Gates v. Gates, 2016 NSSC 49

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Gates v. Gates, 2016, NSCC 49 Date: 2016-03-09 Docket: 1201-068371 Registry: Halifax Between: Mary Gates Petitioner v. Donald Gates Respondent LIBRARY HEADING Judge: The Honourable Justice R. Lester Jesudason Heard: October 7, 2015 and November 12, 2015 Final Written Submissions: March 8, 2016

Summary: Proceeding for divorce seeking property division and spousal support. Key words: Divorce, division of assets and debts, unequal property division, spousal support (compensatory, non- compensatory and contractual), Spousal Support Advisory Guidelines, security for spousal support. Legislation: Divorce Act , R.S.C. 1985 (2 nd Supp.), c. 3 Matrimonial Property Act , R.S.N.S. 1989, c. 275 THIS INFORMATION SHEET DOESN’T 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: Gates v. Gates , 2016 NSSC 49 Date: 03/09/2016 Docket: 1201-068371 Registry: Halifax Between: Mary Gates Petitioner v. Donald Gates Respondent Judge: The Honourable Justice R. Lester Jesudason Heard: Final Written Submission: Counsel: October 7 and November 12, 2015 March 7, 2016 Shelley Hounsell-Gray, for the Petitioner Kelsey Hudson, for the Respondent BY THE COURT: INTRODUCTION [ 1 ] This matter is a proceeding under the Divorce Act , R.S.C. 1985 (2 nd Supp.), c. 3.

The Petitioner, Mary Louise Gates, and the Respondent, Donald James Gates, are 52 years old and 51 years old, respectively. They were in a relationship of over thirty years stemming back to when they first started dating in their late teens. [ 2 ] The parties moved in together shortly after high school and married on September 14, 2002. They raised two children, a son and a daughter, both of whom are now adults and are employed outside of the province. [ 3 ] During their marriage, Ms. Gates largely stayed home to care for the parties’ children while Mr. Gates worked outside the home. Ms.

Gates had only limited employment outside the home which was often related to a child-caring role (e.g. lunch monitor at the children’s school). [ 4 ] On June 1, 2012, the parties separated. Ms. Gates subsequently filed a Petition for Divorce on December 10, 2014, which was amended on December 18, 2014. Mr. Gates filed an Answer on September 11, 2015.

[5] The issues which I have been asked to deal with are the granting of the divorce, how the parties’ assets and debts should bedivided and spousal support. ISSUE 1: DIVORCE [6] The parties agree that all the jurisdictional and procedural requirements to grant a divorce have been met. The evidenceestablishes that the parties have been living separate and apart for more than three years and that there has been a breakdown of themarriage with no possibility of reconciliation. I therefore grant their divorce.

ISSUE 2: PROPERTY DIVISION [7] The Matrimonial Property Act, R.S.N.S. 1989, c. 275, (“MPA”) provides a four-step process with respect to a division ofassets. The first step is to identify the assets. The second is to classify whether the assets are matrimonial assets or assets exempt fromdivision pursuant to s. 4 of the MPA. The third step is to value the assets which are to be divided. The final step is to decide how theassets are to be divided.

There is a presumption that matrimonial assets are to be divided equally (s. 12 of the MPA) although, in limitedcircumstances, s. 13 of the MPA allows for an unequal division of matrimonial assets and/or a division of non-matrimonial assets. Steps One and Two: Identification and Classification [8] The parties agree that the following items are matrimonial assets:

a) Matrimonial home located at 3512 Highway 7, Lake Echo, Nova Scotia;

b) Mr. Gates’ pension with his Painters’ Union, Local 39 (“Painters’ Union”);

c) Mr. Gates’ pension with London Life; d) 1996 Honda Civic; e) 1994 Ford Mustang; and f) 1999 Dodge RAM Truck. Step Three: Valuation [9] The MPA provides little guidance on valuing assets. For example, it does not specify a valuation date. Rather, the valuation dateis left to the discretion of the trial judge. However, the approach which has generally been followed by the courts is as outlined byJustice Campbell in Simmons v. Simmons, (NS SF), 2001 NSSF 35.

Justice Campbell suggested that one shouldapply the separation date values for assets which “tend to be consumed by actual usage or whose value has been earned or accrued byreference to the passage of time” and value other assets as of the date when the spouses do their accounting (Simmons, at para. 33). Justice Campbell’s approach in Simmons has been described favourably by our Court of Appeal in Moore, 2003 NSCA 116 at para. 24and Morash, 2004 NSCA 20 at para. 21. [10] In the present case, the parties agreed that the following values and/or valuation dates should be used for each of the matrimonialassets:

a) Matrimonial home – the net proceeds as of the date of its future sale;

b) Mr. Gates’ pension with his Painters’ Union – the value as of the date of separation (June 1, 2012);

c) Mr. Gates’ pension with London Life – the value as of the date of separation; d) 1996 Honda Civic – its value should be $400 (i.e. the amount paid by Mr. Gates’ current partner to Ms. Gates for it); e) 1994 Ford Mustang – the value as of the date of separation; and f) 1999 Dodge RAM Truck - $1200 (i.e. the amount Mr. Gates testified that he sold the vehicle for). [ 11 ] I accept that, in the circumstances, the above values and valuation dates agreed to by the parties are reasonable and consistent with the approach in Simmons . Step Four: Division: [ 12 ] I will now address the issue of how the various matrimonial assets should be divided.

a) Matrimonial home:

i) Listing for Sale [ 13 ] The parties have agreed that the matrimonial home will be listed for sale. Mr. Gates requested that the home be listed no later than by March 1, 2016, to allow him time to prepare it for sale. He suggested that some minor work had to be done on the house to make it more marketable. [ 14 ] Ms. Gates, on the other hand, was anxious to have the house listed for sale as quickly as possible.

She requested that it be listed no later than by February 1, 2016. [ 15 ] On January 21, 2016, I sent a letter to the parties’ counsel advising that I had determined that that the matrimonial home should be listed for sale by no later than March 1, 2016, unless otherwise agreed to by the parties. I indicated that I would provide my reasons for this determination in my written decision. [ 16 ] In arriving at the March 1, 2016, listing date, I accepted Mr. Gates’ position that such a date would give him the time to ensure that the home is more marketable. I also believe that giving Mr.

Gates the extra month to get the home ready would not be unduly prejudicial to Ms. Gates given that the extra month occurs during the winter which, in all likelihood, may be a slower market time for selling property than in the spring. Finally, I believe that, by giving Mr. Gates the extra month or so he needed to do the minor work to improve the overall attractiveness and value of the home, this would potentially benefit both him and Ms. Gates. ii) Listing Price and Proceeds from Sale [ 17 ] While the parties were unable to agree on the listing date, they agreed that, they would seek the opinion of Mr.

Gates’ realtor, provided he was properly licensed, as to the fair market value and suitable listing price for the home. It was also agreed that, should Ms.

Gates not be satisfied with that realtor’s opinion, she would have the right to seek an opinion from her own realtor and, if necessary, return to me for a determination of the listing price. [ 18 ] The parties further agreed that, pending my determination on how the proceeds of the matrimonial home should be divided, the “net proceeds” of the home would be held in trust. “Net proceeds” would be the amount from the sale of the matrimonial home less the outstanding mortgage, real estate commission, reasonable legal fees and the usual adjustments.

[19] I therefore order that the matrimonial home be listed and sold on the terms agreed to by the parties and reserve jurisdiction to dealwith any issues which arise with respect to the listing and sale of the matrimonial home. iii) Division of Net Proceeds [20] Mr. Gates requests that I divide the net proceeds from the sale of the matrimonial home unequally in his favour. Ms. Gates, on theother hand, requests that the net proceeds be divided equally. [21] As noted earlier, the starting presumption under s. 12 of the MPA is that all matrimonial assets are to be divided equally.

