IN THE SUPREME COURT OF NOVA SCOTIA
(FAMILY DIVISION)
Citation: O’Regan v. O’Regan 2009 NSSC 181
Date: 20090605
Docket: 41185
Registry: Sydney, Nova Scotia
Between:
DOUGLAS LORNE O’REGAN
Applicant
v.
SHEILA MARIE O’REGAN
Respondent
__________________________________________________________________
DECISION
__________________________________________________________________
Judge: The Honourable Justice Theresa M. Forgeron
Heard: June 12, 13, 16, 2008; September 22, 2008; November 6, 2008; December 10, 2008; and February 24, 2009
Post-trial Submissions: Last Submission Received May 1, 2009
Oral Decision: June 5, 2009
Written Decision: June 8, 2009
Counsel: Douglas Lorne O’Regan, Self-Represented
Shannon Mason, Counsel for Sheila Marie O’Regan
By the Court:
I. INTRODUCTION
[1] Douglas and Sheila O’Regan were married for approximately 30 years. Mr. O’Regan was the primary wage earner. He operated his own business until 2003, when he accepted full time employment with the Cape Breton District Health Authority. Ms. O’Regan was the primary caregiver of the children and assisted in Mr. O’Regan’s business. In 2002, Ms. O’Regan became involved in a job reentry program. She is now employed at a jewellery and gift store.
[2] The marriage began to unravel in 2002. The parties eventually occupied separate bedrooms and maintained separate lives, although they both continued to live in the matrimonial home. Mr. O’Regan left the home in May of 2005 as a result of police involvement. Ms. O’Regan has lived in the home since then.
[3] Despite the fact that only limited assets were acquired during this long term, traditional marriage, the trial lasted seven days. The parties were unable to agree on the division of assets and spousal support. The parties’ animosity negatively impacted upon the trial process and the resolution of the issues.
II. ISSUES
[4] The Court will determine the following issues in the course of this decision:
a) What is the burden of proof?
b) What is the date of separation?
c) Should an unequal division be awarded?
d) Should Ms. O’Regan receive compensation for her contributions to the business?
e) Should occupation rent be awarded?
f) What is the appropriate division of the assets and debts?
g) What is the appropriate spousal support award?
III. BACKGROUND
[5] Mr. and Ms. O’Regan married on July 20, 1974 and separated in 2004. Their two children were no longer dependent at the time of trial.
[6] Mr. O’Regan operated Doug O’Regan Plumbing/Heating and Oil Burning Service during most of the marriage. Ms. O’Regan assisted with the bookkeeping and banking for the business. She also took phone messages from customers. The bulk of the work of the business was completed by Mr. O’Regan. It was a modest operation. The business was not incorporated. The business acquired various tools and equipment associated with the trade over the course of its operations. There were no savings, nor investments.
[7] The parties’ lives followed a typical pattern for the time. Ms. O’Regan was the primary caregiver of the children. She also did most of the housework and cooking.
[8] Mr. O’Regan worked, but did not amass significant income. The family lived frugally. Mr. O’Regan was also primarily responsible for the upkeep and maintenance of the home. Because of limited time, and limited discretionary income, most household renovations and repairs were done by Mr. O’Regan and were completed over extended time periods. The house was in a constant state of repair and renovation.
[9] Mr. O’Regan now earns approximately $50,000.00 per annum through his work with the District Health Authority and through the odd job repairing furnaces of former customers.
[10] After Ms. O’Regan successfully completed a reentry program in 2002, she was hired by a local gift and jewellery store. Initially she had little seniority. As a result, there were various periods when she was laid off and collected EI benefits. Ms. O’Regan was at last hired on a permanent basis in 2009. She is now working full time hours, at a rate of $10.00 per hour. She is guaranteed 70 hours bi-weekly.
[11] The parties lived unhappily from approximately 2002 until May 15, 2005 when Mr. O’Regan was forced out of the home by the police because of an assault allegation. The assault charge was later withdrawn. Mr. O’Regan agreed to be bound by the terms of a peace bond.
[12] Mr. O’Regan filed a Petition for Divorce on August 17, 2005. Ms. O’Regan applied for interim relief. An interim order issued on January 18, 2006. Spousal support was set at a rate of $900.00 per month retroactive to April 30, 2005. Exclusive possession of the home in favor of Ms. O’Regan was also awarded at the time.
[13] The divorce trial was held between the months of June 2008 and February 2009. The following people testified at the trial: Amanda O’Regan, Douglas O’Regan, James Lewis, Freda Kennedy, Cathy Lewis, Pat Messervey, Sheila O’Regan. Post-trial submissions were received in March, April, and May, 2009. The matter was adjourned until June 5, 2009, for oral decision.
