MacNeil v. MacNeil, 2016 NSSC 128

IN THE SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: MacNeil v. MacNeil , 2016 NSSC 128 Date: 2016-05-18 Docket: 1201-068623(SFHD-095732) Registry: Halifax Between: Robert Bruce MacNeil Petitioner v. Lesley Ann MacNeil Respondent LIBRARY HEADING Judge: The Honourable Justice Leslie J. Dellapinna Heard: March 23 and 24, 2016 in Halifax, Nova Scotia Subject: Divorce, date of separation, parenting wording, the division of assets and debts, child and spousal support and retroactive child support.

Summary: By the time the parties had separated they had been married for 20 years and together for 21. They had one child who was 18 at the time of the divorce hearing. They disagreed on the date of separation (by over five years) and could not agree on any of the corollary relief issues with respect to their divorce. Issues: 1. The date of the parties’ separation. 2. The division of assets and debts. 3. Prospective child support. 4. Prospective spousal support. 5. Retroactive child support.

Result: The parties separated on the date that the husband actually left the matrimonial home (not five years earlier). The couple held themselves out to the public (including their own family members) as being a couple up to the date the husband left the matrimonial home. The Court concluded that it was at that time that the necessary intent to separate was formed. The various matrimonial assets and debts were divided equally including the net after tax value of employment bonuses received by the husband post-separation but earned prior to the parties’ separation.

The parties’ son lived primarily with the husband. The wife agreed and was ordered to pay the table amount of child support. The wife was entitled to spousal support on a compensatory and non-compensatory basis and spousal support in the sum of $3,100.00 per month was ordered for an indefinite period. The wife was not ordered to pay retroactive child support due primarily to the fact that prior to the date of the hearing the husband had paid inadequate spousal support to the wife. The Court was prepared to hear the parties on the issue of cost. 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: MacNeil v.MacNeil , 2016 NSSC 128 Date: 2016-05-18 Docket: 1201-068623

(095732) Registry: Halifax Between: Robert Bruce MacNeil Petitioner v. Lesley Ann MacNeil Respondent

Judge: The Honourable Justice Leslie J. Dellapinna Heard: March 23 and 24, 2016 in Halifax, Nova Scotia Counsel: O. Bland for the Petitioner M. Rogers for the Respondent By the Court: BACKGROUND [ 1 ] The parties are husband and wife. They began to cohabit in 1992 and were married on August 21, 1993. They have one child, a son, B.M., who is now 18 years of age. Their divorce trial was heard on March 23 and 24, 2016.

The parties were the only witnesses. [ 2 ] In addition to the pleadings and the parties’ financial statements, the Court considered four affidavits from the Petitioner/husband and one from the Respondent/wife. Both were cross-examined by opposing counsel. [ 3 ] The Petitioner initiated divorce proceedings in April 2015 seeking an order for custody, access and child support relating to the parties’ son as well as an order for the division of assets pursuant to the Matrimonial Property Act , R.S.N.S. 1989, c. 275.

He also sought an order for costs. [ 4 ] In June 2015 the Respondent’s Answer was filed in which she too sought an order for custody, access, child support and the division of assets as well as an order for spousal support. [ 5 ] Given their son’s age, there was no contest over where he would live. At the time of the trial he was residing primarily with his father. The Respondent sought particular wording regarding parenting. [ 6 ] Previously the Honourable Justice Cormier of this Court granted two interim orders issued on January 13, 2016.

One order resulted from an agreement between the parties to have the former matrimonial home listed for sale. The other required the Petitioner to pay to the Respondent interim spousal support in the sum of $1,800.00 per month which payments began on July 1, 2015. The same order also required the Petitioner to pay to the Respondent retroactive spousal support for the period December 1, 2014 to and including June 1, 2015 totalling $12,600.00 which is to be paid at the rate of $500.00 per month commencing July 1, 2015 and the 1 st of each month thereafter until paid. ISSUES [ 7 ] The issues to be determined are: 1.

The date of the parties’ separation; 2. The divorce proceeding; 3. The wording of the parties’ parenting arrangements; 4. The division of assets and debts; 5. Prospective child support; 6. Prospective spousal support; 7. Retroactive child support, and 8. Costs. DISCUSSION OF ISSUES AND CONCLUSIONS: 1. Date of Separation [ 8 ] The Divorce Act , R.S.C. 1985, c.3 provides the following with respect to the breakdown of a marriage:

(1) A court of competent jurisdiction may, on application by either or both spouses, grant a divorce to the spouse or spouses on theground that there has been a breakdown of their marriage.

(2) Breakdown of a marriage is established only if (

a) the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding andwere living separate and apart at the commencement of the proceeding; or (

b) the spouse against whom the divorce proceeding is brought has, since celebration of the marriage, (

i) committed adultery, or (ii) treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of thespouses.

(3) For the purposes of paragraph (2)(a), (

a) spouses shall be deemed to have lived separate and apart for any period during which they lived apart and either of them had theintention to live separate and apart from the other; and (

b) a period during which spouses have lived separate and apart shall not be considered to have been interrupted or terminated (

i) by reason only that either spouse has become incapable of forming or having an intention to continue to live separate and apart or ofcontinuing to live separate and apart of the spouse’s own volition, if it appears to the court that the separation would probably havecontinued if the spouse had not become so incapable, or (ii) by reason only that the spouses have resumed cohabitation during a period of, or periods totalling, not more than ninety days withreconciliation as its primary purpose. [9] In order to prove that the parties have lived “separate and apart” for divorce purposes, it is necessary that (1) the parties liveapart and (2) at least one of the parties had the intention to live separate and apart i.e. to withdraw from the marital relationship(McKenna vs.

McKenna (1975), (NS CA), 10 N.S.R. (2d) 268 (N.S.C.A.)). It is not necessary for the parties to sharethe intention to separate. As said by McDermot J. in O’Brien v. O’Brien, 2013 ONSC 5750 at para. 50: “Unlike the decision to marry, the decision to separate is not a mutual one. It is a decision which is often made by one party over theobjections of the other. Those protestations matter not; once one party has decided to permanently separate and has acted on it, the otherparty has no ability to stop the process or object to it. This is confirmed by s. 8(3)(

a) of the Divorce Act, which states that “spouses shallbe deemed to have lived separate and apart for any period during which they lived apart and either of them had the intention to liveseparate and apart from the other”.[Emphasis added by McDermot J.]. As stated by D.L. Corbett J. in Strobele v. Strobele, [2005] O.J.No. 6312 (Ont. S.C.J.), the separation occurs when “the parties knew or, acting reasonably, ought to have known, that their relationshipwas over and would not resume” [paragraph 29].

