Supreme Court

 

SUPREME COURT OF NOVA SCOTIA

(FAMILY DIVISION)

Citation: Muise v. Fox, 2013 NSSC 349

 

Date: 2013-11-04
Docket: SFHMCA-075135

Registry: Halifax

 

 

Between:

Margaret Elizabeth Muise

Applicant

v.

 

Leonard Walter Fox

Respondent

 

 

Judge:                                     The Honourable Justice Elizabeth Jollimore

 

Heard:                                    November 20 and 21, 2012, September 16 and 20, 2013

 

Counsel:                                 Joyce M. Ruck De Peza for Pegi Muise
            Cheryl C. Arnold for Leonard Fox

 

 

By the Court:

 

Introduction

[1]               Now, at the end of the relationship between Pegi Muise and Len Fox, I’ve been asked to resolve financial issues arising from their relationship.  The issues relate both to property and maintenance and are governed by a combination of statute and common law.  The claims for maintenance are governed by the Maintenance and Custody Act, R.S.N.S. 1989, c. 160.  Ms. Muise seeks a division of Mr. Fox’s employment pension.  It, like her unjust enrichment claim, is governed by the common law relating to unjust enrichment.

 

[2]               Ms. Muise and Mr. Fox have two sons.  Most of the issues relating to their sons, such as the time the boys will spend with each parent, have been resolved by the parents’ agreement.  Ms. Muise and Mr. Fox have not resolved whether the responsibility to make custodial decisions relating to the boys will be shared or solely Ms. Muise’s.

 

Litigation history

 

[3]               In 2011, Ms. Muise applied for interim custody, and maintenance for herself and the boys.  When the application first came to court, the parties agreed to participate in a settlement conference.  With the assistance of Justice Beaton, they were able to agree on their sons’ parenting arrangements.  I heard the interim maintenance application in June 2011.  My decision is reported at Muise v. Fox, 2011 NSSC 258.

[4]               There was activity, but little progress, over the next seventeen months.  A motion for directions was filed in December 2011, scheduled for January and adjourned until February 2012.  Ms. Muise then filed a second interim motion.  Where a hearing date was already scheduled, I dismissed Ms. Muise’s request for leave to bring a second interim motion.  A final organizational conference was held in September 2012 and the hearing began in November, with evidence from Ms. Muise and Mr. Fox.  Insufficient time had been scheduled for the hearing, and it resumed in September 2013.

[5]               Specifically, the issues I must resolve are:

(a)    how decisions will be made for the boys;

 

(b)   Ms. Muise’s unjust enrichment claim;

 

(c)    maintenance for the boys, including a claim for a contribution to special or extraordinary expenses and a retroactive adjustment to child maintenance; and

 

(d)   maintenance for Pegi Muise.

 

Family history

[6]               The couple began their relationship in September 1990.  Ms. Muise had completed grade twelve and one year of post-secondary education.  She was working at a gas station, earning minimum wage.  Ms. Muise was living in Lower Sackville; according to Mr. Fox, she lived in an apartment on Quinella Court with her son, Alex, and her sister. 

[7]               At the time, Len Fox was taking a refrigeration technician course at the Nova Scotia Community College in Truro, where he shared an apartment with other students during the week. 

[8]               The two began to spend weekends together at Ms. Muise’s apartment.  Ms. Muise says Mr. Fox moved into her apartment shortly after they began dating.

[9]               In 1993, Mr. Fox was charged with operating a motor vehicle while disqualified.  He was convicted and prohibited from having a license from June 1993 to June 1994.  The documents relating to this charge and conviction refer to Leonard Walter Fox-Daniels.  This, Mr. Fox says, is the name given to him after his mother remarried.

[10]           Mr. Fox was laid off from approximately 1994 to 1997.  He says that he stayed with Ms. Muise occasionally on the weekends and during the week during this time period. 

[11]           Mr. Fox testified that during the first ten years of their relationship Ms. Muise had various apartments and that she paid most of the bills for the apartments and for groceries.  He believed that Community Services was somehow involved in the rental arrangement, but he provided no information about how or why he believed this was the case.  Ms. Muise was working. 

[12]           While living with Ms. Muise in her apartments, Mr. Fox says he bought groceries and contributed to household expenses “whether it was, you know, furniture like TVs or entertainment systems and, you know, various other things.”  He disputed that his income was diverted to spend on motorcycles, saying the he still owns the motorcycle he had when he met Ms. Muise.  He says that he’s always had a vehicle as well, though there was a considerable period when he was unable to drive it. 

[13]           In 2000, Mr. Fox was charged with impaired driving.  He pled guilty to one charge and another was withdrawn.  He was fined and prohibited from driving for one year.   The documents relating to the charge and conviction refer to Leonard Walter Daniels. 

[14]           Mr. Fox admitted that he lost his license for eight years, from 2000 to 2008.  His employer hired someone to drive him to various job sites.  Ms. Muise suggested that while Mr. Fox’s license was suspended, he went to Amherst and obtained another license under another name.  Mr. Fox denied this.  He said that when he determined his legal name was Leonard Fox, he wanted his license to be in that name.  He explained that he worked in Amherst during the week and that’s why he got his license in Amherst. 

[15]           Eleven years into their relationship, in July 2001, their son Colton was born.  Colton’s now twelve and a student in grade six at Bedford South School. 

[16]           A few months after Colton was born, Mr. Fox’s brother died.  His brother had lived in a home on Moirs Mill Road owned by their grandmother.  When she died, she gave her grandsons the first option to buy her home.  Mr. Fox’s brother bought the home.  When his brother died, Mr. Fox acquired the home from his brother’s estate.  The legal arrangements around the purchase of the house are unclear: Mr. Fox says that he purchased the house for approximately $97,000.00.  He also said that he acquired the home by assuming its outstanding mortgage.  

[17]           In either event, Mr. Fox says that the “price” he paid was less than the property’s value.  Ms. Muise did not become a co-owner of the property and she was not involved in its mortgage.

[18]           Around this time Ms. Muise asked for a joint bank account with Mr. Fox.  He refused. 

[19]           The family wasn’t able to move in immediately.  The home needed a great deal of maintenance.  It needed painting and the living room and bedrooms needed to be remodeled.  Mr. Fox said that while the home was unoccupied pipes froze and there were problems with the furnace, water heater and taps.  Mr. Fox did a lot of the work to ready the home for occupation, and Ms. Muise contributed to this effort.  A bedroom was readied for Alex.  Ms. Muise’s mother bought paint and painted the living room and dining room.

[20]           It was late in 2003 when the family moved into the house.  Colton was two years old.

[21]           According to Mr. Fox, when they moved into the home it was fully furnished and Ms. Muise provided Colton’s bedroom furniture and some curtains.  Ms. Muise says that she bought “decorations, furnishings and curtains for the entire house”.  Mr. Fox purchased the appliances for the house, except for the refrigerator which Ms. Muise’s mother gave to them. 

[22]           Once they moved into the home, Mr. Fox became primarily responsible for household bills, including the mortgage.  Ms. Muise paid for her expenses and those of the children, including their child care costs.  She says she did twenty to thirty hours of housework each week (preparing meals, doing laundry and dishes, cleaning the home and looking after the family’s pets) and also was primarily responsible for the children.  She was primarily responsible for relations with the boys’ teachers and doctors and taking them to their sports activities. 

[23]           While Mr. Fox was less involved with the work inside the home, he did make meals and attend to other household tasks on occasion.  His primary responsibility was work outside the home: maintaining the house, land and vehicles.  Ms. Muise, to a lesser extent, helped with this. 

