IN THE SUPREME COURT OF NOVA SCOTIA
Citation: Wood v. Wood, 2005 NSSC 285
Date: 20051031
Docket: 1210-000806
Registry: Antigonish
Between:
Daryl Daniel Wood
Petitioner/Applicant
v.
Mary Lorraine Wood
Respondent
Judge: The Honourable Justice Donald M. Hall
Heard: October 7, 2005, in Antigonish, Nova Scotia
Counsel: Carole Gillies, counsel for the Applicant
M. Louise Campbell, counsel for the Respondent
By the Court:
[1] This is a petition for divorce and corollary relief respecting child custody, access and support and division of matrimonial assets and debts.
[2] The issues in this proceeding are:
1. whether there should be shared parenting and, if so, in what manner should parenting be shared;
2. whether there should be an unequal division in favour of the respondent respecting the matrimonial home; and
3. whether certain of the debts should be the sole responsibility of the respondent.
[3] The parties were married September 16, 1995. A child, Colin Joseph Wood, was born to the parties October 7, 1998. Following the marriage the parties lived in a “mini home” on a parcel of land at Monastery, Antigonish County, that was given to them by an uncle of the respondent and his wife as a wedding gift.
[4] Subsequently the current matrimonial home was constructed on the lot. The respondent’s family members, through a family owned construction company, Mattie Brothers Construction, did the necessary excavation, installed the septic system and a well. The petitioner’s father, who is a retired Master Carpenter, and the petitioner built the dwelling house.
[5] At the time of the marriage the petitioner was employed as a pipefitter at the StoraEnso pulp Mill in nearby Port Hawksbury and continued to be so employed until January, 2005, when he was laid off, apparently because of a “labour disruption”. While at StoraEnso his annual income was in the range of $60,000.00. Since being laid off he has been in receipt of employment insurance benefits of $1,788.00 per month.
[6] The respondent was employed at the time of the marriage at Central Home Improvement in Antigonish. For the last year or so she has been employed by Ocean Nutrition as an accounts payable clerk earning approximately $30,000.00 annually.
[7] The parties separated February 18, 2004. Following the separation parenting of the child was shared on a week-about basis pursuant to an order of the Family Court of Nova Scotia. This arrangement changed when the child began school in September, 2004. The current regime is that the child is with the respondent during the week and with the petitioner every week-end from after school on Friday to Sunday evening. The petitioner, since the separation, has been residing at the home of his parents in Havre Boucher, Antigonish County .
[8] During the marriage the parties incurred significant debts which are still outstanding. The debts exceed the assets by approximately $50,000.00. The debts listed by the respondent are:
Canadian Tire $ 5,562.80
Royal Bank Line of Credit 10,006.74
Scotiabank 7,774.16
CIBC 14,545.48
Royal Bank Visa Card 3,747.57
People’s Department Store 945.94
Mortgage (as of February, 2004) 94,945.00
Car Loan 11,132.19
[9] The petitioner acknowledges that these are matrimonial debts and the equal responsibility of each except for the following three:
CIBC $ 14,545.48
Bank Nova Scotia 7,774.16
Canadian Tire 5,562.80
[10] There is no claim for spousal support at this time.
[11] The petitioner submits that there should be an equal division of the matrimonial property and debts but maintains that the CIBC, Scotia Bank Visa and Canadian Tire Corporation debts are not matrimonial. He accepts the appraised value of $129,500.00 for the matrimonial home but maintains that the respondent is not in a position to take over the matrimonial home so it should be sold and the proceeds applied against the debts.
[12] The respondent takes the position that the value of the matrimonial home ought to be divided unequally in her favour to take into account the contribution made by her family members in the acquisition and development of the property, which she submits amounts to fifteen percent of the appraised value of the home of $129,500.00. She agrees that the remaining matrimonial assets and debts should be divided equally but insists all debts, including those disputed by the petitioner, are matrimonial. It is her desire to retain the matrimonial home as a residence for herself and the child as part of the division.
[13] With respect to the custody and care of the child, the respondent proposes that the parties have joint custody with her having the primary care and the petitioner having access every second weekend. She argues that under the present regime she has no “quality time” with the child since she is working outside the home on week days.
