IN THE SUPREME COURT OF NOVA SCOTIA
Citation: Skipton v. Skipton, 2005NSSC43
Date: 20050228
Docket: 1204-003406
Registry: Kentville
Between:
Andrea Lynn Skipton
Petitioner
v.
Perry Ronald Samuel Skipton
Respondent
Judge: The Honourable Justice Gregory M. Warner
Heard: January 25, 2005, in Kentville, Nova Scotia
Post trial briefs received Feb 7 and 14, 2005.
Counsel: Ronald D. Richter, Esq., counsel for the petitioner
Donald Fraser, Esq., counsel for the respondent
By the Court:
[1] This is the decision respecting division of property and spousal support. By a decision dated December 13, 2004 (2004 NSSC 260), this Court determined custody and child support.
BACKGROUND
[2] The parties met in 1991 when Ms. Skipton was hired by Mr. Skipton to provide live in care for the four children of his prior marriage. Mr. Skipton was employed full time in the military.
[3] Ms. Skipton was paid by Mr. Skipton for her services until August, 2004, which was approximately the time that he was notified of his transfer from Cornwallis to Greenwood, Nova Scotia. The parties disagree as to when they started living in a common law relationship; she says beginning December, 1992 and he says sometime in 1994; this Court does not know whose evidence is more accurate and determines that, for purposes of this decision, it was August 1993. In any event they were married in June, 1995 and separated in September, 2002.
PROPERTY DIVISION
[4] The property appears to consist of the following:
(a) a home at 58 Hall Road, South Greenwood, valued in October, 2004, at $84,500.00 with an outstanding mortgage of $70,250.00;
(b) two vehicles, two motorcycles and household contents;
(c) Mr. Skipton's entitlement to a military pension on retirement;
(d) Ms. Skipton's RRSP of $600.00 and
(e) Ms. Skipton's post-separation debts of $5,200.00.
[5] Home at 58 Hall Road. The parties do not dispute the appraisal value of $84,500.00 or the mortgage balance of $70,250.00. Their dispute revolves around three questions:
(a) Whether $10,000.00 should be credited to Mr. Skipton as an amount owing to his parents at the sale of the house.
(b) Whether Mr. Skipton is entitled to deduct the cost of repairing damage caused during Ms. Skipton's exclusive possession between December, 2002 and June, 2004:
(c) Whether imputed disposal costs on a sale should be credited to Mr. Skipton.
[6] When Mr. Skipton was transferred to Greenwood in August, 1994, he and Ms. Skipton looked for a house large and suitable enough to house them and his four children. They were not married at the time. Mr. Skipton was having difficulty finding a suitable home and at one point asked his parents if they would sell their large house and move into a smaller one. They agreed. The price of approximately $85,000.00 was agreed upon between Mr. Skipton and his parents. However, the Bank appraisal only came back at approximately $75,000.00 so that Mr. Skipton was not able finance a purchase of $85,000.00.
[7] Mr. Skipton and his mother testified that they agreed that the property would be transferred for $75,000.00 and that he would pay his parents the balance of $10,000.00 when he sold the house. This was not reduced to writing. Ms. Skipton testified that the price of $85,000.00 was reduced because of the Bank appraisal and that it was only after the property was purchased that Mr. Skipton agreed with his parents to give them $10,000.00 on the sale of the property (to which she did not agree).
[8] The Court notes that in August, 1994, Mr. and Mrs. Skipton were not married and the record shows that the deed was made out to Mr. Skipton only and the mortgage for financing the purchase was signed by Mr. Skipton only.
[9] Where the evidence differs on this issue between Mr. Skipton and Ms. Skipton, this Court adopts the often-followed approach set out by O’Halloran J.A. of the British Columbia Court of Appeal at page 356 in Farina v. Chorny [1952] 2 D.L.R. 354, and accepts the evidence of Mr. Skipton. It does not make sense that the first time the agreement to pay the parents the additional $10,000.00 was agreed to was after the transaction had taken place. Counsel for Ms. Skipton argues that it does not make sense that someone would agree to pay more for a house than what the Bank appraisal showed. This Court does not agree. It is a common occurrence. The Court notes that Mr. Skipton had already searched for and been unable to find a suitable residence before asking his parents to sell their house. The Court finds that Mr. Skipton did make an oral agreement with his parents as they stated.
