IN THE SUPREME COURT OF NOVA SCOTIA
(FAMILY DIVISION)
Citation: Nugent v. Nugent, 2005 NSSC 162
Date: 20050621
Docket: SFSNMCA-031333
Registry: Sydney
Between:
Joseph Nugent
Applicant
v.
Marie Nugent
Respondent
Judge: The Honourable Justice Kevin Coady
Heard: August 27, October 26, 2004, March 30, 2005, in Sydney, Nova Scotia
Counsel: Alan Stanwick, for the Applicant
Mary Frances Roach MacDonald, for the Respondent
Coady, J.:
[1] The only application before the Court was filed on behalf of Mr. Nugent. He seeks the following relief pursuant to the Maintenance and Custody Act:
- Custody, access or parenting
- Child maintenance
- Variation of the order of the Family Court of Nova Scotia dated July 24, 1991 to provide for the cancellation of all arrears that are deemed to be due and owing under this order and to provide for the termination of any future support obligations arising out of this order.
[2] Ms. Nugent has not made application or cross- application for any relief other than what she could obtain solely as a respondent to Mr. Nugent’s application. Yet in written argument she seeks the following:
- Increase Ms. Nugent’s portion of spousal support to reflect her need.
- Dismiss Mr. Nugent’s application for spousal support from Ms. Nugent as she is living far below the poverty line and does not have the resources to pay.
[3] This Court will not consider increasing spousal support as there is no application before the Court. Further, the first mention of this issue came after the applicant had given his evidence. It would be unfair to Mr. Nugent to allow Ms. Nugent to amend her position in the middle of the trial. This point was discussed with counsel prior to the close of the case.
[4] This Court will not consider spousal support for Mr. Nugent. Mr. Nugent has not applied for spousal support from Ms. Nugent. He has applied for child support, and I will deal with that issue later in this decision.
The Facts
[5] The parties married on July 7, 1982 and separated on January 6, 1990. There are two children, now aged 25 and 17 years. The eldest child is no longer a “child of the marriage” and the youngest resides with Mr. Nugent. I find as fact the youngest child, Glenn, has been in the primary care of Mr. Nugent since 1999.
[6] Mr. Nugent is 63 years old. He is a retired school teacher, having taught for 37 years. His 2003 income was $44,632. Ms. Nugent is 46 years old and is not employed. I find as a fact her circumstances can be described as “destitute”. She lives on her spousal support and the goodness of family and friends.
[7] The evidence satisfied me the two children resided with Ms. Nugent from 1990 until 1999. The initial Family Court order dated May 28, 1990 provided Mr. Nugent pay $450 monthly “for the support of the applicant and his aforementioned dependant children”.
[8] The second Family Court order dated July 24, 1991 required Mr. Nugent to pay $700 monthly “for the support of the applicant, Marie S. Nugent, and his dependant children ...”. Mr. Nugent paid this amount until September, 1999. I find as fact that as of 1999 both children were in the primary care of Mr. Nugent. He continued to pay $700 until September, 2001.
[9] Mr. Nugent did not apply to vary the 1991 order and Ms. Nugent did nothing to enforce it. This resulted in the accumulation of arrears of $8,500 as of December 31, 2004. It was the accumulation of those arrears which prompted this application. Mr. Nugent brought an interim application on June 11, 2004. The Chambers Judge allocated 50% of the $700 to child support and 50% to spousal support. The order suspended collection of child support arrears and allowed for the continued enforcement and collection of spousal support. It did not allow for any payment to be applied to arrears. The order directed “the monthly amount of $500 is the maximum amount of support that the Maintenance Enforcement Program shall be permitted to enforce and collect under the Family Court order dated July 24, 1991". The order allowed for ongoing arrears at the $700 level, but without collection or enforcement.
[10] I must accept that in 1991 Ms. Nugent was entitled to spousal support. She had been the primary caregiver for the children during cohabitation. The marriage was traditional, in that Mr. Nugent was the breadwinner and Ms. Nugent was the homemaker.
[11] I make the following factual findings respecting the parties’ post separation:
- Mr. Nugent paid $700 support from 1991 until September, 2001. Ms. Nugent attended the University of Maine in 1999 to pursue her Education Degree. She was not successful.
