Date: 20020412
NOVA SCOTIA COURT OF APPEAL
[Cite as: Ryan v. Ryan, 2002 NSCA 51]
Glube, C.J.N.S., Cromwell and Hamilton, JJ.A.
BETWEEN:
JOANNE HELEN RYAN
Appellant (Cross-Respondent)
- and -
THEODORE AUGUSTINE RYAN
Respondent (Cross-Appellant)
REASONS FOR JUDGMENT
Counsel: Mr. Ryan, the cross-appellant, in person
Ms. Ryan (Pullin), the cross-respondent, in person
Appeal Heard: April 2, 2002
Judgment Delivered: April 16, 2002
THE COURT: The cross-appeal is dismissed per reasons for judgment of Hamilton, J.A., Glube, C.J.N.S. and Cromwell, J.A. concurring.
Hamilton , J.A.:
[1] This is a cross-appeal by Theodore Augustine Ryan from the decision of Justice Hood, dated June 26, 2001, and the Corollary Relief Order related thereto, dated September 28, 2001. This cross-appeal deals with the trial judge’s division of matrimonial assets and the failure of the trial judge to forgive $2,283.75 arrears for child care expenses, following a divorce trial that commenced June 6, 2000. (An appeal of the custody order made by the trial judge was heard separately, 2001 NSCA 182.)
[2] At the request of the cross-respondent I will refer to her herein as Ms. Pullin.
[3] With respect to the second issue, it is useful to note that until the conclusion of the divorce trial the parties were governed by court orders under which Ms. Pullin had custody of the parties’ daughter, Alexsandria Patrice Ryan, born September 10, 1996, and Mr. Ryan was to pay to Ms. Pullin $200.00 basic child support plus “75% of the daytime child care expenses” per month. By order dated December 17,1999 Justice Robertson dismissed Mr. Ryan’s application to, among other things, reduce his basic child support (which he always paid) from $200.00 to $124.00 per month, and to have his arrears of child care expenses forgiven, and ordered Mr. Ryan to pay $2,283.75 arrears for child care expenses.
[4] Justice Robertson’s decision was appealed to the Court of Appeal by Mr. Ryan but he abandoned his appeal September 25, 2001.
[5] In Justice Hood’s decision she divided the matrimonial assets unequally between the parties. She noted that she accepted the evidence of Ms. Pullin that “she was left with the responsibility for all matrimonial debts”. She also found that the March 31, 1992 agreement between the parties was a marriage contract pursuant to section 23 of the Matrimonial Property Act, despite the fact it was signed approximately two years prior to the marriage and made no reference to marriage. This agreement indicated the parties were cohabiting as common-law spouses and would be living in the property on the Old Sambro Road that was being purchased that day by Ms. Pullin with her $16,000.00 inheritance. In this agreement Mr. Ryan acknowledged that he had no interest, claim or equity in the property.
[6] In her decision the trial judge did not alter the amount of arrears of child care expenses and confirmed that there was no evidence before her that the arrears of child care expenses found by Justice Robertson to be owing as of November, 1999, had been paid by Mr. Ryan.
[7] Mr. Ryan argues the trial judge erred in ordering an unequal division of matrimonial assets and in not forgiving the arrears of child care expenses ordered by Justice Robertson to be paid. His grounds for appeal are:
1. That the Learned Trial Justice erred in law in finding it would be unconscionable to equally divide the matrimonial assets, specifically RRSPs held by the parties at the time of separation, and in granting an unequal division of the said assets.
2. That the Learned Trial Justice erred in fact and in law by failing to consider and/or give sufficient weight to the decision and Final Order of Justice Linda Lee Oland, dated December 9th, 1998, in arriving at her conclusion that Joanne Helen Ryan was left responsible for the matrimonial debts.
3. That the Learned Trial Justice erred in fact/or in law by concluding that a cohabitation agreement signed by both parties was a marriage agreement within the Matrimonial Property Act at the time of the separation of the parties which was determined as October 28, 1997.