[10] As to Mr. Skipton’s argument that he is liable for an obligation incurred for the benefit of the family, this Court notes that, to be a matrimonial debt, the debt must be a “legal obligation to pay” as described in Walker v. Walker (1989) 92 N.S.R. (2d) 127 (NSSC). There is no evidence that the agreement was in writing, and Mr. Skipton’s brief acknowledges that the arrangement was a “good faith” arrangement between parents and son. While it may constitute a moral obligation of the Skiptons,, the obligation deals with real property and was not to be performed within one year; contrary to the Statute of Frauds, it was not in writing. It is not legally enforceable, and therefore not an enforceable matrimonial debt.
[11] A second way to characterize Mr. Skipton’s claim is that it is, in effect, a claim for an unequal division, based on it being unconscionable for Ms. Skipton not to share in the obligation. The onus on the Respondent to justify an unequal division is heavy. Because the parties occupied the home together for the eight years Mr. Skipton owned it, and based on the quantum of assets to be divided, and the manner in which the other property is being divided, the Court rejects this possible argument.
[12] Mr. Skipton produced evidence from Michel Vermette, a carpenter and friend, listing and quantifying, in the amount of $8100.00, the damages and cleanup required after Ms. Skipton abandoned the matrimonial home in June, 2004. The Court heard evidence as to whether the damage pre-existed her occupancy or whether it existed at all.
[13] Approximately $4,000.00 of the $8100.00 estimate was to replace carpeting and flooring. Ms. Skipton had several cats during her occupancy. When he took possession of the house, Mr. Skipton took photographs showing cat fecas around the house; he and other witnesses referred to the smell and stains from cat urine in the carpets. Ms. Skipton denied that her many cats had caused any such problem. Her Counsel argues that even if the carpets needed to be replaced that they were old carpets and significant depreciation (or betterment allowance) should be provided for. The Court accepts from its review of the photographs that there was cat fecas (which was denied by Ms. Skipton) and as a result accepts that the carpets needed to be replaced because of the stains and smell. Because most of the flooring was old, the Court allows $2,000.00 of the estimated replacement cost of $4,000.00 (including HST). The evidence is clear that the patio door was damaged during Ms. Skipton's occupancy; the replacement cost is approximately $1,100.00 (including HST).
[14] Some of the other damage was caused by wear and tear or predated occupancy by Ms. Skipton; however, the property was left in a mess and had to be cleaned up and garbage removed. While there is no evidence that Mr. Skipton hired third parties to clean up the mess, it is clear it would have taken considerable time and effort by him and his family to clear up the mess. The Court allows the sum of $900.00 for his and his family’s labour.
[15] Based in part upon MacMullin (Crouse) v. Crouse, 2004 NSSF 16, the Court allows Mr. Skipton credit for the flooring, patio door and cleanup in the amount of $4,000.00.
[16] Mr. Skipton claims as a deduction the normal disposal costs of the residence. Ms. Skipton argued that because he is in the military, if he was transferred, the military would pay for any such costs. The Court heard no evidence to support this alleged “fact”.
[17] The Court understands that an allowance for disposition costs is generally granted ( see Bryden v. Bryden (1995) 140 N.S.R.(2d) 308, Clancy v. Clancy (1990) 99 N.S.R.(2d) 147 and Gomez-Morales v. Gomez-Morales (1990) 100 N.S.R.(2d) 137), but this is not automatic and should be assessed on the facts of each case.
[18] Even if the Court accepts that Mr. Skipton’s sale costs would be covered on a transfer, such would not likely include the costs of transferring the title from the old registry system to the new registry system (a once in a lifetime cost brought on by the recent change in Registry laws) in the amount of about $1,000.00, required in the event of a remortgaging or sale. In addition the Court notes that Mr. Skipton has been in the military for over twenty years and there is no evidence that he would be more likely to move from the Greenwood area as a member of the military, as opposed to after retirement from the military. In the Court's view it is just as likely that the sale of the residence would occur after as before Mr. Skipton retires from the military. Taking into account the contingencies, this Court allows as a reduced disposition cost of $4,000.00.
[19] In summary, the net amount of Mr. Skipton’s liability to Ms. Skipton for the home is one-half of $6,250.00.