[24]           Zachary was born on November 4, 2004.  He’s nine and has started grade three at the Bedford South School.

[25]           Mr. Fox has, by his recollection, provided Ms. Muise with four different vehicles during the time they’ve been together.

[26]           Ms. Muise’s son, Alex, lived with the couple at Moirs Mill Road.  During the latter years, Alex didn’t have a stable residence there.  He last left that home sometime in the fall of 2010.

[27]           The Moirs Mill Road property is comprised of two lots.  There has been no appraisal.  Ms. Muise has offered her own opinion that it’s worth $325,000.00.  Its current property tax assessment is for $131,900.00.  The property is mortgaged and its most recent mortgage was for a five year term, ending in April 2010.  Bank documents indicate that the mortgage amortization period extends to the summer of 2020.  Mr. Fox expects he’ll need to re-finance the mortgage so he can consolidate his debts and pay for home energy improvements, such as new windows, doors, roofing and a heating system. 

[28]           There were various vehicles: even when he had no license, Mr. Fox said he provided a vehicle for Ms. Muise.  At one point, Mr. Fox bought a truck and registered it in Ms. Muise’s name.  He says he did this to avoid any insurance claims, though he did pay her repair bill when she rear ended a school bus.  This vehicle has been sold.  Ms. Muise gave Mr. Fox a car which she’d received from her mother.  He spent, he says, $500.00 repairing it and sold it for $700.00.

[29]           Ms. Muise says that for the first thirteen years of the relationship, Mr. Fox would come home from work on Friday afternoon and then leave for the liquor store, not to return home until Sunday, when he would come home impaired.  She claims he drank daily, and they experienced marital difficulties for the last fifteen years of their relationship. 

[30]           Mr. Fox doesn’t deny drinking, but he does deny the extent of his drinking as described by Ms. Muise.  He was convicted of driving while disqualified in 1993.  He pled guilty to driving while impaired in 2000.  Mr. Fox admitted to past convictions under the Liquor Control Act.  For eight years Mr. Fox was disqualified from driving. 

[31]           The parties separated in September 2010.  Mr. Fox locked Ms. Muise out of the house in the spring of 2011 and she has not lived there since.  According to Mr. Fox, Ms. Muise took “all of her items, including the children’s bedroom furniture” from the home, though she did leave the curtains. 

Decision-making

[32]           Mr. Fox wants decision-making to be shared.  Ms. Muise asks that I order she have the sole authority to make decisions for the boys.

 

[33]           The parties resolved the boys’ interim parenting arrangements in May 2011 when they agreed to a shared and joint parenting arrangement.  This arrangement fell apart following an incident in July 2011 when Mr. Fox gave Ms. Muise her maintenance payment.  While descriptions of the event differ, it’s clear that Mr. Fox wouldn’t pass the maintenance payment to Ms. Muise.  Instead, he threw the money and used his camera to film her picking up the bills. Mr. Fox says Ms. Muise “grabbed” the camera out of his hand, and Ms. Muise says he “stole” her truck keys.  Ms. Muise locked herself in the truck and called the police.  Mr. Fox was arrested, though he was never prosecuted.  Since then, Ms. Muise has required that access transfers occur at a police station, saying that this is the only location where she feels safe enough to meet Mr. Fox.  She won’t allow Mr. Fox’s mother to participate in the transfers.

[34]           Mr. Fox didn’t want transfers to take place at the police station because of the impression it created.  Neither parent has been willing to compromise.  The result is that the shared parenting schedule ended and the boys have been in their mother’s primary care since July 2011. 

[35]           Since this incident Ms. Muise has effectively exercised sole custody of the boys.  She has determined the boys’ residence and decided whether and where they attend camp.  Ms. Muise said that she enrolled the boys in counselling.  In cross-examination, she modified this to say that, by virtue of their residence in second stage transition housing (Alice Housing), the boys were required to attend counselling.  Ms. Muise consulted with Mr. Fox about none of these matters.  On one occasion when she responded to his request for information, she told him that she did so “to be considerate” and that she wasn’t required to “inform” him. 

[36]           Ms. Muise, through Alice Housing, involved the boys in a summer camp.  She didn’t provide Mr. Fox with the name or address of the camp.  She told him it was a Bible camp.  He was given no contact information for the camp, such as its name, specific address or website.  According to Mr. Fox, Ms. Muise told him to “figure it out for yourself”.

[37]           Mr. Fox says that he hasn’t been privy to any information about what’s happening to the boys, including the counselling they’ve received at Alice Housing.  He says that he has seen a graphically illustrated book that was provided to his older son that showed pictures of bruised women and crying children.  He found this book disturbing.  He was told that he wasn’t allowed to talk to the boys’ counsellor.  He seeks both general and specific information about the counselling being provided to the boys: he’d like to know what’s discussed at the counselling, the boys’ progress (if any), and the qualifications of the counsellor.  He says the situation is “disheartening and stressful” and that he worries about what happens to the boys when they’re not in his care or their mother’s.

[38]           Ms. Muise says Mr. Fox wasn’t involved with the children until a few months before the separation.  According to Mr. Fox, while the couple cohabited Ms. Muise took the lead in arranging the boys’ appointments and attending them.  On occasion, he was the parent who determined that an appointment was necessary. 

[39]           Mr. Fox worries that a sole custody order will enable Ms. Muise to further distance him from important matters relating to the boys. 

[40]           In Rivers, 1994 CanLII 4318 (NS SC) at paragraphs 50 to 53, Justice Stewart identified a series of questions to be considered in determining whether joint custody is in children’s best interests.  Her decision was in the context of a corollary relief proceeding under the Divorce Act, R.S.C. 1985 (2^nd Supp.), c. 3, but I believe that the same considerations are relevant to a determination under the Maintenance and Custody Act.  I’ve re-stated Justice Stewart’s questions below.

 

(a)    Has each parent maintained a meaningful relationship with the children?

(b)   Does each parent have the parenting capabilities that are adequate to meeting the children’s needs?

(c)    Will the parents be able to make decisions together about the children?

(d)   Are the parents able to co-parent despite any conflict between themselves, isolating their feelings about each other as former partners from their relationship as parents and their children’s needs?

(e)    Will the children be involved in conflict between the adults?

(f)    Will a joint custody arrangement cause disruption and discontinuity to the children’s developmental needs?

[41]      Even if Mr. Fox had little to do with his sons while the couple was together, he has maintained meaningful relationships with them since the separation.  Immediately following Ms. Muise’s departure from the home, the boys lived with their father.  Then, for a few months, they were in a shared parenting arrangement.  Since that ended Mr. Fox has exercised access and attempted to keep himself informed in matters of the boys’ welfare.  I have no concerns about either parent’s ability to meet the boys’ needs: neither Colton nor Zachary has special needs which cannot be met by either parents.  Mr. Fox is aware of each boy’s particular needs so that he can participate meaningfully in a discussion and determination of matters relating to that child. 

[42]      Since the separation, Ms. Muise has precluded shared decision-making, so I have no demonstrated ability or inability to make decisions together.  She has been dismissive of Mr. Fox’s requests for relevant information to the point where he was unable to inform himself of matters relating to his sons. 

[43]      Mr. Fox admitted that the boys have occasionally seen the “acrimony and discord” between their parents.  Ms. Muise says there’s a marked improvement in the boys’ behaviour and attitude, and Mr. Fox says that “where things have settled down now here between us and the initial part of this whole thing is over, I can notice a difference of [sic] them.”  Mr. Fox and Ms. Muise communicate by text messages so the children aren’t exposed to any disagreements between their parents.

