Lisa Strait-Hinnerichsen Petitioner v. Henrick Strait-Hinnerichsen Respondent Judge: The Honourable Justice Ingersoll, 2023 NSSC 340

SUPREME COURT OF Nova Scotia Citation: Strait-Hinnerichsen v. Strait-Hinnerichsen , 2023 NSSC 340 Date: 20231030 Docket: 1201-073639 Registry: Halifax Between: Lisa Strait-Hinnerichsen Petitioner v. Henrick Strait-Hinnerichsen Respondent Judge: The Honourable Justice Ingersoll Heard: May 11, 2023, in Halifax, Nova Scotia Written Release: October 30, 2023 Counsel: Yvonne M.R. LaHaye, K.C. for Lisa Strait-Hinnerichsen Diana Musgrave for Henrick Strait-Hinnerichsen By the Court: Introduction [ 1 ] Lisa Strait-Hinnerichsen and Henrick Strait-Hinnerichsen separated after almost 20 years of marriage.

They have agreed on a shared parenting arrangement for their 2 children. [ 2 ] In this decision I must resolve the following: 1. Should the divorce be granted? 2. What are the matrimonial assets subject to division? 3. Is Ms. Strait-Hinnerichsen entitled to an unequal division of matrimonial assets or to a division of non-matrimonial assets? 4. In the context of shared parenting is Ms. Strait-Hinnerichsen entitled to prospective and historic child support? 5. In the context of shared parenting what is the appropriate proportionate sharing of special and extraordinary expenses? 6. Is Ms.

Strait-Hinnerichsen entitled to prospective spousal support and if so in what amount and for what duration? 7. Is Ms. Strait-Hinnerichsen entitled to historic spousal support and if so in what amount? 8. Is Ms. Strait-Hinnerichsen entitled to occupation rent from Mr. Strait-Hinnerichsen as of March 2022? [ 3 ] I will now address each of these issues. 1 Should the divorce be granted? [ 4 ] The parties were married in Nova Scotia on July 21, 2001, and separated on January 27, 2021 (“the Separation Date”). The Petition for Divorce was filed on August 27, 2021, and served on September 17, 2021.

An Answer was filed on September 20, 2021, and served on September 22, 2021. The Petition, the Answer, the Affidavits of Service, and the long form Marriage Certificate were tendered as exhibits. [ 5 ] The parties have not reconciled, and I am satisfied that there is no possibility of reconciliation. The parties have both lived in

Nova Scotia continuously since 2010. I am satisfied that the jurisdictional requirements for the granting of a divorce have been met, andthere is proof of permanent marriage breakdown. There is no bar to divorce such as collusion, condonation, or connivance. [6] I grant the divorce. 2 What are the matrimonial assets subject to division? [7] The parties agreed on the identity, characterization, and value of most of their assets and debts. These agreements, and easilyresolved issues, are in

Schedule A. [8] The parties are not in agreement with respect to two assets: an Investment Account and an RRSP Account. Mr. Strait-Hinnerichsen inherited both assets. They are in Mr. Strait-Hinnerichsen’s name exclusively. He says that they have not been comingledwith matrimonial assets and are, therefore, exempt from inclusion as matrimonial property. Ms. Strait-Hinnerichsen says that theInvestment Account was used to fund the family’s expenses through their marriage and as a result is a matrimonial property subject todivision. Ms.

Strait-Hinnerichsen says that the funds within the RRSP Account were intended to fund the parties’ retirement and should,therefore, be considered a matrimonial asset. 3 Are the Investment Account and the RRSP Account exempt from inclusion as matrimonial property? [9] I will deal with the Investment Account and the RRSP Account separately after reviewing the law which is applicable to bothaccounts. [10] All assets owned by the parties are presumed to be matrimonial assets regardless of ownership and are to be divided in equalshares under

Section 12 of the Matrimonial Property Act R.S.N.S. 1989, c. 275, s. 1 (hereafter the MPA). Certain assets or classes ofassets enumerated in Clause 4 of the MPA are exempted from the classification of matrimonial assets and from equal division. Theinheritance exceptions are set out in clause 4(1)(a): (

a) gifts, inheritances, trusts or settlements received by one spouse from a person other than the other spouse except to the extent towhich they are used for the benefit of both spouses or their children. [11] The inheritance exception in clause 4 (1)(

a) applies to assets purchased with exempt inherited funds provided the subsequentlypurchased assets were not used for family purposes. (See Tibbetts v. Tibbetts, 1992 NSCA 17 at paragraph 38 and Kennedy-Dowell v.Dowell 2002 NSSF 13 at paragraph 47) [12] The clause 4(1)(

a) inheritance exception applies to earnings (such as accrued interest) generated by inherited assets [seeTibbetts v. Tibbets [1992], 119 NSR [2D] 26, O’Toole v. O’Toole [1999], 175 NSR [2D] 131, (NS SC), [1999] NSJNo. 111 and Rafuse v. Rafuse 2015 NSSC 374]. [13] An inherited asset may lose its exempt status if it is used for the benefit of both spouses or their children. It is the use to whichan inherited assets is put, not the future intended use or the length of cohabitation, which could deprive an inherited asset of its exemptstatus. [14] In MacLean v.

MacLean 2019 NSSC 322, Justice Chiasson considered what utilization of an inherited asset would constitute“use” and thus deprive the inherited asset of its exempt status. Justice Chiasson cited Fisher v. Fisher 2001 NSCA 18 in which JusticeCromwell held that the fundamental issue in considering whether an inherited asset has been used for the benefit of the spouses orchildren is “the extent to which the asset has gone into “the matrimonial pot””.

Justice Cromwell held that the determination of whetheran asset has gone into the matrimonial pot must be made: having regard to the nature of the asset and what use, in the normal course of life, would constitute integration of an asset of that natureinto the life of the family. Factors such as the degree to which the asset was kept and treated separately from matrimonial assets, theamount and nature of its use by, or on behalf of, the spouses or the children and the contribution of family resources to maintain orenhance the asset may be factors which will be helpful to consider in making this determination.

This, of course, is not an exhaustive list.(paragraph 15) [15] Justice Chiasson also referred to Justice Campbell’s “use” analysis in Kennedy-Dowell, supra wherein Justice Campbell stated: 54 ………. if a preserved asset was merely invested for the purpose of earning investment income spent for family purposes, it has notbeen "used" at all. Instead, what has been "used" is the proceeds of the inheritance or trust rather than the inheritance or trust itself. Theuse of an income from a trust or inheritance does not taint the fund itself. [16] Likewise, Justice MacAdam in Rafuse v.

Rafuse, 2015 NSSC 374, held that although exempt assets and funds that arewithdrawn from exempt assets may lose their exempt character by virtue of being used for family purposes, that use does not affect theexemption accorded to the remainder of the fund (see paragraph 20). [17] In determining if an inherited asset has gone into the matrimonial pot I may consider: 1. Whether the asset was kept and treated separately from matrimonial assets. 2. The amount and nature of its use by or on behalf of the spouses or the children. 3.

The extent to which family resources were contributed to maintain or enhance the asset. 4. The extent to which and the manner in which the asset has been consumed, substituted, or preserved. [18] The evidence establishes that Mr. Strait-Hinnerichsen inherited assets that became the Investment Account, the RRSP Account

and his mother’s jewelry collection when she passed away in 1987. The question I need to resolve is whether the accounts were used for the benefit of both spouses or the children. [ 19 ] The evidence establishes that Mr. Strait-Hinnerichsen gained access to the Investment Account and the RRSP Account when he turned 28 in 2001.

Until that time his mother’s executors together with the investment advisors managed those accounts and approved all expenditures. 3.1 The Investment Account [ 20 ] The evidence establishes that on an ongoing basis funds were withdrawn from the Investment Account and deposited in the parties’ joint bank account and used to fund family expenses including but not limited to the purchase or contribution to the purchase of the matrimonial home in Toronto and several homes in Nova Scotia. [ 21 ] Between 2005 and the Separation Date, Mr.

Strait-Hinnerichsen directed that $4,476,151.97 be withdrawn from that the Investment Account for the benefit of his family (excluding the RRSP funds deposited into the RRSP Account and funds used to pay the tax liabilities triggered by withdrawals from the Investment Account.) [ 22 ] The uncontradicted evidence is that while Mr. Strait-Hinnerichsen attended meetings with the investment advisors before his 28 th birthday and thereafter, Ms. Strait-Hinnerichsen never ever attended those meetings. Ms.

Strait-Hinnerichsen did not have the authority to direct a withdrawal from the account and, in fact, never did so. [ 23 ] After Mr. Strait-Hinnerichsen turned 28 his name alone was on the Investment Account. It was never a joint account with Ms. Strait-Hinnerichsen. She never had access to the funds in the Investment Account, rather every transfer of funds from the Investment Account was authorized solely by Mr. Strait-Hinnerichsen. [ 24 ] Except for funds withdrawn from the Investment Account and deposited into the RRSP Account all funds withdrawn from the Investment Account were used for family purposes. Mr.

