Supreme Court

                               SUPREME COURT OF NOVA SCOTIA

(FAMILY DIVISION)

Citation:   MacDonald v. Ferguson, 2010 NSSC 18

Date:   20100115

Docket:   SFHD-060383, 1201-062926

Registry: Halifax

Between:

Gene-Marie MacDonald

Petitioner

v.

Roderick Ferguson

Respondent

Judge:                            The Honourable Justice Beryl MacDonald

Heard:                            November 25, 2009, in Halifax, Nova Scotia

Written Decision:  January 15, 2010

Counsel:                         Mary Jane McGinty, counsel for the Petitioner

Diana Musgrave, counsel for the Respondent

By the Court:

[1]              This is a divorce proceeding. The Husband and the Wife married on December 30, 1989. At that time the Husband was 44 years old and the Wife was 36. They were both employed in the teaching profession. This was a second marriage for the Husband. The Wife had never been married. There are no children of their relationship. They separated on July 3, 2008 after a marriage of 18 ½ years.

[2]              In this proceeding both parties request a division of matrimonial assets. The Husband is seeking exemption of certain assets as inheritances and an unequal division of the matrimonial home. The Wife requests an equal division of all assets but should I exempt assets or should I grant an unequal division in favour of the Husband she requests an unequal division of her RRSP and her pension. Neither party is seeking spousal support from the other.

DIVORCE

[3]              I am satisfied that all jurisdictional requirements of the Divorce Act have been met and that there is no possibility of reconciliation. I am further satisfied there has been a permanent breakdown of this marriage by reason of the parties having lived and continuing to live separate and apart from one another for a period in excess of one year from the commencement date of this proceeding. A divorce judgment will be issued.

DIVISION OF ASSETS

Valuation

[4]              The parties have agreed upon the present values of the following assets:

[5]              The parties have not agreed upon the value of the RRSP’s. The Matrimonial Property Act , R.S.N.S. 1989, c. 275 does not specify the date or time upon which an asset is to be valued for the purpose of division. This is to be determined in the discretion of the trial judge.  (Lynk v. Lynk (1989), 92 N.S.R. (2d. 1); Reardon v. Smith (1999), 9 R.F.L. (5^th 83))  I adopt the statement of Justice Daley of the Family Court in his capacity as a referee in MacDonald v. MacDonald, [1991] N.S.J. No. 639, August 23, 1991:

“The key in valuating the matrimonial property is an orderly and equitable settlement of the spousal affairs, and whatever the date has to be to accomplish this purpose, it is the proper date.”

[6]              These RRSP’s fluctuate in value particularly in present market conditions. For  asset  trade off purposes I have accepted the valuations provided by the Wife. I consider  those to most closely reflect current values. They have been discounted for tax and for the Wife’s post separation contribution. As a result the value of the Wife’s RRSP is $115,715.00 and the value of the Husband’s RRSP is $133,972.00.

[7]              The Husband is the owner of an investment portfolio known as the RBC Investment Account to which is attached an RBC Savings Account held jointly with the Wife. The value of the investment portfolio fluctuates and a determination of value is intrinsically linked to my decision about it’s classification and division. The parties also argue about what money should or should not have remained in the joint RBC Savings Account after separation and in their joint TD account.  I will address this matter later in this decision.

