Supreme Court

                          IN THE SUPREME COURT OF NOVA SCOTIA

                             Citation: Denton v. Denton, 2005NSSC155  

                                                                                                     Date: 20050617

Docket: 1207-002420 (025053)

                                                                                                      Registry: Truro

BETWEEN:

Sharon Pearl Denton

Petitioner

and

Robert Archibald Denton

Respondent

                                                      DECISION

Judge:                   The Honourable Justice Gerald R. P. Moir     

Date Heard: 7, 8, 9, and 18 February 2005

With written submissions complete on 22 February 2005

Counsel:               Melinda J. MacLean, QC, for Sharon Denton

Lloyd I. Berliner, for Robert Denton

Moir, J. :

[1]              Introduction.   Sharon Denton was born in 1947.  She studied hair styling when she was sixteen and has practised that profession all her life.  Her first marriage was in the 1960s and she has three children.  The youngest is now thirty-three.  In 1979 she and two of her three children were living in her mobile home at Bible Hill.

[2]              Robert Denton was born in 1952.  He has high school and a year of training in electrical work at the Nova Scotia Institute of Technology.  He works for Canada LaFarge at its cement plant in Shortt’s Lake and has done so for twenty years.  Today he holds the title of Shift Co-ordinator. 

[3]              The Dentons met and moved in together in 1979.  Ms. Denton bought a new mobile home in 1980.  They were married in 1983.  A year later they sold Ms. Denton’s home and bought a home on Brookside Road, where they lived together until separation.  Mr. and Ms. Denton did not have children of their own but Mr. Denton was like a father to the two at home and he has a relationship with the next generation, Ms. Denton’s grandchildren.

[4]              The home on Brookside Road cost $55,000.  The equity in Ms. Denton’s mobile home provided the down payment.  Mr. Denton made the basement over into a hair salon and Ms. Denton was able to run her hairstyling business from her home rather than rent a chair downtown.  She decided in 1988 to cut back her work and she has been working part time as a hair stylist ever since.

[5]              During the marriage the couple had a joint bank account but they also kept some of their incomes and spent that as each pleased.  Mr. Denton bought and sold a few sports cars or motorcycles.  Also, Mr. Denton borrowed money without Ms. Denton knowing.  Despite Ms. Denton’s present complaints, I am satisfied that Mr. Denton’s independent action in buying cars or making loans was normal to the relationship. 

[6]              Mr. Denton’s family vacationed near a beach on the Northumberland Straight not far from Wallace.  His mother owned a cottage there and Ms. Denton also enjoyed this spot until 1992 when the Dentons bought their own cottage nearby.  It has been used consistently in the summertimes since then.  Both are much attached to it and the future of the cottage is a main issue in this case.   

[7]              The couple separated twice in recent years.  The second and final separation occurred on 15 October 2002.  Mr. Denton moved out and Ms. Denton remained in the Brookside Road home.  He covered the mortgage payments but she decided to move out in March 2003.  She was depressed and she found it hard to be in the home alone.  Mr. Denton criticizes this move as imprudent because Ms. Denton now has to pay rent and also rent a chair in a salon for her business.

[8]              Before the move, Mr. Denton was paying the mortgage and the insurance premiums.  Ms. Denton was covering the expenses of telephone, cable TV, lights, fuel and her groceries with some help from Mr. Denton if it was needed.  Ms. Denton rented a chair at For Your Hair Design on Pictou Road.  She pays $500 a month.

[9]              Spousal Support.   Ms. Denton seeks $17,000 to $22,800 per year  indefinitely.  Mr. Denton submits Ms. Denton has had enough time to achieve full self-sufficiency and should receive no support.  Alternatively he suggests $400 a month, subject to review as Ms. Denton makes efforts at greater self-sufficiency.

[10]         Mr. Denton was ordered to pay spousal support for the interim.  I cannot draw assistance from the amount previously ordered.  In cross-examination of Ms. Denton it was demonstrated that the financial information she provided to the Court at that time seriously overstated her expenses.