However,s. 13 of the MPA allows me to make an unequal division of matrimonial assets where I am satisfied that an equal division would be“unfair and unconscionable” taking into account the factors listed in that section. [22] In Bennett v. Bennett, (NSCA), Justice Chipman clarified that it must be shown that an equal division would beunfair or unconscionable, not necessarily both. [23] A party seeking an unequal division of matrimonial assets must produce “strong evidence” that an equal division is unfair orunconscionable. For example, in Harwood v.

Thomas (1981), (NS CA), 45 N.S.R. (2d) 414 (A.D.), Chief JusticeMacKeigan, speaking for a unanimous Court, stated at paragraph 7: “Equal division of the matrimonial assets, an entitlement proclaimed by the

preamble to the Act and prescribed by s. 12 should normallybe refused only where the spouse claiming a larger share produces strong evidence showing that in all circumstances equal divisionwould be clearly unfair and unconscionable on a broad view of all relevant factors.

That initial decision is whether, broadly speaking,equality would be clearly unfair…Only when the judge in his [her] discretion concludes that equal division would be unfair is he [she]called upon to determine exactly what unequal division might be made.” [Emphasis added.] [24] Similarly, in Young, 2003 NSCA 63, Justice Bateman stated at paragraph 15: The inquiry under s. 13 is broader than a straight forward measuring of contribution. The predominant concept under the MatrimonialProperty Act is the recognition of marriage as a partnership with each party contributing in different ways.

A weighing of the respectivecontributions of the parties to the acquisition of the matrimonial assets, save in unusual circumstances, is to be avoided. Since theintroduction of the Matrimonial Property Act, it has been repeatedly stressed by this Court, that matrimonial assets will be divided otherthan equally, only where there is convincing evidence that an equal division would be unfair or unconscionable. [Emphasis added.] [25] Mr. Gates argues that he should be entitled to retain most or all of the net proceeds from the sale of the matrimonial homeprimarily for the following reasons:

i) he paid off various matrimonial debts; ii) he has paid all the expenses for the home afterseparation; and iii) the couple’s then 16 year old son lived with him after separation without any financial contribution from Ms. Gates. [26] I will address the issue of the matrimonial debts as it relates to the division of the net proceeds from the sale of matrimonial homelater on herein. However, with respect to Mr.

Gates’ other two arguments, I do not find them to be persuasive or meeting the thresholdof providing “strong evidence” that, in all the circumstances, an equal division of the net proceeds from the sale of the matrimonial homewould be unfair or unconscionable. I conclude this for several reasons. [27] First, the two arguments raised by Mr. Gates do not appear to relate to any factor under s. 13 of the MPA. Indeed, no suchconnection was suggested by Mr. Gates during the trial. Notwithstanding this, it may be possible to argue that, to the extent Mr.

Gatesdid not receive any child support for the couple’s then 16 year old son after the time of separation, this could be considered in relation tos. 13(h) (i.e. the needs of a child who has not attained the age of majority). [28] Even if I was to consider that argument, I do not find it persuasive. In my view, if Mr. Gates wished to bring a claim for childsupport for the relatively short period of time his now adult son lived with him following the couple’s separation, he could have done so

at any time before the trial instead of using this now as a basis for a potential unequal division of the proceeds from the sale of thematrimonial home. [29] Second, even if I was inclined to accept Mr. Gates’ arguments, he has not provided me with any reliable evidence upon which toquantify these alleged financial contributions/burdens. Thus, in the absence of any reliable evidence on these amounts, I conclude it isneither unfair or unconscionable to depart from an equal division of the net proceeds from the sale of the matrimonial home. [30] Third, while it may be true that Mr.

Gates has paid all the expenses for the matrimonial home after the parties separated in June2012, he has also has received the benefit of living in the home during this entire time. Ms. Gates, on the other hand, has had to findalternative accommodations at her own cost, or by depending on the financial assistance of others. [31] Finally, it is also worth noting that, until fairly shortly before the trial, Mr. Gates had steadfastly refused Ms. Gates’ request that thehome be listed for sale on the basis that he wished to keep it for himself.

Thus, to the extent he wished to not list the home for sale untilrecently, and has had the benefit of living there from the date of separation to the present time, I conclude that his payment of theexpenses associated with the home do not give rise to any conclusion that it would be unfair or unconscionable to equally divide the netproceeds from its sale. iv) Matrimonial Debts [32] I now turn to Mr.

Gates’ remaining argument that he should be entitled to an unequal division of the net proceeds from the sale ofthe matrimonial home on account of his paying off various “matrimonial debts”. [33] Before I examine the specific debts he relies upon, I wish to make a few preliminary observations about how debts have beentreated in the context of a division of matrimonial assets. [34] First, the MPA does not contain any definition for so-called “matrimonial debts”.

However, in determining whether or not a debt is“matrimonial”, I should consider whether it was incurred for the benefit of the family, whether it is an ordinary household debt, and, ifthe debt arose after the couple separated, whether it was necessary to meet basic living needs or to preserve matrimonial assets. I shouldalso consider whether the debt is capable of legal enforcement (Bailey v. Bailey, (NSSC), Ellis v. Ellis, 1999 NSCA31 and Rossiter-Forrest v.

Forrest (1994), (NS SC), 129 N.S.R. (2d) 130 (NSSC). [35] Second, the party seeking to have a debt classified as “matrimonial” bears the burden of proof to establish same (Abbott v. Abbott,2002 NSSF 39). [36] Third, while s. 12(1) of the MPA provides that matrimonial assets are to be divided equally notwithstanding their ownership, theMPA does not provide for similar treatment of debts. The only reference to dividing debts under the MPA is in s. 13(

b) which providesthat the court may unequally divide matrimonial assets where to do otherwise would be unfair or unconscionable having regard to “theamount of debts and liabilities of each spouse and the circumstances in which they were incurred.” [37] In light of the fact that the MPA does not specifically provide how matrimonial debts are to be divided, decisions from this Courthave adopted slightly differing approaches.

For example, some decisions have suggested that the words “matrimonial assets”, as used ins. 12(1) of the MPA, should be interpreted as referring to the “net” matrimonial assets after deducting the debts associated with the assets(e.g. Larue v. Larue, 2001 NSSF). Others have adopted the approach that unsecured matrimonial debts should be considered in thecontext of s. 13(

b) such that they could justify an unequal division where an equal division of matrimonial assets would be unfair orunconscionable (e.g. McCrate v. McCrate, 2016 NSSC 6). [38] Irrespective of which approach one applies, there is no automatic equal sharing of matrimonial debts. For example, in Cameron, (NS S.C.), affirmed at Cameron, 1996 NSCA 86 , (NS C.A.), Justice Goodfellow statedin para. 25: …The fact that an indebtedness may meet the test of being labelled a “matrimonial indebtedness” does not automatically result in a

sharing of that indebtedness. That determination must be made on a determination of whether or not the division of matrimonial assets in equal shares would be unfair or unconscionable. In most conceivable situations fairness and conscience dictate a sharing of matrimonial indebtedness. [Emphasis added.] [ 39 ] Mr. Gates argues that he should be entitled to an unequal division from the net proceeds from the sale of the matrimonial home on account of three debts which he was responsible for at the time of separation (i.e.

June 1, 2012), namely, property taxes, a Nova Scotia Power bill and a Bell Aliant telephone bill. [ 40 ] Ms. Gates, while acknowledging that these debts could be considered “matrimonial debts”, argues that it would not be appropriate to divide them between the parties if the debts went into collection and were not being paid. Her counsel also suggested, in closing oral submissions, that there was not sufficient proof of the amounts of the debts to justify their division. [ 41 ] Keeping in mind the principles from the authorities I have canvassed above, I find that Mr.