[14] The divorce aspect of the proceeding was not contested. The ground of divorce stated in the petition is marriage breakdown based on one year separation. From the evidence I am satisfied that the parties have been living separate and apart for a period of more than one year and there is no hope of reconciliation. Accordingly, a divorce judgment is granted.
[15] The respondent has requested that her surname be changed from ‘Wood” to her maiden name of “Mattie” and it is so ordered.
[16] Turning first to the matrimonial property issues, section 13 of the Matrimonial Property Act gives the Court authority to make an unequal division of the matrimonial property in appropriate circumstances. It is as follows:
13 Upon an application pursuant to Section 12, the court may make a division of matrimonial assets that is not equal or may make a division of property that is not a matrimonial asset, where the court is satisfied that the division of matrimonial assets in equal shares would be unfair or unconscionable taking into account the following factors:
(a) the unreasonable impoverishment by either spouse of the matrimonial assets;
(b) the amount of the debts and liabilities of each spouse and the circumstances in which they were incurred;
(c) a marriage contract or separation agreement between the spouses;
(d) the length of time that the spouses have cohabited with each other during their marriage;
(e) the date and manner of acquisition of the assets;
(f) the effect of the assumption by one spouse of any housekeeping, child care or other domestic responsibilities for the family on the ability of the other spouse to acquire, manage, maintain, operate or improve a business asset;
(g) the contribution by one spouse to the education or career potential of the other spouse;
(h) the needs of a child who has not attained the age of majority;
(i) the contribution made by each spouse to the marriage and to the welfare of the family, including any contribution made as a homemaker or parent;
(j) whether the value of the assets substantially appreciated during the marriage;
(k) the proceeds of an insurance policy, or an award of damages in tort, intended to represent compensation for physical injuries or the cost of future maintenance of the injured spouse;
(l) the value to either spouse of any pension or other benefit which, by reason of the termination of the marriage relationship, that party will lose the chance of acquiring;
(m) all taxation consequences of the division of matrimonial assets
[17] It is also important to note the following recital in the preamble to the Act:
AND WHEREAS it is desirable to recognize that childcare, household management and financial support are the joint responsibilities of the spouses and that there is a joint contribution by the spouses, financial and otherwise, that entitles each spouse equally to the matrimonial assets:
[18] As I indicated at the conclusion of the hearing, I am satisfied that the evidence does not support the respondent’s position that there should be an unequal division respecting the matrimonial home. John Mattie, the donor of the land on which the home was constructed and an uncle of the respondent, testified that it was a wedding gift from him and his wife to “Daryl and Lorraine” and that it was intended for both of them. The title to the property was taken by the parties as joint tenants. There was nothing in the evidence to indicate that the subsequent excavation and other work done with respect to the property by the respondent’s family members was done for the benefit of the respondent anymore than for the petitioner who worked along with them.
[19] On the other hand, the undisputed evidence is that the petitioner’s father, who was a Master Carpenter, along with the petitioner, actually built the house, except for the electrical work.
[20] It is well established that the party seeking an unequal division under the Matrimonial Property Act must satisfy the Court that to divide the matrimonial property equally would be unfair or unconscionable. In my view, the respondent has not come close to satisfying that burden. On the contrary, it appears that there was a very substantial contribution from the family of each of the parties, which more than justifies an equal division of this particular asset.
[21] At the conclusion of the hearing I also indicated to the parties that I considered the disputed debts to be matrimonial. The general proposition in civil proceedings is that the party putting forth a claim or a material proposition must prove it on a balance of probabilities. (See Sopinka and Lederman, The Law of Evidence in Civil Cases, 1st Ed., Part B). Here the respondent testified that the disputed debts were incurred for household expenses or otherwise for the benefit of both parties. In particular, she stated that they were incurred for household purchases, repairs to the house, vehicles, vacations, a golf bag for the petitioner, and so forth. She also testified that the petitioner was aware of them as they were incurred and never suggested that they were not joint obligations.
[22] In his testimony the petitioner acknowledged that some of the expenditures were made by him or for his benefit. He was unable to point to any specific items that were not for household or family purposes and acknowledged that he didn’t know much about the accounts. Thus, he was unable to produce any material evidence to dispute the respondent’s position.
