Thompson v. St. Croix, 2014 NSSC 275

SUPREME COURT OF Nova Scotia Citation: Thompson v. St. Croix , 2014 NSSC 275 Date: 20140715 Docket: No. 1204-005732 SKD-082305 Registry: Kentville Between: Karen Thompson Petitioner v. Ronald St. Croix espondent ERRATA TO DECISION DATED JULY 15, 2014 Before: The Honourable Justice James L. Chipman Heard: June 9-13, 2014, in Kentville, Nova Scotia Date of Errata to Decision: August 1, 2014 PLEASE NOTE The attached revised pages 39, 40 and 41 should be substituted in the decision previously forwarded.

On Page 39, at para.130 ( in line 7 ), the figures “$4,500.00 to $6,000.00” should be changed to “$1,850.00 to $2,480.00.” The next sentence ( in line 9 ), the figure “$5,000.00” should be changed to “$2,169.00.” The next sentence ( in line 12 ), the figure “$5,000.00” should be changed to “$2,169.00.” On Page 40, para.131 ( in line 5 ), the figure “$5,000.00” should be changed to “$2,169.00.” On Page 41, para.137 ( in line 4 ), the figure “$5,000.” should be changed to “$2,169.00”; the figure “$35,000” ( in line 5 ), should be changed to “$15,183”; and the figure “50,600” ( in line 6 ) should be changed to “$30,783.00.

Supreme Court of Nova Scotia Citation: Thompson v. St.Croix , 2014 NSSC 275

Date: 20140715 Docket: No. 1204-005732 SKD-082305 Registry: Kentville Between: Karen Thompson Petitioner v. Ronald St. Croix Respondent Library Heading Judge: The Honourable Justice James L. Chipman Heard: June 9-13, 2014, in Kentville, Nova Scotia Written Decision: July 15, 2014 Subject: Divorce Proceeding

Summary: Husband and wife lived common law for two years and then married. They separated after nine years of marriage. There was one child of the union, a son, born January 10, 2006. Divorce granted along with Partial Corollary Relief Order (with respect to 2014 summer parenting and the Matrionial home) at the end of a five day trial. Husband an environmental technologist who recently left his full time job in Newfoundland and Labrador to move to Nova Scotia to become a full time student at Acadia University nearby where his (estranged) wife and son moved in 2011. Wife a psychiatrist with the Annapolis Valley District Health Authority. Issues:

(1) Date of Separation

(2) Custody (along with the child’s living arrangements and decision-making arrangement for him)

(3) Property Division

(4) Imputation of Income

(5) Child Support (retroactive and prospective)

(6) Spousal Support (retroactive and prospective) Result: Date of Separation determined to be August 31, 2011, shortly following the relocation of the wife and son from Newfoundland and Labrador to Nova Scotia. Primary custody and living arrangement along with decision making authority with respect to the son determined to be with the mother. Property division, for the most part, determined on a fifty-fifty basis. Imputation of Income determined for both parties. Retroactive and prospective child support found owing by the father to the mother.

Retroactive and prospective spousal support found owing by the wife to the husband. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE

DECISION, NOT THIS LIBRARY SHEET. SUPREME COURT OF Nova Scotia Citation: Thompson v. St.Croix , 2014 NSSC 275 Date: 20140715 Docket: No. 1204-005732 SKD-082305 Registry: Kentville Between: Karen Thompson Petitioner v. Ronald St. Croix Respondent Judge: The Honourable Justice James L. Chipman Heard: June 9-13, 2014, in Kentville, Nova Scotia Counsel: Julia E. Cornish, Q.C., Jennifer M. Kooren , and Katharine A. Lovett (law student) for the Petitioner Ronald St. Croix, on his own behalf By the Court: Introduction [ 1 ] This is a divorce proceeding involving a couple originally from Newfoundland and Labrador.

Ronald St. Croix and Karen Thompson began living together in August, 2000. Two years later they married and remained together for approximately nine years. There is one child of the marriage, David Carl St. Croix, (“David”) born January 10, 2006. [ 2 ] At the time of separation in late summer of 2011, the couple owned a matrimonial home located at 48 Lanark Drive, Paradise (a community on the outskirts of St. John’s). [ 3 ] Mr. St. Croix is an environmental technologist and Ms. Thompson is a medical doctor who became a fully qualified psychiatrist in the spring of 2011.

In July, 2011 she accepted a position as an adult general psychiatrist with Annapolis Valley District Health Authority (“A.V.D.H.A.”) where she continues to practice. Mr. St. Croix worked for Nalcor Energy for several years until taking an education leave in the late summer of 2013. [ 4 ] Shortly after accepting her position with A.V.D.H.A., Dr. Thompson and David moved to a rental home in Port Williams, Kings County, Nova Scotia. Mr. St. Croix remained in the matrimonial home in Paradise until commencing his education leave. In

August, 2013, he moved to the Annapolis Valley as he enrolled as a full time Bachelor of Business Administration student at Acadia University for the 2013-14 academic year. [ 5 ] At the time of trial Mr. St. Croix took time off from work with Nalcor as shortly after finishing exams at Acadia in April he returned to his former position. When he returned to Newfoundland, he resumed living in the matrimonial home, which was unoccupied while he was away at university. History of the Proceedings [ 6 ] Mr. St. Croix started divorce proceedings in Newfoundland in June, 2012, which Dr.

Thompson became aware of on November 1, 2012, when she was served. Dr. Thompson started her divorce proceeding in Nova Scotia in August, 2012. In the days preceding the trial Mr. St. Croix filed an Answer in Nova Scotia. [ 7 ] In November, 2012, Dr. Thompson brought an Application within the Newfoundland proceeding, requesting, among other things, transfer of the proceeding to Nova Scotia. [ 8 ] Pursuant to an Order of the Supreme Court of Newfoundland and Labrador Trial Division (Family), issued November 28, 2012, the divorce proceeding was transferred to Nova Scotia.

One of the requirements of the Order was that Dr. Thompson file a Motion regarding interim parenting issues. Dr. Thompson brought an Interim Motion on December 6, 2012, which was resolved by an Interim Consent Order issued December 20, 2012. [ 9 ] On April 25, 2013, Mr. St. Croix filed a Notice of Motion seeking interim spousal support (retroactive and prospective), summer parenting time, and interim shared parenting. As Mr. St. Croix’s Motion did not address child support, Dr. Thompson brought a separate Motion seeking interim child support (prospective and retroactive to the extent that Mr. St.

Croix was seeking interim spousal support), as well as an Order that Mr. St. Croix continue to be responsible for line of credit payments relating to the matrimonial home where he was residing. [ 10 ] The Motion was converted to a settlement conference, which was held on June 19, 2013. The settlement conference only resolved 2013 summer parenting. [ 11 ] On October 28, 2013, Dr. Thompson filed an Emergency Motion concerning interim parenting issues. This Motion was heard by the Honourable Justice Gerald R.P.

Moir on November 7, 2013, and resulted in an Interim Order issued December 20, 2013. [ 12 ] On September 16, 2013, Dr. Thompson filed a Request for Date Assignment Conference. Mr. St. Croix objected to this Request and a conference was held on November 21, 2013. Following this, a Date Assignment Conference was heard by the Honourable Justice Pierre L. Muise on December 19, 2013. [ 13 ] In advance of the trial I conducted a Trial Readiness conference on April 11, and pretrial conferences on April 23 and June 3, 2014. [ 14 ] At the commencement of trial I heard a Motion from Mr. St.

Croix who objected to the granting of a divorce on the basis that there was a prospect for reconciliation. Having heard Dr. Thompson’s counsel’s reply, I made the determination that the Motion should be denied. [ 15 ] The Petitioner then led evidence – which was ultimately uncontroverted – confirming the Divorce Judgment should be granted. That is to say, given the totality of the evidence I was satisfied that all procedural and jurisdictional requirements were met.

The grounds for divorce were established based on a breakdown of the marriage as evidenced by the fact that the parties lived separate and apart for at least one year immediately proceeding the determination of the divorce and were living separate and apart at the commencement of the proceeding. Accordingly, by Order issued June 18, 2014 (Appendix I), I granted Divorce Judgment. [ 16 ] On the same date, June 18, 2014, I granted a Partial Corollary Relief Order (Appendix II) referable to 2014 summer parenting and the matrimonial home.

