(FAMILY DIVISION)
Citation: Reece v. Reece, 2013 NSSC 33
Date: 20130125
Docket: 1201-065633
Registry: Halifax
Between:
Nathan Reece
Petitioner
v.
Maia Reece
Respondent
Judge: The Honourable Justice Douglas C. Campbell
Heard: January 22, 23 and 24, 2013, in Halifax, Nova Scotia
Counsel: G. Michael Owen, for the Petitioner
Julia Cornish, Q.C. and Jennifer Kooren, for the Respondent
By the Court:
[1] This matter comes before me in the form of settlement conference by which I am authorized by the parties to invoke a "binding settlement" in the event that the parties are not able to reach an agreement. The concept of a "binding settlement conference" has been endorsed by the Alberta Court of Appeal in a decision that is, although not binding on me, extremely persuasive. That decision is cited as JW Abernethy Management & Consulting Ltd. V. Trillium Homes et. al., 2005 ABCA 103. I accept the reasoning in that decision as confirming my authority to conduct a so-called "binding settlement conference" (although I do not accept the need for the formality of signed agreements by the parties and the judge and other formalities called for in that inaugural decision).
[2] My practice, followed in this case, is to discuss with the parties and their counsel (before commencing the task) certain concerns or restrictions that are inherent in the conduct of a binding settlement conference. This includes a discussion of possible roadblocks to an appeal of my decision, problems associated with the holding of "caucus" sessions with the parties, restrictions on my ability to express an opinion on each of the issues as they are discussed and the fact that I will learn about compromises that each party is willing to make for settlement purposes which should not be disclosed to a Trial Judge even though I must after impasse adjudicate the issues if they are not agreed. After these potential shortcomings were raised on the record, I gave the parties an opportunity to speak privately with their counsel before confirming their willingness to proceed (which they did).
[3] The process is that I conduct a regular settlement conference with the hope of finding a settlement between the parties. When and if that fails, I utilize the authority given to me by the parties to impose on them a settlement of the issues as if I had conducted a trial relying on the affidavit evidence and the discussion held at the settlement conference to shape my decision.
Background:
[4] The parties lived in Lake Echo, Nova Scotia until they separated. At the time of the separation, the mother moved with the children, (now age 4 and 6, respectively) to Dalhousie, New Brunswick which is located in the northern area of that province. The return transportation by car including regular stops is roughly 14 hours per weekend. The arrangement has been that the mother drives the children on certain weekends to Moncton (where she spends her weekend with a relative) and the other weekends to Sackville, New Brunswick (where she spends the weekend with a different relative) at the end of which she retrieves the children and returns to Dalhousie, New Brunswick, thereby eliminating the need to double her travel time. The father meets her in whichever of her destinations applies. She seeks a exchange location that is closer to the geographical mid point.
[5] The mother's mother and other of her relatives live in Dalhousie, New Brunswick and she thinks of it as her home of origin. The father would characterize the mother's move to Dalhousie as an interference with his right to regular and frequent parenting time with the children. The mother would characterize that move as a necessity because of an unpleasant life setting during the final period of cohabitation. She contends that she made the move to northern New Brunswick because continued cohabitation in the area of the matrimonial home was untenable for her. She saw a return to her "home" area as the only viable plan for her and the children after the marriage had broken down and their finances were in disarray. While those circumstances are disputed by the husband, the affidavit evidence supports, in my opinion, the conclusion which she reached.
[6] There was an interim contested hearing pursuant to provincial legislation to deal with this mobility issue and the presiding judge concluded that the mother's move with the children was justified. She then focused on defining the father's parenting time in light of this geographical distance. She ordered, on an interim basis, that the father's regular parenting time would occur every weekend. The Interim Hearing Judge also specified other parenting time for certain block periods. It is the frequency of weekend parenting time that is most contentious; namely, the fact that it happens every weekend given the 14 hour return commute.
