1994 1201-48745
IN THE SUPREME COURT OF NOVA SCOTIA
Cite as: Young v. Young, 1999 NSSC 79
BETWEEN:
COLIN ARTHUR YOUNG
PETITIONER
- and -
WANDA CLOTHILDE YOUNG
RESPONDENT
DECISION
HEARD: at Halifax, Nova Scotia before The Honourable Justice Walter R.E. Goodfellow on February 12, 1999
DECISION: February 12, 1999 (orally)
WRITTEN RELEASE
OF ORAL DECISION: February 18, 1999
COUNSEL: Colin Arthur Young
Self Represented (accompanied by his brother Mr. Ross Young)
Judith A. Schoen
Solicitors for the Respondent
GOODFELLOW, J.
1. BACKGROUND
Colin Arthur Young, born April 6, 1957, now 41 and Wanda Clothilde Young, born March 1, 1956, now 42, married October 29, 1977. Mrs. Young had two children from a previous relationship, both of whom became a child of the marriage as defined in the Divorce Act of Canada. The parties had a third child, Jasmine Sabrina Young, born October 7, 1978, now 20 and she is the only remaining child of the marriage.
On entry into the marriage, Mr. Young had grade 10 education and Mrs. Young, grade 3 education. Mrs. Young had worked as a teenage at St. Vincent's Guest Home. Mr. Young was a mechanic and laterally, a labourer involved in snow removal during the winter season and landscaping the rest of the year, with frequent utilization of Unemployment Insurance and occasionally Social Assistance.
The parties separated May 16, 1994, after 16 ½ years of cohabitation.
2. DIVORCE
I find that there is no possibility of reconciliation and direct that the petition be proceeded with. I find that all jurisdictional requirements have been met and that there has been a permanent breakdown of this marriage by reason of the parties having separate and apart for a period in excess of one year and a Divorce Judgment will issue as of this date.
3. ISSUES
(1) Is Jasmine Sabrina Young still a child of the marriage?
(2) If Jasmine is a child of the marriage, what is the appropriate level of child support?
(3) Is Wanda Clothilde Young entitled to spousal support?
(4) If Mrs. Young is entitled to spousal support, what quantum is appropriate?
(5) Matrimonial Property Act. What, if any, adjustment?
4. ISSUE (1)
Is Jasmine Sabrina Young still a child of the marriage?
Jasmine is now 20 years of age and has had some emotional difficulties. In part, attributable to the break up of her parents marriage and separation. Mrs. Young indicated that for an extended period, Jasmine was suicidal and was not allowed out of her mother's presence for a period in the nature of two years. Jasmine gave evidence before me and appears to have developed a high level of stability and has become a young lady, of whom both parents can be very proud. Jasmine has come a long way and is presently in an educational arrangement, whereby she is permitted to remain at home and sends in her assignments and will write examinations, probably within the next three months, to complete her grade 10. She is presently receiving marks in the range of 80 to 90 on her assignments and hopes within a minimum of one year, to reach grade 12 equivalency, after which she hopes to utilize her musical talent, and attend bible school.
She is presently in pursuit of education and I find is a child of the marriage within the definition of child contained in the Divorce Act of Canada. If necessary, Mrs. Young may have a custody provision in the Corollary Relief Judgment and Jasmine has agreed that as and when she receives any marks, she will immediately make them available to her father and keep him fully posted as to her educational standing, and the Corollary Relief Judgment should probably contain a provision, confirming this reporting.
5. ISSUE (2)
Child support
If Jasmine is a child of the marriage, what is the appropriate level of child support?
Ms. Schoen estimates Mr. Young's income to be as high as $26,000.00 per annum, based primarily on a couple of pay slips in 1998. I accept however, the evidence of Mr. Young, that his employment is very much seasonal, working long hours in the summer and early fall, in landscaping and sporadic work during the winter, related to snow fall. He has provided historical records of his income from all sources T4 Income, UIC and on one occasion, Social Assistance as follows:
1993 $17,313.00
1994 $13,853.00
1995 $11,816.00
1996 $12,510.00
1997 $19,019.00
1998 estimated between $20,000.00 to $23,000.00
Mr. Young indicates that he went to his employer in 1998 and pressed him to provide additional hours because of his child support obligation, which initially was quite high and for some time, has been at the rate of $70.00 per week, a monthly amount of $303.10. The order has existed for two children and the older child, Florentino, is now 23 and has been self sufficient for some undefined period of time.
