J.C. v. M.C., 2012 NUCJ 16

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: J.C. v. M.C., 2012 NUCJ 16 Date: 20120912 Docket: 08-07-678-DIV Registry: Iqaluit Plaintiff (Respondent): M.C. -and- Defendant (Applicant): J.C. _______________________________________________________________________ Before: The Honourable Madam Justice Cooper Counsel (Applicant): S. Switch Counsel (Respondent): D. Stout Counsel (Children): D.

Fan Location Heard: Iqaluit, Nunavut Date Heard: April 16-20, 2012 Matters: Children’s Law Act , S.N.W.T. 1998, c. 14, as duplicated for Nunavut by s. 29 of the Nunavut Act, S.C. 1993, c. 28 ; Divorce Act , RSC 1985, c 3; Family Law Act, S.N.W.T. 1997, c. 18 , as duplicated for Nunavut by s. 29 of the Nunavut Act, S.C. 1993, c. 28. REASONS FOR JUDGMENT

(NOTE: This document may have been edited for publication) Amended Decision: An amended decision was issued on September 18, 2012; the corrections have been made to the text and the amendment is appended to this judgment. I. INTRODUCTION [ 1 ] The parties were married in 1998 and separated in 2007. There are three children of the marriage, currently ages 13, 10 and 8. Since the separation, the mother has had legal custody of the children, although their actual residence has gradually changed over time. By the time the matter came on for trial, the children were spending the majority of their time with the father.

The mother has remained in the matrimonial home and has been receiving child support from the father in amounts which have varied over time. A. Issues [ 2 ] The issues are: ? custody and access; ? ongoing child support; ? settlement of arrears of child support; ? whether the father is entitled to an award for “overpayment” of child support; and ? division of matrimonial property. II. PROCEDURAL HISTORY [ 3 ] The parties' initial separation was difficult and acrimonious.

In November of 2007, while the father was out of town on work-related travel, the wife filed for divorce and obtained an Ex-Parte Order [the Order] granting her custody of the children, exclusive possession of the family home and what essentially amounted to a restraining order.

Although things had been difficult between the parties for sometime prior to the issuance of the Ex-Parte Order, the father was nonetheless shocked and upset by the nature of the Order. [ 4 ] The father had the matter back in court within less than two weeks after the issuance of the Ex-Parte Order and, with the consent of the mother, was granted access to the children every Tuesday and Wednesday evening and during the day on the Saturday and Sunday of alternating weekends. At that time the father could not exercise overnight access as he did not have suitable living arrangements.

He agreed to pay $2,000 per month in support. [ 5 ] By June of 2008, the father had secured suitable accommodation and was able to exercise overnight access. He continued to see the children on Tuesday and Wednesday evenings and began to exercise overnight access on alternate weekends, from Friday to Sunday evening. The amount of support payable increased to $2,100, payable first towards the mortgage on the family home and then any excess was to be paid to the mother.

In addition, the father was required to maintain the car and house insurance. [ 6 ] Although the mother has retained legal custody of the children since 2007, the actual living situation for the children has changed. Over time, they started to spend increasing amounts of time with their father to the point where they were living with him the majority of the time. [ 7 ] In April of 2011, the matter was back before the Court. The Court was advised that the children were with their father each week from Wednesday after school to Sunday evening. The Court simply confirmed the status quo by way of an Order.

At the same time, at the request of the parties, the Court recommended that the Legal Services Board appoint counsel for the children.

[ 8 ] In October of 2011, the matter was before the Court on an application brought by the father for a variation of custody, access and child support, and for an order directing that the matrimonial home be sold. The application was granted in part, with the amount of child support being reduced to $1,500 per month. The balance of the application was adjourned pending trial. III.

CUSTODY & ACCESS [ 9 ] The Divorce Act , RSC 1985, c 3, s 16(8), provides that in making a custody and access order “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”.

