Wilson v. Wilson, (2014) 349 N.S.R.(2d) 190 (SC)

• Judge: McDougall, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: May 29, 2014
• Jurisdiction: Nova Scotia
• Citations: (2014), 349 N.S.R.(2d) 190 (SC);2014 NSSC 300

Wilson v. Wilson (2014), 349 N.S.R.(2d) 190 (SC);

    1101 A.P.R. 190

MLB headnote and full text

Temp. Cite: [2014] N.S.R.(2d) TBEd. AU.022

Marilyn Frances Wilson (petitioner) v. Richard James Wilson (respondent)

(Tru. No. 1207-003714 (080651); 2014 NSSC 300)

Indexed As: Wilson v. Wilson

Nova Scotia Supreme Court

McDougall, J.

August 12, 2014.

Summary:

The parties were married for 18 years. The petitioner filed for divorce and sought corollary relief. The respondent did not file an answer to the petition. He brought a motion challenging the court's jurisdiction. He argued that Nova Scotia was not the convenient forum and requested that the court decline its jurisdiction or, alternatively, transfer the proceedings to Ontario. The respondent asserted that the more appropriate forum was Ontario because the most real and substantial connection of the parties and their dependent child of the marriage was with Ontario.

The Nova Scotia Supreme Court, in a decision reported at 341 N.S.R.(2d) 86; 1081 A.P.R. 86 dismissed the motion. The court awarded the petitioner $1,000 costs, payable forthwith.

The Nova Scotia Supreme Court granted a divorce and corollary relief.

Family Law - Topic 627

Husband and wife - Marital property - Matrimonial home - Occupation by one spouse - Claim for occupation rent - A wife sued for divorce and corollary relief - The wife sought, inter alia, occupation rent of $500/month for the 54 months between separation and the hearing (total $27,000) on the basis that the husband had had exclusive possession and use of the home during that time - He had also had the benefit of receiving rental payments of $600/month - The Nova Scotia Supreme Court noted that the wife was prepared to waive occupation rent if the equity in the matrimonial home was determined based on the present-day mortgage payout - The court was satisfied that this was the proper approach - As for disposition costs, the husband sought a 6% real estate commission while the wife argued for 5% - The husband argued that HST on the commission and legal fees of $1,000 should be included in calculating disposition costs - The court adopted a 5% commission, but otherwise attributed the disposition costs suggested by the husband - See paragraphs 14 to 16.

Family Law - Topic 631.2

Husband and wife - Marital property - Matrimonial home - Costs associated with - [See Family Law - Topic 627 and second Family Law - Topic 899 ].

Family Law - Topic 635

Husband and wife - Marital property - Matrimonial home - Disposition of - [See Family Law - Topic 627 ].

Family Law - Topic 868.2

Husband and wife - Marital property - Distribution orders - Debts - In dividing the parties' matrimonial property, an issue was the appropriate valuation date for their RBC line of credit - The wife submitted that it should be valued as of the separation date, October 1, 2009, rather than the end of the month thus eliminating post-separation growth - The husband submitted that the amount ($12,129.97) should be increased by $3,000 to account for post-separation interest - The Nova Scotia Supreme Court stated that no authority was suggested for adding this amount to the debt as of the separation date - However, any such carrying cost could be taken into account in the analysis of spousal support - Although there was an indication that this line of credit was secured against the matrimonial home, this was the type of debt that crystallized at separation - See paragraph 9.

Family Law - Topic 880.28

Husband and wife - Marital property - Distribution orders - Particular property - Pensions - The husband's pension was in issue when dividing the parties' matrimonial property - The Nova Scotia Supreme Court stated that "As to pensions, in the leading case of Simmons v. Simmons, 2001 NSSF 35, [2001] N.S.J. No. 276, Campbell, J., took the view that post-separation growth in a pension should not be shared as such growth 'is a function of post-separation contributions or years of employment service of the member spouse' ... This would indicate that [the husband's] pension should be valued for division purposes as of October 1, 2009 when its value was $74,325.92. ... RRSPs are properly valued as of the date of division except for post-separation contributions ... (Simmons ...)" - See paragraphs 12 and 13.

Family Law - Topic 880.32

Husband and wife - Marital property - Distribution orders - Particular property - Registered Retirement Savings Plans, R.E.S.P.'s, Income Funds, unregistered investments, etc. - [See Family Law - Topic 880.28 ].

Family Law - Topic 899

Husband and wife - Liability for spouse's debts - Debts incurred by spouse - General - In dividing the parties' matrimonial assets, the wife opposed the inclusion of a post-separation line of credit as a matrimonial debt - The debt was allegedly incurred for the education expenses of the parties' daughter - The Nova Scotia Supreme Court stated that it was not satisfied on the evidence that this was a matrimonial debt - See paragraph 10.