[20] Personal Property. Exhibit 8 is an appraisal totalling $9,230.00 prepared in March 2003 by Wilfred MacPhee, a personal property appraiser; it includes two vehicles, two motorcycles and household contents. Exhibit 9 is a hand written list prepared by Ms. Skipton of the division of those items as between herself and Mr. Skipton.
[21] Mr. Skipton took issue with several items in Exhibits 8 and 9.
[22] He testified that the Mercury Sable vehicle valued at $1,100.00 had been purchased by him after the separation for $400.00. It had always been in his possession; he said that Mr. MacPhee never attended upon him in order to appraise it. The Court accepts Mr. Skipton's evidence that he acquired it after the separation for $400.00 and that it is not a matrimonial asset and deducts this item from his column in Exhibit 9.
[23] Mr. Skipton stated that as a result of the interim order issued in December, 2002, he turned over the Dodge Caravan to Ms. Skipton in January, 2003, with the endorsed registration. Ms. Skipton says that she could not afford the HST to register the transfer of the van and so the van sat in the yard unused by her from that time until she abandoned the matrimonial home in June, 2004. Mr. Skipton testified that when he recovered possession of the home in the summer of 2004, the van was in a rusted dilapidated condition and was not operable. Exhibit 10 included several photographs of the vehicle taken at that time; one with the hood up showed the wiring to be ruined (the Respondent said it was eaten by rodents). It is not clear who owns the Caravan; either way, the Court finds that this van had no value when Mr Skipton got possession of it and deletes it from Exhibit 9.
[24] Mr. Skipton claims the Kawasaki motorcycle was in parts in the basement and not worth $300.00 as appraised by Mr. MacPhee. It appears that Mr. Skipton has serviced his motorcycles in the past, including taking them apart and putting them back together again. Just because the motorcycle was in parts, does not, in these circumstances, means it has no value; the Court accepts the appraised value. No independent evidence was tendered to challenge the appraisal of the Honda motorcycle at $800.00 (Mr. Skipton’s Property Statement listed it at $750.00).
[25] Mr. Skipton argued about the tools. They were appraised for $500.00 and Ms. Skipton said he had all but a few. A photograph of his tool cabinet, taken in June 2004 when Ms Skipton abandoned the home, showed that he had painted an outline of each tool where it belonged in the cabinet. He obviously was very careful about his tools. The photograph showed that most of the tools were not in the tool cabinet. The Court is satisfied that, whether they went missing or whether they were taken by Ms. Skipton during the time she had exclusive possession of the home, she is accountable for at least half of the value of the tools.
[26] The appraisal showed a treadmill valued at $50.00; Mr. Skipton said it had been purchased less than a year before for $1,400.00. Ms. Skipton said it had been purchased on sale about a year and a half before for about $1,000.00. Ms. Skipton said she used it regularly and it was in good working order. The Court does not accept $50.00 as the appraised value of that item and estimates its value at $300.00.
[27] In summary, to the first column on Exhibit 9 ( what Ms. Skipton kept), the Court adds to the total of $4,637.00, $250.00 for one half the tools and $250.00 additional dollars for the treadmill, for a total rounded to $5,050.00. From the second column in Exhibit 9 (Ms. Skipton's list of what Mr. Skipton has), the Court deducts from the total of $4,467.00, the value of the Sable vehicle of $1,100.00, the abandoned Caravan of $800.00 and $250.00 for one-half the tools, leaving Mr. Skipton with a total rounded to $2,300.00. With respect to personal property, Ms. Skipton owes Mr. Skipton one-half of $2,750.00.
[28] Ms. Skipton's Post-Separation Debt. Ms. Skipton claims $5,200.00 with respect to debts (Visa, Sears, and computer loan) incurred by her after the separation in order to maintain herself. As a result of the interim order in January, 2003, the house was remortgaged and at that time all outstanding debts of both parties were consolidated into the mortgage. It is not clear whether any debts incurred by Ms. Skipton to support herself after the date of separation could be matrimonial debts. Some early cases under the Act suggest that they might be; however, her Counsel’s post-trial brief does not argue this point or set out the law. This debt is relevant with respect to the issue of retroactive spousal support and has been considered under that portion of this decision.
[29] RRSP. Ms. Skipton has an RRSP of approximately $600.00; it appears that her income is so low that she pays little, if any, taxes. I estimate its after-tax value as $500.00.
