Stewart v. Topiwala, 2012 NSSC 278

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Stewart v. Topiwala, 2012 NSSC 278 Date: 20120802 Docket: 1201-061640 Registry: Halifax Between: Carolyn Louise Stewart Applicant and Shailan Topiwala Respondent LIBRARY HEADING Judge: The Honourable Associate Chief Justice Lawrence I. O’Neil Issues: 1. Whether income should be imputed to the Respondent for child support purposes? 2. Whether the Respondent has complied with the pension division clause of the Corollary Relief Judgment? 3. Whether the Respondent should be ordered to pay special expenses?

Summary: The Court ruled that no increase in the income previously imputed to the Respondent was justified by the evidence. The Court also ruled that although it had assisted the parties with their communication and efforts to divide the parties’ pension as required by the Corollary Relief Judgment, it could not make any further order given the pleadings, the evidence before it and the positions of the parties. The Court ruled that if the Applicant believed the Respondent was intentionally frustrating the Division of Pensions, then she should consider filing an application for contempt.

The Court did not express an opinion on the merits of such an application. However, the Court encouraged the parties to continue to dialogue. The Court did not consider the request for a sharing of the special expenses of the children because this was not claimed in the pleadings; the Respondent did not have proper notice of the claim and in any case, the evidentiary basis for the claim was not established. Keywords: Imputed income; special expenses; enforcement of CRJ

Legislation: Divorce Act, R.S.C. 1985, c.3 (2nd Supp) Federal Child Support Guidelines. SOR/97-175, s.7 & s.19 Cases Considered: MacDonald v. Pink, 2011 NSSC 421 Staples v. Callender , 2010 NSCA 49

THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET. IN THE SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Stewart v. Topiwala, 2012 NSSC 278 Date: 20120802 Docket: 1201-061640 Registry: Halifax Between: Carolyn Louise Stewart Applicant and Shailan Topiwala Respondent Judge: The Honourable Associate Chief Justice Lawrence I. O ’ Neil Numerous Appearances: December 8, 2009 to April 30, 2012 Counsel: Carolyn Stewart, Self Represented Shailan Topiwala, Self Represented By the Court : Introduction

[ 1 ] This proceeding involves a payor father who worked in the IT sector in Canada until 2009. Earlier, the parties lived in the United Kingdom where the Respondent worked. His employment in Halifax ended in 2009, after which he again sought employment outside Canada. He left for New Zealand in November 2009. [ 2 ] The parties have three children; born in 1989, 1993 and 1995. The parties married August 22, 1987 at Halifax and divorced by an order dated January 14, 2009.

A Corollary Relief Judgment ( ‘ CRJ ’ ) dealing with their property and parenting rights and responsibilities also issued that day. [ 3 ] The consent ‘ CRJ ’ dated January 14, 2009, required Mr. Topiwala to pay child support for three children to May 1, 2008 in the amount of $445 each month. Commencing June 1, 2008, he was required to pay child support of $331 per month for two children. His income in 2008 was $22,620 and Ms. Stewart earned $77,000. [ 4 ] In 2009, Ms. Topiwala, who will hereinafter be referred to as Ms. Stewart, sought the Court ’ s assistance first , to determine Mr.

Topiwala ’ s past and current income for child support purposes and secondly , she sought the Court ’ s help in realizing the pension divisions ordered by the parties ‘ CRJ ’ . [ 5 ] When the matter was before me in February 2010, Mr. Topiwala was living in New Zealand. The Court was told that he was unemployed and that his employment in New Zealand lasted only one month. The matter was again before me in March 2010. His father testified. The Court was told that Mr. Topiwala suffered from depression and abused alcohol. Thereafter, he was typically not available for Court because he was out of the Country.

He did appear however, on June 17, 2011; August 22, 2011 and November 2, 2011. The history of these proceedings included regularly scheduled appearances before me. Mr. Topiwala appeared on only three dates; was represented on other dates by his father or his friend Mr. Colter. He was absent and unrepresented on two dates. Most recently when the matter was before me on April 30, 2012, he was "employed" in China [ 6 ] Approximately eleven (11) appearances were before me over the past two and one half years.