[14] What is the burden of proof?
[15] In F. H. v. McDougall, 2008 SCC 53, Rothstein, J. confirmed that there is only one standard of proof in civil cases - proof on a balance of probabilities. He further held that there are no degrees of probability within the civil standard. In every civil case, a judge should take into account the seriousness of the allegations or consequences, or inherent improbabilities; however, these considerations do not alter the standard of proof. In all cases, the court must scrutinize the evidence when deciding whether it is more likely than not that an alleged event occurred. The evidence must always be clear, convincing, and cogent to satisfy the balance of probabilities test. Testimony must not be considered in isolation, but rather examined based upon the totality of the evidence.
[16] Credibility plays a significant role when assessing the burden of proof. The court considers a number of factors when making credibility determinations. These factors were reviewed in Baker-Warren v. Denault 2009 NSSC 59 at paras 18 to 20 and have been considered by me in this decision. In Baker-Warren v. Denault, supra, the court held as follows:
[18] For the benefit of the parties, I will review some of the factors which I have considered when making credibility determinations. It is important to note, however, that credibility assessment is not a science. It is not always possible to “articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events:” R. v. Gagnon 2006 SCC 17, para. 20. I further note that “assessing credibility is a difficult and delicate matter that does not always lend itself to precise and complete verbalization:” R. v. R. E. M. 2008 SCC 51, para. 49.
[19] With these caveats in mind, the following are some of the factors which were balanced when the court assessed credibility:
a) What were the inconsistencies and weaknesses in the witness’ evidence, which include internal inconsistencies, prior inconsistent statements, inconsistencies between the witness’ testimony, and the documentary evidence, and the testimony of other witnesses: Re: Novak Estate, 2008 NSSC 283 (S.C.);
b) Did the witness have an interest in the outcome or was he/she personally connected to either party;
c) Did the witness have a motive to deceive;
d) Did the witness have the ability to observe the factual matters about which he/she testified;
e) Did the witness have a sufficient power of recollection to provide the court with an accurate account;
f) Is the testimony in harmony with the preponderance of probabilities which a practical and informed person would find reasonable given the particular place and conditions: Faryna v. Chorney [1952] 2 D.L.R 354;
g) Was there an internal consistency and logical flow to the evidence;
h) Was the evidence provided in a candid and straight forward manner, or was the witness evasive, strategic, hesitant, or biased; and
i) Where appropriate, was the witness capable of making an admission against interest, or was the witness self-serving?
[20] I have placed little weight on the demeanor of the witnesses because demeanor is often not a good indicator of credibility: R v. Norman (1993) 16 O.R. (3d) 295 (C.A.) at para. 55. In addition, I have also adopted the following rule, succinctly paraphrased by Warner J. in Re: Novak Estate, supra, at para 37:
There is no principle of law that requires a trier of fact to believe or disbelieve a witness's testimony in its entirety. On the contrary, a trier may believe none, part or all of a witness's evidence, and may attach different weight to different parts of a witness's evidence. (See R. v. D.R., [1966] 2 S.C.R. 291 at 93 and R. v. J.H. supra).
[1] In considering the arguments advanced by the parties, I have applied the civil burden of proof. I have reviewed the totality of the evidence with reference to the internal consistencies and inconsistencies, and in reference to the position of each of the parties. In determining whether either party has met the civil burden of proof, I have looked for clear, convincing, and cogent evidence. I have made specific credibility findings based upon the evidence and in light of the civil burden of proof. Each party bears the burden in respect of the arguments which he/she advanced.
[2] What is the date of separation?
[3] Position of the Parties
[4] The parties cannot agree on the separation date. In his submissions, Mr. O’Regan states the separation date is the spring of 2003 before he started to work with the Cape Breton District Health Authority. In his Petition, Mr. O’Regan stated that the separation date was May 15, 2005 when he was forced to leave the matrimonial residence.
[5] In her submissions, Ms. O’Regan argued that separation occurred in the summer of 2004. In the Answer and August 2006 affidavit, Ms.O’Regan argued a separation date of September 2004.
[6] Decision
[7] Section 8(2)(a) of the Divorce Act states that marriage breakdown is established if spouses live separate and apart for at least one year immediately before the determination of the divorce. Section 8(3)(a) of the Divorce Act states that intention is determinative of separation.