In all of the circumstances I felt it was critical to make a timely decision on these issues. Issues [ 17 ] There are a number of remaining issues to be resolved: date of separation, custody (and David’s living arrangements and the decision-making arrangement for him), property division, retroactive and prospective child and spousal support. Costs have been pleaded but the parties have deferred costs arguments until this decision. Approach to Issues [ 18 ] Where there are multiple issues, they must be approached in a sequence which places them in the appropriate and logical order.

Once the date of separation is sorted out, this involves beginning with David’s parenting. In addition to the obvious importance of this issue, the parenting arrangement provides the context for determining other issues. A parenting arrangement may be relevant to the division of assets, pursuant to s. 13 (

h) of the Matrimonial Property Act , R.S.N.S. 1989, c.275 (“ M.P.A .”). [ 19 ] Mr. St. Croix seeks a shared custody arrangement and the expenses of each parent are relevant under s. 9 (

b) and (

c) of the Federal Child Support Guidelines, SOR 97-175. (“ Child Support Guidelines ”). Possession of the home and responsibility for debts have an impact on expenses that are relevant to child support. In dealing with support applications under the Divorce Act , R.S.C. 1985 (2 nd Supp.), c.3, (“ Divorce Act”) s. 15.3(1) child support must be addressed before spousal support. Date of Separation [ 20 ] Dr. Thompson maintains the parties separated in mid-August, 2011, when she and David moved to Nova Scotia. Mr. St. Croix

says the separation occurred in early February, 2012. The breakdown of a marriage is addressed in s. 8 of the Divorce Act. 8.

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

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

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

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

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

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

a) spouses shall be deemed to have lived separate and apart for any period during which they lived apart and either of them had theintention to live separate and apart from the other; [21] Concerning the determination of a separation date, Justice Beaton noted as follows in Volcko v. Volcko, 2013 NSSC 342 at para.8: In determining the date of separation, each case must be examined on its own facts; while a certain factor or combination of factorsmight lead to a particular determination in one case, it does not necessarily follow that the presence of the same factor(

s) would alwayslead to a similar determination in another case: Dupere v. Dupere (1974) (NB KB), 9 N.B.R. (2d) 554 (QB); Frenchv. French (NSSC), (1997) 162 N.S.R. (2d) 104 (SC); Gardner v. Gardner 2005 NSSF 17 , (2005) 232 N.S.R.(2d) 68 (SC). [22] In this case the background to Dr. Thompson’s move provides context for a number of issues including the date of separation. The Petitioner cited four main reasons for wanting to move from the St. John’s area to Nova Scotia: 1. To be closer to her brothers (resident in the HRM), particularly since the death of their mother (albeit this was about twoyears earlier); 2.

Due to the “stressful” work situation in St. John’s which involved locums and no permanent job guarantee as well as astrenuous on-call schedule; 3. Her view that the Nova Scotia public education system was somewhat superior to the Newfoundland education system,particularly in respect of the enrichment program for David, who by all accounts is a very intelligent child; and 4. Mr. St. Croix’s car hobby, as Nova Scotia would offer a closer (therefore cheaper) transit point for car parts shipped fromother areas of North America and that the Shubenacadie race track would be nearby. [23] Dr.

Thompson went on to explain that by the summer of 2011 she and Mr. St. Croix were having “a lot of trouble in ourmarriage largely leading to the separation issue”. She elaborated that the two were in conflict as to what Mr. St. Croix would do in theirnew environment. Dr. Thompson testified Mr. St. Croix wanted to pursue a hobby racing business whereas she wanted him to obtain ajob in Nova Scotia. To this end, when she was speaking with recruiters, she was receptive to their offers to attempt to place Mr. St.Croix. She testified that Mr. St.

Croix was resistant to these efforts (to the point where he would not furnish his resume) adding that hewas not “on board” with selling their house as he wanted to keep it as a rental property. Dr. Thompson regarded this as a “nightmaresituation” given that the family would be residing in another province. [24] Dr. Thompson said that after a June, 2011 recruiting trip to Nova Scotia she narrowed her choice to the Annapolis Valley overother rural Nova Scotia communities. She testified that Mr. St. Croix was “not interested” in the final decision and left the matter up toher.

During a second recruiting trip in July, 2011, Dr. Thompson signed a contract with A.V.D.H.A. She did not qualify for a

$20,000.00 signing bonus as it was contingent on being on call, something she did not want to agree to, “given it was just me and David”. She also opened up her own bank account in Nova Scotia during this time as she stated she was growing concerned about Mr. St. Croix’s expenditures toward his car hobby and potential car business. [ 25 ] Dr. Thompson then went about securing housing in Port Williams, as through her research, she determined the Port Williams Elementary School would be optimum for David. Dr. Thompson said that Mr. St. Croix did not play a role in looking for a home.

Her evidence was that because their marriage was in significant trouble and they were leading separate lives, “Ron was aware I was relocating with David and he was perfectly content with it”. She went on to say, “he felt good as he would have more time to work on his vehicles”. [ 26 ] The above is to be contrasted with the evidence of Mr. St. Croix. [ 27 ] For his part, Mr. St. Croix said there was a specific plan discussed with his wife. This would involve him staying in the matrimonial home in Paradise and continuing to work at Nalcor for a six month period.

He testified this plan was agreed upon so that the family would continue to have health benefits (through Mr. St. Croix’s employer) until Dr. Thompson’s new position would provide for such benefits (six month waiting period with A.V.D.H.A.). During this half year away from his family, Mr. St. Croix would also oversee required uncompleted renovations to their 48 Lanark Dr. home in Paradise. [ 28 ] Mr. St. Croix added that the agreed upon plan did not involve a search for employment.

According to him, the couple discussed how he would upgrade his education once he joined his family in Nova Scotia. [ 29 ] Irrespective of the background leading up to Dr. Thompson’s departure, it is uncontroverted that the two have not lived together since their separation in mid-August, 2011. While there were visits by Mr. St. Croix to Nova Scotia in September, November and December of 2011, I find from the evidence of both parties that their visits were not harmonious.

Returning to Volcko , supra , Justice Beaton, beginning at para. 7 and continuing to para. 28, provides a thorough review of the authorities regarding determination of a separation date. In finding Mr. and Mrs. Volcko separated on the earlier date in that case, the judge noted points which are applicable here: [17] The Wife relied on Miller v. Miller 2000 NSCA 64 in support of her position that while the parties may have lived in separate residences after 2006, the nature and frequency of their interaction and their continued counselling meant they were not separated.

In Miller (supra), Bateman, J.A. described the parties’ circumstances as follows: [4] The trial judge aptly described the circumstances of the parties’ separation as unique. The Wife testified that on October 24, 1995 she moved into a friend’s home, she and Mr. Miller having agreed to live in different residences while they worked on their marital problems. From that time forward they spent the majority of weekends together, had regular sexual relations, shopped, dined and attended social functions together as they had always done.

She testified that although the parties were living in separate accommodations it was with a view to working out their differences, not ending their marriage. During the months preceding Christmas of 1997 they began to spend less time together and were arguing frequently. In March of 1998 the Wife initiated divorce proceedings. The Wife’s evidence in this regard was uncontradicted. Justice Haliburton found that January 1, 1998 was the date of separation. Counsel for Mr. Miller submits that the trial judge should have choose October 24, 1995 or, alternatively, some date between then and January 1, 1998.

We are not persuaded that Justice Haliburton erred in law in fixing the separation date as he did on these unusual facts... [18] There is a sharp distinction to be drawn between the factual circumstances in Miller (supra) and this case. Here, the parties did not spend the majority of their free time together, they did not engage in regular sexual relations, they did not shop together, and they did not attend social functions together as they had previously done. Rather, their contact centred around their children, with the exception of their attendance at marriage counselling.

Each had a different motivation for participating in counselling, with the Wife seeking to repair the marriage and the Husband looking to finalize its end. In Miller, both parties, while living in separate residences, were mutually intending to resolve their marital problems. [ 30 ] Finally, Justice Beaton’s comments at para. 24 are particularly of assistance on the facts of the within case: [24]

Section 8 of the Divorce Act does not require a mutual intention to end the marriage, as discussed in O’Brien v. O’Brien 2013 ONSC 5750 , per McDermot, J. at paragraph 50: Unlike the decision marry, the decision to separate is not a mutual one. It is a decision which is often made by one party over the objections of the other. Those protestations matter not: once one party has decided to permanently separate and has acted on it, the other party has no ability to stop the process or object to it. This is confirmed by section 8(3) (

a) of the Divorce Act , which states that “spouses shall be deemed to have lived separate and apart for any period during which they lived separate and apart and either of them had the intention to live separate and apart from the other” (emphasis). As stated by D.L. Corbett J. in Strobele v. Strobele, [2005] OJ 6312 (S.C.J.) , the separation occurs when “the parties knew or acting reasonably, ought to have known that their relationship was over and would not resume”[paragraph 29].

