Belisle v. Belisle, 2013 NSSC 16

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Belisle v. Belisle, 2013 NSSC 16 Date: 20130124 Docket: 1201-065251 Registry: Halifax Between: Alphonse David Belisle Petitioner and Jacqueline Renee Belisle Respondent LIBRARY HEADING Judge: The Honourable Associate Chief Justice Lawrence I. O’Neil Hearing: September 4 & 5 and December 7, 2012 Issues: 1. Is the third party a bona fide holder of legal title to the “matrimonial home”? Are the third party and the husband joint owners of the property? Is the property a business asset? 2.

Is the wife’s interest, if any, in the home defeated by a trust declaration purportedly executed by the third party in favour of the husband? 3. What interest, if any, does the wife have in the real property?

Summary: The husband and wife lived together for a number of years in a home that is held solely in the name of a third party. The third party says he and the husband bought the property as equal partners. The third party says the declaration of trust conferring the entire beneficial title on the husband was not executed by him. The wife alleged the third party acted as a trustee for the husband and that the husband is the “owner” of the entire property. She claims a one half interest in the entire property as a consequence.

The husband says the property is a business asset, not a matrimonial asset and he only has a one half interest with the third party. He also argues his property business interest is held in trust for him and as property held in trust is not a matrimonial asset. The Court concluded that Mr. DeBay purchased the property on behalf of Mr. Belisle and that Mr. DeBay held title to the property for Mr. Belisle. The Court further held that the property is a matrimonial home and a matrimonial asset.

It is not excepted as a matrimonial asset on the basis of it being a business asset or subject to a trust, because it is an asset used for the benefit of both spouses during their marriage. Ms. Belisle was found to have a one half interest in the matrimonial home. The Court rejected Ms. Belisle’s claim for an unequal division of the property. The Court denied Ms. Belisle’s claim for spousal support and issued a divorce order.

Keywords: trust; matrimonial assets; business asset; matrimonial home; credibility; balance of probabilities Legislation: Matrimonial Property Act , R.S.N.S., 1989, c.275 Cases Considered: THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET.

SUPREME COURT OF NOVA SCOTIA (Family Division) Citation: Belisle v. Belisle, 2013 NSSC 16 Date: 20130124 Docket: 1201-065251 Registry: Halifax Between: Alphonse David Belisle Petitioner and Jacqueline Renee BelisleRespondent Judge: Associate Chief Justice Lawrence I. O’Neil Date of Hearing: September 4 & 5 and December 7, 2012 Counsel: Brian Bailey, counsel for Mr. Belisle Colin Campbell, counsel for Ms. Belisle By the Court : Introduction [ 1 ] This is a divorce proceeding. The matter was before me on September 4 & 5, 2012 for a hearing.

The hearing concluded on December 7, 2012. [ 2 ] The parties married June 10, 1995 and separated July 1, 2006. Mr. Belisle filed the Petition for Divorce on April 12, 2011. An answer was filed May 3, 2011. The parties do not have children. The principal claim in dispute pertains to ownership of a property registered in the name of a third party, Mr. DeBay. [ 3 ] It is alleged by Ms. Belisle that Mr. DeBay executed a Declaration of Trust in favour of Mr. Belisle and thereby declared that he holds the property for Mr. Belisle, whom she says owns 100% of the interest.

She argues that she has, at minimum, a one half interest in the entire property as a consequence. She also argues that there should be an unequal division of the property in her favour and that she should receive an interest greater than 50%. [ 4 ] In response, Mr. Belisle argues that the property is a business asset and therefore not subject to division under the provisions of the Matrimonial Property Act , R.S.N.S. 1989, c.275, hereinafter referred to as the ‘MPA’. He says he only has a one half interest in the property and says it is a business asset held jointly with Mr. DeBay as defined by s.2(

a) of the ‘MPA’. [ 5 ] Alternatively, Mr. Belisle argues that if his interest in the property is a matrimonial asset, he only owns one half of the subject property and it is only this interest that is divisible with Ms. Belisle. The other half belongs to Mr. DeBay. [ 6 ]

Section 16 of the ‘MPA’ provides that either spouse may apply to the Court for the determination of certain property issues between spouses and the ‘MPA’ authorizes the Court to make a range of orders as follows: Determination of question between spouses 16

