Fraser v. Fraser, 2011 NSSC 411

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Fraser v. Fraser, 2011 NSSC 411 Date: 20111109 Docket: 1206-005828 Registry: Sydney Between: Elliott Kenneth Fraser Petitioner v. Esther Leanne Fraser Respondent LIBRARY HEADING Judge: The Honourable Associate Chief Justice Lawrence I. O ’ Neil Written Decision: November 9, 2011 Issues: Child and spousal support calculations Keywords: Spousal Support; Matrimonial debt Legislation: Divorce Act, R.S.C. 1985, c.3 (2nd Supp.)

Summary: The parties separated after 16 years of marriage. Their three children are in the primary care of the father. He earns $170,000 per year. The mother earns $35,000 per year. Child support payable to the father was ordered. The father was ordered to pay spousal support of $1,400, less than the Spousal Support Guideline amount. The father was solely servicing substantial matrimonial debt.

THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET. IN THE SUPREME COURT OF NOVA SCOTIA Citation: Fraser v. Fraser, 2011 NSSC 411 Date: 20111109 Docket: 1206-005828 Registry: Sydney Between: Elliott Kenneth Fraser Petitioner and Esther Leanne Fraser Respondent Judge: Associate Chief Justice Lawrence I. O ’ Neil Heard: October 13, 2011, in Sydney, Nova Scotia Counsel: Ralph W. Ripley, for the Petitioner Wayne J. MacMillan, for the Respondent By the Court : Introduction

[ 1 ] The Petitioner, Mr. Elliot Fraser and the Respondent, Leanne Fraser were married May 2, 1992. The parties separated in October of 2008. Mr. Fraser filed a Petition for Divorce on May 19, 2009. An Answer and Counter Petition were filed July 16, 2009. The parties have three children; the oldest will soon be 17, the second child will turn 14 later this year and the youngest child is almost 9. They live with their father in Baddeck. Ms. Fraser is currently living in Baddeck and working nearby. She earns approximately $35,000 per year. She has not been paying child support. Mr.

Fraser operates a law practice from the former matrimonial home. He earns approximately $170,000 per year. [ 2 ] Issue(s) : 1. Whether a child support order should issue ? 2. Whether Ms. Fraser is entitled to spousal support ? If so, what is the appropriate amount? What is the appropriate start date? Position of the Parties [ 3 ] Mr. Fraser argues that Ms. Fraser has become self-sufficient and does not need spousal support. He does not seek child support from Ms. Fraser. [ 4 ] Ms.

Fraser argues that given the nature of the parties marriage; its length and the parties current level of income she is entitled to spousal support. She asks the court to apply the Spousal Support Guidelines and argues that an appropriate spousal support award ranges from $1,837 to a high of $2,183. In her calculation, Ms. Fraser assumes that she will be paying child support based on the Child Support Guidelines . Principles Governing Entitlement and Calculation of Spousal Support [ 5 ] In Burchill v. Savoie 2008 NSSC 307 I reviewed the principles governing entitlement to spousal support.

Paragraphs 31 - 33 of that decision are as follows: [31]

Section 15.2 (4) (a)- ©, (5) & (6) (a)- (

d) of the Divorce Act , supra, requires the court to consider the condition, means and circumstances of each spouse and provides that a spousal support order should address four statutory objectives: 15.2(1) Spousal support order - A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse

(4) Factors - In making and order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse including: (

a) the length of time the spouses cohabited (

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

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

...

(6) Objectives of spousal support order - An order made under subsection (1) or an interim order under subsection (2) that provides forthe 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 anobligation 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. [32] The words of Justice McLaughlin in Bracklow (SCC), [1999] S.C.J. No. 14 at paras. 30-31 are on point:

(30) The mutual obligation theory of marriage and divorce, by contrast, posits marriage as a union that creates interdependencies thatcannot be easily unravelled. These interdependencies in turn create expectations and obligations that the law recognizes and enforces ...

(31) The mutual obligation view of marriage also serves certain policy ends and social values. First, it recognizes the reality that whenpeople cohabit over a period of time in a family relationship, their affairs may become intermingled and impossible to disentangle neatly.When this happens, it is not unfair to ask the partners to continue to support each other (although perhaps not indefinitely).