[31] In the result I find that the date of separation is at the end of August, 2011. Before leaving this section, however, I feelcompelled to make a finding which will have important consequences for my subsequent determinations on child and spousal support. At the same time, I will explain my rationale for determining August 31, 2011as the date of separation. [32] I have carefully reviewed the viva voce and documentary evidence in an effort to sort through the conflicting testimonyconcerning the parties’ decision to move to Nova Scotia.

I have also reflected on the demeanor of both witnesses as they gave theirevidence in this area. On balance, I find as a fact that neither version is correct but rather something in between. [33] I find that Dr. Thompson and Mr. St. Croix came to the collective decision to move from Newfoundland to Nova Scotia. ByJune, 2011 Mr. St. Croix agreed with Dr. Thompson’s selection of a position with the A.V.D.H.A. By July, he agreed with her decisionto sign the contract. He consented with her leaving with David because he was of the honest belief that he would rejoin his wife and sonin six months’ time.

In this area I completely accept Mr. St. Croix’s evidence as I do not believe he would have agreed to permit his sonto leave without a battle. After all, this is the same man who has (albeit recently with the backdrop of all the litigation) contacted theRCMP with regard to charging Dr. Thompson with kidnapping David. [34] Where I depart with Mr. St. Croix’s version of events and accept Dr. Thompson’s, is regarding the employment plan. I do notbelieve their agreement (developed when they were a couple in the summer of 2011) involved Mr. St. Croix not doing a job search.

Rather, given the testimony, I find that the plan was for Mr. St. Croix to follow his wife and son to Nova Scotia six months hence. Hewould then pursue job opportunities while at the same time explore turning his auto racing hobby into a for profit business. [35] As things unfolded, Mr. St. Croix and Dr. Thompson did not see the plan through as by the end of August Dr. Thompson madethe determination (which she articulated to Mr. St. Croix) that their relationship was over. This decision was further communicated whenthe two saw one another during Mr. St.

Croix’s summer, fall and early winter 2011 visit to Nova Scotia. They were anything butharmonious visits and involved bickering and Mr. St. Croix staying in a separate room in Dr. Thompson’s residence.

What parenting arrangement would be in David’s best interest? [36] As a Petition for Divorce has been issued, the appropriate starting point in determining the parenting arrangement is s. 16(1) ofthe Divorce Act: 16(1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respectingthe custody of or the access to, or the custody of an access to, any or all children of the marriage. [37] In determining the appropriate parenting arrangement, the Divorce Act mandates that the best interests of the children isparamount: 16(8) In making an order under this

section the court shall take into consideration only the best interests of the child of the marriage asdetermined by reference to the condition, means, needs and other circumstances of the child. [38] In D.(C.H.F.) v. H.(C.R.), 2006 NSSC 230, Justice B. MacDonald, quoting from Dixon v. Hinsley, (2001), (ON CJ), 22 R.F.L. (5th) 55 (Ont. C.J.), noted that a broad view must be taken to determine what is truly in the best interests of a child inany given circumstances: “the best interests” of the child is regarded as an all embracing concept.

It encompasses the physical, emotional, intellectual and moralwell being of the child. The court must look not only at the child’s day-to-day needs but also to his or her longer term growth anddevelopment…What is in the child’s best interest must be examined by the perspective of the child’s need with an examination of theability and willingness of each parent to meet those needs. Each parent’s plan for the child must be examined carefully in light of thechildren’s needs.

Custody is not always awarded to the parent who has “cooked the most meals, driven the most miles, attended the mostconcerts or cheered the loudest of their achievement.” [39] Further, in Young v. Young, (SCC), [1993] 4 S.C.R. 3 the Supreme Court noted that the test of the best interestof the child is the only consideration in determining parenting arrangements: First, the “best interests of the child” test is the only test. The express wording of s. 16(8) of the Divorce Act requires the court to lookonly at the best interests of the child in making orders of custody and access.

This means that parental preferences and “rights” play norole. Second, the test is broad. Parliament has recognized that the variety of circumstances which may arise in disputes over custody andaccess is so diverse that predetermined rules, designed to resolve certain types of disputes in advance, may not be useful. Rather, it hasbeen left to the judge to decide what is in the “best interests of the child”, by reference to the “condition, means, needs and othercircumstances” of the child. Nevertheless, the judicial task is not one of pure discretion.

By embodying the “best interests” test inlegislation and by setting out general factors to be considered, Parliament has established a legal test, albeit a flexible one. Like all legaltests, it is to be applied according to the evidence in the case, viewed objectively. There is no room for the judge’s personal predilectionsand prejudices. The judge’s duty is to apply the law. He or she must not do what he or she wants to do but what he or she ought to do. [40] Commencing in late August, 2013, Mr. St. Croix began living in Nova Scotia for the balance of 2013 and his plan involves

living here for in the order of three quarters of each successive year. In the result, he seeks a shared parenting arrangement. On theother hand, Dr. Thompson asks the Court to continue the parenting arrangement set out in the Interim Order of December 20, 2013. Pursuant to the Order, David primarily resides with his mother, while Mr. St. Croix has parenting time every other weekend from Fridayafter school until Monday morning, and every week from Wednesday after school until Thursday morning. [41] Dr. Thompson and Mr. St. Croix have a similar proposal for David for the summer holidays.

This is contained within thePartial Corollary Relief Order (Appendix II). [42] The evidence discloses that Dr. Thompson has been David’s primary caregiver throughout much of his life. Since birth she hastaken him to the vast majority of his medical appointments. David has lived with Dr. Thompson in Port Williams since August, 2011. Mr. St. Croix has had regular, in person, access with David since the parties’ separation. Since Mr. St.

Croix relocated to Nova Scotia inAugust, 2013, he has continued to have regular access with David (since November 7, 2013, that access has been as set out in the InterimOrder). [43] Although Dr. Thompson agrees Mr. St. Croix should have regular parenting time with David, she does not agree that a sharedparenting arrangement would be in David’s best interests. It is the Petitioner’s position that a constant and predictable routine andenvironment is what is best for David. [44] As I remarked more than once over the trial, it is my view that both parents equally love their son.

His best interests are to beconsidered above all other considerations. This requires that, where possible, each parent have a strong presence in his life. [45] Through the course of the trial there was consistent evidence from both parties that David is a very intelligent eight year old. He has been provided an individualized education plan as a gifted student in his grade two class at Port Williams Elementary. He isinvolved in extracurricular activities ranging from karate to music lessons.

He has friends but is somewhat solitary in his approach andwas investigated as possibly being on the autism spectrum, but this was ruled out. [46] Unfortunately, David’s parents, especially since their separation, have had a significantly strained relationship. This hasresulted in poor communication (acknowledged by both sides) and overall conflict. In addition to the R.C.M.P. complaint there havebeen episodes between the parents causing heightened anxiety centering around David’s schooling, after school program and karatelessons.

With the December 20, 2013 Interim Order in place the situation has somewhat improved, but there still exists considerabletension and difficult communication. [47] For the past two and one half years, there have been numerous plane trips with David flying from Halifax to St. John’s andreturn to facilitate liberal access with his father. This has manifested itself as another issue between the parents as Mr. St. Croix is of theview his son can travel unaccompanied, whereas Dr. Thompson feels otherwise. [48] Considerable trial time was spent on this issue, inclusive of Mr. St.

Croix introducing an exhibit of the various airlines’ policiesregarding unaccompanied minors. Having considered all of the evidence, I am of the emphatic view that Dr. Thompson’s position onthis issue is reasonable and must prevail. It is clearly in the best interest of this particular eight year old that he has a travel companionfor the foreseeable future, perhaps until he reaches the higher elementary grades. [49] The cost of airline travel for the 2014 summer was specifically addressed in the Interim Order (Appendix II).