Mr. Young's income from snow removal in 1999 would be minimal at best, due to our highly unusual moderate winter.
I am satisfied and find that Mr. Young's present income is probably at the annual rate of $21,500.00 and I direct Child Support in accordance with the Child Support Guidelines, payable in the amount of $173.00 per month, commencing the 1st day of March, 1999. Mr. Young is paid every two weeks and I leave it to Mr. Young and Ms Schoen to work out the payment schedule, with payments on the 1st and 15th or whatever arrangement is appropriate, given his pay periods. The existing order of $70.00 per week will remain into effect until the end of February, and the existing garnishee order will remain in effect, adjusted and effective the 1st March to the new rate of child support, as spelled out in the Corollary Relief Judgment.
There shall be a provision in the Corollary Relief Judgment as follows:
Each party shall annually provide the other on or before the 15th of May, while there is a child of the marriage as defined in the Divorce Act, with a complete copy of her/his income tax return and any notices of assessment received from Revenue Canada. Production shall begin for the year 1998 on or before the 15th of May 1999.
6. ISSUE (3)
Spousal Entitlement
Is Wanda Clothilde Young entitled to spousal support?
This is the fourth occasion of recent date where I have been called upon to address the issue of spousal entitlement. Without being repetitious, I adopt the analysis and framework set out in Thompson v. Thompson, SH No. 1201-47692, November 26, 1998, Dorey v. Dorey, SH No. 1204-002188, December 3, 1998 and Bitar v. Bitar, SH No. 1201-51363, December 30, 1998. In summary, I concluded the Court's duty to be one of statutory interpretation and although my analysis of the Divorce Act related the determination of entitlement to Section 15.2(1), which provides for payment of spousal support to be "as the Court thinks reasonable for the support of the other spouse." I went on to indicate after determining entitlement of Section 15.2(3), permits the imposition of terms, conditions or restrictions in connection with the order, as the court thinks fit and just, and Section 15(4), the factors to be taken into account following the determination of entitlement, are all matters that would, in themselves, be included in the Court's determination of whether or not it was reasonable for a support order to be granted.
I went on to indicate that in my view, the Court should not take a philosophical approach favouring continuation of the spousal obligation or the other extreme, favouring termination or denial.
Without labouring the matter, I said in Bitar v. Bitar above:
It seems to me that in the field of human relations there can be no absolutes and while, as high a degree of certainty as is possible is to be strived for such, should not be at the expense of the court fairly determining whether all of the circumstances warrant a spousal support order, and in particular, a continuing spousal support order where the recipient spouse is precluded from any reasonable prospect of self sufficiency due to illness, disease or disability. The frame work I find helpful is to recognize that the status of a spouse arises from the parties entering into the marriage, which in itself, is a contract. No one may enter into a marriage contract suffering any legal impediments to such entry and the status of a spouse creates obligations, responsibilities and entitlement to be determined in the final analysis by determining the terms of the marriage contract between the two parties and not by philosophical pre-determination.
A quick review of some of the cases focusing primarily on the period of cohabitation is as follows:
Matheson v. Matheson [1997] 166 N.S.R.(2d) 133
Cohabitation 21 years, five children, Ms. Matheson's health. Ms Matheson, now 59, in poor health.
Termination Order Denied
Stefanyk v. Stefanyk [1996] 156 N.S.R.(2d) 161
Second marriage. Mr. Stefanyk, 44, Ms. Stefanyk 46. Five and a half year marriage, two children. Substantial sacrifice and contribution by Mr. Stefanyk to the marriage. Ms. Stefanyk sought termination of spousal support to Mr. Stefanyk.
Termination Order denied and time
limitation denied at this time
Colling v. Colling [1992] 1201-45577 (not reported)
Cohabited approximately four years, second marriage. The father had two children from previous marriage. Ms. Colling employed throughout marriage.
Spousal Support Order for Ms. Colling denied
In this decision, it was re-stated "a marriage certificate is not a guarantee of spousal support."
Crook v. Crook [1993] 115 N.S.R.(2d) 258
Cohabitation 25 years. Three children. Wife employed. Clear entitlement to spousal support.
