LeBlanc v. LeBlanc, 2019 NSSC 254

SUPREME COURT OF Nova Scotia Citation: LeBlanc v. LeBlanc , 2019 NSSC 254 Date: 20190823 Docket: 1202-002319

(110868) Registry: Amherst Between: Julie Ann LeBlanc Petitioner v. Todd LeBlanc Respondent Decision Judge: The Honourable Justice Denise Boudreau Heard: May 28, 29, 2019, in Amherst, Nova Scotia Counsel: Lloyd I. Berliner, for the Petitioner Terry Farrell, for the Respondent By the Court : [ 1 ] This is a divorce matter which I heard on May 28 and 29, 2019. The parties were married on October 9, 1999 (having co- habited for six years) and were separated on November 24, 2017. The major outstanding issues are child maintenance and division of matrimonial property.

Divorce [ 2 ] I find that the parties meet the statutory criteria for the granting of a divorce; in particular, that they have lived separate and apart for over one year and that there is no possibility of reconciliation, along with the other jurisdictional requirements. I grant the Divorce. Parenting [ 3 ] The parties have two children: Katrina, date of birth […], 2003, and Sarah, date of birth […], 2007. The parties have agreed to the terms upon which they will parent their children, as contained in the pre-trial briefs provided to the Court by both counsel.

Essentially the parties shall enjoy joint custody of their children, with primary care to the petitioner, and parenting time between the respondent and the children on an “ad hoc” basis as it has developed since separation. Other terms have been agreed upon as well. In my view, these are reasonable and appropriate. Child Maintenance [ 4 ] The respondent testified that he is employed full-time with his stepfather’s company, David C Greeno Excavating, as a heavy equipment operator. He has provided me with some income tax information, although it is incomplete.

His 2018 T4 shows total employment income from that source of $44,616.00. I also have a Comparative Tax

Summary from Canada Revenue Agency (“CRA”)

showing line 150 income in 2018 as $44,616 and in 2017 line 150 income also as $44,616. The respondent confirmed that his income from David C Greeno Excavating has not fluctuated since 2015. [ 5 ] It is the petitioner’s contention that the respondent is earning income over and above the income he has reported to this Court. In addition to his work with Mr. Greeno, the respondent is also qualified as a “QP2” and is recognized by provincial authorities as able to design and install septic systems, create subdivision plans, and carry out soil tests.

The petitioner testified that during their marriage, the respondent did such work on a private basis for paying clients on nights and weekends. The petitioner notes that the calls to the respondent from potential clients would start in the early spring of each year. She is aware of the amounts typically charged by the respondent for the various projects he might undertake. The petitioner further noted that she was often asked by the respondent to deposit any cheques he received for this work, and to then withdraw the money to give to him.

She estimates that the respondent earned an extra $10,000 to $15,000 yearly for this work. She seeks that the respondent be imputed income at this additional amount. [ 6 ] The respondent does not dispute that he enjoyed this additional income during the parties’ marriage. He agreed that the calls would start in the spring, and that ten calls per week during that time would not be an unreasonable estimation. He would get calls both at home and through his employer Mr. Greeno.

He also agrees with the petitioner’s understanding of his rates for various work performed. [ 7 ] The respondent testified that while he is still licensed to perform this work now, he has not done so since approximately 2017. According to the respondent, the reason is that there is now too much competition. When he was first qualified in 2001, he was one of only two QP2s in Cumberland County; there are now 14. In other words, as I understand the respondent’s evidence, he has had zero income from this work since 2017 (the year of the parties’ separation) simply because he is not receiving calls anymore.

Quite frankly, I must say that I find the respondent’s assertions on this issue difficult to believe. [ 8 ] The respondent swore in his affidavit, in relation to the QP2 work, that “… I have claimed [the] income earned on my yearly income tax returns” (para. 7). In court, the respondent acknowledged that this statement was not true. He did not report this income to CRA over the years.

Nor, presumably, does he do so at present, if there are such earnings. [ 9 ] The respondent also swore in his affidavit, in relation to the QP2 work, that “I have always kept records of this.” Assuming the respondent is truthful in this, I note that he has not seen fit to provide this Court with any such records, either from before or after the parties’ separation. [ 10 ] The petitioner asks this Court to make a negative inference about that failure on the respondent’s part; I cannot help but agree that such would be appropriate.

Given that the respondent has not provided us with any records of his QP2 work, I am making a negative inference to the effect that he did not do so because they would have shown evidence of additional income to him. I can see no other reason for him to withhold those from this Court ( Leskun v. Leskun , 2006 SCC 25 ; Cameron v. Cameron , 2014 NSSC 224 ). [ 11 ] Furthermore, I simply do not accept the respondent’s evidence that he, coincidentally since separation, is getting no work at all from his QP2 designation.