FURNITURE and POSSESSIONS

[8]              The Husband attached a list of the furniture and possessions he wanted to remove from the matrimonial home. That list is Exhibit 13 attached to his affidavit sworn November 13, 2009. The Wife agreed he should have the items listed in Exhibit 13 with the exception of the Fisher Kent vegetable dish, the china cabinet, the dining room table and chairs, side board and mirror, the Regency mirror, the sofa and floor lamp and the kitchen stools. In final submissions counsel for the Husband indicated the Wife could retain all of the above items except for the dining room table and two small mirrors listed under dining room contents. I had some difficulty finding these two mirrors but believe these are the Oval framed Mirror and the Regency Mahogany Mirror. Each has a value of $75.00. If I accede to the Wife’s request she will retain furnishings the total value of which will be  $8,705.00. The value of the furnishings and possessions to be retained by the Husband will be $9,360.00. The Husband suggests because his mother had the dining room table and chairs specially made they have sentimental value to him. Throughout his evidence the Husband made the assumption that gifts given by his family were gifts to him alone. While some may have been gifts to him alone, gifts of furniture used by the family quickly lose their designation as a gift for classification purposes. While the wife can be compensated  for the loss of these items she has asked that they remain in the home where she is living and which she hopes to retain. Her requested furniture division comes closest  to an equal division. She will keep all of the items she has requested.

MATRIMONIAL HOME

[9]              The matrimonial home was purchased in October 1989 and was immediately registered in the joint names of the Husband and the Wife. The total purchase price was $154,000. The mortgage placed on the home at the date of purchase was $101,400.00. The home is a matrimonial asset.

[10]         The Husband seeks an unequal division of the matrimonial home pursuant to  the Matrimonial Property Act, section 13 (e) “the date and manner of acquisition of the assets”.

[11]         In Voiculescu v. Voiculescu 2003 CarswellNS 252 (N.S.S.C.) Justice Dellapinna said the following about the meaning to be attributed to the wording of section 13 of the Matrimonial Property Act:

37     Matrimonial assets are to be divided equally unless there is strong evidence showing that an equal division would be clearly unfair and unconscionable based on the factors listed in s.13 (see Harwood v. Thomas (1981), 45 N.S.R. (2d) 414 (N.S. C.A.)). It is not enough to simply find a rationalization for an unequal division in s.13:

. . .  It is not sufficient, for an unequal division of matrimonial assets, that one of the s.13 factors be present. The judge must make the additional determination that an equal division would be unfair or unconscionable. The terms "unfair" and "unconscionable" do not have precise meaning. Lambert, J.A. wrote in Girard v. Girard (1983), 33 R.F.L. (2d) 79; B.C.J. No. 4 (Q.L) (B.C.C.A.) supra, at p.86:

I come then to the legislative purpose expressed in the word "unfair". That word evokes ethical considerations and not merely legal ones. It is not a lawyer's word. The section does not give a judge a broad discretion to divide property in accordance with his own conscience. There can be no doubt about that. There must be uniformity and predictability of judgment. The question of unfairness must therefore be measured by an objective standard. The standard is that of a fair and reasonable person whose values reflect those generally held in contemporary British Columbia. Such a person, while not insisting that everyone adopt his or her behaviour preferences, can recognize unfairness in the form of a marked departure from current community values.

As directed in Harwood v. Thomas, supra, the judge must look at all of the circumstances, not simply weigh the respective material contributions of the parties. In S.B.M. v. N.M., [2003] B.C.J. No. 1142 (Q.L.) (C.A.), a recent decision of the British Columbia Court of Appeal, the court was asked to review the trial judge's unequal division of family assets. The Family Relations Act, R.S.B.C. 1996, c. 128, s. 65(1) permits a deviation from the prima facie unequal division of family assets, where an equal division would be "unfair". I would endorse the approach to the question of unfairness outlined by Donald, J.A. for the court. It is consistent with the direction in Harwood, supra  and the cases in this province which have followed:

_23  . . .  The question is not whether an unequal division would be fair; that is not the obverse of the test in s.65(1). The Legislature created a presumption of equality ‑ a presumption that can only be displaced by a demonstration that an equal division would be unfair. So the issue of fairness is not at large, allowing a judge to pick the outcome that he prefers from among various alternative dispositions, all of which may be arguably fair. He must decide, in accordance with the language of s.65(1), that an equal division would be unfair before he considers apportionment. Otherwise, although an equal division would be fair, a reapportionment could be ordered on the basis that it is more fair, and that, in my opinion, is not what the statute intends. (Young v. Young (supra) paragraphs 18 and 19

[12]         In Jenkins v. Jenkins (1991), 107 N.S.R. (2d) 18 (T.D.), Richard J. reviewed the meaning of unfair or unconscionable as set out in s. 13 of the Matrimonial Property Act :

 I propose now to deal with the division of matrimonial assets in accordance with the law as set out in Donald, supra, 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 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.