Many were for a review or for progress reports from the parties on various undertakings made from time to time by them. [ 7 ] Both parties have proceeded without legal assistance. History of Proceedings [ 8 ] Resolving the issues raised by Ms. Stewart has been difficult because Mr. Topiwala has been living outside Canada. He has also experienced unemployment and health problems since the 2009 ‘ CRJ ’ . In addition, the subject pensions are, or were held by UK institutions and the formalities of the necessary valuation and transfer of these assets to Canada was not known by Ms.

Stewart. [ 9 ] As stated, the matter returned to Court because Ms. Stewart sought enforcement of the clause of the ‘ CRJ ’ dealing with pension division and an accounting of Mr. Topiwala ’ s child support. On the issue of child support, Ms. Stewart alleged Mr. Topiwala was in arrears and that he was underpaying. [ 10 ] Ms. Stewart ’ s application and amended application were filed in 2009. She first appeared before me on December 9, 2009. On December 9, 2009 I issued an order for substituted service on Mr. Topiwala. This order advised Mr. Topiwala of a pre-trial to be held on February 16, 2010.

The order was served on Mr. Topiwala's father who lives in Dartmouth. That pre-trial was before Justice Lynch who adjourned the matter for a pre-trial before me on February 19, 2012.

[ 11 ] Ms. Stewart appeared on February 19. The hearing of the application was confirmed for March 5, 2010. Mr. Keith Colter represented Mr. Topiwala on March 5, 2010. Mr. Topiwala did not appear. The Court was told that Mr. Topiwala was in New Zealand looking for work. [ 12 ] The Court was provided an e-mail from Mr. Topiwala on March 5, 2010. It is addressed to the Court, c/o Mr. Colter. Mr. Topiwala says he is unemployed and in debt to Revenue Canada, among others. He also stated that he is living on funds borrowed from his father and a friend and living outside Canada. [ 13 ] Ms. Stewart subpoenaed Mr.

Topiwala Sr. to attend the March 5, 2010 hearing and required him to bring documents pertaining to Mr. Topiwala Junior ’ s financial history and current circumstances. Mr. Topiwala testified on March 5, 2010. He said he is in frequent contact with his son and his son is without employment and required to stay at hostels in New Zealand as he seeks employment. He said his son uses internet cafes to access the internet. [ 14 ] On March 5, 2010, the Court also heard from Wanda Wilson, a former romantic partner of Mr. Topiwala. She described Mr.

Topiwala ’ s period of drinking and depression and his financial troubles in 2009. She testified that she was no longer romantically involved with him. [ 15 ] Ms. Stewart appeared and was self represented on this and all future dates. After discussions with Mr. Colter and Ms. Stewart, the March 5, 2010 hearing did proceed. Specific directions flowed from the March 5, 2010 appearance. These are contained in the Court ’ s memorandum provided to the parties and dated March 5, 2010. [ 16 ] A further hearing was scheduled for June 15, 2010 to determine Mr.

Topiwala ’ s income in 2008, 2009 and his income to date in 2010. Mr. Topiwala was directed to file the necessary documents to permit that assessment for child support purposes. The June 15, 2010 hearing was also scheduled to permit an examination of the status of the transfer of Mr. Topiwala ’ s UK pensions. [ 17 ] On June 15, 2010, Mr. Topiwala did not appear. He was again represented by his friend, Keith Colter. Ms. Stewart did appear. [ 18 ] As a result of discussions with the parties on June 15, 2010, Mr.

Topiwala ’ s child support arrears to June 15, 2010 were assessed at $20,000 and it was agreed that this amount would be satisfied by transferring $20,000 of Mr. Topiwala ’ s pension entitlement to Ms. Stewart. (This transfer did occur in August 2011 after Mr. Topiwala ’ s UK IBM pension fund was transferred to BMO Nesbitt Burns in Halifax.) [ 19 ] In addition, it was agreed that Mr. Topiwala ’ s ongoing child support obligation would be $715 per month, this being the amount payable for two children and reflecting a salary of $50,000. [ 20 ] Mr.

