - Maintenance and awards - Awards - Considerations - Ability to pay (incl. potential to earn income and calculation of income) - [See Family Law - Topic 4010 ].

Family Law - Topic 4022

Divorce - Corollary relief - Maintenance and awards - Awards - To spouse - Considerations - [See Family Law - Topic 4010 ].

Family Law - Topic 4022.1

Divorce - Corollary relief - Maintenance and awards - Awards - To spouse - Extent of obligation - [See Family Law - Topic 4010 ].

Family Law - Topic 4034

Divorce - Corollary relief - Maintenance and awards - Awards - Effect of division of matrimonial property - [See Family Law - Topic 4010 ].

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 son, who was in his second year of undergraduate university studies - The father's 2012 annual income was $686,936 - The mother sought child support in the Federal Child Support Guidelines amount of $5,301 per month for the months when the child was not in school and 50% of that for when he was in school - The husband asserted that he should not have to pay child support as he was prepared to pay all of the expenses associated with the child's education and dependency that were not otherwise funded by RESPs that had been accumulated for that purpose - The Nova Scotia Supreme Court, Family Division, declined to make an order for child support - The evidence was much too vague for conducting an analysis under ss. 3(2)(a) or 3(2)(b) of the Guidelines - Further, the evidence clearly established that the father had historically financed the children's education above the application of funds specifically designated for that purpose - To require monies to flow from the husband to the wife would serve only to transfer cash - See paragraphs 43 to 46.

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 ].

Cases Noticed:

Dupere v. Dupere (1974), 9 N.B.R.(2d) 554; 1 A.P.R. 554 (Q.B.), refd to. [para. 8].

French v. French (1997), 162 N.S.R.(2d) 104; 485 A.P.R. 104 (S.C.), refd to. [para. 8].

Gardner v. Gardner (2005), 232 N.S.R.(2d) 68; 737 A.P.R. 68 (S.C.), refd to. [para. 8].

Miller v. Miller, [2000] N.S.R.(2d) Uned. 11; 2000 NSCA 64, dist. [para. 17].

J.L.L. v. G.A.L., [2010] Man.R.(2d) Uned. 17; 2010 MBQB 39, refd to. [para. 19].

O'Brien v. O'Brien, 2010 ONSC 5750, refd to. [para. 24].

Morrison v. Morrison (2013), 337 N.S.R.(2d) 98; 1067 A.P.R. 98; 2010 NSSC 358, dist. [para. 25].

K.L.S. v. D.R.S. (2011), 383 N.B.R.(2d) 47; 991 A.P.R. 47; 2012 NBCA 16, dist. [para. 26].

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. 32].

Clarke v. Clarke, [1990] 2 S.C.R. 795; 113 N.R. 321; 101 N.S.R.(2d) 1; 275 A.P.R. 1, refd to. [para. 36].

Hickey v. Hickey (1999), 179 Nfld. & P.E.I.R. 242; 546 A.P.R. 242 (C.A.), dist. [para. 36].

S.L.K. v. M.M.H. (2009), 283 N.S.R.(2d) 283; 900 A.P.R. 283; 2009 NSSC 319, refd to. [para. 36].

Bishop v. Drohan (2004), 226 N.S.R.(2d) 214; 714 A.P.R. 214; 2004 NSSF 77, refd to. [para. 36].

C.O. v. O.N.C. (2006), 264 Nfld. & P.E.I.R. 14; 801 A.P.R. 14; 2006 NLCA 47, dist. [para. 37].

Osmond v. Clarke - see C.O. v. O.N.C.

Tibbetts v. Tibbetts (1992), 119 N.S.R.(2d) 26; 330 A.P.R. 26 (C.A.), refd to. [para. 41].

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. 49].

Bracklow v. Bracklow (1999), 236 N.R. 79; 120 B.C.A.C. 211; 196 W.A.C. 211 (S.C.C.), refd to. [para. 55].

Moge v. Moge, [1992] 3 S.C.R. 813; 145 N.R. 1; 81 Man.R.(2d) 161; 30 W.A.C. 161, refd to. [para. 55].

Kerr v. Baranow (2011), 411 N.R. 200; 300 B.C.A.C. 1; 509 W.A.C. 1; 274 O.A.C. 1 (S.C.C.), refd to. [para. 68].

Counsel:

William Ryan, Q.C., and Sara Scott, for the applicant;

Gordon Kelly and Adrienne Bowers, for the respondent.

This action was heard at Halifax, Nova Scotia, on October 7-10, 2013, by Beaton, S.C.J.F.D., of the Nova Scotia Supreme Court, Family Division, who delivered the following written decision on December 30, 2013.