IN THE SUPREME COURT OF NOVA SCOTIA
(FAMILY DIVISION)
Citation: Jensen v. Brown, 2010 NSSC 374
Date: 20101015
Docket: SFHMCA 049225
Registry: Halifax
Between:
Twyla Jensen
Applicant
and
Scott Brown
Respondent
Judge: Justice Lawrence I. O’Neil
Heard: June 21, 2010, in Halifax, Nova Scotia
Counsel: Michele J. Cleary, counsel for the Applicant
Michael MacKenzie, counsel for the Respondent
By the Court:
Introduction
- History of Proceedings
[1] By order issued October 16, 2009, proceedings under the Maintenance and Custody Act, R.S.N.S. 1989 c. 160, SFHMCA 049225, initiated on October 16, 2006, were consolidated with later proceedings initiated by an application filed on March 9, 2009 and bearing the same court number.
[2] The first application was filed by Ms. Jensen on October 16, 2006. Pursuant to s.3, s.7, s.11, s.18 and s.27 of the Maintenance and Custody Act, she sought (1) a custody order; (2) an access order; (3) child support; (4) spousal support; (5) paternity testing; and (6) an order for exclusive possession of the parties’ residence. Under the heading “other”, she sought division of assets based on common law principles.
[3] The second application of Ms. Jensen claimed under the heading other: (1) lying-in expenses; (2) retroactive child support; (3) health coverage for the subject child; and (4) a contribution to child care expenses. The application repeated that relief in the form of a custody, access and child support order were also sought as provide by s.3 and s.18 of the Maintenance and Custody Act supra .
[4] A number of orders have issued over the years. However, some matters have remained unresolved. The parties were before me for a pre-trial on December 9, 2009. A pre-trial memorandum flowed from the appearance. A hearing was held before me on June 21, 2010.
[5] On June 21, 2010 I rendered a decision on the parenting issues. This is my decision on the remaining matters.
- History of Relationship
[6] The parties were in a common‑law relationship which ended in September 2006. They have two children, a daughter born April 21, 2006 and a son born post separation on October 22, 2008. The children have primarily lived with their mother. Ms. Jensen has a son Dylan currently aged 18 from a prior relationship. He is not the subject of this application.
[7] While together the parties agreed to construct a home and they did so. Ms. Jensen continues to live in that house.
[8] Issues
1. Whether there should be an unequal division of the equity in the parties’ house; based on the principles of unjust enrichment and constructive trust? If there should be an unequal division, what should the division be?
2. Whether Mr. Brown is responsible for a post separation increase in interest payments on the home mortgage?
3. What contribution if any should Mr. Brown be required to make to the lying in expenses of Ms. Jensen?
4. Whether Mr. Brown is responsible for (i) retroactive child support, and (ii) a retroactive contribution to the cost of childcare services and if so, in what amount?
5. Whether a life insurance policy put in place to secure the payment of child support must be made payable to Ms. Jensen?
6. Whether Mr. Brown is responsible for any part of health care expenses incurred by Ms. Jensen for the benefit of the children?
7. Whether income should be imputed to Mr. Brown?
8. What is the prospective amount of child support payable by Mr. Brown?
9. What access arrangements must be put in place for the benefit of the children?
Discussion
Issue 1: Whether there should be an unequal division of the equity in the parties’ house, based on the principles of unjust enrichment and constructive trust? If there should be an unequal division, what should the division be?
[9] The law dealing with unjust enrichment and constructive trust as these concepts apply to common‑law couples who must divide formerly shared assets was discussed by the Spring Court of Canada in Walsh v. Bona, 2002 SCC 83 and Peter v. Beblow, [1993] 1 S.C.R. 980. Our Court of Appeal discussed the principles in Turbide v. Moore [2006] N.S.J. No. 120.
[10] Ms. Jensen compiled a table which is at Tab 2 of Exhibit 1. She submits that her contribution to the purchase of the home was in excess of $30,000 and Mr. Brown's was $6500.
[11] I do not agree with her conclusion that many of the costs of purchase were solely her contribution. I am satisfied that this couple pursued the acquisition of a home as a joint project and that a pooling of resources occurred to a significant extent with a view to realizing this goal.