Importantly, and applicable to the present case, he also says that, “Groundless hopes ofreconciliation should not extend a valuation date where one spouse has been clear in his or her intentions to end the relationship”[paragraph 32]. [10] The date of separation can be important for a number of reasons. Obviously it is important if either of the parties rely on s.8(2)(

a) of the Divorce Act in order to prove a breakdown of the marriage. Depending on the circumstances of the case, it could also berelevant in identifying the quantum and/or duration of spousal support and in determining and valuing assets and debts before a divisioncan take place. It should be emphasized however, that the date of separation for marriage breakdown purposes is not necessarily going tobe the same date that is used for asset/debt valuation purposes (see Simmons v.

Simmons, (NS SF), 2001 NSSF 35). [11] The Petitioner took the position that the parties separated on June 23, 2008 and the Respondent said that they separated onOctober 1, 2013. The parties acknowledged that they both continued living in the matrimonial home until October 1, 2013 when thePetitioner left the residence. The mere fact that the parties were living under the same roof does not negate the possibility that the partieswere living “separate and apart” (see for example Morrison v. Morrison, 2013 NSSC 358).

However, in such circumstances it may bemore difficult to satisfy the Court that the parties were living separate and apart and when the date of separation occurred. [12] There is no shortage of cases where courts have tried to list the various factors to consider when determining the date ofseparation. See, for example, K.L.S. v. D.R.S., 2012 NBCA 16 (at para. 20) where the following factors were listed: 1. Do the parties occupy separate bedrooms? 2. Do the parties engage in sexual relations? 3. How do the parties communicate with one another? 4. Is there any sharing of domestic responsibilities? 5.

Do the parties share meals together? 6. Do the parties engage in social or recreational activities with one another? 7. Do the parties share “facilities”, such as watching television together? 8. Is there any valid reason for the parties to be living under the same roof?

[ 13 ] This list of considerations is not exhaustive and of those listed not all would apply in every case. Each case must be decided on its own facts. [ 14 ] According to the Petitioner the parties separated after a “long period of mutual frustration and differences” culminating in the Respondent telling him to “get…out” in June 2008. He said that he and the Respondent discussed the matter further and agreed that they wanted their son (who was 10 at the time) to remain living in the matrimonial home while he was in school, but they could not afford two residences.

He claimed that as a consequence of a conversation that he had with the Respondent on June 23, 2008 they agreed that he would remain living in the matrimonial home but that he would move his bed from the master bedroom into another room in the house. [ 15 ] The Respondent testified that there was no such agreement. It was her evidence that since approximately 2003 the parties had not been sexually intimate. She suffers from a physical condition which made intercourse extremely painful for her.

The Petitioner said that he was unaware of her physical condition but he did not deny that they were not intimate after 2003. [ 16 ] The Respondent also said that since 2001 she experienced anxiety and depression for which she took medication which caused her to suffer from insomnia. Because of her insomnia she watched television in the bedroom late at night and was up several times during the night. That made it difficult for the Petitioner to sleep in the same room and for that reason he moved to a separate bedroom in 2008.

In spite of that she said there was “no shift” in their relationship in 2008 and no argument at that time. [ 17 ] She also said that the parties did not discuss separating at all and she did not consider herself separated from the Petitioner. [ 18 ] The Respondent did acknowledge the argument referred to by the Petitioner in his affidavit but said that it did not take place in 2008 but rather occurred in September 2013. It was her evidence that as their son became a teenager they started having issues with him.

Those issues resulted in disagreements between the parties which placed stress on their marriage and ultimately led to their separation in 2013. She said that in September 2013 she and the Petitioner “got in a big fight” in relation to B.M. and the Respondent’s concerns about his online gambling.

A few weeks later the Petitioner told her that he would be moving out on October 1, 2013 and in late September 2013 she and the Petitioner told B.M. that they were separating. [ 19 ] In support of her position on the date of separation the Respondent said that even after the Petitioner moved to a separate bedroom, he kept his clothing in the closet of the master bedroom and continued to use the master bathroom.

The Petitioner claimed that he placed the clothes that he regularly used in the closet of the bedroom that he used and only the clothes that he wanted to keep but rarely wore remained in the master bedroom closet. [ 20 ] The Petitioner said that after their separation (in 2008) they did not attend functions or go on vacations together.The Respondent said they attended family parties together and went on a trip to her father’s home in Florida in March 2009 where the Petitioner and the Respondent shared the same bed.

The Petitioner admitted that to be the case but said that he went to Florida for their son’s sake. [ 21 ] It was the Respondent’s evidence that between 2008 and 2013 they continued to have family meals together although if the Petitioner worked late she would prepare his dinner and he ate when he got home. The Petitioner said that he did not recall any meals together. [ 22 ] The Respondent said that she did all of the Petitioner’s laundry until he moved out in 2013.

He responded by saying that he “did the laundry some of the time”. [ 23 ] The Respondent also said that she cleaned the spare room where the Petitioner slept until 2013. He said that he “cleaned the house some of the time”. [ 24 ] All of the evidence has to be considered and viewed objectively. [ 25 ] In the circumstances of this case, the lack of sexual intimacy between the parties is not indicative of when they separated. [ 26 ] The parties disagreed on the extent to which they communicated with each other and how often the family had meals together. From all appearances, it was not the happiest of marriages.

While the Petitioner maintained his position that the parties were separated as of 2008, the Respondent insisted there was no significant change in their relationship until at least the end of 2012 when it was apparent that their marriage was starting to fall apart. [ 27 ] The parties did not engage in social activities or recreational activities together very frequently but did on occasion.

Examples included the family vacation to the Respondent’s father’s home in Florida in 2009 and family parties at the Respondent’s brother’s home in 2010 and 2011 as well as a Boxing Day event at a friend’s home in December, 2012. [ 28 ] There was no significant change in the way domestic responsibilities were shared. The Respondent prepared most of the family meals – regardless of when the Petitioner came home from work.

The Respondent also performed most of the household cleaning and did most of the family’s laundry up to October 1, 2013. [ 29 ] I note that on his tax returns the Petitioner indicated that he was married up to and including 2012. It was not until he prepared his 2013 tax return that he indicated that he was separated. I appreciate however that he may have thought that appropriate considering that the parties were living in the same house until 2013. [ 30 ] The Petitioner claimed that the parties separated on June 23, 2008 but remained living in the matrimonial home for essentially two reasons.