The Court must not consider the past conduct of a party seeking custody or access unless such conduct is relevant to that person's ability to parent. [ 10 ] Although the Divorce Act does not set out specific criteria which the Court must consider in determining custody and access, the Children's Law Act, S.N.W.T. 1997, c. 14 , 17 (2), as duplicated for Nunavut by s. 29 of the Nunavut Act, S.C. 1993, c. 28 , which also invokes the “best interests” test, provides guidance to the Court as it directs the Court to consider: • the love, affection and emotional ties between the child and those seeking custody; • the child's views and preferences; • the child's cultural, linguistic and spiritual or religious upbringing and ties; • the ability and willingness of those seeking custody to provide the child with guidance, education and necessities of life and to provide for special needs; • the ability of those seeking custody to act as a parent; • who has been the primary care giver for the child; • the effect a change of residence will have on the child; • the permanence and stability of the family unit of those seeking custody; • plans for the care and upbringing of the child; • the relationship, by blood or adoption, of the child and those seeking custody; and • the willingness of those seeking custody to facilitate access. [ 11 ] Under the current regime the father has the children a majority of the time, including every weekend, while the mother has only week nights with the children.

Although there is some dispute over when the current regime came into effect, it is clear that it has been in place for at least 18 months. Further, because the father's job as a college instructor provides him with generous summer and Christmas vacations, he has the children for substantial periods over the holidays. A.

Positions of the parties [ 12 ] The mother is seeking sole custody of the children or, alternatively, joint custody with the children's primary residence being with her. [ 13 ] The father is seeking sole custody or, alternatively, joint custody with the children's primary residence being with him. He proposes that the mother have access two weeknights a week and one weekend per month. B. Evidence (i). Counsel for the children

[14] By agreement of the parties, counsel for the children was permitted to make opening and closing statements to the Court, toquestion witnesses, and to advise the Court by way of submissions as to the preferences of the children. This was in keeping with theprocess set out in Strobridge v Strobridge, (ON CA), [1994] OJ No 1247, 18 OR (3d) 753 (Ont CA).

This decisiondiscusses at length the role of counsel for the children and stands for the proposition that, provided the parties consent, counsel for thechildren may present the children's preferences through submissions. [15] Counsel for the children met with each of the children separately over a period of eleven months. The two oldest children were metwith on eleven occasions and the youngest child on ten occasions.

The view of counsel was that the children were able to clearly expresstheir preferences and that they were not operating under improper influence from either of the parties. [16] Counsel advises that the children were fairly consistent in their stated preferences. The two oldest children would prefer to spendtwo weeknights a week with their mother rather than the current three. They would prefer to go to their mother's on Monday at lunchtime rather than on Sunday evening. They would also like to spend approximately one weekend per month with their mother.

Theyoungest child is content with the current regime but would like more time with the mother by way of one weekend per month. None ofthe children were concerned about being separated from the others for short periods of time. (ii). Mother [17] The mother called a number of witnesses who testified as to her fitness as a parent. [18] One of the witnesses is a former co-worker at a local architectural firm who has known the mother for approximately eight months.Although they met in the work place they have developed a friendship and socialize two to three times a week.

The witness has observedthe mother with the children on a few occasions although the witness tries to not interrupt the mother's time with the children. Thewitness described the mother as engaging in healthy recreational activities, such as getting together with friends, cooking and going forwalks. The witness testified that the mother often talks about the children, clearly loves them and values her time with them. [19] Another witness is a cousin of the mother. Although they first met a number of years ago they have become close only in the lastcouple of months and now see each other daily.

The witness has young children who the mother has looked after for a few days at a time.The witness described the mother as being good with children and engaging in healthy activities such as baking, cooking, watchingmovies with the children and visiting. [20] The mother also called her own mother as a witness. The witness described her daughter as a person who has a natural ability withchildren, welcoming them into her life and treating them as individuals. She described the mother's parenting style as spontaneous andthe father's parenting style as structured.

The witness and her husband have lunch with the children when they are in the care of theirmother. The grandparents have managed to maintain a good relationship with the father and recently the father seems more amenable tobringing the children to visit when they are in his care. It is clear that the children's relationship with their maternal grandparents is animportant relationship which should be fostered and encouraged regardless of who the children are living with. [21] The mother testified that during the marriage she was a stay-at-home mother and the primary caregiver for the children.

Shetestified as to the activities she shares with the children when they are in her care. The mother has written and published a children's bookand the children helped with the illustrations. She spoke about the children's progress in school, their friends and their personalities. Themother is Inuk and although she does not speak Inuktitut she is interested in Inuit culture and the children are exposed to their Inuitculture through their extended family. (iii).