Strait-Hinnerichsen acknowledges that these funds taken from the Investment Account and used for family purposes lost their exempt status. [ 25 ] The Investment Account itself was never mingled with matrimonial assets. It remains a separate account solely in Mr. Strait- Hinnerichsen’s name and has never received funds which constituted matrimonial assets. [ 26 ] As of the Separation Date the Investment Account balance was $270,779.36; as of March 29, 2023, there was $123,962.06 in the Investment Account. [ 27 ] Ms.

Strait-Hinnerichsen submits that the remaining balance of the Investment Account should be considered a matrimonial asset as it would be unfair for Mr. Strait-Hinnerichsen to retain the balance when the parties shared the benefits from this account for over twenty years. [ 28 ] Mr. Strait-Hinnerichsen submits that the Investment Account is exempt from inclusion as a matrimonial asset. [ 29 ] Mr. Strait-Hinnerichsen bears the burden of proving that the remaining funds in the Investment Account are not matrimonial assets by reason of an exception ( Cashin v.

Cashin , 2010 NSCA 51 ). [ 30 ] I find that the funds in the Investment Account were inherited by Mr. Strait-Hinnerichsen from his mother. The funds in the Investment Account, including the growth of the inherited funds over the years, fall with the exception set out in Section 4(1)(

a) of the MPA; the funds are therefore not matrimonial assets subject to equal division. I find that the funds withdrawn from the Investment Account (except for funds invested in RRSPs) were used for family purposes and have lost their exempt status and became matrimonial assets. [ 31 ] The Investment Account was at all times maintained as an account in Mr. Strait-Hinnerichsen’s name only, and only he could direct that any funds be transferred from the account. At no time were matrimonial funds deposited into that account.

The funds in the Investment Account were not mingled with matrimonial assets; those funds were not “tainted” with matrimonial assets. [ 32 ] The fact that since 2005 approximately $ 4,476,151.97 was withdrawn from Investment Account for the benefit of the family does not mean that the remaining balance of the funds in the account became matrimonial assets. An inherited and thereby exempt asset may become a matrimonial asset if it is used for the benefit of both spouses and their children. I find that the remaining funds in the Investment Account were never used for the benefit of the spouses and their children.

It is the use of an asset, not its intended use, that causes it to lose its inherited (and exempt) status. As noted, the remaining funds in the Investment Account were never used for a family purpose. [ 33 ] For the forgoing reasons the funds in the Investment Account did not become matrimonial assets but rather maintained their exempt status. 3.2 The RRSP Account [ 34 ] The evidence indicates that the RRSP Account was created with RRSP funds held by Mr. Strait-Hinnerichsen’s mother. [ 35 ] The RRSPs inherited by Mr. Strait-Hinnerichsen were valued at $454,476 in 1994.

By December 31, 2021, this account had grown to $4,494,191. [ 36 ] Mr. Strait-Hinnerichsen assumed control of the RRSP Account when he turned 28 in 2001. Thereafter this account was solely in Mr. Strait-Hinnerichsen’s name. Only he could direct withdrawals from the account. Ms. Strait-Hinnerichsen was never named as a beneficiary on the RRSP Account.

[ 37 ] Funds were withdrawn from this account only once; $50,000 net was withdrawn from this account in February of 2018. The undisputed evidence establishes that these funds were withdrawn to pay off matrimonial debt and therefore lost their exempt status. [ 38 ] From time to time the RRSP Account received funds directly from the Investment Account which funds were invested as RRSPs in Mr. Strait-Hinnerichsen’s name only. The evidence establishes that deposits were made to the RRSP Account (directly from the Investment Account) in 2006, 2008, 2009 and 2010 in the total amount of $53,020.07.

There is no evidence of any other deposit made to the RRSP Account. [ 39 ] There were no funds transferred from the parties’ joint account to the RRSP Account. There were no funds transferred from the Investment Account to the RRSP Account for investment in an RRSP for Ms. Strait-Hinnerichsen. [ 40 ] Mr. Strait-Hinnerichsen submits that the entire RRSP Account is exempt as a matrimonial asset pursuant to Section 4(1)(

a) of the MPA. He bears the burden of proving that the funds in the RRSP Account are not matrimonial assets by reason of an exception: Cashin v. Cashin , 2010 NSCA 51 . [ 41 ] Ms. Strait-Hinnerichsen submits that only those funds ($553,266) in the RRSP Account on the date the parties began cohabitating (April 1996) should be excluded as a non-matrimonial asset. Ms. Strait-Hinnerichsen submits that the growth in the RRSP Account should be considered matrimonial assets given the length of the marriage and the fact that Mr. Strait-Hinnerichsen assured Ms.

Strait-Hinnerichsen that the funds in the RRSP Account would ultimately be used to fund their retirement. Ms. Strait-Hinnerichsen says that the parties did not concern themselves with building separate retirement savings for her because of the availability of the funds in the RRSP Account to fund their retirement. Ms. Strait-Hinnerichsen says that Mr. Strait-Hinnerichsen seeks to take their planned retirement option (utilizing the funds in the RRSP Account) away from Ms.

Strait-Hinnerichsen because of their marriage breakdown. [ 42 ] Funds withdrawn from an exempt inherited pool of funds and contributed to an RRSP can retain their exempt status. The interest earned on the inherited funds contributed to the RRSP also retain their exempt status. (See O’Toole, supra, Tibbetts, supra and Kennedy-Dowell, supra ) [ 43 ] The funds transferred directly from the Investment Account to the RRSP Account for investment as Mr.

Strait-Hinnerichsen’s RRSP retained their exempt status as the funds were not used for the benefit of the spouses or their children. [ 44 ] I find that the RRSP Account has been kept and treated separately from other matrimonial assets owned by the parties. The RRSP Account was solely in Mr. Strait-Hinnerichsen’s name. Only Mr. Strait-Hinnerichsen met with the Investment Advisors and only Mr. Strait-Hinnerichsen could give instruction for funds to be withdrawn or added to the account.

With one exception, the funds in the RRSP Account were not used to fund the day to day living expenses of the family and only exempt funds were deposited into the RRSP Account; family resources were not used to maintain or enhance the RRSP Account balance. With that one exception the funds in the RRSP Account were not consumed or substituted but rather were preserved to produce growth within the account.

Unlike some inherited property which is preserved and used for the benefit of the family the funds in the RRSP Account were preserved but not used for the benefit of the family. [ 45 ] I find that the funds in the RRSP Account did not go into the matrimonial pot and that they were not used by the spouse or their children. [ 46 ] Ms. Strait-Hinnerichsen submits that the intended use of the RRSP Account (to fund the parties’ retirement) is sufficient to deprive those funds of their exempt status.

Even if I were to find that there was a mutual intention to use the funds in the RRSP Account to fund the parties’ retirement, I find that mutual intention absent actual use is not sufficient to deprive the RRSP Account of its exempt status. I find that the funds in the RRSP Account were not used for the benefit the spouses or their children. [ 47 ] The balance of the RRSP Account are inherited funds which have grown over time through accrued interest and other investment strategies.

Both the inherited funds and the growth of those funds are exempt from inclusion as matrimonial assets. 3.3 Jewellery [ 48 ] As noted, Mr. Strait-Hinnerichsen inherited his mother’s jewelry collection. Ms. Strait-Hinnerichsen accepts that except for three pieces that jewellery collection is an inherited asset and thus exempt from inclusion as a matrimonial asset. The parties agree that these three items have the following valuations: Trinity Ring $9,750, Aquamarine Pendent $4,350 and the Tennis Bracelet $5,750. [ 49 ] Ms.

Strait-Hinnerichsen’s position until closing argument was that these three pieces of jewelry were personal items and not shareable matrimonial assets. I accept that these three pieces of jewelry were worn by Ms. Strait-Hinnerichsen (and with respect to the Trinity Ring modified for her use as a wedding ring) and as a result must be considered personal effects and exempt from inclusion as matrimonial assets pursuant to Subsection 4(1)(

d) of the MPA. [ 50 ] During closing argument Ms. Strait-Hinnerichsen changed her position regarding the three pieces of jewelry and through counsel returned the tennis bracelet to Mr. Strait-Hinnerichsen. Ms. Strait-Hinnerichsen says that the value of these three pieces of jewelry ($19,850) should be included in the matrimonial asset division and included as being in Mr. Strait-Hinnerichsen’s possession. With respect, Ms. Strait-Hinnerichsen cannot unilaterally convert an exempt personal effect into a matrimonial asset and seek to have it included in an equalization calculation.

These three pieces of jewelry are Ms. Strait-Hinnerichsen’s exempt personal effects and belong to Ms. Strait-Hinnerichsen. They should be returned to her by November 30, 2023. 4 Is Ms. Strait-Hinnerichsen entitled to an unequal division of matrimonial assets or to a division of non-matrimonial assets? [ 51 ] Ms. Strait-Hinnerichsen submits that if I find that the entire RRSP Account is exempt, I should order that the (exempt) growth on that account since 2001 be equally divided between the parties pursuant to

Section 13 of the MPA or alternatively that I unequally divide the matrimonial assets in Ms. Strait-Hinnerichsen’s favour.