- Mr. Nugent negotiated a $15,000 loan to pay for Ms. Nugent’s education in Maine. Ms. Nugent did not make the payments and the responsibility for the loan fell on Mr. Nugent.
- As a result of Glenn living with him, and the necessity of servicing the $15,000 loan, Mr. Nugent ceased paying the $700 support.
- Mr. Nugent met all costs of supporting Glenn from 1999 to the present.
- In 1999, Mr. Nugent provided Ms. Nugent with an automobile. He provided insurance and maintenance.
- In 1996 Mr. Nugent paid $2,600 as a down payment on the purchase of Ms. Nugent’s present home.
- In 1998, Mr. Nugent purchased a computer for Ms. Nugent and the children in the approximate amount of $4,000.
- Mr. Nugent paid Ms. Nugent’s mortgage payments for the ten months she was at the University of Maine in the amount of $3,200. He also paid fuel costs for that period of time.
- Ms. Nugent completed a Child Development Program in 1998 at the Nova Scotia Teachers’ College. She completed a Bachelor of Arts Degree in 2002 from the University College of Cape Breton. She received her Teacher Certification Program in 2000 at the University of Maine. Unfortunately she did not obtain her Education Degree.
- Ms. Nugent was employed at various intervals between separation and 2001. These positions were limited in duration and compensation. These positions were usually terminated because of either Ms. Nugent’s physical or mental difficulties. While there was no admissible medical evidence before me, I am satisfied Ms. Nugent will never be employed.
- Ms. Nugent has failed to gain self-sufficiency, notwithstanding many failed attempts and the financial support of Mr. Nugent. I find Mr. Nugent supported her financially in hopes she would become self-sufficient and independent. Ms. Nugent’s physical and mental condition, as well as her entire socio-economic circumstances, stood in the way of attaining this goal.
Custody and Access
[12] The oldest son, Ryan, is 25 years old and should not be the subject of an order respecting custody, access or parenting. Glen is 17 years old and in school. He is dependent on Mr. Nugent. I, therefore, order Mr. Nugent shall have custody of Glenn, and access shall be as arranged between Glenn and Ms. Nugent.
Child Support
[13] Mr. Nugent has applied for child support for Glenn. Notwithstanding Glenn has been with Mr. Nugent since 1999, Ms. Nugent has not paid child support. Ms. Nugent did not provide up-to-date disclosure. Her financial information statement sworn June 11, 2004 was no longer accurate at the time this hearing was completed. However, on the totality of the evidence, I find Ms. Nugent’s present income is below an amount that would attract the Child Support Guidelines. I accept she requires the generosity of others to make ends meet. I repeat my previous finding that she lives in poverty.
[14] I also note in Mr. Nugent’s written argument, he does not discuss child support and does not include such in the relief sought. I make no order requiring Ms. Nugent to pay child support for Glenn.
Variation Application - Spousal Support
[15] I take the view Ms. Nugent’s entitlement to spousal support is already settled by the previous Family Court orders. A review of several factors set out in s. 4 of the Maintenance and Custody Act affirms that entitlement as of 1990. Ms. Nugent has not achieved self sufficiency and she stands in much the same position in 2005.
[16] Section 37 of the Maintenance and Custody Act states as follows:
The Court, on application, may make an order varying, rescinding or suspending, prospectively or retroactively, a maintenance order ... where there has been a change in circumstances since the making of the order or the last variation order.
[17] I conclude Mr. Nugent has established the change in circumstances from the 1991 order. The fact the children were in his care as of 1999 would be sufficient. Mr. Nugent’s retirement is another factor. The parties’ bankruptcies would qualify. I am, therefore, permitted to consider Mr. Nugent’s application on its merits.
[18] Although this application is not pursuant to the Divorce Act, the objectives are similar to those in the Maintenance and Custody Act, and as such I may consider them. Boileau v. Spriggs, [1999] N.S.J. No. 510. I have also applied the principles in Bracklow v. Bracklow, [1999] 44 R.F.L. (4th) 1 (S.C.C.) and Moge v. Moge, [1992] 3 S.C.R. 813.
[19] The Supreme Court of Canada in Moge v. Moge, supra, confirms there is broad judicial discretion to determine the right to, amount and duration of spousal support. In both Moge and Bracklow, the Court directs trial courts to be flexible and to avoid formulaic approaches to spousal support applications. It is a discretion driven analysis that is geared to overall fairness.