[11]         For 2004 Ms. Denton reports only $16,105 gross income.  She paid $6,000 for her chair rent and $2,140 for other expenses, making a reported net of $7,964.  She projects she will only earn $500 a month net in the future.  It is alleged that she has a practice of keeping two sets of books and under-reporting income.  That has not been established to my satisfaction.  However, she is not working much.  She restricts herself to three days a week and, on those days, she very seldom works full time and never overtime.

[12]         I find that Ms. Denton has not taken a prudent or responsible approach towards earning a sufficient income.  Her moving out of Brookside Road is an example of her imprudence.  She incurred fresh expenses for accommodations and her business: $695 per month for accommodations according to her revised Statement of Financial Information and $500 per month for her spot at the salon.  At that, she claims the move cost her a good number of clients.  She projects making only $500 a month but we can identify about $1,200 a month that she gave up without any thought to the economic consequences.  Probably she could not have stayed in the home indefinitely but her move shows an imprudence that heightens the Court’s concern that she should be motivated towards greater self-sufficiency.

[13]         Ms. Denton claims that she cannot work long hours standing without suffering pain.  I do not accept that she cannot work full time.  Firstly, no medical opinion has been offered in that connection.  Secondly, I did not find Ms. Denton to be credible.  In many respects she attempted to slant the facts to put her case in the best light and to cast aspersions upon Mr. Denton.  Thirdly, her work does not require her to stand all the time.  She could easily space appointments for rests and still work a full week.  Ms. Denton has been working three days a week part time.  This is especially concerning when one considers that her major business expense comes at the front and if she would work harder she would take home most of the extra cash.  A spousal support order should “insofar as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time”: Divorce Act, s. 15.2(6)(d).  It is not possible to project total self-sufficiency for Ms. Denton at any time in the future, not when self-sufficiency is measured against the standard of comfort she enjoyed during the long marriage.  However, her present laxity should not be encouraged at Mr. Denton’s expense.  The goal of greater self-sufficiency ought to be motivated by support that assumes full time employment.

[14]         If Ms. Denton can gross $16,000 working part time three days a week, I project she can gross $26,600 working part time five days a week and $40,000 or more working full time.  If her salon is too restrictive in allowing her to accept walk-in business or if she cannot attract enough clients there, she should look elsewhere.  She has a lifetime of practice and a proven record.  If she does not choose to make full use of her professional and business talents, her former husband should not have to pay for that choice.  At $40,000 gross, her chair rent would remain constant at $6,000 but her other expenses would increase proportionately ($2,140 / 16,000 X 40,000) to $5,350, giving her a net of $28,650.  For the purposes of encouraging Ms. Denton to make herself more self-sufficient, I would treat her income as being $30,000.

[15]         Mr. Denton works twelve hour shifts; two day shifts, two night shifts, with a change-over between.  He says the work can be “brutal”.  His employer wants production and quality, and one must work steadily for the twelve hours often standing on concrete floor while digging.  He says he has arthritis in his knees and takes dietary supplements to cope with it.  He sometimes has severe back pain.  He says his hands are beginning to “cup”.  The cords seemed shortened.  He has an appointment to see a specialist. 

[16]         As with Ms. Denton, there is no medical opinion that Mr. Denton is disabled or is about to become disabled.  I find that he may not be able to accept as much overtime in future but otherwise, I find he will earn at least his forty-eight hours a week.

[17]         Mr. Denton’s base wage for 2004 was $58,880.  With overtime, he made $77,414.  However, overtime was exceptionally high in 2003 and early 2004.  His 2001 and 2002 incomes were $66,072 and $67,305.  I accept that, as he is growing older and suffering from some medical complaints, he cannot be expected to work much more than his basic forty-eight hours a week.  For the purposes of assessing spousal support, I project that Mr. Denton will earn $60,000 a year.

[18]         Both Mr. and Ms. Denton have submitted statements of their monthly expenses.  As always, these require some scrutiny and adjustment.  I am satisfied, though, that both are spending more than they are taking in.  I am also satisfied that neither is living near the standard they were used to during the marriage.