Topiwala was directed to take all steps necessary to give effect to the division of pensions as required by the parties ’ ‘ CRJ ’ . The Court was assured that this would be done. [ 21 ] The matter was next before me on November 2, 2010 for review. Mr. Topiwala was not present. Ms. Stewart alleged non- compliance by Mr. Topiwala with the ongoing child support obligation and the requirement to effect division of his pensions. A conference memorandum bearing that date set filing requirements and a half day hearing for April 14, 2011 (later adjourned to June 17, 2011). [ 22 ] On June 17, 2011 both Mr.

Topiwala and Ms. Stewart were present. Ms. Farquhar, legal counsel for the Maintenance Enforcement Program was present as was Mr. Bill Fenton, Mr. Topiwala ’ s investment adviser employed by BMO Nesbitt Burns. Mr. Topiwala advised the Court that he was without an income and had not had income since 2010. He also advised the Court that he was not well and had been in the hospital the evening before. He assured the Court and Ms. Farquhar of his interest in addressing his child support obligation and of his efforts and desire to fulfill the requirement to divide pensions as per the ‘ CRJ ’ .

[ 23 ] The parties next appeared August 22, 2011. The director of the Maintenance Enforcement Program ( ‘ MEP ’ ) also appeared. Mr. Topiwala agreed to fully cooperate in obtaining information for the ‘ MEP ’ office on his pensions and the status of their transfer to Canadian institutions, where they would be managed by Mr. Bill Fenton. Mr. Topiwala was clearly not well at that time. The Court was satisfied he was without an income. It was not possible to proceed with a hearing given Mr. Topiwala ’ s poor health. His ongoing child support obligation was therefore suspended on a without prejudice basis.

A review of the order suspending child support was scheduled for December 19, 2011 and a pre trial for October 4, 2011. Mr. Topiwala did not appear October 4, 2011, nor was he represented. Ms. Stewart appeared. The October 4 pre trial memorandum detailed the filing requirements of the parties in advance of the scheduled hearing on December 19, 2011. [ 24 ] Mr. Topiwala did not appear on December 19, 2011 and no one appeared on his behalf. Ms. Stewart appeared and was prepared to proceed. There being no application on behalf of Mr.

Topiwala, to vary the June 2010 child support order, the payment of child support was reinstated effective August 22, 2011. April 24, 2012 was set aside for a hearing to review Mr. Topiwala ’ s compliance with the pension division clause of the parties ’ 2009 ‘ CRJ ’ . Costs of $2,000 were awarded against Mr.

Topiwala for his ongoing non- disclosure and non-appearance. [ 25 ] The relevant part of the order flowing from December 19, 2011 reads as follows: 1.The payment of child support by Shailan Topiwala to Carolyn Louise Stewart for the benefit of the children, Maya Shailan Topiwala, born September 25, 1993 and Keirtan Dhiren Topiwala, born September 20, 1994, shall be and is hereby reinstated effective August 22, 2011 until further order of this Court; 2.It is further ordered (as contemplated by clause 12 of the October 4, 2011 Pre-trial Memorandum herein) that there be a hearing to determine Mr.

Topiwala’s compliance with the pension division clause of the parties’ corollary relief judgment dated January 14, 2009. That hearing will be held on April 24, 2011 from 10:00 a.m. to 4:30 p.m. 3.Costs of $2,000.00 are awarded against Mr. Topiwala in favour of Ms. Carolyn Stewart. These are payable forthwith. Issues [ 26 ] The December 19, 2011 pre-trial memorandum identified the issues for consideration in April 2012: Issues 2.The issues for the court’s consideration are (1) ongoing child support obligation of Mr.

Topiwala; (2) the calculation of arrears of child support for 2010 and 2011 and (3) compliance with the pension division clause of the parties’ Corollary Relief Judgment. An order reinstating child support and awarding costs issued in Mr. Topiwala’s absence on December 19, 2011. A copy of the order is attached. [ 27 ] The December 19, 2011 memorandum set filing deadlines in advance of the hearing, then scheduled for April 24, 2012 (later rescheduled to April 30, 2012): Financial Filings 8.Mr. Topiwala will also file, on or before March 27, 2012, evidence of his earnings in 2012, 2011 and 2010.