[8] In Dupere v. Dupere (1974), 9 NBR (2d) 554 (Q.B.) as affirmed in (1974), 10 NBR (2d) 148 (C.A.), the court held that a contested separation date was a matter of fact which had to be determined on a case by case basis. The court acknowledged the possibility of a physical separation despite spouses occupying the same dwelling. In such cases, separation is established when there is a complete withdrawal by one or both spouses from the matrimonial obligation with the intent of destroying the matrimonial consortium. A distinction must be drawn between an unhappy household, and a separated one. The court held at paras. 17 to 24 as follows:
17 I think the following general statements can be extracted as representing the weight of judicial opinion:18 (1) Great care must be exercised in considering the evidence and each case determined on its own circumstances.19 (2) There can be a physical separation within a single dwelling unit.20 (3) A case is not taken out of the statute just because a spouse remains in the same house for reasons of economic necessity.21 (4) To meet the statute there must be both (a) physical separation and (b) a withdrawal by one or both spouses from the matrimonial obligation with the intent of destroying the matrimonial consortium.22 (5) Cessation of sexual intercourse is not conclusive but is only one factor to be considered in determining the issue.23 (6) There may be an atmosphere of severe incompatibility but remain one household and one home -- a distinction may be drawn between an unhappy household and a separated one.24 The remarks of Denning L.J. (as he then was) in Hopes v. Hopes , [1949] P. 227, [1948] 2 All E.R. 920, a desertion case, are also, I think, applicable by analogy. At pp. 235-36 he said:
It is most important to draw a clear line between desertion which is a ground for divorce, and gross neglect or chronic discord, which is not. That line is drawn at the point where the parties are living separate and apart. In cases where they are living under the same roof, that point is reached when they cease to be one household and become two households, or, in other words, when they are no longer residing with one another or cohabiting with one another.
[9] I have also considered the extensive review on the topic, completed by Hood, J. in French v. French (1997) 162 N.S.R. (2d) 104 (S.C.) at paras. 9 to 12; and the summary of factors considered by Whitten J. in Taylor v. Taylor, 1999 CarswellOnt. 4653 (Sup. Ct. J.) which contains similar principles to those discussed above.
[10] I find that separation occurred on September 1, 2004 when Mr. O’Regan delivered to Ms. O’Regan a letter from his former lawyer confirming the break-down of the relationship and a severance of the matrimonial consortium. The parties had been slowly disengaging themselves from the matrimonial relationship from the beginning of 2002. This process was finalized on September 1, 2004. It was at this point that the unhappy matrimonial relationship dissolved into one where the parties were living separate and apart. The history leading up to this severance is outlined as follows:
a) Mr. O’Regan confronted Ms. O’Regan with his belief that she was wasting money by gambling in 2001. Ms. O’Regan apologized for her conduct in writing, although she did not specifically confirm that gambling was an issue. The parties stopped socializing as a couple after New Years of 2001/2002.
b) The problems within the relationship continued to escalate.
c) By the spring of 2003, the parties began to occupy separate bedrooms.
d) Ms. O’Regan bought a car and incurred a substantial, associated debt amidst Mr. O’Regan’s strong disapproval in May 2004.
e) The parties stopped using the joint account in the summer of 2004.
f) The parties started to do separate laundry in the summer of 2004.
g) After the letter from Mr. O’Regan’s former lawyer was delivered on September 1, 2004, a siege mentally overtook the household. Mr. and Ms. O’Regan became involved in strategic planning in an attempt to oust the other from the home. Emotionally and financially, the parties would have been better served by making immediate application to the courts for relief in the fall of 2004. Instead, reasonable and rational behaviour gave way to emotions. This eventually lead to a showdown between the parties in May 2005. At that time, Ms. O’Regan confronted Mr. O’Regan. She refused to leave Mr. O’Regan’s bedroom. Both were highly charged and irrational. Mr. O’Regan finally pushed Mr. O’Regan out of his room. Ms. O’Regan later called the police who had Mr. O’Regan removed. The criminal aspect of the interaction was eventually resolved through the issuance of a peace bond.
[11] Should an unequal division be awarded?
[12] Position of the Parties
[13] Ms. O’Regan seeks an unequal division of the matrimonial and non-matrimonial assets pursuant to s. 13(a), (d), (e), (f), (g), (i). Ms. O’Regan states that Mr. O’Regan impoverished the matrimonial assets by disposing of certain household contents without her consent. She states that the replacement value of the assets is between $6,000.00 to $7,000.00 . Ms. O’Regan further underscores the length of the relationship and her contributions as factors which support the unequal division claim. Ms. O’Regan states that she contributed significantly more to the marriage and the welfare of the family than did Mr. O’Regan.