4. Other such grounds as may appear from the transcript.
[8] On appeals such as this relating to a division of matrimonial assets pursuant to the Matrimonial Property Act, the Court of Appeal should not interfere with the decision of a trial judge unless there has been a material error in law or a significant misapprehension of the evidence. (Reardon v. Smith (1999), N.S.J. No. 403 and Roberts v. Shotton (1997), 156 N.S.R. (2d) 47).
[9] At the hearing of this cross-appeal Mr. Ryan sought to have a letter dated April 28, 1998, from Kenneth C. Greer to Peter A. Lohnes removed from the Supplement to Appeal Book submitted by Ms. Pullin on the basis it was not in evidence before the trial judge. On this basis I would order that this letter be removed and that it not form part of the record in this case.
[10] At the conclusion of the hearing the parties were advised that the cross-appeal was dismissed on the first three grounds but the issue of child care expenses was reserved.
[11] I will first deal with the issue of the forgiveness of arrears of child care expenses. Mr. Ryan argues the trial judge erred in not forgiving the whole of the arrears or, in the alternative, at least $833.75 of the arrears. At the hearing of this cross-appeal he indicated he has not paid any of these arrears. Mr. Ryan argues the trial judge should have forgiven the whole of the arrears once she heard his evidence that he could have babysat their daughter during the time covered by the arrears. He makes the same argument made before the trial judge that it was the parties’ intent set out in the Separation Agreement dated March, 1997, and confirmed by the subsequent orders of Chief Justice Kennedy and Justice Davison, that he would look after their daughter when Ms. Pullin wasn’t able to. He notes the comment of the trial judge in ¶21 of her decision that “...if a parent is available, the child should not be with a caregiver/babysitter instead”. I note this comment was not made in connection with the payment of arrears of child care expenses, but in connection with the issue of custody on which Mr. Ryan was successful.
[12] In the alternative, Mr. Ryan argues the trial judge should have forgiven $833.75 of the arrears since the total of the receipts for child care expenses introduced at the trial was $1,450.00.
[13] I am satisfied the trial judge did not err in refusing to forgive any portion of the arrears for child care expenses. There was evidence of Ms. Pullin before the trial judge from which she could reasonably conclude that $2,283.95 was the correct amount of the arrears. There was also evidence before her of the extreme antagonism between the parties making it difficult for them to deal with each other in moving their daughter between them, the need for advance warning to be given to the babysitter, and the wording of Justice Goodfellow’s order of June 24, 1999, which specified the access Mr. Ryan was to have and provided that any additional weekday access was at the discretion of Ms. Pullin.
[14] I will now deal with the division of assets. This division is governed by the Matrimonial Property Act. Section 4(1) defines “matrimonial assets” to exclude, among other things, “gifts, inheritances, trusts or settlements received by one spouse from a person other than the other spouse except to the extent to which they are used for the benefit of both spouses or their children”. The presumption in section 12 is an equal division of matrimonial assets. Section 13 however provides for unequal division where an equal division would be “unfair or unconscionable”.
[15] Section 13 sets out a number of factors that may be taken into account including:
(b) the amount of the debts and liabilities of each spouse and the circumstances in which they were incurred;
(c) a marriage contract or separation agreement between the spouses;
(d) the length of time that the spouses have cohabited with each other during their marriage;
(e) the date and manner of acquisition of the assets;
(j) whether the value of the assets substantially appreciated during the marriage.
[16] The evidence before the trial judge was that the matrimonial assets had a total value of approximately $55,000.00, including the $4,500.00 RRSP Mr. Ryan indicated he cashed in to pay his legal expenses in connection with separation. These assets were: the land at Three Brooks Development, worth approximately $22,000.00 less selling costs; the proceeds from the sale of the home on Old Sambro Road, $8,655.94; RRSP’s still in Mr. Ryan’s name of $7,713.11; RRSP’s in Ms. Pullin’s name that were contributed during the marriage of $10,157.40; furniture worth about $5,000.00; and Air Miles. The division of the last two are not in issue.