This evidence is to include his income tax returns for 2010 and 2011 and any documents that reveal his year to date income in 2012. Mr. Topiwala, in his affidavit, must also outline his efforts to find employment and his prospects for employment if at the time of filing he is unemployed. 9.If Mr. Topiwala is suffering from a condition that makes employment difficult or unobtainable, he should provide letters from the

appropriate professionals concerning same. All of the foregoing should be filed on or before March 27, 2012. 10.Mr. Topiwala is to also detail how he has complied with the pension division clause of the parties’ Corollary Relief Judgment (CRJ)or what obstacles exist to his complying, in the event that he has not complied with the pension division clause of the CRJ. [28] On April 30, 2012 Mr. Topiwala did not appear. However, Mr. Colter appeared on his behalf. Mr. Colter advised the Courtthat he had spoken to Mr. Topiwala earlier that day; that Mr. Topiwala was in China; that Mr.

Topiwala’s work Visa was set to expire inAugust 2012 and finally, that Mr. Topiwala was experiencing health problems. [29] An e-mail dated April 30, 2012 from Mr. Topiwala to Mr. Colter was provided to the Court on April 30, 2012. In it, Mr.Topiwala says he is not employed. [30] Mr. Colter advised the Court that Mr. Topiwala was willing to have any unfulfilled child support obligations satisfied by Mr.Topiwala transferring an interest in his pension(

s) to Ms. Stewart. [31] Mr. Colter also advised the Court that Mr. Topiwala was doing everything he could to comply with the pension division clauseof the parties’ January 2009 ‘CRJ’. - imputing Income [32] Ms. Stewart is asking the Court to impute an income greater than $50,000 per year to Mr. Topiwala and to order a higher childsupport payment as a result. She also seeks a retroactive calculation of child support to reflect that higher income. The Child SupportGuidelines, SOR/97-175 as amended permit the Court to impute income in defined circumstances. [33] Justice Forgeron, in a recent decision, thoroughly reviewed case law on the meaning, effect and application of

Section 19 of theChild Support Guidelines, supra. For convenience, I reproduce the following from her decision in MacDonald v. Pink, 2011 NSSC 421: [24]

Section 19 of the Guidelines provides the court with the discretion to impute income in specified circumstances. The followingprinciples are distilled from case law: a. The discretionary authority found in sec. 19 must be exercised judicially, and in accordance with rules of reasons and justice, notarbitrarily. A rational and solid evidentiary foundation, grounded in fairness and reasonableness, must be shown before a court canimpute income: Coadic v. Coadic 2005 NSSC 291. b. The goal of imputation is to arrive at a fair estimate of income, not to arbitrarily punish the payor: Staples v.

Callender, 2010 NSCA49. c. The burden of establishing that income should be imputed rests upon the party making the claim, however, the evidentiary burdenshifts if the payor asserts that his/her income has been reduced or his/her income earning capacity is compromised by ill health:MacDonald v. MacDonald, 2010 NSCA 34; MacGillivary v. Ross, 2008 NSSC 339. d. The court is not restricted to actual income earned, but rather, may look to income earning capacity, having regard to subjective factorssuch as the payor's age, health, education, skills, employment history, and other relevant factors.

The court must also look to objectivefactors in determining what is reasonable and fair in the circumstances: Smith v. Helppi 2011 NSCA 65; Van Gool v. Van Gool, (BC CA), [1998] 113 B.C.A.C. 200; Hanson v. Hanson, (BC SC), [1999] B.C.J. No. 2532 (S.C.);Saunders-Roberts v. Roberts, 2002 NWTSC 11; and Duffy v. Duffy, 2009 NLCA 48.

e. A party's decision to remain in an unremunerative employment situation, may entitle a court to impute income where the party has agreater income earning capacity. A party cannot avoid support obligations by a self-induced reduction in income: Duffy v. Duffy, supra;and Marshall v. Marshall, 2008 NSSC 11 , 2008 NSSC 11. [25] In Smith v. Helppi 2011 NSCA 65, Oland J.A. confirmed the factors to be balanced when assessing income earning capacity atpara. 16, wherein she quotes from the decision of Wilson J. in Gould v. Julian 2010 NSSC 123. Oland J.A. states as follows: 16 Mr.