(1) Either spouse may apply to the court for the determination of any question between the spouses as to (

a) the ownership or right to possession of any particular property; (

b) whether property is a matrimonial asset or a business asset, except where an application has been made and not determined or an order has been made respecting the property under this Act. Powers of court under subsection (1)

(2) Where an application is made under subsection (1), the court may (

a) make a declaration as to the ownership or right of possession in the property; (

b) make a declaration as to whether the property is a matrimonial asset or a business asset; (

c) where the property has been disposed of, order that a spouse pay compensation for the interest of the other spouse;

(

d) order that the property be partitioned or sold; (

e) order that either or both spouses give such security, including a charge on property, that the court orders, for the performance of any order under this Section, and may make such other orders and directions as are ancillary thereto. R.S., c. 275, s. 16. Issues [ 7 ] The Court must answer the following: 1. Did Mr. DeBay and Mr. Belisle both contribute to the purchase price of the subject property? 2. What is the impact of a determination on the source of the funds to purchase the subject property on the ownership of the subject property? 3. Did Mr. DeBay execute the Declaration of Trust dated May 3, 1996?

If so, what is the significance of such a finding? 4. What is the effect of the provisions of the Matrimonial Property Act , R.S.N.S. 1989, c.275 when determining Ms. Belisle’s interest in the subject property? Should there be an unequal division of the parties’ interests in the matrimonial home? 5. Should a divorce order issue? 6. Should spousal support be payable by Mr. Belisle? - evidence of Mr. Belisle, Ms. Belisle and Mr. DeBay [ 8 ] The evidence of Mr. DeBay and Mr. Belisle is that Mr. Belisle agreed to provide one half of the purchase price and that Mr.

DeBay did in fact provide one half of the funds to purchase the property. However, both agree Mr. DeBay alone subsequently entered an agreement to purchase the subject property, retained a lawyer, Mr. Robert Craig, Q.C. to complete the purchase and delivered the necessary funds to effect the purchase. The purchase closed May 3, 1996 and title was taken in Mr. DeBay’s name alone. The property was not made subject to a mortgage. The purchase price of the property was $21,000. [ 9 ] In 2009, Mr. Belisle was sentenced to more than five years in prison. He was released in 2010.

At the time of his evidence he was on parole. He was sentenced for “possession with intent” which the Court understood to mean possession of drugs with the intention to traffic. [ 10 ] When asked to explain why the title would solely be in Mr. DeBay's name, Mr. Belisle indicated that he wanted to ensure, among other things, that Ms. Belisle would not have an interest in the property. Mr. DeBay testified to the same. Neither Mr. Belisle nor Mr. DeBay were persuasive on this point. [ 11 ] Ms. Belisle stated that she is the ex girlfriend of Mr. DeBay.

Her evidence on the timing and circumstances surrounding the purchase of the property is unreliable and inconsistent. She first testified that she learned of the purchase when Mr. Belisle told her. She says she was told of the purchase by Mr. Belisle when she was on a pass from a correctional centre. She initially testified that she was serving time for possession of cocaine. However, this became less clear to her as she testified. [ 12 ] Ms. Belisle could not recall whether she was serving a Federal or Provincial term of imprisonment; the length of the sentence of incarceration or where it was served.

She also testified that she contributed several thousand dollars to the purchase, funds she said the couple received as wedding gifts. Given the unreliability of her evidence, I can not conclude that any of this happened. [ 13 ] I am satisfied on the evidence that sometime after May 3, 1996, perhaps as early as June 1996, Mr. and Mrs. Belisle occupied the property. While they occupied it together; they paid the taxes and insurance on the property and maintained it. In 2005, Mr. Belisle left the property and Ms. Belisle remained in the home. Following Mr. Belisle's departure, Ms.

Belisle continued to pay the costs associated with maintaining the property. Those costs included taxes, insurance and other related maintenance costs which appear to have been minimal. [ 14 ] As stated, the parties separated July 1, 2006. In 2009, Ms. Belisle filed a statutory declaration claiming a matrimonial interest in the subject property (Exhibit #3, p.16). [ 15 ] To support the claim that Mr. Belisle “owned” the property solely, counsel for Ms. Belisle points to a Declaration of Trust purportedly signed by Mr. DeBay on May 3, 1996, the day Mr. DeBay purchased the property.