After the summerthe cost of having David travel accompanied shall be borne by the parent travelling with him. If a parent is not travelling with David,then the cost (of flying a mutually acceptable relative or close friend) shall be shared equally. [50] Before leaving this area I wish to add that there were a number of email exchanges introduced as exhibits which touched on thistopic and other parenting decisions. Unfortunately, Mr. St. Croix’s emails were often far from diplomatic, deploying derogatoryadjectives to characterize Dr. Thompson and her actions.

I do not wish to dwell on this other than to make the point that the emails arepart of the evidence which convinces me that the appropriate decision making arrangement for David must rest with one or the otherparent and that – for the reasons indicated and further developed below – the parent should be Karen Thompson. Some of the otherevidence relates to disagreements between the parties regarding a flu shot (Karen, yes/Ron, no), dirt bike (Ron, yes/Karen, no) andproduction of a travel letter pursuant to the December 20, 2013 Order (Mr. St.

Croix belatedly producing the letter with his initial refusaldue to a typographical error in the Order). [51] The culminating effect of these disagreements has been to cause tension and stress between the parties. Furthermore, and ofeven greater concern, is the “spillover” effect the upset has undoubtedly had on David. There was evidence from both parents of severaltimes when David has been told by one parent about the other’s faults. This, of course, is harmful to David and the best decision makingarrangement for him must seek to minimize/eliminate this. [52] In Lockerby v.

Lockerby, 2010 NSSC 282, Justice Jollimore had cause to review a volatile relationship and ultimately decided itwas best for the children to reside primarily with their father and for him to have the final decision making authority over the children. At paras. 70-72 Justice Jollimore set the background, which offers assistance with my determination: 70 As long ago as 1998, the court distinguished between an "inability" to cooperate and an "unwillingness" to cooperate in determiningparenting arrangements in Godfrey-Smith, (N.S.S.C.) at paragraph 20.

In that case, then-Justice Michael MacDonaldrelied on the parties' past cooperative relationship to determine that a joint custody relationship was appropriate. I distinguish thecircumstances before me from those which existed in Godfrey-Smith, (N.S.S.C.). The Lockerbys have experienced aprolonged period of high conflict. This is not a situation where once cooperative parents now restrict their communications to curtemails.

This is a situation where children have experienced more than one and one-half years of allegations that their father hasconsciously made decisions designed to hurt them, whether by failing to return items they take to his home or by sabotaging the hotwater system in their home. After the experiences of the past years, the children cannot expect that their parents will cooperate indecision-making.

It is in the children's best interests that decisions about them do not become an opportunity for conflict between theirparents and that the children do not have to worry that their decisions will be buried under their parents' conflict. For the children to havethe security of knowing that important decisions will not fall victim to their parents' conflict means there must be a sole decision-maker.

A sole decision-maker will also ensure that decisions do not become a battlefield. 71 Between the parents, Mr. Lockerby has done more to shield the children from the conflict. He says this has meant not responding tocomments the children relay from their mother and not explaining his side of the story. He says that the consequence of this is that he iseither left to let it go (leaving the children with the impression he has done something wrong) or explaining the adult situation to thechildren and thereby speaking negatively of their mother.

He appreciates that silence has unfortunate consequences for him, but knowsthis is necessary, if the children are to be kept out of their parents' conflict. Between the parents, I rely on Mr. Lockerby to makedecisions for the children without using the situation to perpetuate the parents' conflict. Mr. Lockerby shall have sole custody of thechildren. When important decisions are to be made, he shall advise Ms.

Lockerby of the decision he intends to make and make the finaldecision. 72 To ensure the children's relationships with their parents are not challenged by involving them in the separation and to ensure thattheir contact with each parent is maximized, the children should have their primary residence with their father beginning immediately.Any access arrangements the parents have already made for this summer will be followed. [53] In this case I find Dr. Thompson has done the most to shield David from the conflict. Between the parents, I rely on Dr.Thompson to make decisions for David.

When she makes an important decision about David, she shall advise Mr. St. Croix on a timelybasis. [54] In Hammond v. Nelson, 2012 NSSC 27, Dellapinna J. did a thorough review of recent cases regarding shared parenting(including Associate Chief Justice O’Neil’s decisions in Murphy v. Hancock, 2011 NSSC 197; and Gibney v. Conohan, 2011 NSSC268). In doing so, Justice Dellapinna developed a non-exhaustive list of eight considerations (para. 68) for the Court to review when oneparent is seeking shared parenting.

I have bourne these considerations in mind in making my determination that David should primarilyreside with Dr. Thompson and that she should have the final decision making authority. [55] In Hammond the parties dated for approximately three months. They had one child together, who was about two and a halfyears old at the time of the hearing. Both parents were involved with their child from the time of birth, although they have haddifficulties communicating with each other. Justice Dellapinna found that both parents were able to be their child’s primary parent.

However the Court ultimately found that imposing a shared parenting arrangement over the mother’s objections would have an adverseeffect on the parents’ relationship, and an adverse effect on the child. As well, Justice Dellapinna found that the child required stability,and that was found in leaving the child in the primary care of her mother with the father having generous parenting time (at para. 90-91). [56] Nova Scotia Courts have determined shared custody arrangements require an even greater level of cooperation andcommunication between the parents than joint custody arrangements.

Parents must not only foster and encourage meaningful, regularand frequent contact between the children and the other parent they must also cooperate in providing similar routines and value systemsin each household for the children. [57] In F.F.R. v. K.F., 2013 NLCA 8, White J.A. found that the trial judge did not err in ordering “qualified joint custody” thatgranted the mother final decision-making authority (at para. 49). [58] The trial judge found that: I have, as indicated, concluded that there is ongoing animosity between Mr. R. and Ms. F.

I have also concluded that there is anabundance of evidence which proves a lingering lack of cooperation and effective communication. I have therefore, following theprinciples set out in the foregoing jurisprudence, also concluded that K.'s best interests will be better served with one parent having finaldecision-making authority concerning major issues that affect her; this is because I am firmly convinced, based on the evidence, thatboth of K.'s parents will not be able to consistently agree on issues which affect K.; this includes extra-curricular and recreationalpursuits. As stated in Lamont-Daneault v.

Daneault, 2003 MBCA 111 , [2003] M.J. No. 318, supra, and Sawatzky v. Sherris,2002 MBCA 143 , [2002] M.J. No. 429, 2002 CarswellMan 465 (Man. C.A.), supra, ordinarily this is the parent with primarycare and control. Because I cannot find a valid reason for departing from that which is ordinarily ordered, the ensuing order will providefor joint custody but with Ms. F. having final decision making authority if she and Mr.

R. cannot agree on major decisions which affectK. [59] White J.A. held that: Assigning one parent final decision making authority may be appropriate where there is evidence of an inability to resolve mattersbecause of a high degree of conflict existing between the parents: see Carnell v. Follett, 2010 NLTD(F) 25, 300 Nfld. & P.E.I.R. 133;Snook v. Lane (2006), (NL SC), 255 Nfld. & P.E.I.R. 339 (NLUFC).

While parents should strive to come to anagreement and rationally and fairly deal with issues as they arise, it must be recognized that this is not always possible and that, as aresult, the child of the relationship may be caught in the conflict. [60] Justice B. MacDonald considered this issue in C.(J.R.) v. C.(S.J.), 2010 NSSC 85. MacDonald J. goes into detail consideringthe distinction between sole custody, and joint custody when one parent has the final decision-making authority (at para 26-30). Ultimately she notes that “…joint custody must not be granted as a form of wishful thinking.

The nature and extent of the conflict

between the parties must be analyzed to determine if joint custody is in a child’s best interest” (at para. 30). [61] Having regard to the evidence, I am of the view that the optimal parenting arrangement for David involves the parenting planproposed by Dr. Thompson and (but for changes in respect of phone calls, which I will address below) attached to my decision asAppendix III. With this plan in place, David will continue to have the stability of living in his primary home in Port Williams. This willafford him proximity to his school, friends and extracurriculars.