Smith argues that the judge erred in imputing income as he did. What a judge is to consider in doing so was summarized in Gouldv. Julian, 2010 NSSC 123 (N.S. S.C.), where Justice Darryl W. Wilson stated: Factors which should be considered when assessing a parent's capacity to earn an income were succinctly stated by Madam JusticeMartinson of the British Columbia Supreme Court, in Hanson v. Hanson, (BC SC), [1999] B.C.J. No. 2532, asfollows: 1. There is a duty to seek employment in a case where a parent is healthy and there is no reason why the parent cannot work.

It is "noanswer for a person liable to support a child to say he is unemployed and does not intend to seek work or that his potential to earn incomeis an irrelevant factor". ... 2. When imputing income on the basis of intentional under-employment, a court must consider what is reasonable under thecircumstances. The age, education, experience, skills and health of the parent are factors to be considered in addition to such matters asavailability to work, freedom to relocate and other obligations. 3.

A parent's limited work experience and job skills do not justify a failure to pursue employment that does not require significant skills,or employment in which the necessary skills can be learned on the job. While this may mean that job availability will be at a lower end ofthe wage scale, courts have never sanctioned the refusal of a parent to take reasonable steps to support his or her children simply becausethe parent cannot obtain interesting or highly paid employment. 4. Persistence in unremunerative employment may entitle the court to impute income. 5.

A parent cannot be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations. 6. As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income. . . . . . [33] In Nova Scotia, the test to be applied in determining whether a person is intentionally under-employed or unemployed isreasonableness, which does not require proof of a specific intention to undermine or avoid child maintenance obligations. [26] In Gill v.

Hurst 2011 NSCA 100, Bryson J.A. affirmed the trial judge’s decision to impute income where the father’s attempt tojustify his underemployment for health and educational reasons was rejected: paras. 30 and 31. In addition, Bryson J. held that the trialjudge made no error by imputing the “modest sum” of $25,000 to the father. - application to the facts herein [34] Ms. Stewart has the onus of establishing that income should be imputed to Mr. Topiwala. This she must do on a balance of

probabilities. Herein, she alleges that Mr. Topiwala is being untruthful about his real earnings and his alleged non- disclosure is proof of that. [ 35 ] In June 2010, the parties agreed that an income of $50,000 could be imputed to Mr. Topiwala. A child support order reflecting this level of earnings is in place. Mr. Topiwala has not applied to vary the order to reflect a lower income. However, when he did appear in 2011, he submitted that he had no income. [ 36 ] Ms. Stewart asks that a higher income be imputed to Mr. Topiwala. The evidence does not support such a conclusion.

Such an outcome would be unfair given all that is before the Court. [ 37 ] Mr. Topiwala, on an objective basis, has a level of education and training that can result in a higher income. However, such employment is not always available. That is why he left Nova Scotia in 2009. [ 38 ] As referenced earlier, when the matter was first before me, the Court was told that Mr. Topiwala left Nova Scotia for employment. Since that time, Mr. Topiwala has worked in Asia or the Pacific Region. The Court is told that his employment is sporadic.

Much has been provided to the Court in submissions and reflects discussions with the parties. [ 39 ] Mr. Topiwala ’ s employability is undoubtedly impacted by what has been described as an alcohol addiction problem. On March 5, 2010, the Court was told he was also subject to depression. [ 40 ] Ms. Stewart asks the Court to increase the monthly child support obligation. The Court can not do so, in the absence of reliable information upon which to base its decision. That information has not been made available to the Court. The Court, given all it has heard, does not have confidence that Mr.

Topiwala has been continuously employed. Nor does it have evidence of the quality necessary to reduce his child support obligation; assuming the pleadings would permit it to do so. [ 41 ] In her affidavit filed April 17, 2012, in advance of the April 30, 2012 appearance, Ms. Stewart sought an increase in Mr. Topiwala ’ s child support obligation based on certain assumptions about his income. She seeks a recalculation of the child support obligation beginning in July 2010 until December 2010; for all of 2011 and ongoing in 2012. [ 42 ] I do not have sufficient evidence upon which to impute income to Mr.

