Sampson v. Sampson, 2019 NSSC 169

SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: Sampson v. Sampson, 2019 NSSC 169 Date: 2019-05-16 Docket: 1201-071332 Registry: Halifax Between: Cheryl Sampson Applicant v. Arthur Sampson Respondent LIBRARY HEADING Judge: The Honourable Justice Theresa M. Forgeron Heard: April 11 and 12, 2019; May 7and 16, 2019 Oral Decision: May 16, 2019 Written Release: June 19, 2019 Topic: Family Law; Interim Spousal Support; Income Imputation;

Summary: Wife established entitlement to interim spousal support based on compensatory and non-compensatory grounds. The paries’ written agreement was silent on support issues; it did not bar the wife’s entitlement to interim spousal support. Husband’s text message confirmed his intention to avoid paying spousal support. Husband had ability to pay based on an imputed income. Support set at $1,800 per month, together with $5,000 for retroactive payment to date of application. 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: Sampson v. Sampson , 2019 NSSC 169

Date: 2019-05-16 Docket: 1201-071332 Registry: Halifax Between: Cheryl Sampson Applicant v. Arthur Sampson Respondent Judge: The Honourable Justice Theresa M. Forgeron Heard: April 11 and 12, 2019; and May 7 and 16, 2019 in Halifax, Nova Scotia Oral Decision: May 16, 2019 Written Release: June 19, 2019 Counsel: Cheryl Sampson, self - represented Arthur Sampson, self - represented By the Court: Introduction [ 1 ] This decision concerns the payment of interim spousal support. [ 2 ] Ms. Sampson seeks spousal support on compensatory and non-compensatory grounds. She focused her claim on three factors.

First, she states that throughout their twenty-year relationship, Mr. Sampson was the primary wage earner, while she was primarily responsible for the care and maintenance of the home and children. Second, Ms. Sampson states that she currently has no ability to work because of a multitude of health complications including a lung cancer diagnosis, ongoing issues with chronic back pain from scoliosis, depression, anxiety and ADHD, all of which were confirmed by her doctor. Finally, Ms.

Sampson notes that the parties’ only dependent child lives with her; she has no ability to provide for their joint welfare in the absence of spousal support. [ 3 ] In contrast, Mr. Sampson says that Ms. Sampson’s spousal support request should be denied for three reasons. First, Mr. Sampson denies entitlement. He states that the parties signed an agreement which was intended to bar the payment of spousal support. Second, Mr. Sampson states that Ms. Sampson can earn an income sufficient to meet her own needs. He states that in the past, Ms. Sampson earned a significant income as owner of the family business.

Third, even if there is entitlement and need, Mr. Sampson states that he has no ability to pay. Issues [ 4 ] The issues of entitlement, need, and ability to pay will be examined in this decision, but all within the framework of an interim, and not final disposition, and by answering the following four questions: • Does the signed agreement bar Ms. Sampson from pursuing an interim spousal support claim? • Has Ms. Sampson proved entitlement? • Does Mr. Sampson have an ability to pay interim spousal support? • What is the appropriate interim spousal support order?

Background Information [ 5 ] Before analyzing these questions, I will review background information to provide context. [ 6 ] Mr. and Ms. Sampson lived together for about 20 years. They started to cohabit in 1997; were married in 2006; and separated in 2018. [ 7 ] The Sampson household was a blended family. When cohabitation began, each had two sons from previous marriages. In addition, the parties had one child together, a daughter who was born in 2000. Ms. Sampson was primarily responsible for the care of the parties’ five children while Mr. Sampson was the primary wage earner.

[ 8 ] During most of the relationship, Mr. Sampson operated a concrete business. Mr. Sampson was successful and earned a good living. The parties enjoyed a comfortable lifestyle because Mr. Sampson was an excellent provider. [ 9 ] Mr. Sampson’s business eventually encountered difficulties because of his tendency to use the business account for both personal and business purposes and because Mr. Sampson’s failed to make tax remittances. To address the tax liability, Mr.

Sampson made an assignment in bankruptcy on two occasions. [ 10 ] After his last assignment, a new business, Artcrete Ltd was incorporated, with Ms. Sampson as owner. Mr. Sampson and his sons were the employees. Ms. Sampson met all government filings. In addition, she hired an accountant to ensure compliance with government regulations. The accountant also prepared Financial Statements for the company and provided accounting advice on a go forward basis. [ 11 ] The parties began to experience relationship issues and in 2018 decided to separate. Despite the separation, Mr. and Ms.