[14] Mr. O’Regan denies that he impoverished any assets. He states that the items which were thrown away were old and, other than the cedar chest, were items that Ms. O’Regan also wanted to have removed. Ms. O’Regan had received an insurance settlement in approximately September 2003, and part of this money was to be used to acquire new living room furniture, including the sofa. Mr. O’Regan also notes that Ms. O’Regan gave away his bed and mattress to a neighbour without his consent. He states that Ms. O’Regan impoverished the assets by gambling. Mr. O’Regan also disputes Ms. O’Regan’s statement that she contributed more to the home and family than he did.
[15] Decision
[16] As Ms. O’Regan is seeking an unequal division, she bears the burden of proof. It is a heavy burden which requires proof of unfairness or unconscionability: Harwood v. Thomas (1981) 45 N.S.R. (2d) 414 (C.A.).
[17] In Jenkins v. Jenkins, (1991) 107 N.S.R. (2d) 18 (T.D), Richard J. reviewed the meaning of unfair and unconscionable as set out in s. 13 of the Matrimonial Property Act at para. 10, which states as follows:
10 I propose now to deal with the division of matrimonial assets in accordance with the law as set out in Donald, while remaining mindful of the comments of Macdonald J.A. in Nolet. To support a finding that a division is "unfair and unconscionable," it seems that there must be something more than mere inconvenience. The Random House Dictionary of the English Language, unabridged ed. (Random House, 1971) defines "unconscionable" variously as "unreasonable," "unscrupulous," "excessive," and "extortionate." These are strong words and, when coupled with the requirement that "strong evidence" must be produced to support an unequal division, the burden upon the party requesting an unequal division of matrimonial assets is somewhat onerous.
[18] I do not find that Ms. O’Regan has met the burden upon her. She has not proven that an equal division would be unfair or unconscionable. To the contrary, the evidence supports a finding that an equal division is the only appropriate division in the circumstances of this case for the following reasons:
a) Mr. O’Regan did not unreasonably impoverish the assets. Although, he did throw away well- used and worn out pieces of furniture, these did not have a market value. Similarly, Ms. O’Regan also disposed of household items without Mr. O’Regan’s permission, including his bed and mattress. These were likewise old and limited in value. Unfortunately, Mr. O’Regan did dispose of one household item with a value - the cedar chest. Nonetheless, this fact alone does not wipe out 30 years of prior contribution by Mr. O’Regan. I further find that although there is some evidence of gambling on the part of Ms. O’Regan, such evidence is insufficient to prove dissipation.
b) The parties were involved in a 30 year union. This accentuates, rather than detracts, from the presumption of an equal division. The length of cohabitation as a factor supporting an unequal division ordinarily is a reference to short term, not long term unions: Briggs v. Briggs (1984), 64 N.S.R. (2d) 40 (T.D.) as affirmed at (1984), 65 N.S.R. (2d) 126 (C.A.) and Donald v. Donald (1991), 103 N.S.R. (2d) 322 (C.A.).c) As to the date and manner of the acquisition of the assets, the history of this marriage and the contributions made by each of the parties supports, rather than denies the appropriateness of an equal division. The assets were acquired through the combined efforts of both parties. Each, for the most part, contributed all that he/she was capable of doing. Neither was perfect and some mistakes were made. However, the global picture is of a husband and wife struggling with limited financial means to do their best for the family.
d) Ms. O’Regan's assumption of domestic responsibilities helped Mr. O’Regan to acquire, manage, maintain and operate a business. This is a given. In return, Mr. O’Regan earned an income which was used to feed, clothe, shelter and provide for the needs of his family. Matrimonial assets were not sacrificed so that business investments could be accumulated. There are no such business investments or savings. The only business assets which were acquired were the tools and equipment necessary to operate the business in the first place. Mr. O’Regan gave all that he earned to the family. This finding once again supports an equal division conclusion.
e) The contribution of Ms. O’Regan to Mr. O’Regan’s career is acknowledged. She cared for the children when he was working. He was the primary wage earner. Each helped the other when he/she was able. These facts are not in dispute. There is nothing in this evidence which shows strong evidence to allow for an unequal division finding.
[19] In summary, Ms. O’Regan did not meet the burden upon her to prove that an equal division would be unfair or unconscionable. This was a lengthy marriage where both parties made substantial contributions to the acquisition of the limited assets which existed as of separation. Neither party contributed significantly more than the other. Ms. O’Regan did assist in the business. However, the time that she put into the business was considerably less than the hours worked by Mr. O’Regan. On the other hand, Ms. O’Regan spent more time fulfilling traditional child care and household tasks. She did not complete these tasks alone. She was also assisted by Mr. O’Regan when he was not working. The evidence overwhelmingly supports an equal division of the matrimonial assets.