[52]

Section 13 of the MPA permits me to divide matrimonial assets unequally or make a division of property that is not amatrimonial asset, provided I am satisfied an equal division of matrimonial assets would be unfair or unconscionable considering thefactors set out in

Section 13. (Wolfson v Wolfson, 2023 NSCA 57). Prior to considering whether to grant any relief pursuant to

Section 13of the MPA I must first equally divide the matrimonial assets and then consider if that equal division is unfair or unconscionable. 5 The Division of Matrimonial Assets [53] Prior to determining the required equalization payment, I need to determine two further issues: the valuation date of Ms. Strait-Hinnerichsen’s TSFA and her claim for repayment of her ski equipment. 5.1 TSFA Valuation date [54] The parties built a home in Grand Anse for Ms. Strait-Hinnerichsen’s parents with funds from the Investment Account.

Thathome was sold in January of 2021 realizing net sale proceeds of $316,215.28 (the Net Sale Proceeds). Ms. Strait-Hinnerichsen invested$97,475 of the Net Sale Proceeds into her Tax-Free Saving Account (the TFSA). The TSFA had a balance of $81,544.58 as of March 31,2021, which amount Mr. Strait-Hinnerichsen proposes be used as the value of the TSFA for matrimonial asset division purposes. Ms.Strait-Hinnerichsen proposes that the TSFA be valued using the 2022 closing balance (total proposed valuation of $69,698.19.). [55] In Simmons v. Simmons, (NSSF), Justice D.

Campbell outlined the general principles for determining thedate for valuing assets. The Court of Appeal has endorsed these principles in Moore v. Moore, 2003 NSCA 116 at paragraph 24, and inMorash v. Morash, 2004 NSCA 20 at paragraph 21. Based on those principles, I find that the TSFA valuation closest to the SeparationDate should be used and as a result I value Ms. Strait-Hinnerichsen’s TSFA at $81,544.58 for the purposes of matrimonial propertydivision. Ms. Strait-Hinnerichsen’s proposed later value would compel Mr.

Strait-Hinnerichsen to share the decrease in the TFSA’svalue, though he did not benefit from Ms. Strait-Hinnerichsen’s withdrawal from the TFSA. 5.2 Ski Equipment [56] Ms. Strait-Hinnerichsen says that Ms. Strait-Hinnerichsen disposed of her ski equipment and seeks $2,000 from him asreimbursement. Ms. Strait-Hinnerichsen did not tender any evidence as to the make or costs of the ski equipment disposed of by Mr.Strait-Hinnerichsen. [57] Mr. Strait-Hinnerichsen’s evidence is that Ms. Strait-Hinnerichsen’s skis were purchased in 2002 and were obsolete and non-serviceable. Mr.

Strait-Hinnerichsen says that the only new piece of ski equipment was Ms. Strait-Hinnerichsen’s helmet. Mr. Strait-Hinnerichsen returned Ms. Strait-Hinnerichsen’s helmet and goggles in April of 2023. [58] Given the lack of evidence regarding the value of the ski equipment (current or replacement value) and in light of Mr. Strait-Hinnerichsen’s explanation as to why he disposed of the skis I am not prepared to order Mr. Strait-Hinnerichsen reimburse Ms.

Strait-Hinnerichsen for the value of the ski equipment. 5.3 Matrimonial Asset Division [59] The following table sets out my finding regarding matrimonial asset division: DIVISION OF ASSETS AND LIABILITIES – Inherited Assets Excluded Mr. Strait-Hinnerichsen Ms. Strait-Hinnerichsen TOTAL MATRIMONIAL ASSETS54 Amesbury Gate $1,117,116.59 $1,117,116.596830 Hwy 4, Grande Anse (proceeds) $45,009.95 $45,009.952016 BMW 435i Gran Coupe $30,000.00 $30,000.002021 BMW x3 $55,000.00 $55,000.00Ms. Strait-Hinnerichsen’s TFSA $81, 544.58 $81, 544.58Ms. Strait-Hinnerichsen’s RRSP (net) $91, 347.07 $91, 347.07Mr.

Strait-Hinnerichsen’s SunLife Pension(net) $35, 714.95 $35, 714.95 London Life Policy ***571-4 $43,678.15 $43,678.15London Life Policy ***572-1 $24,078.00 $24,078.00Mr. Strait-Hinnerichsen Tax Refund $6, 328.10 $6, 328.10Subtotal Matrimonial Assets $1,197,122.84 $332,694.55 $1,529,817.39MATRIMONIAL DEBTSMs. Strait-Hinnerichsen Tax Liability $2,375.07 $2,375.07Subtotal Matrimonial Debts $2,375.07 $2,375.07Net Matrimonial Assets $1,197,122.84 $330,319.48 $1,527,442.32Equalization Payment -$433,401.68 $433,401.68 [60] To achieve an equal division of matrimonial assets Ms.

Strait-Hinnerichsen is entitled to an equalization payment from Mr.Strait-Hinnerichsen of $433,401.68. 6. Is the division of matrimonial assets in equal shares unfair or unconscionable? [61] As noted, Ms. Strait-Hinnerichsen submits that an equal division of matrimonial assets would be unfair or unconscionable andseeks an unequal division of matrimonial assets or a division of assets that are not matrimonial assets.

[62] Mr. Strait-Hinnerichsen says that an equal division of matrimonial assets is appropriate. Mr. Strait-Hinnerichsen says that anequal division will create a lump sum benefit to Ms. Strait-Hinnerichsen. He says that he depleted his inheritance having spent theInvestment Account funds for the benefit of his family and that Ms. Strait-Hinnerichsen received the full benefit of the withdrawninherited funds. [63]

Section 13 of the MPA gives me the discretion to divide matrimonial assets unequally or to divide non-matrimonial assets if Iam satisfied that an equal division of matrimonial assets would be unfair or unconscionable, having regard to the 13 specific factors setout in

Section 13. [64] In Wolfson, supra, Justice Van den Eynden held that the purpose of an award pursuant to

Section 13 is not to redistributewealth but rather to arrive at an amount to overcome the unfairness or unconscionability resulting from the property division or in otherwords to “bring the division into a range of what would be fair and conscionable and no further” (paragraphs 92 and 112). [65] At paragraph 93 Justice Van den Eynden stated: A s. 13 claim must be grounded in the evidence and relate to one or more of the enumerated grounds.

This Court has said that a claim forunequal division must be proven by "strong evidence" that demonstrates, on a broad view of all relevant factors, that equal divisionwould be unfair or unconscionable. (See Donald v. Donald, (1991) (NS SC), 103 N.S.R. (2d) 322 (C.A.) at para.20, 81 D.L.R. (4th) 48 and Volcko v. Volcko, 2015 NSCA 11 at para. 49). Only when that determination is made will departure from thenorm of equal division be permitted. (See Young v. Young, 2003 NSCA 63 at para. 15). [66] In Calder v. Calder, 2022 NSSC 146 Justice MacKeigan considered a claim for relief under

Section 13 of the MPA. Atparagraph 87 Justice MacKeigan cited, inter alia, the follows legal principles that apply to a claim for unequal division identified byJustice Forgeron at paragraph 27 in Cunningham v. Cunningham, 2017 NSSC 244, (affirmed at 2018 NSCA 63): […] * The burden of establishing entitlement rests upon the spouse who seeks an unequal division. * An unequal division is only permitted where "there is convincing evidence that an equal division would be unfair or unconscionable":Young v.

Young, supra, para 15, per Bateman, J.A.; or where there is "strong evidence showing that in all the circumstances an equaldivision would be unfair or unconscionable on a broad view of all relevant factors:" Harwood v. Thomas (1981), (NSCA), 45 N.S.R. (2d) 414 (A.D.) at para 7, per MacKeigan, C.J.N.S. * Although the word "unfair" and "unconscionable" do not have "a precise meaning", they nonetheless evoke "ethical considerations andnot merely legal ones:" Young v.

Young, supra, para 18, per Bateman, J.A. * Unconscionable has been held to mean "unreasonable", "unscrupulous", "excessive" and "extortionate" and when "coupled with therequirement that "strong evidence" must be produced to support an unequal division, the burden upon the party requesting an unequaldivision of matrimonial assets is somewhat onerous:" Jenkins v.

Jenkins (1991), (NS SC), 107 N.S.R. (2d) 18 (T.D.),at para 10, per Richard, J. * The question to be asked is "whether equality would be clearly unfair -- not whether on a precise balancing of credits and debits offactors largely imponderable some unequal division of assets could be justified:" Harwood v. Thomas, supra, para 7, per MacKeigan,C.J.N.S. * Courts are instructed to examine all the circumstances, and not to simply weigh the respective material contributions of the parties,except in unusual circumstances: Young v.

Young, supra, paras 15 and 19, per Bateman, J.A. […] * When focusing on claims grounded in s. 13 (

d) of the Matrimonial Property Act, the length of cohabitation is a reference to short term,not long term unions: Briggs v. Briggs (1984), (NS SC), 64 N.S.R. (2d) 40 (N.S.T.D.) as affirmed at (1984), (NS CA), 65 N.S.R. (2d) 126 (N.S.C.A.) and Donald v. Donald (1991), (NSCA), 103 N.S.R. (2d) 322(N.S.C.A.) per Chipman, J.A. * The determination of whether an equal division will produce an unfair or unconscionable result is a fact-based decision, as shown inthe divergent results reported in the various cases relied upon by counsel, which I reviewed. [67] Ms.