When his father is resident in the Port Williams vicinity (which by hisevidence will likely be for the regular Acadia University school year or an extended one involving spring and/or summer courses), Davidwill live with Mr. St. Croix over every Wednesday and every other weekend (as more particularly set out at Appendix III). [62] As for the aforementioned phone calls, I have modified the parenting plan so that they occur less often and for a shorterduration. In this regard, I am mindful of David’s school and extracurricular

schedule along with his bedtime routine, as addressed byboth parents in testimony. [63] In my view, the parenting plan I have set out allows for both parents to continue to have a strong presence in David’s life butwith less likelihood of conflict, and therefore in their child’s best interest. Property Division Application (

a) Principles [64] Under the M.P.A., I must first identify the assets and then classify them as matrimonial or non-matrimonial. Identifying assetssimply involves listing them. Classifying assets requires determining whether they are excluded under s. 4(1) of the M.P.A. Once itemsare identified and classified, they must be valued. The M.P.A. provides that matrimonial assets are to be divided equally. In limitedcircumstances the M.P.A. allows for an unequal division of matrimonial assets and a division of non-matrimonial assets. [65] As Justice Smith (as she then was) noted in Abbott v.

Abbott 2002 Carswell NS 395, at para. 14: An interest in matrimonial property is generally not determined based on a party's contribution to the asset (financial or otherwise)during the marriage. The starting point under the Nova Scotia Matrimonial Property Act is the presumption that all property acquired byeither or both spouses before or during the marriage is matrimonial property with certain exceptions as set out in s. 4(1) of the Act.

TheAct allows the Court to grant an unequal division of matrimonial assets taking into account the date and manner of acquisition of theassets (see s. 13(e)), however, it is not necessary, nor is it desirable, for the parties to focus on who spent what on the property during themarriage. In many marriages one spouse is significantly or completely responsible for the expenses relating to the matrimonial assetssuch as the matrimonial home.

Nevertheless, the law provides for a presumption of an equal division of these assets. [66] Further, at para. 19, Justice Smith stated the following concerning valuation dates for matrimonial assets: The Matrimonial Property Act does not specify a date that should be used for the valuation of matrimonial assets. The case law thathas developed in Nova Scotia establishes that there is no requirement on the Court to assign a single valuation date for all matrimonialassets (see: Reardon v. Smith (1999), 1999 NSCA 147 , 1 R.F.L. (5th) 83 (N.S.C.A.)).

The Court has the discretion to decidewhat is fair and equitable in the circumstances of each case (see: Simmons v. Simmons (2001), (NS SF), 196 N.S.R.(2d) 140 (N.S.S.C.)). (

b) Division of Matrimonial Home [67] In Simmons (referenced by Justice Smith in the above quote) Justice D. Campbell provided principles for the valuation ofassets, which continue to be accepted by the Courts in Nova Scotia. With respect to the matrimonial home, Campbell, J. held that itshould be valued as of the date of division. [68] The parties’ home at 48 Lanark Dr. in Paradise was appraised by William G. Balsom of Kirkland, Balsom & Associates on May2, 2014. Mr. Balsom’s report was introduced in evidence and he gave viva voce evidence from St. John’s via a video/audio link.

On thebasis of his report and testimony I find the matrimonial home has an appraised value of $364,900.00 “as is”. In this regard, the originalreport valued the house at $359,900.00 but through cross-examination it was developed that Mr. Balsom erroneously considered the lotof the smaller next door properly (46 Lanark Drive) when he prepared his opinion.

The “as is” designation refers to the fact that thereare fairly significant uncompleted renovations which need to be done to the property. [69] Since the property is in Newfoundland, the Court does not have jurisdiction to make an Order with respect to the property itself. However, I am able to make an Order that the parties do something with respect to the property, or that the value of the property be takeninto account for a division of assets. In this respect, I refer to M.P.A. s. 22(2) and (3): Immovable property

(2) The ownership of immoveable [immovable] property as between spouses is governed by the law of the place where that property issituated.

Consideration of value of immovable property

(3) Notwithstanding subsection (2), where the law of the Province governs the division of assets, the value of the immoveable[immovable] property wherever situated may be taken into consideration for the purposes of a division of assets. R.S., c. 275, s. 22. [70] At the conclusion of the trial I ordered that the parties sell the home and the Order (also addressing 2014 summer access) isfound at Appendix II. [71] I recognize that it may take considerable time for the house to be sold. With this in mind, I am cognizant of the historyinvolving Mr. St.

Croix not realistically attempting to rent the house out when he lived in Nova Scotia from late August, 2013 until lateApril, 2014. I am also mindful of how Dr. Thompson was forced to step in to pay the couple’s line of credit mortgage when Mr. St.Croix defaulted on the monthly obligation. In the result, I order that in the event the home does not sell on or before October 31, 2014,that a rental agency be commissioned to rent the house. I further order that if Mr. St.

Croix should somehow change plans and remain inthe house, that he be responsible for all line of credit, mortgage, utility, tax and associated expenses referable to 48 Lanark Drive for aslong as he lives there. (

c) Remaining Matrimonial Assets and Debts [72] With respect to the remainder of the matrimonial property and debts, there was considerable evidence regarding various bankaccounts and lines of credit. Dr. Thompson argued that the bulk of the assets be equally divided but that some of the debts should not bedivided equally. As for Mr. St. Croix, his position was set out in his pretrial brief as follows: Matrimonial assets and debt should be unequally divided. The couple had intertwined finances throughout the marriage.

Significantinvestment decisions, capital expenditure and debt accruals were assumed by the couple based on the future earning potential of Ms.Thompson. Based on long term effects an equal division of assets and debts will have on the financial health of Ron, it is proposed that Karen absorbthe outstanding debt associated with the CIBC line of credit and the National Bank line of credit. Karen should also be responsible forpayment of her student loan. These amounts, while not insignificant, are much more manageable for Karen on a cash flow basis within along term personal debt consolidation plan.

The opposite effect unto Ron would challenge his ability to be a parent to David andpotentially lead to personal bankruptcy proceedings. Karen should also provide an equalization payment to Ron in the form of lost capital as her actions have resulted in the renovation in thehome remaining unfurnished. Any appreciation in value associated with the sale of the matrimonial home as it should have beencompleted is now lost. Potentially, there will also have to be restorative work on the exterior to repair weather damaged materials. These costs should also be directed unto Karen.

An additional effect is in the long term security of Ron’s financial health and his path toward self-sufficiency upon the breakdown of themarriage. Significant decisions in the couple’s marital arrangement were made respecting the fact that Karen would be earning asignificant income upon completion of her medical program. Of paramount importance in the relationship was the decision to move toNova Scotia as a family to support Karen in her career endeavour. As a result of the breakdown of the marriage, Ron’s future financial security is completely unknown. The couple agreed to move as afamily to Nova Scotia.

Karen’s unilateral decision to end the marriage does not belie her responsibilities and obligations of thematrimonial arrangement. The current situation has in effect usurped Ron’s ability to be an equal parent in David’s life and alsojeopardized Ron’s financial future. An unequal division in Ron’s favour would accelerate Ron’s path toward self-sufficiency at the same time preserving the standard ofliving that each spouse experienced and planned for in their future together. [73] Once again, the M.P.A allows for an unequal division of property only in limited circumstances.

As for debts, as Jollimore J.noted in Lockerby, supra, at para 146: Section 12(1) of the Matrimonial Property Act provides that matrimonial assets are divided equally notwithstanding the ownership ofthe assets. There is no similar treatment of debts. In Cameron, (N.S.S.C.), affirmed by Cameron, 1996 NSCA 86, (N.S.C.A.), Justice Goodfellow noted, at paragraph 26, that a debt is not automatically shared simplybecause the debt may be labeled as matrimonial indebtedness. Whether the debt will be shared depends on whether the division ofmatrimonial assets in equal shares would be unfair or unconscionable.

His Lordship did comment, again at paragraph 26, that "In mostconceivable situations fairness and conscience dictate a sharing of matrimonial indebtedness." [74] In Cogswell v. Wright, 2014 NSSC 173, Justice Legere Sers noted as follows at paras. 209-215 concerning debts:

209 Our Court of Appeal has directed courts to ask certain questions when addressing the issue whether debts are matrimonial (Ellis v.Ellis (1999), 1999 NSCA 31 , 175 NSR (2d) 268; see also Bailey v. Bailey (1990), (NS SC), 98 NSR (2d) 9(paragraph 23)). 210 These questions include: 1. Were the debts incurred for the benefit of the family unit? 2. Were they ordinary household debts and if incurred after separation (as the orthodontic debts were) were they necessary to meet basicliving expenses or preserve matrimonial assets? and 3.

Were they reasonably incurred? 211 While knowledge of a debt is not essential to its classification as matrimonial, in Selbstaedt v. Selbstaedt, 2004 NSSF 110,Dellapinna, J. at paragraph 45 noted "the non-disclosure of a significant debt by one of the parties may make the task of meeting theburden of proof more difficult to achieve." 212 The Matrimonial Property Act does not specifically deal with a division of debts.