[12] I am satisfied that Mr. Brown's earnings were in large measure devoted to the couples’ living expenses and to the purchase of their home. Ms. Jensen was the individual who managed the payment of the various household accounts and the distribution of much of Mr. Brown's earnings. The fact that certain purchases were made with funds derived from one of her accounts does not satisfy me that Mr. Brown did not make that contribution possible. In other words, it is impossible to delineate the flow of dollars on a strict basis and therefore, I am not satisfied on a balance of probabilities that Ms. Jensen's contribution was in excess of $30,000.
[13] However, I am satisfied that prior to dividing the equity in the home , each party should receive their lump sum cash contribution to the purchase of the house. In the case of Ms. Jensen this is $30,000 which was derived from the sale of her New Brunswick home and in the case of Mr. Brown I conclude that it is $7,000. In the case of Mr. Brown I have added $500 because this is the tax that was withheld when Mr. Brown withdrew $4,500 from his RRSP account. He also contributed the equivalent of four paychecks which the parties agree are valued at $2,000.
[14] In response to the first question, I order that each party be reimbursed their lump sum contribution to the cost of purchasing the home. Ms. Jensen is to receive $30,000 and in the case of Mr. Brown, I fix that amount at $7,000.
[15] The remaining equity in the home is to be divided equally in keeping with this courts’ decision in Simmons, 2001 CarswellNS 252. For the reasons that follow, I reject her claim for reimbursement of certain post separation home related costs.
‑disposition costs
[16] Subject to one change I accept as reasonable; the disposition fees outlined at Tab 3 of Exhibit 2. The level of HST ordered is 13%, not 15%.
‑home maintenance costs
[17] I do not accept her claim against Mr. Brown for a contribution to so‑called home repairs and improvements on the home, post separation. She totals one half of these costs as exceeding $6,000. I am satisfied that these costs are normal costs associated with occupancy of a home and ones that Ms. Jensen would reasonably be expected to assume with the occupation of the home. At Tab R of Exhibit 3 a list of so-called repairs is given and associated costs are itemized. Ms. Jensen includes as a shareable expense for Mr. Brown, the emptying of the septic and the cleaning of the chimney and the purchase of a water softener. In my view, these claims are representative of those she makes against Mr. Brown under this category and they are not expenses that Mr. Brown should be called upon to share.
‑house insurance, taxes and furnace lease
[18] Her claim for a sharing of the insurance expense on the home while she solely occupied it is not reasonable. The details of this claim appear at Tab S of Exhibit 3. She argues that Mr. Brown should pay in excess of $1,700 representing 50% of the cost of insurance on the home which expense was post separation. In my view, this is part of her cost of occupation and should be paid by her.
Issue 2: Whether Mr. Brown is responsible for a post separation increase in interest payments on the home mortgage which increase predated the hearing?
‑interest payments
[19] At paragraph 15 of Exhibit 2 which is the affidavit of Ms. Jensen she describes a claim in excess of $7000 for interest payments made when, she alleges, Mr. Brown refused to renew the mortgage upon maturity. I am not satisfied that Mr. Brown was unreasonable in his response to requests from Ms. Jensen to renew the mortgage on the home. One of her requests was to increase the mortgage significantly and for Mr. Brown to remain as a signatory to the increased mortgage. His lawyer advised him against doing so and it is not disputed that this was sound advice. Ms. Jensen testified that other financing scenarios were presented to Mr. Brown. However, the details and the timing of these requests has not been established. Ms. Jensen did not persuade me that Mr. Brown was unreasonable. She also testified that the mortgage currently on the property is in the 4% range, not the 7% rate she complains was forced upon her by circumstances, i.e. Mr. Brown’s failure to cooperate. Mr. Brown can not be held responsible in any way for this. She was solely occupying the home.
Issue 3: lying in costs
[20] I am satisfied that Mr. Brown is responsible for one half of the lying in costs of Ms. Jensen and that these amount to $1572.25 as outlined at Tab 7 of Exhibit 2.
Issue 4: retroactive child support and retroactive child care
‑retroactive child support
[21] Mr. Brown agrees to pay retroactive child support for the younger child in the amount $3,165 as described at Tab 6, Exhibit 3.
[22] At Tab 8 of Exhibit 2, Ms. Jensen details a claim for retroactive payment of child care. She seeks a contribution from Mr. Brown in the amount of $5790. I disallow the claim which is attributable to childcare services provided by her son, Dylan, in the home when he lived with her and the children. It is not clear from the evidence what value this part of the claim is, but it should be subtracted from the total child care claim.