[20] Should Ms. O’Regan receive compensation for her contributions to the business?
[21] Position of the Parties
[22] Ms. O’Regan makes a claim for monetary relief representing one-half of the value of the business assets which existed at separation. Ms. O’Regan states that she looked after the financial and banking aspects of the business, in addition to taking calls from customers. She was not paid for her work.
[23] Mr. O’Regan recognizes that Ms. O’Regan worked in the business. He notes that the business did not amass any savings or investments, but rather provided a source of income from which the family was supported. All monies earned from the business, although held in his name, went directly to pay for household expenses. Ms. O’Regan was thus already rewarded for her efforts.
[24] Decision
[25] Section 18 of the Matrimonial Property Act provides this court with the authority to respond to a business contribution claim. This section states as follows:
18 Where one spouse has contributed work, money or moneys worth in respect of the acquisition, management, maintenance, operation or improvement of a business asset of the other spouse, the contributing spouse may apply to the court and the court shall by order
(a) direct the other spouse to pay such an amount on such terms and conditions as the court orders to compensate the contributing spouse therefor; or
(b) award a share of the interest of the other spouse in the business asset to the contributing spouse in accordance with the contribution, and the court shall determine and assess the contribution without regard to the relationship of husband and wife or the fact that the acts constituting the contribution are those of a reasonable spouse of that sex in the circumstances. R.S., c. 275, s. 18.
[26] Neither party challenged the classification of the remaining tools and equipment as business assets, despite the fact that the business effectively ceased operations in 2003. I will thus treat the remaining tools and equipment as business assets because of the position taken by the parties.
[27] There are many cases in which courts have considered claims pursuant to s. 18 of the Act. In Marshall v. Marshall 2008 NSSC 11 (S.C.), this court reviewed the law in respect of such claims at paras 62 to 65, which provide as follows:
62 There are many cases in which the courts have considered a claim pursuant to section 18 of the Act. The outcomes in these cases are based upon the unique facts which were presented.63 Courts have denied claims for contribution for two reasons. First, where a spouse has already been paid for her/his contribution, then an award pursuant to section 18 in usually denied: Rushton v. Rushton (2006), 244 N.S.R. (2d) 242 (N.S. S.C.) and French v. French (1997), 162 N.S.R. (2d) 104 (N.S. S.C.). Second, claims are also denied where the contribution has been minimal: Crosby v. Crosby (2002), 207 N.S.R. (2d) 195 (N.S. S.C.) and Baggs v. Baggs (1997), 161 N.S.R. (2d) 81 (N.S. S.C.). However, where the wife was paid an insufficient amount for her work, a further award of $15,000 was deemed appropriate: Mason v. Mason (1981), 47 N.S.R. (2d) 435 (N.S. C.A.).
64 Some courts have preferred an unequal division as a method of achieving justice where there are business assets, rather than making an award pursuant to section 18 of the Act: MacDonald v. MacDonald (2007), 255 N.S.R. (2d) 270 (N.S. S.C.); Pelrine v. Pelrine (2006), 251 N.S.R. (2d) 29 (N.S. S.C.); and Todd v. Todd (1995), 144 N.S.R. (2d) 340 (N.S. S.C.). The Court of Appeal appears to have acknowledged the impact that unequal division awards have upon sec. 18 claims. In Sproule v. Sproule (1986), 73 N.S.R. (2d) 131 (N.S. C.A.), the Court of Appeal affirmed a $20,000 s. 18 claim to a wife for her extensive contributions to the business, given that an unequal division had also been awarded in the wife's favour.65 In other cases, a cash payment is provided to the non-owning spouse, the amount of which varies for the services provided. In Lynk v. Lynk, supra, the wife was awarded a one-third interest in the business because of the financial exposure she had accepted. In MacDougall v. MacDougall (2005), 231 N.S.R. (2d) 270 (N.S. S.C.), the wife was awarded $10,000 for her contribution to the business. In Reid (Smith) v. Reid (1989), 99 N.S.R. (2d) 207 (N.S. T.D.) the wife was awarded one-fourth of the value of the fishing operation for her contribution which consisted of painting the boat, acquiring and transporting bait, and bookkeeping. In Campbell v. Campbell (1986), 74 N.S.R. (2d) 25 (N.S. T.D.), Nathanson, J., awarded the wife a 10% interest in the value of the business as she cosigned business loans.