For convenience, I reproduce the declaration in its entirety (Exhibit #3, p.13): I, DAVID B. DEBAY, OF LEWIS LAKE, IN THE COUNTY OF HANTS, PROVINCE OF NOVA SCOTIA, CONFIRM THAT WHILE TITLE TO THE PREMISES KNOWN AS “THE ISLAND”, LEWIS LAKE, IN THE COUNTY OF HANTS, PROVINCE OF NOVA SCOTIA, HAS BEEN PLACED IN MY NAME BY VIRTUE OF WARRANTY DEED BETWEEN RANDOLPH KARL WEBB AS GRANTOR AND DAVID B.

DEBAY, AS GRANTETE, TITLE IS HELD IN TRUST BENEFICIALLY FOR ALPHONSE DAVID BELISLE OF HALIFAX REGIONAL MUNICIPALITY, PROVINCE OF NOVA SCOTIA, AND I FURTHER UNDERTAKE TO EXECUTE ANY DOCUMENTATION REASONABLY REQUESTED BY THE SAID ALPHONSE DAVID BELISLE, TO CONVEY TITLE INTO HIS NAME IN THE FUTURE. DATED AT SACKVILLE, NOVA SCOTIA, THIS 3RD DAY OF MAY, A.D., 1996, DAVID B. DEBAY [ 16 ] Mr. Campbell, on behalf of Ms. Belisle argues that this document establishes that the property in question is, in fact, wholly owned by Mr. Belisle; that it is a matrimonial home and therefore, equally divisible as a matrimonial asset.

He argues that Mr. DeBay did not

contribute to the cost of acquiring the property and he suggested through his questioning that Mr. Belisle was concerned about the property being identified as the proceeds of crime and subject to forfeiture. It appears to be the theory of Ms. Belisle that the motive for Mr. DeBay holding the property was to avoid subsequent forfeiture of the property to the government, as an asset acquired by Mr. Belisle with the proceeds of crime. Mr. DeBay and Mr. Belisle claim that the property was an investment, each paid half, and each expected the property to appreciate in value and each remains a half owner. Mr.

DeBay said the property was put in his name alone because Mr. Belisle had charges pending. [ 17 ] Mr. DeBay says the document that appears to be a Declaration of Trust was not signed by him; is a document he has never seen before and that the signature at the end of the document is not his signature. [ 18 ] In response , Mr. Campbell on behalf of Ms. Belisle, points to evidence of the solicitor, Mr. Robert Craig, Q.C. who references the Declaration of Trust in a handwritten note dated April 24, 1996 (Exhibit #3, p.12). The note is entitled, phone call with Belisle. Mr.

Campbell argues the note is a direction to a staff member of Mr. Craig's office directing that a letter be prepared confirming title, while in David DeBay's name alone, is held in trust for the benefit of Alphonse David Belisle of Halifax. (Counsel have agreed that both the handwritten note and the Declaration of Trust were in the real estate file of Mr. Craig who handled the real estate purchase on behalf of Mr. DeBay.) [ 19 ] When one looks at the signature, identified as that of Mr. DeBay on other documents in the file, it is very similar to that at the end of the Declaration of Trust. Mr.

DeBay's signature appears at the end of the agreement of Purchase and Sale, for example; it appears on the limited dual agency agreement; it appears on the disclaimer pertaining to the plan of survey and location certificate, which is also dated May 3, 1996; and Mr. DeBay’s signature appears on the direction of Mr. Craig with respect to the disbursement of the proceeds pertaining to the purchase. These documents were all prepared around the same date, i.e. May 3, 1996 and the signatures are similar in appearance, if not identical to that at the end of the Declaration of Trust.

They are all taken from the file of Mr. Craig, the solicitor who represented Mr. DeBay in this transaction. [ 20 ] Mr. DeBay was a compelled witness. Counsel for Ms. Belisle was given an opportunity to call additional evidence in rebuttal, given Mr. DeBay’s evidence for which disclosure was not possible. He did so. [ 21 ] On December 7, 2012 the evidence of two lawyers was offered and the parties proceeded to summation. - evidence of William MacInnes, Q.C. [ 22 ] The evidence of Mr. William MacInnes, Q.C. was tendered by agreement in the form of a letter from Mr. MacInnes, Q.C. addressed to Mr.