Spousal Support Ordered
Heinemann v. Heinemann [1989] 20 R.F.L. (3d) 236
17 years cohabitation. Child. Wife employed, earning $21,500.00. Husband earned $100,000.00.
Spousal Entitlement Order Granted
without Termination Date
Bedgood v. Bedgood [1982] 52 N.S.R.(2d) 42
36 years cohabitation. Wife 57, grade nine (9), no job skills, five (5) children. Mrs. Bedgood required by Court of Appeal to dispose of large matrimonial home to generate funds.
Spousal Support Ordered
Sproule v. Sproule [1986] 62 N.S.R. (2d) 131
Marriage of 23 years, three children. Husband earns $100,000.00. Wife grade seven education. Trial Judge limited spousal to four years. Court of Appeal struck limitation.
Spousal Support Ordered No Limitation
Urquhart v. Urquhart [1998] 169 N.S.R.(2d) 134
Mrs. Urquhart, doctor. Mr. Urquhart, airline pilot. Seven (7) years cohabitation, no children.
Spousal Support Denied to Mr. Urquhart
Cameron v. Cameron [1995] 144 N.S.R.(2d) 124
Mrs. Cameron 44. Cohabitation 19.5 years. Children. Mrs. Cameron third party relationship, but not of the prerequisite one year period that gives rise to obligations for support under the Family Maintenance Act. Direction to Mrs. Cameron to make every reasonable effort to secure employment and criticism of her for leaving recent employment. Appeal Dismissed 1996 150 N.S.R.(2d) 156
Spousal Support Ordered with directions to
seek employment and pursue self sufficiency
Roberts v. Shotton [1997] 156 N.S.R.(2d) 47
Mrs. Roberts a 40 year old waitress. Married to a 46 year old Mr. Shotton, PH.D. Cohabitation one (1) year. Trial Judge gave Mrs. Roberts five (5) years spousal maintenance. Court of Appeal struck spousal support order and substituted a final lump sum maintenance payment of $5,000.00.
Periodic Spousal Support Order Denied
Thompson v. Thompson, above
One child. Cohabitation approximately 21 years. Child with disability, Spina Bifida. Father professional with no pension entitlement. Spousal support granted without termination date. Strong direction to seek part time employment, initially to lead towards self-sufficiency and recognition that in a matter of years, Mr. Thompson would be retiring without a pension.
Spousal Support Ordered with strong direction to take
all reasonable steps to pursue self sufficiency and
portion of spousal support designated for RRSP
to build some security for Mrs. Thompson
Day v. Day [1994] 129 N.S.R.(2d) 169
Cohabitation 18 years. No children. Parties 39 years of age at time of divorce. Mrs. Day recovering alcoholic. Spousal support entitlement established. In the result, it is not appropriate to grant at this time, a time limit to her maintenance and Mr. Day will have to await with patience to see what the future brings.
Spousal Support order
with no termination date
Dorey v. Dorey, above
Eight (8) years cohabitation. One child now in school. Mrs. Dorey, waitress received spousal support at the time of the hearing. Ordered continuation of spousal support including contingent lump sum for educational course for Mrs. Dorey, with spousal support to be terminated at conclusion of course, which would result in Mrs. Dorey having spousal support for a four (4) year period.
Spousal Support with termination date
Bitar v. Bitar, above
Eight (8) years cohabitation. No children. Parties ran joint business venture, pizza. Mrs. Bitar became disabled. State of health not defined until post separation. Limited lump sum spousal support.
Limited lump sum Spousal Support
No continuing support obligation
on either spouse
The duration of cohabitation should never be considered in isolation to all the other circumstances of the marriage.
Two parties who marry at age 16 and separate eight-ten years later, would reduce circumstances that normally permit a spouse to recover with perhaps some bridging assistance his/her economic position, had the marriage not taken place. On the other hand, two parties entering a marriage late in life, in their fifties that lasts eight or ten years, probably results in a degree of dependency and economic conditions that warrant periodic spousal support of a continuing nature.
I repeat that these are generalizations only, and that as I previously stated in Bitar:
In the field of human relations there can be no absolutes and all the circumstances need to be reviewed in determining whether it is reasonable to grant a spousal support order.