There is not a legislated presumption, as withassets, that debts are divided equally; therefore, each debt must be considered individually. 213 A Court may consider, among other factors, the amount of the debt, the liability of the spouse, and the current balance. 214 In order to consider whether there may need to be an unequal division of these debts, the Court also has to consider in this casesection 13 of the Matrimonial Property Act, whether there was unreasonable impoverishment of the matrimonial assets by a spouse. 215 The Court must also reflect on whether this debt was incurred solely for the benefit of one spouse. [75] In Simmons, supra, Justice Campbell outlined the general principles for the valuation date of an asset, noting at para. 33: 33 In conclusion, fairness in the valuation process is achieved by applying separation date values to those assets which tend to beconsumed by actual usage or whose value has been earned or accrued by reference to the passage of time and corresponding years ofemployment service or other earned basis.

Other assets should be valued as of the date of division which is the date when an accountingoccurs between the spouses. [76] These principles have been cited in numerous subsequent decisions and approved of by the Nova Scotia Court of Appeal (seeMoore, 2003 NSCA 116 , 2003 N.S.C.A. 116 at para. 24; Morash, 2004 NSCA 20 at para. 20). [77] In Simmons, supra, the Court also discussed the division of bank accounts (see para. 21) stating that an operating bank accountshould be valued at the point when the spouses separate their finances. [78] According to Clarke v. Clarke, 2004 NSSF 43 and Shurson v.

Shurson, 2007 NSSC 101, both spouses are entitled to the benefitof a mortgage payout. [79] With respect to pensions, Morash, supra establishes that the date for division of a regulated pension such as Mr. St. Croix’s willbe at the date of the couples’ separation. At para. 32 the Court of Appeal held that, “pension credits earned before and during themarriage (subject to valuation dates) are a matrimonial asset and subject to equal division”. Accordingly, Mr. St.

Croix’s pension withNalcor (effective approximately August, 2005 and up until August 31, 2011 with an estimated present value of $80,000.00) shall bedivided equally between the parties. [80] I am mindful of the positions of both parties in coming to my determination of the division of their assets and liabilities. I mustsay I have some sympathy with the approach suggested by Mr. St.

Croix but on balance, I believe this may be better addressed (andproperly in law) thorough my ultimate disposition with respect to spousal support. [81] In the result I have reviewed the oral and documentary evidence in this area and determined that the table handed up in closingsubmissions by the Petitioner offers, for the most part, an equitable division of matrimonial property and debts. Accordingly, I haveappended the table as Appendix IV and order that it be followed.

It is identical to what the Petitioner proposed with five exceptionswhere I have: 1. increased the value of the appraised value of the matrimonial home from $359,900 to $364,900 for the aforementioned

reason. 2. reduced the value of the Respondent’s “3 Datsuns” from $20,000.00 to $9,000.00 to reflect the evidence that two of the three vehicles are not operating and used for extra parts; 3. factored in the aforementioned pension estimate; 4. not provided any credit to the Petitioner for allegedly crediting ($1,630.00 estimate) the parties’ joint VISA as I found the evidence here to be imprecise; and 5. factored in the Petitioner’s student loan current balance ($33,096.00) to be divided on account of my decision to award spousal support. [ 82 ] In coming to my determination of a division of the parties’ assets and debts I have gone over the entirety of the evidence along with the aforementioned authorities.

At the end of the day, I am satisfied the Appendix IV chart represents a fair and equitable distribution of the matrimonial assets and debts. Retrospective and Prospective Child Support [ 83 ] Since the date of separation, David has lived primarily with his mother. This will go on as I have continued the existing parenting plan into the future. In determining child support I must consider the parents’ income and where appropriate, impute income to one or both parents. Once this is done, I must apply the Child Support Guidelines to establish David’s support.

I have accordingly, followed this approach in making this determination. Retrospective and Prospective Spousal Support [ 84 ] As mentioned at para. 81, supra , for reasons that will be fully developed, it is my decision to award spousal support. Unlike the mandatory requirement to follow the Child Support Guidelines , the law does not oblige me to apply the Spousal Support Advisory Guidelines (“S.S.A.G.”) (see Strecko v. Strecko, 2014 NSCA 66 , at para. 50 , per Oland J.A., Beveridge and Farrar J.J.A., concurring).

Nevertheless, as fully developed herein, I have consulted the S.S.A.G. and found them to be of guidance in determining the award for spousal support. (

a) Background [ 85 ] The parties had what I would describe as a contemporary marriage. After living together for nearly two years, they married on August 3, 2002. They lived together as a married couple for slightly in excess of nine years. During this time, there were periods of separation on account of Mr. St. Croix’s work and due to marital discord. These times apart – when one examines the parties’ timelines and considers their evidence (albeit somewhat conflicting on the number of times apart and duration) – are not of a magnitude that causes me to qualify the finding that it was a nine year marriage.

In the midst of the marriage, their only child, David was born January 10, 2006. [ 86 ] During their time together, the parties’ incomes were as follows: Year Dr. Thompson* Mr. St.

Croix 2000** $4,339.00 $16,214.00 2001 $281.00 $26,631.00 2002 $2,557.00 $41,757.00 2003 $2,038.00 $27,981.00 2004 $22,889.00 $28,619.00 2005 $44,103.00 $45,579.00 2006 $19,752.00 $60,847.00 2007 $61,200.00 $75,803.00 2008 $58,521.00 $77,885.00 2009 $17,559.00 plus $36,000.00 (tax free disability) $77,310.00 2010 $56,805.00 $85,619.00 2011 (January-August) $67,690.00 $55,318.00 Total $393,734.00 $619,563.00 *Not including a combination of student loans, scholarships, grants and savings. **The parties were only together for 5 months of 2000. [ 87 ] Given the totals, Mr. St.

Croix’s earnings over these eleven years were $619,563.00 and Dr. Thompson’s $393,734.00. This amounts to a ratio of roughly 60/40 (Mr. St. Croix over Dr. Thompson). Apart from the income differential, as might be expected, the parties did not carry out identical household functions. I will refrain from comparing their respective contributions in this area other than to say that on the totality of the evidence I believe Mr. St. Croix did the majority of the household tasks. [ 88 ] I say this with reference to the fact that Dr. Thompson understandably devoted much of her time to studying. By contrast, Mr.

St. Croix had jobs which he testified he could “leave at the gate” when he left in the afternoon. [89] Additionally, there were times over their nine years together when Dr. Thompson’s personal circumstances required Mr. St.Croix to do more to support his wife. In this regard, the evidence discloses Dr. Thompson had significant health difficulties beginning inJune, 2003, which required six months away from her studies. Approximately six years later, Dr. Thompson’s mother was diagnosedwith terminal cancer and she died on September 14, 2009. During both of these time periods I find Mr. St.

Croix increased his householdcontribution along with providing support to his spouse. [90] I therefore find that the evidence warrants spousal support to be paid by Dr. Thompson to Mr. St. Croix. The questions nowarise as to in what amount and for what length of time? (

b) Income and Expenses [91] To answer the above questions I will first examine income and expenses. I will also consider as paramount David’s childsupport as I consider his parents’ spousal support obligations/entitlement. [92] In advance of trial both parties completed Statements of Income as well as Statements of Expenses. In the case of Mr. St. Croixthey were filed late and unsworn. Of perhaps greater concern to the Court was the fact that Mr. St. Croix showed monthly budgetedexpenses that were excessive involving among other items, housecleaning of $175.00 and “professional service arrears” of $400.00.

Through cross-examination it was developed that Mr. St. Croix felt he owed in the order of $45,000.00 in legal fees related to thelitigation in the matter, yet he did not follow up with the Court’s invitation to produce documentation backing up this figure. [93] On account of the above and other examples of inflated items, Mr. St. Croix showed total monthly expenses of $14,000.00. Accordingly, when his income was factored in there was a net deficit of in excess of $8,800.00 per month. [94] As for Dr.

Thompson, her total monthly expenses (shown in her Statement of Expenses filed May 5, 2014) were shown to be$15,386.09. [95] While not as overstated as Mr. St. Croix’s, I found some of the items to be on the high side. For example, given Dr.Thompson’s $30,000.00 annual RRSP/TFSA contribution, she showed a $2,500.00 monthly amount. She also listed monthlyprofessional conference fees of nearly $500.00. In the result, after factoring in her income, Dr.