[19]         If we were to use the applicable formula under Carol Rogerson and Rollie Thompson Spousal Support Advisory Guidelines: a Draft Proposal (2005, Canada, Department of Justice), Mr. Denton’s range of spousal support obligation would be calculated as follows:

          A   1.5% of gross incomes difference  = $450

          B   2% of gross incomes difference     = $600

          A   $600 X 23 years of cohabitation    = $10,350

          B   $800 X 23 years of cohabitation    = $13,800.

See, p. 36.  Factors relevant to settling the appropriate point within the range include a strong compensatory claim, the presence or absence of recipient’s compelling need, property division, need or limited ability to pay on the payer’s side and self-sufficiency incentives “although imputing income also goes a long way towards responding to this concern” (p. 54).  This is not a case for an award on the compensatory model in the sense of compensation for economic loss caused by the marriage.  Both parties shouldered family responsibilities. The children were already grown by the time Mr. Denton came along and he treated them as his own, both financially and otherwise.  Ms. Denton was able to continue her profession and to tailor the hours to her personal needs and preferences.  Both had their own spending money.  This factor inclines towards the low end, $10,350.  I have already dealt with self-sufficiency by imputing income.  We should leave property division and compelling needs aside for now.  They will either be neutral or they will incline to the lower level.

[20]         For Ms. Denton, Ms. MacLean referred me to the draft advisory guidelines and commended their usefulness.

[21]         For Mr. Denton, Mr. Berliner makes some strong arguments against paying attention to the draft advisory guidelines at this time.  He writes:

It is clear upon review that the proposed advisory guidelines are currently at an early stage in their formulation.  The authors of the report, Professors Carol Rogerson and Rollie Thompson, note that submissions are invited on the proposed advisory guidelines up until February 2006.  It is submitted that these consultations and recommendations will likely result in substantial changes to the report.  The authors recognize that the report is not legally binding and has been released as a practical tool to assist spouses, lawyers, mediators and judges in typical cases.  A problem this creates with direct applicability of the proposed advisory guidelines in the present case is that they remain subject to revision based upon the ongoing consultation with the bar and the public.

I agree with that comment to an extent.  The document remains a work in process and should not be adopted and applied when it is in such a state.  However, it is backed by such scholarship and detailed justification by way of accepted concepts in spousal support that it would be wasteful to ignore the document pending finalization.  Further, any movement toward certainty in this difficult field of law deserves the Court’s attention.  Mr. Berliner writes further:

The proposed advisory guidelines do not form a comprehensive manner of dealing with spousal support issues.  They do not deal with matters of entitlement.  They deal with issues of quantum and duration.  A difficulty with such a separation of entitlement, quantum and duration is that one cannot look at those issues with indifference to the others.  They all inform the analysis required under the case law as set out in Moge and Bracklow.  Under the proposed advisory guidelines once entitlement is established, the only facts considered are duration of the marriage and income differential.  Under the proposed guidelines, these issues are addressed under a mathematical formula which considers the length of the marriage and income differential of the parties.  It is respectfully submitted that the decisions of Moge and Bracklow, allow for judicial discretion to weigh the full circumstances of each case and to make rulings that are just in the circumstances.

Further on Mr. Berliner points out that his client’s case was prepared on the basis of established law, the report puts forward “a radical change to the analysis courts and practitioners have adopted” and “to adopt the proposed guideline analysis at this stage of the present case would be unduly prejudicial”.  In my opinion the report is consistent with the current state of the law except in its attempts to suggest rational steps for the application of established law and,  to suggest a degree of certainty over discretion by allowing income differential to mainly answer the question of need.

However, in many cases of long marriages these factors will be the most compelling because sharing incomes and expenses increases over time, as does mutual dependancy.