[7] It is very significant to note that the parties (somewhat soon after that order was granted, but after it had been followed for a number of weeks) came to the realization that the 14 hour commute every weekend was unworkable for both the children and the adults and they therefore fell into a pattern of making that journey every second weekend roughly speaking. The father would say that this was their new agreement; the mother would say that she never agreed but would have preferred a less frequent commute and acquiesced because there was little or no alternative in light of the interim order. She states that she must negotiate that change each week as the weekend approaches.
[8] At the commencement of this hearing, the parties confirmed their agreement that the order would provide that they have joint custody of the two children and that the children would be in the primary care of their mother. This agreement will be recorded in the court order that flows from this decision.
[9] There was no agreement as to whether the mother’s primary care could be exercised by her living in Dalhousie, New Brunswick as opposed to the Halifax area. There was also no agreement as to the specification of the father's parenting time. These matters were the subject of the settlement discussions. In summation, Counsel for the father nonetheless argued for assignment of primary care to the father unless the mother relocates to the Halifax area.
[10] In addition, matters of spousal support and division of property and debts were unresolved. The parties had agreed to a child support table amount of $495 per month based on the father's income of $34,177 per year. Certain claims for other expenses contemplated by section 7 of the Child Support Guidelines were unresolved although during summations, some common ground emerged and will be dealt with below.
[11] The settlement discussions failed to achieve a comprehensive resolution of these disputed matters. I am left therefore to exercise my given authority to impose a binding arrangement in respect of all of these matters.
Mobility:
[12] Keeping in mind the principles enunciated by the Supreme Court of Canada in Gordon v. Goertz,1996 CanLII 191, I have concluded that the mother's move to Northern New Brunswick should be endorsed. I do not have the benefit of testimony and cross-examination that would have occurred in a trial. However, on my knowledge of the facts that comes from the context of this binding settlement conference along with the affidavit evidence, I have reached that decision even though it severely impacts the frequency of the father's parenting time with the children and causes the children to engage in a significant commute by car to create that parenting time for the father.
[13] It is clear from the affidavits that have been filed that the mother has been the primary care giver for the children while the father has been the primary “breadwinner”. It is also true that the children have been in their mother’s primary care since the separation which occurred more than two years ago. While the father had made a plan by which he would have primary care of the children, it is not realistic that it would be adopted. It follows that the only way that the Court can make an order that the children be returned to the Halifax area, is to condition the mother's primary care on her move back to the Halifax area. In my opinion, the Court must not ask her whether, if so ordered, she would do so. That is information no Trial Judge should be allowed to have because it is so prejudicial to the mother. If she should decide not then to return to the Halifax area, the outcome would be to change primary care to the father which I have above rejected.
[14] While there are a number of obvious reasons or factors that would support the children staying in the Halifax area, there are also advantages of their home being made in Dalhousie, New Brunswick. Their maternal grandmother and other relatives live there. They are offering financial, emotional and other support to her.
[15] If it is a given that primary care as between the two parents should go to the mother, some deference should be given to her choice of residence unless there is a clear advantage that serves the best interest of the children to deny her that choice. For example, if her move had been based on a vindictive desire to deprive or interfere with the father's parenting time and there were no redeeming features surrounding her choice, an order should be made which has the effect of returning the children. That is not the case here.
[16] The interim order earlier made authorized, in effect, the mother’s then move to New Brunswick. It should be emphasized that this was an interim order and that it was made pursuant to provincial legislation. My order will be made pursuant to federal divorce legislation and therefore this exercise is not a replacement of an interim order with a final order. Rather, it is a fresh order under a different statute. Nonetheless, that interim decision is not to be ignored and is somewhat persuasive. The mother and the children have been living in New Brunswick pursuant to that order for more than one year. It would be somewhat disruptive to reverse that arrangement now.
[17] In any event, I have concluded based on the evidence that the mother’s life circumstances away from those family members who live in New Brunswick, which would prevail if she was required to live in the Halifax area, would have been miserable for her. That, in turn, impacts the best interest of the children and is another factor in favor of allowing the mother’s primary care to prevail in spite of her move with the children to New Brunswick.