Gates has met the burden of establishing that these debts should be considered matrimonial debts. Irrespective of whose name those debts were in, I find that they were incurred for the benefit of the family and, in the case of the property taxes, they were also incurred for the benefit of preserving the matrimonial home. Furthermore, as stated in the

preamble to the MPA , “household management and financial support are the joint responsibilities of the spouses”. In my view, the debts in question would all be incurred as part of the couple’s household management and financial support. [ 42 ] In making the determination that the debts are matrimonial, I reject Ms. Gates’ argument that the debts somehow ceased to be so simply on account of the fact that they may have gone into collection.

All this means is that the creditors may be able to obtain a judgement on account of the fact that the debts were not fully paid such that they may become “secured debts” as opposed to being “unsecured debts”. It does not, in my view, somehow change the debts from being “matrimonial” to “non-matrimonial” in nature. [ 43 ] I also conclude that the debts should be divided equally as of the date of separation and that doing so would not be unfair or unconscionable.

My difficulty, however, lies in accurately valuing those three debts as of the date of separation. [ 44 ] In his Sworn Statement of Property dated January 8, 2015 (Exhibit 11) Mr. Gates indicates that amounts owing for these debts as of the date of separation were $3,976 for the property taxes, $2,500 for the NSP bill, and $2,000 for the Bell Aliant telephone bill. He acknowledges that these amounts were “estimates” and that he has not kept any specific documentation in relation to same. [ 45 ] Mr. Gates provided some further details with respect to the debts in his Affidavit of January 8, 2015 (Exhibit 12).

For example, with respect to the NSP bill, he indicates that in March 2012, he and Ms. Gates could no longer afford to pay the electricity bill and had their power cut off. He further indicates that, at the time the power was disconnected, the couple owed approximately $2,500 and that the bill has been collecting interest since that time and is currently in collections (Exhibit 12, Paragraphs 13-14). [ 46 ] With respect to the Bell Aliant bill, Mr. Gates indicates that, in or around 2008, the couple had a telephone and cell phone bill which they could not pay in the amount of approximately $2,000.

He was unable to pay that bill and it also went to collections (Exhibit 12, Paragraph 16). [ 47 ] I have some difficulty with the fact that Mr. Gates has not provided me with any specific documentation which clearly shows the amounts of the debts as of the date of separation. Neither Mr. Gates nor his counsel suggested that such records were somehow not obtainable and, when I put this concern to his counsel during her closing oral submissions, she suggested that I should nevertheless accept Mr. Gates’ evidence on the amounts of the debts.

With respect, I am unwilling to simply do so when, even by his evidence, he acknowledges that the amounts he outlined are merely his “estimates”. [ 48 ] On the other hand, I note that Ms. Gates did not refute these debts in her Affidavit filed on July 31, 2015 (Exhibit 5). Furthermore, Mr. Gates’ evidence with respect to the debts which were owing as of the date of separation largely went unchallenged during his cross- examination at the trial. Rather, as noted earlier, Ms.

Gates’ position largely centered on the argument that the debts ceased to be matrimonial on account of the fact that they went into collections.

[ 49 ] Keeping in mind the above, I am prepared to assign a value of $5,000 to the three matrimonial debts as of the date of separation. I recognize that this is somewhat of an arbitrary figure but believe it is the fairest number to assign in all the circumstances. Thus, to the extent I have concluded that Ms. Gates should be responsible equally for these debts, I order that she pay Mr. Gates an additional $2,500 from her share of the net proceeds from the sale of the matrimonial home. [ 50 ] I also indicate that I have factored the $2,500 payment from Ms. Gates to Mr.

Gates when I consider his means and ability to pay spousal support to Ms. Gates later herein. Thus, should this amount later be disallowed for any reason, I reserve the right to revisit the issue of spousal support without requiring Mr. Gates to demonstrate any further material change in circumstances.

b) Mr. Gates’ Pensions [ 51 ] As noted earlier, Mr. Gates has two pensions, one of which is with his Painters’ Union and the other with London Life. [ 52 ] Mr. Gates, while acknowledging that both his pensions are matrimonial assets, requests that he be able to fully retain both pensions without being divided on account of his “lack of savings”. Ms. Gates, on the other hand, requests that the pensions be divided equally at source.

Both parties agree that, if I order a division of the pensions, they should be divided as of the date of separation pursuant to the applicable legislation. [ 53 ] After considering the evidence and the positions of the parties, I conclude that, unless the parties agree otherwise, the pensions should be divided equally as of the date of separation (i.e. June 1, 2012). I find that such a division would not be unfair or unconscionable requiring an unequal division pursuant to s. 13 of the MPA .

To the contrary, given that the parties had a relationship of over 30 years, I conclude it is entirely fair and conscionable for the pensions to be divided equally as of the date of separation. Indeed, while it may be true that Mr. Gates has a “lack of savings” from the marriage, the same can be said of Ms. Gates. [ 54 ] As I suggested to counsel, I think it would be advisable to have separate orders be prepared with respect to the division of pensions which can then be given to the pension providers.

I reserve the jurisdiction needed to deal with any issues arising from the implementation of my decision with respect to the division of the pensions.

c) Vehicles [ 55 ] The parties agree that the value of the 1996 Honda Civic (“Civic”), 1994 Ford Mustang (“Mustang”) and the 1999 Dodge Ram Truck (“Truck”) should be divided equally. They also agree that the values for the purposes of division of the Civic (which was in Ms. Gates’ possession prior to it being sold by her to Mr. Gates current common law partner) and the Truck (which was in Mr. Gates’ possession prior to it being sold by him to a third party) should be set at $400 and $1,200 respectively. [ 56 ] The parties differ on the value of the 1994 Mustang. Ms.

Gates, in her post-trial brief, suggests that it should be given a value of $1,200. Mr. Gates, however, testified at trial that the Mustang was “garbage” and was going to the junkyard or that Ms. Gates could have it if she wanted it. He further testified that the vehicle was not working at the time of separation and suggested that it be assigned a nominal value of $1.00. [ 57 ] Given Mr. Gates’ uncontradicted evidence about the condition of the Mustang at the time of separation, and his willingness to let Ms.

Gates have the Mustang now if she wanted it, I accept that it should be given no value for the purpose of division and direct that Mr. Gates can keep it. Thus, with respect to an equalization of the proceeds from the sale of the vehicles, I conclude that Mr. Gates owes Ms. Gates $400 (i.e. ½ of $1,200 – ½ of $400). This amount shall be paid out of the proceeds of the sale of the matrimonial home unless the parties otherwise agree. Conclusion on Property Division [ 58 ] Based on my conclusions on how the parties’ assets and debts should be divided, Ms. Gates owes Mr.

Gates an equalization payment of $2,100 (i.e. $2,500 - $400) which I order can be paid from the sale of the matrimonial home unless otherwise agreed to by the parties. ISSUE 3: SPOUSAL SUPPORT [ 59 ] Ms. Gates claims prospective spousal support on an indefinite basis from Mr. Gates. She also asks that spousal support be secured by naming her the beneficiary on a life insurance policy which Mr. Gates holds through his Painters’ Union. She makes no claim for retroactive spousal support on the basis that she agrees that Mr. Gates does not have the ability to pay same. Legislation

[60] The applicable provisions of the Divorce Act provide as follows: 15.2(1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure orpay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for thesupport of the other spouse. …

(3) The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or untila specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just.