[20] I consider this to be an illness case, similar to the facts in Bracklow, and as such is rooted in the non-compensatory model. McLaughlin, J. stated at para. 49:
In summary, the statutes and the case law suggest three conceptual bases for entitlement to spousal support: (1) compensatory, (2) contractual, and (3) non-compensatory. Marriage, as this Court held in Moge (at p. 870), is a “joint endeavour”, a socio-economic partnership. That is the starting position. Support agreements are important (although not necessarily decisive), and so is the idea that spouses should be compensated on marriage breakdown for losses and hardships caused by the marriage. Indeed, a review of cases suggests that in most circumstances compensation now serves as the main reason for support. However, contract and compensation are not the only sources of a support obligation. The obligation may alternatively arise out of the marriage relationship itself. Where a spouse achieves economic self-sufficiency on the basis of his or her own efforts, or on an award of compensatory support, the obligation founded on the marriage relationship itself lies dormant. But where need is established that is not met on a compensatory or contractual basis, the fundamental marital obligation may play a vital role. Absent negating factors, it is available, in appropriate circumstances, to provide just support.
[21] While it appears the intent in Bracklow was to provide support for ill or disabled spouses, the case says more than that. At para. 40:
...Even if a spouse has foregone no career opportunities or has not otherwise been handicapped by the marriage, the court is required to consider that spouse’s actual ability to fend for himself or herself and the effect that has been made to do so, including efforts after the marriage breakdown...
and at para. 41:
... “Economic hardship ... arising from the breakdown of the marriage” is capable of encompassing not only health or career disadvantages arising from the marriage breakdown properly the subject of compensation (perhaps more directly covered in s. 15.2(6)(a): see Payne on Divorce, supra, at pp. 251-53), but the mere fact that a person who formerly enjoyed intra-spousal entitlement to support now finds herself or himself without it ...
and at para. 42:
Similarly, the fourth objective of s. 15.2(6) of the Divorce Act – to promote economic self-sufficiency – may or may not be tied to compensation for disadvantages caused by the marriage or its breakup. A spouse’s lack of self-sufficiency may be related to foregoing career and educational opportunities because of the marriage. But it may also arise from completely different sources, like the disappearance of the kind of work the spouse was trained to do (a career shift having nothing to do with the marriage or its breakdown) or, as in this case, ill-health.
[22] Section 4 of the Maintenance and Custody Act also sets forth non-compensatory factors. They are: (f) the physical or mental disability of either spouse or common-law partner, and (g) the inability of a spouse or common-law partner to obtain gainful employment.
[23] I conclude, notwithstanding the changes in circumstances, Ms. Nugent remains entitled to spousal support. She has abundant need and Mr. Nugent has some ability to pay. Given Ms. Nugent’s poor prognosis, there will be no cut-off or review date. Should there be future changes in circumstances respecting Ms. Nugent, Mr. Nugent could reapply for a variation.
[24] Section 4 of the Maintenance and Custody Act also applies to quantum of spousal support. The interim order of June 30, 2004 states as follows:
It is further ordered that the allocation with respect to child support and spousal support contained in this Order shall not be binding upon the court that will hear the application to vary the Family Court Order dated July 24, 1991 on its merits.
[25] I have considered the financial circumstances of the parties and I set spousal support at $500 per month effective July 1, 2005.
Arrears
[26] I am exercising my discretion and forgiving all arrears accumulated between September, 2001 and the interim order of July 24, 2004. That order sets payments of $500, and I classify those payments as spousal support. I believe it is important these parties go forward with a clean slate financially.
[27] I have no doubt if Mr. Nugent had applied to vary in 1999, he would have been successful. That was the date when Mr. Nugent became the primary caregiver for the children. It was the time when Mr. Nugent was paying for Ms. Nugent’s education and housing expenses. Ms. Nugent was at the University of Maine. Ms. Nugent’s physical and mental health were relatively intact. Additionally, he would be able to establish his support of Ms. Nugent in several educational and employment pursuits. Ms. Nugent’s income for 2001 was $6,520, but it increased to $14,675 in 2002 and $20,418 in 2003.
[28] This is not an appropriate case for costs.
J.