[44]      Colton is twelve and Zachary is nine.  By virtue of their ages, they have passed many developmental milestones. 

 

[45]      The boys have been engaged in counselling through Alice Housing.  Their counsellor was not brought to court to offer any opinion about the benefit or harm of a joint custody arrangement for them.

 

[46]      Both parents must be aware of what is happening with their sons.  I order that each may contact any third parties who are involved with the boys (such as teachers, care-givers, doctors, dentists, counsellors and extra-curricular activity coaches or supervisors, schools, hospitals, churches and camps) and obtain information about the children directly from them.  All of these people or institutions must respond to either parent’s requests without requiring the authorization of the other parent.  These provisions should be placed in a discrete order so that it may be provided to information-holders without disclosing irrelevant information to them: a hockey coach, for example, doesn’t need to know the result of Ms. Muise’s unjust enrichment claim.    

 

[47]      I am satisfied that these parents should share decision-making regarding their sons.  Each has an established relationship with the boys and is capable of meeting the boys’ needs.  Historically the parents’ conduct has left much to be desired, but these incidents appear to have waned, and the boys’ situation has improved.  No concern has been identified regarding the boys’ development. 

Other claims

 

[48]      Where parties are married, the proper approach to financial claims is to resolve property claims before support claims, according to Justice Hart (with whom Justices Coffin and Jones concurred) in Lawrence (1981), 47 N.S.R. (2d) 100 (A.D.) at paragraph 5.  Justice Hart said that this was the proper approach for most cases “since there are possibilities under the Matrimonial Property Act of establishing unequal divisions of assets that might well affect the need of either party for maintenance after that decision has been made”.  (Leave to appeal Lawrence (1981), 47 N.S.R. (2d) 100 (A.D.) to the Supreme Court of Canada was dismissed at Lawrence (1981), [1982] 49 N.S.R. (2d) 209 (A.D.) by Chief Justice MacKeigan, Justices Hart, Jones, Macdonald and Pace.)

[49]      The Matrimonial Property Act, R.S.N.S. 1989, c. 275 doesn’t apply to Ms. Muise and Mr. Fox because they are not married.  However, the logic of Justice Hart’s reasons is compelling: if I find there has been unjust enrichment and a monetary remedy is the appropriate response, this may be relevant to Mr. Fox’s ability to pay spousal maintenance or Ms. Muise’s need.  I adopt this approach.

Ms. Muise’s unjust enrichment claim

[50]      Ms. Muise claims there has been unjust enrichment and asks for an equal division of the existing equity in the home through a lump sum payment and a division of Mr. Fox’s employment pension.  Mr. Fox says that she is entitled to neither. 

 

[51]      Before I start my analysis of Ms. Muise’s unjust enrichment claim, I want to explain why Mr. Fox’s pension is considered in this context.

 

[52]      On her application form, Ms. Muise’s claim against Mr. Fox’s pension is pursuant to the Pension Benefits Act.

 

[53]      In Morash, 2004 NSCA 20, at paragraph 28, Justice Bateman (with whom Chief Justice Glube and Justice Cromwell concurred), explained that a decision to divide a pension and the proportion of the decision is made pursuant to the Matrimonial Property Act, while the Pension Benefits Act, R.S.N.S. 1989, c. 340 “provides no more than a mechanism for division of pension credits at source, with a limit on source division to fifty percent of the pension benefits earned” during the relationship.  She said that it was “obvious from the wording of the PBA that it does not purport to govern entitlement.”  For Ms. Muise and Mr. Fox, who are unmarried, the initial decision about the pension is made under the common law and the mechanics for the division are found in the Pension Benefits Act.

 

[54]      As I write this decision, the Pension Benefits Act, R.S.N.S. 1989, c. 340 is repealed by section 144 of the Pension Benefits Act, S.N.S. 2011, c. 41. 

 

[55]      The new Act received Royal Assent on December 15, 2011, however it and its regulations have not yet been proclaimed in force, so Ms. Muise’s claim for a share of Mr. Fox’s pension credits is based on her unjust enrichment claim.

 

[56]      The parties agree that the Supreme Court of Canada’s decision in Kerr v. Baranow, 2011 SCC 10 is applicable. 

 

[57]      Unjust enrichment is best characterized, according to Justice Cromwell at paragraph 142 of his reasons in Kerr v. Baranow, 2011 SCC 10 as “one party leaving the relationship with a disproportionate share of the worth that accumulated as a result of the parties’ joint efforts”.

 

[58]      At paragraph 38 of Kerr v. Baranow, 2011 SCC 10, Justice Cromwell explains that to prove her unjust enrichment claim, Ms. Muise must prove enrichment.  She must show that she gave something to Mr. Fox that he received and retained.  The benefit must be tangible, even if it is not permanent.  It must have enriched him and be capable of restoration to her in money or in kind.  The benefit may be positive or negative; a “negative” enrichment allows the recipient to avoid an expense.

 

[59]      For the first years of the relationship, the couple cohabited (when they lived together) in Ms. Muise’s apartments.  There, she was primarily financially responsible for expenses.  Mr. Fox purchased groceries and paid for some of the household contents. 

 

[60]      After Colton was born and the family moved to the Moirs Mill Road home, labour was divided along traditional lines: Mr. Fox took care of most of the work outside the home (maintenance, the vehicles and the yard), while Ms. Muise took care of most of the work inside the home.  Ms. Muise contributed housework to the family.  Her income was diverted to meet the children’s needs.

 

[61]      I find that Mr. Fox was enriched by Ms. Muise’s financial contribution and by her labour in the home.

 

[62]      The second requirement, described by Justice Cromwell in paragraph 39 of Kerr v. Baranow, 2011 SCC 10, is that of corresponding deprivation: Mr. Fox’s gain must come at Ms. Muise’s expense.

 

[63]      Paying expenses for the household and the boys deprived Ms. Muise of the sums spent. 

 

[64]      In Peter v. Beblow, [1993] 1 S.C.R. 980, the Supreme Court determined that doing housework could support an unjust enrichment claim.  Housework is of value to the family and to work without compensation, as is commonly the case with housework, is to be deprived.

 

[65]      I find that Ms. Muise was deprived by her contribution to Mr. Fox.

 

[66]      The final element of an unjust enrichment claim is the requirement that there be “no reason in law or justice” for Mr. Fox to retain the benefit that Ms. Muise has conferred.

 

[67]      There may be many reasons why one person enriches another to their own detriment.  The most frequent example is a gift.  In Garland v. Consumers’ Gas Co., 2004 SCC 25, Justice Iacobucci, writing on behalf of unanimous court, outlined two steps for analysing the absence of juristic reason.  He said, at paragraph 44, “[f]irst, the plaintiff must show that no juristic reason from an established category exists to deny recovery”.  Established categories include contract, disposition of law, donative intent, and other valid common law, equitable or statutory obligations.  If there’s no juristic reason to deny recovery at this stage, then the plaintiff has made out a prima facie case.  Justice Iacobucci said that the prima facie case is rebuttable where the defendant can show there’s another reason to deny recovery.  There’s a de facto burden of proof on the defendant to show why he should retain the enrichment.  This allows an opportunity to look at all of the circumstances of the transaction to see if there’s some other reason to deny recovery. 

 

[68]      Neither party has suggested any juristic reason for the benefit and deprivation which has occurred.

 

[69]      Where unjust enrichment’s proven, I need to determine which remedy is appropriate.  Most often, a monetary award is a sufficient remedy.  It’s in the context of discussing whether monetary remedies should be restricted to quantum meruit claims that Justice Cromwell addressed joint family ventures.  He did so at paragraphs 87 to 99 in Kerr v. Baranow, 2011 SCC 10, to highlight the fact that the analysis of unjust enrichment claims must consider the unique circumstances of each relationship, acknowledging that the circumstances of these relationships mean that I cannot presume a joint family venture exists. 