Father [22] A neighbour of the father, whose daughter is also a close friend of one of the children, testified that the father has an active homeand she is very comfortable having her daughter spend extended periods of time there. She further testified that her daughter also spendstime at the home of the mother, that they bake and cook while they are there, and that she has never had any difficulties with the mother. [23] The father's new live-in partner of approximately three years testified that she has an affectionate, loving relationship with thechildren.

She testified that the father has an excellent relationship with the children and that he is actively engaged in their lives. Theirhome is open to the children's friends as well and is quite busy when the children are in the father's care. She testified that she does not

have an easy relationship with the mother and preferred not to communicate with her.

Despite this, recently when the children were in the care of the mother and the father was out of town, arrangements were made for the children to visit the new partner and the visit proceeded as arranged. [ 24 ] A friend who has known the father for approximately fifteen years and also has a young child testified that the father has an excellent relationship with the children and that he spends a lot of time with the children. [ 25 ] The father testified that, although the mother was at home full time during the marriage, he was an active father and spent each evening with the children.

He testified that he does many outdoor activities with the children and is primarily responsible for arranging their extracurricular activities, such as swimming lessons, and their medical and dental appointments. The father is in a new relationship and has been living with his new partner for approximately three years. By all accounts the children get along well with her. The father is not Inuk but has an interest in Inuit culture, particularly from a historical perspective. He has an active outdoor lifestyle and teaches the children to camp, fish and hunt. C.

Analysis [ 26 ] It is clear from the evidence that both parents love their children and, while they may have different parenting styles, both are fit parents. In determining custody and access, the Court must be guided only by the best interests of the children. In instances where both parents are fit it is often in a child's best interest to maximize contact with each parent.

Further, even if the regime is not a shared parenting regime, in that the child is not spending equal time with each parent, it is often in the child's best interest to have both parents actively engaged in making important decisions in their lives. A regime which relegates one parent to the role of “observer” when it comes to major decisions in the life of the child will inevitably tend to undermine that parent/child relationship. [ 27 ] Each of the parties in this matter are seeking sole custody of the three children as they say they have found it difficult to communicate.

Despite seeking sole custody, the father testified that he would include the mother in major decisions involving the children. [ 28 ] While the parties say that communication has been difficult, the evidence is that there are many areas where they share common views on parenting and there have been many decisions that they have been able to make jointly since separating. [ 29 ] The parties agree on the children's religious upbringing. They are active in the same church.

They continue to attend church along with the children, the mother's extended family and the father's new partner. [ 30 ] The parties both value a good education and support and encourage the children in this regard. [ 31 ] They have been able to work out arrangements for Christmas, summer and other holidays, for times when the father is working out of town, and special arrangements for when the father's family is visiting from the south. [ 32 ] There was even consultation and agreement on getting the girls' ears pierced. [ 33 ] They have been able to reach agreement on these major issues despite the uncertainty and conflict of the past few years.

With some finality being brought to the outstanding issues between the parties and with the passage of time, it may well be that communication between the parties will even improve. [ 34 ] While joint custody may not be the easiest arrangement for the parties, in my view it is in the best interests of the children. [ 35 ] With respect to the day to day living arrangements for the children, the Court recognizes that the preferences of the children must be considered in the context of what is in their best interests. The mother's concerns regarding the lack of weekend time with the children is legitimate.

Fortunately, both parents intend to remain in the community so there is no reason why meaningful relationships with each

parent cannot be fostered. [ 36 ] There is nothing in the preferences of the children that conflicts with their best interests. The father provides a stable and loving family unit and home, he is able to provide for all of their needs, he is closely bonded with the children and giving effect to the children's preferences will not detract from the relationship they have with their mother. Giving effect to the children's preferences will also address one of the mother's concerns - that of weekend access to the children.

It may well be that over time the children's preferences will change, in which case it is hoped that the parties will listen to the children and accommodate their preferences to the extent that they are consistent with the best interests of the children. D. Decision on custody & access [ 37 ] It is the decision of the Court that the following shall be the terms of custody and access for the three minor children. i. The parties shall have joint custody of the three children of the marriage; ii. The children's primary residence shall be with the father; iii.