Second, itrecognizes the artificiality of assuming that all separating couples can move cleanly from the mutual support status of marriage to theabsolute independence status of single life, indicating the potential necessity to continue support, even after the marital "break". Finally,it places the primary burden of support for a needy partner who cannot attain post-marital self-sufficiency on the partners to therelationship, rather than on the state, recognizing the potential injustice of foisting a helpless former partner onto the public assistancerolls. [33] Justice L'Heureux Dube in Moge v.

Moge (SCC), [1992] 3 S.C.R. 813, [1992] S.C.J. No. 107 directed that spousalsupport must strive to achieve some equitable sharing upon the dissolution of the marriage. At paragraph 73, she stated: The doctrine of equitable sharing of the economic consequences of marriage or marriage breakdown upon its dissolution which, in myview, the Act promotes, seeks to recognize and account for both the economic disadvantages incurred by the spouse who makes suchsacrifices and the economic advantages conferred upon the other spouse .

Nevertheless, in the words of Justice MacLachlin in Bracklow, (SCC), 1999 CarswellBC 532 : 21. When a marriage breaks down, however, the situation changes. The presumption of mutual support that existed during the marriageno longer applies . Such a presumption would be incompatible with the diverse post-marital scenarios that may arise in modern societyand the liberty many claim to start their lives anew after marriage breakdown.

This is reflected in the Divorce Act and the provincialsupport statutes, which require the court to determine issues of support by reference to a variety of objectives and factors. [6] I also discussed how a court must determine the amount and duration of spousal support once entitlement is established. Paragraphs 69 to 71 read as follows:

[69] In Bracklow, supra, MacLachlin J. defined the concept of quantum in reference to spousal support to include both the amount and duration of the support. She stated further that the factors relevant to entitlement also have an impact on quantum. At para. 53, when addressing the significance of any agreement the parties had, she states: “. . .

Finally, subject to judicial discretion, the parties by contract or conduct may enhance, diminish or negate the obligation of mutual support . . . “ [70] Having decided that the Respondent owes a duty to the Petitioner to provide spousal support I must decide the amount of support that is currently payable; when that obligation arose; what form it should take; what arrears if any are payable and when the obligation terminates. [71] As earlier noted The Divorce Act s. 15.2 (4) & (6), supra, requires the court to consider a number of factors and objectives when determining the quantum of spousal support: Spousal Support Orders 15.2(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including (

a) the length of time the spouses cohabited; (

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

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

(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 any obligation 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. Application of Principles to the Evidence [ 7 ] The parties were married for 17 years and lived together for a short period of time prior to their marriage. They both attended Dalhousie University. Ms. Fraser completed a bachelor of arts program and one year of a commerce program. Mr. Fraser has a law degree from Dalhousie University. The parties lived together for part of the time Mr. Fraser was completing his law studies. They were married in 1992 and Mr.

Fraser began his articling in 1994 in Sydney. Ms. Fraser chose not to complete her business degree and did not seek employment outside the home when the parties lived together in Halifax. The parties would spend the summers in the Margaree area where Mr. Fraser was employed in the family owned lumber business and Ms. Fraser was employed over the summer as well. They were both raised in the Margaree area.

[ 8 ] Although Ms. Fraser testified that she contributed to Mr. Fraser's law school education I am satisfied that there is no basis for that conclusion. Mr. Fraser was more than capable of caring for himself at that time. The parties were neither married nor did they have responsibilities that would require Ms. Fraser to remain out of the workforce after discontinuing her studies at Dalhousie University. [ 9 ] I am also satisfied that Mr. Fraser did not object to Ms. Fraser ’ s choosing to not work while the parties lived together in Halifax.

The parties plan was to return to Cape Breton where they would raise a family. In fact, this is what they attempted to do. [ 10 ] After several years of making the long commute from Margaree to Sydney for work with a law firm, Mr. Fraser decided to open a law practice in Baddeck in 1998. This served to significantly reduce Mr. Fraser's commute to work. Ms. Fraser assumed primary responsibility for management of the family and raising the parties children. After the birth of the couple's first child, Ms. Fraser worked in the Margaree area with Mr. Fraser's family business and with her mother.