 

[70]      As Justice Cromwell said, at paragraph 88, “The goal is for the law of unjust enrichment to attach just consequences to the way the parties have lived their lives.”  His Lordship offered four main concepts to use in analysing unjust enrichment claims, saying that they provide a “useful way to approach a global analysis of the evidence”, and provided examples. 

 

Mutual effort

[71]      Mr. Fox says that he paid “essentially all” of the living expenses and that Ms. Muise contributed neither money nor capital to the family, beyond paying the occasional phone or cable bill.  He says they shared chores “on a relatively equal basis”.  He says there’s no evidence that they “pooled their efforts through income or by an unequal division of labour in their household”.

[72]      It’s accurate that Mr. Fox paid more of the family’s expenses than Ms. Muise did once the family moved into the Moirs Mill Road home and the children were born.  Until then, Ms. Muise paid more of the expenses when the couple cohabited in her apartments.  After 2003, Mr. Fox became a greater financial contributor, and Ms. Muise assumed primary responsibility for the children.  She was primarily responsible for their care and, when she worked, financing daycare.  Ms. Muise testified that she spent twenty to thirty hours each week on housework (dishes, laundry, cleaning, meal preparation and taking care of the family’s pets) and additional time on child care.  She was primarily responsible for relations with the boys’ school and doctor.  Mr. Fox performed some household tasks, but I find he performed far fewer of these than Ms. Muise. 

 

[73]      Their division of labour was traditional: while Ms. Muise was primarily responsible for the work inside the home, Mr. Fox was primarily responsible for the work outside the home.  Mr. Fox maintained the vehicles.  He did yard work, snow removal, property upkeep and household maintenance.  This division of labour amounted to a pooling of effort for the family’s benefit.

 

[74]      Justice Cromwell recognized, at paragraph 19 in Kerr v. Baranow, 2011 SCC 10, that “parties may also be said to be pooling their resources where one spouse takes on all, or a greater proportion, of the domestic labour, freeing the other spouse from those responsibilities, and enabling him or her to pursue activities in the paid workforce”. 

 

[75]      There is no requirement that the person claiming unjust enrichment must make an unequal contribution: she or he must have conferred a benefit and suffered a deprivation for which there was no juristic reason.  Whether the contribution was equal or not will have its measure in the remedy awarded.  The law of unjust enrichment doesn’t presume a partnership or, where there is a partnership, it doesn’t presume that the partners will share the benefits of their partnership equally.

 

Economic integration

 

[76]      Mr. Fox says there was no integration of finances: they did not share bank accounts, investments, property or debts and he refused to do so.  All property was kept separate and neither had access to the other’s property or income.  This is all true.  While they isolated their incomes and debts and Mr. Fox isolated his property (Ms. Muise had little property to isolate), they shared a household.  Ms. Muise paid the boys’ expenses: the obligation to support Colton and Zachary was not hers alone, but also Mr. Fox’s.  Regardless, her income sustained the boys’ needs.  Mr. Fox paid most of the household bills: some of these expenses would be Ms. Muise’s.  Regardless, his income sustained these needs.  Neither spouse was fully dependent upon the other: they were interdependent. 

 

[77]      According to Justice Cromwell, at paragraph 92 of Kerr v. Baranow, 2011 SCC 10, “The more extensive the integration of the couple’s finances, economic interests and economic well-being, the more likely it is that they should be considered as having been engaged in a joint family venture”.    

 

[78]      The parties’ finances weren’t fully integrated.  Neither accounted to the other for his or her expenditures and their incomes weren’t pooled so that they each had direct access to each other’s resources, but each depended on the financial contribution of the other.

 

Actual Intent

 

[79]      Intention may be expressed or inferred from conduct.  Mr. Fox was clear, at various points, about his intention that his finances were to be separate from Ms. Muise’s.  He wouldn’t place her name on the deed to the Moirs Mill Road home or its mortgage.  He wouldn’t agree to a joint bank account.  Mr. Fox would have been clear to Ms. Muise on these points.  Mr. Fox was certainly clear that he wanted the Moirs Mill Road home to belong to his sons one day. 

 

[80]      For her part, Ms. Muise did not say that they intended for their debts, assets and incomes to be shared, but this is something she sought.

 

Priority of the family

 

[81]      Mr. Fox points to the both spouses’ employment during the majority of their relationship as evidence that the family unit was not a priority.

 

[82]      The couple made a number of significant decisions which focused on their family.  The most important of these decisions were those to have children.  As well, there was the decision to acquire Mr. Fox’s family home so it would stay in the family and could be passed on to their sons.  During times when he was disqualified from driving and had no use for a vehicle, Mr. Fox chose to provide Ms. Muise with vehicles so that she and the children would have transportation.

 

[83]      During the latter years of the relationship, Ms. Muise was discouraged from working by Mr. Fox who said that once he explained to Ms. Muise that she was working for very little money and her work was disruptive to the family (especially disruptive to his sleep), she stopped working.  He says that was her choice; that choice was encouraged by Mr. Fox and gave priority to the family.

 

[84]      Annually, Ms. Muise completed the both her income tax return and Mr. Fox’s.  She filed these on the basis that each was “single” which enabled her to receive the Canada Child Tax Benefit which she used to pay the children’s daycare expenses.  Mr. Fox says he was unaware that Ms. Muise did this and that it would have been her choice to do so.  Whether he was aware of this deception, he was its beneficiary: if the CCTB wasn’t available to pay for the boys’ expenses, the money would have had to come from some other source and would have reduced the family’s means. 

 

[85]      After the couple separated, when the boys were in a shared parenting arrangement, Mr. Fox applied for the CCTB and the Canada Revenue Agency became aware that Ms. Muise was not eligible for the payments she’d received in the past.  She is repaying them.

 

[86]      As this review indicates, the period when the couple was most engaged in a joint family venture is that period of their relationship following Colton’s birth, when they moved into the Moirs Mill Road home and Zachary was born.  During the first decade of their relationship they did not continuously cohabit.  Each spouse had employment, and the absence of a house and children meant that Ms. Muise was less called upon to make the contributions that characterized the last nine years of their relationship. 

 

Remedy

 

[87]      Where all three elements of unjust enrichment have been proven I am to consider remedies.  Both monetary and proprietary remedies are available.  Monetary remedies have priority: proprietary awards are to be considered when a monetary award is inappropriate or inadequate.  The claimant bears the burden of proving that a monetary award is insufficient. 

 

[88]      Ms. Muise doesn’t seek a proprietary remedy, she seeks a monetary one.  This is consistent with Mr. Fox’s desire to maintain the Moirs Mill Road property for their sons.  In these circumstances, I don’t need to consider whether a monetary remedy is inappropriate or inadequate.

 

[89]      In determining Ms. Vanasse’s appeal, Justice Cromwell said, at paragraph 157 in Kerr v. Baranow, 2011 SCC 10, that, “The unjust enrichment is thus best viewed as Mr. Seguin leaving the relationship with a disproportionate share of the wealth accumulated as a result of their joint efforts.”

 

[90]      Here, Mr. Fox seeks to leave the relationship with a number of vehicles, an RRSP, his pension and the Moirs Mill Road home while Ms. Muise has a vehicle and some household contents.  The wealth he would take is disproportionate and comprises an unjust enrichment.