[18] In reaching that conclusion, I have not ignored the impact for the children that arises from the lengthy commute to be with their father. Indeed, the only way to reduce the negative impact of that commute is to make an arrangement that is less frequent. That, in turn, dictates that the children’s relationship with their father will be potentially affected if the frequency is reduced to a plan that calls for rare contact. The father argues that a frequency less than every second week would destroy his ability to be a meaningful parent. I disagree.
[19] Counsel for the mother prepared a calendar as part of her summation to the Court which mapped out the parenting time for the father if for example the regular weekend parenting time occurred on every fourth weekend along with five weeks of block time in the summer and certain other blocks of time during the year. She compared this to the parenting time that would be enjoyed by a person who lives near his children and has "standard/basic access" on the basis of every second weekend plus an evening during the week and some block time that might be considered standard throughout the year. Her presentation suggests that the above offered parenting time for this father would total 92 days per year while the more standard arrangement for local parents would total 75 days per year. The parenting time that I will order below is more than those 92 days.
[20] While quantum of parenting time is not the only factor, it is to be noted that even with this distance problem, this father can be offered substantial amounts of parenting time and whatever infrequency arises out of that arrangement can be partly repaired by large block times when the children are not in school coupled with electronic visitation (such as Skype, telephone or email) during the regular schedule and otherwise.
[21] For all of these reasons, I have concluded that the fact of the children living in Dalhousie, New Brunswick is not going to change and that the disadvantages created by geography can be addressed in a way that protects the best interest of the children. That can only be achieved by reducing the frequency of the commute to less than the interim ordered every weekend and also less than the altered arrangement of every second weekend. Accordingly, the mother shall have primary care of the children notwithstanding her decision to live in New Brunswick.
Parenting Time:
[22] Having reached that conclusion, the only issue left for me to decide is how to maximize the father's parenting time against the reality that the mother and children will live in Dalhousie, New Brunswick. In doing so, I must fashion an arrangement that best suits the interests of the children. Consideration of the interests of each of the parents is not paramount.
[23] In that regard, an important consideration is the fact that a 14 hour return commute by car, regardless of frequency, is undesirable from the point of view of the children's interests, especially given their young ages. I must therefore consider how they might react to the negative experience coming from that long distance drive and how it would impact on their relationship with their father if it were to continue to occur every week or even every second week. I must decide on a frequency that will promote as opposed to curtail their relationship with their father. The mother asks that I establish one weekend of each four for the father's parenting time.
[24] Having considered all of the above points, I have concluded that, for the time being, the girls will be in the care of their father for a weekend that occurs every third weekend (hereinafter referred to as "the father's weekend") . The weekend will (subject to comments below) be defined as being from Thursday after school ends for the latest of the girls' school day until the return of the children to their mother on Sunday evening. This means that the girls will not be in attendance at school on Fridays adjacent to the father's weekends. This practice is subject to there being no objection raised by school officials. If the school officials object to this practice, the commencement of the weekend will need to be revisited.
[25] The first father's weekend shall occur on the next coming weekend during which he would have exercised parenting time during the current regime of every second weekend. That date shall be included in the court order. Thereafter, his parenting time shall be exercised every third weekend as above noted.
[26] If during the 21 days that follow the date of this decision, the parties are able to map out a schedule based on the general premise of every third weekend but with variations as to the start date or otherwise that would accommodate the father’s weekend falling on a weekend that is adjacent to a statutory holiday or in-service day, such an arrangement may substitute for these directions. This of course requires the consent of both parties. In the absence of such consent within 21 days, above noted, these remarks shall be part of the Corollary Relief Order.
[27] In the event that the father's weekend occurs when there is a statutory holiday or in-service day that is adjacent to that weekend either by falling on a Friday or a Monday, the above noted weekend shall include the additional 24 hours thereby created (hereinafter referred to as an "extended weekend"). In the event an extended weekend is imminent but does not fall on the father's weekend, he shall have the right to elect, upon 30 days notice, to forfeit his scheduled weekend in exchange for the then imminent extended weekend.