The first, and according to him the most important reason, was for the sake of their son, B.M.. In his affidavit sworn June 22, 2015 the Petitioner said “We agreed we would like [B.M.] to stay in the house while he was in school and we didn’t want to have a tug-of-war with [B.M.] to see who he would like to live with”. [ 31 ] The second reason was financial in nature. He said that in 2008 the parties had “a considerable amount of debt from credit

cards, income tax, a car loan, and the mortgage”. It was his evidence that the parties decided that he would remain living in the matrimonial home so that they could afford to pay off their debt. [ 32 ] The “considerable debt” to which the Petitioner referred totalled approximately $20,000.00 excluding the mortgage on the matrimonial home.

Of that there was credit card debt of approximately $5,000.00 and most of the remainder was a motor vehicle loan relating to the family’s one car. [ 33 ] I do not accept either of these reasons as an explanation for why the parties continued living in the same home until October 1, 2013. [ 34 ] According to the Petitioner the parties agreed to wait and to carefully pick the time when they would tell B.M. of his parents’ separation. He said they believed that when B.M. was in high school would be the appropriate time. Ultimately, the parties told B.M. of their pending separation in late September 2013.

By that time B.M. had been diagnosed with “generalized anxiety disorder” which was not apparent in 2008. In addition, he was then exhibiting behaviours which were not evident in 2008 which caused both of his parents considerable concern and which impacted negatively on his performance at school.

If B.M.’s ability to cope with his parents’ separation was the Petitioner’s main concern, it was illogical to tell him of their pending separation when they did and especially at the end of September, when his school year had just begun, rather than during the summer months when he may have had time to adjust before the recommencement of school. [ 35 ] I do not accept that the Petitioner carefully chose the timing of his exit from the marriage based on B.M.’s best interests. [ 36 ] Further, while I appreciate that what may be significant debt to one person may be insignificant to another, I do not believe that the Petitioner thought $20,000.00 of debt, in addition to the mortgage, was significant enough to keep him from leaving.

It is worth noting that the Petitioner bought his current home in the summer of 2015 before the matrimonial home was sold in December of that year. His new house cost approximately $200,000.00 more than the selling price of the matrimonial home. After purchasing it (with a mortgage) he borrowed more money to renovate it by expanding the bathroom in the basement, installing flooring and having landscaping performed. All of this suggests to me that the Petitioner’s tolerance for debt was greater than what he would have the Court believe it was in 2008.

I do not accept that the parties were “separated” but remained living in the same house for financial reasons. [ 37 ] Having considered all of the evidence, I find that the date of separation for the purpose of the Divorce Act was October 1, 2013 for the reasons that follow. [ 38 ] Until the end of September 2013 the parties’ finances remained intermingled and the Petitioner continued to handle the family finances more or less just as he did prior to 2008. The first sign of change came in late 2012 when the parties decided to close their joint chequing account.

As the Respondent said in paragraphs 69 to 71 of her affidavit sworn March 1, 2016: 69. In the fall of 2012, [the Petitioner] and I began to acknowledge to each other that our marriage was suffering. [The Petitioner] suggested that we stop using a joint chequing account. We opened separate chequing accounts in approximately November 2012. 70. We continued to live together and hold ourselves out publicly as a couple for another year after this. During that time we were highly consumed with our issues with [B.M.]. 71. During that time I knew that our marriage was troubled, and we were unhappy.

However, I did not consider us to be separated. [The Petitioner] and I did not discuss or agree that we were separated at that time. I understood us to be continuing in our marriage, albeit troubled. [ 39 ] Further, after the Petitioner moved from the matrimonial home on October 1, 2013 he presented the Respondent with a “separation agreement” that he prepared without the benefit of legal advice. In his affidavit sworn June 22, 2015 (before the Court determined the quantum of interim spousal support) he said the following: 47.

I filed a hastily prepared separation agreement with the Canada Revenue Agency (CRA) in order to claim the voluntary spousal support payments that I was making. This was the document attached as Exhibit “A” [it was actually exhibit “F”] to [the Respondent’s] affidavit. 48. This separation agreement was solely for the purposes [sic] of obtaining a refund from the spousal support payments that I voluntarily made. 49. This separation agreement was drafted by me and I did not intend it to be a legal document that [the Respondent] would try to hang me with later. 50.

It was not prepared by a lawyer, was not reviewed by a lawyer, was not dated, was not witnessed, and was not filed with the courts. [ 40 ] The separation agreement that the Petitioner prepared said in the first paragraph: “Starting on October 1, 2013, [the Respondent] and [the Petitioner] legally separated and are living separately. [ 41 ] The wording chosen by the Petitioner is not conclusive by itself. I appreciate that the Petitioner may not have known what the words “legally separated” might mean in a court of law.

Perhaps he would have chosen different wording if he had legal advice before preparing the document. Nevertheless the wording chosen by the Petitioner may be an indication of how he actually perceived their relationship at the time. [ 42 ] Most importantly, between June 2008 and October 1, 2013 the parties presented themselves to the public as a couple. As far as their family, friends, neighbours and work colleagues were concerned, they were not separated. Even their own son who lived in the same house had no indication that the parties were separated.

It was only after October 1, 2013 that they told anyone of their separation

(other than their son who was told at the end of September). It was also only after October 1 that either of the parties formed new romantic relationships. That occurred when the Petitioner met his new partner in December of that year. [ 43 ] The objective evidence suggests very strongly that neither of the parties intended to end their marriage consortium until October 1, 2013. By the end of 2012 they knew their marriage was in trouble and on the initiative of the Petitioner began to restructure their financial affairs.

It may be that it was then that the Petitioner began to plan for the parties’ eventual separation but I find that it was not until October 1, 2013 that he formed the intent to separate as contemplated by section 8(3) (

a) of the Divorce Act . 2. The Divorce With respect to the divorce proceedings, I am satisfied that all jurisdictional issues have been properly addressed. The parties were living separate and apart at the commencement of the divorce proceedings and have lived separate and apart for more than a year. They at no time resumed cohabitation since their separation on October 1, 2013, they have not reconciled and I find that there is no possibility of a reconciliation. I find that there has been a breakdown of the parties’ marriage and a Divorce Order will be issued. 3. Parenting [ 44 ] B.M. is 18 years of age.