 

[91]      Ms. Muise asks for an equal division of the existing equity in the home through a lump sum payment and a division of Mr. Fox’s employment pension.   

 

[92]      Ms. Muise seeks a monetary remedy.  To be entitled to a monetary remedy, she must show that there was a joint family venture and that there is a link between her contribution to the venture and the accumulation of wealth.  I am satisfied that she has shown both.

 

[93]      In his May 17, 2011 Statement of Property, Mr. Fox disclosed no pension.  His more recent Statement of Property was filed on November 6, 2012.  Unsworn, it was adopted by him in his testimony.  According to it, he has a pension with a value of $4,320.85 as of January 2012.  This pension is held at Great-West Life.  The pension statement shows that it is a pension for “Ingersoll-Rand Canada Inc. Terminated Members” and that Mr. Fox joined the plan on December 7, 2009. 

 

[94]      Mr. Fox’s T4 slips for 2010 and 2011 show pension adjustment amounts.  It appears that after he joined the pension in December 2009, he contributed to it until the couple separated, nine months later, in September 2010.  Based on his 2012 Property Statement, Mr. Fox’s pension has modest value.

 

[95]      Mr. Fox either paid $97,000.00 to acquire the Moirs Mill Road home or assumed a mortgage in that amount.  As a family home, it was available to him at a reduced price.  The house has not been appraised.  Ms. Muise’s opinion, for which she offered no basis, is that it is worth $325,000.00.  Its property tax assessment is $131,900.00. 

 

[96]      Both parties testified about the work done to repair the home.  Both contributed work and money to this effort.  I am prepared to accept the assessed value of $131,900.00 as the home’s value.  This amount likely does not reflect the full value of the property.  This is acceptable because some portion of the property’s value was acquired as a result of Mr. Fox’s family relationship: Ms. Muise made no contribution to that. 

 

[97]      When Ms. Muise was excluded from the home its mortgage was approximately $64,000.00.  The difference between the home’s value and the amount of the mortgage in the spring of 2011 is $67,900.00.  This equity has accumulated because of Mr. Fox’s mortgage payments. 

 

[98]      A second aspect of the accumulated wealth is Mr. Fox’s pension, which was financed with his diverted earnings.  

 

[99]      From 1990 until 2001, Ms. Muise was the primary economic contributor to this relationship.  While they cohabited, she provided Mr. Fox with an established home and paid most of the bills relating to it.  After the children were born and the family moved to Moirs Mill Road, Mr. Fox became the primary breadwinner.  Ms. Muise contributed less financially and contributed, through her income and labour, to an extent approximately equal to that of Mr. Fox. 

 

[100]    Considering their financial contributions and their contributions of household labour and child care, I consider the parties have, overall, contributed equally to a joint family venture during the period when Mr. Fox acquired both the Moirs Mill Road property and his pension. 

 

[101]    The appropriate remedy for Ms. Muise is an award of $33,950.00 (an equal share of that portion of the Moirs Mill Road property’s value that accrued while the parties were together) and an equal share of the pension benefits earned by Mr. Fox from the date he joined his pension plan until September 30, 2010 when the couple separated.

Maintenance

[102]    The maintenance claims are governed by the Maintenance and Custody Act.  Subsection 3A(1) of the Act requires that where there’s an application for both child maintenance and common-law partner maintenance, I give priority to child maintenance in determining the applications.  I will begin with it.

 

Child maintenance

[103]    The Child Maintenance Guidelines, N.S. Reg. 53/98 apply.

Prospective child maintenance

                                    Table amount

[104]    Mr. Fox’s 2012 Statement of Income showed him to have an annual income of $68,100.00.  In contrast, his year-to-date paystub for the pay period ending October 21, 2012 showed that he’d earned a total of $62,108.94, with four bi-weekly pay periods remaining in the year.  Assuming that his rate of earnings would not change to the end of the year, his annual income for 2012 would be approximately $73,400.00.  I find Mr. Fox’s 2012 income to be $73,400.00 and order him to make monthly child maintenance payments of $1,014.00 commencing with his November 2013 payment.

 

Special or extraordinary expenses

 

[105]    Ms. Muise claims that Colton and Zachary have extraordinary expenses for hockey and soccer.  Mr. Fox says that the boys no longer participate in these activities.  I’m told by Ms. Muise that the boys haven’t participated because she hasn’t been able to afford it.

[106]    Subsection 7(1) of the Guidelines says that I may order an amount to cover all or any portion of certain expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the children’s best interests and the reasonableness of the expense in relation to the means of the parents and the children and the family’s spending pattern prior to the separation.

[107]    Of the six categories of expenses enumerated in section 7 only two are categories of expenses which must be “extraordinary” in order to be the subject of an order for contribution.  Expenses for extra-curricular activities fall into one such category and are listed in clause 7(1)(f).

 

[108]    According to Justice Roscoe, with whom Justices Saunders and Oland concurred, at paragraph 27 in L.K.S. v. D.M.C.T., 2008 NSCA 61 (CanLII), it’s “preferable to deal first with s. 7(1) to determine whether the expenses are necessary in relation to the child’s best interests and reasonable in relation to the means of the parents before dealing with the definition of extraordinary expenses in s. 7(1A).”  (Leave to appeal the Court of Appeal’s decision to the Supreme Court of Canada was denied at D.M.C.T. v. L.K.S., 2009 CanLII 1998 (SCC).)

 

[109]    There’s been no dispute that the sports cost is necessary in relation to the boys’ best interests.  No issue has been taken with the reasonableness of the expense in relation to the parents’ means, the boys’ means and the family’s pre-separation spending pattern.  As a result I find that the expense for extra-curricular sports is necessary and reasonable.  This means I can move on to consider whether the costs are extraordinary pursuant to subsection 7(1A).

 

[110]    Mr. Fox argues that the costs aren’t extraordinary.  He argues that “at one time expenses for extracurricular activities had to be extraordinary in nature” before a paying parent was required to contribute and “there appears to have been a shift where courts are ordering a contribution to any extracurricular expense [ . . . ] even when the cost is minimal.”  Mr. Fox says that “this is not what was intended by the rules.”

 

[111]    Mr. Fox is correct that there has been a shift.  Following the enactment of the Federal Child Support Guidelines, SOR/97-175 in 1997, judicial interpretations of “extraordinary expenses” differed.  Two differing interpretations are found in our Court of Appeal’s first consideration of section 7, in Raftus, 1998 CanLII 6139 (NS CA).  While the Court was unanimous in its result, Justice Flinn (with whom Justice Jones concurred), held that extraordinary expenses were those which were in addition to what is usual or exceptional.  It was Justice Flinn’s view, at paragraph 53, that whether an expense was extraordinary “must be determined, not in light of parental income, but in considering the nature of the activities and the nature of the expenses.”  While agreeing with the disposition of the appeal, Justice Bateman took the contrary view at paragraph 28, saying that whether an expense is extraordinary depends on a subjective assessment, done in the context of the parents’ incomes: “A relatively modest expense for a child’s extracurricular activity may be “extraordinary” for parents who are living at a very low income level, but trivial for those with generous incomes.”

 

[112]    Different courts adopted one or the other of these two interpretations.  In 2005, the Federal Child Support Guidelines were amended by SOR/2005-400 to include subsection 7(1.1) which provides two alternate methods for determining whether an expense is extraordinary.  These amendments came into force on May 1, 2006.

 

[113]    Nova Scotia’s Child Maintenance Guidelines mirror the Federal Child Support Guidelines and incorporate all of its Schedules and amendments.  Subsection 7(1.1) of Federal Child Support Guidelines is paralleled in subsection 7(1A) of Nova Scotia’s Child Maintenance Guidelines.