Sampson continued to occupy the matrimonial home with their daughter. Tensions rose. The separation rapidly evolved into a high conflict separation. [ 12 ] Not surprisingly given this backdrop, the parties were unable to cooperate in the operation of the family business. The business closed on October 3, 2018; each party blaming the other for the business’ demise. There is considerable debt outstanding. [ 13 ] After the business closed, Mr. Sampson nonetheless continued to work installing concrete until the season was over. He collected EI during the winter months. [ 14 ] On November 19, 2018, Ms.

Sampson filed an application with the court. In addition, she applied for interim child and spousal support. On November 22, 2018, the parties signed an agreement which was drafted by Mr. Sampson. The agreement focused on property issues and involved Mr. Sampson buying out Ms. Sampson’s interest in the matrimonial home. The agreement was silent on the issue of support. [ 15 ] On November 26, 2018, Ms. Sampson and the parties’ daughter moved out of the matrimonial home to an apartment. Mr. Sampson continued to occupy the family home. [ 16 ] The parties attempted to mediate the outstanding legal issues.

An interim child support claim was resolved during a settlement conference held on February 19, 2019. Unfortunately, the interim spousal support issues were not settled and proceeded to hearing. [ 17 ] The parties were self-represented during the interim hearing. Both were unfamiliar with the law, civil procedure and court processes. As a result, the interim hearing was unnecessarily protracted. Evidence was heard on April 11, April 12, and May 7, 2019. The parties were the only witnesses. Twenty-six exhibits were introduced during the hearing. I reserved decision; an oral decision was rendered on May 16, 2019.

Analysis [ 18 ] Does the signed agreement bar Ms. Sampson from pursuing an interim spousal support claim? Position of the Parties [ 19 ] Mr. Sampson strenuously objects to the payment of spousal support because of the agreement that the parties signed in November 2018. Mr. Sampson says that the agreement was negotiated and signed because the parties wanted to avoid protracted litigation and associated legal fees. Mr. Sampson says that the November agreement was intended to bar the recovery of spousal support. [ 20 ] Ms. Sampson disagrees.

She states that the agreement does not meet the requirements of the Matrimonial Property Act and in any event, the agreement does not even mention spousal support. Decision [ 21 ] I agree with Ms. Sampson. Ms. Sampson’s entitlement to spousal support is not barred by the November 2018 agreement for three reasons. First, this is an interim application; it is not a final hearing. Ms. Sampson proved the requisite prima facie case in that the agreement contains no waiver of spousal support. In such circumstances Ms. Sampson has a reasonable chance of succeeding at trial.

A prima facie case is all that is required at the interim stage because interim hearings are designed to provide a quick response to urgent family law matters, such as interim support, pending full disclosure and a final trial: Burden v. Burden , 2013 NSCA 30 . Interim applications aren’t meant to resolve support claims on a final basis. [ 22 ] Second, the agreement deals with property issues only. The agreement makes no reference to spousal support. It is settled law that matters about which an order or agreement are silent are not regarded as having been adjudicated or resolved: Luce v.

Luce , 2003 NBCA 48 ; Lefebvre v. Strilchuck , [2007] OJ 983 (Sup Ct J) ; McIllwraith v. McIllwraith , 2008 NBQB 19 ; and Djuric v. Dellorusso , 2019 NSSC 95 . Simply stated, one cannot infer that an agreement dealing exclusively with property matters terminates a spousal support claim. [ 23 ] Third, if the agreement is ambiguous in its silence, Ms. Sampson would have recourse to the contra preferentum rule. If there is an ambiguity, the preferred

interpretation is the one that does not favor the interests of the party who drafted the agreement. Because Mr. Sampson drafted the agreement, any ambiguity would favour Ms. Sampson. [ 24 ] Given these findings, I conclude that Ms. Sampson’s spousal support claim is not extinguished by the November 2018 agreement either expressly or by direct implication. [ 25 ] Has Ms. Sampson proved entitlement?

