IN THE SUPREME COURT OF NOVA SCOTIA
Citation: Matthews v. Matthews, 2004 NSSC 7
Date: 20031125
Docket: 1201-49862
Registry: Halifax
Between:
Margaret Rose Matthews
Petitioner
v.
James Michael Matthews
Respondent
D E C I S I O N
Judge: The Honourable Justice Walter R. E. Goodfellow
Heard: November 25th, 2003 in Halifax, Nova Scotia
Written Decision: January 14th, 2004
Counsel: Ritchie R. Wheeler, for the Petitioner
Krista L. Forbes, for the Respondent
By the Court:
BACKGROUND
[1] Margaret Rose Matthews, now 50, and James Michael Matthews, now 55, commenced cohabitation in 1972. They were married July 3rd, 1982 and separated June 23rd, 1994 for a total period of cohabitation of approximately twenty-two years.
[2] There were three children of the marriage; ANGIE LYNN MATTHEWS, born April 27th, 1976, now 27; TREVOR EDGAR JAMES MATTHEWS, born July 14th, 1981, now 22; and TYLER ADAM MATTHEWS, born September 10th, 1985, now 18.
[3] The petition for divorce was issued July 25th, 1995 and for a long period of time the file remained dormant until there was a change of solicitor and some prodding by the Prothonotary.
CHILDREN
[4] The parties are in agreement that there are no longer any children of the marriage as defined by the Divorce Act of Canada and further, that there is no adjustment sought for their respective degrees of assistance to the children from the time of separation, almost ten year ago.
DIVORCE
[5] The first issue is the matter of the divorce and I am satisfied that all the jurisdictional requirements of the Divorce Act of Canada have been met. There has been a permanent breakdown of this marriage by reason the parties having lived separate and apart for a period in excess of one year and a divorce judgment will be issued this date.
LEGISLATION
PENSIONS BENEFIT ACT
Interpretation
2 In this Act,
(ga) “common-law partner” of an individual means another individual who has cohabited with the individual in a conjugal relationship for a period of a least two years, neither of them being a spouse;
(aj) “spouse” means either of a man and woman who
(i) are married to each other,
(ii) are married to each other by a marriage that is voidable and has not been annulled by a declaration of nullity, or
(iii) have gone through a form of marriage with each other, in good faith, that is void and are cohabiting or, if they have ceased to cohabit, have cohabited within the twelve-month period immediately preceding the date of entitlement;
(iv) repealed 2000, c. 29, s. 26
Interpretation Act R.S., c. 235, s.1.
Law always speaking
9 (1) The law shall be considered as always speaking and, whenever any matter or thing is expressed in the present tense, it shall be applied to the circumstances as they arise, so that effect may be given to each enactment, and every part thereof, according to its spirit, true intent, and meaning.
Interpretation of enactment
(5) Every enactment shall be deemed remedial and interpreted to insure the attainment of its objects by considering among other matters
(c) the mischief to be remedied;
(d) the object to be attained;
(e) the former law, including other enactments upon the same or similar
subjects;
(f) the consequences of a particular interpretation.
ISSUES
1. Is Mr. Matthews’ pension a matrimonial asset ? If so, what is Mrs. Matthews’ entitlement?
2. Matrimonial home. What is the appropriate disposition?
3. Life insurance.
4. Miscellaneous - Furniture - Debts
5. Costs.
ISSUE NUMBER ONE
1. Is Mr. Matthews’ pension a matrimonial asset ? If so, what is Mrs. Matthews’ entitlement?
[6] Mr. Matthews represented himself for a lengthy period of time and inadequate disclosure was provided and indeed, at this point, no clear specifics have been provided with respect to his pension entitlement earned during cohabitation or during the period of marriage.
[7] There can be no doubt that a spouse’s pension is a matrimonial. Clarke v. Clarke (1990), 73 D.L.R. (4th) 1; (1991), 101 N.S.R. (2nd) 1.