After the decision was made to open the Baddeck office, she worked for her husband from their home in Margaree. [ 11 ] In 2005, the couple decided to build a house in Baddeck. Since 2006 Mr. Fraser has operated his law practice out of his home in Baddeck. [ 12 ] Ms. Fraser discontinued working at Mr. Fraser's office in 2008. [ 13 ] In 2007, Mr. Fraser learned that his wife had become involved with another man. Over the next 1-2 years Ms. Fraser's involvement in the family was sporadic and characterized by unpredictability and her health concerns. Mr.

Fraser shouldered the responsibility for raising the children and supporting the family during this period. In the latter part of 2010 Ms. Fraser lived in the Annapolis Valley with a man who continues to be her boyfriend. [ 14 ] As stated, the parties separated in March 2008. Entitlement to Spousal Support on These Facts [ 15 ] I am satisfied that on both a compensatory and a non compensatory basis Ms. Fraser is entitled to spousal support.

I am satisfied that she made a contribution to the development of the law practice by assuming the bulk of the domestic responsibilities of this family. [ 16 ] I am also satisfied that this couple while happily married had developed a relationship of mutual dependence and responsibility for each other. [ 17 ] Their responsibility to each other has changed with their separation but it has not entirely terminated. I must now turn to the determination of the amount of spousal support; the commencement date and the termination date.

a) commencement date [ 18 ] This hearing lasted only two hours. The Court learned that no spousal support has been paid directly to Ms. Fraser since the parties separated. The court also learned that since the parties ’ separation, Mr. Fraser has paid most if not all the bills associated with the family obligations including all the costs associated with raising the children. In addition the land development company in which the parties had an interest has required substantial subsidies from Mr. Fraser.

Over the past two years he has paid $89,068.25 as this couple's contribution the debts and taxes of this business. Mr. Fraser has been required to borrow $180,000 to pay a Canada Revenue Agency liability the parties accrued. The court does not have the evidence upon which it could conclude whether a retroactive spousal

support order should issue. However the level of indebtedness assumed solely by Mr. Fraser, but the joint responsibility of the parties, is a factor that weighs against making a retroactive spousal support award. The issue requires further consideration than was possible during the half day hearing herein. The matter of retroactive spousal support is therefore deferred without prejudice to the parties.

b) termination date [ 19 ] This is an interim hearing. The Court does not express an opinion about a termination date for spousal support. The parties must effect a division of assets and debts and provide more evidence of the history of their relationship and their current circumstances.

c) ongoing child and spousal support [ 20 ] No other support orders in this matter currently exist. Mr Fraser did obtain an order for exclusive possession of the home and primary care of the children in March 2010. The order to flow from this hearing will deal with spousal support and child support. [ 21 ] Ms. Fraser agrees that she has a child support obligation for the three children; given that they live primarily with Mr. Fraser. She has an income of $35,000. The Federal Child Support Tables require her to pay $685 per month as child support.

She is ordered to begin paying this amount on December 15, 2011 and on the fifteenth of every month thereafter until varied by further order of this court. [ 22 ] I am satisfied that this is an appropriate case to consider the Spousal Support Advisory Guidelines . The Divorcemate calculations offered by Ms. Fraser correctly reflect range of spousal support dictated by a strict application of the Spousal Support Guidelines . [ 23 ] On an interim basis I set the spousal support payment at $1,400 per month also commencing on December 15, 2011.

I set the level of support below the minimum Spousal Support Guideline amount because of the high level of “ family ” indebtedness Mr Fraser is serving on behalf of both parties. As a result of a more thorough examination of the parties options; financial circumstances (including a division of assets and liabilities), made possible by a final hearing, the appropriate quantum of ongoing spousal support may be determined to be different. [ 24 ] The effect of this order is that Mr. Fraser will receive a child support payment that is tax-free.

He will, however, be required to pay spousal support This is a tax deductible obligation. There will not be a significant increase in his financial responsibilities as a result of this order. The court acknowledges any increase in Mr. Fraser's obligation will be felt by him given the extent of his obligations at this time. The court also concludes that Ms. Fraser's budget has been modest and given the parties ’ history and circumstances, she is entitled to a higher standard of living than currently available to her by virtue of her income alone. A.C.J.