 

[114]    What constitutes an extraordinary expense may be determined either under clause 7(1A)(a) or clause 7(1A)(b) of the Guidelines.  Pursuant to clause 7(1A)(a), extraordinary expenses are those which are too great for Ms. Muise to reasonably cover, considering her income and the child maintenance she receives pursuant to the child maintenance tables.  Where the expenses can reasonably be covered, they may still be extraordinary by virtue of the alternate analysis in clause 7(1A)(b).  If the expenses cannot reasonably be covered, I don’t need to conduct the analysis under clause 7(1A)(b).

 

[115]    According to Ms. Muise’s Statement of Special or Extraordinary Expenses, Colton’s annual hockey cost is $850.00 and his annual soccer cost is $200.00.  For Zachary, the annual cost of hockey is $650.00 and the annual cost of soccer is $200.00. 

 

[116]    Subsection 7(3) of the Guidelines requires that in determining the amount of an expense, I consider the availability of and eligibility to claim subsidies, benefits, income tax deductions and credits relating to the expense.  Ms. Muise’s income is so low that she cannot make use of the Children’s Fitness Tax Credit.  The boys’ extra-curricular costs are not discounted by the tax credit and total $1,900.00 annually.

 

[117]    Ms. Muise’s entire means are comprised of her child and spousal maintenance payments.  Spousal maintenance is excluded from her income for the purposes of determining her income and calculating her contribution to special or extraordinary expenses, pursuant to section 3.1 of Schedule III to the Child Maintenance Guidelines.

 

[118]    I’ve determined that monthly child maintenance payments will be $1,014.00.  It’s immediately apparent that the sports cost consumes almost two months’ child maintenance payments.  These costs are more than Ms. Muise can reasonably afford.  I conclude that the extra-curricular activity costs are an extraordinary expense.  As a consequence of reaching this conclusion, I don’t need to do the analysis in clause 7(1A)(b).

 

[119]    The next step in apportioning the sports expense is in subsection 7(2) of the Guidelines which says that the guiding principle in determining the amount of an expense is that the parents share the expense in proportion to their respective incomes after deducting any contribution to the expense made by the children.  Colton and Zachary make no contribution to the expense of their hockey or soccer.  Given that Ms. Muise has no income, Mr. Fox shall pay the entirety of this cost.

 

[120]    Mr. Fox is concerned that the boys weren’t involved in these activities in the past and says he shouldn’t be forced to pay for them since the boys aren’t participating in the activities.  I accept Ms. Muise’s evidence that the boys didn’t play soccer or hockey because Mr. Fox didn’t pay the registration, and Ms. Muise couldn’t afford to pay it.  Commencing with his November 2013 maintenance payment, Mr. Fox shall pay monthly child maintenance of $158.33 pursuant to clause 7(1)(f) of the Guidelines to enable the boys’ sports participation.

                        Child maintenance from August 2011 to current date

[121]    Ms. Muise claims child maintenance from August 2011 to the current date based on the boys having their primary residence with her since then.

 

[122]    The parties resolved the boys’ parenting arrangements at two settlement conferences during the spring of 2011.  Following their agreement, I determined child maintenance in the context of the negotiated shared parenting arrangement.  Ms. Muise’s income was $10,008.00, and Mr. Fox’s was $66,456.00.  I ordered monthly child maintenance of $1,058.33.  This amount was comprised of a $900.00 payment to Ms. Muise and Mr. Fox’s payment of the entirety of the boys’ sports costs. 

 

[123]    In seeking child maintenance from August 2011, Ms. Muise claims that the shared parenting arrangement ended very shortly after it began, and the boys have had their primary residence with her.  (I’ve described the event that brought this on in paragraph 33.)  Based on Mr. Fox’s 2011 annual income of $66,456.00, his monthly child maintenance payment pursuant to subsection 3(3) of the Child Maintenance Guidelines would be $922.00 until December 31, 2012 when they would increase to $1,014.00 (based on his 2012 income and the revised Tables).

 

[124]    The boys have been in their mother’s primary care since August 2011 and the amount of child maintenance payable for them should be adjusted to reflect this and the revision to the Nova Scotia Child Maintenance Guidelines which occurred on December 31, 2012.  Based on a primary care parenting arrangement, Mr. Fox should have paid child maintenance of $922.00 (rather than $900.00) each month for the months of August, September, October, November and December 2011.  Based on his 2012 annual income as I’ve estimated it above and the revised Guidelines, he should have paid $1,014.00 per month throughout 2012 and to the current date.

 

[125]    The actions of both parents have deprived the boys of the relationship they were to have with their father.  There is no reason to further deny them their entitlement to appropriate child maintenance during that time.

 

[126]    Mr. Fox’s monthly child maintenance payments from August to and including December 2011 are fixed at $922.00.  His monthly child maintenance payments for 2012 and 2013 are fixed at $1,014.00.  Mr. Fox should have paid child maintenance of $26,918.00 from the end of August 2011 until the end of October 2013.  He has been paying child maintenance and the payments he has made should be offset against this amount ($26,918.00) with the difference to be paid to Ms. Muise on or before December 31, 2013.  With this payment, Mr. Fox will owe no arrears and no further retroactive amount.

 

[127]    The interim maintenance order required Mr. Fox to pay for the children’s activities.  He was ordered to make payments directly to the activity organizers.  He didn’t.  He explains this by saying the boys weren’t involved in the activities or they didn’t want to take part in them.  According to Ms. Muise, the boys didn’t play soccer in 2011 or 2012 because she couldn’t afford to enroll them.  She says that since Mr. Fox didn’t pay for hockey in 2011, she wasn’t able to register them for hockey in 2012.  (The boys were allowed to complete their hockey programs in the 2011 – 2012 season even though their costs weren’t paid.)  Where these costs weren’t actually incurred during this period, I do not order Mr. Fox to pay the costs now. 

 Common-law partner maintenance

[128]    The awkward phrase “common law partner maintenance” is taken from the Maintenance and Custody Act.  I find it easier to describe Ms. Muise’s claim as one for spousal maintenance.  The only difference between claims by a spouse and those made by a common law partner is the necessity of determining a claimant is a common law partner within the meaning of subsection 2(aa) of the Act, which defines a common law partner as an individual who has cohabited in a conjugal relationship for a period of at least two years.

 

[129]    Mr. Fox admits that he and Ms. Muise were in a common law relationship for twenty years.

 

[130]    Section 4 of the Maintenance and Custody Act contains a number of factors I’m to consider in determining whether Mr. Fox should pay spousal maintenance to Ms. Muise.  If I decide he should do so, I’m to consider these same factors in deciding the amount of maintenance.  Of the factors enumerated, I need not consider subsection 4(c) because there is no contract between Ms. Muise and Mr. Fox.

(a) the division of function in their relationship

[131]    Ms. Muise claimed that she was required to perform twenty to thirty hours of house work each week, in addition to being primarily, if not solely, responsible for the children.  She admits that Mr. Fox did the grocery shopping.  She says he cooked once or twice each month.  He attended one or two parent-teacher meetings when Colton was in grade primary and none of the medical checkups relating to his heart: Colton was diagnosed with myocarditis at birth and his condition has been monitored.  She agreed that these appointments were scheduled at times when Mr. Fox was at work.  She claims Mr. Fox only became a more involved parent in the months prior to the separation.

[132]    While Ms. Muise was employed for most of the relationship, she says she occupied the role of a traditional home-maker and that she dedicated her income to the children’s needs and limited range of household bills.  Through the latter years of the relationship Mr. Fox’s income vastly exceeded Ms. Muise’s and he was responsible for most household expenses. 