[8] In Adie v. Adie, [1994] 7 R.F.L. (4th) 54, the court stated at p. 57:-
[14] The determination of whether or not the United Kingdom pension is a matrimonial asset is a matter of statutory interpretation. The Matrimonial Property Act must be given a broad and liberal construction to give effect to the purpose of the legislation.
[15] In Nova Scotia all assets are matrimonial assets unless the party maintaining otherwise satisfies the court on a balance of probabilities that the disputed asset falls within one of the exceptions to the definition contained in s. 4(1) of the Matrimonial Property Act.
[16] Unlike most other matrimonial property legislation in Canada, the Nova Scotia Act defines matrimonial assets as property acquired “before or during their marriage”.
[9] In Clarke v. Clarke, supra, Wilson, J. in the Nova Scotia Report stated at p. 16:-
[22] ... In interpreting the provisions of the Act the purpose of the legislation must be kept in mind and the Act given a broad and liberal construction which will give effect to that purpose.
[10] In Driedger on the Construction of Statutes, it is stated:-
Modern purpose approach. Modern courts do not need an excuse to consider the purpose of legislation. Today purposive analysis is a regular part of interpretation, to be relied or in every case, not just those in which there is ambiguity. As Matthews J. A. recently wrote in R. v. Moore:
From a study of the relevant case law up to date, the words of the Act are always to be read in light of the object of that Act. Consideration must be given to both the spirit and the letter of the legislation.
[11] In Thomson v. Canada (Minister of Agriculture), L’Heureux-Dubé J. wrote:-
[A] judge’s fundamental consideration in statutory interpretation is the purpose of legislation. [1992] 1 S.C.R. 385, at 416.
Reasons for Modern Adoption of Purposive Approach
Overview. A number of factors have contributed to the emphasis put on purposive analysis in modern statutory interpretation. First, there is the remedial construction rule found in the Interpretation Acts of all Canadian jurisdictions. Starting with the first statute on interpretation enacted by the Parliament of Canada in 1849, Canadian Interpretation Acts have contained a provision that directs courts to give every enactment “such fair, large and liberal construction and interpretation as best ensures the attainment of its objects”.
[12] The Pension and Benefits Act of Nova Scotia has been subject to interpretation by this court in Sangster v. Sangster (1990), 100 N.S.R. (2nd) 243; [1990] N. S. J. No. 425. Davison J. dealt with a factual situation where the parties had cohabited for four years prior to the marriage and he concluded that the Pension Benefits Act only permitted a division of the pension benefits for the period of cohabitation after marriage to the date of separation. In doing so, Davison J. made no reference to the Interpretation Act and took a restrictive technical approach. The Act was worded slightly different and he concluded in view of the disjunctive “or”, the total period of cohabitation is to be included in the calculations only when there has been no marriage. He concluded that Mrs. Sangster was only entitled to share for the period from the date of marriage to the date of separation.
[13] With respect, I conclude Justice Davison took a too narrow, technical and restrictive view and failed to apply the purposive approach to interpretation, as mandated by the Interpretation Act and the Supreme Court of Canada. As pointed out in the brief filed on behalf of Mrs. Matthews, you could have a situation where the parties lived together for 35 years, married on Monday, separated on Tuesday, and applying Sangster (above) would provide a division of the pension for only a twenty-four hour period. Such would obviously result in a dreadful injustice and be a conclusion that emasculated and eradicated the true purpose and intent of the legislation, particularly the Matrominal Property Act.
[14] The technical approach by Justice Davison would amount to a statutory penalty for entering into marriage where the parties had previously cohabited. There can be no doubt that the intention of the Legislation was not to create such an impediment to marriage or penalty for making the commitment to marriage. I conclude that whatever pension entitlement Mr. Matthews has throughout the period of cohabitation is a matrimonial asset subject to equal division.
[15] In any event, any pension entitlement is a matrimonial asset and as such, is subject to division pursuant to the Matrimonial Property act where there is a presumption of equal entitlement. The Pensions Benefit Act does not amend or supercede the Matrimonial Property Act. I direct Mr. Matthews to make the appropriate inquiries and provide documentary evidence as to whether or not a pension exists and if so, the full and complete details.
