Whalen v. Whalen, 2010 NSSC 432

• Judge: O'Neil, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: November 22, 2010
• Jurisdiction: Nova Scotia
• Citations: 2010 NSSC 432;(2010), 298 N.S.R.(2d) 98 (SC)

Whalen v. Whalen (2010), 298 N.S.R.(2d) 98 (SC);

    945 A.P.R. 98

MLB headnote and full text

Temp. Cite: [2010] N.S.R.(2d) TBEd. NO.056

David James Whalen (petitioner) v. Cheryl Ann Whalen (respondent)

(1201-063785; 2010 NSSC 432)

Indexed As: Whalen v. Whalen

Nova Scotia Supreme Court

Family Division

O'Neil, J.

November 22, 2010.

Summary:

The parties began living together in May 1993. Their only child was born January 27, 1995. They married April 8, 1996 and separated on November 27, 2008. At issue was "1. Whether a divorce should issue. 2. Whether the parenting time enjoyed by the parties meets the definition of shared parenting as that term is used in s. 9 of the Federal Child Support Guidelines, SOR/97-175. 3. Whether [the husband]'s pension entitlement earned prior to his cohabitation with [the wife] is divisible; a period of approximately eight years commencing October 1985 and ending May 31, 1993. 4. The quantum of child support and the contribution to s. 7 expenses by each party. 5. The quantum of spousal support payable, if any. 6. The timing and related arrangements for the sale of the parties' former matrimonial home."

The Nova Scotia Supreme Court, Family Division, granted a divorce and determined the corollary issues.

Family Law - Topic 874

Husband and wife - Marital property - Distribution orders - Statutes requiring equal division - Exceptions (incl. judicial reapportionment) - [See Family Law - Topic 880.28 ].

Family Law - Topic 880.28

Husband and wife - Marital property - Distribution orders - Particular property - Pensions (incl. bridging benefits and pension annuities) - The parties began living together in May 1993 - Their only child (a son) was born January 27, 1995 - They married April 8, 1996 and separated on November 27, 2008 - At issue was, inter alia, whether the husband's pension entitlement earned prior to his cohabitation with the wife was divisible; a period of approximately eight years commencing October 1985 and ending May 31, 1993 - The husband asserted that to divide pension entitlement earned prior to May 1993 would be unfair - He asked the court to exercise its discretion under s. 13 of the Matrimonial Property Act - The Nova Scotia Supreme Court, Family Division, rejected the husband's assertion - The husband had not met the burden on him to establish that equal division would be unfair or unconscionable as that language was used in s. 13 of the Act - Other than the mere fact of the asset being acquired prior to cohabitation, there was nothing noteworthy about the manner of acquisition of this part of the pension - This was a medium to long term relationship and this weighed in favour of equal division, when the court was called upon to consider whether equal division of an asset would be unfair or unconscionable - See paragraphs 38 to 48.

Family Law - Topic 4022

Divorce - Corollary relief - Maintenance awards - Awards - To wife - Considerations - The parties began living together in May 1993 - Their only child (a son) was born January 27, 1995 - They married April 8, 1996 and separated on November 27, 2008 - At issue was, inter alia, the quantum of spousal support payable - The husband had pension income and employment income of approximately $70,000 - The wife worked as a hostess/waitress and bartender and earned $33,421.36 per year, including tips - The Nova Scotia Supreme Court, Family Division, was not prepared to terminate entitlement to spousal support - The relationship was in the medium to long term range - The parties were interdependent economically and accepted an economic obligation to each other - The wife was still in the initial phase of re-establishing herself in the work force and demonstrating economic self sufficiency - She continued to share responsibility for the care of their teenage son - The wife had employment related income of more than $33,000 and she had the opportunity to realize income from her share of the husband's pension - She was entitled to one half the value of the pension - The husband would be paying a small set off amount of child support - This would further reduce his income when the parties relative income levels were compared - The husband had substantial indebtedness - Considering the condition, means, needs and other circumstances of each spouse, only a nominal amount of spousal support was payable by the husband - The court ordered that he pay $50 per month in spousal support - See paragraphs 67 to 74.

Family Law - Topic 4022.1

Divorce - Corollary relief - Maintenance awards - Awards - To spouse - Extent of obligation - [See Family Law - Topic 4022 ].