The mother shall have access to the two oldest children each Monday from 8:30 am to Wednesday at 8:30 am; iv. The mother shall have access to the youngest child from Sunday at 7:00 pm to Wednesday at 8:30 am; v. On the first weekend of each month the mother shall have access to the children from Friday after school to Wednesday at 8:30 am; vi. Each party shall have access to the children during the summer for an uninterrupted period of four weeks; vii.

Each of the parties shall have the children for 50% of the time during the Christmas holidays, with the children alternating Christmas and New Years with each parent; viii. The children's residence shall not be relocated out of the City of Iqaluit without the prior written consent of each parent or order of the Court; IV. Child support A. Ongoing [ 38 ] The mother is currently unemployed and looking for work. Immediately following the separation she registered in the Nunavut Teacher Education Program at Nunavut Arctic College. She testified that she did not complete the program because of financial difficulties.

She has held casual positions with the Government of Nunavut but has not been successful in obtaining an indeterminate or permanent position. She was employed for a short time in a permanent position in the private sector. However, she left that position for a casual position with the government because her paycheques were arriving through the mail and as a consequence could not be relied upon to arrive at the end of the month. At the time of the trial she had two job applications pending. She testified that she found it difficult to focus on obtaining employment with the trial pending.

By all accounts she is a good worker and highly employable. I am concerned that she has not taken all reasonable steps to obtain consistent employment. [ 39 ] The father testified that if he were granted sole custody of the children he would not be seeking child support, as he recognized the difficult financial circumstances of the mother. Although he used the term “sole custody” in his testimony, I understood his position to be

that if the preferences of the children were given effect he would not be seeking support. In light of his position, I decline to make an order for ongoing child support. However, this is without prejudice to the father to bring the matter back before the Court to seek support without having to establish a material change in circumstances. B. Settling of arrears [ 40 ] The mother is asking the Court to settle the amount of arrears owed by the father for child support.

There is a dispute in the evidence as to the amount of arrears owing. [ 41 ] From May 22, 2008 to November 30, 2011, the father was required to pay child support of $2,100 per month. The support was payable first to the mortgage, with any excess to be paid directly to the mother. In addition, the father was to pay the house and car insurance.

Effective November 2011, the amount of child support payable was reduced to $1,500 per month, payable towards the mortgage. [ 42 ] In an affidavit filed on April 4, 2011, and in her evidence in court, the mother took the position that the father had not paid the full amount of the support owing. It is her position that while the mortgage was maintained in good standing, she received only $2,907.92 by way of excess for the period from May 22, 2008 to April of 2011.

She filed with the Court four electronic transfers of money, as follows: June 13, 2009 $680.00 August 26, 2009 $1,000.00 September 2, 2009 837.56 October 11, 2009 $390.36 [ 43 ] She testified that these electronic transfers are the only child support in excess of the mortgage that she received from the father during this period. She also claims that for the years 2009 and 2010, the father did not pay the house insurance, in the amount of $1,227 per year, as he was required to do.

She claims $19,911.24 as arrears of child support over 41 months, from May 2008 to November of 2011 ($485.64 per month, based on two mortgage payments per month at $807.18 bi-weekly). [ 44 ] The father has filed copies of ten electronic money transfers for the period from September 2, 2008 to October 2009, which include the four transfers acknowledged by the mother. These documents show that electronic transfers made to the mother in varying amounts were accepted by her. The father testified that these money transfers are only representative of payments made and do not constitute all of the payments.

He testified that he has paid all the support owing up until December of 2009, at which time he started to pay only the mortgage. The mother is not able to explain the documentary evidence filed by the husband; she simply does not accept it as being accurate. [ 45 ] In August of 2008, the mother filed an affidavit in which she addressed the matter of child support. While she expressed some concern about the manner in which the support is being paid, in that she wanted the full amount paid directly to her, she did not state that the full amount of the child support was not being paid.

If that had been the case one would have expected her to address it in her affidavit, as the support payments would have been in some arrears for approximately four months. [ 46 ] I do not accept the mother's evidence regarding arrears of child support. I accept the father's evidence that up until December of 2009, he was not in arrears of support. The period of time for which arrears must be assessed is a period of 23 months, from December 2009 to November 2011. [ 47 ] There is conflicting evidence before the Court as to the amount of the bi-weekly mortgage payment.