[30] Military Pension. Mr. Skipton had been a member of the military for approximately 22 years as of their separation in September, 2002. The Court has determined that they cohabited for nine of those 22 years. Ms. Skipton seeks a division of all Mr. Skipton's military pension on the basis of Morash v. Morash (2004) N.S.C.A. 20. Mr. Skipton argues that the pension for the period before they cohabited should not be divided for two reasons:
1. Mr. Skipton had inherited from his first marriage his four children for whom he was solely responsible (without the benefit of child support from his first wife) and he had been compelled to divide their property and pay her a equalization settlement under the Matrimonial Property Act ,even though his pension was not divided.
2. In Morash the parties had been married for 31 years and the pre-marriage period was only four years; in this case the parties had only been together for nine years and Mr. Skipton had accrued most of his pension prior to their marriage, giving justification for an unequal division.
[31] The decision in Morash did not prohibit, in every case, an unequal division of matrimonial assets pursuant to s. 13 of the Matrimonial Property Act. That decision stated that (a) the Matrimonial Property Act did not conflict with pension benefits legislation (which normally only divided the pension benefit during the period of cohabitation) and (b) pension credits earned before the marriage were matrimonial assets and normally subject to equal division.
[32] Section 13 of the Matrimonial Property Act sets out two factors that are relevant to a determination of what is fair and conscionable in this case. They are:
(d) the length of time that the spouses have cohabited with each other during their marriage; and
(e) the date and manner of acquisition of the assets.
[33] Mr. Skipton did not produce a copy of the separation agreement or Corollary Relief Judgment respecting his first marriage. At trial, Ms. Skipton stated that one of the debts that Mr. Skipton was paying at the time they started cohabiting was a debt he incurred to pay off his former wife in the settlement of their affairs.
[34] As a result of the breakdown of his first marriage he was left with the obligation of raising and being the sole support for his four children without any financial contribution from his first wife to whom he made an equalization payment under the Matrimonial Property Act.
[35] The period of time that the parties cohabited was only 9 of the 22 years during which the pension was earned. The Respondent has satisfied the burden of showing it would be unfair or unconscionable to divide his entire military pension, most of which was earned before he entered into his relationship with Ms. Skipton, especially in light of the equalization payment on separation from his first wife and his obligation to support his four children without help from the other parent. It is ironic that his obligation led to his hiring of the second Ms. Skipton whom he paid as a caregiver for his children for over two years. Mr. Skipton should therefore retain, without sharing with Ms. Skipton, that portion of his pension earned before September 1993.
Summary of Property Division
[36] Mr. Skipton will own 58 Hall's Road and assume full responsibility for the mortgage. Each party will retain any personal property they presently own or possess free from any claim of the other. Ms. Skipton will retain her RRSP. Mr. Skipton will owe Ms. Skipton an equalization payment of $1500.00. In addition, the portion of Mr. Skipton's military pension totalling nine years ending September, 2002, will be divided equally between the parties.
SPOUSAL SUPPORT
Factual Background
[37] Ms. Skipton, who celebrated her 33rd birthday last month, met Mr. Skipton in 1991 at age 19. She had finished high school and was intending to go to Community College when she was hired by Mr. Skipton to act as a live-in caregiver for his four young children. At some point, the date of which is disputed between them, their relationship changed to common law. Mr. Skipton continued to pay Ms. Skipton as a live-in caregiver for about two years.
[38] In June, 1995, they were married and in 1996 their daughter, Amanda, was born.
[39] Ms. Skipton has been a stay-at-home mother from about August, 1993 until July 2002 when it was obvious their marriage was breaking down and Mr. Skipton left the home. At that time Ms. Skipton started work part time at Roo's Playhouse. It appears , as set out in the Interim Order, that her income was approximately $7,200.00 per year.
[40] The parties formally separated in September, 2002, but remained under the same roof until December, 2002, when Ms. Skipton was granted interim exclusive possession of the home, interim primary care of their daughter, monthly child support of $457.00, and monthly spousal support of $612.50. At the same time Ms. Skipton was ordered to pay the mortgage on the house of $612.50 per month and made responsible for her own household utilities and expenses.