(b) Mr. Fox’s express or tacit agreement that he would maintain Ms. Muise

[133]    The parties, particularly Mr. Fox, isolated their money.  He said that if Ms. Muise needed something for the children “oftentimes, I’d give [money] to her or something.  If she asked me to borrow money for a certain reason and told me she was going to pay it back, I expected to be paid back.”  He rejected her request for a joint bank account and they had no joint debts. 

[134]    While they isolated their money, their finances were combined.  In Ms. Muise’s apartments, she paid most expenses and in Mr. Fox’s home, he paid most expenses.  In neither situation did each spouse pay only for his or her costs.  For example, even when his driver’s licence was suspended, Mr. Fox provided a vehicle for Ms. Muise’s use.

(d) custodial arrangements for the children

[135]    It’s agreed that the boys’ primary residence will be with their mother.  They attend school during the day.

(e) each parent’s obligations toward any children

[136]    There are no children other than Colton and Zachary for whom either parent has any obligation.  Ms. Muise has another child: Alex is at least 25 years old and does not live with her.

(f) either spouse’s physical or mental disability

[137]    Ms. Muise claims a number of ailments: unspecified allergies, asthma, and stomach acid.  In 2011, she was taking anti-depressant/anti-anxiety medication.  She has degenerative discs in her neck which she treats using Tylenol and Advil.  She says she takes Gravol occasionally.  Ms. Muise didn’t indicate how long she’s had these conditions nor that any ailment impaired her ability to work.  It appears that none has impeded her employment in the past.  She doesn’t explain her current unemployment by virtue of her health.

(g) either spouse’s inability to obtain gainful employment

[138]    Mr. Fox works full-time.  There is no issue about his employment.

[139]    Ms. Muise claims she is unable to find work.  She outlined her work history in an affidavit.  She has completed grade twelve and one year of post-secondary study.  Annually while she worked at a call centre, she received periodic training (generally three or four times each year) relating to computers and customer service.

[140]    When Ms. Muise began her relationship with Mr. Fox, she was earning minimum wage, working at a gas station.  She was twenty.  From 1991 until 1997, she worked at Diamond Transport, a Lower Sackville taxi company, transporting special needs children to and from school. 

[141]    From 1998 to 1999, Ms. Muise studied at the Maritime Business College.  She completed a one year program as a veterinary assistant.  When she completed the course, she went to work at Downsview Veterinary Hospital for approximately seven months.  Following that, from December 1999 until December 2007, she worked at the Staples call centre.  While at the call centre, she spent four years as an “inbound customer service sales representative” and four years as an “outbound sales representative”.  She was paid $14.80 per hour and earned an annual income of almost $29,000.00.  She says she was wrongfully dismissed from this job.

[142]    From December 2007 until June 2008, she was employed by her sister and brother-in-law who run a business, D&D Removal Services, that transports human remains from hospitals, crime scenes and car accidents to funeral homes, crematoria and the medical examiner’s office.  She said the work paid $20.00 per hour and was flexible so she could work when the children were in school or after they’d gone to bed.  Ms. Muise says she gave up this job “as [Mr. Fox] made it very difficult for me to continue working.”  She says that if she worked in the evening, he’d accuse her “of running around on him” and if she worked in the day “he refused to provide child care for the children or pick them up from school.”

[143]    According to Mr. Fox, Ms. Muise was paid a flat rate of $20.00 to take her vehicle out to pick up the company vehicle and “go wherever for however long.”  He says she was “on call 24 hours a day, seven days a week”.  He found that her work disturbed the household: if she was called to work during the night it disturbed his sleep.  He testified that he “wasn’t happy” that Ms. Muise stayed with the job, and he explained to her that “she wasn’t making any money doing it and it was causing a lot of problems in the house and I figured it was in her best interest that she didn’t keep the job.  There was no benefit to it.”  He says he didn’t give her an ultimatum.  She left the job in June 2008.

[144]    At the time of the interim hearing in June 2011, Ms. Muise said she was going to return to work at her sister and brother-in-law’s business.  She said that while she and Mr. Fox were together, this job was flexible and allowed her to be home when the boys were at home or to work after they were in bed.  She said the reason she left it was because of Mr. Fox’s jealousy and his refusal to provide child care.  Her evidence now is that this work is not flexible.  She never took the job and hasn’t approached her sister about doing it since 2011.  I can appreciate that since she no longer lives with Mr. Fox, she cannot leave the children home alone at night, but she failed to offer a satisfactory explanation for not working when the boys were at school.

 

[145]    Ms. Muise testified that since the separation she’s applied for four jobs.  She says she “found anything that she could apply for”.  She twice applied at MSI, once in the fall of 2011.  She applied at Molly Maid in the spring of 2012.  A third job was “a work at home type business” which she described as “computer work of some kind.  It was very vague.”  She was unable to remember the name of the business and said that it turned out to be “one of those pyramid type schemes”.  Her other application was made to Primerica at the end of 2011 for a job doing accounting work.  She says her further research revealed this was a “too good to be true type scenario” and she chose not to get involved.  All these job applications were online and none were more recent than eighteen months ago.  She received responses from none of the potential employers except the unnamed pyramid scheme.

 

[146]    Ms. Muise and the children moved into Alice Housing in April 2011.  Through programming there, Ms. Muise worked on her resumé in October 2012.  (She’s also taken an empowerment course and one relating to trauma.)  She’d like to work as an educational program assistant (EPA) for the local school board, assisting disabled children with their educational needs.  She says this work would give her flexibility to spend time with Colton and Zachary, and avoid the need for child care, though she admits that every school’s hours are different which may mean that her work hours don’t coincide with the children’s and she will require paid child care.  In these circumstances she says that she “would hope that if I had to be at work earlier in the morning than what the children have to be that their father would be kind enough to drop them at school in the morning if I were to bring them to him.”  She says she won’t work at a job where her wages are exhausted by child-care costs.  She was uncertain what options there were for child-care other than the Excel program and what alternatives might cost.  I am mindful that Colton is twelve and Zachary is nine.  

 

[147]    Ms. Muise didn’t know what she’d earn as an EPA and said she didn’t think it was any more than $25,000.00 at this stage.  This amount would be reduced if the position was only part-time.  To be hired, she’d need to complete a course in non-violent crisis intervention and first aid training to secure work.  She hasn’t pursued any of this training, saying she lacks the money.  She didn’t say what the courses would cost.  She hasn’t made any applications and doesn’t know whether there are positions available.

 

[148]    Ms. Muise said she is willing to work half-time as an EPA and incur the cost of the boys’ Excel programs because this would spare her concerns about their care during the breaks from school (at Christmas, March break, Easter and during the summer). 

 

[149]    Mr. Fox says that Ms. Muise hasn’t made reasonable efforts to find work.  The couple separated in September 2010.  Three years have passed and she has made the slightest of efforts to search for work.  She has an extensive history working in a call centre, where she earned more than she says she’d earn working full-time as an EPA.  She has not applied for any work in call centres where she’s been successfully employed in the past.

 

[150]    I don’t accept that Ms. Muise is unable to obtain gainful employment.  Her efforts to find employment have been unreasonable.

(h) either spouse’s contribution to the other’s education or career potential

[151]    Mr. Fox completed the first and second blocks of his training in 1990 and 1991.  After that he was hired as an apprentice.  Ms. Muise’s contribution to his career potential thereafter relates to her efforts at home while Mr. Fox worked.