Strait-Hinnerichsen bears the burden of establishing that the equal division of matrimonial assets is unfair andunconscionable. If she satisfies that burden, she must then demonstrate what division would bring the division into a range that would befair and conscionable. [68] Ms. Strait-Hinnerichsen says that the equal division of matrimonial assets is unfair and unconscionable based on the followingSection 13 factors: (

d) the length of time that the spouses have cohabited with each other during their marriage; ▪ Ms. Strait-Hinnerichsen says that the parties were in a 25-year relationship which produced two children. (

h) the needs of a child who has not attained the age of majority; ▪ Ms. Strait-Hinnerichsen cites the fact that the parties’ younger child is 16 years old and lives with his mother half of the time. (

i) the contribution made by each spouse to the marriage and to the welfare of the family, including any contribution

made as a homemaker or parent; ▪ Ms. Strait-Hinnerichsen cites the fact that she moved to Toronto where Mr. Strait-Hinnerichsen had a job, that she took two maternity leaves and a four-year hiatus from the work force, was a single parent from 2009 to 2010 when she relocated to Nova Scotia ahead of Mr. Strait-Hinnerichsen, and again when he accepted work in New Waterford, Cape Breton. (

j) whether the value of the assets substantially appreciated during the marriage; ▪ Ms. Strait-Hinnerichsen submits that the RRSP Account grew from $553,266 in 2001 when the parties commenced cohabitation to $4,594,191 in December of 2021. (

l) the value to either spouse of any pension or other benefit which, by reason of the termination of the marriage relationship, that party will lose the chance of acquiring; ▪ Ms. Strait-Hinnerichsen says that she has lost the benefit of the balance of the Investment Account to alleviate a shortfall in her household budget as the parties did over the last 20 years when there was insufficient employment income, and the benefit of the RRSP Account to fund her retirement. [ 69 ] Ms.

Strait-Hinnerichsen also supports her position that an equal division of matrimonial assets is unfair or unconscionable by submitting: 1. The parties did not accumulate other substantial saving or assets of a comparable value during their marriage. 2. Mr. Strait-Hinnerichsen says that Ms. Strait-Hinnerichsen should bear sole responsibility for not having built up other savings despite the fact that Ms. Strait-Hinnerichsen’s pay was always deposited into the parties’ joint bank account and consumed by the family. 3. Ms. Strait-Hinnerichsen understood from her discussions with Mr.

Strait-Hinnerichsen that they would both rely on the RRSP Account funds for retirement not just Mr. Strait-Hinnerichsen. 4. The RRSP Account fund is worth more than three time the value of the matrimonial home, which is the parties’ most valuable matrimonial asset. 5. At 48, Ms. Strait-Hinnerichsen cannot now save a significant amount of retirement savings. 6. Ms. Strait-Hinnerichsen’s net disposable income is $3,992 per month, and Mr. Strait-Hinnerichsen’s net disposable income is $11,649.44 per month; and 7. Ms.

Strait-Hinnerichsen will be in a “significantly inequitable position to provide for the parties’ children and to contribute to their educational and other expenses which she would like to do in some form so as to avoid the appearance to the children that only their father contributes to same”. [ 70 ] I note that Ms. Strait-Hinnerichsen has not grouped these points around a factor set out in

Section 13 . In considering whether the division of matrimonial assets is unfair or unconscionable for the purposes of

Section 13 of the MPA I must not consider factors that are not enumerated in

Section 13 of the MPA. ( Wolfson, supra , paragraph 94) [ 71 ] Ms. Strait-Hinnerichsen submits that an equal division of all matrimonial assets and the remaining balance of the Investment Account and all growth (reduced to take 30% taxation into account) in the RRSP Account after the parties commenced cohabitation would address the unfairness and unconscionability of an equal division of matrimonial assets alone. Such a division would require an equalization payment of $1,951,684.78 from Mr. Strait-Hinnerichsen to Ms. Strait-Hinnerichsen. [ 72 ] I have considered Ms. Strait-Hinnerichsen’s position that based upon the factors set out in

Section 13(d), (h), (i), (j), and (

l) of the MPA that an equal division of matrimonial assets would be unfair or unconscionable. [ 73 ] This is not a case in which one spouse was engaged in business and thereby amassed considerable business assets while the other spouse managed their home and attended to childcare responsibilities. In Wolfson, supra , Ms. Wolfson’s disproportionate assumption of childcare and other domestic responsibilities enabled Mr. Wolfson to better acquire and develop business interests (engaging Subsections 13(f), (g), and (i)) justified a

Section 13 award of $1,500,000 (paragraph 116.) [ 74 ] This case centers around inherited assets which were in part used during the marriage (the Investment Account), and inherited assets (the RRSP Account) which (with one exception) were not used during the marriage and increased considerably in value during the marriage. Unlike the facts in Wolfson, supra , the non-matrimonial assets in this case were not acquired or developed through any effort by Mr. Strait-Hinnerichsen during the marriage. Further, Ms.

Strait-Hinnerichsen’s contribution to the family’s welfare as a homemaker or parent cannot be linked to the acquisition or growth in the inherited (non-matrimonial) assets. [ 75 ] I also find that there were periods in the marriage when Ms. Strait-Hinnerichsen assumed more childcare responsibilities than Mr. Strait-Hinnerichsen (for example when he worked in Toronto or in Cape Breton). However, while there were times when Ms. Strait- Hinnerichsen assumed more childcare responsibilities than Mr. Strait-Hinnerichsen, she did so because of employment decisions the parties made as a family and not because Mr.

Strait-Hinnerichsen was absent from the family because he was focused on or developing the inherited assets. [ 76 ] In considering Ms. Strait-Hinnerichsen’s claim for relief under Subsection 13 (

i) Ms. Strait-Hinnerichsen’s contribution to the welfare of the family does not satisfy me that an equal division of matrimonial property in this case is unfair or unconscionable.

[ 77 ] With respect to Ms. Strait-Hinnerichsen’s claim for relief under Subsection 13 (

d) I find that the length of the parties’ marriage is not such that it satisfies me that an equal division of matrimonial property in this case is unfair or unconscionable. This Subsection is typically invoked in circumstances where a marriage is of short duration ( Wolfson, supra , paragraph 101). [ 78 ] With respect to Ms. Strait-Hinnerichsen’s claim for relief under Subsection 13 (

h) I do not have evidence that the needs of the parties’ son are such that they would cause me to conclude that an equal division of matrimonial property in this case is unfair or unconscionable. [ 79 ] With respect to Ms. Strait-Hinnerichsen’s claim for relief under Subsection 13 (

j) I find that the inherited funds (and growth associated therewith) in the Investment Account did not substantially appreciate during the marriage but rather were substantially depleted. I find that the inherited funds (and growth associated therewith) in the RRSP Account did substantially appreciate during the marriage.

While I find that the balance of the RRSP Account grew substantially during the marriage, I find that the parties benefited greatly from the withdrawals from the other non-matrimonial asset (the Investment Account) and, in any event, the growth in the RRSP Account had nothing to do with any contribution made by either party as homemaker or parent. I am not satisfied that an equal division of matrimonial property in this case is unfair or unconscionable because of the growth in the RRSP Account. [ 80 ] Ms. Strait-Hinnerichsen submits that pursuant to Subsection 13 (

l) an equal division of matrimonial assets is unfair or unconscionable in light of the value of the benefit which she will lose the chance of acquiring due to the termination of the marriage. The RRSP Account is solely in Mr. Strait-Hinnerichsen’s name; Ms. Strait-Hinnerichsen could not and did not direct or authorize the withdrawal of funds from that account. Had the parties remained married, Mr.

Strait-Hinnerichsen could have elected to not draw down the RRSP Account in any given year (until required to do so at age 70) and even if he did draw down some of the RRSP could solely and unilaterally determine how much if any would be drawn down which means that Ms. Strait-Hinnerichsen cannot predict what funds in any given year would have been withdrawn from the RRSP Account. Further, I am not satisfied that a withdrawal by Mr. Strait- Hinnerichsen from the RRSP Account is a benefit as that term is used in

Section 13(

l) of the MPA. Had the marriage not ended and funds withdrawn from the RRSP Account I am not satisfied that such withdrawals would be a benefit “acquired” by Ms. Strait- Hinnerichsen; such funds might have been deposited into a joint account but that does not equate to the funds being acquired by Ms. Strait-Hinnerichsen. [ 81 ] Ms. Strait-Hinnerichsen submits that she was a beneficiary under Mr. Strait-Hinnerichsen’s will and that because of the divorce she lost the opportunity to inherit the RRSP Account. Mr. Strait-Hinnerichsen’s evidence is that Ms.

Strait-Hinnerichsen was never the beneficiary of the RRSP Account and that in 2023 (after the breakdown of the marriage) he named his children as beneficiaries. Had the marriage continued these exempt funds could have been designated by Mr. Strait-Hinnerichsen in his sole discretion. I am not satisfied that the funds in the RRSP Account were a benefit which Ms. Strait-Hinnerichsen will lose the benefit of acquiring by reason of the termination of the marriage.