In May of 2008, the father filed an affidavit in which he listed the mortgage payments he had been making, each in the amount of $749.91. In August of 2008, the mother filed an affidavit in which she stated the mortgage payments were $807.18. In April of 2011, the mother filed another affidavit in which the mortgage payments were said to be $1,722 per month, which when calculated on a bi-weekly basis results in payments of $794.76. The only documentary evidence before the Court regarding the mortgage is a one page statement of account from early 2012, which shows that the mortgage payments are $898.29, bi-weekly.

[48] The conflict in the evidence has not been explained.

Given the evidence, it seems that the fairest approach is to use the mid-point of$846.52 as the amount of the bi-weekly mortgage payment. [49] The amount of child support that should have been paid during the period in question, from December, 2009, when the fatherstarted paying only the mortgage payment to November, 2011, when the amount of support was reduced, is $48,300 (23 months x$2,100/month). [50] The amount of child support that was paid was $41,479.97 (49 mortgage payments, based on 26 payments per year, x $846.53). [51] The amount of arrears owing is $6,820.03. [52] The mother testified that the father did not pay the house insurance totalling $2,454 for two years although required to do sopursuant to the court order of May 2008.

This does not seem to be contested by the father, who is silent on the issue. This brings theamount of arrears to $9,274.03. [53] The position of the father is that he stopped paying support other than the mortgage in December of 2009. In addition to beingunder financial stress, his evidence conveys the sense that he felt it unfair that he should be required to pay support when the childrenwere living with him the majority of the time. [54] There are two difficulties with this. The first is that there is a dispute in the evidence as to when the children started to live mostlywith their father.

The second is that once the Court has ordered a party to pay support, the party so ordered does not have a choicewhether or not to pay it.

If circumstances have changed, the remedy is to apply to court to vary the support order, not to simply stoppaying it or to pay an amount that the payor feels is fair. [55] The test for determining whether to vary or rescind child support arrears is set out by the Alberta Court of Appeal in Haisman vHaisman, 1994 ABCA 249 , [1994] AJ No 553, 116 DLR (4th) 671. [56] In short, in the absence of some special circumstance, a judge should not vary or rescind an order for the payment of child supportso as to reduce or eliminate arrears unless he or she is satisfied on a balance of probabilities that the former spouse or judgment debtorcannot then pay, and will not at any time in the future be able to pay, the arrears. [57] In Haisman at para 82, and in the more recent case of Fidler v Fidler, 2012 ABQA 270 at para 35, [2012] AJ No 490, the fact of thechild having lived full time with the payor parent for part of the relevant time was considered a “special circumstance” justifying areduction in the arrears owing. [58] In the matter before me, the parties are in agreement that as of October 2010, the children were living the majority of the time withthe father.

In October of 2011, this was recognized as being a change in circumstances sufficient to reduce the amount of child supportpayable to $1,500 per month, an amount just slightly less than the monthly mortgage payments. Unlike some cases where an increase inaccess by the non-custodial parent does not impact on the child-related expenses of the custodial parent, in October of 2011, the Courtwas able to determine that the variable expenses paid by the mother were reduced significantly as a result of the children spending moreof their time with the father.

I am satisfied that it also constitutes a “special circumstance” for the purpose of determining whether arrearsof child support should be varied or rescinded. [59] From October 2010, which is the point at which both parties acknowledge the children were living mostly with the father, toOctober, 2011, when the amount of support payable was reduced, the father should have paid $25,200 in support ($2,100 x 12 =25,200). The amount he paid was $22,009.52 ($846.52 x 26 = 22,009.52). [60] In my view it is appropriate to reduce the amount of arrears to reflect the change in circumstances as of October, 2010.

The excesswhich should have been paid over and above the mortgage payments is $3,190.48. The arrears owing will be reduced by this amount.

[ 61 ] This leaves the amount of arrears outstanding at $6,083.55. C. “Overpayment” of child support [ 62 ] The father is making a claim for “over-payment” of child support. He argues that since the children have been living mostly with him for an extended period of time, he was entitled to child support and, accordingly, any child support that he paid was an “over- payment”.

He asks the Court to order that this money be reimbursed to him from the mother's share of the sale proceeds of the matrimonial home, should such a sale be ordered. [ 63 ] I have difficulties with the father's characterization of the past child support as an “overpayment”. By definition, support paid in accordance with a court order cannot be an “overpayment”.