Thompson showed an overall monthlydeficit of just over $4,500.00. [96] In addition to my view that both parties’ expenses are overstated, I am of the view that their incomes are less than what they canand should be for their sakes and for David. Accordingly, I will now address imputation of income. (

c) Imputation of Income [97] In Saunders v. Saunders, 2011 NSCA 81, Farrar J.A. (Fichaud and Bryson JJA concurring) considered the issue of spousalsupport and imputing income. At paras 40-42, the court of Appeal provided the statutory and jurisprudential backdrop: 40

Section 15.2(4) of the Divorce Act requires that certain factors are to be taken into consideration when making an award of spousalsupport pursuant to the Divorce Act.

Section 15.2(4) directs that the Court: a. ... shall take into consideration the condition, means, needs and other circumstances of each spouse, including b. (

a) the length of time the spouses cohabited; c. (

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

c) any order, agreement or arrangement relating to support of either spouse. 41 The Court is mandated to take into consideration the means, needs and other circumstances of each spouse. Bracklow v. Bracklow, (SCC), [1999] 1 S.C.R. 420 analyzed the respective obligations of husbands and wives. The trial judge, here,accurately summarized this decision as follows: a. [58] In Bracklow v.

Bracklow, (SCC), [1999] 1 S.C.R. 420, 44 R.F.L. (4th) 1, The Supreme Court of Canadaanalysed the respective obligations of husbands and wives and stated at pps. 439-440 (S.C.R.): b. ... a matter of applying the relevant factors and striking the balance that best achieves justice in the particular case before the court. c. ... d. There is no hard and fast rule. The judge must look at all the factors in light of the stipulated objectives of support, and exercise hisor her discretion in a manner that equitably alleviates the adverse consequences of the marriage breakdown.

Section 15.2(6) of the Divorce Act outlines the objectives of an order for spousal support and directs that an order: a. ... for the support of a spouse should b. (

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

b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and aboveany obligation for the support of any child of the marriage; d. (

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

d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. [98] Later at paras 53-59, Justice Farrar discussed how to determine the appropriate amount of support: 53 In Read v. Read, 2000 NSCA 33, Freeman, J.A. quoting Justice Goodfellow in Mosher v. Mosher (1999), (NSSC), 177 N.S.R. (2d) 236 (S.C.) at 238 to the effect that the duty of support is on the payor to provide reasonable support. The keyquestion in this case is what is reasonable support having regard to all the circumstances. As I have previously set out, I found that thetrial judge erred in two ways: (

i) by failing to impute more income to Ms. Saunders; and (ii) by misapprehending or failing to take intoaccount her actual needs. What then is the appropriate amount of support? 54 In Shurson v. Shurson, 2008 NSSC 264, Justice MacDonald of the Family Division was considering an application to vary thespousal support provisions of the parties' corollary relief judgment.

She held: a. [13] Examples of circumstances that may lead to a decision that a spouse is entitled to compensatory support are: b. a)a spouse's education, career development or earning potential have been impeded as a result of the marriage because, forexample: c. -- a spouse has withdrawn from the workforce, delays entry into the workforce, or otherwise defers pursuing a career oreconomic independence to provide care for children and/or a spouse; d. -- a spouse's education or career development has been negatively affected by frequent moves to permit the other spouse topursue these opportunities; e. -- a spouse has an actual loss of seniority, promotion, training, or pension benefits resulting from an absence from the workforcefor family reasons. f. b)a spouse has contributed financially either directly or indirectly to assist the other spouse in his or her education or careerdevelopment. g. [14] Non-compensatory support incorporates an analysis based upon need and ability to pay.

If spouses have lived fullyintegrated lives, so that the marriage creates a pattern of dependence, the higher-income spouse is to be considered to have assumedfinancial responsibility for the lower-income spouse. In such cases a court may award support to reflect the pattern of dependencecreated by the marriage and to prevent hardship arising from marriage breakdown. L'Heureux-Dubé, J. wrote in Moge v. Moge, supra, atp. 390: h.

Although the doctrine of spousal support which focuses on equitable sharing does not guarantee to either party the standard ofliving enjoyed during the marriage, this standard is far from irrelevant to support entitlement (see Mullin v. Mullin, (PE SCAD), [1991] P.E.I.J. No. 128, supra, and Linton v. Linton, (ON CA), [1990] O.J. No. 2267, supra).Furthermore, great disparities in the standard of living that would be experienced by spouses in the absence of support are often arevealing indication of the economic disadvantages inherent in the role assumed by one party.

As marriage should be regarded as a jointendeavour, the longer the relationship endures, the closer the economic union, the greater will be the presumptive claim to equalstandards of living upon its dissolution (see Rogerson, "Judicial

Interpretation of the Spousal and Child Support Provisions of theDivorce Act, 1985 (Part I)", supra, at pp. 174-75). (emphasis added) i. [15] It is not clear from Justice L'Heureux-Dubé's, decision whether entitlement arising from a "pattern of dependence" iscompensatory or non-compensatory. A pattern of dependence may create a compensatory claim because it can justify an entitlementeven though a spouse has sufficient income to cover reasonable expenses and might be considered to be self-supporting.

This often isdescribed as the "lifestyle argument" -- that the spouse should have a lifestyle upon separation somewhat similar to that enjoyed duringmarriage. (Linton v. Linton, (ON CA), 1990 CarswellOnt 316 (Ont. C.A.) A lengthy marriage generally leads to apooling of resources and an interdependency even when both parties are working. Usually the recipient spouse will never be able to earnsufficient income to independently provide the previous lifestyle. This would form the basis of a compensatory claim but does notnecessarily entitle a spouse to lifetime spousal support.

The essence of a compensatory claim is that eventually it may be paid out. Thisleads to a discussion about the quantum and duration of the claim.

j. [16] Once it is decided that a spouse is entitled to spousal support, the quantum (amount and duration) is to be determined byconsidering the length of the relationship, the goal of the support (is it compensatory, non-compensatory or both), the goal of self-sufficiency, and the condition, means, needs and other circumstances of each spouse.

In considering the condition, means, needs andother circumstances of each spouse one may examine the division of matrimonial property and consider the extent to which that divisionhas adequately compensated for the economic dislocation caused to a spouse flowing from the marriage and its breakdown and anycontinuing need the spouse may have for support arising from other factors and other objectives set forth in s. 15(2). (Tatham v. Tatham,2005 BCCA 502 , [2005] B.C.J.

No. 2186, 2005 CarswellBC 2346 (B.C.C.A.) 55 The spousal support to be awarded in this case contains both compensatory and non-compensatory elements. It is compensatory inthe sense that the parties were married in excess of 30 years and worked as a team in Dr. Saunders' medical practice. Ms. Saunders actedas the office manager as well as his registered nurse. Undoubtedly she contributed directly and indirectly in his career development. Thenon-compensatory aspect of it is based on Ms. Saunders' needs and Dr. Saunders' ability to pay. 56 However, I also have to take into consideration that Ms.

Saunders has the ability to earn a greater income than she is presentlyearning. Even though she has the ability to earn a higher amount, I am satisfied that she still requires spousal support to assist her in herlifestyle and Dr. Saunders has an ability to pay spousal support. 57 Taking into account that the amount of income Ms. Saunders is able to earn is greater than what she is presently earning, the factthat the expenses are overstated by a considerable amount, leaving her with a deficit of much less than set forth in her statement ofexpenses, the compensatory aspect of the spousal support, and Dr.

Saunders' income, I would award $7,500 per month for spousalsupport. This is approximately $4,100 more than her actual needs (see para. 49) and addresses both the compensatory and non-compensatory elements of spousal support. This is still a significant award which is in excess of her actual needs which would allow herto maintain her "comfortable lifestyle" referred to by the trial judge. 58 The amount of spousal support overpaid by Dr. Saunders, by my calculation, is $22,400 (14 months X $1,600, August 2010 toSeptember 2011). Dr.