 

[152]    Ms. Muise says that from 1998 to 1999, she studied at the Maritime Business College where she completed a one year program as a veterinary assistant.  I don’t know how this was financed.  Through her employment at the Staples call centre she received some computer and customer service training.  

 

[153]    Mr. Fox was laid off in 1997 and didn’t return to work until the spring of 1997.  He says that during this time he lived a number of places, including his grandmother’s, an apartment in Truro and a residence in Amherst.    

 

[154]    While he was employed there were occasions when Mr. Fox was out of town for part of a week or for a full week.  He says this was sometimes weekly and that at other times, he wouldn’t be required to travel at all during an entire year.  When Mr. Fox was away, Ms. Muise was solely responsible for the home and children.

(i)     Ms. Muise’s reasonable needs

[155]    Ms. Muise’s Statement of Income discloses expenses of $2,658.33.  A small portion of this ($158.33) relates to the boys’ sports and will be paid by child maintenance.  Otherwise, the table amount of child maintenance ($1,014.00) will defray her expenses further, leaving her with a shortfall of less than $1,500.00.

(j) Mr. Fox’s reasonable needs

[156]    I’ve determined that Mr. Fox’s annual income is $73,400.00.  His annual child maintenance payments are $14,068.00.  After this obligation is met, his income is $59,332.00.  From this, he must pay his statutory deductions: income tax, Employment Insurance and Canada Pension Plan premiums.  His income tax is calculated on his income of $73,400.00 and is approximately $20,000.00.  His EI and CPP premiums total $3,247.32.  His disposable income each year is $36,084.00.

[157]    Mr. Fox has monthly expenses of $1,877.00 for his home, based on his Statement of Expenses and his testimony.  This amount includes his mortgage, property taxes, property insurance, heat, electricity, water, telecom bundle, and household maintenance.  His monthly transportation cost is $500.00.  Groceries, household supplies, clothing and laundry expenses total $750.00.  There are sundry other costs of $185.00 for the boys (health costs, activities, allowances).  He spends $85.00 on his own haircuts, insurance and drugs.  His discretionary spending is $750.00 each month, and he budgets a further $400.00 for his legal costs.  He has a monthly Visa payment of $150.00.  Totalled, his monthly costs are $4,697.00. 

[158]    I’ve determined Mr. Fox’s annual disposable income to be $3,007.00.  Looking at the costs on his Statement of Expenses, he runs a monthly deficit of approximately $1,690.00.  If I eliminated his discretionary expenses (Christmas, birthdays, events, gifts of $350.00, $100.00 for holidays, $50.00 for entertainment and $250.00 for miscellaneous expenses), his deficit would fall to $940.00. 

[159]    Some of Mr. Fox’s expenses can be reduced, but they are unlikely to yield savings of almost $1,000.00 which would eliminate his deficit.  As well, he must finance a payment of $33,950.00 to Ms. Muise. 

(k) each spouse’s separate property

[160]    Ms. Muise has no property, though she will receive a payment of $33,950.00 for her unjust enrichment claim.  She owes a debt for the repayment of Canada Child Tax Benefit payments which she received while the parties were cohabiting: during that time she claimed that she was “single” on her tax return and she received these payments.  When the couple separated she had a 2005 GMC Jimmy. 

[161]    Mr. Fox owns the home on Moirs Mill Road in Bedford.  He didn’t place a value on this on either Statement of Property he filed, but indicated that its property tax assessment in 2012 was $131,900.00.  At November 2012, the mortgage on the home was $53,968.35.  It was $63,921.86 in March 2011.  Given the equity increased by approximately $10,000.00 in twenty months, I estimate its current equity is approximately $48,000.00.   

[162]    Mr. Fox values the three vehicles in his possession at $12,500.00.   He has a small pension and an RRSP with a face value of $6,000.00 in June 2012.  He was overdrawn by $700.00 at the bank and owes a further $8,446.21 on his credit card in late 2010.

(l) Mr. Fox’s ability to pay, in light of his child maintenance payments

[163]    I’ve addressed Mr. Fox’s ability to pay in paragraphs 157 to 160 above.

(m) Ms. Muise’s ability to contribute to her own maintenance

[164]    Ms. Muise’s doesn’t contribute to her own maintenance because she is unemployed.  She has, however, the ability to contribute.  Historically, she has annually earned $29,000.00.  This amount is sufficient to meet her stated needs.

[165]    From 1990 until Colton was born, the relationship between Ms. Muise and Mr. Fox was one where Ms. Muise had the established home.  She maintained a home for herself and her oldest son and for Mr. Fox when he resided with them.  Each spouse worked.  This period of the relationship doesn’t provide much basis for a spousal maintenance claim.

[166]    The family unit became closer when Colton was born, the Moirs Mill Road home was acquired and then Zachary was born.  From 2001 to 2010, Mr. Fox’s reliance on Ms. Muise to sustain the home and children while he worked, and Ms. Muise’s reliance on Mr. Fox to provide for the family financially grew.  By the latter years of their relationship Ms. Muise had given up work to care for the family. 

[167]    Since the couple separated three years ago, Ms. Muise has done little to contribute to her own self-sufficiency.

[168]    Ms. Muise says that it was her responsibility to pay for the boys’ needs from her income.  She did this with her earnings and the Canada Child Tax Benefit payments of $700.00 each month.  Essentially, she needed $37,400.00 to do this.  Mr. Fox is paying child maintenance of $14,000.00.  If Ms. Muise returned to her previous employment, her earnings would enable her to meet the expenses she claims in her Statement of Income and allow $5,600.00 for child care.

[169]    In light of Mr. Fox’s child maintenance obligation and my order that he pay Ms. Muise $33,950.00, I order him to pay monthly spousal maintenance of $200.00 beginning this month, November 2013.  I order this to be paid until December 31, 2014.  This will allow Ms. Muise ample opportunity to replace the employment she left in 2008. 

Conclusion

[170]    Ms. Muise’s counsel will prepare the orders. 

[171]    One order will provide that the parents will share custody (decision-making) relating to their sons. 

[172]    With regard to child maintenance, Mr. Fox will pay monthly child maintenance of $1,014.00 pursuant to section 3 of the Child Maintenance Guidelines and $158.33 pursuant to clause 7(1)(f) of the Guidelines.  Before December 31, 2013, Mr. Fox will pay Ms. Muise the difference between the child maintenance payments that he has made to the end of October 2013 and $26,918.00. 

[173]    Mr. Fox shall pay monthly spousal maintenance of $200.00 from November 2013 until December 31, 2014 when these payments will cease absolutely.

[174]    Annually, each party shall provide the other with a completed copy of his or her tax return, whether filed or not, and a copy of any Notice of Assessment or Re-assessment received from the Canada Revenue Agency.  The first exchange shall occur by June 30, 2014 and all annual exchanges shall occur before the end of June.

[175]    Mr. Fox shall pay Ms. Muise $32,000.00 to satisfy her unjust enrichment claim.  This amount is payable forthwith.  His pension benefits earned from the commencement of his membership in his pension plan until September 30, 2010 shall be divided equally with Ms. Muise. 

[176]    There shall be a discrete pension division order for the administrator of Mr. Fox’s pension plan.

[177]    A separate order will provide that each parent may contact any third parties who are involved with the boys (such as teachers, care-givers, doctors, dentists, counsellors and extra-curricular activity coaches or supervisors, schools, hospitals, churches and camps) and obtain information about the children directly from them.  All of these people or institutions must respond to either parent’s requests without requiring the authorization of the other parent.

 

                                                                                    __________________________________
                                                                                    Elizabeth Jollimore, J.S.C. (F.D.)

Halifax, Nova Scotia