[17] The evidence before the trial judge about the debts of the parties that related to the marriage were that there were three debts. The first was owed to the Canadian Imperial Bank of Commerce (CIBC) in connection with $30,000.00 the parties borrowed jointly and severally in October 1994 to buy and clear the land known as Three Brooks Development. It is this debt to which Justice Oland’s decision of December 9, 1998, that is discussed later, relates. Mr. Ryan made two or three payments on this debt after separation but stopped paying on January 28, 1998. As a result of Mr. Ryan declaring bankruptcy on May 14, 1999, and being absolutely discharged on April 20, 2000, he had no further obligation to pay this debt. On the other hand, as of October 1, 1998, Ms. Pullin’s wages have been garnished $380.42 each month with respect to the judgement taken out by CIBC with respect to this loan. The amount of this judgment in September 1998 was $20,314.23.
[18] The evidence before the trial judge indicates the second debt the parties had was a loan in the amount of $15,000.00 from The Bank of Nova Scotia related to a consolidation of credit card debt. Ms. Pullin’s evidence was that this was a matrimonial debt and that she paid the monthly payments on this loan following separation until it was fully paid in December, 1999. There was no evidence to the contrary before the trial judge.
[19] The third debt related to furniture bought in May 1996. The evidence indicates Mr. Ryan’s company paid approximately $580.00 of this debt and that Ms. Pullin paid $677.00 following separation to pay it off.
[20] Thus the debts paid or being paid by Ms. Pullin following separation totalled more than $35,500.00 and there is no evidence that Mr. Ryan paid any matrimonial debt after he stopped making payments on the CIBC debt in January, 1998, three months after separation.
[21] Without considering whether the March 31, 1992, agreement between the parties is a marriage contract within the meaning of section 23 of the Matrimonial Property Act, and making no determination on that point, and taking into account that the home on the old Sambro Road was purchased with Ms. Pullin providing the whole of the down payment approximately five years prior to separation, I am satisfied the trial judge did not err in determining that an unequal division of matrimonial assets was appropriate to the extent of ordering Mr. Ryan to pay Ms. Pullin an amount equal to one half the proceeds he received from the sale of the home on Old Sambro Road, namely, $4,327.97, and ordering that each party would retain the RRSPs in their own name. Excluding furniture and Air Miles, and not taking income tax on Mr. Ryan’s $4,500.00 RRSP into account, this leaves Mr. Ryan with matrimonial assets worth approximately $7,713.11 and no debts, and leaves Ms. Pullin with matrimonial assets worth approximately $40,813.34 and debts of approximately $35,500.00.
[22] Mr. Ryan argued that Justice Oland’s order of December 9, 1998, proves he made payments on the CIBC loan obtained to purchase and clear the land at Three Brooks Development. On that basis, Mr. Ryan submits that the trial judge erred in finding that Ms. Pullin was left with the responsibility for all matrimonial debts, and using that as a basis for ordering an unequal division.
[23] There is no dispute Mr. Ryan made payments on this debt prior to separation and for two or three months thereafter. What the evidence before the trial judge indicates is that he made no payments toward debts incurred during the marriage after the parties separated in October, 1997, other than these payments. It is the post-separation payment of debt that the trial judge rightly relied on when she accepted Ms. Pullin’s evidence that she was left with the responsibility for all matrimonial debts.
[24] Accordingly the cross-appeal is dismissed. Even though Ms. Pullin was not represented by counsel at the hearing, she incurred legal costs preparing for the appeal in connection with reviewing the transcript and filing a factum in response to this cross-appeal that manifestly lacked merit, and accordingly I would order that Mr. Ryan pay Ms. Pullin’s costs in the amount of $1,000.00, inclusive of disbursements.
Hamilton, J.A.
Concurred in:
Glube, C.J.N.S.
Cromwell, J.A.