I am not satisfied that this is a reason to depart from an equal division of matrimonial assets. [ 82 ] I am not satisfied that an equal division of the parties’ matrimonial assets is unfair or unconscionable. 7 Child support in the context of shared parenting [ 83 ] The parties have agreed to a shared parenting arrangement in which their younger child, who is now in grade 12, will spend a week with each parent on a rotating basis.

The parties’ older child does not live with either parent as she is in University out of town; she visits her parents on university breaks but spent the summer of 2023 working in Toronto. [ 84 ] Ms. Strait-Hinnerichsen seeks historic and prospective child support. [ 85 ] Ms. Strait-Hinnerichsen submits that if I permit Mr. Strait-Hinnerichsen to retain the full balance of the RRSP Account, the balance of the Investment Account and if I order an equal division of the matrimonial assets, the means, needs and circumstances of the parties require Mr. Strait-Hinnerichsen to pay child support. [ 86 ] Mr.

Strait-Hinnerichsen submits that there is no basis for a retroactive child support owing between either party based on the parties’ actual and imputed incomes. Mr. Strait-Hinnerichsen submits that the has provided for the children and met his responsibilities regarding additional expenses. Mr. Strait-Hinnerichsen submits that Ms. Strait-Hinnerichsen has provided no evidence of needs not met by the children since separation. [ 87 ] Child support in shared parenting arrangements is calculated following the three steps mandated by

Section 9 of the Federal Child Support Guidelines . Justice Jollimore summarised these three steps as follows in McCrate v McCrate , 2019 NSSC 167 : Step one: subsection 9(a) 34 The first step is to calculate the set-off of the amounts each parent would pay the other under the Table. …. Step two: subsection 9(b) 38 The second step requires considering the increased costs of the shared parenting arrangements. …. Step three: subsection 9(c) 46 Subsection 9(

c) vests me with "a broad discretion for conducting an analysis of the resources and needs of both the parents and the children".

8 Child Support for 2021 [ 88 ] I will first consider Ms. Strait-Hinnerichsen’s claim for prospective child support from the month the Petition was filed (August 2021) until the end of that calendar year. 8.1.1 Income determination for 2021 [ 89 ] The Federal Child Support Guidelines stipulate that the first step in calculating the amount of child support payable in a shared parenting situation is to calculate the amount each parent would pay the other under the table based upon their incomes. ( McCrate , supra paragraph 34 ) 8.1.1.1 Ms. Strait-Hinnerichsen’s 2021 income [ 90 ] Ms.

Strait-Hinnerichsen’s income is not in dispute. She worked full time and earned $64,930 in 2021. She paid professional dues of $853, so her 2021 income for child support purposes is $64,077. She would pay Mr. Strait-Hinnerichsen monthly support of $908 for 2 children based on an annual income of $64,077. 8.1.1.2 Mr. Strait-Hinnerichsen’s 2021 income [ 91 ] The parties do not agree on Mr. Strait-Hinnerichsen’s income. [ 92 ] Ms. Strait-Hinnerichsen submits that I should impute as income to Mr. Strait-Hinnerichsen in 2021 the funds he withdrew that year from the Investment Account. Ms.

Strait-Hinnerichsen says that Mr. Strait-Hinnerichsen’s income for the purposes of calculating his 2021 child support obligations is $247,000. [ 93 ] Mr. Strait-Hinnerichsen submits that in determining his 2021 income, for the purposes of calculating his child support obligations, is $96,417. Mr. Strait-Hinnerichsen submits that there is no basis to impute any income to him in 2021. [ 94 ] To determine Mr. Strait-Hinnerichsen’s 2021 income for the purposes of child support I must start with his Line 150 income as determined in his 2021 Income Tax Return.

I must then adjust, if appropriate in the circumstances, Mr. Strait-Hinnerichsen’s 2021 Line 150 income in accordance with

Schedule III of the Guidelines . Next, I must consider Sections 17 through 20 of the Guidelines and determine, based on the facts of this case, if any adjustments to Mr. Strait-Hinnerichsen’s 2021 income are appropriate and if so in what amount. ( Reid v. Faubert , 2019 NSCA 42 and Vincent v. Vincent , 2012 BCCA 186 ). 8.1.1.3 Mr. Strait-Hinnerichsen’s 2021 Line 150 Income [ 95 ] Mr. Strait-Hinnerichsen’s total income for 2021 at Line 150 of his Income Tax Return is $80,007 ($80,003 in his 2021 Notice of Assessment). 8.1.1.4 Application of

Schedule III to Line 150 income [ 96 ] In the Nova Scotia Court of Appeal Decision of Johnson v Barker , 2017 NSCA 53 Justice Hamilton observed that “Schedule III provides for adjustments, including those to neutralize the favourable tax rates for dividends and capital gains, as compared to other income, and to take into account non-cash expenses such as capital cost allowance” (paragraph 23). [ 97 ] Mr. Strait-Hinnerichsen’s 2021 Line 150 income includes capital gains of $19,586.35. The parties agree that pursuant to

Schedule III the other half of Mr. Strait-Hinnerichsen’s 2021 capital gain must be added to his 2021 income for the purposes of determining his 2021 child support obligations. In her Divorce Mate calculations Ms. Strait-Hinnerichsen adds that amount to Mr. Strait- Hinnerichsen’s Line 150 income of $79,737 (as opposed to $80,007) whereas Mr. Strait-Hinnerichsen’s Divorce Mate calculation adds that amount to $76,831. As Ms. Strait-Hinnerichsen added the capital gains to an amount which most closely resembles Mr. Strait- Hinnerichsen’s actual Line 150 income, I accept her calculation and find that Mr.

Strait-Hinnerichsen’s 2021 Line 150 income, together with the other half of his 2021 capital gains, is $99,313. [ 98 ] Ms. Strait-Hinnerichsen submits that Mr. Strait-Hinnerichsen’s 2021 Line 150 income should be reduced by $801 to deduct an amount in respect of Dividends from taxable Canadian corporations pursuant to

Section 5 of

Schedule III. Mr. Strait-Hinnerichsen does not seek to deduct that amount from his Line 150 income. I will deduct this amount based on Ms. Strait-Hinnerichsen’s acknowledgement this amount should be deducted from Mr. Strait-Hinnerichsen’s 2021 Line 150 income. [ 99 ]

Schedule III permits the deduction of carrying charges from Line 150 income. In 2021 Mr. Strait-Hinnerichsen had carrying charges of $55,143.13 comprised of Investment Management fees of $50,832.70, Legal and Accounting fees of $4,296.37 and amounts from T5013 slips of $14.06. These carrying charges were deducted from income on Mr. Strait-Hinnerichsen’s 2021 income tax return. [ 100 ] Mr. Strait-Hinnerichsen does not seek to deduct his Investment Management fee from his 2021 Line 150 income for the purposes of determining his child support obligations. Ms.

Strait-Hinnerichsen provided calculations in which the investment management fees of $50,832.70 are deducted from Mr. Strait-Hinnerichsen’s 2021 income for the purposes of determining his support obligations. [ 101 ] As Ms. Strait-Hinnerichsen deducted the management fee component of Mr. Strait-Hinnerichsen’s 2021 carrying charges from his income for the purposes of calculating his income, I will accept that approach for 2021 and reduce his income by the amount of his 2021 investment management fees. [ 102 ] Mr.

Strait-Hinnerichsen’s Line 150 income, increased to include the other half of his 2021 capital gains and reduced to take into account the above noted dividends and Mr. Strait-Hinnerichsen’s 2021 investment management fee, results in an income figure of

$47,665. 8.1.1.5 Consideration of Sections 17 – 20 of the Guidelines [ 103 ] Ms. Strait-Hinnerichsen says that Mr. Strait-Hinnerichsen’s tax-free yearly withdrawals from the Investment Account deposited into the families’ joint bank account each month for the past 20 years should be considered in the quantification of Mr. Strait- Hinnerichsen’s income for child and spousal support purposes. Ms. Strait-Hinnerichsen submits that Mr. Strait-Hinnerichsen’s pattern of reliance on inherited funds has continued post-separation. [ 104 ] Ms. Strait-Hinnerichsen submits that pursuant to

Section 19 of the Guidelines I should impute as income to Mr. Strait- Hinnerichsen in 2021 the funds he withdrew in 2021 from the Investment Account ($112,212.80) and then gross up those funds as they were received on a tax-free basis. [ 105 ] As noted, Mr. Strait-Hinnerichsen submits that no imputation is appropriate for 2021. 8.1.1.6 Should I impute income to Mr. Strait-Hinnerichsen? [ 106 ] The Federal Child Support Guidelines permit me to impute income.

The Guidelines provide a non-exhaustive list of circumstances in which I can impute income including but not limited to under employment, tax exemption and income diversion. Subsection 19(1) of the Guidelines stipulates that if I impute income, I am to impute an amount that I consider appropriate in the circumstances. [ 107 ] Justice Forgeron in Parsons v Parsons , 2012 NSSC 239 held: 32

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

Callender , 2010 NSCA 49 . [ 108 ] Ms. Strait-Hinnerichsen bears the onus to establish evidentiary basis for such a finding ( Coadic , supra at paragraph 12 ). [ 109 ] If Ms. Strait-Hinnerichsen presents the evidentiary basis suggesting that a prima facie case for imputation of income exists, the onus shifts to Mr. Strait-Hinnerichsen to defend the income position he is taking. ( Horbas v. Horbas, 2020 MBCA 34 ) [ 110 ] Ms. Strait-Hinnerichsen submits that I should impute as income to Mr.