[28] It is noted that if the father makes the above noted election to forfeit a regular weekend in exchange for an extended weekend, the effect will be that instead of his parenting time following at three week intervals, the same will occur after two weeks and then not occur again until after four weeks. Given that this formula for substitution is at the election of the father, it will require his choice as to whether he prefers the advantage of the extended weekend at a cost of changing the intervals as above noted. For better clarity, my intention is that, when the mentioned election interferes with the intervals, the three week rotation does not “restart” on a new date. Instead, after the substitution has occurred, and the interval that follows has occurred, the original three week dates will be "on track" as if the substitution had not intervened .
[29] In the event that the father cancels a regularly scheduled weekend he shall be entitled to a make-up weekend. Unless the mother consents, the make-up weekend shall not be consecutive to a regularly scheduled weekend, but shall be within the then coming interval of time. This right applies only when the father has a compelling reason for the cancellation and shall not apply except occasionally.
Christmas:
[30] In every year, the Christmas school break will be divided into the following two parts: Part A is from the day after school ends for the Christmas season until December 28th; Part B is from December 28th until the day before school recommences. In odd numbered years starting in 2013, the father will have the children for Part A with the day following the closure of school to be the travel day; the mother shall have Part B with December 28th being the travel day. In even numbered years the assignment will be reversed.
Spring break:
[31] Commencing with the Spring school break in 2013, the father shall have parenting time with the children for the entire spring break for each of the then two consecutive years and the mother shall have the children in her care for the third of those years, subject to the following provisos: in the event that the mother does not have a specific plan to engage the children in an activity for their benefit for the spring break in that year, she shall forfeit that year in favour of the father and her next entitlement will be the subsequent year unless she similarly forfeits her time that year and the 2 out of 3 year assignment to the father starts thereafter.
[32] For purposes of clarity, the "Spring school break" is defined to be the five school days during which children are excused from school meaning that the weekends prior to and subsequent to that school week will be recognized as being assigned to that parent to whom the regularly scheduled weekend has been assigned. However, if the father’s weekend falls on the weekend following Spring Break, and the mother has the children for the Spring school break, the father’s weekend starts on Friday so that the mother has the children for all of Spring Break, noting that her portion of the commute starts on Friday afternoon at the usual hour.
Easter weekend:
[33] The four-day Easter weekend will be divided equally between the parents such that the mother will have the children on Easter Sunday. As for travelling details, the parties shall operate in the same fashion that has occurred previously for the Easter weekend and counsel may wish to specify that history in the Corollary Relief Order.
Summer:
[34] During the Summer school break, the father shall have parenting time for a total of six weeks unless he elects less time. The father shall notify the mother on or before May 30th of each year as to his choice of weeks during the Summer school break. The mother has requested that the father’s summer blocks of parenting time shall not occur during the final week of July and the first week of August because of certain family commitments that she enjoys. I so order.
[35] However, given the possibility that the time the mother wishes to reserve may not be precisely two weeks or that either of the named weeks are less than a full calendar week, it occurs to me that there needs to be a mechanism whereby she clarifies this reservation each year. Accordingly, by May 15th of each year, the mother shall notify the father of her definition as to the exact dates when the above reserved two weeks occur. The father's choice of six weeks shall be made up of no more than two "blocks" of time in order to minimize the number of transports of the children.
Father's Day /Mothers' Day:
[36] Notwithstanding the above schedule of the father's weekends, the parent celebrating Father's Day or Mother's Day shall have the children for the entire weekend of that celebration. In the event that such arrangement eliminates the father's weekend as scheduled, he shall be entitled to exercise a "makeup" weekend adjacent to that weekend (that is, his choice of weekend either before or after that weekend). This is done so this change does not create two consecutive father's weekends and resulting in consecutive commuting time.
[37] The mother’s legal brief in this matter has outlined a number of administrative or clarity paragraphs that describe how this joint custody parenting regime will function. Generally speaking all of those draft clauses shall be included in the Corollary Relief Order. Because there was insufficient time in Court to review those paragraphs in detail, I reserve jurisdiction to change this general direction at the time of settling the form of the Order.