Colin Campbell, Ms. Belisle’s counsel. It forms part of Exhibit #5 in this proceeding. [ 23 ] Mr. MacInnes, Q.C. confirms that he was asked by ‘friends of David DeBay’ to assist in the sale of the subject property herein (it appears the contact was in 2009). He agreed to do so. He says he met Mr. DeBay and reviewed the property record available online with him, including the 2009 statutory declaration of Ms. Belisle, in which she claimed a matrimonial interest in the property (Exhibit #3, p.16). [ 24 ] Mr. MacInnes, Q.C. further requested written instructions from Mr. DeBay.

He says he received the same through Mike Goodwin, the real estate agent engaged to sell the property. In furtherance of his instructions from Mr. DeBay, Mr. MacInnes, Q.C. wrote Mr. & Mrs. Belisle by letter dated July 19, 2011 directing both to vacate the property (Exhibit #5, p.3). The text of that letter is as follows: July 19, 2011 Alphonse Belisle 19 Johnson Road East Uniacke, NS B0N 1Z0 Dear Mr. & Mrs. Belisle: Re:Sale of 19 Johnson Road I have been retained by Mr. David Debay and he has instructed me that he is the owner of 19 Johnson Road, Lewis Lake. I am enclosing a copy of the Deed.

Contrary to the Statutory Declaration of Jacqueline declared the 28 th of April, 2009, my client says that the property was not purchased for Alphonse Belisle or Jacqueline Belisle but he agreed to let Belisle’s live at the property in exchange providing the upkeep and pay the taxes on the property. He now wishes to sell the property and requires vacant possession of it. We would therefore ask that make arrangements to vacate the property on or before the August 31 st , 2011.

If you indicate that you have paid for the property kindly provide copies of cancelled cheques, bank accounts from which money was drawn to purchase the property, etc. Yours truly, William L. MacInnes, Q.C.

WLM/scd [ 25 ] At that time, Mr. MacInnes, Q.C. also obtained a copy of Mr. DeBay’s Driver’s License, presumably to confirm the identity of the person with whom he was dealing. A copy of Mr. DeBay’s driver’s license and the letter from the real estate agent are attached to Exhibit #5. [ 26 ] Mr. Campbell offers Exhibit #5 as proof of Mr. DeBay’s dishonesty and untruthful testimony in this proceeding. Mr. DeBay testified that he had never retained Mr. MacInnes, Q.C. to act for him. He did say he consulted Mr. MacInnes, Q.C. He further testified that he and Mr.

Belisle purchased the property jointly, as equal partners. [ 27 ] Mr. Bailey, on behalf of Mr. Belisle points out that the document from the real estate agent was not shown to Mr. DeBay when he testified. (It became available after Mr. Belisle was released as a witness.) Mr. Bailey also observes that the authenticity of the letter from the real estate agent is not established as a consequence. Mr. Goodwin was not a witness. - evidence of Robert Cragg, Q.C. [ 28 ] Mr. Cragg, Q.C. was called to confirm and to explain his involvement in the purchase of the subject lands by Mr. DeBay in 1996. [ 29 ] Mr.

Cragg, Q.C. confirmed his firm acted for the purchaser of the subject property in 1996. He confirmed he had no specific memory of the transaction and his evidence reflected his

interpretation of the file material (Exhibit #3) and his professional practices at the time of the purchase. Mr. Cragg, Q.C. confirmed his client was Mr. DeBay at the time. [ 30 ] Mr. Cragg’s file contained a copy of the Declaration of Trust allegedly signed by Mr. DeBay (Exhibit #3, p.13) but not the original. His file also contained the handwritten note (Exhibit #3, p.12) purportedly a note made in response to a call from Mr. Belisle requesting that the Declaration of Trust be prepared or that it was being prepared. The true meaning of the note of the call is unknown.