[28] I find that Ms. O’Regan has met the burden upon her in respect of this claim. She should receive compensation pursuant to s. 18 of the Matrimonial Property Act for her contributions, which included the following: preparing estimates and invoices; completing bank deposits; answering phone calls from customers; writing cheques; and performing the majority of the secretarial work of the business. Ms. O’Regan was not paid for her work within the business, presumably because there was no revenue available after Mr. O’Regan’s income was removed.
[29] Despite this conclusion, I do not find it appropriate or fair, in this case to provide Ms. O’Regan with a monetary award as representative of her claim. There are no business investments or savings from which such an award could be drawn. All that remains is some tools and equipment and old, dilapidated vans. The tools and equipment have not been the subject of a professional appraisal. Mr. O’Regan is not interested in retaining the items which were left in Ms. O’Regan’s care and control since May of 2005. I further find that the vast majority of the equipment has limited value and function.
[30] I therefore will provide Ms. O’Regan with a share of the tools, equipment, and vans. She will receive one-half of the tools and equipment which remain on the matrimonial property, and the other half will be provided to Mr. O’Regan. Mr. O’Regan will retain the tools and equipment which are in his possession, and which existed at separation, together with one-half of the other tools and equipment remaining on the matrimonial property. The parties, through counsel, will arrange for a date to equally divide the remaining tools and equipment located on the matrimonial property. Ms. O’Regan will have first selection, and then the parties will alternate choosing all pieces of tools and equipment until they have been completely divided in species between the two parties. Each party will become sole owner of the tools and equipment which she/he has chosen. As such, each will be free to sell or use the tools and equipment as each sees fit. There will be no further indemnification. The court retains jurisdiction to provide directions in the event the parties are unable to reach agreement as to the details of this division.
[31] Mr. O’Regan will dispose of the vans, and if he is able to obtain any value for them, the proceeds will be equally divided between the parties. However, given the fact that the vans are old, and nonoperational, it is not likely that much, if any, will be realized. Mr. O’Regan will file an Affidavit with the court and Ms. O’Regan outlining the disposition process and proceeds.
[32] Should occupation rent be awarded?
[33] Mr. O’Regan seeks occupation rent. Ms. O’Regan objects.
[34] In Carmichael v. Carmichael (2005) 238 N.S.R. (2d) 195 (S.C.), this court made an award of occupation rent where the husband occupied the matrimonial home, where there were no dependent children, and where the home was not encumbered by a mortgage. The competing factors to be balanced were reviewed at paras. 50 to 55. Since the decision was rendered, occupation rent has been refused in F. (B.D.) v. F. (R.V.) 2008 NSSC 236 (S.C.) by MacDonald J. and approved in Goodwin v. Goodwin, 2009 NSSC 109 (S.C.) by O’Neil J.
[35] The fact that Mr. O’Regan did not immediately make a claim for occupation rent is not fatal to his position as his claim was clearly understood by the time of trial and Ms. O’Regan had time to present her case given the months over which this case was heard: Mosher v. Mosher (1995) 140 N.S.R. (2d) 40 (C.A.).
[36] I find that Mr. O’Regan has proven on a balance of probabilities that this is a case where the payment of occupation rent is appropriate for the following reasons:
a) The matrimonial home was not encumbered by a mortgage. Ms. O’Regan was only required to pay property taxes, water rates, and insurance. In contrast, Mr. O’Regan paid rent.
b) Ms. O’Regan did not expend significant sums on the upkeep of the home after separation.
c) There were no under age children living in the home after Mr. O’Regan left. The home was not needed for the benefit of children.
d) Mr. O’Regan’s interest in the home has been outstanding since May of 2005. The home was the only significant asset of the marriage and, thus, Mr. O’Regan has been denied his share of its use for over 4 years.
[37] The quantum of the occupation rent, however, must be tempered for the following reasons:
a) Neither party can be blamed for the difficulty in scheduling trials in a system where priority is assigned to child protection matters because of legislative time restraints.
b) Ms. O’Regan did expend some monies on the residence, including the acquisition of an oil tank. She did effect some minor and cosmetic repairs.
c) Had Mr. O’Regan not engaged in inappropriate conduct, the parties may have been able to occupy the matrimonial home together.
d) Mr. O’Regan delayed advancing his claim for occupation rent.
[38] Approximately 48 months have elapsed. I will award occupation rent for 12 of those months. The home is worth approximately $57,500. Based upon Mr. O’Regan’s rent and the other factors stated, I award a lump sum of $2,400 in occupation rent.