[38] To date, the mother's portion of the commute for the father's weekends has taken her either to Moncton (where she spends the weekend with a relative to avoid a long return commute to Dalhousie only to repeat it for the Sunday transfer of the girls) or Sackville, NB (where she spends the weekend with a different relative).
[39] The mother suggests that her commute to Moncton is about 2/3 of the total of the children's trip and that Sackville is a larger percentage. She asks that the transfer of the children take place at Shediac Bridge (which is at an exit ramp off the relevant highway) and represents a rough mid-point in the total commute.
[40] I see no reason to impose on the mother a greater than 50% assignment of the commute and I so order.
[41] However, it may be that the mother will for her own purposes wish to spend a weekend with either of her relatives who live in Moncton or Sackville, New Brunswick, respectively. If that were to occur, I would expect the mother to plan most of those weekend stays to coincide with the father's weekends and to notify him of that plan when it applies and to make the exchange of the children there on those occasions.
Division of Assets and Debts:
[42] In her summation, counsel for the mother provided the court with a division of assets chart which presented certain valuations with respect to the assets by referring to those assets which were owned by the parties at the time of the separation and she used valuation dates consistent with the case law. The parties disagree on certain of those values. In addition, some of those assets were liquidated after the separation and some of the debts were increased. Accordingly the net matrimonial assets value that is available today is substantially less than the values presented in the above noted chart. The parties disagree as to whether the equalization entitlement should relate to those assets which currently exist as opposed to those assets that existed at that separation.
[43] The equalization chart summarizes the mother’s presentation that she is owed an equalization payment of $78,789.02. Counsel for the father would use different values for the matrimonial home and the two vehicles, he would ignore the sailboats on the theory that they are for the children, he would use the current payout of the secured line of credit which increased post-separation and he would ignore the line of credit paid for by the wife on the theory that it was not a matrimonial debt, so-called. In addition, he would include half of the CIBC Visa, being $25,000 on the theory that half was a business debt and the other half was a matrimonial debt.
[44] By my calculation, these positions would result in an equalization payment owed by the father of $44,158.
[45] An important factor is that the husband considers that it is inevitable that he will make an assignment in bankruptcy. He appears willing to defer that decision until this order can be taken out and implemented as to its terms. With the assistance of his father as guarantor (something which this court cannot demand), the husband is confident that he can refinance the mortgage at a value consistent with his recently obtained market valuation thereby producing some cash. From that new financing, certain amounts that are not shareable would need to be paid in order for the bank to take a first charge on the matrimonial home. These includes outstanding property taxes, legal fees for the transaction and an amount would need to be set aside for the trustee fees. Also, the father’s father paid off property tax arrears on the matrimonial home in the amount of approximately $10,000. The mother agrees that this would ordinarily be a shareable expense.
[46] Although the exact proceeds of the refinancing is not known, it appears to be roughly $47,500 if the father's father is not repaid. If the trustees fees are less than the estimated $10,000, those proceeds might be higher.
[47] Both parties subscribe to an arrangement whereby the above noted refinancing would occur and all of its net proceeds would be paid to the mother. In addition she would receive a rollover of the existing RRSP at CIBC which has an estimated after-tax value of $5000. The above refinancing proceeds and the RRSP rollover would make $52,500 or more available to her. This much is agreed subject to certain conditions referred to below. However, that is not sufficient money to pay out the equalization payment as calculated by the mother although it exceeds the amount necessary for the equalization payment calculated by the father.
[48] The alternative to the mortgage refinancing is a market sale of the matrimonial home. This is likely to produce, because of selling costs, a smaller quantity of funds for payment to the mother and involves the possibility of significant delay along with some interference by creditors of the father.
[49] The dispute therefore relates to the payment of an equalization payment pursuant to the matrimonial property division and it overlaps with the question of spousal support. That is so because the mother recognizes that the father cannot raise the necessary money to pay the equalization payment and she therefore proposes that after it is finally calculated following the refinancing, it would be repaid to her in the form of spousal support at the rate of $216.67 per month until it is fully retired. She would be responsible for the tax consequences on the spousal support and the father would have the tax deduction benefit.