Topiwala in excess of $50,000 nor does the evidence or non disclosure permit me to draw the adverse inference that Ms. Stewart asks me to draw. I am therefore, not changing the child support obligation reflected in the outstanding order dated June, 2010 and which is based on an income of $50,000. [ 43 ] Reliable evidence of Mr. Topiwala ’ s income is lacking. This gap in evidence may have resulted in his over paying or under paying child support. Reference was made by Ms. Stewart on April 30, 2012 to one of the children living on her own since March 2010. That reality gives rise to an obvious question, is Mr.

Topiwala currently obliged to pay child support for this child? Was he obliged after March 2010? [ 44 ] In conclusion, the child support obligation will remain $715 per month. [ 45 ] This obligation may be subject to variation should the Court determine that a child ceased being a child of the marriage in March 2010. As stated, the Court was told that this child began living ‘ on her own ’ at that time. Similarly, the child support obligation can be varied upwards if evidence to justify doing so emerges. [ 46 ] It is likely that since the June 2010 order, Mr.

Topiwala has experienced unemployment and was eligible to vary his child support obligation downwards. Absent an application to vary from him, I am not prepared to vary the order.

[ 47 ] Mr. Topiwala was ordered to pay $2,000 in costs as a consequence of his non-appearance and non-disclosure in December 2011. This is a substantial consequence for him to bear. [ 48 ] In Staples v. Callender , 2010 NSCA 49 , Bateman, J.A. stated: [21] The purpose of imputing income, in the absence of proper disclosure, is to arrive at a fair estimate of income where information is not otherwise available, not to arbitrarily punish the payor for lack of disclosure. In this regard each case must be decided in context.

There will be circumstances where a judge concludes that the non-disclosure speaks of a payor attempting to avoid his or her obligations by hiding the true income information. In view of Mr.

Callender’s limited work history, relatively low income, provision of year to date figures and recent pay stubs, and apparently truthful testimony about his 2008 income, the judge could reasonably infer that he was not motivated to hide income. [ 49 ] When considering the absence of evidence upon which to base an increase in his imputed income, and after considering the real possibility he is or has been overpaying, his absence from Canada and his health challenges, a decision to impute a higher level of income would be both unjustified and unfair. [ 50 ] As stated, arrears of child support to June 2010 were agreed to be $20,000.

At the same time, ongoing child support was set at $715 per month to reflect an income of $50,000 enjoyed by Mr. Topiwala. The accruing of arrears as a consequence of this assessment was suspended in August 2011 to permit Mr. Topiwala to make a variation application to reflect his unemployment at the time. [ 51 ] A variation application was not made by him. The suspension of the child support order was therefore lifted and the terms of the order from June 2010 were reinstated. The Maintenance Enforcement office records show child support arrears of $13,577.77 to April 20, 2012. Payments by Mr.

Topiwala in 2012 [ 52 ] The Maintenance Enforcement Program record of payments show payments by Mr. Topiwala on March 10, 2012 ($1,000) and April 4, 2012 ($2,000). [ 53 ] The collection of any arrears is a matter left for the Maintenance Enforcement office. Special “ University ” Expenses : Child Support Guidelines [ 54 ] Ms. Stewart advised the court that her oldest child will be returning to college in September 2012 and the second child will be going in September 2012 to Saint Mary ’ s University. She asks the court to order the continuation of child support and in addition that Mr.

Topiwala pay one half of the tuition costs for each of these children. I do not have sufficient information about the children ’ s financial circumstances and proposed living circumstances to permit this adjudication. It is a matter that will need to be considered in response to a new application. [ 55 ] A statement of special or extraordinary expenses was filed July 13, 2009. It did not reference expenses for post-secondary expenses. It referenced certain health insurance premiums and health related expenses. This claim was not pursued by Ms.

Stewart, presumably subsumed by the settlement of arrears in June 2010. The Applicant ’ s October 27, 2010

summary of outstanding issues filed with the Court does not reference a claim for special expenses.