He has been residing primarily with the Petitioner since April 2014. [ 45 ] Since B.M. was at least 15 years of age his parents have had “issues” with him. According to the Respondent those issues were at first what she referred to as teenage attitude but by the time he was 15 (one year before the parties separated) they included online gambling. Since then they came to include drug and alcohol abuse. [ 46 ] The parties do not communicate well regarding their son.

The Respondent said that the Petitioner gives her very limited information concerning their son and the Petitioner acknowledged that he is reluctant to pass on information to her regarding B.M. for fear that she will use that information against him. The Respondent also has difficulty receiving information directly from her son. Although he has his own cellphone, it is apparent that he does not keep his mother informed of his circumstances. [ 47 ] B.M. did not graduate from high school as anticipated in July 2015. His grade 12 year was almost entirely unsuccessful.

He re- enrolled in high school in September 2015 but dropped out approximately one month later. He is now attending “virtual school” in an attempt to obtain his high school certificate. He is currently taking just three courses.

Those courses are being taken on-line. [ 48 ] Because of the lack of communication between the parties the Respondent seeks an order that would include provisions requiring the Petitioner to advise her of any changes in B.M.’s health or educational circumstances, including monthly updates and a requirement that the Petitioner provide her with “meaningful answers” to any inquiries she might make regarding B.M. within three days of her request. She also seeks a provision requiring the Petitioner to ensure that there is a way that she can contact B.M..

Finally she seeks a provision that prohibits the Petitioner from discussing court proceedings or child support issues with B.M.. [ 49 ] The Respondent attributes B.M.’s poor school attendance to the fact that he resides primarily with his father and receives little encouragement from him to do better. The Petitioner attributes B.M.’s poor performance to the fact that he has general anxiety disorder. [ 50 ] The applicable legislation is found in

section 16 of the Divorce Act . Section 16(8) provides that in making an order under

section 16 the court shall take into consideration only the best interests of the child as determined by reference to the child’s condition, means, needs and other circumstances. [ 51 ] B.M. is 18 and in approximately four months he will no longer be a minor. He made the decision to live with his father. He is old enough to decide if and when he wants to communicate with his mother. There is no evidence that the Petitioner is doing anything to prevent him from doing so. In the circumstances of this case I order the following: 1. The parties will have joint decision making authority with respect to B.M. for so long as he remains a child of the marriage as defined by

section 2 of the Divorce Act ; 2. The order will acknowledge that B.M.’s primary residence is with the Petitioner and that the Respondent will have reasonable access to B.M. at reasonable times and subject to the wishes of B.M., with the specifics of that access to be arranged directly between the Respondent and B.M.; 3. The Petitioner will immediately advise the Respondent of any significant changes to B.M.’s health. Without limiting the generality of the foregoing, that will include notification of any need on B.M.’s part to attend a hospital; and 4.

For so long as B.M. is a child of the marriage the Petitioner will keep the Respondent advised of any changes to B.M.’s cellphone number of which he is aware. [ 52 ] Further information clauses are referred to in the Prospective Child Support

section of this decision. 4. Division of Assets and Debts [ 53 ] The applicable legislation is found in the Matrimonial Property Act , s upra, including, in particular, sub- section 4(1) which defines matrimonial assets, sub- section 12(1) which allows for an application for an equal division of matrimonial assets and

section 13 which lists the factors that are to be considered when determining if an equal division of matrimonial assets would be unfair or unconscionable. Having considered

section 13 I have come to the conclusion that it would not be unfair or unconscionable to divide the matrimonial assets and debts of the parties equally and neither party argued otherwise. In determining what is a matrimonial asset I was guided by the definition contained in

section 4 and in determining the value of the various assets and debts I was guided by the principles set out by Campbell, J. in Simmons v. Simmons , supra.

[ 54 ] The following are the matrimonial assets and debts of the parties as of the date of their separation that have not already been divided: 1. The former matrimonial home was sold in December 2015. After paying off the mortgage of approximately $90,000.00, each of the parties received $57,849.65 from the net sale proceeds. A further $25,000.00 is being held in trust pending the outcome of this proceeding. 2. The parties divided all of the household contents with the exception of family photographs.

The Court’s order will include a provision requiring that the Petitioner give to the Respondent digital copies of the family photographs that were on the family computer when the parties separated in October 2013. Similarly, the Respondent will make available to the Petitioner all family photo albums that she may have in her possession so that he may obtain his own copies of those photographs after which the photo albums are to be returned to the Respondent. 3. The parties own a 2007 Mazda motor vehicle which is in the possession of the Respondent.

The parties have agreed that the value of the vehicle for division purposes is $3,000.00. 4. Prior to their separation the parties had a joint bank account which they closed in November 2012. According to the Petitioner there was $30,000.00 in the account on the date it was closed. From the $30,000.00 approximately $5,000.00 was used to pay off a credit card debt, $5,000.00 was put into an RESP for B.M., and the remaining $20,000.00 was divided equally between the parties. The Petitioner said that after November 2012 he alone paid the mortgage payments and the utility expenses associated with the house.

Nevertheless, between November 2012 and October 2013 his bank account balance grew from $10,000.00 to $30,025.74. The Respondent said that with the $10,000.00 that she received from the joint account, she transferred $7,000.00 into a savings account and the remaining $3,000.00 into her personal chequing account. She said she used her personal chequing account for daily expenses for herself, the home and B.M.. Those expenses included groceries for the family, toiletries, household items for the house, clothing for B.M. and gas.

By the date of separation the Respondent had $7,006.45 in her savings account and only $152.50 remaining in her chequing account. 5. On the date of separation the Petitioner had four Registered Retirement Savings Plan accounts. In valuing those accounts for division purposes I was guided in particular by paragraphs 19 and 20 of Campbell, J.’s decision in Simmons , ibid, which reads as follows: “19.

If one of the parties holds investments or RRSP accounts at separation date, that spouse may account to the other by way of an inter-spousal rollover in an amount sufficient to equalize their positions or the owner spouse may retain that position and settle with a cash transfer. I would refer to the date of that rollover or the cash transfer as the “division date”. The division date may be prior to trial or after the trial.

Had it been possible to effect the rollover or cash transfer on the very day of separation, and ignoring any difference in investment performance that the one spouse might have achieved as compared to the other, they would in theory have separately achieved whatever combined gain or loss was actually achieved by the owner spouse as of the division date. The non-owning spouse cannot complain that he or she could have made better use of the asset if it had been divided sooner or that the investment lost value in the market.