[50] The father contends that there should be no spousal support and that there is no equalization payment owed. Further he argues that his transportation costs to gain access to his children should be set off against any claim for spousal support or equalization.
[51] The father argues that his claim for access costs has merit because the move to New Brunswick that causes these costs to be incurred was the unilateral decision of the mother for her own reasons. With respect, I have concluded that the move of the children to New Brunswick is not unreasonable and that, although the father’s transportation costs should not be ignored, there is no automatic right to a full reimbursement.
[52] I find that it is unnecessary to precisely measure the property equalization amount or the level of responsibility for the access costs reimbursement. If I felt obliged to engage in that exercise I would probably have eliminated the husband’s CIBC Visa from consideration because there was insufficient proof as to which portion of it was a matrimonial debt. I consider that the burden is on the father to offer that proof since the documentation and history is within his charge. That adjustment to the father’s calculations would increase the equalization payment to approximate $57,000.
[53] In addition, I would accept certain of the mother's valuations and reject others.
[54] The above refinancing and RRSP rollover falls short and therefore there would be an amount of "top up" equalization owing by the father. It may well be that if I found it necessary to do so, the exact equalization "top up" payment would probably be less than the mother presents.
[55] Without being precise as to their relative values, I consider that this is an appropriate case to deny the mother’s claim for equalization beyond the refinancing and RRSP rollover and to similarly deny the father’s claim for reimbursement of travel costs.
[56] There are a number of reasons for this conclusion. First, while the mother is adamant that the asset depletion is the father's doing, that is largely a matter of perspective. It could be said that some or all of the asset liquidation was a necessity to fund the separated family's expenses in the transition to a final arrangement that will occur from this decision. When good management results in an increase in value, that growth is rightfully shared. Absent impoverishment of the assets, a decrease will sometimes be rightfully shared.
[57] Second, there is no precise science about measuring the extent to which an access parent should be reimbursed for access costs. Third, the mother is already paying substantially by doing at least 50% of the driving distance (historically more than 50%).
[58] Lastly, the proposed refinancing is gratuitous on the part of the father and requires cooperation from his father. It may be counterproductive to make that exercise unattractive to the father by ordering an equalization payment from assets that no longer exist even if it can be said that he must bear responsibility for that having happened. His proposed refinancing will leave him debt free, but also largely asset free. The mother may have $52,500. The alternative to the refinancing is not as attractive to the mother and carries risks that might leave her with very little in cash.
[59] In summary, it occurs to me that the most reasonable solution to these competing claims is to direct that they offset each other. I suspect in doing so that the net amount saved by the husband in avoiding an equalization payment is less than the amount that he, at a maximum, might have collected for access cost reimbursement. In that way he is given some considerable credit for his access costs but probably not on a dollar for dollar basis. In my opinion, that is the most he can expect. There shall be no equalization payment and there shall be no reimbursement of access costs.
[60] The following conditions are attached to the refinancing proposal. The father shall forthwith execute a quit claim deed in favour of the mother which shall be held in escrow by the father’s solicitor. The terms of the escrow are that, unless the father provides documentary proof that the above noted refinancing has been approved by a lending institution within 21 days of the date of this decision (and not the order that comes from it) and in an amount sufficient to pay not less than $47,500 to the mother, counsel for the father shall deliver that quit claim deed to the mother in registrable form. She is then at liberty to list and sell the property without the need for a signature from the father. The requirement for his signature pursuant to the Matrimonial Property Act is then released.
[61] If the required financing approval is achieved within 21 days, the father shall ensure that the refinancing is completed and the money above-noted delivered to the mother within the 21 days subsequent to the date of the refinancing approval. If that does not occur, counsel for the father shall release the quit claim deed to the mother in registrable form and the above terms of sale apply.
[62] In the event that the refinancing does not occur and that a market sale occurs, the entire proceeds of the sale net of all selling costs and encumbrances and other required payouts shall be delivered to the mother and she shall provide to the father through counsel an accounting of the transaction.