Strait-Hinnerichsen the amount which he withdraws from his Investment Account grossed up to take into account those funds are withdrawn on a tax-free basis. [ 111 ] In considering Ms. Strait-Hinnerichsen’s submission I start by considering the purposes of the Guidelines which are: 1 The objectives of these Guidelines are (

a) to establish a fair standard of support for children that ensures that they benefit from the financial means of both parents; (

b) to reduce conflict and tension between parents by making the calculation of child support orders more objective; (

c) to improve the efficiency of the legal process by giving courts and parents guidance in setting the levels of child support orders and encouraging settlement; and (

d) to ensure consistent treatment of parents and children who are in similar circumstances. [ 112 ] Of relevance to this case is a consideration of the means of both parents. In P.W. v. C.M. , 2021 NSSC 127 Justice MacLeod- Archer considered whether income should be imputed to a parent and observed that in undertaking that analysis: 19 According to the Nova Scotia Court of Appeal in Reid v Faubert , 2019 NSCA 42 , I must first consider whether P.W.'s Line 150 income (as adjusted under

Schedule III of the CSG) fairly reflects all the money available to him for the payment of child support. [ 113 ] In considering Ms. Strait-Hinnerichsen’s imputation submission analysis I must focus on the child centered principles in child support cases. As held by Justice Jesudason in Boylan v. MacLean , 2018 NSSC 15 : 103 Before delving into an analysis of the Mother's retroactive claim, it is helpful to emphasize the core child-focussed principles in all child support cases.

They are: *child support is the right of children; *the children's right to support survives the breakdown of the relationship between the children's parents; *child support should, as much as possible, perpetuate the standard of living the children experienced before the parents' relationship

broke down; and *the amount of child support varies, based upon the parent's income [D.B.S. v. S.R.G., L.J.W. v. T.A.R., Henry v. Henry, Hiemstra v. Hiemstra, 2006 SCC 37 , at para. 38] . [ 114 ] I have concluded that it is appropriate to impute to Mr. Strait-Hinnerichsen as 2021 income for the purpose of determining his 2021 child support obligation the $112,213 he withdrew that year from the Investment Account. My reasons for doing so are as follows: 1. The table at

Schedule B sets out Mr. Strait-Hinnerichsen’s annual Investment Account withdrawals (and other relevant information for both parties) back to 2011 (which was the first full year that both parties lived in Nova Scotia following their move from Ontario). 2. Mr. Strait-Hinnerichsen annually withdrew funds from the Investment Account, which funds were deposited into the parties’ joint bank account and thereafter used to fund the family’s living expenses. 3. On average, between 2011 and 2020, Mr.

Strait-Hinnerichsen withdrew $298,988 each year from his Investment Account (grossed up, the average annual withdrawal is $612,276). The parties built a home in 2012. That year Mr. Strait-Hinnerichsen withdrew $802,179.80 from the Investment Account. If that year is treated as an anomaly and omitted from the analysis of withdrawals from the Investment Account, during the remaining nine years Mr. Strait-Hinnerichsen, on average, annually withdrew $243,078 from the Investment Account each year (grossed up, the average annual withdrawal is $502,033). 4.

Each year from 2011 to 2020 (the last full year prior to the parties’ separation) the Investment Account withdrawals (Column 5 in

Schedule

B) exceeded the combined Line 150 incomes of Mr. Strait-Hinnerichsen (Column 3) and Ms. Strait-Hinnerichsen (Column 1). 5. The evidence establishes that the parties maintained a lifestyle beyond that which their earnings alone could finance. Mr. Strait- Hinnerichsen controlled the withdrawals from the Investment Account and consistently directed the ongoing withdrawals from that Account for deposit into the parties’ joint account. These withdrawals were an ongoing and consistent resource which the parties relied upon to pay their expenses and fund their lifestyle. 6. In 2021 Mr.

Strait-Hinnerichsen withdrew less funds from the Investment Account than he had in any previous year. 7. As of December 31, 2020, Mr. Strait-Hinnerichsen had $277,877 remaining in the Investment Account and $3,847,581.36 in his RRSP Account. In 2021 the Investment Account funds grew by an annual interest rate of 12.15% (resulting in more than $24,000 in growth) for a 2021 closing balance of $189,761.28 (net of deductions) and the RRSP Account funds grew by an annual interest rate of 19.56% (resulting in more than $700,000 in growth) for a 2021 closing balance of $4,595,190.78.

The balances in the Investment and RRSP Accounts and the 2021 increases in those accounts are relevant circumstances which I can consider in determining Mr. Strait- Hinnerichsen’s means and his ability to pay child support in 2021, notwithstanding the fact that neither account is a matrimonial asset. [ 115 ] Given the Guidelines ’ objective that child support be based upon the means of the parents and principle that child support should, as much as possible, perpetuate the standard of living the children experienced before the parents' relationship broke down, it is fair and appropriate to impute to Mr.

Strait-Hinnerichsen the amount of $112,212.80 (rounded to $112,213). I am not aware of the extent to which the 2021 Investment Account withdrawal of $112,213 is already included in Mr. Strait-Hinnerichsen’s Line 150 income or the

Schedule III adjustments to that income. However, given the absence of any submissions regarding a possible double accounting and given Mr. Strait-Hinnerichsen’s significant means and the pre-separation lifestyle of the parties I consider it a fair amount to impute to him as income for 2021. [ 116 ] This figure must be grossed up as it was received by Mr. Strait-Hinnerichsen on a tax-free basis. Ms. Strait-Hinnerichsen calculates the gross up on the Investment Account withdrawal as $87,122. This amount is reasonable and will also be imputed to Mr. Strait-Hinnerichsen’s 2021 income. [ 117 ] I find that Mr.

Strait-Hinnerichsen’s 2021 income for the purposes of determining his 2021 child support obligations is $247,000. His child support obligation in 2021 was $3,152 per month for two children. [ 118 ] Mr. Strait-Hinnerichsen’s daughter left home in September of 2021 to attend university out of town. Both parties reduce Mr. Strait-Hinnerichsen’s 2021 child support set-off after September 1, 2021, when Alyssa moved away to attend university. 8.2 Step One in the Contino Analysis (Section 9(a) - the 2021 Child support set-off) [ 119 ] Mr.

Strait-Hinnerichsen’s table child support payable between August 1, 2021 (the month in which the petition was filed) and December 31, 2021, was $3,152 per month. [ 120 ] Ms.

Strait-Hinnerichsen’s Guideline child support contribution for two children between August 1, 2021, and December 31, 2021, was $908 per month. [ 121 ] I find the parties’ 2021 set off for two children (between August 1, 2021, and December 31, 2021) was $2,244 for two children. [ 122 ] I have not reduced the amount of child support payable in respect of Alyssa as of September 1, 2021 (when she moved out of town to attend university) because she had not yet reached the age of majority (she did not turn 19 until June of 2022).

The Guidelines require that the table amount of child support be paid in respect of a child under the age of majority: 3(1) Unless otherwise provided under these Guidelines , the amount of a child support order for children under the age of majority is (a)the amount set out in the applicable table, according to the number of children under the age of majority to which the order relates and the income of the spouse against whom the order is sought; and (b)the amount, if any, determined under

Section 7.

8.3 Step Two in the Contino Analysis (Section 9(b)) [ 123 ] The Federal Child Support Guidelines stipulate that the second step in calculating child support in a shared parenting situation involves a consideration of the increased costs of the shared parenting arrangements. [ 124 ] Justice Forgeron in Wolfson v. Wolfson, 2021 NSSC 260 noted the following commentary regarding the analysis required by Subsection 9(

b) of the Guidelines : 435 Ms. Wolfson also referenced the

article The TLC of Shared Parenting: Time, Language and Cash ", xii wherein Rollie Thompson provided commentary about subsection 9(

b) of the Guidelines , indicating at page 334 that: Under s. 9(b), a court has two concerns: the over-all increased total costs of child-rearing for both parents, especially duplicated costs; and any disproportionate assumption of spending by one parent or the other. The child-related expenses should be apportioned between the parents based upon their incomes, to verify the set-off and to determine the need for significant adjustments to the set-off amount. [ 125 ] The jurisprudence establishes the following framework in conducting an analysis pursuant of Subsection 9(

b) of the Federal Child Support Guidelines : 1. The total child rearing budgets and actual expenditures of both parents must be examined, and a determination made as to the monthly expenditures attributable to the children. 2. The duplication of fixed costs must be considered and if duplication exists the court must consider if the fixed costs of either parent have increased or decreased because of the fact of shared parenting. ( Contino v. Leonelli-Contino, 2005 SCC 63 supra , para 78 and 79 ) 3.

A determination must be made whether shared parenting has resulted in increased child rearing costs of both parents ( Contino , supra para 52 ). 4. Consideration must be given as to whether one parent has assumed a disproportionate share of the child’s costs ( Contino , supra para 53 ); and 5.