[23] A further discount of the remaining child care claim is necessary to reflect the fact that childcare services were being paid for when they were not required. Her evidence about the need to pay for days when the child was not with the sitter is contradicted by other testimony she offered, that at another period she only paid for the service on the days child care was required. I am not persuaded that Ms. Jensen took reasonable steps to find an alternative to paying for childcare services that were not needed if she in fact paid for such services when not required. She testified she was able to make an arrangement to pay for childcare on a day by day basis. I am concerned that Ms. Jensen's management of the child care expense is affected by friendship with the childcare provider. Ms. Jensen was not able to provide any receipts because Ms. McIntyre, the identified childcare provider currently does not want to provide receipts.
[24] At paragraph 15 of Exhibit 2, Ms. Jensen claims $5,790 for retroactive child care costs. The details in support of the claim are set out in the attached Exhibit “H” and “I” referenced therein. In addition, she gave oral evidence in support of the claim.
[25] The evidence in support of this claim is very weak. I have the testimony of Ms. Jensen but it is clouded by her determined effort to offset Mr. Brown’s equity interest in the home.
[26] Her evidence of the financial arrangement with child care providers was confusing and inconsistent. To illustrate, I point to her contradictory answers on the financial arrangements for child care when she was on sick leave between August and December 2008. The expense claimed is $100 per week for one child, Emma. On cross examination, she stated she paid child care during this period; this was later expressed as paying for two, maybe three days per week.
[27] Tab ‘p’ of Exhibit 3 contains a letter from Susanne MacIntyre that she was paid $100 per week since April 2007 to care for Emma. That statement now appears to be incomplete and misleading. The documents provided as part of Exhibit 3 are general in nature.
[28] The letter from Susanne MacIntyre at Tab ‘p’ of Exhibit 3 is simply a statement that she is paid $100 per week to care for Emma. A note appears at the bottom of this letter which apparently qualifies this letter for the period beginning in September 2009. No other qualification is made. The clear meaning of the letter is that for the period prior to September 2009, Ms. Jensen paid Ms. MacIntyre $100/week for child care. This is simply not correct. At p.5 of this document is a statement from Kaitlin Munro dated June 3, 2010. It is for child care in the evenings when Ms. Jensen attends university. Given all that I have heard, I do not accept this as proof of the expense. I need not rule on whether it is a shareable expense under s.7.
[29] The court finds itself in a very difficult position when asked to calculate the child care arrears, given the weak and unreliable evidence before it. Mr. Brown has asked that Ms. Jensen substantiate her claim and she has an obligation to do so.
[30] I agree that Mr. Brown is responsible for part of the costs incurred. However, I do not agree that he is responsible for the amount claimed by her. Mr. Brown has already paid some amount but a shortfall remains.
[31] The total child care expense for the period reflected in Tab 8 of Exhibit 2 is discounted to reflect (i) that the expense attributable to Dylan is not shareable; (ii) the expense attributable to Susanne should be significantly less than the amount claimed by Ms. Jensen.
[32] He must then be given credit for contributions he has made.
[33] As stated, I disallow that portion of the claim attributable to Dylan, the older sibling of the subject children. I am satisfied that this claim was unreasonable. The arrangement with her son was within that contemplated by a functional family when children are called upon to help out. The court was told he watched the children for two hours in the evening on occasion.
[34] I am also satisfied that the expense attributable to Susanne is not arms length and is exaggerated. Ms. Jensen obviously set about to generate from her history, a set off amount that would nullify any entitlement of Mr. Brown to a share of the equity in the parties’ former matrimonial home. Her evidence was significantly influenced by this objective.
[35] I have also considered the fact that Mr. Brown has paid spousal support beyond the period for which it was court ordered because his pay was being garnished. He over paid spousal support to Ms. Jensen. This represented a windfall for her and these funds were available for the support of the children. I am not ordering that Mr. Brown be reimbursed for this over payment.
[36] Nevertheless, Mr. Brown is entitled to corroboration of the claim by Ms. Jensen and he is entitled to proof that the expense has been incurred in the amount claimed. He should not be required to simply take her word for it, given all of the circumstances. Nor am I satisfied that the expense is as described to the court.
[37] Given the absence of receipts, I considered disallowing all of her claim. Mr. Brown, however, is prepared to accept that there is some undefined expense and he is agreeable to contributing to it.