The parties must accept the particular makeup of their asset mix and the investment decisions of the owner spouse (both of which are normally the function of agreement or acquiescence of the spouses) until such time as they finalize the separation of that asset. 20. It would be unfair to allow the owner to fail to share that growth with the non-owner spouse because, had the investment been divided on separation date, there would have been shared growth. Similarly, if the investments decreased in valu e as compared to separation date, it would be unfair for the non-owner spouse not to share in that loss.

The post-separation delay in settling this type of asset would have therefore affected the spouses equally by using the division date value. If there were post-separation contributions made to that investment account, it along with its increase or decrease in value should belong to the party contributing to it under the principle of section 4(1) (

g) of the [ Matrimonial Property] Act .”[ Section 4(1) (

g) excludes from the definition of “matrimonial assets” real and personal property acquired after separation.] Conversely, if post-separation the owner spouse deregistered funds that were in the account on the date of separation, those funds must be accounted for. On the date of separation the Petitioner had a locked-in RRSP with Scotia MacLeod. No withdrawals were made from that account between the date of separation and the date of trial and no new contributions were made to it other than a transfer from another RRSP that the Petitioner had with Standard Life on the date of separation.

The Standard Life account was closed but the funds were transferred to the ScotiaMacLeod account in January 2016. I therefore consider the full amount of that RRSP to be a matrimonial asset and, assuming no withdrawals were made from that account and no further contributions or transfers made into that account between the date of trial and the date of division (referred to below), the full value of that account as of the date of division will be shared equally with the Respondent by way of a spousal rollover. The Petitioner has a second RRSP account with ScotiaMacLeod.

That account has an account number ending 098. On the date of separation that account had a value of approximately $78,909.00. By January 29, 2016 its value had shrunk to $26,371.00 due mainly to withdrawals made by the Petitioner. In 2014, after the date of separation, the Petitioner withdrew $14,971.25 from this account and in 2015 he withdrew $64,285.71 for total withdrawals of $79,256.96.

However, offsetting those withdrawals to some degree were contributions in January 2015 of $15,000.00 and $20,000.00 in February 2016 for a total of $35,000.00 leaving net withdrawals from that account since the date of separation of $44,256.96.

Assuming no further contributions were made to r withdrawals were taken from this account between the January 29, 2016 and the date of division, the Petitioner will transfer to the Respondent by way of a spousal rollover on the date of division an amount equivalent to one half of the gross value of this account at that time plus a further $22,128.48 (being one half of the net withdrawals of $44,256.96)

from this account and if there are insufficient funds in this account the remainder will be transferred from the locked-in ScotiaMacLeod account referred to earlier. On the date of separation the Petitioner had a third RRSP account with CI Investments having a value as of December 31, 2013 of $2,123.32. The total value of that account was transferred to a fourth RRSP account with SunLife in February 2016. The CI Investments RRSP was then closed. The SunLife RRSP account had a value on the date of separation of approximately $22,461.00.

The most recent statement provided by the Petitioner showed its value as of November 30, 2015 as being $40,103.49 which did not include the funds transferred from CI Investments. It was his evidence that the value of the account as of February 2016 was $45,134.00 including the funds transferred from CI Investments. The Petitioner made additional contributions to this account since the date of the parties’ separation. They appear to total $13,069.80.

On the date of division the Petitioner will transfer to the Respondent by way of a spousal rollover an amount equivalent to one half of the gross value of this account as of the date of division after deducting the total of the contributions made to this account since the date of separation (which appears to be $13,069.80). For the purpose of the spousal rollovers referred to above, the date of division will be no later than June 30, 2016. 6. The Respondent is employed as a secretary with the Halifax Regional School Board. Her pension entitlement up to the date of separation is a matrimonial asset.

Her pension earned up to October 1, 2013 will therefore be divided equally at source with the Petitioner pursuant to the Teachers’ Pension Act S.N.S. 1998, c. 26 and Regulations. 7. The Petitioner’s income is comprised of a base salary and a bonus. The Petitioner receives his bonus cheque in the month of October each year but it is based on his performance (and that of his staff and the company) during the period between May 1 of the preceding year and April 30 th of the year in which he receives the bonus cheque. In October 2013 (shortly after the parties separated) he received a bonus cheque of $36,997.00.

In October 2014, approximately one year after the parties separated, he received another bonus cheque in the sum of $97,900.00. That bonus was earned between May 1, 2013 and April 30, 2014. A portion of that bonus was therefore earned prior to the parties’ separation. I find that the bonuses that were earned prior to the parties’ separation are matrimonial assets and are subject to an equal division between the parties.

Although the Petitioner didn’t receive the money until after the parties’ separation, I view the bonus cheque as being similar to an income tax refund cheque that may be received post-separation but related to income earned prior to separation. The entire 2013 bonus is to be divided equally between the parties but, because it is taxed in the hands of the Petitioner, it must first be discounted for tax. It makes sense to discount it at the Petitioner’s highest marginal tax bracket (federal and provincial rates).

The bonus cheque received in 2014 needs to be prorated for the period of time that the parties were still together with the prorated portion being discounted for tax. I calculate the gross value of the 2014 bonus cheque earned during the marriage to be $40,791.66 ($97,900.00 X 5/12). When I asked the Petitioner questions for clarification purposes he for the first time mentioned that his bonus cheque also included a small portion as a Christmas bonus. He estimated that the Christmas bonus portion was between $5,000.00 and $10,000.00. Nowhere in any of the Petitioner’s affidavits did he mention a Christmas bonus.

On two different occasions in two different affidavits he said the bonus was based on performance. He presented no documentation to confirm that a portion of his bonus was considered a “Christmas bonus”. I am not prepared to accept that any portion of his bonus was a Christmas bonus. Rather I conclude it is performance based. By approximating the Petitioner’s combined provincial and federal marginal tax bracket in 2013 and 2014 as being 47%, I have calculated the after tax value of the 2013 bonus cheque to be $19,608.00 and the after tax value of the matrimonial portion of the 2014 cheque to be $21,619.00.

The Petitioner will be required to share those sums equally with the Respondent. 8. The Respondent had a balance owing on her Scotia Bank credit card as of the date of separation and had incurred charges on that account up to September 28, 2013. The total came to $1,498.68. I reduced that amount for one of her invoices in the sum of $22.99 which, under the circumstances of this case, did not seem to be an appropriate matrimonial debt. That left a balance of $1,475.69 to be shared by the parties. 9.