(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition,means, needs and other circumstances of each spouse, including (

a) the length of time the spouses cohabited; (

b) the functions performed by each spouse during cohabitation; and (

c) any order, agreement or arrangement relating to support of either spouse. …

(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should (

a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (

b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above anyobligation for the support of any child of the marriage; (

c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (

d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. Case Law [61] The preeminent authorities with respect to spousal support come from the Supreme Court of Canada in the cases of Moge v. Moge (SCC), [1992] 3 S.C.R. 813 and Bracklow v. Bracklow, (SCC), [1999] 1 S.C.R. 420. [62] The principles from Moge and Bracklow have been considered and applied by courts across the country including our SupremeCourt and Court of Appeal. I summarize below principles from the authorities on the issues of entitlement, quantum and duration. [63]

a) Entitlement

i) Generally • The starting position is that marriage is a “joint endeavour”. The default presumption of this socio-economic partnership ismutuality and interdependence. Absent indications to the contrary, marriages are generally premised on obligations and expectations ofmutual and co-equal support (Bracklow, at para. 20); • When a marriage breaks down, however, the presumption of mutual support that existed during the marriage no longer applies. This is reflected in the Divorce Act which requires the court to determine issues of support by reference to a variety of objectives andfactors (Bracklow, at para. 21);

• The Divorce Act recognizes three conceptual bases for entitlement to spousal support, namely: compensatory, non-compensatory and contractual. These three bases of support flow from the statutory provisions and arise from different philosophies and theories of marriage and marital breakdown ( Bracklow , at para. 15 ); • The overarching principle that must be kept in mind on spousal support is “equitable sharing” of the economic consequences of marriage or marriage breakdown ( Moge , at paras. 73-77 ). It is not a question of choosing either one model of spousal support or another.

Rather, it is a matter of applying the relevant factors and striking the balance that best achieves justice in the particular case before the court. ( Bracklow , at para. 32 ); and • “Condition” of the spouses includes such things as their ages, health, employability, obligations, dependants and overall situation in life. • “Means” is a broad term and should be generously interpreted to give effect to the statutory purpose of spousal support. It would include all financial resources, capital and income, as well as earning capacity. It also takes into account capital acquired after the marital breakup ( Leskun v.

Leskun , 2006 SCC 25 ; Richards v. Richards, 2012 NSCA 7 , at para. 45 ); • “Needs” is a flexible concept that may vary according to the circumstances of the parties and the family unit as a whole. It does not necessarily end when the spouse seeking support achieves a subsistence level of income or any level of income above subsistence ( Yemchuk v.

Yemchuk, 2005 BCCA 406 ); • While all relevant circumstances must be considered, in long term marriages in which the party seeking support has not been in the workforce as a result of assuming domestic and child care responsibilities, demonstrated need and a significant disparity in standards of living between the former spouses are strong indicators that a support order is required to address the financial consequences of the breakdown of the marriage ( Fisher v.

Fisher, 2001 NSCA 18 , at para. 86 ). ii) Compensatory Support • Compensatory spousal support is grounded in the “ independent clean-break” model of marriage which sees each party to a marriage as an autonomous actor who retains his or her economic independence throughout the marriage.

This model suggests that a former spouse, having compensated the other spouse in a restitutionary sense for any economic costs of the marriage on the other spouse, should be entitled to move on with his or her life without further financial obligation ( Bracklow at para. 24 ); • Compensatory support should be awarded where it would be just to compensate a spouse for his or her contribution to the marriage or for sacrifices made or hardships suffered as a result of the marriage ( Bracklow , at para. 18 ). • Examples of circumstances that may lead to an award of compensatory support could include, but are not limited to, where a spouse’s education, career development or earning potential have been impeded as a result of the marriage, or the spouse has contributed financially either directly or indirectly to assist the other spouse in his or her education or career development ( Shurson v.

Shurson, 2008 NSSC 264 , para. 13 ); • Often, the most significant economic consequence of marriage or marital breakdown arises from the birth of children. Traditionally, this would often result in the wife cutting back on participating in the workforce in order to care for the children potentially jeopardizing her ability to ensure her own income security and independent economic well-being.

In such situations, compensatory support may be a way to compensate for such economic disadvantage ( Moge , at para. 80 ); and • When considering entitlement to compensatory support, great disparities in the standard of living that would be experienced by spouses in the absence of support are often a revealing indication of the economic disadvantages inherent in the role assumed by one party.

A marriage should be regarded as a joint endeavour, the longer the relationship endures, the closer the economic union, the greater will be the presumptive claim to equal standards of living upon its dissolution ( Moge , para. 84 ).

iii) Non-compensatory support • Non-compensatory support is grounded in the “basic social obligation” or “mutual obligation” model of marriage which stresses that marriage creates interdependencies which cannot be easily unravelled. These interdependencies create expectations and obligations that the law recognizes and enforces.

It holds that a mutual obligation of support may arise after the marital “break” and places the primary burden of support for a needy partner who cannot attain post-marital self-sufficiency on the former spouse rather than the state ( Bracklow , at paras. 23, 27, 30 and 31 ); • Non-compensatory support acknowledges that even if a spouse has not foregone any career opportunities or has not otherwise been disadvantaged by the marriage, the court is required to consider that spouse’s actual ability to fend for himself or herself and the effort that was made to do so, including efforts after the marital breakdown ( Bracklow , at para 40 ); and • Non-compensatory support focusses on the “needs” and “means” of the parties.

It recognizes that spouses may have an obligation to meet or to contribute to the needs of their former spouses where they have the capacity to pay, even in the absence of a contractual or compensatory foundation for the obligation. Need alone may be enough ( Bracklow , at para. 32, 43 and 44 ). iv) Contractual support • Contractual support obligations take into account support agreements, express or implied, between spouses. They recognize that spousal support, whether on a compensatory and/or non-compensatory basis, can be subject to individual variation by the parties by contract.

Thus, consensual considerations may either create or negate an obligation to support, under appropriate circumstances ( Bracklow , at paras. 18, 25 and 38 );

b) Quantum • The factors that go to entitlement also have an impact on quantum although, for practical purposes, it is often useful to proceed by establishing entitlement first and then effecting necessary adjustments through quantum.

The real issue, however, is what support, if any, should be awarded in the situation before the judge on the factors set out in the Divorce Act ( Bracklow , at para. 50 ); • Fixing the amount of spousal support is a discretionary exercise after considering the factors set out in s. 15.2(4) of the Divorce Act and the objectives of spousal support orders as set out in s. 15.2(6) ( Bracklow , at para. 18 ); • All four objectives enumerated in s. 15.2(6) of the Divorce Act are to be borne in mind in making an award of spousal support, and none is paramount. ( Bracklow , at para. 35 ); • There is no hard and fast rule.

The judge must look at all the factors in the light of the stipulated objectives of support, and exercise his or her discretion in a manner that equitably alleviates the adverse consequences of the marriage breakdown ( Bracklow , at para. 36 ); • While some factors may be more important than others in a particular case, the judge cannot proceed at the outset by fixing on only one variable.

The quantum awarded, both in the sense of amount and duration, will vary with the circumstances and practical and policy considerations affecting any given case ( Bracklow , at para. 53 ); • The fundamental principles in spousal support cases are balance and fairness. The goal is an order that is equitable having regard to all of the relevant circumstances ( Fisher v. Fisher, 2001 NSCA 18 , at para. 82 );

• The duty of support is on the payor to provide “reasonable support”. The key question is what is reasonable support having regardto all the circumstances (Saunders v. Saunders, 2011 NSCA 81 at para. 53; Read v. Read, 2000 NSCA 33 at para. 12; and Mosher v.Mosher (1999), (NS SC), 177 N.S.R. 236 (S.C.) at p. 238); • It does not follow that the quantum of spousal support must always equal the amount of the need which is established.