However, it does confirm a discussion with an individual about there being or the need for there to be a Declaration of Trust in Mr. Belisle’s favour. [ 31 ] Mr. Cragg, Q.C. confirmed that the so called Declaration of Trust of Mr. DeBay was not prepared by him or in his office. He pointed to the grammatical and spelling errors in the document and the fact that the font of the text was different than that which his equipment made at the time. I am satisfied the document was not made by Mr. Cragg, Q.C. or his staff. [ 32 ] Mr.

Cragg, Q.C. was clear that his note following a phone call (Exhibit #3, p.12) was not a record of instruction, merely a record of a conversation. As he explained, Mr. DeBay was his client and the only person he would have taken instructions from. He agreed the note appeared to record a message following a conversation with Mr. Belisle. However, he had no independent recollection of the call nor could he confirm taking any action as a consequence of the call. [ 33 ] Mr. Cragg, Q.C. testified that after nine years all trust records pertaining to his work are destroyed, including the trust record retained in a file.

For that reason, he has no way of knowing the source of the funds for the purchase of the subject land nor how those funds were disbursed. Issue One: Did Mr. DeBay and Mr. Belisle both contribute to the purchase price of the subject property? [ 34 ] I can not accept the evidence of Mr. DeBay as to the nature of his role in the purchase of the subject property. Mr. DeBay cooperated with Mr. Belisle and held the legal title in his name. Mr. Belisle provided the funds for him to purchase the property, not one half the funds as each testified to. [ 35 ] This conclusion is consistent with Mr.

Belisle’s admitted intention to avoid having the registered title in his name. He says he wanted to avoid having title in his name to protect himself from a matrimonial claim by Ms. Belisle. I can not conclude that Mr. Belisle wanted to avoid forfeiture of the property as property gained with the proceeds of crime. Regardless of Mr. Belisle’s motivation, he confirms that Mr. DeBay was a holder of Mr. Belisle’s interest in the property, whatever that interest was. Mr. DeBay’s role as a trustee for Mr. Belisle is therefore confirmed by both. [ 36 ] Mr. DeBay did retain Mr.

MacInnes, Q.C. as described in the evidence of Mr. MacInnes, Q.C. Mr. DeBay’s outright denial of the same while under oath makes all of his evidence suspect. He was not credible. Mr. DeBay acted throughout as an agent for Mr. Belisle. Mr. Belisle is aware of Mr. DeBay’s dishonesty and seeks to profit from it. This calls Mr. Belisle’s credibility into question. [ 37 ] Following his alleged purchase of the property in 1996, Mr. DeBay did not demonstrate any interest in the subject property other than in 2009 when he retained Mr. MacInnes, Q.C. I infer he acted at the behest of Mr. Belisle on both occasions.

Issue Two: What is the impact of a determination on the source of the funds to purchase the subject property on ownership of the subject property? [ 38 ] For the reasons given supra, I am satisfied on a balance of probabilities that Mr. Belisle is the beneficial owner of the entire subject property. Mr. DeBay was a ‘front man’ for the purchase on behalf of Mr. Belisle. Issue Three: Did Mr. DeBay execute the Declaration of Trust dated May 3, 1996? If so, what is the significance of such a finding? [ 39 ] I am satisfied on a balance of probabilities that Mr.

DeBay executed the Declaration of Trust dated May 3, 1996. Were I required to satisfy myself beyond a reasonable doubt of this conclusion, I might not do so. [ 40 ] Herein, my conclusion is supported by the evidence of both Mr. DeBay and Mr. Belisle that Mr. DeBay held Mr. Belisle’s one half interest in trust. Both admit to Mr. DeBay’s role as a trustee to this extent. [ 41 ] I find that the signature purportedly that of Mr. DeBay at the end of the Declaration of Trust is that of Mr. DeBay.

A comparison to his known signature on other documents associated with the property purchase on May 3, 1996 reveals a compelling resemblance to that

at the end of the Declaration of Trust. [ 42 ] Finally, the note of Mr. Cragg, Q.C., made following or coincidental with a telephone conversation with a person identified by the caller as Mr. Belisle, references the preparation of a Declaration of Trust in favour of Mr. Belisle. I am satisfied the caller was Mr. Belisle. The call reveals Mr. Belisle’s knowledge of and involvement in the purchase of the subject property. Were the call made by Mr. DeBay, he would have no reason to conceal his identity. The other interested party in this transaction was Mr.