[41] In June, 2004, Ms. Skipton unilaterally moved out of the home and to Dartmouth to live with her boyfriend of a year and a half and to commence a two year Early Childhood Education course. She expects to graduate in April 2006 and to work in the summer between her first and second year. She entered this course on the basis that it was the best available to her and gave her, in her opinion, the best opportunity to obtain good full time employment as a daycare worker when she graduates. Apparently the school has a good record of finding employment for its graduates.
[42] When Ms. Skipton abandoned the matrimonial home she stopped paying the mortgage and as of July, 2004, Mr. Skipton assumed responsibility for the mortgage and eventually cleaned up and repaired the house and moved back in, with his girlfriend and her two children. He has paid the mortgage and all house expenses since July, 2004.
[43] Mr. Skipton, now age 41, as a twenty-plus years, full time member of the Canadian Armed Forces earns $57,000.00 per year. Mr. Skipton's common law partner does not work but receives child support and child tax benefits for her two children totalling approximately $13,000.00 per year. Mr. Skipton's statement of financial information sworn on July 22, 2004, based on his household’s total income and expenses, and including monthly spousal support of $612.00, shows a deficit of $560.00. Based on his marginal tax rate of thirty-seven percent, his deficit would be approximately $200.00 if there was no spousal support order.
[44] Ms. Skipton's financial situation is less clear.
[45] Her income - separate and apart from tuition, books, childcare and some transportation costs (which are paid for by HRDC (Exhibit 7) as part of the assistance to enable her to go to school) includes:
(a) child support ordered by this Court $475.00 per month;
(b) employment insurance of $110.00 per week or $477.00 per month;
(c) Child Tax Benefit - $226.00 per month, for a total monthly income of $1,178.00.
[46] Ms. Skipton's expenses (other than those paid by HRDC) are not clear. Even though she moved to Dartmouth, into a three bedroom house, to live with her boyfriend, she and Mr. MacDivitt say that they do not share all expenses. They state that they only share the rent, heat, electricity and phone (not cell phone) which total $1,080.00 per month, or $540.00 each.
[47] Ms. Skipton’s budget represents that she pays all of the following expenses: fire insurance ($22.00), cell phone ($40.00), cable ($50.00), food ($500.00), toiletries ($25.00), clothing ($100.00), car gas, maintenance and insurance ($304.00), public transportation ($60.00), Amanda’s school supplies, health care and allowance ($110.00), hair ($60.00), drugs ($50.00), gifts ($125.00), newspaper ($20.00), entertainment ($40.00), savings ($50.00), credit cards ($300.00), loan ($100.00) and miscellaneous ($50.00). Her total monthly expenses, including the shared rent, are $2,546.00. The credit card debt and loan ($5200.00) arose from her inability to support herself after June 2004 without spousal support. Her deficit, before a calculation of any income tax on spousal support, is about $1,300.00.
[48] Ms. Skipton says she will be working between the first and second year of school (May - August, 2005) and expects some additional income during that time, but I have not factored this into the arithmetic as there is no evidence this will exceed her EI income.
[49] Her contract with HRDC sets out that she will receive the benefits listed above for 36 months to the end of her two year program; however, she testified that the receipt of the last portion of these benefits is subject to HRDC getting its budget approved for the next fiscal year. It is likely that HRDC's annual budget will be approved and, based on the evidence before me, I am not prepared to allow a contingency for the possibility that it might not be renewed.
[50] The Court has difficulty accepting Ms. Skipton's evidence as to the division of expenses with Mr. MacDivitt. She has been with Mr. MacDivitt for two years and moved from Greenwood to Dartmouth to live with him in June, 2004. The apportionment of expenses in this relationship is not equitable. Nor is it fair that Ms. Skipton's brother, who apparently has some difficulties but does work periodically in the Dartmouth area and lives with her when he is so working, makes no contribution to the household (except minimally to some of his own direct expenses).
[51] The Court is skeptical of the information provided by Ms. Skipton and Mr. MacDivitt as to his income and ability to contribute. The only evidence of his income was a partial xerox copy of a pay cheque ($1372. for two weeks) from November 2004, from which one might guess that he may earn $35,000.00 per year. The evidence is that he is a skilled tradesman who, during the construction season, works such long hours that he is not home and consumes few of the expenses in the house. The absence of a T4 slip or an income tax return for him was of concern to the Court.