Forexample, nothing forecloses making an order for support for a portion of a spouse’s need, whether viewed in terms of amount or duration(Bracklow, at para. 54); and • As marriage should be generally regarded as a joint endeavour, the longer the relationship endures, the closer the economic union,the greater will be the presumptive claim to equal standards of living upon its dissolution (Moge at p. 870). However, length of marriageis only one factor which the judge must consider.

Thus, the general expectation for long-term marriages towards a more equal standardof living upon marital breakdown is not an immutable rule constraining the factors applicable to determining quantum of spousal support(Bracklow, at para. 54).

c) Duration: • While each case must be decided upon its own facts, in many cases involving lengthy marriages, courts have imposed indefiniteorders for support. Indefinite support is often appropriate after a long-term marriage because the dependent spouse is often at an agewhich makes it difficult to achieve economic self-sufficiency (Fisher v. Fisher, 2008 ONCA 11 , [2008] O.J. No. 38, at para.35); and • Marriage involves the potential for lifelong obligation (Bracklow, at para. 57).

After a long and traditional marriage, the ability of adependant spouse to retrain or reintegrate into the workforce in order to become self-sufficent may be irreparably damaged. In suchcases, it is often appropriate to issue an indefinite, long-term spousal support order (Moge, at para.69; Riad v. Riad, 2002 ABCA 254, atpara. 43;). Analysis [64] Keeping in mind the above principles, the questions I must ask myself on the issue of spousal support are as follows: 1. Has Ms. Gates established an entitlement to spousal support on a compensatory, non-compensatory and/or contractual basis? 2.

If so, what amount of spousal support should Ms. Gates be awarded? 3. If spousal support is awarded, how long should it continue? 4. If spousal support is awarded, should it be secured by requiring Mr. Gates to name Ms. Gates as the beneficiary of the lifeinsurance policy he has through his Painters’ Union? Question 1: Has Ms. Gates established an entitlement to spousal support on a compensatory, non-compensatory and/orcontractual basis?

a) Compensatory Support [ 65 ] Mr. Gates acknowledges that Ms. Gates is entitled to spousal support on a compensatory basis. I agree. Specifically, I find that in balancing the relevant statutory factors and objectives of spousal support outlined in s. 15.2(4) and s. 15.2(6) of the Divorce Act , Ms. Gates has established a clear and compelling entitlement to compensatory spousal support for the following reasons: • The parties had a long-term relationship of over 30 years during which operated as a true joint endeavour. Mr. Gates took on the role of primary “breadwinner” while Ms.

Gates focussed on the equally important role of raising the couple’s two children and performing the lion’s share of domestic responsibilities; • Ms. Gates sacrificed potential further career and educational opportunities during the marriage in order to focus on her childcare and domestic responsibilities. Specifically, at the time Ms. Gates entered into a relationship with Mr. Gates, she was a hairdresser/cosmetologist after having completed a program at the Academy of Cosmetology in 1982.

While she was able to continue being a hairdresser for some time during their relationship, she had very sporadic employment after the parties’ children were born and, when she did, her employment often related to a child caring role (e.g. working as a lunch monitor at the children’s school). During that employment, she earned a very limited income. For example, a review of her Notices of Assessments covering the period from 2004 to 2013, reveals that she never earned more than $5,000 a year and that there were a number of years where she earned no income at all (Exhibit 2); • I accept that Ms.

Gates has suffered a significant diminished earning capacity as a result of the childcare and domestic responsibilities she took on as part of the marriage. Again, subject to some sporadic employment after the children were born, she has largely been out of the workforce since having children. She is now 52 years old and gave evidence that she would have to return to school in order to work as a hairdresser again (Exhibit 5 , Para. 12). Following the parties’ separation in June 2012, she met with an employment counsellor and applied for a number of employment positions.

She also attended workshops to prepare her for work. Despite those efforts, she was unable to find any further employment until September 2015 when she was able to secure full-time employment with Know Howe Produce Ltd. (“Dave’s”) as a cashier for which she presently earns minimum wage (Exhibit 3, Exhibit 4, Para. 12 and Exhibit 5, Para.12). • Ms. Gates has been significantly financially disadvantaged by her role during the marriage while Mr. Gates was able to focus on his career outside the home.

In my view, it is equitable to apportion between them the financial consequences arising from their respective roles during the marriage through an award of compensatory spousal support.

b) Non-Compensatory Support [ 66 ] I also conclude that Ms. Gates is entitled to non-compensatory spousal support from Mr. Gates. Again, it should be emphasized that the parties were in a long-term relationship which created a pattern of financial interdependency which does not lend itself to a “clean break”. This, in my view, places an obligation on Mr. Gates to support his needy spouse when she is not in a position to be economically self-sufficient. [ 67 ] It is worth noting that, following their separation in June 2012, Mr.

Gates was able to continue with his employment unfettered, contribute to his pension and remain in the matrimonial home. As outlined in his Updated Sworn Statement of Income prepared on August 13, 2015, during the years 2012, 2013 and 2014, he earned Line 150 incomes of $33,405, $36,446 and $33,829, respectively (Exhibit 14). [ 68 ] On the other hand, during that same period, Ms. Gates’ Line 150 income was $1 for 2012, no income was shown for 2013 and $6,234 for 2014 (Exhibits 1 and 2). [ 69 ] Given Ms.

Gates’ lack of financial means, and clear need for financial assistance, she had to largely live on the generosity of others in order to survive. For example, she testified that following the parties’ separation, she went to stay with her daughter in Red Deer, Alberta until October 2012, when she returned to Nova Scotia because her mother was dying. Her mother passed away in November 2012 after which time she remained in her mother’s apartment until February 2013. She then moved into a basement apartment before

moving in with her current partner, Brian Stanislow, in the Summer of 2014 (Exhibit 4, Paragraphs 6-9 and Exhibit 5, Paragraph 6). [ 70 ] Ms. Gates also had to sell her jewellery and use $2,100 which she inherited after her mother’s passing to cover her living expenses (Exhibit 4, Para. 10). [ 71 ] Having been largely out of the workforce for the last several years, Ms. Gates applied for and received income assistance beginning in February 2013. However, she indicated that she did not receive the full amount of income assistance because she was deemed able to work (Exhibit 4, Para. 10-11). [ 72 ] Ms.

Gates testified that she suffers from high blood pressure and chronic anxiety and receives regular prescriptions for same (Exhibit 4, Para. 11, Exhibit 5, Para. 13). Her prescriptions used to be covered under Mr. Gates’ medical plan through his employment but, after the parties separated, he took Ms. Gates off same. She has now been added to Mr. Stanislow’s medical plan (Exhibit 5, Para. 13). [74] Fortunately, Ms. Gates’ financial circumstances have improved. As noted earlier, in early September 2015 she was able to secure full-time employment with Know Howe Produce Ltd..

She testified that she works nine hours a day for five days per week at $10.60 per hour. Thus, her weekly gross income would be approximately $480. Assuming she works 50 weeks during the year, this would translate into an annual gross income of approximately $24,000. Such an amount, however, still places her at a significantly lower income than Mr. Gates who estimated that his 2015 income would be $33,830 (Exhibit 14). [75] Hence, when I consider all the evidence, I conclude that Ms.

Gates has suffered a clear economic hardship arising from the breakdown of the marriage and that she is far from being economically self-sufficient. Therefore, as stated earlier, when I consider all the factors and objectives under the Divorce Act , I conclude, that she has made out a case for entitlement to non-compensatory spousal support.

c) Contractual Entitlement [76] After the parties separated on June 1, 2012, Mr. Gates did not pay any spousal support to Ms. Gates until the parties entered into an interim Consent Order on January 2015 pursuant to which Mr. Gates agreed to pay Ms. Gates spousal support of $100 per month commencing January 1, 2015. He has been paying that amount since then. [77] Ms. Gates did not argue that this interim Consent Order gives her any contractual entitlement to spousal support.