Failure to pay might well amount to contempt of court. [ 64 ] Further, this request ignores the fact that in October of 2011, at a time when the Court was well aware of the children's living arrangements, the father was still ordered to pay interim child support pending trial. Granting the relief requested by the father would amount to a reversal of that earlier decision, without new evidence being before the Court and without the proper process having been followed. [ 65 ] The father is simply asking the Court to reconsider its earlier decisions in this matter yet there is no compelling reason to do so.

There must be some financial certainty for the parties, even on an interim basis. It would be unfair for the Court, at a trial held many years after the issuance of an interim order, to go back and reconsider all of its earlier decisions. [ 66 ] The type of relief sought by the father might be better characterized as a request to vary from the equal division of property as set out in s. 36 of the Family Law Act, S.N.W.T. 1997, c. 18 as duplicated for Nunavut by s. 29 of the Nunavut Act, S.C. 1993, c. 28 , and indeed that is how counsel presented it in final submissions.

Given this, I will address this issue further when the issue of division of matrimonial property is discussed. D. Decision on child support [ 67 ] There will be no child support payable by the mother to the father. [ 68 ] The father is granted leave to apply for child support without having to show a material change in circumstances. [ 69 ] Arrears payable by the father are set at $6,083.55. V. MATRIMONIAL PROPERTY A. Legislative provisions [ 70 ] The Family Law Act provides for an equalization of net family property upon separation or divorce.

The major assets for division in this matter are the matrimonial home and the father's pension. There is also a request from the father that certain personal possessions be returned to him. [ 71 ] I must first comment on some of the evidence before the Court. The Family Law Act requires that each of the parties file a Statement of Property. The Statement sets out the value of property brought into the marriage, the value of property as of the valuation date (usually the date of separation) and the value of property as of the date of the Statement.

[ 72 ] The evidence before the Court regarding matrimonial property is all in the form of the parties' Property Statements and Financial Statements. There is no documentary evidence to support valuations of either assets or debts. The parties do not agree on the value of the property owned or on the debts owed as of the date of separation, with the most significant difference being that the father claims that there was a joint VISA credit card with $29,000 owing as of the date of separation while the mother claims to have no knowledge of such a debt or even the existence of a joint VISA during the marriage.

Further, the father disclosed matrimonial debts, such as the VISA and a line of credit, in his monthly Financial Statement rather than in his Property Statement. This is problematic because his first Financial Statement was filed many months after the date of separation. Two further Financial Statements were filed subsequently. The amounts of various matrimonial debts varied in each of the three Financial Statements filed. The Court is not provided with a snapshot of the matrimonial assets and liabilities as of the date of separation. B.

Matrimonial home [ 73 ] The parties are in agreement that the house should be valued at its current value. The father asks that the matrimonial home be sold and the proceeds be divided between the parties. The mother asks that the home not be sold and that she retain possession of it as the children do not want the house sold and she has nowhere else to live. [ 74 ] The decision regarding the matrimonial home flows largely from the decision regarding custody and access.

The Court has the jurisdiction to grant exclusive possession of the matrimonial home to one party and to delay a division or sale of the home until some future date. Normally, this would be done if the children of the marriage were residing in the home with the custodial parent. Pursuant to the custody and access order which has been made, while the children will spend some of their time with the mother, this alone cannot justify the matrimonial home not being sold. The mother is not entitled to child support. Conversely, she has been given somewhat of a benefit by the father foregoing a claim to child support.

She has not made a claim for spousal support. The mother will not qualify for financing in order to buy out the father's interest in the home. The mother could only stay in the home if she were to receive financial assistance from the father and there is no basis for granting such support. [ 75 ] The parties separated in the fall of 2007, almost five years ago. For some reason the mother has not been able to obtain and maintain regular employment. Given the evidence that she is a good, reliable worker, the reasons for this are not clear.

At the time of trial, she indicated that she was under stress because of the litigation and this appears to have hampered her ability to seek employment. Hopefully, with the litigation now resolved, the mother will be able to obtain employment commensurate with her skills and ability. [ 76 ] The issue of the sale and division of the sale proceeds of the matrimonial home is also relevant to the father's claim for “overpayment” of child support, which was previously discussed. The usual valuation date for division of property is the date of separation.