In addition to the division of the family photographs, the Petitioner’s RRSP’s and the Respondent’s pension to which I have referred above, the remaining matrimonial assets and the credit card debt will be distributed between the parties according to the following chart: MATRIMONIAL ASSETS/DEBTS PETITIONER RESPONDENT Matrimonial home – remaining proceeds $25,000.00 2007 Mazda 3,000.00 Petitioner’s Bank Balance $30,025.74 Respondent’s Chequing Account Balance 152.50 Respondent’s Savings Account Balance 7,006.45 Petitioner’s 2013 Bonus 19,608.00 Petitioner’s 2014 Bonus 21,619.00

Respondent’s BNS Credit Card (1,475.69) Subtotals $71,252.74 $33,683.26 Equalization Payment (18,784.74) 18,784.74 Net Assets after Division $52,468.00 $52,468.00 To equalize the division of matrimonial assets and debts the Petitioner will pay to the Respondent an equalization payment of $18,784.74 which sum shall be paid to the Respondent no later than June 30, 2016. 10. In addition to the foregoing, the RESP that was set up for the benefit of B.M. will be held and managed by the Petitioner and if B.M. attends a post-secondary educational facility that money will be applied to his education costs.

If B.M. does not do that within the next four years (subject to any different agreement between the parties) that money, net of any tax payable, will be shared equally by the parties. 5. Prospective Child Support [ 55 ] The Petitioner sought child support from the Respondent for the support of B.M. on a prospective basis as well as retroactively to January 1, 2014. [ 56 ] The applicable legislation is found in

section 15.1 of the Divorce Act , supra, and in the Federal Child Support Guidelines , SOR 97/175. [ 57 ] After the parties separated on October 1, 2013 the Petitioner paid to the Respondent spousal support in the sum of $1,800.00 per month. It does not appear that either party had independent legal advice before deciding on that figure. Rather, the Petitioner chose that amount and incorporated it into the separation agreement that he prepared. The same agreement provided for child support. The Petitioner paid child support to the Respondent for B.M. from October 1, 2013 to and including June 2014.

In early 2014 B.M. started residing primarily with the Petitioner. In the summer of that year the Petitioner asked the Respondent to reimburse him for the child support that he paid for the months that B.M. lived with him. He also asked her to pay him child support for the same months. The Respondent complied, paying him what he had calculated to be his overpayment of child support and what he expected from her for child support up to and including September 2014. No child support was paid by either party to the other for B.M. after September 2014.

Since that time B.M. continued to live primarily with the Petitioner. [ 58 ] The parties agreed that B.M. has been and continues to be a child of the marriage as defined by the Divorce Act . The Respondent is prepared to pay the table amount of child support. [ 59 ] Her income is comprised of her salary from the Halifax Regional School Board and employment insurance benefits during the summer months.

Although originally the Petitioner was seeking to have additional income imputed to the Respondent, during his summation counsel for the Respondent indicated that the Petitioner was prepared to accept her salary as stated in her tax returns. [ 60 ] The Respondent’s income varies slightly from year-to-year depending on when school ends in the summer and recommences in September. In 2014 her income for child support purposes (net of union dues) was $40,079.00. In 2015 it was $39,730.00. For child support purposes I find her income to be $40,000.00 per annum.

I therefore order that the Respondent pay to the Petitioner the sum of $336.00 per month representing the table amount of child support for B.M.. Such payments will commence on the 1 st day of June, 2016 and continue on the 1 st day of each month thereafter until otherwise ordered. [ 61 ] The Petitioner also requested a provision in the Court’s order for the sharing of the cost of tutoring for B.M..

That is not a cost that is presently being incurred but one he anticipates will be incurred after B.M. completes his on-line high school program. [ 62 ] The Respondent is prepared to share that cost proportionate to the parties’ incomes provided she has input into whether a tutor is required and provided too that B.M. is making a diligent effort to succeed in his school work. [ 63 ] Because there is a reasonable likelihood that expense that will be incurred for B.M. in the near future, the Corollary Relief Order will include a provision stating that if B.M. is enrolled in a recognized educational program and his marks to that point in time indicate that he would benefit from the assistance of a tutor, then the cost of a tutor, if retained, will be share by the parties in proportion to their incomes pursuant to

section 7 of the Federal Child Support Guidelines . Should that expense be incurred in 2016 then the Respondent’s income for that purpose is $40,000.00 per annum. I will address the issue of the Petitioner’s income under the spousal support

section of this decision. The Respondent will have input into the choice of B.M.’s tutor. [ 64 ] The Court’s order will also include a provision that will require the Petitioner, commencing immediately, to provide confirmation of B.M.’s enrolment in any recognized educational program, confirmation of the courses that he will be taking, confirmation of the marks that he receives immediately upon receipt of those marks by B.M. and the Petitioner and notification of any change to his educational status, including notification if he discontinues any of his courses.

Should the Petitioner fail to provide this information to the Respondent in a timely fashion, then she will not be obliged to share any tutoring costs. [ 65 ] Further, because B.M. will be 19 years of age as of September 29, 2016 the Petitioner will, by September 20, 2016, provide written confirmation to the Respondent of B.M.’s enrolment in a recognized educational program at that time if he has not already done so.

If B.M. is not registered in a recognized educational program at that time then the Petitioner is to provide to the Respondent, in writing, reasons why he believes that B.M. is still a “child of the marriage” as defined by the Divorce Act . Should the Petitioner fail to

provide this information to the Respondent by September 30, 2016, it will be open to the Respondent to apply to this Court for a reviewof the child support provisions of the Corollary Relief Order. [66] The Petitioner will continue to maintain B.M. as a beneficiary of his medical and dental plans for so long as it is possible forhim to do so under the terms of his plans or any successor plans. 6. Prospective Spousal Support [67] The Respondent sought an order for ongoing spousal support for an indefinite period.