Saunders may recover this amount by reducing his spousal support payments for the next 23 months by $1,000 permonth for the first 22 months and $400 for the final month. [99] In imputing income I am mindful of the authorities cited by Justice Farrar and also derive guidance from Drysgala v. Paul,[2002] W.D.F.L. a decision of the Ontario Court of Appeal. After reviewing the Child Support Guidelines and in particular s. 19(1)(a),Justice Gillese stated as follows at paras. 24-26: [24] The meaning of the word "intentionally" in s. 19(1)(

a) has received inconsistent application in the courts. On the one hand, thereare the so-called bad faith cases in which the word "intentionally" has been interpreted as meaning a deliberate course of conduct for thepurpose of undermining or avoiding the parent's support obligation. These cases act on the explicit assumption that a court should notimpute income in the absence of such a motive, as to do so results in an onerous financial obligation on a parent who chooses to make acareer change. Williams v. Williams (1997), (NWT SC), 32 R.F.L. (4th) 23, [1997] N.W.T.R. 303 (S.C.); Hall v.Hall, [1997] O.J.

No. 453 (Quicklaw) (Gen. Div.); Hunt v. Smolis-Hunt, 2001 ABCA 229 , [2001] A.J. No. 1170 (Quicklaw)(C.A.); Yaremchuk v. Yaremchuk (1998), 1998 ABQB 118 , 38 R.F.L. (4th) 312, 158 D.L.R. (4th) 180 (Alta. Q.B.); Goudie v.Buchanan, [2001] N.J. No. 187 (Quicklaw) (Nfld. S.C.); Ronan v. Douglas-Walsh (1994), (ON CJ), 5 R.F.L. (4th)235 (Ont. Prov. Div.); Woloshyn v. Woloshyn (1996), (MB KB), 22 R.F.L. (4th) 129, 109 Man. R. (2d) 35 (Man.Q.B.), affd (1997), (MB CA), 28 R.F.L. (4th) 70, 115 Man.

R. (2d) 225 (C.A.). [25] On the other hand, there are a number of conflicting cases in which the courts have held that there is no need to find a specificintent to evade child support obligations before income can be imputed. See, for example, Montgomery v. Montgomery (2000), 2000NSCA 2 , 181 D.L.R. (4th) 415, 3 R.F.L. (5th) 126 (N.S.C.A.); Donovan v. Donovan (2000), 2000 MBCA 80 , 190D.L.R. (4th) 696 (Man. C.A.); Hanson v.

Hanson, (BC SC), 1999 CarswellBC 2545 (eC) (S.C.). [26] In my view, the latter approach is correct. [100] The Ontario Court of Appeal went on to discuss “reasonable educational need” at paras. 38-41: [38] There is a duty to seek employment in a case where a parent is healthy. As a general rule, a parent cannot avoid child supportobligations by a self-induced reduction of income.

Thus, once it has been established that a spouse is intentionally unemployed or under-employed, the burden shifts to that spouse to establish what is required by virtue of his or her reasonable educational needs. [39] There are two aspects to this stage of inquiry. The trial judge must first determine whether the educational needs are reasonable.This involves a consideration of the course of study. A spouse is not to be excused from his or her child support obligations in

furtherance of unrealistic or unproductive career aspirations. [40] But, s. 19(1)(

a) speaks not only to the reasonableness of the spouse's educational needs. It also dictates that the trial judgedetermine what is required by virtue of those educational needs. The spouse has the burden of demonstrating that unemployment orunder-employment is required by virtue of his or her reasonable educational needs. How many courses must be taken and when? Howmuch time must be devoted in and out of the classroom to ensure continuation in the program? Are the academic demands such that thespouse is excused from pursuing part-time work?

Could the program be completed over a longer period with the spouse taking fewercourses so that the spouse could obtain part-time employment? If the rigours of the program preclude part-time employment during theregular academic school year, is summer employment reasonably expected? Can the spouse take co-operative courses as part of theprogram and earn some income in that way?

These are the types of considerations that go into determining what level of under-employment is required by the reasonable educational needs of a spouse. [41] The burden of proof is upon the spouse pursuing education as he or she is the person with access to the requisite information. Thespouse is in the best position to know the particular requirements and demands of his or her educational program. He [page721] or shewill have information about the hours of study necessary to fulfill such requirements, including the appropriate preparation time.

He orshe is in the best position to show whether part-time employment can be reasonably obtained in light of these educational requirements. [101] As for quantum of income, Gillese J.A. said at paras. 45 and 46: [45] When imputing income based on intentional under-employment or unemployment, a court must consider what is reasonable in thecircumstances. The factors to be considered have been stated in a number of cases as age, education, experience, skills and health of theparent. See, for example, Hanson, supra, and Cholodniuk v. Sears (2001), 2001 SKQB 97 , 14 R.F.L. (5th) 9, 204 Sask. R. 268(Q.B.).

I accept those factors as appropriate and relevant considerations and would add such matters as the availability of jobopportunities, the number of hours that could be worked in light of the parent's overall obligations including educational demands andthe hourly rate that the parent could reasonably be expected to obtain. [46] When imputing income, the court must consider the amount that can be earned if a person is working to capacity while pursuing areasonable educational objective.

How is a court to decide that when, typically, there is little information provided on what the parentcould earn by way of part-time or summer employment? If the parent does not provide the court with adequate information on the typesof jobs available, the hourly rates for such jobs and the number of hours that could be worked, the court can consider the parent'sprevious earning history and impute an appropriate percentage thereof. [page722] [102] Saunders, supra and Drysgala, supra offer important principles which require consideration in the case at hand.

Accordingly, Ihave assessed the evidence and made my findings bearing these authorities in mind. (

d) Imputation of Income to Mr. St. Croix [103] Within the Drysgala, supra decision (from the above quote at para. 25) the Nova Scotia Court of Appeal decision of Montgomeryis referenced. This case was extensively addressed by Dr. Thompson’s counsel in her pretrial brief: As well, in his affidavit of November 5, 2013, Ron testifies that attending Acadia University allowed him to pursue a path towards self-sufficiency”. It is respectfully submitted that Ron was self-sufficient when he was working full-time in Newfoundland. In Montgomery v.

Montgomery, 2000 NSCA 2, the Nova Scotia Court of Appeal considered a situation where a divorced father of fourworked for the Department of Environment earning $60,000 per year. The father returned to law school part-time and then left his job toarticle, earning $20,000 per year. The father sought a variation of child and spousal support. He argued that no income should beimputed to him because he was not attempting to avoid support, but rather secure a more satisfying job, and increase his income in thelong-term. Pugsley, J.A. held that: 35

Section 19 does not establish any restriction on the Court to imputing income only in those situations where the applicantintended to evade child support obligations, or alternatively, recklessly disregarded the needs of his children in furtherance of his owncareer aspirations (at para. 35) The Court considered the word “reasonable” is the most critical to consider, and that it is necessary to consider not just the circumstancesof the payor, but all of the circumstances including the financial circumstances of the children (at para. 36-37).

In Montgomery, supra, Pugsley J.A. noted that the chambers judge determined the father’s choice was not a “reasonable educationalneed” (at para. 39). The father acknowledged that it might take at least ten years to earn a similar income to what he was earning withthe government (at para. 40). Based on that, the Court of Appeal agreed with the Chambers judge and there was no variation of support. It is submitted that, similarly in this case Ron’s choice to take a leave of absence from work and return to school was not for a reasonableeducational need. Ron just finished his first year of a four year program.

It is unclear if Ron intends to continue at Acadia for the

balance of the four years, and whether his employer will allow him to do so. Ron previously testified that he is required to apply for a leave from his work each year. It is also unclear how this program will affect Ron’s job prospects in Nova Scotia or Newfoundland if he completes the program. [ 104 ] In my view this argument does not stand up when one considers the evidence at trial. Unlike Mr. Montgomery, Mr. St. Croix’s decision to leave his job at Nalcor is (partially) motivated by the fact that his position will in all likelihood, be eliminated with the next few years. Whereas Mr.

Montgomery left a senior position in government with a guaranteed income stream into the future, the same cannot be said for Mr. St. Croix. [ 105 ] Another distinguishing feature between Mr. Montgomery and Mr. St. Croix relates to geography. The Montgomery case did not involve his spouse relocating to another province with the child (children with Mr. Montgomery) of the marriage. Considering this factor, I must say that I have considerable sympathy with Mr. St. Croix’s stated wish to live closer to David so he can be a bigger part of his life.

In the result, I find the facts of the within case to be clearly distinguishable from what our Court of Appeal considered. [ 106 ] Mr. St. Croix gave evidence that the couple’s initial decision to relocate to Nova Scotia was both motivated by his wife’s situation in Newfoundland along with his employment. Concerning the former, he testified that Dr. Thompson was not happy

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