[39] What is the appropriate division of the assets and debts?
[40] The business assets have been divided and Mr. O’Regan is owed a credit of $2,400 in occupation rent. The remaining assets and debts will be subject to an equal division as follows:
a) Household Contents: I accept that the household contents are worth
approximately $4,500 in the hands of Ms. O’Regan. She will retain ownership of these, with the exception of the few items hand crafted by Mr. O’Regan’s brother which will be returned to Mr. O’Regan. Ms. O’Regan can retain the Royal Daltons and other valuable collectables. Mr. O’Regan will be credited with the cedar chest and I affix a value of $750 for this asset.
b) Vehicles: Mr. O’Regan will retain the 1994 Plymouth Voyager. It was worth $2,500 at separation. He will also retain the 2003 ATV which I value at $5,000. Ms. O’Regan will retain the 2001 Mazda which she purchased just a few months before separation for $12,500. I affix a value of $11,500 on the date of separation.
c) Pension: There is a small pension entitlement. This will be
divided at source from the date of Mr. O’Regan’s enrollment to the date of separation of September 1, 2004.
d) Cash Surrender Value of Life Insurance and Bank Accounts: Mr. O’Regan
will retain this asset with a value of $1,469 because he used the cash surrender value after separation. Ms. O’Regan will receive credit for one-half of its value. I do not have exact bank account balances for September 1, 2004. The joint bank account was utilized until August 2004. Mr. O’Regan paid the majority of the household bills. There was little in savings. I will not divide bank balances as a result.
e) Other Debt: Mr. O’Regan will receive credit in the amount of $2,840 for the matrimonial debt which he paid post separation. This related to the ATV debt. Ms. O’Regan will be credited with the car loan of $18,347.
f) Matrimonial Home: The matrimonial home has an appraised value of
$57,500. Each party wants to retain the home. I find that it is not feasible for either party to retain the home, given the state of his/her finances. The home will therefore be immediately listed for sale with an agent acceptable to both parties, or in the absence of agreement, as determined by the court upon application. The home will be sold for its fair market value and the net proceeds will be equally divided subject to the credits stated in this decision and any outstanding support arrears. The court retains jurisdiction to provide directions to implement the terms of this provision in the event of disagreement as to process.
[41] Until the matrimonial home is sold, Ms. O’Regan will have the option of remaining in the home and paying Mr. O’Regan $200.00 per month in occupation rent pending its sale, or vacating the home and allowing Mr. O’Regan to occupy the residence while paying Ms. O’Regan $200.00 per month in occupation rent. Ms. O’Regan must provide Mr. O’Regan with notice of her intention by June 15, 2009. If no such notification is provided, then it will be assumed that Ms. O’Regan will remain in the matrimonial home paying occupation rent to Mr. O’Regan effective July 1, 2009 pending the sale of the home.
[42] Ms. O’Regan was and is solely responsible for the following expenses during her occupancy of the home: taxes, water rates, utilities, and insurance. Should she vacate the home, Mr. O’Regan will be responsible for these expenses during his occupancy of the home.
[43] The division of the assets and debts, excluding the home and business assets, is as follows:
Asset Value Husband Wife
Contents $5,250 $ 750 $4,500
CSV Insurance $1,469 $1,469
ATV $5,000 $5,000
Van $2,500 $2,500
Mazda $11,500 $11,500
Totals $25,719 $9,719 $16,000
Debt Balance Husband Wife
ATV Loan $2,840 $2,840
Car Loan $18,347 $18,347
Totals $21,187 $2,840 $18,347
Equity of Wife: $16,000 - $18,347 = -$2,347
Equity of Husband: $9,719 - $2,840 = $6,879
Equalization payment from Husband to Wife is $4,613 less occupation rent of $2,400 = $2,213. Once the home is sold, $2,213 will be transferred to Ms. O’Regan from Mr. O’Regan’s half interest.
[44] What is the appropriate spousal support award?
[45] Entitlement, duration, and quantum of spousal support are in contest. Section 15.2(1) of the Divorce Act provides this court with the jurisdiction to grant a spousal support order. Section 15.2(1) states:
A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.
[46] The factors which a court must consider in the spousal support determination are set out in s. 15.2(4), which states as follows:
In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including
(a) the length of time the spouses cohabited;
(b) the functions performed by each spouse during cohabitation; and
(c) any order, agreement or arrangement relating to support of either spouse.
[47] The objectives to be considered in respect of a spousal support order are set out in s. 15.2(6) which provides:
An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should
(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. 1997, c. 1, s. 2.