The child rearing costs identified in the forgoing analysis must be apportioned between the parties in proportion to their incomes. ( Contino , supra para 53 ) 8.3.1.1 Total childcare costs and the increase in costs due to shared parenting [ 126 ] Both parties filed sworn Statements of Expenses in 2021. [ 127 ] Neither party identified costs which were increased due to shared parenting. [ 128 ] Mr.

Strait-Hinnerichsen estimated his 2021 monthly expenses at $6,940.94 and with respect to food, clothing, toiletries, hair, and grooming he noted that the budgeted amount included the children’s costs as well as his costs (without allocating the costs among them). The only specific cost identified in Mr. Strait-Hinnerichsen’s Statement of Expense was Ehtan’s private school tuition of $1,250 per month for four months (March to June 2021). [ 129 ] Ms.

Strait-Hinnerichsen’s 2021 Statement of Expenses estimates her monthly expenses at $7,962.83 and, for the most part, also lumps the children’s costs with her own costs.

Her Statement identifies annual insurance costs for the children at $360 per year and basketball costs of $201 per month but does not indicate which child incurs that fee. 8.3.1.2 Increased and Duplicated expenses [ 130 ] The parties have many duplicated expenses but as noted have not identified costs which are increased solely because of shared parenting. 8.3.1.3 Does one parent pay a disproportionate share of child related expenses? [ 131 ] Neither party appeared to anticipate spending disproportionately more than the other on the children in 2021. 8.3.1.4 Are expenses apportioned between the parties based on their incomes? [ 132 ] Both parents anticipate incurring food, clothing, toiletry, hair and grooming and other expenses in respect of their children.

Given the disparity of the post-separation incomes of the parties, I find that the costs incurred by the parties are not apportioned between the parties based on their incomes. I will return to this observation under the

Section 9(

c) analysis. [ 133 ] With respect to the

Section 9(

b) analysis, I find that neither parent bears more child rearing costs than the other. I also find that the fact of shared parenting alone has not increased the parties’ child rearing costs. For these reasons I decline to make an adjustment to the set off amount payable by Mr. Strait-Hinnerichsen under

Section 9(

b) of the Guidelines . 8.4 Step Three in the Contino Analysis (Section 9(c)) [ 134 ] In this stage of the analysis, I must consider the conditions, means, needs and other circumstances of both the parents and the children. I must be especially concerned with the children’s standard of living in each household and each parent's ability to manage the costs of maintaining the appropriate standard of living. Smith v. Smith , [2011] NSJ No 416 at paragraphs 69 and 70 and Contino , supra at paragraph 68 .

[ 135 ] As Justice Jollimore noted in McCrate , supra : 47 "[O]ne of the overall objectives of the Guidelines is, to the extent possible, to avoid great disparities between households.": Contino v. Leonelli-Contino , 2005 SCC 63 at paragraph 51 . This means I retain discretion to modify the set-off amount if, considering the parents' financial realities, the set-off would "lead to a significant variation in the standard of living experienced by the children as they move from one household to another". [ 136 ] The analysis under Subsection 9(

c) may lead to the conclusion that Mr. Strait-Hinnerichsen’s contribution to child support should be higher than the amount mathematically arrived at pursuant to the Subsection 9(

a) and (

b) analysis. [ 137 ] In considering the conditions, means, needs and other circumstances of the parties and the children to determine if the set off amount should be applied or varied, and if so to what extent, I will assess the evidence to determine the following: 1. The parties’ gross incomes and their disposable incomes, 2. The parties’ assets and liabilities, 3. The parties’ spending patterns and their capacity to meet their routine expenses, and 4. The childrens’ standard of living in each home. 8.4.1 The parties’ gross incomes and their disposable incomes [ 138 ] Mr.

Strait-Hinnerichsen’s gross 2021 income for the purpose of calculating child support is $247,000 compared to Ms. Strait- Hinnerichsen’s gross 2021 income of $64,077. Absent any consideration of spousal support Mr. Strait-Hinnerichsen’s share of the parties’ net disposable income is in the range of 75% with Ms. Strait-Hinnerichsen’s share of the parties’ net disposable income in the range of 25%.

With the payment of the child support set off and spousal support, these net disposable incomes are much more closely aligned. 8.4.2 The parties’ assets and liabilities [ 139 ] As of their separation date, the parties had considerable assets and few liabilities (a mortgage and a Joint RBC Visa balance). A few months later Ms. Strait-Hinnerichsen was assessed an income tax debt. Following separation Mr. Strait-Hinnerichsen paid the mortgage and related home expenses, and the Visa balance. Ms. Strait-Hinnerichsen secured an apartment.

Neither party disclosed any monthly debt payments in their 2021 Statement of Expenses. 8.4.3 Each party’s spending pattern and capacity to meet their routine expenses [ 140 ] Ms. Strait-Hinnerichsen submits, and I accept, that her monthly ongoing expenses exceed her income. I accept that Ms. Strait- Hinnerichsen must use savings to meet her ongoing monthly expenses. Mr. Strait-Hinnerichsen can meet his ongoing monthly expenses. [ 141 ] Neither party has adopted a lavish spending pattern post-separation. 8.4.4 The children’s standard of living in each home [ 142 ] Mr.

Strait-Hinnerichsen remained in the family’s large 4-bedroom home. Ms. Strait-Hinnerichsen rents an apartment with 2 bedrooms and a den. She sleeps in the den to provide bedrooms for her children. I find that the circumstances of the children in each home are not the same; their living circumstances at their father’s home is much more in keeping with their former lifestyle. 8.4.5 Conclusion with respect to

Section 9(

c) analysis [ 143 ] In considering the means and circumstances of the parties upon the payment of child support and spousal support I find that the set off amount is acceptable. Ms. Strait-Hinnerichsen has not requested an amount of child support greater than the set off amount. Mr. Strait-Hinnerichsen submitted that no child support is payable by him in 2021 but did submit calculations which indicated that if child support was calculated for 2021, the set off amount (based on Mr.

Strait-Hinnerichsen’s income of $96,417) was the appropriate approach to calculating child support. 8.5 Conclusion regarding 2021 Child Support [ 144 ] I find the 2021 set off for two children (between August 1, 2021, and December 31, 2021) of $2,244 for two children is the appropriate child support for this period. [ 145 ] As Mr. Strait-Hinnerichsen did not pay any child support to Ms. Strait-Hinnerichsen in 2021, he is ordered to pay Ms.

Strait- Hinnerichsen the sum of $11,220 in respect of child support he should have paid between August 1, 2021, and December 31, 2021. 9 Child Support for 2022 9.1.1 Income determination for 2022 9.1.1.1 Ms. Strait-Hinnerichsen’s 2022 income [ 146 ] Ms. Strait-Hinnerichsen’s 2022 income is not in dispute. She worked full time and earned $74,163 in 2022, less professional dues

of $870. Ms. Strait-Hinnerichsen’s 2022 income for the purposes of calculating her child support obligations is $73,293. 9.1.1.2 Mr. Strait-Hinnerichsen’s 2022 income [ 147 ] The parties do not agree on Mr. Strait-Hinnerichsen’s 2022 income. [ 148 ] Mr. Strait-Hinnerichsen submits that in determining his income for the purposes of calculating his child support obligations his 2022 income was $97,984. Ms. Strait-Hinnerichsen says that his 2022 income for the purposes of determining child support was $182,558. [ 149 ] I will determine Mr. Strait-Hinnerichsen’s 2022 income by first determining his Line 150 income, then considering if that income must be adjusted in accordance with

Schedule III of the Guidelines and then assess whether further adjustments should be made to his income pursuant to Sections 17 – 20 of the Guidelines . 9.1.1.3 Mr. Strait-Hinnerichsen’s 2022 Line 150 income [ 150 ] Mr. Strait-Hinnerichsen’s line 2022 150 income was $92,657.87; he did not have any employment income in 2022 but received employment insurance benefits which benefits ended in 2022. [ 151 ] Mr. Strait-Hinnerichsen collapsed RRSPs from his RRSP Account in 2022. He declared $74,163 as income from this RRSP. Ms. Strait-Hinnerichsen says that this amount is $71,428.57.

I find that the evidence establishes that in 2022, Mr. Strait-Hinnerichsen declared as income from his RRSP $71,428.57 from which $21,428.57 was withheld at source for a cash receipt by him of $50,000. [ 152 ] Both parties agree that I should include the RRSP income in Mr. Strait-Hinnerichsen’s income for the purposes of determining his child support obligations. I agree that Mr. Strait-Hinnerichsen’s 2022 RRSP withdrawals, which are included in his Line 150 income, should be included in his income for the purposes of determining his child support obligations. 9.1.1.4

Schedule III adjustments to Line 150 income [ 153 ] The parties agree that Mr. Strait-Hinnerichsen’s Line 150 income should be adjusted pursuant to

Schedule III of the Guidelines by the addition of Capital Gains of $3,404 and the deduction of $812 representing dividends from taxable Canadian corporations. With these adjustments Mr. Strait-Hinnerichsen’s 2022 income is $96,061.95. [ 154 ] Mr. Strait-Hinnerichsen does not seek to deduct his investment management fee from his 2022 Line 150 income. [ 155 ] Ms. Strait-Hinnerichsen acknowledged that the 2021 carrying charges comprising management fees incurred by Mr. Strait- Hinnerichsen ought to be deducted from his 2021 income when determining his income for child support and spousal support purposes. Ms.