Position of Ms. Sampson [26] Ms. Sampson states that she is entitled to spousal support because she assumed a traditional role within the relationship. Shesacrificed her financial independence to care for the home and family. In so doing, Mr. Sampson was able to earn a good salary andconcentrate on his career. [27] In addition, Ms. Sampson argues that there is a significant disparity in the parties’ economic circumstances post-separation. Shestates that this disparity, together with her ongoing care of the parties’ daughter, confirm entitlement to interim spousal support. [28] Finally, Ms.

Sampson states that she is unable to work because of a myriad of health problems, both physical and emotional,and as confirmed by her doctor. She is contending with a lung cancer diagnosis, extensive back pain, anxiety and PTSD. Employment atthis stage is not feasible. Position of Mr. Sampson [29] Mr. Sampson denies entitlement for the following three reasons: • Ms. Sampson is the owner of the concrete business and was actively involved in most aspects of the business. She is qualified torun the concrete business if she chooses to do so. She can earn a living. • Ms. Sampson is qualified to work at other jobs.

She has skills and talents. She is not dependent on him. • Ms. Sampson was not a traditional housewife. She was not exclusively in charge of raising the children. He and his sons assisted. Ms. Sampson was encouraged to become financially independent throughout the relationship. Decision [30]

Section 15 of the Divorce Act provides me with the jurisdiction to award interim spousal support. In Bracklow v.

Bracklow, (SCC), 1999 1 S.C.R. 420, the Supreme Court of Canada confirmed that spousal support must have its genesis in atleast one of the following three sources: • Compensatory support to address economic advantages and disadvantages flowing from the marriage, or the roles adopted duringthe marriage. • Non-compensatory support to address the disparity between the needs and means of the parties and arising from the marriagebreakdown. • Contractual spousal support, either expressed or implied. [31] The factors which I must consider when deciding a spousal support claim are set out in s. 15.2(4) of the Divorce Act, as follows: 15.2(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration thecondition, 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. [32] The objectives I must apply are set outlined in s. 15.2(6) of the Divorce Act, which provides as follows: 15.2(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. [33] Ms. Sampson proved entitlement to spousal support for the following reasons: • The parties were in a relationship for approximately 20 years. • Mr. Sampson was the primary wage earner during the relationship. He provided Ms. Sampson and the children with acomfortable, middle class lifestyle. Mr. Sampson was able to develop his career because of the roles that the parties assumed during theirrelationship.

• Ms. Sampson was primarily responsible for the care of the children and the maintenance of the home during the marriage. Ms.Sampson became involved in the concrete business later in life and only after most of the children were independent. Ms. Sampson lostan economic advantage because of the role that she assumed during the relationship. • At the end of their twenty-year relationship, Mr. Sampson has a better income earning potential than does Ms. Sampson. • At the end of their twenty-year relationship, Ms. Sampson and the parties’ daughter are experiencing financial uncertainty anddifficulties. Ms.

Sampson is in an apartment which she must vacate at month’s end. Mr. Sampson lives in the matrimonial home. Ms.Sampson has few monetary resources. Mr. Sampson is better equipped to find employment. • Ms. Sampson currently experiences a host of physical and mental health issues. These health issues negatively affect her ability tosecure anything other than minimal, casual and occasional work during this interim period. [34] In

summary, I find that Ms. Sampson has proven entitlement on both a compensatory and non-compensatory basis. [35] Does Mr. Sampson have an ability to pay interim spousal support? Position of the Parties [36] Mr. Sampson states that he has no ability to pay. He says the business is no longer operating and he has no job, although hewill continue to look for employment with another company, provided he and his two sons can work together. [37] For her part, Ms. Sampson says that Mr. Sampson is structuring his life to avoid the payment of support notwithstanding hisability to work. She further says Mr.

Sampson continues to work in the concrete business and does not report his income. She says thathe is either underemployed or not reporting income or both. Decision [38] When determining the issue of spousal support, I am not restricted to actual income earned for two reasons. First, I am directedto examine the means of the parties and not simply income earned.

Means is an expansive definition as reviewed in Leskun v.Leskun 2006 SCC 25 at para 29: [29] There is no support in the case law or in logic for the proposition that the Chambers judge was wrong to take into account theappellant's capital assets acquired after the marital break-up. In Strang v. Strang, (SCC), [1992] 2 S.C.R. 112 (S.C.C.),the Court stated that the traditional understanding of the word "means" includes, "all pecuniary resources, capital assets, income fromemployment or earning capacity, and other sources from which the person receives gains or benefits" (p. 119). J. Payne and M.