[23] I found the respondent to be a credible witness and accept her evidence in this respect. For that reason, I am satisfied that she has established on a balance of probabilities that the three disputed accounts are matrimonial debts and a mutual obligation of the parties.
[24] The parties are agreed that there should otherwise be an equal division of the matrimonial assets and debts but are not agreed as to how the division should be effected.
[25] The respondent wants to retain the matrimonial home as a residence for herself and the child. The petitioner maintains that she can’t afford to keep the home and that it should be sold and the proceeds applied against the debt. Counsel for the respondent, however, informed the court that the respondent has made arrangements to obtain new or additional financing and is quite capable of carrying all obligations associated with retention of the property. I am satisfied that the respondent should be given the opportunity to do so.
[26] Accordingly, the matrimonial home is to be allocated to the respondent. She will have to assume responsibility for the mortgage of approximately $95,000.00 and the Royal Bank judgment of approximately $ 11,500.00, which presumably will have to be paid if there is to be any refinancing involving the matrimonial home as security. The petitioner should be released from any further liability with respect to these obligations.
[27] It is my understanding that it is common ground between the parties that the respondent should retain the household goods and furnishings presently in her possession and that the petitioner should have his tools which will amount to an equal set off.
[28] It is also my understanding that the respondent is to retain the Grand Am motor vehicle but she is to assume full responsibility for the loan attached to it which is at least equal to the value of the vehicle. Thus, there is no equity or debt from this asset to go into the division.
[29] It is also agreed that the petitioner may retain the 1989 Chevrolet truck which he valued at $500.00 and which valuation I take not to have been seriously disputed.
[30] The parties are also agreed that there should be an equal division of the petitioner’s pension with StoraEnso at source. As well, the parties agree on the amount of their respective RRSP’s. These should go into the mix and be apportioned as required to bring about an equal division.
[31] In addition, it is noted that the parties treadmill was sold by the respondent for $500.00. Accordingly, the petitioner is entitled to a credit of $250.00 representing one-half of the proceeds of the sale.
[32] In view of the foregoing findings and rulings, I trust that counsel for the parties are now in a position to make the necessary allocation of the debts so as to bring about an equal division. If they are unable to do so I will hear them further.
[33] The final and most contentious issue has to do with the custody and care of the child. Authority for the Court to make orders concerning custody of and access to children of a marriage is found in section 16 of the Divorce Act which, provides in part, as follows:
16. (1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage.
. . .
(5) Unless the court orders otherwise, a spouse who is granted access to a child of the marriage has the right to make inquiries, and to be given information, as to the health, education and welfare of the child.
(6) The court may make an order under this section for a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just.
. . .
(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.
(9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.
(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.
[34] As noted, the petitioner is seeking a shared parenting arrangement while the respondent is seeking primary care with reasonable access to the petitioner.As Ms. Gillies commented, both parents care deeply for their son. It is also apparent that both are responsible, capable people with strong support from their respective families. I am convinced that each is very capable of providing a fine and wholesome home environment for the child. I am satisfied that each has much to offer the child and that it is in the child’s best interests to spend as much time with each parent as is possible in the circumstances and in the best interests of the child.
[35] It seems to me that the question comes down to two options viz, shared parenting on a week about basis with each parent on the one hand, or primary care to the respondent with significant access to the petitioner on the other.
[36] After careful consideration I have concluded that the latter would be in the child’s best interests at this time. Although I am satisfied that each parent has suitable home accommodations for the child and the parties live within a reasonable proximity to each other enabling the child to attend the same school from either residence, I have come to the conclusion that I have, as I am of the view that a child of Colin’s age needs a stable, consistent home environment where the rules and the routine are the same from day to day. It also seems to me that such a young child needs to know that he has one principal residence which he will know to be his home. Changing residences from week to week would constitute an undesirable disruption in the continuity of the child’s day to day activities and would make it difficult for him to develop friendships with playmates. As well, it would complicate the planning and scheduling of necessary appointments for the child such as medical and dental appointments.
[37] I will, therefore, order that the parties shall have joint custody of the child with primary care to the respondent. The petitioner shall have reasonable but liberal access to the child at reasonable times and on reasonable notice. In particular, he may have overnight access every second week-end beginning Thursday after school until the beginning of school on Monday morning and subject to the further specific access that the parties have agreed to.
Donald M. Hall, J.