[63] The rollover of the above-noted RRSP account from the father to the mother shall occur forthwith and is not dependent upon either the refinancing or market sale of the matrimonial home occurring.
[64] Whether the matter is resolved by refinancing or market sale, the mother’s entitlement herein represents her Matrimonial Property Act settlement. The order shall declare that the within property claims settlement represents a minimum assessment of the mother's Matrimonial Property Act entitlement.
Child Support:
[65] The parties have agreed that the father’s income for child support purposes is $34,177 and accordingly he shall pay the table amount to the mother of $495 per month commencing on the 1st day of February 2013 and continuing on the 1st day of each and every month thereafter until further order of the Court thereby replacing his obligation under previous orders as of that date.
[66] In addition, the father shall continue coverage for the children pursuant to his Blue Cross plan for so long as that plan is made available to him by his employer and he shall pay the premiums thereof. This obligation was consented to by the father.
[67] In the event that either parent incurs uninsured medical or dental expenses for the children, the costs in excess of the $100 threshold as defined in the Child Support Guidelines, shall be shared by the parties by way of prorating those costs against their respective incomes. For that purpose, the father’s income is as above-noted and the mother’s income is $14,445. (I stand to be corrected by counsel with respect to the latter figure given that my notes are unclear and that I have not inquired whether there is a record of it).
[68] The mother has agreed that she will make no claim for day care cost contribution by the father unless she takes employment outside her home and incurs actual arm’s-length day care costs. In that event the sharing shall be on an after-tax basis and prorated as to incomes.
Spousal Support:
[69] The father argues that his concession with respect to claiming reimbursement of access costs should offset both the mother’s claim for an equalization payment and spousal support. This implies that her entitlement to support would be terminated immediately.
[70] My conclusion is that my decision to offset any equalization payment against any claim for access cost reimbursement is a reasonably fair trade but insufficient to further offset the mother’s claim for spousal support.
[71] Given the mother’s very modest income, not to mention her contribution in driving the children to their father at least 50% of the distance, she would have no difficulty proving that she is in need of support and that her entitlement after 11 years of cohabitation is easily established.
[72] On the other hand, given the father’s income and access costs, and the need for him to reestablish himself after his expected bankruptcy, it is equally clear that he has no ability to pay spousal support at this time. That fact seems to have been acknowledged by the mother. However, the question of the mother’s entitlement to spousal support should be addressed.
[73] Given the length of the relationship and the fact that the assets are insufficient to properly secure the mother’s reasonable lifestyle, I have concluded that she has an entitlement to spousal support but that it, for practical reasons, can only be quantified in a nominal amount. I order the spousal support shall be paid by the father to the mother in the sum of one dollar per year commencing on the 1st day of February 2013 and continuing on 1st day of February in each and every year thereafter until further order of the Court. Obviously the purpose of this arrangement is to preserve the entitlement so that the amount might be varied upward if there is this a change in circumstance within an appropriate period of time that would justify such variation.
[74] If and when that reservation is needed to be invoked, either party may obtain 1 hour on my docket by contacting the Scheduling Office of this court.
General:
[75] I accept the request from counsel for the mother to deal with potential problems of implementation of this decision in terms of the drafting of an appropriate Corollary Relief Order. Therefore, I hereby reserve this court’s jurisdiction to resolve any matters that arise in terms of the implementation of this decision or with respect to its interpretation or in the event, recognizing the rushed circumstance of delivery of this decision because of the parties' urgent circumstances, I have inadvertently failed to deal with an issue that is properly before me. Also, that reservation would apply to any issue to which I may have wrongly understood that a party has consented.
Costs:
[76] In the event that either of the parties wish to address the court with respect to the question of costs arising from this matter, that party may do so by contacting the Scheduling Office of this court located at Devonshire Avenue and request a 30 minute appearance on my docket on a date convenient to both counsel. No written submissions are required but may be volunteered.
[77] If no such contact has been made to arrange for the above noted appearance within 30 days of the date of this decision, there shall be no costs to either party.
CAMPBELL, J.