In my view, it does not do so, at least as contemplated by Bracklow , as the agreement arose as part of the litigation, as opposed to an express or implied agreement between the parties during their marriage. Furthermore, the basis for the agreed upon amount of $100 per month interim amount is not before me. For example, it may have simply been intended to be a recognition by Mr. Gates of Ms. Gates’ entitlement to compensatory spousal support pending the trial. [78] Consequently, I hold that no independent contractual entitlement to spousal support for Ms. Gates has been established on the evidence.

d) Effect of Ms. Gates’ Re-partnering on Spousal Support [79] As noted earlier, in the Summer of 2014, Ms. Gates moved into the residence of her current partner, Brian Stanislow. This development should be considered on the issue of spousal support. In my view, it is particularly relevant to the issue of non- compensatory spousal support. For example, as outlined in Ms. Gates’ pre-trial brief, in Rozen v. Rozen, 2014 BCSC 316 , Justice Bernard stated at para. 29:

Re-partnering may be relevant to non-compensatory support because such support is founded on a social obligation model that places the primary burden of meeting the needs of the disadvantaged spouse on his or her former partner rather than the state: Bracklow at para. 23 ; Chutter at para. 54. It is not, however, relevant to compensatory support. For example, in Beese v. Beese, 2008 BCCA 396 , the recipient spouse, who was being supported by her new partner, was awarded compensatory spousal support for the economic disadvantage she has suffered as a result of the marriage. In the instant case, Ms.

Rozen’s support is primary compensatory; therefore, Mr. Rozen cannot rely upon her re-partnering as a basis for variation. [Emphasis added.] [80] Similarly, in the case of Kelly v. Kelly, 2007 BCSC 227 CanLII, Justice Barrow stated: [2] Since the original order, Ms. Kelly has remarried and Mr. Kelly has enjoyed a substantial increase in income. In broad terms, it is these developments that give rise to these applications. … [49] The effect of re-marriage on needs based spouse support will, it seems to me, generally be more significant than in the case of compensatory or contractually based support.

Support based on compensatory considerations may still be payable if the receiving spouse remarries. Re-marriage does not compensate the receiving spouse for that which was foregone during an earlier marriage. To that extent and for that reason, its effect on spouse support may not be significant. Needs based support, however, rests on what McLachlin, J. termed the “basic social obligation model of marriage”( Bracklow , at para. 25 ).

The social obligation model of marriage has, as one of its central tenants, the notion that where a former spouse has a demonstrated need the “primary responsibility falls on the former spouse to provide for his or her ex-partner, rather than on the government” ( Bracklow , at para. 23 ). It follows in my view that when a spouse with a demonstrated need remarries, the social obligation model casts the burden of meeting that need on the new spouse. The burden does not shift in its entirety at the moment of remarriage but it begins to.

The longer the subsequent marriage, the greater the obligation of the new spouse for the needs of his or her partner. [Emphasis added.] [81] Finally, I note that the Spousal Support Advisory Guidelines speak to this issue at s. 14.7: The Recipient’s Remarriage or Re-Partnering The remarriage or re-partnering of the support recipient does have an effect on spousal support under the current law, but how much and when and why are less certain. There is little consensus in the decided cases.

Remarriage does not mean automatic termination of spousal support, but support is often reduced or suspended or sometimes even terminated. Compensatory support is often treated differently from non-compensatory support. Much depends upon the standard of living in the recipient’s new household. The length of the first marriage seems to make a difference, consistent with concepts of merger over time. The age of the recipient spouse also influences outcomes. In particular fact situations, usually at the extremes of these sorts of factors, we can predict outcomes.

For example, after short-to- medium first marriage, where the recipient spouse is younger and the support is non-compensatory and for transitional purposes. Remarriage by the recipient is likely to result in termination of support. At the other extreme, where spousal support is being paid to an older spouse after a long traditional marriage, remarriage is unlikely to terminate spousal support, although the amount may be reduced. [Emphasis added.] [82] Keeping in mind the above, while I have concluded that Ms.

Gates has made out an entitlement to spousal support on a compensatory and non-compensatory basis, I also conclude that her claim to non-compensatory support, in particular, may be reduced or be somewhat “dormant” on account of her re-partnering to Mr. Stanislow. However, given that this relationship is relatively new, and the primary obligation at this time to support Ms. Gates should be on Mr. Gates, not Mr. Stanislow, I am satisfied that her entitlement on either a compensatory or a non-compensatory basis should not simply be extinguished on account of her re-partnering.

Rather, I conclude that both parties’ re-partnering does impact on the issue of quantum of spousal support which I will now go on to address. Question 2: What amount of spousal support should be awarded to Ms. Gates?

[83] Ms. Gates originally sought to have prospective spousal support set in the amount of $400 to $600 per month. However, during closing submissions, her counsel acknowledged that spousal support of $600 per month would be “too high” and suggested that $400 per month would be more appropriate. [84] In a written communication sent to me on March 7, 2016, by her counsel, it was clarified that Ms. Gates does not seek to increase the amount of spousal support of $100 per month from the January 9, 2015, interim consent order onward until the date of trial (i.e. October 7, 2015).

Rather, what she seeks is an increase in the amount of spousal support from the date of the trial onward. [85] Mr. Gates, on the other hand, while conceding that Ms. Gates is entitled to spousal support on a compensatory basis, asserts that he simply cannot afford to pay spousal support so that consequently, none should be ordered. [86] Thus, I must decide what amount, if any, Mr.

Gates should pay for spousal support. [87] As an opening comment, it appears that once entitlement is established, courts across the country are increasingly making reference to the Spousal Support Advisory Guidelines (SSAG) when determining quantum.

The SSAG was intended to be reflective of the current law as opposed to changing it and were drafted by the authors after conducting an extensive analysis of the authorities with respect to spousal support across the country. [88] Clearly, one of the appeals of the SSAG is that they attempt to provide a degree of simplicity, predictability and consistency when determining spousal support awards. Although advisory and not binding on the courts, they have been described as a “useful tool” ( Yemchuk v. Yemchuk , 2005 BCCA 406 , at para. 64 ) which, in the normal course, judges “would be wise to follow” ( Smith v.

Smith, 2011 NBCA 66 ). Notwithstanding this, given that their application is not mandatory, our Court of Appeal has indicated that it is no error in law for a trial judge to choose not to apply them in a given case ( Strecko v. Strecko, 2014 NSCA 66 ). [89] In the present case, the parties have agreed that the SSAG should not be applied as both parties have re-partnered which they assert has impacted on their respective “conditions, means, needs and other circumstances”.

They have therefore requested that I not consider the SSAG when determining the amount of spousal support payable. [90] In considering this request, I note that the utility of the SSAG does not automatically disappear simply on account of the parties re- partnering. Specifically, re-partnering is not listed as one of the “exceptions” under

Chapter 12 of the SSAG. Rather, as noted earlier, re- partnering is dealt with in s. 14.7 of the SSAG . [91] To the extent re-partnering is not one of exceptions to the SSAG , it may be that the SSAG ranges can still be a helpful starting point for part of a discretionary analysis on quantum. Notwithstanding this, I agree with the parties that, on account of their re-partnering, this case does not readily lend itself to applying the formulas under the SSAG . Thus, given the parties’ request that I not apply the SSAG when determining quantum of spousal support, I will not do so.