[38] I set the retroactive amount payable by Mr. Brown for child care services at $1,500.
Issue 5: Whether a life insurance policy put in place to secure the payment of child support must be made payable to Ms. Jensen?
[39] The Child Maintenance Guidelines, N.S. Reg. 53/98, at s.12 provides that the amount payable under a child support order be secured, “in the manner specified in the order”. I am prepared to order that Mr. Brown maintain a life insurance policy that will provide for the payment of child support until the child reaches the age of nineteen. The proceeds of the policy need not be payable to Ms. Jensen. It is sufficient that the monthly child support obligation to her be paid from the payout under the terms of the policy. The undistributed principal may be payable by Mr. Brown as he deems appropriate, when the child reaches the age of nineteen.
‑lapsed life insurance
[40] Ms. Jensen also claims reimbursement of insurance premiums she paid post separation on a life insurance policy on Mr. Brown’s life. This claim amounts to approximately $2,500 and she seeks reimbursement of one half this amount from Mr. Brown. She argues that Mr. Brown should have transferred ownership of the insurance policy to her and he did not do so. I'm not satisfied that Mr. Brown behaved in any unreasonable fashion. It was Ms. Jensen who discontinued payments of the premiums on the policy, not Mr. Brown. No liability on the part of Mr. Brown arises.
Issue 6: Whether Mr. Brown is responsible for any part of health care expenses incurred by Ms. Jensen for the benefit of children?
[41] Mr. Brown is responsible for a proportionate share of the uninsured medical costs for the benefit of the child. The parties shall share the medical costs for the child and which are not covered by medical plans available through their respective medical plans. Neither shall be under an obligation to contribute to the cost of the medical plan of the other. The sharing shall be proportionate to their gross employment earnings.
[42] Section 7(1) of the Child Maintenance Guidelines supra, permits the court to order an amount to cover all or any portion of medical and dental insurance premiums attributable to the child and health-related expenses that exceed insurance reimbursement by at least $100 annually.
Issue 7: Whether income should be imputed to Mr. Brown?
Issue 8: What is the prospective amount of child support payable by Mr. Brown?
[43] A decision on whether income should be imputed to Mr. Brown and a determination of his prospective child support obligation will be addressed together.
[44] I am not satisfied on the evidence that income should be imputed to Mr. Brown. There is insufficient evidence to satisfy me that his earnings are other than the amount he testified to and as reflected in his tax return at line 150. For purposes of determining his child support obligation and his contribution to special expenses of the children, his line 150 income shown on his 2009 income tax return is to be used.
Issue 9: What access arrangements must be put in place for the benefit of the children?
- The court rendered an oral decision on this issue on June 21, 2010.
[45] The court received communications from Ms. Jensen directly, dated August 30 and September 1, 2010 concerning the text of the order to govern the parties’ parenting arrangement. Ms. Jensen is now representing herself. Her letter was in response to one forwarded to me by counsel for Mr. Brown, which letter is dated August 31, 2010.
[46] The court is therefore required to resolve the disagreement that arose following my oral decision on the parenting issue and delivered June 21, 2010.
[47] This is to provide further direction:
1. The two week period for summer block parenting provided for in 2010 will also apply in subsequent summers. If the children are not in school, this block access may be taken at another time.
2. The equal sharing of parenting responsibilities during the Christmas break from school will commence from the day school ceases to the day before school resumes, subject to the specific direction to how the Christmas Eve to Boxing Day period will be shared.
3. The “March” break period shall also be equally shared with the exchange of the children to occur at noon on Wednesday of the March break.
4. Each party shall notify the other, at least two weeks in advance, of their intention to travel with the children outside the Province if it is their intention to remain outside the Province over night. Each parent shall provide the other with contact phone numbers and the general whereabouts of the children when away over night and outside the Province.
Preparation of Order
[48] Mr. Mackenzie, counsel for Mr. Brown, is asked to draft the order. He should forward a copy to Ms. Jensen one week in advance of providing it to the court. Ms. Jensen is to provide her comments on the order to the court within one week of receipt of the order.
[49] Ms. Jensen is reminded that the purpose of her review of the order is to permit her to object to the order if she believes the text of the proposed order does not reflect the decision of the court. She is not being invited to agree or disagree with the decision itself.
J.