If, in fact, there has been an increase in persons qualified as QP2s since 2001, that increase could only have been gradual. All those other people did not suddenly become qualified in 2017. [ 12 ] It is simply not credible to suggest that although the respondent was doing very well as a QP2 for years, suddenly in 2017 the work dried up to absolute zero. The respondent has not provided me with any documentation to support this claim. If he in fact does keep records, as he says he does, such would have been easy to do.

Again, I infer that he has not presented me with this evidence because it does not support his assertions. [ 13 ] I accept that the respondent must still be making some income from this work, which he does not report to CRA. It is certainly possible that he is making less than he did in the past; however, given that he has provided me with no information, I have no choice but to impute that income (s. 19(1)(

h) of the Federal Child Support Guidelines ). I have the respondent’s menu of services and prices, which he has agreed was accurate in the past; the petitioner has also advised that her estimate of QP2 income during the marriage was in the range of $10,000 to $15,000 annually. I will accept the more conservative estimate and impute additional income to the respondent of $10,000. [ 14 ] The petitioner also notes that the respondent has use of a company vehicle, which she argues should require a further imputation of income to the respondent for this benefit.

I heard evidence from the respondent about his use of this vehicle for some family needs, e.g., to occasionally pick up the children, or to transport the trailer. The respondent argues that his personal use of this vehicle is minor and incidental to its work purposes. He has a personal vehicle of his own. [ 15 ] I accept that such a benefit would be relatively minor in nature. I will not impute any personal benefit to the respondent for personal usage of this vehicle. [ 16 ] In conclusion, for the purposes of child maintenance, I set the respondent’s income at $54,616.

Child maintenance for two children, in accordance with the Guidelines , is therefore set at $778 monthly, commencing September 1, 2019. [ 17 ] I am advised that, to this point, the respondent has been paying child maintenance through the parties’ joint bank account at his request. The petitioner does not agree with this arrangement and wishes to close this account. The respondent testified that he felt this to be the most efficient way of paying maintenance. [ 18 ] The parties have been separated for some time and now are divorced.

There is absolutely no need to continue with a joint bank account, and its continued use would be inappropriate under the circumstances. Child maintenance from this point forward will be payable through the provincial Maintenance Enforcement Program. [ 19 ] Furthermore, the parties shall share on a proportional basis to s. 7 special and extraordinary expenses. I note that there have been issues in the past as to certain special expenses, claimed by the petitioner from the respondent; for example, the naturopath expense, or the braces expense.

The respondent testified that he was not provided with enough information to make an informed decision as to

whether these expenses were necessary or appropriate. [20] Certainly where any parent, including this respondent, is asked to contribute to a “special” expense for their child, that person isentitled to know what the expense is for and why. That person must also be provided with sufficient information to determine whetherthat expense is appropriate, given the child’s circumstances and the family’s ability to take on that particular expense. Both parents musttake on the responsibility of seeking out the information they need and/or providing it to the other parent, as appropriate.

Both parentsmust also take on the responsibility of responding, in a timely and respectful fashion, to requests or suggestions made by the other parent. [21] I would certainly hope, in the spirit of the love both these parents obviously have for their children, an agreement or acompromise will often or always be reached. In the case of continued disagreement, the matter can be returned for adjudication. Spousal Maintenance [22] The petitioner sought spousal support in her original Petition.

As matters presently stand, and given the amount of childmaintenance that the respondent pays/will be paying, the petitioner agrees that the respondent does not have the ability to pay spousalmaintenance at this time. However, she seeks recognition of her entitlement to spousal maintenance and an award in the amount of $1.00per year, thereby preserving her right to seek an increase in the future should circumstances change.

The respondent disagrees, arguingthat the petitioner has not made out entitlement and that this Court should make that finding at this time. [23] The evidence before me is the parties commenced cohabitating in approximately 1993 and married in October 1999. Theyseparated in November 2017. Their two children were born in 2003 and 2007. The petitioner notes in her affidavit (Exhibit 5): 25. This was a long term relationship in which I was primarily responsible for all day to day care of the children and the home whilemaintaining a job with the School Board.

I was responsible for all child care, including managing their homework, transportation toextracurricular activities and play dates, doctor and dental appointments and all other daily needs. I also did all the shopping, laundry,cooking and cleaning for our home. The Respondent worked full time and as noted above, worked extra hours on nights and weekends. [24] Nothing in the affidavit of the respondent, nor in the oral testimony of either party, refuted those statements. I accept that thisparagraph is accurate. [25] The petitioner is employed as a student monitor with the local school board.