The Petitioner was opposed to thepayment of spousal support and felt that the Respondent was unable to demonstrate any entitlement. [68] The applicable legislation is found in the Divorce Act, supra, and in particular in

section 15.2 which reads as follows: Spousal support order 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. Interim order

(2) Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim orderrequiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as thecourt thinks reasonable for the support of the other spouse, pending the determination of the application under subsection (1). Terms and conditions

(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. Factors

(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. Spousal misconduct

(5) In making an order under subsection (1) or an interim order under subsection (2), the court shall not take into consideration anymisconduct of a spouse in relation to the marriage. Objectives of spousal support order

(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. [69] McLachlin J. (as she then was) said in Bracklow v. Bracklow, (SCC), [1999] 1 S.C.R. 420 at paragraph 49: 49. In

summary, the statutes and the case law suggest three conceptual bases for entitlement to spousal support: (1) compensatory, (2)contractual, and (3) non-compensatory. Marriage, as this Court held in Moge (at p. 870), is a “joint endeavour”, a socio-economicpartnership. That is the starting position. Support agreements are important (although not necessarily decisive), and so is the idea thatspouses should be compensated on marriage breakdown for losses and hardships caused by the marriage. Indeed, a review of casessuggests that in most circumstances compensation now serves as the main reason for support.

However, contract and compensation arenot the only sources of a support obligation. The obligation may alternatively arise out of the marriage relationship itself. Where aspouse achieves economic self-sufficiency on the basis of his or her own efforts, or on an award of compensatory support, the obligationfounded on the marriage relationship itself lies dormant. But where need is established that is not met on a compensatory or contractualbasis, the fundamental marital obligation may play a vital role.

Absent negating factors, it is available, in appropriate circumstances, toprovide just support. [70] Neither party suggested that there was a contractual basis for spousal support but counsel for the Respondent submitted that the

Respondent was entitled to support for both compensatory and non-compensatory reasons. On behalf of the Petitioner it was argued that there was no basis for spousal support on a compensatory basis and if any support was to be ordered it would be for non-compensatory reasons and for a limited period of time. [ 71 ] In Bracklow , supra, McLachlin J. said at paragraph 39: 39. The compensatory basis for support finds its source in a number of factors mentioned in the statutes. In the British Columbia Family Relations Act , these include s. 89(1) (

a) and (d). “[T]he role of each spouse in their family” embraces the contributions made by the spouses to the family for which compensation may be appropriate on the collapse of the marriage.

Similarly, “the ability and capacity of ... either or both spouses to support themselves” permits a court to examine whether spouses have foregone opportunities to develop the ability to support themselves because of the marriage, or have been rendered less able to support themselves by adverse effects of the marriage or the marriage breakdown. “[C]ustodial obligations respecting a child” ( Family Relations Act , s. 89(1)(c)) may relate to compensation. While spousal support is distinct from child support, the need to care for children has an impact on factors relevant to spousal support.

Under the Divorce Act , compensation arguments can be grounded in the need to consider the “condition” of the spouse; the “means, needs and other circumstances” of the spouse, which may encompass lack of ability to support oneself due to foregoing career opportunities during the marriage; and “the functions performed by each spouse during cohabitation”, which may support the same argument. In sum, these compensatory statutory provisions can be seen to embrace the independent, clean-break model of marriage and marriage breakdown. [ 72 ] In Fisher v.

Fisher , 2001 NSCA 18 Cromwell, J.A. (as he then was) said at paragraph 82: 82. The fundamental principles in spousal support cases are balance and fairness. All of the statutory objectives and factors must be considered. The goal is an order that is equitable having regard to all of the relevant considerations. As was stated in Bracklow , supra at para. 36 : ...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. [ 73 ] I find that the Respondent is entitled to spousal support on both a compensatory and non-compensatory basis. [ 74 ] The parties’ relationship was lengthy. Prior to their separation they were married for a little over 20 year and together for 21. While the Respondent was employed for most of those years, the Petitioner was the family’s chief source of income.

The Respondent’s income was always considerably less than his. Further, it was the Respondent who was primarily responsible for the maintenance of the household and the care of the parties’ son. [ 75 ] The Petitioner is an engineer by profession. The Respondent always worked in a secretarial capacity. They met in the early 1990’s while both were employed by the same firm. When the Petitioner left that employer in 1992 to accept a different position in British Columbia the Respondent left her job to go with him.

While in British Columbia the Respondent found full-time employment. [ 76 ] The parties remained in British Columbia for one year after which they returned to Nova Scotia and were married. The Petitioner returned to the firm with which he was employed prior to moving to British Columbia. The Respondent worked as a legal secretary from 1993 to 1997 with a law firm in Halifax. [ 77 ] In 1997 the parties’ son was born. The Respondent went on maternity leave to care for him. The Petitioner continued with his full-time employment as an engineer.

While on maternity leave, in addition to caring for B.M., the Respondent did most of the cooking as well as most of the housework. [ 78 ] Near the end of her maternity leave the Respondent started working from home for a legal transcription service – working around B.M.’s nap times. The Petitioner also assisted with B.M. when he was not at work. It would be fair to say however that as between the two of them, it was the Respondent who was primarily responsible for B.M.’s care.

This arrangement continued after the Respondent returned to work and after B.M. began elementary school. [ 79 ] In 2003 the Respondent began working part-time at B.M.’s school as a substitute secretary. She continued to care for B.M. before and after school. [ 80 ] Her substitute secretarial position transitioned into full-time hours in 2004. In the afternoons B.M. was cared for by the Respondent’s father until approximately 3:30 p.m. when the Respondent would pick him up. She continued to be the primary parent to B.M. after work.

It was she who took time off work if B.M. was sick or if he had to be taken to any medical appointments. [ 81 ] In 2005 she worked full-time hours by working 50% at two different schools (one being B.M.’s school).

In 2006 she maintained 70% hours by working at two different schools and in 2010 90% hours working at two schools. [ 82 ] By 2011 she was successful in obtaining a permanent 100% position at Smokey Drive Elementary School where she continues to work today. [ 83 ] While it is impossible to say to what extent the Respondent’s current annual income was impacted by the years that she was not working in a permanent full-time position because of the parties’ decision that she would be B.M.’s primary caregiver, it would be fair to say that between 1997 and 2011 her income, employment benefits and other advantages that may go along with being a permanent employee were negatively impacted and that may have had a residual effect on her income and benefits in the years that followed.

In addition, during her marriage to the Petitioner she became accustomed to a lifestyle commensurate with their combined incomes, the majority of which was the income of the Petitioner. Because of the roles they each assumed during their relationship and the choices that they made, she is not as likely as the Petitioner to maintain on her own the same lifestyle that they enjoyed during their marriage. Clearly she has been economically disadvantaged by the marriage breakdown.

[84] In determining the quantum of spousal support, I considered the respective incomes of the parties. The Respondent’s annualincome is approximately $40,000.00 gross. The Petitioner’s income is comprised of his base salary which is now $118,000.00 per annumand his annual bonus. His bonus in the last four years was $42,871.00 in 2012, $36,997.00 in 2013, $97,900.00 in 2014 and $33,609.00in 2015. It isn’t possible to predict with certainty what his annual bonus will be in future years. His 2014 bonus was unusually high due toan unusually good year for his firm.