Law
[52] This Court summarized the legal basis for spousal support at paragraphs 110 to 122 of Rutherford v. Rutherford, 2004 NSSC 148.
[53] In January 2005, the Federal Department of Justice released a draft proposal for Spousal Support Advisory Guidelines, which Guidelines have been available in shorter versions for about two years. The Guidelines are informal and therefore advisory; they are not intended to be new law, but rather an analysis of existing law.
[54] As with anything new, they probably contain deficiencies; just as likely is that readers will misunderstand this very extensive document when applying parts out of context. My first (possibly incorrect) impression is that the rationale for applying income differentials and de-emphasizing budgets is weak, and not as legitimate as in respect of the Federal Child Support Guidelines (which were based on background studies which showed spending on children before separation was based on income and not on budget surpluses and deficits), and the Guidelines seem to relegate the self-sufficiency objective arising from re-partnering, retraining and reentry into the workforce at the time of divorce, especially in relation to longer term marriages, to future variation or review applications. Any deficiencies pale by comparison with the helpful analysis.
[55] Counsel have not argued how the Guidelines might affect this case; the Court has applied the formulas as a check on the budgetary approach relied upon by the parties.
Analysis
[56] Bracklow v. Bracklow, [1999] 1 S.C.R. 420, decided that there is a very low threshold required to establish entitlement to spousal support, whether under the four objectives set out in s. 15.2(6) of the Divorce Act, or the compensatory model explained in Moge, or the non-compensatory model explained in Bracklow.
[57] With respect to s. 15.2(6)(a), there may be some economic disadvantage to Ms. Skipton by reason of her withdrawal from school to become Mr. Skipton's live in caregiver, and there is some disadvantage to her because she lost access to his higher income at the time of their separation.
[58] With respect to s. 15.2(6)(b), Ms. Skipton waited a year before seeking to upgrade her education and thereby gain eventual self-sufficiency; this delay is justified because of her responsibility, as the primary caregiver for their daughter, Amanda, to try to live and work in Greenwood, and to settle the normal trauma that arises for children on separation. This has caused her some economic dislocation and disadvantage.
[59] With respect to s. 15.2(6)(c), as stated above, there is some disadvantage to Ms. Skipton to losing access to Mr. Skipton's higher income by reason of the breakdown of their marriage.
[60] With respect to s. 15.2(6)(d), it was not practicable for Ms. Skipton to be expected to become self sufficient without first undertaking the course that she applied for and was accepted into as of the spring of 2004 (beginning September, 2004). Without this course she does not have the skills or training to become self sufficient. The relationship with her boyfriend, Mr. MacDivitt, who has well-paid stable employment, was not so well established as to reasonably expect her to rely upon him for her economic security.
[61] The length of the period of marriage (7 years) or of co-habiting ( 9 years) is a factor in determining the duration of spousal support.
[62] Ms. Skipton just turned 33 and has no physical, mental or medical problem that would interfere with her attaining self sufficiency when she completes her course.
[63] The Court finds that Ms. Skipton's course of conduct since the separation has been reasonable. She first attempted to stabilize the situation for Amanda in the homestead and when this did not work out she made plans to enroll in a practical course that would replace her part time employment with Roo's Playhouse with full time employment (when she completes her course) that will provide her with a reasonable income.
[64] The Court finds that Ms. Skipton is entitled to spousal support based on section 15.2(6), the compensatory model and the non-compensatory model. The primary entitlement is for non-compensatory support. The issues are the quantum and duration of such support.
[65] Duration. The Court notes that there is no reason why Ms. Skipton should not be self sufficient by August, 2006. She will have been out of school for four months and she will have been in a relationship with Mr. MacDivitt for over three years.
[66] If the Court is wrong in this conclusion ( based upon the evidence heard), then s. 17(10) of the Divorce Act provides a mechanism for an application to vary.
[67] Coincidentally, August 31st, 2006 will be the fourth anniversary of their separation. Its length will be almost one-half of the duration of their co-habitation and more than one-half the duration of their marriage.