[13]         The Husband alleges that a significant portion of the purchase price paid for the matrimonial home consisted of gifts given to him by his family and from the sale of his former home. The husband’s information is that the balance of the purchase price came from a $20,000.00 cash gift from his father, a $10,000.00 cash gift from his Aunt, a loan from his Aunt in the amount of $10,000 and the balance from the Husband’s personal savings that included money from the  sale of his previous home in 1983.

[14]         The Wife’s information is that both the Husband’s father and his Aunt gave them monetary gifts totalling $30,000. She was present when the cheques were presented. She acknowledges they did borrow an additional $10,000.00 from the Husband’s Aunt after the purchase of the home and that this loan was eventually repaid. Exhibit 7 attached to the Husband’s affidavit, sworn November 13, 2009, does show a series of $500.00 withdrawals from an account.  The Husband alleges these were interest payments on the $10,000.00 loan from his Aunt. These payments begin in 1993 and according to the records provided they end in 1996 when the entire loan is paid. In paragraph 34 of his affidavit the Husband states he repaid this loan in 2002 but the records he provided indicate he repaid the loan completely in 1996. If this loan began in 1989 why are there no payments until 1993? I accept it is because the loan was made later for some other purpose. I accept the wife’s evidence that whatever money was given by the Husband’s family to assist with the purchase of the home, this was a gift to both the Husband and the Wife. In addition I am not satisfied that a bright line can be drawn, in respect to the “savings the Husband provided for the purchase of the home”,  between money the Husband received from the sale of his former home in 1983 and money he saved from his employment. Further it is often the case that one party puts more of his or her monetary resources into the purchase of a home than does the other party. This rarely entitles the party with greater financial resources to succeed in convincing a court that an equal division is unfair or unconscionable under circumstances such as these when a marriage has lasted for 18 years and the Wife has put all of her income into the acquisition and maintenance of matrimonial assets.

[15]         The Husband has argued that there should be an unequal division of the matrimonial home because he used monies from an inheritance to pay off a line of credit on the property just after the parties separated. The amount paid was $97,942.32. To understand this argument it is essential to understand how the Husband managed the household finances. The Wife left this management to him  and she took his advice without question. During their marriage he looked after her RRSP investments. Much of his retirement was devoted to managing their RRSP’s and the RBC Investment Account portfolio that the Husband now claims is entirely his asset because it was an accumulation of money gifted to him by or inherited from his family.

[16]         On his birthday in 1995 the Husband’s father gave him $50,000. With approximately $41,000.00 of this money the Husband opened the RBC/Action Direct Account, now part of the RBC Investment Portfolio. By late 1997 the Husband had inherited a total cash sum of $200,000.00 from his father’s estate. On July 4, 1997 he used some of that inherited money to completely pay out the Mortgage on the matrimonial home. The sum paid was $47,259.48. The remainder of the inheritance was invested in the ABC Fund which was later cashed out on April 7, 2000 and the amount received invested as part of what is now the RBC Investment Portfolio. Money from the investment portfolio was used by the Husband to purchase the BMW automobile and to augment the parties lifestyle.