[22]         Mr. Denton’s position that the principle favouring self-sufficiency should quickly extinguish Ms. Denton’s support overemphasizes the need to promote a clean break over the other goals prescribed by the Divorce Act.  This is contrary to Moge v. Moge, [1992] 3 S.C.R. 813.  Unless it is broadly expanded to cover need as perhaps was done in Ross v. Ross (1995), 16 R.F.L. (4^th) 1 (NBCA), the compensatory goal embraced by Moge v. Moge does not assist  Ms. Denton.  It would be entirely artificial to presume that, but for the marriage, Ms. Denton could be more advantaged or Mr. Denton more disadvantaged.  However, Bracklow v. Bracklow, [1999] 1 S.C.R. 420 makes it clear that she is entitled to support on a needs basis.  I doubt support is ever settled on that basis by looking only at budgets.  Often they are not completely reliable.  Sometimes they are completely unreliable.  And, they never give the full picture.  Judges have to use their common sense, often paying more attention to incomes rather than what the parties say they need.  The Court is not likely, after a marriage of twenty-two years, to see a well paid industrial worker pay nothing to a struggling hair stylist.  Still, Mr. Berliner makes the point that the case has been presented on budgets.  To assess means and needs, I need firstly to know what happens on division of assets.  So, let us turn to that issue before concluding the discussion of spousal support.

[23]         Matrimonial Property.   Neither want the cottage sold.  Each wants it for themselves.  I heard much evidence from Mr. Denton about how attached he is to the property and the area, where he has vacationed since he was a boy.  I heard much from Ms. Denton about how attached she is to the cottage and the nearby social life, which she has enjoyed every summer for two and a half decades.  This case is different from Morash v. Morash, [2003] N.S.S.C. 63 in that, here, the parties have an equal attachment to the property and its surroundings.  Having so found, I am not prepared to order that either have exclusive possession.  The parties may reach agreement on (1) completing the renovations, (2) sharing the expenses, (3) maintenance and repair including time set aside for doing  such, (4) equal division of time and (5) the state in which the property is to be left including locks.  Or, I will order a public auction and an equal division of proceeds. 

[24]         I am going to delay division until after 1 January 2007 to give the parties time fairly negotiate with one another.  In the meantime, my order will divide occupancy and expenses.  Each party will pay one half of the mortgage payment, taxes and insurance.  A party who wishes to make repairs or improvements will notify the other and will keep receipts, which may be reimbursed upon sale.  Mr. Denton will have possession from 1 October to 30 April in both years to continue the renovations if he wishes.  His receipts may be reimbursed upon sale.  His possession will continue for pleasure or renovations until 15 July each year.  Ms. Denton will have possession from 15 July to 30 September.  There will be one lock with two keys, one for each.  If Mr. Denton wants to further secure the cottage when he has the right of occupancy, he is welcome to do so.  The sheriff will sell the property by public auction on whatever date the sheriff determines to be most advantageous after 1 January 2007.  The order would include terms for sale similar to those in foreclosure and sale.  Of course, there would be no sale if the parties come to an arrangement.

[25]         As I said, Ms. Denton pretty much cleaned out the matrimonial home. The matrimonial home was sold and the proceeds have been divided.  A small amount remained due to Mr. Denton.  I believe it has been paid to him. 

[26]         The contents of the home and some things removed from the cottage by Mr. Denton are worth $5,000 according to Ms. Denton and $7,000 according to Mr. Denton.  Ms. Denton suggests she divided the home contents evenly.  She did not.  I am satisfied with Mr. Denton’s valuation and his apportionment.  The parties may keep what is now in their possession, Mr. Denton’s being worth $2,000 and Ms. Denton’s, $5,000.

[27]         There is agreement on the rest of the assets.  So, the division is as follows:

As for debts, the parties agree the mortgage on the cottage is $18,235.64 and Ms. Denton’s Visa debt at the time of separation was $4,665.79.  There are disputes concerning another $7,500 on her Visa, the Respondent’s Visa account and his debts at the Bank of Nova Scotia.

[28]         Ms. Denton seeks to have $7,500 charged to her Visa after separation treated as matrimonial debt because she claims Mr. Denton provided inadequate support.  I have found that Ms. Denton failed to act prudently to protect the income she was earning at the matrimonial home and to increase her income by working more than part time, three days a week.  The debt was incurred after separation.  It should not be included in the division of liabilities.