In this instance, both parties appear to take the position that valuation may be as of the date of trial or when the home is sold. There is no evidence before the Court as to the value of the home at the date of separation and, indeed, little evidence as to its current value, beyond the agreement of the parties that it could likely sell for $400,000. This approach to valuating the matrimonial home further undermines the father's claim for “overpayment” of child support, as most of the child support was being paid toward the mortgage on the home.

Clearly, there has been an increase in the parties’ equity in the home between the date of separation and the date of trial, through either an increase in the market value of the home, the paying down of the mortgage principal, or a combination of the two. The father will benefit from this. B. Father's pension [ 77 ] The father has a pension through his employment which is matrimonial property and subject to division. Each of the parties have had the pension valued by actuaries. [ 78 ] The pension has been valued at three different times.

First, at age 58.49, which is earliest the father could retire with an unreduced pension, assuming continued employment. Second, at age 60, the earliest age at which the father would be entitled to an unreduced pension based on termination of employment at the valuation date.

Lastly, at age 63.49, the age at which a full pension is payable, based on continued employment. [ 79 ] There are three issues to be decided in relation to the pension. [ 80 ] The first issue is whether the pension should be valued based on termination of employment as of the date of valuation (the “termination” method) or on the basis of continued employment (the “retirement” method).

[81] The issue is complex and any discussion at this stage as to the difference between the two methods will be in the simplest and mostbasic way. [82] The retirement method assumes that the employee will continue in his or her employment until reaching a specified retirement age.A valuation using this approach will take into account future salary increases, due to both inflation and job promotion. [83] The termination method assumes that the employee has quit his or her employment as of the valuation date, although this approachusually does consider inflationary increases but not increases due to job promotion. [84] Generally, the courts prefer the termination method as being the approach that best reflects the value of the pension as of the dateof separation (Bascello v Bascello, (ON SC), [1995] OJ No 2989, 26 OR (3d) 342). [85] The second issue which the Court must consider is what retirement age should be used in the valuation.

The value of a pensionincreases the earlier the employee retires as the pension is likely to be paid out for a longer period. In determining the age of retirementto be used for valuation purposes, the Court is required to consider evidence in relation to the parties intention at the time of separationand is not to consider post-separation events that might impact on that intention (Di Francesco v Di Francesco, 2011 ONSC 3844 at para32, [2011] OJ No 2810 (Ont SC). [86] There is little evidence before the Court regarding the couple’s retirement plans as of the date of separation.

This is understandablegiven their ages, as most people do not turn their minds to such matters until they are nearing the end of their careers. The evidence isclear that both parents have long held the view that education was a priority for their children and that they would like to be able to assisttheir children in attending university should any of the children wish to pursue that path. The children are doing well academically and atleast one of them is in an accelerated program.

Assisting children through university is a financial obligation that parents oftenvoluntarily assume although they may not be legally required to do so, requiring them to work beyond the age at which they are eligibleto retire with an unreduced or full pension. [87] Given that the preferred actuarial method is the “termination” method and the likelihood of the father working beyond the age of58.49, regardless of the separation, I find that the appropriate age for valuation of the pension is 60. [88] I must also determine whether one year of service which was bought back by the father after the separation should be included inthe valuation.

During the marriage, the father took an education leave so that he could complete his Masters’ degree. During hiseducation leave he received a salary from his employer which was almost equivalent to what he received when not on education leave.The father thought that he was contributing to his pension while on education leave. After the parties separated, the employer realizedthat pension contributions had not been made during the education leave.

The father was given the option of buying back that year,which he chose to do. [89] In Cloutier v Francis, 2011 ONSC 5550 at para 150, [2011] OJ No 6198, the court held that the question of how much electedservice is considered accrued during the marriage should be determined according to the circumstances of the case and what can beconsidered fair and appropriate. [90] In the matter before me, the intent was to acquire the one year of pension at issue during the period of leave, and it was simplythrough inadvertence that it was not done during the marriage.