ISSUE NUMBER TWO
2. Matrimonial home. What is the appropriate disposition?
[16] I appreciate the difficulties compounded by the major aspect being a rural property and the desire of counsel to get this matter over with for their clients and to avoid inordinate expense which would otherwise be required. The trouble is you can get a house appraised in Halifax for “X” dollars and it would cost you that much and more to get a rural property of far lessor value outside of Halifax appraised. In addition, the resources here are very limited and there has been substantial deterioration of the home since separation.
[17] Overall, I find both the parties quite honest. They do not have a lot of facts at their fingertips and I think with respect to the children, both parties did the best they could for their children and with respect to any kind of adjustment, I think there are pluses and minuses all over the place. The mother carried the major burden of the household when they did live together. Since the separation, I would conclude that they lived more with the father, but they have resided with the mother and both have tried to help them out. They are two I think very fine and decent people. It is very unfortunate that they have not been able to pull together because that is the only way they would have any kind of financial success at all. I have taken the date of separation as being that originally pleaded.
[18] With respect to the matrimonial home, again, there is pluses and minuses all over the place. They have not established, nor was there any real attempt to establish, economic rent under Stoodley v. Stoodley (1997), 172 N.S.R. (2d) 101. Mr. Matthews has had the primary use of the matrimonial home since separation but he has also had the children for a longer period of time. Mr. Matthews has presumably paid taxes and everything else. Any adjustment, Mr. Matthews should pay the taxes for this final year, I notice they are outstanding. I am a little surprised at the condition of the house, as indicated by the insurance people, given the fact that he is a carpenter. On balance, I think that Mr. Matthews has ended up with more of the matrimonial furniture and effect, but he had the children originally and it is clear they were not of great value because the fridge has already been replaced. We are not talking substantial amounts at all. It seems to me, given the fact that Mr. Matthews has had the use and he has had the children and furniture and effect, it strikes me that the only realistic point of view is to treat that entirely as a washout and I would find that there are no arrears of child support by either parent. I think that while there may be joint claims established for spousal support, the reality is they have made their own lives and the corollary relief judgment will provide that there is no spousal support for either party.
[19] In any event, doing the best I can, I think it is in Mrs. Matthews’ best interest, if she can get some cash and give Mr. Matthews an incentive to try and keep the house, if he wants to pass it on to his son, that is fine. I do not know what the real value of that house is, but I would assess it at the range of about $52,000.00. That is my best rough shot at it. If you take $52,000.00 and you deduct the six per cent for real estate commission and legal fees, Robski v. Robski (1997), 166 N.S.R. (2d) 161; O’Regan v. O’Regan (2001), 194 N.S.R. (2d) 257, I would put those at about $4,000.00, brings the price down to about $48,000.00. The big problem is the position of that Royal Bank judgment which is almost $16,000.00. I take it Mr. Matthews’ has paid a few payments, but I am not sure how much. Using the judgment at $16,000.00 at five per cent interest under the Interests and Judgments Act, that is $800.00 per year interest and it is eight and one-half years. There is almost $7,000.00 interest outstanding and I do not know that you are ever going to talk the Royal Bank into waiving that, leaving you with pretty close to $23,000.00 owed on that judgment. That, therefore, gets your equity down to about $25,000.00. I would say that if Mr. Matthews provides her with $12,500.00within forty-five days, Mrs. Matthews signs over the deed and that brings the whole thing to an end, plus, of course, he has to pay Mrs. Matthews the life insurance. That time frame will give Mr. Matthews an opportunity to confirm whether or not there are any other judgments in the Registry that attach the property. There is the Visa, Canadian Tire, and the dentist.
[20] I would order if the property is being sold and there is a net amount afterwards, the existing taxes would come out of his share, as he has the occupation of it. My guess is if you end up putting a ‘for sale’ on that property, you are just not going to get very much, if anything. However, if Mr. Matthews wants a chance to do it, pay Mrs. Matthews $12,500.00 within forty-five days. Otherwise, the order is ‘for sale’. I cannot think of a fairer way to do it. I do not know at the end of the day how it is all going to turn out.
