IN THE SMALL CLAIMS COURT OF NOVA SCOTIA
Citation: Connolly v. Niet, 2017 NSSM 100
Claim No: SCK 465973
BETWEEN:
Scott Connolly
Claimant
-and –
Maaike Niet
Defendant
Scott Connolly – Self Represented.
Maaike Niet – Self Represented.
Editorial Note: The electronic version of this judgment has been edited for grammar, punctuation and like errors, and addresses and phone numbers have been removed.
DECISION
(1)
The
parties are former common law spouses whose relationship ended in June 2015.
The separation and subsequent court proceedings have been acrimonious, mostly
taking place in Family Court, addressing custody, access and support of the
parties’ three children. This matter concerns the division of certain property
left behind in the residence after Mr. Connolly left. He is seeking return of a
number of personal items, many of them general in description, or $25,000 in
lieu. Ms. Niet defends the claim alleging Mr. Connolly had abandoned the items,
or, in some cases, they did not belong to him in the first place.
Issues
(2)
Has the
Claimant, Scott Connolly, established ownership or some other form of legal
claim to items remaining in the house? If so, what are those items?
The Evidence
(3)
Before
reviewing the evidence of each witness, it is important to note that this
matter followed a successful claim by David Connolly, Scott Connolly’s father,
heard on June 21, 2017 before Adjudicator Jonathan Cuming. (SCK 463587). In an
Order dated July 10, 2017, Adjudicator Cuming directed certain property shown
in “Exhibit #2” in that proceeding to be delivered or picked up by David
Connolly. Anything remaining on that property was deemed abandoned by David
Connolly. With the consent of both parties, I obtained a copy of the order
which was filed on July 17, and Exhibit #2, which was a bundle of photographs.
On July 24, 2017, one week after the Order was filed, this claim was filed by Scott
Connolly for return of his personal items left in the house.
(4)
Scott
Connolly testified that he and Ms. Niet lived together for approximately 17
years until their relationship ended, which according to him, was June 15. He
testified that he was not allowed into the house or on the property after that
date. He prepared and submitted a list of items which he is seeking. They
include vehicles, woodworking tools and equipment, books and furniture. There
are also items which were given by David Connolly to Ms. Niet, such as a Ford
Escort which Scott Connolly claims as his own. Ms. Niet alleges certain items
belong to their children.
(5)
Under
cross examination, Mr. Connolly claims he is entitled to everything on the
schedule which he introduced in court, which is too lengthy to set out herein. Mr.
Connolly does not believe it includes anything addressed in the matter between
Ms. Niet and his father. He acknowledged the white bookshelf he seeks was
contained in his daughter’s room. Most of the items were left behind. He was
told not to return once he left. He testified that he left on his own on June
15, 2015, leaving the items behind.
(6)
Anita
Hudak has been a lawyer since 2006. She currently practises as a sole
practitioner of family law from her office in Kentville. She has been Ms.
Niet’s solicitor for the proceedings in Family Court. She did not represent the
Defendant in this matter. Nevertheless, the decision for Ms. Hudak to testify
was unorthodox. It is most unusual to see a party’s solicitor appearing as a
witness in a series of matters arising from the breakdown of a relationship,
particularly where the issues remain live with further litigation possible. The
courts have expressed serious misgivings in receiving evidence of counsel,
whether in person or by affidavit. (Gillis v. BCE, 2014 NSSC 279).
(7)
In many
respects, the evidence Ms. Hudak provided could have come from other sources
such as a certified copy of the record of Family Court or the admission of
certain documents by Ms. Niet. It is a risk for a lawyer to testify on behalf
of her client as she may be cross examined on any relevant evidence she may
give. I allowed her testimony which I found helped place the matter in its
context, but note that it did not provide any weight to the main issue, the
entitlement to the assets.
(8)
Ms.
Hudak’s evidence was to the effect that she attempted to move the matter
forward, but Mr. Connolly made that unsuccessful. Ms. Hudak described the early
negotiations between the parties. The discussions between Ms. Hudak and Mr.
Connolly eventually became heated. She told him that he had no claim to the
house, which he disputed. Many of the dealings between the parties were
contained in correspondence tendered into evidence, which as noted, could have
been introduced by Ms. Niet personally rather than through her solicitor.
(9)
At the
hearing, I allowed the portion of Ms. Hudak’s evidence providing context to the
matter, essentially the history of the disputes to date. The remainder was
disallowed.
(10)
It is
clear Mr. Connolly ought to have continued to retain legal advice, and should even
consider doing so at this juncture. That said, his decision not to do so has no
bearing on these reasons for judgment.
(11)
Maaike
Niet testified that she and Scott Connolly never married but lived together for
approximately 14 years. Ms. Niet was the only income earner, while Mr. Connolly
stayed home with the children. They were together until, according to Ms. Niet,
she asked Mr. Connolly to leave on June 14, 2015 and he and his father packed
their items and left on June 21. On November 5, 2017, they returned and took
additional items. The things he required were vaguely described. Many of them
were not his but used for the children. Some were worn out and disposed of.
(12)
She
described several attempts to resolve the issue of property division. She
considered after two years much of the property was abandoned. She testified
that she continued to use the tools. The furniture left behind was used by the
children. The vehicles which were registered in her name were sold.
(13)
In
rebuttal evidence, Mr. Connolly testified that the items were gifts from his
family and friends and he now wants them back. He seriously doubts Ms. Niet has
retained any of the tools as she does not do this type of work.
The Law
(14)
The Small
Claims Court Act has limited jurisdiction when addressing division of
property. Specifically, s. 9 of that Act limits claims in the court to certain
torts, breaches of contract and return of property. In order to establish a
return of property, the Claimant must show better title than the Defendant.
