MacNeil v. MacNeil, 2013 NSSC 23

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: MacNeil v. MacNeil, 2013 NSSC 23 Date: 20130115 Docket: 1206-4906 Registry: Sydney Between: Sharon Elaine MacNeil Applicant v. James David MacNeil Respondent Judge: The Honourable Justice Theresa Forgeron Heard: November 6, 2012, in Sydney, Nova Scotia Written Decision: January 18, 2013 Counsel: Alan Stanwick, for Sharon Elaine MacNeil Lisa Fraser-Hill, for James David MacNeil By the Court: [ 1 ] Introduction [ 2 ] The parties are former spouses who divorced in 2008, after 28 years of cohabitation. Ms.

MacNeil filed a variation application in August, 2009 seeking spousal support and enforcement of the corollary relief judgment. Mr. MacNeil contests the application as it relates to the payment of spousal support. [ 3 ] This application was outstanding for 3.25 years. Much of the delay in scheduling the application arose because Ms. MacNeil switched lawyers on several occasions. The application to vary was eventually held on November 6, 2012. Both parties testified during

the hearing and submissions were tendered. The decision was reserved. [ 4 ] Issues [ 5 ] The following issues will be addressed in this decision: ∙ Has sec. 17 of the Divorce Act been triggered? ∙ Should spousal support be awarded to Ms. MacNeil? ∙ Are any retroactive payments outstanding? [ 6 ] Analysis [ 7 ] Has sec. 17 of the Divorce Act been triggered? [ 8 ]

Section 17.(1) of the Divorce Act provides the court with the jurisdiction to grant a spousal support variation order.

Section 17.(4.1) outlines the factors that the court must consider, while sec. 17.(7) lists the objectives which a variation order should meet. [ 9 ] In the divorce decision, as reported in MacNeil v. MacNeil , 2007 NSSC 200 , this court relieved Mr. MacNeil of the obligation to pay spousal support for two and one half years given the unequal division of the family debt. This provision was subject to one exception, which related to the continued coverage of Ms. MacNeil on the health and medical plan available to Mr. MacNeil. [ 10 ] Following the divorce, the parties learned that Ms.

MacNeil could not be covered under Mr. MacNeil ’ s health plan. The spousal support variation application is therefore properly before the court as of the date Ms. MacNeil filed her application. [ 11 ] In addition, Mr. MacNeil ’ s income has increased. At the time of the divorce, Mr. MacNeil ’ s gross income was $27,000. Since the granting of the divorce, Mr. MacNeil ’ s income has increased as follows: 2009 - $39,535 2010 - $42,565 2011 - $37,501 [ 12 ] The variation application should thus be determined on its merits given these changes in circumstances. [ 13 ] Should spousal support be awarded to Ms.

MacNeil? [ 14 ] Position of Ms. MacNeil [ 15 ] Ms. MacNeil seeks spousal support of $500 per month, plus the cost of a medical plan. Her request is based on a number of reasons, including the following:

∙ Mr. MacNeil ’ s medical plan no longer provides her coverage. Because of her medical conditions, Ms. MacNeil requires health coverage. Ms. MacNeil seeks support of approximately $176 per month to pay for a comparable medical plan (optionplus) or $145.43 per month for basic coverage. ∙ For approximately 28 years, Ms. MacNeil concentrated on the home and children, while Mr. MacNeil concentrated on his career. Following the breakdown of their relationship, Ms. MacNeil suffered financially because of the roles adopted, while Mr.

MacNeil was in a much better financial position because of his workforce experience. ∙ Ms. MacNeil is a cancer survivor who also suffers from a number of health difficulties which limit her ability to work certain occupations. ∙ Mr. MacNeil earns approximately twice the amount of income that Ms. MacNeil earns. ∙ Ms. MacNeil struggles financially because of the economic consequences arising from the breakdown of the marriage. [ 16 ] Position of Mr. MacNeil [ 17 ] Mr. MacNeil ’ s position is as follows: ∙ Mr. MacNeil agrees to pay the cost of a medical plan for Ms. MacNeil in the amount of $112 to $150 per month.

