Jardine v. Jardine, 2013 NSSC 30

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Jardine v. Jardine, 2013 NSSC 30 Date: 20130124 Docket: 1206-6278 Registry: Sydney Between: Bernadine Jardine Petitioner v. William Edward Jardine Respondent LIBRARY HEADING Judge: The Honourable Justice Theresa M.

Forgeron Heard: October 24 and November 9, 2012, in Sydney, Nova Scotia Final Submissions: November 15, 2012 Written Decision: January 24, 2013 Counsel: David Raniseth, Counsel for Bernadine Jardine William Edward Jardine, on his own behalf Subject: Family Law Issues: Spousal Support Result: SSAG calculations reviewed and midrange figure applied given compensatory and noncompensatory factors, and fact that husband had sole responsibility for access transportation costs. Spousal support in the amount of $200 per month ordered.

A review hearing to be scheduled in three years to allow the wife time to retrain and enter the work force. Eight year lapse in seeking support does not negate court’s jurisdiction to award spousal maintenance.

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 (FAMILY DIVISION) Citation: Jardine v. Jardine, 2013 NSSC 30 Date: 20130124 Docket: 1206-6278 Registry: Sydney Between: Bernadine Jardine Petitioner v. William Edward Jardine Respondent Judge: The Honourable Justice Theresa M. Forgeron Heard: October 24 and November 9, 2012, in Sydney, Nova Scotia Final Submissions: November 15, 2012 Written Decision: January 24, 2013 Counsel: David Raniseth, Counsel for Bernadine Jardine William Edward Jardine, on his own behalf By the Court: [ 1 ] Introduction

[ 2 ] Nine years after they were married, Bernadine and William Jardine separated. Ms. Jardine is seeking indefinite spousal support. Mr. Jardine contests this claim. All other issues between the parties have been resolved. [ 3 ] Issues [ 4 ] Should spousal support be awarded to Ms. Jardine? [ 5 ] Background [ 6 ] The parties were married on July 21, 1995 and separated on August 8, 2004. They have two sons: Joshua, who is 17, and Jordan, who is 15. Jordan has learning disabilities and participates in special educational programming designed to meet his needs. [ 7 ] During the marriage, Ms.

Jardine was primarily responsible for household management and child care. She also worked part time as a cashier, and for minimum wage for brief periods. Ms. Jardine has not been employed since 2007 and is not looking for work. This decision is based on Ms. Jardine ’ s concern for Jordan and her adult daughter, who is not a child of the marriage. [ 8 ] Ms. Jardine is contemplating upgrading her education, possibly by taking a CCA course. This idea is only at the planning stage; Ms. Jardine has made no inquiries into the program.

She is hopeful that the government will assist in the cost of her retraining. [ 9 ] Ms. Jardine generally enjoyed good health during the marriage, although she did take medication for depression in 1998 for approximately one year. Ms. Jardine said that one week before the trial, she once again began taking anti-depressants. [ 10 ] Ms. Jardine struggles financially; her income is at the poverty level. She would not be able to survive without the food bank and the assistance she receives from her parents. Ms. Jardine has no money for many basic needs, hobbies, or social activities. [ 11 ] Mr.

Jardine was employed throughout the marriage as a mechanic. When not working, Mr. Jardine participated in cooking, cleaning, and caring for the children. He was an active and involved father. After the parties ’ separation, Mr. Jardine continued to be employed as a mechanic, and earns about $37,500 per annum. [ 12 ] At the time of separation, Ms. Jardine had custody of both children, while Mr. Jardine exercised regular access. Mr. Jardine paid the table amount of child support to Ms. Jardine. These living arrangements changed in September 2011 when Joshua began to live with his father on a full time basis.

The child support payable to Ms. Jardine was reduced in August 2012 based upon the split custody arrangement which continues to operate. [ 13 ] The matter was eventually scheduled for trial. Agreement was reached on all property, parenting and child support issues. The terms of the parties ’ agreement were read in the record during the trial. The contested spousal support issue was presented during the trial held on October 24 and November 9, 2012. Final submissions were received on November 15, 2012. The court reserved its decision. [ 14 ] Analysis [ 15 ] Should spousal support be awarded to Ms.