[17]         On July 25, 1997 the Wife agreed to sign a collateral mortgage on the matrimonial home to secure a $100,000.00 line of credit the funds from which were invested in the RBC Investment Portfolio. The Husband testified that he would not pay the mortgage on the matrimonial home from money he received from his father’s estate unless the Wife agreed to a mechanism to reimburse him for using his inherited money. The Wife testified that she would not have consented to a $100,00.00 mortgage on the matrimonial home if the investments this line of credit made possible were not to be shared with her. The Husband convinced her that he could grow the investments into a nest egg for their retirement and for some time he was very successful in his investment pursuits. I accept the Wife’s evidence in preference to that given by the Husband.  The mortgage on the home was less than $50,000. If the Husband was merely replacing what he had paid the line of credit would have been for the same amount. I do not accept the proposition that he was also trying to retain the original money gifted to him by his family when he and the Wife purchased the matrimonial home. I find this is a rationalization he has now developed in order to deny the Wife an equal share in the matrimonial home.

[18]         After the parties separated, and without consultation with the Wife, the Husband paid the line of credit secured by the collateral mortgage. The amount paid was $97,942.32. It was paid from the RBC Investment Portfolio.

[19]         In ordinary circumstances this couple would have been equally responsible for the original mortgage debt. The Wife’s share would be $23,629.74. If the Husband retains the entire RBC Investment Portfolio, and is given an unequal division of the matrimonial home the Wife will have achieved no benefit from the line of credit placed on the matrimonial home except to the extent of her obligation on the original mortgage. If the Husband retains the investment portfolio he will have the total benefit of the investments leveraged with the additional $50,000.00 accessed through the line of credit  (the amount borrowed over and above the mortgage payout). This would to  some extent give him an opportunity to “have his cake and eat it too”.

[20]         It should be noted that the Wife did make mortgage payments on the matrimonial home before it was paid out. She paid interest on the line of credit. She paid other household accounts. She may not have paid these exclusively from her funds but it is clear that her entire income, which was not insignificant, was used to pay bills owed by both she and the Husband and contribute to her RRSP. She accumulated no other assets and the evidence suggests her contribution to basic living expenses was greater than the Husband’s although he contributed more to paying their “lifestyle accounts” as I would call expenditures for the sailboat maintenance, renovating the matrimonial home and so on. The Husband would have the court believe his was the greater financial contribution to the operation of the household. I disagree. His contribution was not greater to the operation of basic household expenses. All of the parties earned income was used to operate their household. The greater financial contribution he did make was purely at his choosing to augment their lifestyle. The Husband chose to use money he inherited and mix it with money from the line of credit to create an investment portfolio from which he financed, both before and after his retirement, the lifestyle enjoyed by both he and his Wife. He chose at separation to pay the line of credit from the RBC Investment Portfolio. He now wants that money back in addition to other money he received from inheritances which he used to renovate the matrimonial home. He made the monetary decisions. The Wife paid the bills from money in her account and from joint accounts into which the Husband made deposits, often from the investments, both in respect to investment income and capital.

[21]         The matrimonial home is a matrimonial asset. I have rejected the Husband’s contention the initial gifts from his family were given to him alone. I do not consider his use of “inherited money” to pay out the Wife’s share of the original mortgage to be of such significance in a marriage of this length, with contribution by the wife of all her working income to the family, to justify an unequal division. I do not consider it unfair or unconscionable to divide the matrimonial home equally between the parties.

[22]         The Husband also claims the matrimonial home should be unequally divided in his favour because he put so much of his inherited money into renovating the home. The home underwent several renovations. The comments I have made above also apply to this suggestion. Also of more importance, there is no section 13 factor that speaks to using inherited money for renovations as a justification upon which to base an unequal division unless “manner of acquisition” is expanded to incorporate the concept of repair and preservation. I do not consider that it does but if I am in error in this analysis, I do not consider it unfair or unconscionable to divide the matrimonial home equally under these circumstances.  Nor do I consider that section 13 (I) “contribution made by each spouse” or (j) substantial appreciation of asset value” are factors which  justify and unequal division of the matrimonial home.

INVESTMENT ACCOUNT

[23]         The Wife considers the RBC Investment Portfolio and the associated RBC joint savings account to be matrimonial assets. The Husband asserts these are exempt assets as gifs and inheritances pursuant to section 4 (1) (a) of the Matrimonial Property Act.