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Calculation or attribution of income - The parties began living together in May 1993 - Their only child (a son) was born January 27, 1995 - They married April 8, 1996 and separated on November 27, 2008 - At issue was, inter alia, calculation of the wife's income for the purposes of the Federal Child Support Guidelines - The husband had pension income and employment income of approximately $70,000 - The wife worked as a hostess/waitress and bartender and earned $24,700 per year, including tips, the amount of which were in dispute - The husband believed that the wife's gratuity income approximated $15,000 per year - The wife declared a monthly gratuity income of $482.72 - The Nova Scotia Supreme Court, Family Division, grossed up her gratuity income to $1,200 per month for purposes of child and spousal support calculations - The court grossed up the gratuity income to reflect the fact that a significant portion of her gratuity income would remain tax free - Accordingly, her yearly income was adjusted to $33,421.36 - See paragraphs 51 to 57.

Family Law - Topic 4045.7

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Shared custody (at least 40% of time with each parent) - The parties began living together in May 1993 - Their only child (a son) was born January 27, 1995 - They married April 8, 1996 and separated on November 27, 2008 - At issue was, inter alia, whether the parenting time enjoyed by the parties met the definition of shared parenting as that term was used in s. 9 of the Federal Child Support Guidelines - The parenting schedule was based on the wife's work schedule of three mornings followed by three evenings, followed by three days off and the husband's schedule of working Monday to Friday one week and Monday to Thursday on the alternate week - On most Mondays, the husband dropped his son off at his mother's an hour or so before school and the son went to school from that location - This was the arrangement, even on those days when the husband would be picking his son up after school - The husband was involved, during the week and weekends, in the son's extracurricular activities - The Nova Scotia Supreme Court, Family Division, found that the husband's parenting time exceeded 40% and he was in a shared parenting arrangement as defined by s. 9 of the Guidelines - Hours spent in school was attributable to the parent responsible for the child when the child was in school or neutral - See paragraphs 9 to 36.

Family Law - Topic 4045.7

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Shared custody (at least 40% of time with each parent) - The parties began living together in May 1993 - Their only child (a son) was born January 27, 1995 - They married April 8, 1996 and separated on November 27, 2008 - At issue was, inter alia, the quantum of child support - The husband had pension income and employment income of approximately $70,000 - The wife worked as a hostess/waitress and bartender and earned $33,421.36 per year, including tips - The parenting time enjoyed by the parties met the definition of shared parenting as that term was used in s. 9 of the Federal Child Support Guidelines - The Nova Scotia Supreme Court, Family Division, concluded that the set off amount was the appropriate quantum of child support to be paid by the husband, the higher income earner - For child support purposes, the husband's income should include his pension income and the wife's income should be grossed up to reflect her receipt of benefits from the same pension entitlement; even if she chose not to access that benefit - The court was satisfied that the result was that the husband should pay monthly child support in the amount of $105 - See paragraphs 58 to 66.

Cases Noticed:

MacInnis v. Kennedy, [2010] N.S.R.(2d) Uned. 187; 2010 NSSC 318, refd to. [para. 12].

Torrone v. Torrone, [2010] O.T.C. Uned. 661; 2010 CarswellOnt 382; 2010 ONSC 661, refd to. [para. 16].

T.E.B. v. R.D.I.S., 2007 BCPC 56, refd to. [para. 16].

Froom v. Froom (2005), 194 O.A.C. 227 (C.A.), refd to. [para. 17].

Rush v. Rush (2002), 211 Nfld. & P.E.I.R. 198; 633 A.P.R. 198; 2002 PESCTD 22, refd to. [para. 20].

Morash v. Morash (2004), 221 N.S.R.(2d) 115; 697 A.P.R. 115; 2004 NSCA 20, refd to. [para. 38].

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. 38].

Verdun v. Dorrance (2006), 249 N.S.R.(2d) 67; 792 A.P.R. 67; 2006 NSSC 305, refd to. [para. 39].

Boston v. Boston (2001), 271 N.R. 248; 149 O.A.C. 50; 2001 SCC 43, refd to. [para. 49].

Marshall v. Marshall (2007), 261 N.S.R.(2d) 18; 835 A.P.R. 18; 2008 NSSC 11 (Fam. Div.), refd to. [para. 52].

Contino v. Leonelli-Contino, [2005] 3 S.C.R. 217; 341 N.R. 1; 204 O.A.C. 311; 2005 SCC 63, refd to. [para. 60].

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. 68].

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. 68].

Counsel:

Michele Cleary, for the petitioner;

Paula Condran, for the respondent.

This case was heard on September 23 and 24, 2010, at Halifax, Nova Scotia, by O'Neil, J., of the Nova Scotia Supreme Court, Family Division, who delivered the following judgment on November 22, 2010.