Payneelaborate as follows: The word means includes all pecuniary resources, capital assets, income from employment or earning capacity, and any other sourcefrom which gains or benefits are received, together with, in certain circumstances, money that a person does not have in possession butthat is available to such person. (Canadian Family Law (2001), at p. 195). [39] Second, income imputation is not restricted to child support cases, and indeed the same principles are at play when determiningincome for spousal support purposes: Saunders v. Saunders, 2011 NSCA 81; Shaw v. Shaw 2009 NSSC 353. [40] I find that Mr.

Sampson has an income earning capacity of at least $50,000 for the purposes of this interim motion. I reach thisconclusion for the following reasons: • Mr. Sampson did not testify as to his true income. He understated his abilities and his true financial position because he does notwant to pay spousal support. Mr. Sampson’s strategy is to avoid paying spousal support at all costs. This is noted in his text messagewherein Mr.

Sampson stated as follows: Cause you want me to pay for it And I promise that will NEVER happen I won’t work another day in my life just so you know BeforeI’ll pay you one cent I’ll go to jail also before I pay you • Mr. Sampson worked in the concrete business for over 30 years. He has an excellent reputation for doing quality work. He has thebusiness connections associated with 30 years of experience. • Mr. Sampson had no difficulty finding work in the past. If he but try, Mr. Sampson could easily find work again. • Mr. Sampson does not always report his income to Revenue Canada.

For example, after Artcrete Ltd closed in October 2018, Mr.Sampson continued to work. Ms. Sampson brought forth convincing evidence that Mr. Sampson earned money without reporting it toRevenue Canada during this period. I find that Mr. Sampson is likely to continue to work on a cash basis in circumstances which heconsiders appropriate. • The corporate accountant stated that the family business was a profitable one that should be producing a net family income in therange of $75,000 - $100,000 a year. • Although Ms.

Sampson is technically the corporate owner of Artcrete Ltd, the business itself was largely successful because of Mr.Sampson. Mr. Sampson was the person who managed the physical work and who interacted with the public in securing accounts. • Mr. Sampson has done very little to secure employment with other contractors because he wants to artificially reduce his income to

avoid paying maintenance. [ 41 ] I find that Mr. Sampson has two choices at this point. He can become self-employed or he can work as an employee with other concrete businesses. Mr. Sampson will be successful in either of these choices. He has the capacity to earn more than $50,000. I have placed $50,000 as his income earning capacity for the purposes of this interim hearing because I recognize that Mr. Sampson will require time to re-establish himself in the market and with suppliers should he choose to operate his own business. [ 42 ] Given my findings, Mr.

Sampson has the ability to pay spousal support. [ 43 ] What is the appropriate interim spousal support order? [ 44 ] The factors and objectives that I must consider on an interim motion are set out in

section 15 of the Divorce Act . I have applied these provisions to the evidence. I also considered the reasonable needs of each of the parties in the context of their lifestyle and in the context of their means and circumstances. I have reviewed their budgets. [ 45 ] In setting the appropriate quantum of support, I note the following: • Ms. Sampson’s revised budget is not excessive and is based on her care of her daughter – a budget for two people, not one. • Ms. Sampson requires spousal support to ensure that her basic needs and those of her daughter are met. Ms. Sampson’ circumstances are dire.

She receives little in child support. • Ms. Sampson has a limited ability to work at this stage in the proceeding given her overriding health issues, although she is likely capable of some occasional and casual employment with minimal hours. • Mr. Sampson has a corresponding ability to pay, despite his protestations to the contrary. [ 46 ] I therefore award spousal support at a rate of $1,800 a month, commencing May 2019, payable in two equal monthly instalments on the 15 th and last day of each month.

Support will be payable through the Maintenance Enforcement program once the order is registered. [ 47 ] A retroactive award is also granted for the period commencing December 2015 until and including April 2019, which represents the period after Ms. Sampson left the matrimonial home. Ms. Sampson filed her motion in November and should not be penalized because an early court date was not available. Because the retroactive award will be a lump sum payment, it will be tax neutral. In the circumstances, Mr. Sampson must pay $5,000 in retroactive support.

Conclusion [ 48 ] The court will draft the order which provides Ms. Sampson with $1,800 per month in spousal support and a lump sum of $5,000 in retroactive spousal support. Forgeron, J.