[24]         Section 4(1) (a) of the Matrimonial Property Act exempts gifts and inheritances from the definition of matrimonial assets. However that definition limits the  exemption by adding the words  “except to the extent to which they are used for the benefit of both spouses”.

[25]         In Fisher v Fisher, 2001 NSCA 18  Cromwell J.A., when considering how to quantify or describe the extent to which an asset is used for the benefit of both spouses, said:

49      It appears that the correct interpretative approach to the “extent of use” aspect of s. 4 (1) (a) has not been authoritatively resolved. However, in Tibbetts v. Tibbetts (1991), 106 N.S.R. (2d) 255 (N.S.T.D.), appeal allowed in part (1992), 119 N.S.R. (2d) 26 (N.S.C.A.), the trial judge found that a cottage which has been inherited by the husband prior to the marriage and used a few days once every year or two to be a matrimonial asset to the extent of 10% of its value. While the percentage of this asset classified as  matrimonial was increased on appeal, no exception was taken to the trial judge’s classification of the asset in proportion to its use for the benefit of the spouses and children.

........................

51      It is not possible or desirable to set out any hard and fast rules for determining the extent of use of an asset for the benefit of both spouses or the children. The fundamental issue, to use an expression that appears in some of the cases, is the extent to which the asset has gone into “the matrimonial pot” : see  Rossiter-Forrest v. Forrest (1994), 129 N.S.R. (2d) 130 (N.S.S.C.) and Stoodley v Stoodley (1997), 172 N.S.R. (2d) 101 (N.S.S.C.) This determination must be made having regard to the nature of the asset and what use, in the normal course of life, would constitute integration of an asset of that nature into the life of the family. Factors such as the degree to which the asset was kept and treated separately from matrimonial assets, the amount and nature of its use by, or on behalf of , the spouses or the children and the contribution of family resources to maintain or enhance the asset may be factors which will be helpful to consider in making this determination. This, of course, is not an exhaustive list.

[26]         The RBC Investment Portfolio is the successor to the investments carried in the Action Direct Account and the ABC Fund. It contains whatever remains of the gift of $50,000.00 from the Husband’s father, the inheritance he received from his father in 1996 and 1997 and whatever  remains from the $172,340.76  inherited from his Aunt in 2002 and 2003.

[27]         The RBC Savings Account was required as part of the investment portfolio package. Dividends were placed into this savings account as were the profits from trades thus the money in this account can reasonably be considered to include capital as well as income. This account was also used to purchase additional investments. However, significant sums were taken by the Husband on a yearly basis to pay visa bills, household renovations, and other expenditures that benefited both the Husband and the Wife. On June 9, 1997 the Husband made the RBC Savings Account a joint account with the Wife. The Husband also added the Wife to the RBC Investment Portfolio as a “trading authority”. A trading authority can:

a)       instruct RBC Direct Investing with respect to the purchase, short or sale of securities, and the purchase, redemption or switching of mutual funds;

b)       instruct RBC Direct Investing with respect to Initial Public Offerings and re-organizations;

c)       request a funds transfer to or from the bank account number on file (the RBC Savings Account)

[28]         The trading authority cannot make any material change to the account. The Wife received a ‘client card”, essentially a pin card, to access the RBC Savings Account and the RBC Investment Portfolio on line.  Although the RBC Investment Portfolio  remained in the sole name of the Husband, given the authority he provided  to the wife, it is understandable she believed she was a joint owner of this investment portfolio. Her authority over the portfolio was considerable. Objectively an observer of this fact situation would consider the Wife to have been given a significant interest in this investment whether she chose to exercise her authority or not.

[29]         The Wife did not in fact provide any instructions to RBC regarding the portfolio nor did she access the savings account until after separation. However the important point is that she could have done so. I consider this action by the Husband was more than a mere convenience for her in the event of his death. I do consider his actions were taken in recognition of their partnership and their joint contributions to their marriage.