Pension Division [ 56 ] The Court has entertained discussions throughout between Ms. Stewart and Mr. Topiwala (or his representative on the matter of the pension division as ordered by Clause 10(

b) of the ‘ CRJ ’ ). [ 57 ] The parties ‘ CRJ ’ dated January 14, 2009 provides at clause 10(

b) for the division of the parties ’ pension benefits earned during the period of the parties ’ marriage: 10.(b)It is further ordered that there shall be an equal division of the Pension Benefits earned by both parties, from the date of the marriage, being August 22, 1987, to the date of separation on July 29, 2006, including all pensions earned by either party in either the United Kingdom or the Dominion of Canada. The Petitioner, Carolyn Stewart, has pension plans with Scottish Equitable and Jardine Lloyd Thompson, in the United Kingdom, and a Nova Scotia Liquor Commission Pension, in Canada.

The Respondent, Shailan Topiwala, has a Hewlett-Packard (UK) Ltd. Pension and an IBM Pension, in the United Kingdom, and a Sunlife Financial (Aliant) Pension in Canada. This Court reserves the right to make such further Orders to effect an equal division of the aforesaid pension plans, as may be required. (emphasis added) [ 58 ] In her affidavit filed April 4, 2012, Ms. Stewart details the basis for her conclusion that Mr. Topiwala owed her $91,000 as a result of the equal division of their pensions. [ 59 ] Mr.

Topiwala ’ s past or current pension accounts, which are the subject of discussions are: Aliant/Sunlife Pension - balance on May 20 th , 2011, $37,098.11 (remains with BMO Nesbitt Burns/BMO Guardian Funds) UK IBM Pension - held in BMO Nesbitt Burns/BMO Guardian Funds, $62,658.93 as of June 30, 2011 (withdrawn in August 2011) UK HP Pension - administered by Blackrock UK, valued at approximately $111,000 in June 2010. [ 60 ] Only the UK HP Pension remains in the UK. [ 61 ] In her filing on December 9, 2011 at paragraph 6, Ms.

Stewart acknowledges that there was a hold on the HP pension because the plan was moved to Blackrock, UK and new paperwork was required to effect the transfer to Canada. In her filing on April 4, 2012 at paragraph 7 (and Exhibit 1 at Tab 4), Ms. Stewart provides an e-mail exchange between Blackrock and Mr. Topiwala wherein Mr. Topiwala confirms his wish to transfer these funds to BMO Nesbitt Burns in Halifax. Exhibit M of Tab 4 of the same filing is a letter dated December 1, 2011 from BMO Nesbitt Burns confirming that it had not yet received paperwork from Blackrock to effect the transfer on behalf of Mr.

Topiwala. [ 62 ] Mr. Bill Fenton appeared on June 17, 2011 and December 19, 2011 in response to subpoenas issued on behalf of Ms. Stewart. Mr. Fenton is an investment adviser with BMO Nesbitt Burns and entrusted by Mr. Topiwala with the management of Mr. Topiwala ’ s RRSP/retirement funds. He has also been involved in accepting the transfer of the UK pensions from the UK holders. This authority derives from Mr. Topiwala.

[ 63 ] Mr. Topiwala confirmed when he appeared in Court on August 22, 2011, that he is attempting to effect the pension division as ordered by the ‘ CRJ ’ . Mr. Colter has also confirmed, on behalf of Mr. Topiwala, that Mr. Topiwala is doing what he can, to fully effect the pension divisions. [ 64 ] Progress has been made in dividing the pensions and having them transferred from the UK, to be held by a Canadian institution. Status of the three pensions of Mr. Topiwala: April 2012 [ 65 ] As noted at paragraph 15 supra , the lump sum child support payment of $20,000 ordered in June, 2010 was paid by Mr.

Topiwala, when the UK IBM pension was transferred to Canada (BMO Nesbitt Burns) and cashed out by Mr. Topiwala in 2011. Mr. Topiwala retained the remaining funds from the liquidation of this RRSP/Pension. [ 66 ] As discussed supra at paragraph 61, the second UK pension to be transferred as of April 2012, is now administered by UK Blackrock. This is the UK HP Pension. It is (or /was) valued at approximately $111,000. Exhibit L to the affidavit of Ms.