[21] This, as I say, is preliminary vis-à-vis the property because if you do check something out and it turns out there are those judgments on there, I may have to
reflect on it further. It gives you a chance to try and resolve it, if you want to take your chances so to speak.
[22] In summary, Mr. Matthews is to pay $12,500.00 to Mrs. Matthews should he want to keep the matrimonial home.
ISSUE NUMBER THREE
3. Life Insurance.
[23] I am going to deal on a very final basis with respect to the life insurance. It is a matrimonial asset and I accept the figure advanced that it was about $2,600.00 at the time of separation. As stated in my annotation of the Matrimonial Property Act, an asset that accumulates with interest, you take the accumulative value. So you have two things there; you have payments made by Mr. Matthews post-separation and that has brought it up to substantially to where it is. Those post-separation payments are non-matrimonial. I am not fine tuning it; I am doing the best I can because again, we do not want to take too much more time and delay it, but there was about $2,600.00. If you add the interest since the time of separation, we have a substantial amount of interest, even at six per cent. I would take the value now of what existed at the time of separation on the life insurance to be about $4,100.00. Mr. Matthews should go, without delay, indeed within fifteen days, go to the insurance company and do one of two things; borrow on the policy to pay Mrs. Matthews half of the $4,100.00; or cancel the policy whatever his pleasure is. It would be nice if he could afford to keep it, but that is his personal decision. It is clearly a matrimonial asset, it is worth about $7,000.00, the remaining value I am satisfied was accumulated by post-separation contributions by Mr. Matthews.
ISSUE NUMBER FOUR
4. Miscellaneous - Furniture - Debts
[24] Furniture and effects, they keep what they each have.
[25] The debts are a little more difficult to deal with. I am really concerned at the end of the day they are not going to get anything. The condition of the house does not sound very good, it is a rural property, there is one judgment for $15,000.00 and I do not know where those other debts really stand. If Mr. Matthews is at all right that it costs $20,000.00, it is probably an exaggeration, to fix the place, you may have a property that is close to unsaleable. Those things happen. I have left these debts on the assumption that they attach to the matrimonial home which hopefully, will be retained by Mr. Matthews on payment of $12,500.00 to Mrs. Matthews.
[26] On the subject of the cars, as long as you are sure, I do not think that $15,000.00 judgment is a foreclosure judgment, as it is in Mr. Matthews’ name only. Those cars were really met for both of them so my feeling is if those debts are outstanding, and I am not going to enforce him, that is the decision Mr. Matthews will have to make on the advice of Ms. Forbes, if they are enforceable, and any efforts made to enforce them, there is no equity left in this property. If there is another $4,000.00 plus interest on the dental bill; $600.00 or $700.00 on the Visa; Canadian Tire bill; given the condition of the property, I do not see how much more is there. However, if Mr. Matthews really wants to hold onto the property, you may well determine Ms. Forbes that these bills are not enforceable. I take back what I said, there is still going to be some equity there, not a lot on paper. Do not forget there is no insurance on the property, you are at risk.
ISSUE NUMBER FIVE
5. Costs.
[27] Costs are always a difficult thing to deal with and I do not want to exacerbate the situation because it is going to be difficult enough as it is. Mrs. Matthews’ offer falls just underneath s.41(A) which would have given you double costs and by the same token, Mr. Matthews made an offer. I will give Mrs. Matthews a little bit of relief, as he was for sometime a self-represented party which contributed to the file being dormant. Gilfoy et al v. Kelloway (2000), 184 N.S.R. (2d) 226. People are entitled to represent themselves for a prolonged period of time, indeed entirely, but if it adds unnecessarily to the effort, some costs should follow. You have to deal directly with the individual. I will allow $500.00 which will cover disbursements and it is purely because of the added work that you had to get involved in, which was probably two to two and a half times that because Mr. Matthews was self-represented for a long period of time. The costs contribution of $500.00 is payable by Mr. Matthews within 45 days as well.
J.