Strait-Hinnerichsen has not reduced Mr. Strait-Hinnerichsen’s income to take his 2022 carrying charges into account. Ms. Strait- Hinnerichsen left the question of whether investment management fees should be deducted from Mr. Strait-Hinnerichsen’s 2022 income with me to resolve. [ 156 ] In M.K.P v. F.R 2022 BCSC 2361 Justice Wilson refused to deduct carrying charges from the Respondent’s income because the management fees which comprised the carrying charges had been deducted from the accounts and not paid out of the Respondent’s annual income.

Justice Wilson held that the expense (the management fee) did not match to income because the income earned in the portfolio is realized at some future date on disposition whereas the expense is incurred regardless of whether the income is realized. Justice Wilson concluded that the management fee should not be deducted from income as the fee was paid out of capital, not income leaving the Respondent’s entire income available for support purposes without regard to the carrying charges. [ 157 ] In McBennett v. Davis 2021 ONSC 3610 , Justice Chappel also considered whether a

Schedule III carrying charge (this time in respect of legal fees paid to pursue support) should be deducted from income for the purposes of calculating support. Justice Chappel noted that carrying charge are deductible costs because they constitute amounts laid out to earn income from property. Justice Chappel determined that it was appropriate to treat the legal fees as falling within

Section 8 of

Schedule III but to then determine whether all or some of the fees should be imputed back to the party’s Guidelines income pursuant to Section 19(1) of the Guidelines based on the circumstances of the case. She held that the imputation would not be pursuant to 19 (1)(

g) but rather on the basis that the deduction from Guidelines income permitted by

Section 8 of

Schedule III results in injustice on the particular facts of the case. [ 158 ] I prefer Justice Chappel’s approach as it is consistent with

Section 8 of

Schedule III of the Guidelines which permits deductions of carrying costs which would be deductible under the Income Tax Act . I find that Mr. Strait-Hinnerichsen deducted $60, 480.36 (investment management fees of $55, 904.16 and legal and accounting fees incurred regarding support payments of $4,576.20) from his income in 2022. These deductions were accepted by CRA. I find that it is appropriate to deduct these costs from his Line 150 income. I will now consider whether based on the facts before me I should impute any of these funds back to Mr. Strait-Hinnerichsen as income in 2022. [ 159 ] In 2021 Mr.

Strait-Hinnerichsen had combined employment and employment insurance income of $53,662.97 and in addition to that income withdrew $112, 212.80 (grossed up to $219,938.80) from his Investment Account. That was the smallest withdrawal from the Investment Account since 2011. Mr. Strait-Hinnerichsen’s income for the purposes of calculating child support prior to deduction of carrying costs was approximately $302,143.13. By contrast in 2022, Mr.

Strait-Hinnerichsen had employment insurance income of $14,875 and in addition to that income withdrew $47,886.36 from his Investment Account (grossed up to $87,308.36) and $71,428.57 from his RRSP Account. He clearly had much less income and withdrawals in 2022 than in 2021 and thus less funds available to support his children. [ 160 ] Mr. Strait-Hinnerichsen controls the withdrawals from both the Investment Account and the RRSP Account and in 2022 elected to withdraw less from both accounts than he had since 2011, notwithstanding his much-reduced employment income. Mr. Strait-

Hinnerichsen had the means available to him to not reduce his 2022 withdrawals and in fact could have increased his withdrawals to account for his reduced employment income and to ensure that he his children benefitted from his means. [ 161 ] I find that Mr. Strait-Hinnerichsen intentionally reduced the funds available to himself in 2022, in a year in which he had no employment income and limited employment insurance income. [ 162 ] The carrying charges deducted by Mr. Strait-Hinnerichsen over time did not decrease as the balance of his Investment Account decreased.

The Investment Account had a balance of $2,015,692.24 on December 31, 2008, and that year Mr. Strait-Hinnerichsen deducted carrying charges of $46,665. By contrast the Investment Account had an opening balance of $189,761.28 on January 1, 2022, and a closing balance of $123,962.06 on December 31, 2022, and in that year Mr. Strait-Hinnerichsen deducted carrying charges of $60,480.36, of which $55,904.16 were comprised of Management Fees. Mr. Strait-Hinnerichsen’s income tax return notes that the deducted management fees are in respect of investments other than RRSPs. [ 163 ] In M.K.R v.

F.R supra , Justice Wilson observed that the Respondent’s carrying charges of $102,000 were reasonable given the fact that the funds being managed totaled approximately $17 million. In 2022, Mr. Strait-Hinnerichsen claimed management fees of $55,904.16 on funds of $123,692.06. Mr. Strait-Hinnerichsen’s income tax return notes that management fees cannot be deducted in respect of RRSPs, which means that the 2022 management fees of $55,904.16 were in respect of the $123,692.06 in his Investment Account. Mr.

Strait-Hinnerichsen did not offer any evidence to explain management fees which approximately 45% of the funds being managed. [ 164 ] To reduce Mr. Strait-Hinnerichsen’s 2022 Guidelines income by $60,480.38 would yield an unjust and distorted result given Mr. Strait-Hinnerichsen’s reduced Line 150 income, his means, his control of those means, the unexplained high management fee given the small amount of funds remaining in the Investment Account and the reduced funds withdrawn from the Investment Account in 2022. [ 165 ] I find that it is appropriate exercise my discretion and impute as income to Mr.

Strait-Hinnerichsen an amount which would in effect reduce his 2022 carrying costs deduction to $10,000. [ 166 ] As a result, I adjust Mr. Strait-Hinnerichsen’s 2022 income by deducting from his Line 150 income his 2022 carrying costs and imputing back to him all but $10,000 of that amount. As a result, his 2022 Line 150 income is reduced by carrying costs of $10,000 for a net 2022 income of $86,061.95 ($96,061.95 less $10,000). 9.1.1.5 Adjustment to 2022 income pursuant to Guidelines Sections 17 to 20 [ 167 ] Mr.

Strait-Hinnerichsen submits that he did not withdraw any money from the Investment Account in 2022. [ 168 ] Ms. Strait-Hinnerichsen submits that Mr. Strait-Hinnerichsen in fact withdrew $47,886.36 from the Investment Account in 2022 which amount should be considered as income and used in the calculation of Mr. Strait-Hinnerichsen’s child support obligations. Mr. Strait-Hinnerichsen acknowledges that these funds were withdrawn from the account but says that the funds were not paid to him. Mr.

Strait-Hinnerichsen did offer an explanation as to where the funds withdrawn from the Investment Account were directed. 9.1.1.6 Historic pattern of Investment Account withdrawals to supplement family income [ 169 ] In the second year after the parties separated, Mr. Strait-Hinnerichsen withdrew the smallest amount since 2011 from the Investment Account. I have ruled that his 2021 withdrawal from the Investment Account should be considered income for the purposes of determining his child support obligations. Ms. Strait-Hinnerichsen says that I should include the 2022 Investment Account withdrawal in Mr.

Strait-Hinnerichsen’s 2022 income. I agree the 2022 Investment Account withdrawal should be included in Mr. Strait- Hinnerichsen’s income. [ 170 ] The 2022 Investment Account withdrawal of $47,886.36 must be grossed up as it was paid on a tax-free basis.

The grossed-up amount to be added to the Investment Account withdrawal is $36,758 for a total 2022 income of $169,894. 9.2 Step One in the Contino Analysis (9 (a)) [ 171 ] As noted, the first step in calculating the amount of child support payable in a shared parenting situation is to calculate the set-off of the amounts each parent would pay under the table based upon their incomes. ( McCrate , supra paragraph 34 ) [ 172 ] Alyssa turned 19 in June of 2022 and in September returned to university out of town. Mr.

Strait-Hinnerichsen is required to pay the full amount of child support set off for two children until June of 2022. I will adjust the amount of child support payable in respect of Alyssa as of September 2022. [ 173 ] Section 3(2) of the Guidelines addresses the issue of child support payable in respect of a children who is over the age of majority. This

section states:

(2) Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support is (a)the amount determined by applying these Guidelines as if the child were under the age of majority; or (b)if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child. [ 174 ] Justice Oland on behalf of the Nova Scotia Court of Appeal in Lu v.

Sun , 2005 NSCA 112 confirmed that the trial judge had not erred in ordering child support in an amount equal to one half of the table amount for a child who was attending university and living

away from home (paragraph 28). [ 175 ] The determination of the amount of child support that should be paid in respect of the parties’ adult child who attends university is within my discretion and is dependent on the facts of this case. I am satisfied that requiring Mr. Strait-Hinnerichsen to pay the full amount of table child support for two children when one child resides in neither home is not appropriate. Alyssa worked during the summer of 2022, had a scholarship in 2022/2023 academic year and had a RESP to draw on but was far from self sufficient financially.

I find that while Alyssa lived away from home for four months in 2022, many of the mother’s fixed costs did not decrease and the mother continued to purchase Alyssa’s clothing as required, so some amount of child support is appropriate. Ms. Strait-Hinnerichsen says that I should award her half of the child support that would otherwise h

[…]