Stewart filed April 4, 2012 values the fund at 69,889.97 pounds as of August 2011. [ 67 ] The third pension, the so called Aliant pension remains with BMO Nesbitt Burns is a locked in RRSP valued at approximately $37,000 (exhibit 1 filed April 30, 2012). [ 68 ] In her affidavit filed April 4, 2012 in anticipation of the April 30 th hearing Ms. Stewart values her share of all of the pensions at the time of the parties ’ divorce as $91,000; representing one half of the value of the above referenced three pensions of Mr. Topiwala which she values at $210,000 less one half of the value of her pensions to which Mr.

Topiwala is entitled. The date and manner of valuing these pension assets is an issue to be addressed by the parties. [ 69 ] I note that the cash out value of the UK IBM pension was $ 62, 658.93 (see exhibit B to the pre hearing submission of Ms. Stewart filed April 17, 2012). [ 70 ] The discussions with the parties, on the pension issue, were on a consent basis. The parties have not disagreed on the meaning and effect of the subject obligation. As stated, Mr. Topiwala has completed some paperwork and effected the transfer of some of his pension assets to Canada.

The Court is assured that the remaining transfer is in the works. [ 71 ] The Court has heard from Ms. Stewart on twelve (12) different occasions and during each appearance, the Court has appealed to the parties to work together to effect the division of their pensions. Significant progress was made as a consequence of this approach. Some results in terms of dividing the pensions, which might not otherwise be available were achieved in this fashion. [ 72 ] Ms.

Stewart continues to ask this Court to order the division of pensions on the terms she calculates. [ 73 ] Given that the Court has concluded its consideration of the child support issue, a forum for prodding the parties on the pension division issue no longer exists. The issue of Mr. Topiwala ’ s compliance with the pension division clause of the ‘ CRJ ’ is not properly before me for adjudication. [ 74 ] The Notice of Application and Notice of Amended Application were filed June 2, 2009 and July 13, 2009 respectively.

The amendment was made necessary to identify the authorizing legislation as the Divorce Act, S.C. 1985 c.3 (2 nd Supp.) not the Maintenance and Custody Act, R.S.N.S. 1989 c.160. The relief sought by the pleadings is the table amount of ongoing child support; special expenses for the children as well as arrears of child support.

[ 75 ] Should Ms. Stewart wish to have the pension issue adjudicated, she will need to seek separate redress. [ 76 ] To obtain the remedy she wants, she may choose to apply to have Mr. Topiwala found in contempt of the “ CRJ ’ and seek a remedy. The formalities of that process are different than those she has followed herein. The existing pleadings do not provide the Court with authority to embark upon that inquiry and to make the order she seeks. [ 77 ] Alternatively, she may seek the further direction of Justice Campbell as referenced supra at paragraph 57.

I have scheduled the matter for a pre-trial before Justice Campbell on Friday, September 21, 2012 at 9:30 a.m. [ 78 ] To preserve the pension assets that are the subject of Ms. Stewart ’ s action, I am also making a preservation order as provided by R.42. The preservation order is directed to BMO Nesbitt Burns Inc. requiring BMO Nesbitt Burns Inc. to (1) not disburse/cash out the currently locked in RRSP account of Mr. Topiwala and (2) to not disburse/cash out what the parties refer to as the UK HP pension, after it is received by BMO Nesbitt Burns.

I am satisfied that in the circumstances, this order can be made ex parte . Mr. Topiwala withdrew all of the UK IBM pension to his benefit once it was transferred to BMO Nesbitt Burns. [ 79 ] The Court ’ s role in resolving the pension issue, to date, was made possible by the cooperation of the parties and the forum to pursue the pension division issue was a by product of Ms. Stewart ’ s application to vary the child support obligation of Mr. Topiwala and his ongoing willingness to discuss it.

Final resolution of the pension issue is not possible until the pension assets are returned to Canada and valued in Canadian dollars. It is a process that was not complete in April 2012. [ 80 ] The application to have a retroactive child support obligation assessed against Mr. Topiwala is dismissed as is the application to have additional income imputed to Mr. Topiwala. [ 81 ] The pension division issue is scheduled before Justice Campbell on Friday, September 21, 2012 at 9:30 a.m. [ 82 ] Finally, an order for substituted service of this decision and the preservation order on Mr. Topiwala by serving Mr.

Keith Colter will also issue. ACJ