[30]         The continuous use of the RBC Savings Account by the Husband to elevate the parties lifestyle clearly contributed to the Wife’s understanding that the RBC Investment Portfolio, which was intimately attached to the Joint RBC Savings Account, was a joint asset.  Also contributing to this were the Husband’s conversations with the Wife indicating the investment account was their retirement nest egg. A final contributing factor  was the insertion of cash into this investment from the line of credit on the matrimonial home. The actions of the Husband satisfy me that the RBC Investment Portfolio was “used for the benefit of both spouses”.  I am satisfied that the entire RBC Investment Portfolio was used and intended to be used for the benefit of both the Husband and the Wife. It was used to pay regular basic household accounts, it was used to renovate their home and it was used to maintain a lifestyle the couple might not otherwise have been able to afford. It is a matrimonial asset. However, this does not conclude the analysis. Section 13 may justify an unequal division of  this asset.

[31]         There is no question that all of the Husband’s inherited money from his father’s estate, his aunt’s estate, and a portion of his $50,000 birthday gift went into investments the remainder of which eventually became the RBC Investment Portfolio. The wife did not put any of her personal income into this portfolio. However, the Wife did contribute through the line of credit placed upon the matrimonial home. There is evidence of considerable expenditure of the gifted money and of the money from the Husband’s father’s estate for family purposes prior to and after the placement of the line of credit. Given the growth of the investment portfolio, until the recent market downturn, it is likely the “extra” $50,000 provided by the line of credit, (ie. the amount in excess of the paid out mortgage on the matrimonial home), grew so that it may have doubled or tripled in value.  It is impossible to calculate the exact contribution provided because of the intermingling of the money from the line of credit with the inherited money. Nevertheless the initial investment money, the seed money (so to speak), came from gifts and inheritances provided to the Husband. A review of the case law in Nova Scotia suggests it is rare for this type of contribution to be completely ignored in a section 13 analysis. Under these circumstances I am of the opinion that it would be unfair and unconscionable to equally divide the RBC Investment Portfolio. The Husband’s shall have a 65% interest in this portfolio leaving the Wife with a 35% interest. In dividing this portfolio the parties must take into account tax and other considerations. I retain jurisdiction to adjudicate upon this issue to determine the appropriate value or monetary division if the parties are unable to do so.  The RBC Savings Account remains as a joint matrimonial asset and it will be equally divided.

RRSP

[32]         The parties RRSP’s are to be equally divided.

PENSIONS

[33]         The Husband has retired and is in receipt of his pension. The Wife may continue to work for a number of years. Given the uncertainties implicit in the pension valuations that have been prepared, and at the parties request, these pensions from the date of marriage until separation are to be divided equally in accordance with the appropriate pension division legislation. Neither party has requested a division of pension credits or benefits earned prior to the parties marriage.

[34]         The Wife had requested an unequal division of her pension if I granted an unequal division of assets in favour of the Husband. I have granted the Husband an unequal division of the portfolio. The Husband is presently receiving his pension. He will receive less monthly income once his pension is divided. The only addition to that income will be what is provided from the portion of the investment portfolio he will retain. The Wife continues to work. It may be sometime before the Husband will receive any monetary payment as a result of the division of the Wife ‘s pension. This is a reasonably lengthy marriage. Both parties contributed to this marriage. There is no section 13 factor that suggests an equal division of the asset  would be unfair or unconscionable.

LONG TERM SERVICE AWARD

[35]         The Wife will receive a long term service award when she retires.  The value, before tax, of the portion of this award accumulated over the course of the marriage, is $33,480.00. The parties have agreed the Wife shall hold the Husband’s share of this award in trust for payment to him upon her retirement. The payment will take into account the then value of this asset and apply the appropriate tax deduction.