For that reason I have chosen to average the bonuses that he received in 2012, 2013 and 2015 toarrive at what I consider to be a reasonable estimate or prediction of what his bonus will be in October 2016 and possibly 2017. Itherefore estimate his annual income for spousal support purposes at this time as being $155,825.00 ($118,000.00 + $37,825.00)excluding the child support paid to him by the Respondent. In addition to that income the Petitioner’s employer pays for his cell phone,his motor vehicle and all related motor vehicle expenses.

He uses his car for both business and personal purposes. [85] I also considered the parties’ sworn Statements of Expenses. For the most

part I found the Respondent’s expenses to bereasonable although I made some adjustments to the figures shown for extra-curricular activities, drugs, holidays, miscellaneous and“other” as well as corrections to some of her employment source deductions. [86] The Petitioner’s Statement of Expenses was less helpful. It included the expenses of maintaining a house which he cannot seemto afford. It included the expenses of his current partner and her two children.

It did not include any contribution by his partner to thoseexpenses and his discretionary expenses such as gifts, holidays and entertainment were, in his current circumstances, too high. Overallthe Petitioner’s Statement of Expenses was of little assistance in assessing his reasonable needs. It was therefore left to the Court todetermine what his expenses should reasonably be (and therefore his ability to pay ongoing spousal support). [87] The needs of the Respondent certainly trump the needs of the Petitioner’s partner and her children. I therefore felt no need tomake any allowances for them.

It seems to me that it would not be unreasonable to attribute expenses to the Petitioner similar to thosewhich I have allowed the Respondent (excluding motor vehicle expenses and expenses relating to his cellphone), adjusting thoseexpenses for the reasonable needs of B.M..

B.M.’s expenses in turn would be adjusted from the child support that is to be paid by theRespondent to the Petitioner. [88] I considered too the retroactive spousal support that is still to be paid by the Petitioner to the Respondent, the support figuresuggested by the Spousal Support Advisory Guidelines and the tax consequences to both parties at various levels of spousal support. [89] Taking all these considerations into account I order the Petitioner to pay to the Respondent monthly spousal support in the sum of $3,100.00 which spousal support will commence on the 1st day of June, 2016 and continue on the 1st day of each month thereafteruntil otherwise ordered. [90] In arriving at my decision I am mindful of the comments of L’Heureux-Dube J. who wrote for the majority in Moge v.

Moge, (SCC), [1992] 3 S.C.R. 813. The Court emphasized that the determination of the appropriate spousal support figure isnot based strictly on an assessment of the parties’ means and needs. All of the objectives listed in

section 15.2 (6) of the Divorce Act areto be considered. No single objective is paramount (paragraphs 51-53). Therefore, I did not limit my analysis to simply covering theRespondent’s deficit. Such a restrictive approach would give no recognition to the lifestyle of the parties during their marriage –particularly in the last four years – or the differences in their lifestyles now that they are separated.

Even with the amount of spousalsupport that I have ordered, the Petitioner will have significantly more net disposable income than will the Respondent. [91] In addition to the monthly spousal support figure, the Petitioner is ordered to maintain life insurance on his life in the minimumsum of $100,000.00 naming the Respondent as his beneficiary for so long as spousal support remains payable. This provision is a term ofthe spousal support order as is allowed by

section 15.2(3) of the Divorce Act and is intended to provide some level of security to theRespondent in the event of the death of the Petitioner while spousal support continues to be payable. [92] The Petitioner sought an order which would bring his spousal support obligations to an end in a short period of time.Considering the length of the parties’ relationship, the functions each performed during their marriage and all of the objectives containedin

section 15.2(6) of the Divorce Act, I find it would not be appropriate to impose a time limit on the spousal support payments. At thistime I have no way of predicting when the Respondent will no longer be in need of support. The spousal support payments will be for anindefinite period. The Divorce Act allows for a variation and/or termination of those payments in the event of a material change in thecircumstances of the parties (s.17(1) and 17(4.1)). 7. Retroactive Child Support [93] The Petitioner asked for the table amount of child support for B.M. retroactive to October 1, 2014.

The Respondent’s incomefor child support purposes for the years 2014, 2015 and 2016 was $40,000.00 per year. Retroactive child support for the 20 monthsstarting October 1, 2014 to and including May 2016 would come to $6,720.00 ($336.00 X 20 months). [94] One of the interim orders granted by Cormier J. and issued on January 13, 2016 dealt with interim spousal support. That orderarose out of a hearing that concluded on July 3, 2015. Justice Cormier made it clear in her decision that she was not dealing with childsupport at that time. She left that issue to be determined at trial.

In arriving at her decision on interim spousal support, it appears thatJustice Cormier was not asked to perform and did not perform an in depth analysis of the amount of spousal support that should havebeen paid by the Petitioner to the Respondent. Rather, after concluding that interim spousal support of some amount was appropriate, sheordered a continuation of the $1,800.00 monthly payment that the Petitioner had previously been paying. [95] The Respondent did not ask for a retroactive adjustment to the spousal support payments.

Had she done so, the quantum ofspousal support that I may have ordered on a retroactive basis would have well exceeded the $1,800.00 a month figure chosen by thePetitioner and contained in Justice Cormier’s interim order for the same reasons that I provided under the heading “Prospective SpousalSupport” above. The additional amount that I may have ordered the Petitioner to pay – net of tax – would have exceeded the amount ofretroactive child support he is seeking. [96] Therefore, although the Respondent has not asked for an order for retroactive spousal support, I am declining to order any

retroactive child support payment. To order the Respondent to pay retroactive child support for the period of time during which the Petitioner paid what I consider to be an inadequate amount of spousal support in a greater sum, would be unfair and inequitable (see Fisher , supra). CONCLUSION AND COSTS [ 97 ] Under the circumstances I direct counsel for the Respondent to prepare the Divorce Order, the Corollary Relief Order and the Pension Division Order.

The Corollary Relief Order will include the usual provisions requiring the exchange of tax returns and Notices of Assessment by the parties no later than June 1 of each year, commencing June 1, 2016. [ 98 ] Should either party wish to be heard on the issue of costs they are to contact my office within the next thirty days and a date will be assigned for submissions. Dellapinna, J.