He wishes to pay this directly to the plan provider. ∙ Mr. MacNeil cannot afford any further payment of spousal support. ∙ Spousal support would result in some double dipping because Mr. MacNeil ’ s Canadian Armed Forces pension has already been equally divided. ∙ Ms. MacNeil is not doing all that is required to become self-sufficient; she resists opportunities to earn additional income. ∙ Ms. MacNeil ’ s expenses also include expenses for their adult daughter and grandchild who live with Ms.

MacNeil. [ 18 ] Decision [ 19 ] As noted in this court ’ s decision as reported at 2007 NSSC 200 , the legislation and case law support a nonterminal spousal support order. This court found at paras 60 to 62: [60] In the present case, given the lengthy period of cohabitation, the parties should enjoy similar standards of living. Unfortunately, given the debt level and the modest income of the parties, the standard which each will enjoy post-separation is less than what it would otherwise have been. [61] In reaching the decision on spousal support I have considered many factors including the following: (

a) the lengthy period of cohabitation; (

b) the traditional role assumed by each of the parties in respect of employment and home making; (

c) the many health issues confronting Ms. MacNeil which limit her ability to work; (

d) the employment and educational skills of the parties; (

e) the consequences of the marriage breakdown inclusive of the division of the pensions held in the name of Mr. MacNeil and the unequal division of the assets and debts which favours Ms. MacNeil; (f)the fact that the parties agreed that the children are no longer children of the marriage. The children must contribute to the cost of

their own shelter expenses which will reduce considerably the high shelter expenses claimed by Ms. MacNeil. Child support in the guise of spousal support is not appropriate; (

g) the fact that Ms. MacNeil could work more than she currently does. Ms. MacNeil is not working to capacity because of the intense anger and bitterness which she harbours toward Mr. MacNeil. Ms. MacNeil can work and earn more despite the limitations of age, education and health. I find that Ms. MacNeil can earn at least $13,000.00 per annum; (

h) the fact that Mr. MacNeil currently shares shelter expenses with his common law partner; and (

i) the legitimate expenses and needs of the parties. [62] Given the source division of the pension, Mr. MacNeil’s gross income will approximate $27,000.00. Ms. MacNeil’s income will approximate $20,000.00 after the division of the military pension. Mr. MacNeil will earn approximately $7,000.00 more than Ms. MacNeil. The Spousal Support Advisory Guidelines range is between $219.00 and $292.00 per month. The Guidelines do not apply given the unequal division has been ordered. [ 20 ] These factors continue to be applicable to this variation proceeding.

In addition, I also make the following relevant findings: ∙ A health plan costing approximately $150 to $180 per month is an appropriate expense in the circumstances of this case. ∙ In its last decision, this court imputed an annual income of $20,000 to Ms. MacNeil. Insufficient evidence was adduced to reduce this imputed income figure. ∙ Double dipping is not an extensive factor. The most significant portion of Mr. MacNeil ’ s earnings is derived from his employment with the school board, and EI benefits generated during the off season. Further, Ms.

MacNeil ’ s income includes her portion of the divided pension income. ∙ Ms. MacNeil ’ s shelter and food expenses are over stated. A portion of these expenses are properly attributed to her daughter who resides with Ms. MacNeil. ∙ Spousal support is tax deductible to Mr. MacNeil and tax inclusive to Ms. MacNeil. ∙ The Spousal Support Advisory Guidelines suggest a monthly range of $547 to $680 based on an income of $20,000 to Ms. MacNeil and $37,000 to Mr.