Belisle. [ 43 ] I am satisfied that as the Declaration of Trust declares, the ownership interest in this property was held by Mr. DeBay for Mr. Belisle. For whatever reason, Mr. DeBay, a friend of Mr. Belisle agreed to this arrangement. I am satisfied that he was a front for Mr. Belisle in this transaction. Mr. DeBay had no subsequent interest in the property as evidenced by his not visiting the property, maintaining it or the like. The Declaration of Trust is definitive on this point. [ 44 ] I am satisfied that Mr. Belisle is the beneficial owner of the entire property. Mr.

DeBay does not have a beneficial interest in the property. Issue Four: What is the effect of the provisions of the Matrimonial Property Act , R.S.N.S. 1989, c.275 on determining Ms. Belisle’s interest in the subject property? Should there be an unequal division of the parties’ interest in the matrimonial home? [ 45 ] The question then becomes what is the effect of the Declaration of Trust in shielding Mr. Belisle's beneficial interest in the matrimonial home from the claim of Ms. Belisle? [ 46 ] I am satisfied on a balance of probabilities that the subject property is a matrimonial home regardless of whether Mr.

Belisle’s interest is a one half interest as he and Mr. DeBay testified to or ownership of the entire beneficial interest. [ 47 ] The ‘MPA’ at s.3(1) and s.10(1)(

a) provide: "matrimonial home" defined 3

(1) In this Act, "matrimonial home" means the dwelling and real property occupied by a person and that persons spouse as their family residence and in which either or both of them have a property interest other than a leasehold interest. . . . . . Powers of court 10

(1) The court may by order, on the application of a spouse or any other person having an interest in property, (

a) determine if all or part of the property is a matrimonial home; [ 48 ] The subject matrimonial home is a matrimonial asset unless it is excepted as a matrimonial asset pursuant to s.4(1) of the ‘MPA’ On the facts it is argued on behalf of Mr. Belisle that the property is not a matrimonial asset because it is a business asset and excepted by s.4(1)(e). [ 49 ] Although there is much discussion of the Declaration of Trust, counsel did not make submissions on what effect, if any, a finding that the property was held in trust by Mr. DeBay for the benefit of Mr.

Belisle would have on its status as a matrimonial asset given s.4(1)(a). [ 50 ] Matrimonial assets are defined by the ‘MPA’ as follows: "matrimonial assets" defined 4

(1) In this Act, "matrimonial assets" means the matrimonial home or homes and all other real and personal property acquired by either or both spouses before or during their marriage, with the exception of (

a) gifts, inheritances, trusts or settlements received by one spouse from a person other than the other spouse except to the extent to which they are used for the benefit of both spouses or their children; (

b) an award or settlement of damages in court in favour of one spouse; (

c) money paid or payable to one spouse under an insurance policy; (

d) reasonable personal effects of one spouse; (

e) business assets; (

f) property exempted under a marriage contract or separation agreement; (

g) real and personal property acquired after separation unless the spouses resume cohabitation. . . . . . [ 51 ] The wording of s.4(1) forces one to ask whether a matrimonial home is subject to the exceptions that can result in real and personal property acquired by either or both spouses before or during the marriage, nevertheless not being a matrimonial asset(s). Note that the language of 4(1) links matrimonial home or homes to all other real and personal property with the conjunction “and”. I therefore conclude that the classification of a matrimonial home as a matrimonial asset, is subject to exceptions enumerated in s.4(1)(a) - (g).

[ 52 ] I will therefore examine whether the matrimonial home herein is subject to either of the exceptions argued on behalf of Mr. Belisle, i.e. that it is subject to a trust (s.4(1)(a)) and that it is a business asset (s.4(1)(e)) and therefore not divisible as a matrimonial asset. [ 53 ] I have concluded that the matrimonial home is not excluded as a business asset as per s.4(1)(

a) of the ‘MPA’. Nor can the trust exception of s.4(1)(

a) result in this matrimonial home not being a matrimonial asset. I have concluded that a bona fide trust was not established by Mr. DeBay for the benefit of Mr. Belisle. Furthermore, business and trust assets “used for the benefit of both spouses or their children” are not excepted as matrimonial assets. [ 54 ] The ‘MPA’ provides for an unequal division of matrimonial property in certain circumstances. Mr. Campbell, on behalf of Ms. Belisle, argues that Mr. Belisle’s deceit in this proceeding is a basis for the Court to order unequal division as provided for by s.13 of the ‘MPA’. [ 55 ] Sections 12(1) and 13 of the ‘MPA’ provide as follows: Application for division of matrimonial assets 12