Instead, I will make my determination on quantum by examining the evidence with respect to the parties respective “condition, means, needs and other circumstances” and by weighing and considering that evidence in relation to the factors and objectives listed in the Divorce Act . [92] I have already discussed, at some length, the evidence with respect to the factors I am obliged to consider under s. 15.2(4) and the objectives of spousal support under s. 15.2(6). As outlined in paragraph 50 of Bracklow , the same factors which go to entitlement also impact on quantum.

Thus, I do not propose to repeat my earlier points on how those factors and objectives arise in the present case but, rather, will examine more closely the parties’ respective condition, means, needs and other circumstances. The Parties’ Respective Conditions [93] As noted earlier, Ms. Gates and Mr. Gates are 52 years old and 51 years old, respectively. They were in a relationship for over 30 years and raised two children who are now independent adults and employed outside of the province. [94] At the time of separation, Ms. Gates had been largely out of the workforce for several years.

Her last formal educational/vocational training appears to have occurred in 1982 when she completed a program at the Academy of Cosmetology to

become a hairdresser/cosmetologist (Exhibit 4, Exhibit “A”). [95] As outlined in paragraph 72, Ms. Gates suffers from high blood pressure and anxiety for which she takes regular medications. Mr. Gates also apparently has some health issues. For example, in his Supplementary Affidavit sworn to on August 13, 2015, he indicated that he was scheduled for an operation in the near future for a hernia which he understands will require him to be off work for six to eight weeks following his surgery (Exhibit 16, Paras. 26-27). My understanding is that he had not yet had his surgery at the time of the trial.

The Parties’ Respective Means [96] Mr. Gates’ Line 150 income for 2014 and estimated Line 150 income for 2015 is $33,830. He works as a unionized journeyman painter with OK Coatings for approximately six months each year, earning a wage of $21.00 per hour. The rest of the year, he collects Employment Insurance Benefits. [97] Ms. Gates asks me to impute income to Mr. Gates in the amount of $43,646 per year when determining his “means” to pay spousal support based on him working year round at $21.00 per hour at 40 hours per week. In support of her position, she advances the following arguments: 1. Mr.

Gates should be working all year round instead of drawing EI Benefits; 2. If his employer is unable to employ him all year round, he should take on a second job; 3. If he cannot find a second job locally that pays $21.00 per hour, he should consider working in Alberta during his “off season” period. [98] With respect, I reject these arguments. First, the evidence is that Mr. Gates’ employment, as a unionized painter with his employer, OK Coatings, is seasonal and he does not have the opportunity for full year employment through same.

Second, he testified that he makes more income drawing EI during the offseason than he would making minimum wage by taking a second job. Third, I do not find it reasonable to expect that Mr. Gates should be potentially obligated to leave Nova Scotia on an annual basis to go to Alberta during the offseason simply to supplement his annual income for the purpose of paying spousal support. Indeed, he testified that, if he did so, it could jeopardize his current employment as he is required to be available for work should his employer need him. Finally, the pattern of Mr.

Gates’ employment is something that the parties found satisfactory during their marriage. I therefore conclude that Mr. Gates should not be expected to now significantly change that pattern when, even during the offseason, he is getting a more than minimum wage income, albeit through Employment Insurance Benefits, which can allow him to pay spousal support at a reasonable level. [99] I therefore decline to impute income to Mr.

Gates over and above the $33,830 figure in his Sworn Statement of Income which I conclude fairly represents his income when considering his means to pay spousal support. [100] As noted earlier, Ms. Gates now has full-time employment which is expected to result in a gross annual income of approximately $24,000. I conclude that is a reasonable figure when determining her means. The Parties’ Respective Needs [101] According to Mr. Gates’ Statement of Expenses prepared on August 13, 2015 (Exhibit 15), he has monthly income of $2,819.15 and monthly expenses of $3,406.00 resulting in a deficit of $586.85.

[102] Mr. Gates gave evidence that he relies on the income of his current partner, Debbie Stewart, to assist him financially as well as financial contributions from his adult daughter and son. He indicated that, without those contributions, he would not be able to afford living in the matrimonial home or pay his bills (e.g. Exhibit 12, Paras. 8, 37-39 and Exhibit 16, Para. 25). [103] During cross-examination, Mr. Gates acknowledged that Ms. Stewart contributes approximately $600-$700 monthly towards their living expenses.

Consequently, in his counsel’s written submission of October 21, 2015, she provided a revised chart which shows Mr. Gates operates at a monthly surplus of approximately $13 per month by factoring in a monthly contribution of $600 from Ms. Stewart. [104] While this calculation is helpful, it likely does not constitute an accurate representation of what amount Mr. Gates would have left over at the end of each month as it does not appear to factor into consideration that Mr.

Gates’ listed monthly income of $2,819.15 is his “gross” monthly income with no adjustment being made for income taxes he will have to pay on this income. [105] In Issue 18 of his “Family Law Practice Tips” released on January 19, 2016, Justice Campbell has provided a “2016 Marginal Rate Chart” which does a rough calculation of the combined federal and provincial tax rates on a given income. Based on a yearly gross income of $33,830, it appears Mr. Gates would net approximately $28,000 per year, or approximately $2,333 per month.

Consequently, instead of having a surplus each month of approximately $13, he likely will have a monthly deficit of approximately $473 if one accepts the figures he provides for his monthly expenses. [106] In her Statement of Expenses prepared on July 29, 2015 (Exhibit 8), Ms. Gates’ lists monthly expenses of $2,167.99 resulting in a monthly deficit of this same amount. [107] I would characterize Ms. Gates’ monthly deficit as being a “notional” one as she has listed various expenses which she is not currently incurring on the basis that they are items which she would like to be able to afford or to contribute.

For example, in her Supplemental Affidavit sworn to on July 29, 2015, she indicates that she lives with Mr. Stanislow in his home and that he pays all her living expenses. She would, however, like to be in a position to help with the household expenses (Exhibit 5, Para. 7) and lists, for example, $450 as a proposed contribution towards monthly rent/mortgage (Exhibit 8, Item 1). She also lists approximately $650 for monthly expenses associated with a vehicle although she currently does not own a car but instead takes the bus to work (Exhibit 8, Item 14).

Again, however, she indicates that a vehicle of her own is something which she would like to be able to afford. [108] As noted earlier, Ms. Gates is expected to gross approximately $24,000 per year from her current employment at Know Howe Produce Ltd.. If one applies Justice Campbell’s 2016 Marginal Rate Chart to that figure, it appears that her net yearly income would be somewhere in the ballpark of $21,000, or $1,750 per month. [109] Consequently, even if one accepts all of Ms.

Gates’ notional monthly expenses listed in her Statement of Expenses, her monthly deficit would be somewhere in the ballpark of $417. [110] Turning to the reasonableness of each parties’ listed expenses in their latest Statements of Expenses (Exhibits 8 and 15), I see little to be gained by doing a detailed line by line review of each individual item. At a high level, I am satisfied that most the items are generally reasonable and that neither party has grossly exaggerated their need or is seeking to live an unreasonably extravagant lifestyle even though in the case of Ms.

Gates, some of her listed expenses (e.g. vehicle expenses) are costs she is not currently incurring. To the contrary, I conclude that both parties are seeking to live modestly which was also the case when they were together. I also conclude that Ms. Gates listing expenses for things such as being able to own a car to go to work is reasonable especially given that she had regular access to a vehicle during the marriage. [111] While I believe that both parties’ expenses are generally not extravagant, I do have some concerns with Mr. Gates’ listed expenses.

For example, I note that, between the time of his original Statement of Expenses filed on January 8, 2015 (Exhibit 10), and the filing of his most recent Statement of Expenses filed on August 13, 2015 (Exhibit 15), a number of his listed expenses have risen considerably (e.g. monthly heating costs went from $300 to $400, monthly food costs doubled from $200 to $400, monthly clothing costs went from $15 to $100, monthly property-fire insurance costs went from $50 to $100, etc.).