USE OF BANK ACCOUNTS AND DEBT PAYMENT AFTER SEPARATION

[36]         Both parties initially made submissions that the other had removed money from the bank accounts after separation and requested those monies be added back for the purpose of asset division. However, by agreeing to the valuations in respect to those accounts I have accepted these are the appropriate amounts upon which to calculate that division. If I have misinterpreted the parties submissions, the evidence leads me to conclude these are the appropriate values to be used for division purposes. The money withdrawn by the Wife was taken from joint bank accounts that I have decided are non exempt matrimonial assets.  The money taken was used to pay joint matrimonial debt (house repairs and a visa account) while money withdrawn by the Husband, with the exception of the $21,000.00 now appearing as the value of the RBC Savings account, was used to pay out the line of credit.  I make no adjustment to the valuations of these accounts as outlined in paragraph 4 of this decision.

[37]         In written submissions the Husband requested reimbursement for money he provided the wife to pay his share of real property taxes on the matrimonial home. After separation the Husband alleges he paid one half the property taxes owing in September 2008 and in April and September 2009. He appears to have done so voluntarily since I have no evidence before me to suggest otherwise. He seeks to have these payments reimbursed by the Wife who has had exclusive occupation since separation. This occupation arose with the acquiescence of the husband. The wife has paid all other household expenses associated with her occupation.

[38]         The requirement to pay real property tax is an incident of ownership not of occupation. The Husband has remained as a joint owner of the matrimonial home since separation.  I do note that often this expense is required to be paid by the occupant on behalf of the non occupying joint owner. However, in this case the amount to be reimbursed was not provided to me nor was the request explored in examination. No oral submissions were made in reference to this issue. The Husband’s asset division charts make no reference to this amount. Under these circumstances I decline to make any award in respect to this claim.

OCCUPATION RENT   

[39]         In written submissions the Husband requested occupation rent.

[40]         In Andrews v. Andrews, 2006 NSSC 120 (T.D.) Justice Dellapinna conducted a review to determine the appropriateness of this claim in Nova Scotia given that the Matrimonial Property Act, R.S.N.S. 1989, c. 275, s. 11(1) provides a procedure for dealing with issues relating to exclusive possession.  His analysis suggests this should be a rarely used remedy. I agree.

[41]         Justice Forgeron in Carmichael v. Carmichael, 2005 CarswellNS 597 (N.S.S.C.)  reviewed Andrews v. Andrews and decisions in other provinces. Justice Forgeron found that the circumstances of the case under her consideration supported an award for occupation rent. In that case the parties had no children. The occupant, Mr. Carmichael, was residing in the home while Mrs. Carmichael was renting an inferior residence. Justice Forgeron found that “ ......both had a presumptive equal need for the equity in the home.” (paragraph 56).  There was no mortgage on the home but Mr. Carmichael was granted full credit for all interest payments and debt payments he made post separation. He had been in occupation for almost 6 years.

[42]         In this case there are no children. The Wife has paid all costs associated with home ownership with the exception of real property taxes to which the Husband has contributed. I have no evidence to suggest the Husband has been living in inferior premises. I have no Statement of Expenses from the Husband. I do not know if he has paid rent. The parties have only been separated for 17 months and the Wife commenced this divorce proceeding September 2, 2008, very shortly after the parties separation. The Husband has not filed an Answer in this proceeding and therefore the request for occupation rent was not part of any “pleading”. Although a monthly amount was suggested in the written submissions, no analysis was provided to support the amount requested. The request was not explored in examination. No oral submissions were made in reference to this issue. The Husband’s asset  division charts make no reference to this amount. Under these circumstances I make no award for occupation rent.

COSTS

[43]         If the parties are unable to resolve the issue of costs, the Wife shall first provide written submissions to this court and to the Husband after which he shall have 14 days to file with this court and copy his reply to the Wife. If the Husband raises anything in his submissions not addressed by the Wife in hers she shall file with this court and copy to the Husband her response in writing within 7 days.

_____________________________

Beryl MacDonald, J. S.C.