[48] I have considered the three foundational elements of spousal support as set out in Bracklow v. Bracklow 1999 CarswellBC 532 (S.C.C.). I have also considered the comments of the Supreme Court of Canada in Moge v. Moge (1992) 99 D.L.R (4th) 456 at para 85:
85 Although the doctrine of spousal support which focuses on equitable sharing does not guarantee to either party the standard of living enjoyed during the marriage, this standard is far from irrelevant to support entitlement (see Mullin v. Mullin (1991), supra, and Linton v. Linton, supra). Furthermore, great disparities in the standard of living that would be experienced by spouses in the absence of support are often a revealing indication of the economic disadvantages inherent in the role assumed by one party. As marriage should be regarded as a joint endeavour, the longer the relationship endures, the closer the economic union, the greater will be the presumptive claim to equal standards of living upon its dissolution (see Robertson, "Judicial Interpretation of the Spousal and Child Support Provisions of the Divorce Act, 1985 (Part I)," at pp. 174-75).
[49] Entitlement has been proven on a balance of probabilities. The parties cohabited for approximately 30 years. This was a traditional marriage during which Mr. O’Regan’s career and occupational skills were enhanced while Ms. O’Regan, for the most part, remained in the traditional unpaid workforce devoted to child care and domestic service. Ms. O’Regan has suffered economically because of the roles assumed during the marriage and also because of the marriage breakdown. This point is driven home when one views the approximate $30,000 difference between the parties’ current incomes. Ms. O’Regan’s ability to achieve economic independence has been significantly hampered because of the number of years she was absent from the paid work force and because of the lack of any significant vocational training. Ms. O’Regan, given her age, is likely to have reached the outer limits of her ability to achieve economic independence.
[50] I further find that Ms. O’Regan has a definite need, and contrary to Mr. O’Regan’s strong opposition, he has an ability to pay. Both parties must adjust their budgets. They have always struggled financially; living separate and apart will not make this struggle any easier.
[51] The Spousal Support Advisory Guidelines, based upon an income of $50,000 to Mr. O’Regan and $18,200 to Ms. O’Regan, suggest a monthly, spousal support payment of $973 to $1,272. These Guidelines do not replace the obligation of the court to review, examine, and balance the unique factors of each case in conjunction with the legislative requirements.
[52] Commencing July 1, 2009, Mr. O’Regan will pay spousal support of $973 per month payable in two equal monthly instalments of $486.50 on the 15th and last days of every month. This order will leave Mr. O’Regan with a net disposal income of approximately $2,215 per month and Ms. O’Regan with a net disposal income of approximately $2,061 per month.
[53] Mr. O’Regan is responsible for the insurance costs as well, which will benefit Ms. O’Regan. Mr. O’Regan will name Ms. O’Regan as beneficiary of his employment life insurance to secure the maintenance obligation. Proof of this designation will be supplied annually to Ms. O’Regan.
[54] Ms. O’Regan, as of the date of trial, did not have access to a medical plan. Mr. O’Regan will continue to retain Ms. O’Regan on his health plan for so long as the health plan allows, or until such time as Ms. O’Regan obtains health coverage under another plan. This is factor which was considered by the court in the determination of the quantum of the spousal support. Mr. O’Regan will cooperate in the efforts of Ms. O’Regan to obtain her own health plan card, if possible, and to obtain particulars of the coverage.
[55] The order is based upon the stated incomes, the insurance designations, and the parties not sharing expenses with a partner or otherwise. A change in these factors could constitute a material change in the circumstances and the appropriate invocation of s. 17 of the Divorce Act. Given the ages of the parties, and the length of the marriage, there will be no time limit placed on the maintenance obligation.
V. CONCLUSION
[56] The following relief is hereby granted:
a) a divorce;
b) a change of the surname of Ms. O’Regan;
c) an equal division of the matrimonial assets and debts as provided in this decision;
d) a division of the business assets;
e) an award of occupation rent in the amount of $2,400 and the continuing payment of $200 per month pending the sale of the matrimonial home;
f) the sale of the matrimonial home;
g) the payment of spousal support in the amount of $973 month which will be secured by Mr. O’Regan naming Ms. O’Regan as beneficiary of his employment life insurance; and
h) the requirement to continue coverage for Ms. O’Regan on the health plan of Mr. O’Regan for so long as the plan allows.
[57] Ms. Mason is to draft the orders and forward to Mr. O’Regan and the court within 2 weeks. Mr. O’Regan will have 1 week to respond to the form of the order presented. Cost submissions, if any, will be provided in writing by June 16th and responses filed by June 23rd.
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Forgeron J.