In my view, fairness dictates that it be included in the valuation, less theamount paid by the father to buy it. [91] The value of the pension, based on a retirement age of 60 and including the one year accrued during the education leave, less theamount paid by the husband to buy it, is $75,315. The mother is entitled to half of this. C. Other assets and debts

[92] The major debt which the parties agree upon is a joint line of credit. There is currently approximately $11,700 owing on it. Bothparties claim to have been making payments towards it since the separation. [93] At issue is a joint VISA credit card debt which is claimed by the father. The mother claims that there was not a joint VISA accountand she testified she has no knowledge of the debt.

The father's evidence is that there was approximately $29,000 owing on the accountat the time of separation and that there is currently approximately $31,000 owing. [94] The evidence is clear that this was a family that maintained a lifestyle which would have required a credit card. The family placedannual sealift orders, including a large order just prior to the separation, took holidays that required overnighting in hotels and engaged inother activities for which a credit card is required. It is not relevant whose name the account may have been in.

The mother's evidencethat she had no knowledge of this account is simply not credible. I accept that the amount owing on the VISA at the time of separationwas a matrimonial debt and I set that debt at $29,000. [95] The family vehicle was sold following the separation at a loss under the terms of the lease agreement. Some estimated values wereprovided for household items which remained in the possession of the mother. The difficulty is that these estimates are for the value ofthe property as of the date of separation.

It would be unfair at this point to value those items as of the date of separation when the majorasset, the house, by agreement of the parties, is being valued at its current value. Household items tend to depreciate in value rapidly. Idecline to consider those values in the division of property. [96] As previously discussed, the father is seeking unequal division of matrimonial property on the basis that he assumed greaterfinancial responsibilities relating to the children since the date of separation. The party seeking an unequal division of matrimonialproperty has a high threshold to meet.

The Family Law Act provides that the Court may order an unequal division where it would beunconscionable not to do so, having regard to, amongst other factors, the needs of the children and the financial responsibility related tothe care and upbringing of the children. Unequal division of property is the exception rather than the rule. As stated by Vertes J. in Fair vJones, (NWT SC), [1999] NWTJ No 17, 44 RFL (4th) 399, the standard is not hardship or unfairness - it is whetherequal division of the property would be unconscionable. [97] The unconscionable criterion sets a high standard.

As noted by Jennings J. in Merklinger v Merklinger (1992), (ON SC), 11 OR (3d) 233 (Gen Div), aff’d (1996), (ON CA), 30 OR (3d) 575 (CA), section 5(6) of the Family LawAct, 1986, permits me to order an unequal allocation of value if to do otherwise would be unconscionable. The legislature deliberatelychose to strictly define the severity of the result of the application of s. 5(1) which must pertain before there can be any judicialintervention. The result must be more than hardship, more than unfair, more than inequitable.

There are few words left in commonparlance that can be used to describe a result more severe than unconscionable. [98] The father does not meet the high standard required for an unequal division of property. [99] Finally, there are specific items which were gifts specifically to one of the parties or which one of the parties brought into themarriage and which are not matrimonial property. These items should be returned to the appropriate person.

I find it very disconcertingthat the Court need even be involved in this, particularly as there is agreement on much of this and the Court directed that these items beexchanged during the course of the trial. [100] The following items will be provided to the father: • his books; • his bedroom set from childhood; • scuba gear; • nookilee maker; • popcorn bowl/maker; • meat slicer; • hiking poles; and

• door gym. [ 101 ] I expect the parties to respect the wishes of the oldest child and have her hope chest placed where she wishes it to be. D. Decision on division of matrimonial property [ 102 ] The matrimonial home will be sold and the sale proceeds distributed as follows: i. to pay out the outstanding mortgage; ii. to costs related to the sale; iii. to the amount owing on the joint line of credit; iv. $29,000 to the amount owing on the joint VISA; v. $42,741.05 payable to the mother as her interest in the father's pension and arrears of child support; vi. the balance to be divided equally between the parties.

Dated at the City of Iqaluit this 12th day of September, 2012 ___________________ Justice S. Cooper Nunavut Court of Justice Amendment of the Reasons for Judgment Reserved of The Honourable Madam Justice Cooper _______________________________________________________ In the frontispiece, the list of counsel has been changed from “Counsel (Applicant): S. Switch Counsel (Respondent): D. Stout”

To “Counsel (Applicant): S. Switch Counsel (Respondent): D. Stout Counsel (Children): D. Fan” Please replace the amended pages in your hard copy of the judgment.