(15)
The
Small Claims Court has addressed common law division of assets and liabilities.
Adjudicator Eric Slone stated the following in Cook v Orr, 2008 NSSM 23:
“[4] It is a common misconception
that property (as opposed to support) issues following
separation of a common law couple may be dealt with in the same way as if the
parties had been married. Issues of child and spousal support fall under
the Maintenance and Custody Act, which provides relief for
unmarried couples that have lived as spouses for two years. That Act does not
deal with property. Only the Matrimonial Property Act does.
[5] The Matrimonial Property Act does
not yet (any may never) apply to common law couples. As such, for
unmarried couples property issues by and large fall to be determined under
principles of basic contract and property law, with principles of unjust
enrichment coming into play.
[6] If the amount involved exceeds the monetary jurisdiction
of this Court, then clearly the Supreme Court would be the appropriate
forum. However, where the amount is within the monetary jurisdiction of
this court then there does not appear to be any reason why it cannot be brought
in Small Claims Court. Indeed, this type of claim is fairly common.
[7] When a claim like this is brought, the
threshold question to be asked is: what was the agreement or contract that the
spouses entered into, or the general understanding that they had?”
(16) Adjudicator Richardson then adds the
following in Rayner v. Smith, 2010 NSSM 6:
[37]
When people join together in a common law relationship they often
merge their finances. The income and expenses of one become the income and
expenses of both. As well, the way in which that common burden is shouldered
varies from couple to couple. In one all income and expenses may be tracked and
shared on a 50/50 basis; in another, on a pro-rated basis; and in a third, one
partner may pay all the basic living expenses while the other contributes to
the joint retirement savings. The fact then that a loan is taken out in the
name of one does not mean necessarily that it is for the benefit of that person
alone–it may be for and often is for the benefit of both.
[38] Specific
agreements to share expenses or to contribute to the purchase or property are
enforceable as contract. On the other hand, gifts of property that are made
with no expectation of return or repayment cannot be turned into agreements to
repay by subsequent regret in the event that the relationship falls apart: see,
for e.g., Cook v. Orr, supra, at paras 8 and 14. The
difficulty lies in distinguishing between the two. That task is not an easy
one, especially given that contributions to the common good (what are, in
effect, gifts) are “precisely the kind of thing people do for each other when
they are in a caring relationship:” Cook v. Orr, per Adjudicator
Slone at para.14.
(17)
The
cases do not discuss assets brought into the relationship. I had the
opportunity to consider that in the case of Johnstone v Helpard, 2016
NSSM 66:
“On
the other hand, a common law couple is generally free to dispose of any
property they own during cohabitation without the consent of the other spouse.
The spouse is afforded no guarantee of equal division on death or breakdown. The
presumption is that each spouse owns what is in their respective names, free of
any claim by the spouse. A spouse who seeks a share of their spouse’s property
must prove unjust enrichment or constructive trust, legal remedies available in
certain circumstances to address inequities where each spouse has contributed
for the benefit of the other. This was confirmed by the
Supreme Court of Canada in Nova
Scotia (Attorney General) v. Walsh, 2002 SCC 83 and Kerr v. Baranow, 2011
SCC 10.”
(18)
In
other words, on the breakdown of a relationship, a common law couple owns what
they brought into the relationship. Assets acquired during the relationship
depend upon the circumstances of each asset.
(19)
As for
gifts from third parties, they are determined by who receives them, not who
gives them. Depending upon the evidence, a consideration of who gave the assets
might be relevant to help determine the donor’s intent.
(20)
As
always, when asserting a claim of entitlement to assets, the onus lies upon the
party seeking to make the claim. In this case that is Mr. Connolly.
Findings
on the Claims
(21)
In his
Notice of Claim, Mr. Connolly seeks $25,000 or the return of all of his items. For
the reasons set out below, with the exception of a few modestly valued items, I
find he has not come close to discharging this onus. While I have reservations
with Ms. Niet’s evidence as well, it is Mr. Connolly who bears the burden of
proof which he has not discharged.
(22)
I find many
of the items may have been shared by the parties. After a 14 year relationship,
many of these items would have long since worn out and been discarded. In his
evidence, Mr. Connolly testified that several of the items on his list were
discarded by Ms. Niet while they lived together. I find he made no protest at
that time. Furthermore, it is interesting that this claim is now being brought
only after a successful claim by David Connolly. That fact affects the
credibility of the claim.
(23)
Based
on the evidence of both parties, I find members of Scott Connolly’s family gave
items to Ms. Niet in her own name. An example of such a gift is the Ford
Escort. In other cases, I find certain items of furniture were given to the
parties’ children and remain in the house with consent. Others may well have
been converted (i.e. given away or sold), but I find the evidence vague and
ambiguous.
(24) Thus, I do not find he has discharged the onus upon him to establish entitlement for the items he seeks.
(25) However, I am satisfied that some tools used by Mr. Connolly for woodworking or auto repair remain in the premises or were sold by Ms. Niet. I find Ms. Niet has no interest in that type of work. Like most of the assets sought, the tools were older and worn. No actual value was provided. The evidence was not sufficient to provide a proper description or a value. As a result, I am prepared to award Mr. Connolly $500 to replace the used tools, books and woodworking equipment. The remainder of the Claim is disallowed.
Summary
(26) Based on the foregoing, I find the Defendant liable to the Claimant for $500. There shall be no prejudgment interest. Each party shall bear their own costs.
(27)
An
order shall issue accordingly.
Dated at Halifax, NS,
on January 15, 2017;
______________________________
Gregg W. Knudsen, Adjudicator
Original: Court File
Copy: Claimant(s)
Copy: Defendant(s)