She estimates her average income is $24,500 peryear, which estimate is supported by the documentation. The petitioner’s income tax information for 2016-2018 shows that sameemployer and approximate income. [26] The respondent, as I already noted, is a heavy equipment operator and makes $44,616 per year, in addition to his QP2 earningswhich I have imputed at $10,000 per year. [27] I note the following subsections of s. 15.2 of the Divorce Act R.S.C. 1985 c. 3 in relation to spousal support: 15.2…

(4) On 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; (

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

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

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

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

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

d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. [28] I have reviewed the caselaw provided by counsel, notably, Bracklow v. Bracklow, (SCC), [1999] 1 SCR 420;Gagnon v. Gagnon, 2011 NSSC 486; and Vickers v. Vickers, 2001 NSCA 96. I note the three bases of entitlement for spousal support:compensatory; non-compensatory; and contractual.

It is the contention of the petitioner that her case would fall within the compensatorymodel for support. [29] These parties had a long term and “traditional” marriage, that is to say, the petitioner was responsible for the home and wasalso the children’s primary caregiver. As such, she would have spent enormous amounts of time and energy on the children’s andhousehold’s needs. The respondent was free from the majority of these responsibilities. [30] In my view, on the facts before me, the petitioner has made out entitlement to spousal support on a compensatory basis.

Giventhe respondent’s present income and child maintenance payment, spousal support shall now be set at $1.00 per year. This is independentto the issue of the respondent’s ability to pay (Reece v. Reece, 2013 NSSC 33; Vickers v. Vickers, 2001 NSCA 96).

Matrimonial Property 175 Brundage Lane [ 31 ] The main object of dispute here is the home located at 175 Brundage Lane, Tidnish Crossroads, Nova Scotia. This was the home resided in by the parties through the entirety of their relationship. At the time they took up residency in this home, it was owned by the respondent’s mother Mary Lou LeBlanc. In October 2007 the home was placed in joint tenancy between Mary Lou LeBlanc and her son, the respondent.

At no time has the property been in the name of the petitioner, either solely or jointly. [ 32 ] The Matrimonial Property Act R.S.N.S. 1989 (the “ Act ”) provides for a presumed equal division of matrimonial assets.

It is acknowledged that the respondent’s half interest in the home is matrimonial property and, therefore, under the usual rules the petitioner would receive half of his interest (or one quarter of the total value of the home). [ 33 ] The petitioner has put forward the argument that she should, in fact, receive an unequal division of this asset, to the extent of receiving the respondent’s full share. [ 34 ] The Act allows for an unequal division of matrimonial assets where the Court is satisfied that an equal division would be “unfair or unconscionable”.

A number of factors are enumerated in s. 13 of the Act that the Court is to take into account in making this decision. The petitioner asks that this Court consider, in particular, the following factors: … (

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

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

j) whether the value of the assets substantially appreciated during the marriage; [ 35 ] The parties resided in this home approximately 24 years. During that time there was no mortgage on the home, but the parties paid all utilities and associated expenses. In addition, the petitioner notes that she and the respondent effected many upgrades and renovations to the property during their time together, such that the home is worth substantially more than it did when they took up residency there. [ 36 ] The petitioner estimates that she and the respondent spent in excess of $100,000 on this property.

She lists many renovations that were done, including the building of a sunroom, new flooring and windows, new insulation, new furnace, new heat pump, and so on. The petitioner indicates that throughout their tenure at the property, she was given the impression by both the respondent and his mother that the property was “theirs”, meaning she and the respondent.

As a result, she is of the view that she should be granted an unequal division. [ 37 ] The respondent, for his part, agrees that significant renovations were done to this property, but states that while some were paid for by he and the petitioner, others were paid for by his mother.

The respondent disagrees that the petitioner should be granted any more than one half the matrimonial share, i.e., one quarter of the total value. [ 38 ] Having regard to all the circumstances, I am entirely unconvinced that the petitioner should receive an unequal division of this property. [ 39 ] It must be noted that the petitioner willingly chose to invest her family’s time and money into a property that was owned by a third party. Later in the relationship, she continued to do so when the property was in the respondent’s and his mother’s name jointly.

The titled ownership of this home was known to the petitioner. I would assume that this option remained preferable and/or less expensive than other options, but it came with risks. [ 40 ] Furthermore, I see nothing “unfair or unconscionable” to the petitioner in this circumstance (to use the language of the Act ). One must recall that the LeBlanc family (including the petitioner) resided in this home completely rent and mortgage free, for the entire duration of their tenancy in the home. That is a significant benefit which the petitioner and her family enjoyed.