Generally, the longer the period of cohabitation, the greater the likelihood of a degree of dependency and entitlement to spousal support. That the period of cohabitation should not be considered in isolation, can be illustrated by the following two examples.
Two persons marry at age 16 and continue their education, each pursuing their intended profession until separation 30 years later. During the course of the marriage, they had two children, a boy and a girl and the mother utilized maternity leave and her entitlement to job security, by returning to her employment so that there was no interruption in either parties career path. Throughout the marriage, they maintained separate bank accounts and at separation, had relatively equal pension entitlements, which would in any event, be adjusted under the appropriate legislation and continued to be employed at levels of income that were roughly equal. In such circumstances, there would be no order for spousal support, although the parties cohabited for a period of 30 years.
Contrast this with the situation that existed in Stefanyk v. Stefanyk above, where the parties cohabited for 5 ½ years. Mrs. Stefanyk's request for a Termination Order and time limitation to her spousal support obligation, was denied. Mr. Stefanyk's entitlement to spousal support actually arose at about the 3 ½ year mark, when he left his career (youngest Lieutenant in the Fire Department) withdrew his pension contributions and followed his wife East to further her career in the CBC. Entitlement to spousal support arose at approximately 3 ½ years cohabitation.
In addition, we are dealing with a matter of statutory interpretation, Moge v. Moge, [1992] 3 S.C.R. 813, and in dealing with all the circumstances, such as the factors decreed in s.15(4) of the Divorce Act, the list of factors is not exhaustive because the statute uses the terminology "including".
In this factual situation when the parties entered into their marriage, Mr. Young knew and assumed responsibility for his wife’s two children and they became a family and proceeded to have a third child. Mr. Young did not, I find, until very late in their cohabitation, express any need for Mrs. Young to seek employment, although she did have some employment to try and help out financially, and this was of the nature of working the night shift at the VG Hospital, in the Laundry Department for about two years. She had a period of employment as a cleaner in the Christian Service for a number of months and employment at McDonald’s for a further period of not quite two years. This employment took place before she returned to school in 1987/1988. Mrs. Young, to her credit, has been able to upgrade herself from grade three to grade eight, and then to grade ten.
Mrs. Young, after separation, discovered she had a learning disability and that she had a traumatic period prior to the marriage, when she was in the NS Home for Girls in Truro. The RCMP came to her and she learned of the availability of financial assistance and she is eligible for further schooling and financial assistance. The program is called TYP, and Mrs. Young is being further tested on February 16th, 1999. Both Mrs. Young and her daughter have gone through a great deal, and it was pleasing to see that Mrs. Young paid tribute to her husband as a hard worker and one who is very supportive during their cohabitation. Mrs. Young has not made any efforts for employment since separation, in part because she has had the discovery of the root of her own difficulties and she had a lengthy period where she was required to maintain constant watch over their daughter, Jasmine. Mrs. Young’s goals are to continue her schooling and there is bursary and other assistance available for a further transition year, after which she wishes to become a counsellor.
Mr. Young has been a hard worker and provided as best he can for the family, and they had, throughout the 16 ½ years of their cohabitation, limited means but by and large, what was available through Mr. Young’s employment and some limited employment income from Mrs. Young went into the family.
This marriage is of sufficient duration, where Mrs. Young took the primary responsibility of being a homemaker and mother to their children, and over the years, her dependency on the marriage increased. This dependency still exists and in all the circumstances, it is clearly reasonable to conclude that Mrs. Young has an entitlement to spousal support.
It is premature to consider a termination date to her spousal entitlement.
7. ISSUE (5)
Matrimonial Property Act. What, if any, adjustment?
I want to address the fifth issue before addressing the quantum of spousal support, Issue #4.