(1) Where (

a) a petition for divorce is filed; (

b) an application is filed for a declaration of nullity; (

c) the spouses have been living separate and apart and there is no reasonable prospect of the resumption of cohabitation; or (

d) one of the spouses has died, either spouse is entitled to apply to the court to have the matrimonial assets divided in equal shares, notwithstanding the ownership of these assets, and the court may order such a division. . . . . . Factors considered on division 13 Upon an application pursuant to

Section 12, the court may make a division of matrimonial assets that is not equal or may make a division of property that is not a matrimonial asset, where the court is satisfied that the division of matrimonial assets in equal shares would be unfair or unconscionable taking into account the following factors: (

a) the unreasonable impoverishment by either spouse of the matrimonial assets; (

b) the amount of the debts and liabilities of each spouse and the circumstances in which they were incurred; (

c) a marriage contract or separation agreement between the spouses; (

d) the length of time that the spouses have cohabited with each other during their marriage; (

e) the date and manner of acquisition of the assets; (

f) the effect of the assumption by one spouse of any housekeeping, child care or other domestic responsibilities for the family on the ability of the other spouse to acquire, manage, maintain, operate or improve a business asset; (

g) the contribution by one spouse to the education or career potential of the other spouse; (

h) the needs of a child who has not attained the age of majority; (

i) the contribution made by each spouse to the marriage and to the welfare of the family, including any contribution made as a homemaker or parent; (

j) whether the value of the assets substantially appreciated during the marriage; (

k) the proceeds of an insurance policy, or an award of damages in tort, intended to represent compensation for physical injuries or the cost of future maintenance of the injured spouse; (

l) the value to either spouse of any pension or other benefit which, by reason of the termination of the marriage relationship, that party will lose the chance of acquiring; (

m) all taxation consequences of the division of matrimonial assets. R.S., c. 275, s. 13; revision corrected. [ 56 ] I find no basis for ordering an unequal division of this property Issue Five: Should a divorce order issue? [ 57 ] The parties were married, they have been separated since 2006; there is no possibility of reconciliation; the grounds for issuance of a divorce order on the basis of a permanent breakdown in the relationship are established and there are no bars to the issuance of the divorce order. A divorce order will therefore issue when presented.

Issue Six: Should spousal support be payable by Mr. Belisle? [ 58 ] The basis for a finding that support should be payable by one spouse to another was discussed in detail in Burchill v. Savoie , 2008 NSSC 307 . I incorporate that discussion into this decision. [ 59 ] The Court does not have an evidentiary basis for finding an obligation for Mr. Belisle to pay spousal support to Ms. Belisle on any of the three basis identified by the caselaw. Her claim was not seriously advanced. [ 60 ] Ms. Belisle’s claim for spousal support is dismissed. Conclusion [ 61 ] The subject property was purchased by Mr.

DeBay on behalf of Mr. Belisle. Mr. DeBay acquired and continues to hold legal title to the property in his name. Mr. DeBay executed a Declaration of Trust declaring the same on the day legal title to the property was taken in Mr. DeBay’s name. Mr.

Belisle paid for the property solely. [ 62 ] The property is a matrimonial home as defined by s.3(1) of the ‘MPA’ (supra at paragraph 46). [ 63 ] The matrimonial home is also a matrimonial asset as defined by s.4(1) of the ‘MPA’ given that it does not fall within any of the exceptions of s.4(1) of the ‘MPA’. [ 64 ] The property is equally divisible as between the parties as provided by s.12(1) of the ‘MPA’. The Court does not order an unequal division as provided by s.13 of the ‘MPA’. [ 65 ] A divorce order will issue. [ 66 ] No spousal support is payable by either party. [ 67 ] Sections 10(1)(a)(b)(c) & (