In my view, those benefits more than make up for the time and money she invested in the property. To be clear, I am not saying that in law these concepts are interchangeable. I am merely saying that the petitioner did live for many years with no rental or mortgage expense, which is a very significant benefit. The fact that she invested time and money in significant home repairs is, as a result, not as inequitable as it might appear at first blush. [ 41 ] I find there is no reason why the matrimonial portion of this home should not be subject to an equal division.

The petitioner will be entitled to receive from the respondent a monetary payment equal one half of his interest in this property (or one quarter of its total value), minus the usual disposition costs. I leave it to counsel to do the appropriate calculations. Occupation Rent [ 42 ] The petitioner seeks occupation rent from the date of the separation until the matrimonial property is divided and the equalization payment made. [ 43 ] These parties separated in November 2017, at which time the petitioner and the children left the home and resided with her parents for a period of time.

In 2018 the petitioner purchased a new home with the assistance of her mother as a co-signer, and moved into that home in July 2018. The respondent paid no maintenance from November 2017 until July 2018; since that time he has paid $150

per week with a few missed payments (that he has caught up on). I note that since separation, the respondent has continued to reside in the home on Brundage Lane, which is mortgage-free. [ 44 ] I have reviewed the authorities in relation to occupation rent, notably Carmichael v. Carmichael , 2005 NSSC 318 ; Goodwin v. Goodwin , 2009 NSSC 109 ; O’Regan v. O’Regan , 2009 NSSC 181 ; and Cameron v. Cameron , 2014 NSSC 224 .

Some of the factors a court is to consider, which I do, are: 1. conduct of the parties (including any failure to pay support); 2. delays and their cause; 3. continued payment of the mortgage and by whom; and 4. the residence of the children. [ 45 ] The respondent has enjoyed the use of the home, rent and mortgage free, since separation. The petitioner and the children have not. She has, through her own resources and with the assistance of her parents, secured a new residence. Furthermore, the respondent did not pay child maintenance until July 2018.

I have not heard of any significant expenditures made by the respondent on the home since separation. [ 46 ] This seems to be a clear case where occupation rent should be ordered. Given the ranges provided for in caselaw, the request for $250 appears appropriate. [ 47 ] I therefore order occupation rent to be paid by the respondent to the petitioner in the amount of $250 monthly, commencing November 2017 and ending the month that the property equalization payment is made to her.

Tantramar Marsh [ 48 ] The parties own a piece of recreational property that was purchased just before they separated, consisting of 43 acres on Tantramar Marsh. There is a small building on this property which appears to have been improved since the parties’ purchase and/or separation. While there is no evidence before me as to present value of this land, the parties paid $30,000 for it in 2017. That is the value I shall accept. [ 49 ] Both parties seek to retain this property. The petitioner gave some evidence about her use of this property in the past, and her continued interest in it.

The respondent did not address this property in his evidence at all. [ 50 ] I have been given no direction from the parties as to how to practically resolve this dispute. The petitioner notes that the equalization payment that is owing to her will be substantial, and the respondent has indicated (in other contexts) that he has very little available money; she is therefore concerned about a default of payment on his part. In that context, granting this property to her would reduce the amount of equalization payable. [ 51 ] For that reason, I am inclined to leave this property with the petitioner.

This will serve to reduce the amount of money owing by the respondent as an equalization payment. Debts / Lines of Credit [ 52 ] The respondent has put forward two Scotiabank lines of credit and claims them to be matrimonial: one in his name, and one in joint names with his mother. He seeks that the petitioner be made to contribute to the repayment of these debts. [ 53 ] I note that prior to the hearing, the respondent had provided no documentation to the petitioner or the Court to support his contentions about these debts.

At the hearing, and despite the petitioner’s objections, I allowed the respondent to tender some documentation. Although it was grossly late, I wished to provide the respondent with the opportunity to explain his position in relation to these debts. [ 54 ] Having said that, these documents only confirm the existence of these two lines of credit. The respondent asserts that they are matrimonial. I have nothing, other than the respondent’s word, that they are. To be frank, I have no comfort whatsoever in reaching any conclusion about the origin of these debts.

I am entirely unpersuaded that those debts are matrimonial and I decline to include them as a matrimonial debt. [ 55 ] I leave it to counsel, in the face of the various decisions I have made here, to calculate the equalization payment to be made in the present case.

In the case of continued dispute, it can be referred to me for further decision. [ 56 ] The parties shall execute any and all documents that are necessary to give effect to the decisions I have made, in particular respecting real property. [ 57 ] Should the parties not be able to agree on costs, I would ask that they provide me with written submissions within 45 days. Boudreau, J.