[29]         At the time of separation Mr. Denton owed $15,061.68 on his Visa.  This debt accumulated over a period of years before separation.  He had a habit of drawing cash off the Visa and making cash purchases.  Purchases included gasoline, household needs and building supplies.  I am satisfied that this should be treated as a matrimonial debt.

[30]         The division of assets charges Mr. Denton with the value of a motorcycle, $14,000.  He borrowed money from the Bank of Nova Scotia to purchase a Camero.  He traded the Camero for a Corvette.  He traded the Corvette for the motorcycle.  I am satisfied that the Bank of Nova Scotia loan financed the motorcycle through these trades.  The debt is properly treated as matrimonial.  The debt was $12,136.92 at the time of separation.                               

[31]         Another loan with the Bank of Nova Scotia is more difficult to understand.  Mr. Denton’s sworn statement of property shows a loan owing to the Bank of Nova Scotia in the amount of $17,129.63.  In direct examination he affirmed that this related to vehicles he had bought for his own use over the years.  The only documentation from the bank shows a balance of $10,236.03 at the time of separation with payments of principal and interest of $396.78 a month.

[32]         Generally I found Mr. Denton to be credible.  I reject Ms. MacLean’s suggestion that Mr. Denton is hiding assets or income.

[33]         I am satisfied that all of Mr. Denton’s assets have been disclosed and included in the division.  I am satisfied that Mr. Denton has no other sources of income except as reported  to revenue.  Particularly, I am satisfied he did not make a significant profit when he did some snow plowing for a few people and he made no significant profit through any dealings with his brother, Phillip, including signing over his mother’s cottage, and he made no profit when he gave used cars to his stepson, Dwayne.  I am satisfied that the $10,236.03 debt is, in fact, the balance at separation of the debt Mr. Denton referred to as his trucks loan even though he could not identify the number $10,236.03 as opposed to $17,129.63.  I am satisfied on a balance of probabilities that this is a matrimonial debt.

[34]         Thus, I adjust the valuation of matrimonial assets as follows:

This is not a case for unequal division of matrimonial assets.  Therefore, equalization of matrimonial property will be achieved by ordering Mr. Denton to pay Ms. Denton $6,484.56.  The future liquidation of the cottage and equal sharing of proceeds on the equal division of value and mortgage would not affect the bottom line.

[35]         Spousal Support Revisited.   Ignoring the cottage mortgage, Mr. Denton has a debt load of about $50,000 to contend with and he will have to raise additional funds to finance the equalization payment.  He is paying about $1,700 a month on debt not including the mortgage.  This compares with approximately $12,000 owed by Ms. Denton on her Visa card.  She says she is paying $150 a month but should be paying $300.

[36]         My analysis of the budgets submitted concludes that, apart from Mr. Denton’s debt service, both are living moderately.  In my estimation, Ms. Denton should be making $2,500 a month.  If one excluded from her budget the mortgage payment on the cottage, insurance on the cottage, house repairs, which she no longer has, dry cleaning which she said was for towels and included in her expenses before net income, drug costs, which are being reimbursed under Mr. Denton’s plan and tax on spousal support, Ms. Denton’s expenses would be just over $2,000.  She would, however, be living with nothing extra.

[37]         I think Mr. Denton should be able to consolidate his loans at a reasonable rate of interest and substantially reduce the cost of debt service.  That being said, he does not have a lot of room.

[38]         Considering all of the circumstances, I will order that Mr. Denton pay Ms. Denton the sum of $750 per month as spousal support.

[39]         Conclusion.   I will order the cottage sold at public auction in two years unless the parties reach their own agreement for use or disposition.  In the meantime, I will order periods of exclusive occupancy on the terms discussed at paragraph 24 of this decision.  I will order an equal division of matrimonial assets by way of a payment of $6,484.56 by Mr. Denton to Ms. Denton.  I will order that Mr. Denton make best efforts to keep Ms. Denton on his drug plan if the plan provides for ex-spouses.  Mr. Denton will pay $750 in spousal support effective the date of my order.  I will also grant a divorce judgment.  Parties may address costs by written submission.

J.

Halifax, Nova Scotia

17 June 2005