I was not given any reasonable explanation for why these costs increased so significantly in a period of approximately seven months. [112] I also believe that, to the extent that $1,844 of Mr. Gates’ listed monthly expenses appear to be costs directly associated with the matrimonial home, ($944 for the mortgage, $400 for municipal taxes including arrears, $100 for property – fire insurance and $400 for heat), it is reasonable to conclude that, once the matrimonial home is sold, Mr. Gates’ accommodation costs will likely be reduced

thereby increasing his means to pay spousal support. The Parties’ Respective “Other Circumstances” [113] While s. 15.2(4) of the Divorce Act does not provide a list of “other circumstances” to be considered, as noted earlier, I am satisfied that the parties’ respective re-partnering is a significant “other circumstance” which must be considered on the issue of quantum of spousal support. [114] Ms. Gates appears to be in a stable relationship with Mr. Stanislow which began in the Summer of 2014 when they started cohabiting together as a couple. Mr.

Stanislow is a carpenter by trade and, in 2014, had employment income of approximately $44,821 (Exhibit 5, Exhibit “B”). His 2015 employment income to the pay ending July 11, 2015, was approximately $29,383 (Exhibit 5, Exhibit “A”) which, if pro-rated, suggests his income for 2015 would exceed $50,000. [115] As noted earlier, in her Supplemental Affidavit sworn to on July 29, 2015, Ms. Gates indicated that Mr. Stanislow covers all her expenses. She believed this was unfair and indicated that she wanted to be in a position to help with their household finances (Exhibit 5, Para. 7).

It is unclear to what extent, if any, she now contributes to those household expenses after having secured full-time employment in September 2015. [116] Mr. Gates, as already noted, has also re-partnered to Ms. Stewart. Ms. Stewart runs a cleaning business. Her 17 year old son lives with her and Mr. Gates roughly 50% of the time and she shares a week on/week off parenting arrangement with her son’s father. [117] Ms. Stewart’s 2013 Notice of Assessment indicated a Line 150 income of $6,145 and her 2014 Line 150 income, as submitted in her income tax return, is $15,059.11 (Exhibit 18). [118] The effect of Ms.

Gates’ and Mr. Gates’ respective re-partnering to new partners, who earn additional incomes, is that they are both likely better off, at least from a financial perspective, than when they were together as a married couple. Specifically, it appears that Ms. Gates and Mr. Stanislow currently likely have a gross household income of over $70,000 when one adds up their respective employment incomes. Mr. Gates and Ms.

Stewart, on the other hand, likely currently have a household income of somewhere slightly above $45,000 when one adds up their respective incomes. [119] Thus, in both cases, the parties are likely more favourably situated financially then when they were struggling to make ends meet largely on Mr. Gates’ single income which appears to have never exceeded $40,000 and, for many years, would have to be used to also support two children of the marriage. [120] On account of his re-partnering to Ms. Stewart, Mr. Gates’ ability to pay spousal support is somewhat enhanced. On the other hand, Ms.

Gates’ re-partnering with Mr. Stanislow has, to a significant extent, reduced her need for spousal support, particularly on a non-compensatory basis. As I stated earlier, it does not extinguish her entitlement to same and, in my view, has a significantly lesser impact on her entitlement to compensatory spousal support. [121] That being said, the effect of the parties’ respective re-partnering is a significant factor which, in my view, impacts on the overall quantum of spousal support which I exercise my discretion to award to Ms.

Gates when I weigh all the factors and objectives which I am required to consider under the Divorce Act . Conclusion on Quantum of Spousal Support [122] When I consider the totality of the evidence, and fairly balance the factors and objectives I am obliged to consider under the Divorce Act , I conclude that the following spousal support award is appropriate:

1. Ms. Gates is entitled to spousal support in the amount of $100 per month from January 1, 2015 to October 1, 2015 which amount has already been received on account of the interim Consent Order issued on January 9, 2015. I made no adjustment to this amount given Ms. Gates’ counsel’s confirmation that no increase from the interim amount was being sought prior to the trial. 2. From October 1, 2015 onwards, I increase the amount of spousal support to $150 per month until the earlier of the date on which the sale of the matrimonial home occurs, or January 1, 2017.

From that point onward, I order that spousal support be increased again to $200 per month. In doing so, I conclude that once either of those events occurs, Mr. Gates’ ability to pay spousal support will likely increase or, at the very least, he would have had sufficient time to restructure his financial affairs such that he can reasonably increase his spousal support. [123] In arriving at the above award. I again emphasize that the parties’ respective re-partnering is something which I considered when weighing all the factors and objectives in determining what amount of spousal support would be appropriate.

To the extent this re- partnering has somewhat positively impacted on Mr. Gates’ ability to pay spousal support while, at the same time, significantly decreased Ms. Gates’ overall need for spousal support, it may be that, in the event that either of those new relationships come to an end, this could very well constitute a material change of circumstances which could warrant a variation of spousal support. That being said, I do not need to make that determination now and will leave that determination for another day should it become necessary.

Question 3: How long should spousal support continue? [124] In my view, spousal support should be ordered on an indefinite basis. [125] As noted earlier, Mr. and Ms. Gates were together for over 30 years during which she sacrificed career opportunities for the benefit of the family. As she indicated in her evidence, given her age and lack of marketable skills, finding employment has been difficult.

Despite this, she attempted to reintegrate herself back into the workforce and, through her commendable efforts, was rewarded by securing her present employment in September 2015 which pays her minimum wage. [126] However, simply securing this position does not mean that she has become economically self-sufficient. To the contrary, absent the significant financial support she receives from Mr. Stanislow, her ability to meet her living expenses and become self-sufficient is very much in question.

I therefore conclude that awarding her spousal support on an indefinite basis is appropriate and fairly balances the relevant factors and objectives under the Divorce Act . Question 4: Should Ms. Gates’ spousal support be secured by requiring Mr. Gates to name Ms. Gates as the beneficiary of his life insurance policy he has through his Painters’ Union? [127] Ms. Gates requests that, as security for spousal support, she be named as the beneficiary under Mr. Gates’ life insurance policy in the amount of $50,000 through his Painters’ Union.

Section 15.2(1) of the Divorce Act does allow me the discretion to make such an order. [128] Very little focus on this request occurred during the trial. For example, no evidence was provided to me with respect to the premium payments which would be required. Furthermore, given the amount of spousal support which I am awarding Ms. Gates, I do not believe that naming her as the beneficiary under Mr. Gates’ $50,000 life insurance policy is required. Consequently, after carefully considering her request, I decline to make such an order as I believe that Mr. Gates should be entitled to choose the beneficiary of his life insurance policy as part of his estate planning. CONCLUSION:

[129] In

summary, I grant he following relief: (

a) A divorce; (

b) A division of matrimonial assets and debts which results in an equalization payment from Ms. Gates to Mr. Gates of $2,100; and (

c) An award of indefinite periodic spousal support to Ms. Gates as outlined in paragraph 122. [130] As Ms. Gates is the Petitioner, I would ask that Ms. Hounsell-Gray kindly prepare the form of divorce and corollary relief orders. [131] Given the mixed success of the parties on the issues, I encourage them to make every attempt to resolve the issue of costs by agreement. If the parties are unable to do so, I direct that they send me written submissions on costs no later than 30 days from today. [132] Finally, I want to acknowledge and thank the parties’ counsel for their professionalism throughout.

Their respective presentations and submissions were thorough and I appreciated their efforts very much. _____________________________ R. Lester Jesudason, J.