d) and 11 of the ‘MPA’ provide: Powers of court 10

(1) The court may by order, on the application of a spouse or any other person having an interest in property, . . . . . (

a) determine if all or part of the property is a matrimonial home; (

b) authorize the disposition or encumbrance of a matrimonial home where the spouse whose consent is necessary (

i) cannot be found or is not available, (ii) is not capable of giving consent, or (iii) is unreasonably withholding consent, subject to such terms and conditions as the court considers appropriate; (

c) dispense with the giving of a notice to a spouse required by this Act; (

d) direct the setting aside of any disposition or encumbrance of an interest in a matrimonial home and the revesting of the interest or any part of the interest upon such terms and subject to such conditions as the court considers appropriate. . . . . . Powers of court respecting matrimonial home 11

(1) Notwithstanding the ownership of a matrimonial home and its contents, the court may by order, on the application of a spouse, (

a) direct that one spouse be given exclusive possession of a matrimonial home, or part thereof, for life or for such lesser period as the court directs and release any other property that is a matrimonial home from the application of this Act; (

b) direct the spouse to whom exclusive possession is given under clause (

a) to pay such periodic or other payments to the other spouse as is prescribed in the order; (

c) direct that the contents of a matrimonial home that are matrimonial assets, or any part thereof, remain in the home for the use of the person given possession; (

d) determine the obligation to repair and maintain the matrimonial home and to pay for other liabilities arising in respect of the matrimonial home; (

e) authorize the disposition or encumbrance of the interest of a spouse in a matrimonial home who has not been granted exclusive possession; (

f) where a false affidavit is made respecting a matrimonial home or where a matrimonial home or any interest therein is disposed of contrary to the provisions of this Act, direct

(

i) the person who made the false affidavit, (ii) any person who knew at the time the affidavit was false and thereafter conveyed the property, or (iii) any person who improperly disposed of the matrimonial home or interest therein, to substitute other real property for the matrimonial home or to set aside money or security to stand in place of the matrimonial home, subject to such terms and conditions as the court considers appropriate. [ 68 ] As noted supra at paragraph 67, s.10 and 11 of the ‘MPA’ provided the Court with a range of powers when called upon to determine interests in a matrimonial home.

The Court’s powers when considering an application for division of matrimonial assets, including the matrimonial home, are as described in s.15 of the ‘MPA’: Powers of court upon division 15. On an application for the division of matrimonial assets, the court may order (

a) that the title to any specified property granted by the court to a spouse be transferred to or held in trust for that spouse for such period, or absolutely, as the court may decide; (

b) the partition or sale of any property; (

c) that payment be made out of the proceeds of a sale ordered under clause (

b) to one or both spouses, and the amount thereof; (

d) that any property forming part of the share of either or both spouses be transferred to or held in trust for a child to whom a spouse must provide support; (

e) that either or both spouses give such security, including a charge on property, that the court orders, for the performance of any order made under this Section; (

f) that one spouse pay to the other spouse such amount as is set out in the order for the purpose of providing for the division of the property, and make such other orders and directions as are ancillary thereto. [ 69 ] The Court’s recourse to a remedy for Ms. Belisle is made complicated by Mr. DeBay’s one half ownership interest in the matrimonial home and his legal title to the entire property. Mr. DeBay was not a party to this proceeding. As stated, he was a compelled witness. He did not have an opportunity to challenge the position of the parties.

I am not prepared to make an order that is adverse to his interests or that might impact on his ownership interest in the subject property. He says he has a one half interest. My order will preserve that interest. [ 70 ] The remedy must be one that recognizes Ms. Belisle’s entitlement to a one half interest in the subject property. [ 71 ] Ordering Mr. Belisle to pay Ms. Belisle an amount equivalent to one half the value of the property is unlikely to be of significant value to her. I have outlined the extent to which Mr. Belisle and Mr. DeBay will go to defeat Ms. Belisle’s interest in the property.

There is no reason to believe Mr. Belisle will cooperate in having Ms. Belisle realize her interest. I will invite counsel to make submissions on the appropriate remedy given my conclusions. A recommendation that affects the property interest of Mr. DeBay should indicate whether Mr. DeBay is in agreement or not. ACJ