The parties had limited income and resources throughout the 16 ½ years of their cohabitation. Mr. Young, upon separation, essentially took his personal clothes and left what was available for the family. There appears to have been an indebtedness outstanding, which was pursued at some point, by a collection agency, and it further appears that at some point, the collection agency seized security posted for the indebtedness and as a result, the family lost the freezer, table, sewing machine, stereo, bedroom set, typewriter and probably a few other items. This appears to be a debt separate and apart from a Trans Canada debt related to Mr. Young’s motor vehicle, and when Trans Canada came to seize his motor vehicle, he invited them to take it, because it was in parts and apparently they declined. Mrs. Young’s solicitor asks for a lump sum award of $3,000.00, pointing out that I allowed a lump sum in Bitar v. Bitar, above as a matrimonial property settlement, which I turned into a lump sum maintenance payment, so as to preclude Mr. Bitar from eliminating his responsibility by bankruptcy. This situation is entirely different. First of all, I do not have very clear evidence on the total furniture and effects in quantity or value that were left with the family, the indebtedness outstanding, what the proceeds were in relation to the repossession, whether there is any balance outstanding, whether Mrs. Young is a party to the Trans Canada indebtedness, etc. etc. I am dealing with people of very limited means and I also note that Mr. Young did pay substantially greater child support and in recent years, $70.00 per week child support for two children, when at some point of time, only Jasmine was a child of the marriage. The amount of support he paid in the past was greater than the unofficial tax deductible draft Child Support Guidelines, for one child. In all of the circumstances, the evidence does not support, nor is it realistic to make any adjustment under the Matrimonial Property Act.
8. ISSUE (4)
If Mrs. Young is entitled to spousal support, what quantum is appropriate?
Mrs. Young’s counsel recognizes the limited resources available, and that Mr. Young will now pay child support in accordance with the Child Support Guidelines, in the amount of $173.00 per month, without any tax benefit. Mrs. Young points out that she does not receive the child support payments, as they go directly to Department of Community Services and are immediately deducted by the department, from her Social Assistance allowance. In her financial statement filed January 13, 1999, Mrs. Young lists her Social Assistance at $675.00 per month, with GST on a quarterly basis in the amount of $59.00. The fact that the child support payment is deducted from the Social Assistance, is recognized as providing no relief from Mr. Young’s obligation of child support, Briand v. Briand [1996] 153 N.S.R.(2d) 157.
Mrs. Young’s counsel seeks a one dollar per month spousal support order, and does note that Mr. Young is cohabitating with a lady who earns somewhere in the range of $35,000.00 per annum. Unfortunately, I have no evidence of the obligations, financial position, etc. of this third party and all I can do in the circumstances is infer that Mr. Young has some benefit through economies of scale. Mrs. Young had hoped for a one dollar provision, plus the lump sum Matrimonial Property Act adjustment. Mrs. Young’s solicitor points out also that any spousal support order on a periodic basis, will result in a further deduction, dollar for dollar of the spousal support from Mrs. Young’s Social Assistance. Mrs. Young has additional financial assistance by way of bursaries, etc. to cover her educational requirements, and it seems to me that we have a situation recognized by the parties, namely the priority that must be given to child support.
THE DIVORCE ACT
Priority to child support
15.3 (1) Where a court is considering an application for a child support order and an application for a spousal support order, the court shall give priority to child support in determining the applications.
Reasons
(2) Where, as a result of giving priority to child support, the court is unable to make a spousal support order or the court makes a spousal support order in an amount that is less than it otherwise would have been, the court shall record its reasons for having done so.
Consequences of reduction or termination of child support order
(3) Where, as a result of giving priority to child support, a spousal support order was not made, or the amount of a spousal support order is less than it otherwise would have been, any subsequent reduction or termination of that child support constitutes a change of circumstances for the purposes of applying for a spousal support order, or a variation order in respect of the spousal support order, as the case may be.
I adjourned at one point during the trial to allow Mrs. Young’s counsel and Mr. Young and his brother to try and come to some agreement, and see if they could find a resolution that might provide Mrs. Young with something that she needs, which could be addressed by a lump sum award, perhaps obtained by Mr. Young borrowing, or whatever they might be able to devise, that would bring a termination to the entitlement for spousal support.
There is such little likelihood of a level of income and resources ever being available to provide a meaningful level of spousal support that some relief, by way of lump sum, provided it benefits Mrs. Young at this time and alleviates her stresses or whatever, should be explored. The parties were unable to reach any agreement, however I encourage them to continue to explore this possible resolution and Mr. Young should seriously consider engaging counsel for advice as to what he might be able to propose, given his limited income, now and for the foreseeable future.
In any event, a spousal support order will issue. Rather than make it one dollar per month, I reduce this to one dollar per year, payable on the first day of March in each and every year, commencing the 1st of March, 1999 until otherwise ordered.
J.