MacNeil. [ 21 ] After reviewing the evidence and submissions of the parties, as well as their statements of financial income and expenses, I have determined that Mr. MacNeil will pay spousal support to Ms. MacNeil of $680, inclusive of the health plan cost. I have chosen the higher end of the scale because of the length of the cohabitation, the economic consequences of the marriage breakdown, and Ms. MacNeil ’ s need for a health plan. [ 22 ] I reject Mr. MacNeil ’ s request that he pay the health plan administrator on Ms. MacNeil ’ s behalf.

If I acceded to this request, the tax deductibility of the payment may come into dispute, and the parties would be required to cooperate and communicate. Their ability to do so in sorrowfully lacking. The animosity and bitterness, previously noted, continues to fuel the parties ’ conduct. [ 23 ] All maintenance will be payable through the Maintenance Enforcement Program. Maintenance will commence January, 2013 and will be payable on a monthly basis. [ 24 ] Are any retroactive payments outstanding? [ 25 ] Position of Ms. MacNeil [ 26 ] Ms. MacNeil requests two retroactive payments from Mr. MacNeil. First, Ms.

MacNeil seeks $5,554 for the retroactive division of the pension as noted in clause 9(

b) of the corollary relief judgement, which states as follows:

Commencing September 1 st , 2006, until the aforementioned source division of James David MacNeil’s pension benefits has been effected. Mr. MacNeil shall transfer to Mrs. MacNeil one-half of the net monthly pension income he received from the Canadian Armed Forces. Any underpayment or overpayment of the net pension income since September 1 st , 2006, shall be repaid. [ 27 ] Second, Ms. MacNeil also seeks $714.18 for the payment of past health expenses which she incurred while waiting for the variation proceeding to be heard. [ 28 ] Position of Mr. MacNeil [ 29 ] Mr.

MacNeil agrees there should be an adjustment made for the pension division, subject to outstanding credits in his name. He seeks credit for the money that Ms. MacNeil withdrew from his personal bank account in the amount of $462 per month for three months, without his knowledge or permission. Mr. MacNeil also seeks credit for payments which he made on Ms. MacNeil ’ s car loan and insurance. [ 30 ] Mr. MacNeil does not agree to pay $714.18 for the past health expenses. He states such expenses are properly paid by Ms. MacNeil. [ 31 ] Decision [ 32 ] The adjustment contemplated in clause 9(

b) of the corollary relief judgment will be honoured. I will allow the credit for the three payments of $462 which Ms. MacNeil withdrew from Mr. MacNeil ’ s bank account without his knowledge as representative of her share of his pension. One of these payments is for the month of August. This too will be honoured given the unilateral conduct of Ms. MacNeil. [ 33 ] I will not allow credit for the car loan and insurance payments. These were dealt with in the previous decision, at paras 4 to 8, and are thus res judicata . [ 34 ] The total retroactive amount outstanding from Mr. MacNeil to Ms.

MacNeil for the pension adjustment is $4,168 which will be payable in 30 days. [ 35 ] Further Mr. MacNeil will pay Ms. MacNeil $714.48 to cover the health expenses which Ms. MacNeil incurred when she was without a health plan and awaiting a hearing. This retroactive spousal support is relatively inconsequential in light of the monthly payment of support which has been granted by this court. The lump sum is for an immediate or specific need. Such an award is therefore appropriate. It too will be paid in 30 days. [ 36 ] Conclusion [ 37 ] Mr. MacNeil will pay Ms.

MacNeil the retroactive pension adjustment in the amount of $4,168, lump sum spousal support of $714.48, and ongoing periodic spousal support of $680 monthly. Ms. MacNeil will be solely responsible for acquiring a health plan from the monthly spousal support payment. [ 38 ] The variation order will be drafted by Mr. Stanwick and forwarded to Ms. Fraser-Hill for her consent as to form. Any drafting issues should be brought to the attention of the court forthwith. [ 39 ] If either party wishes to be heard on the issue of costs, such submissions are to be made in writing and within 15 days.

__________________________ Forgeron, J.