Family Law - Topic 899

Husband and wife - Liability for spouse's debts - Debts incurred by spouse - General - In determining the division of the parties' matrimonial assets, the wife opposed the inclusion of the post-separation loan for the acquisition and installation of new windows in the matrimonial home - She submitted that any resulting improvement was for the husband's benefit and should not be considered in the net division - The husband took the position that this expenditure preserved or increased the value of the matrimonial home to both parties' benefit - The Nova Scotia Supreme Court held that there was no evidence upon which the court could say what effect this expense had on the home's value - See paragraph 11.

Family Law - Topic 2211

Maintenance of spouses and children - General principles - Retrospective or retroactive orders - [See Family Law - Topic 4002.4 and Family Law - Topic 4022 ].

Family Law - Topic 2353

Maintenance of spouses and children - Maintenance of children - Retroactive maintenance - [See Family Law - Topic 4002.4 ].

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance and awards - Retroactive awards - [See Family Law - Topic 4002.4 and Family Law - Topic 4022 ].

Family Law - Topic 4002.4

Divorce - Corollary relief - Maintenance and awards - Circumstances when refused - The parties separated on October 1, 2009, after an 18 year "traditional" marriage - The wife petitioned for divorce - Division of matrimonial property, spousal support and child support were also in issue - The wife was disabled and had no income - She was living with her parents and had applied for CPP - The husband's 2013 line 150 income was $77,537 - His 2014 income from all sources (including rent) was projected to be $66,817.20 - The husband had been supporting the parties' daughter since the separation - The Nova Scotia Supreme Court stated that the husband was seeking, in effect, an award of retroactive child support by way of a division of a line of credit incurred for the daughter's education ($29,993.91) - The court had already held that this line of credit was not a matrimonial debt - The court was not convinced that any child support order would be appropriate - See paragraphs 20 to 24.

Family Law - Topic 4021.5

Divorce - Corollary relief - Maintenance and awards - Awards - Support guidelines - [See Family Law - Topic 4022 ].

Family Law - Topic 4022

Divorce - Corollary relief - Maintenance and awards - Awards - To wife - Considerations - The parties separated after an 18 year "traditional" marriage - The wife petitioned for divorce and sought spousal support - She had been disabled by a head injury when their daughter was one year old - In June 2010, the wife moved back to Nova Scotia from Ontario to live with her parents - She was represented by a litigation guardian - She had no employment income and had applied for CPP disability benefits - The husband's 2013 line 150 income was $77,537 - His 2014 income from all sources (including rent) was projected to be $66,817.20 - The wife sought support of $1,632/month, an amount in the mid-range under the Spousal Support Advisory Guidelines - She sought 54 months' retroactive support - While acknowledging that this exceeded the conventional three-year maximum for a retroactive award, she submitted that it was justified because the husband had been aware of the claim when the petition was filed and her parents had supported her in the meantime, when the obligation had actually been the husband's - He replied that there had been no interim spousal support motion and proposed $600/month, arguing that his current means were insufficient for his own needs, particularly given his ongoing responsibility for their daughter - He submitted that the wife was totally disabled and living with her parents and therefore should have few needs or expenses - She replied that there was no evidence that she could not live on her own - The Nova Scotia Supreme Court noted that while the husband had had primary care of the parties' daughter since separation, he had also had the benefit of not paying anything close to the appropriate quantum of spousal support - Moreover, that child care obligation was expected to end within the next year - The court awarded indefinite spousal support in an amount that fell within the ranges suggested by the parties based on Advisory Guidelines calculations, being $1,400/ monthly, subject to variation if circumstances changed (e.g., if the wife began receiving CPP disability benefits) - The divorce petition was filed on April 27, 2012 - The court allowed retroactive support commencing in May 2012 ($37,800) to be paid in $200 monthly instalments - See paragraphs 25 to 38.

Family Law - Topic 4022.1

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

Cases Noticed:

Henneberry v. Henneberry, [2004] N.S.J. No. 123; 2004 NSSF 25 (Fam. Div.), refd to. [para. 9].

Simmons v. Simmons (2001), 196 N.S.R.(2d) 140; 613 A.P.R. 140; 2001 NSSF 35, appld. [para. 12].

Soubliere v. MacDonald, [2011] N.S.R.(2d) Uned. 45; 2011 NSSC 98, refd to. [para. 14].

Haggerty v. Haggerty, [2010] N.S.R.(2d) Uned. 2; 2010 CarswellNS 6; 2010 NSSC 9, refd to. [para. 30].

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. 30].

Bracklow v. Bracklow, [1999] 1 S.C.R. 420; 236 N.R. 79; 120 B.C.A.C. 211; 196 W.A.C. 211, refd to. [para. 30].

Dingle v. Dingle, 2010 CarswellOnt 10743; 2010 ONCJ 731, refd to. [para. 32].

Counsel:

Bradford Yuill, for the petitioner;

Dianne Paquet, for the respondent.

This case was heard in Truro, N.S., on May 29, 2014, by McDougall, J., of the Nova Scotia Supreme Court, who delivered the following decision on August 12, 2014.