[68] Applying the “without child” formula of the Guidelines, support should continue for a range of from one-half to one times the length of the marriage. Applying the “with child” formula, the time period is indefinite but is stated to be without a minimum duration and to be dependent upon and subject to review and/or termination when the children finish high school or when the parent marries, or re-partners. A significant factor is the recipient’s age; the Guidelines suggest that younger recipients are more capable of attaining self-sufficiency and may receive support at the lower end of the range. Ms. Skipton is only thirty-three, and fits the category of a younger recipient.
[69] The coinciding of the period during which Ms. Skipton should have need for spousal support, with the low end of the range for the payment of spousal support in the “Without Child” formula, reinforces this Court's view that a fair period of support that will satisfy the objectives in section 15.2(6) and the entitlement under the compensatory and non-compensatory models is four years.
[70] Starting Date. The Court notes that Mr. Skipton paid spousal support as ordered by Mr. Justice Boudreau in December, 2002, to and including July, 2004. Between September and December 2002, the parties lived under the same roof and Mr. Skipton paid the bills.
[71] Mr. Skipton has had need since moving to Dartmouth. Spousal support should be effective from August 1, 2004 - when the payments under the interim order ceased. They should ended ( subject to section 17(10)) on August 31, 2006.
[72] The Court therefore orders that Ms. Skipton shall receive fixed term spousal support to and including August, 2006.
[73] Quantum. The issue of quantum is much more difficult, partly because the Court does not have information that it finds reliable as to Mr. MacDivitt's income and the fair share of the household expenses that he should be paying.
[74] Based on Ms. Skipton's budget and the contribution from Mr. MacDivitt, she needs $1,300.00 per month. I believe her actual need, if there was a fair apportionment of their expenses, is less, and that Mr. MacDivitt may have an obligation, as long as they are co-habiting, to contribute more. Similarly, Ms. Skipton's brother should have contributed a small amount.
[75] Mr. Skipton's ability to pay is limited. I find that his statement of financial information is truthful and reasonable. With a spousal support obligation of $600.00 per month, Mr. Skipton's budgetary deficit would be approximately $560.00 per month.
[76] With spousal support of $600.00 per month, Ms. Skipton's declared budgetary deficit would be about $700.00 per month, plus income tax payable on that spousal support.
[77] Applying the formulas in the Guidelines to the limited evidence before the Court, the quantum would work out as follows:
[78] “With Children” Formula. Payor’s INDI: $57,000. (gross income), less $5700. (child support), less $13000. (income tax based on 2003 return), less $7000. (deductions for CPP, EI, Superannuation, medical insurance, based in July 5,2004, pay statement) or $31,300.
Recipient’s INDI: $5700. (EI), less $0.00 (tax and deductions), plus $2700. (child tax benefit - the only known government benefit or credit, if one excludes the school and childcare benefits received per exhibit 7), or $8400.
Total of INDIs is $39,700.
If the lower income recipient, Ms. Skipton, was to have 40% of the total, that is, $15,800.00, then an annual support payment of $7400.00 ( or $616.00 per month) would be required.
[79] “Without Children” Formula: The difference between $57,000.00 (payor’s gross income), and $14,000.00 (recipient’s gross income which includes EI, child support, and child tax benefit, but excludes school and daycare expenses paid by HRDC) is $43,000.00.
$43,000.00 multiply by 1.5% per year times 9 years equals $5800.00 or $483. per month.
$43,000.00 multiply by 2% per year times 9 years equals $7700.00 or $645. per month.
The Guidelines suggest that for a shorter duration, the support should be at the higher end of the range.
[80] All of the formulas and a balancing of the resultant deficits that each party will be left with, point to a spousal support order of about $616.00 per month. Mr. Skipton is therefore ordered to pay support of $616.00 per month.
[81] Mr. Skipton shall have credit for any payments of spousal support made by him from August 1, 2004, until the date that this decision becomes an order (presumably the first of March, 2005). To the extent that there will be arrears of spousal support which will have accumulated by reason of this retroactive order, I direct that, commencing on the first day of the second month after the release of this decision, the retroactive amount shall be paid by Mr. Skipton to Ms. Skipton at the rate of $300.00 per month until it has been paid in full .
COSTS
[82] Costs are in the discretion of the Court. The success of the parties with respect to the issues in this matter has been divided. In addition, this Court did not receive pretrial memorandums dealing with the subject matter of the adjourned hearing (matrimonial property and spousal support) as it had requested. The Court therefore orders no costs.
Warner, J.