Jardine? [ 16 ] Position of the Parties

[ 17 ] Ms. Jardine seeks spousal support for a number of reasons, including the following: ∙ The parties were married for nine years and have two children. ∙ Ms. Jardine was primarily responsible for child care and household management, while Mr. Jardine was primarily responsible for the financial support of the family; ∙ Ms. Jardine has suffered economically because of the roles assumed during the marriage; and ∙ Ms. Jardine requires support to relieve economic hardship which has arisen since the breakdown of the marriage. She and Jordan are impoverished, while Joshua and Mr.

Jardine are in a much stronger financial position. [ 18 ] Mr. Jardine disputes the spousal support claim for a number of reasons, including the follow: ∙ The parties have been separated in excess of eight years, and Ms. Jardine discontinued a previous claim for spousal support; ∙ Mr. Jardine has no ability to pay support to Ms. Jardine because of his responsibilities for Joshua and the child support he pays for Jordan. Further, Mr. Jardine is solely responsible for all transportation costs associated with the parenting arrangement; and ∙ Ms.

Jardine is not actively seeking work; she could be earning income as shown by her ability to do so in the past. [ 19 ] Legislation and Case Law [ 20 ] Entitlement, duration, and quantum of spousal support are in contest.

Section 15.2(1) of the Divorce Act provides this court with the jurisdiction to grant a spousal support order.

Section 15.2(1) states: 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. [ 21 ] The factors which a court must consider in its spousal support determination are set out in s. 15.2(4), which states as follows: 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.

[22] The objectives to be considered in respect of the spousal support order are set out in s. 15.2(6), which provides as follows:

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

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

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

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

d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. [23] In Bracklow v.

Bracklow, (SCC), 1999 1 S.C.R. 420, the Supreme Court of Canada confirmed thatentitlement to spousal support is grounded on the following three principles: ∙ Compensatory support to address economic advantages and disadvantages flowing from the marriage, or the roles adopted duringthe marriage; ∙ Non-compensatory support to address the disparity between the needs and means of the parties, and arising from the marriagebreakdown; and ∙ Support based upon a contractual obligation, either expressed or implied. [24] The burden of proving entitlement rests upon Ms. Jardine.

The burden is based on a balance of probabilities as supported byclear, convincing, and cogent evidence; C.R. v. McDougall, 2008 SCC 53. In making my decision, I have made credibilitydeterminations in keeping with the principles set out in Baker-Warren v. Denault. 2009 NSSC 59, at paras. 17 to 21. [25] I also note that a delay in seeking support, even an extensive delay, does not negate the jurisdiction of the court to awardspousal support, especially on a prospective basis: Molloy v. Molloy, 2012 NSCA 60. [26] Decision [27] I have determined that Ms.

Jardine has proven entitlement given the legislation and case law, and the evidence presented. Ms.Jardine has both a compensatory and non-compensatory claim for support based upon the following findings which I make: ∙ Although Ms. Jardine was employed outside the home for brief periods of time, she performed traditional functions within themarriage. She was generally responsible for the care of the children and household management. Mr. Jardine also actively assisted withthe care of the children and of the home. Despite his involvement, Mr.

Jardine focussed on his employment and career, while Ms.Jardine was removed, for the most part, from the workforce. ∙ Ms. Jardine experiences significant hardship. This hardship developed following the marriage breakdown. Ms. Jardine is in receipt

of social assistance, while Mr. Jardine earns about $37,500 per annum. Mr. Jardine earns significantly more income than Ms. Jardine receives. ∙ Ms. Jardine has limited educational and vocational skills. Her ability to become financially independent is thus restricted. ∙ Ms. Jardine struggles to survive. She regularly accesses the food bank, as well as assistance from other family members. [ 28 ] Before dealing with quantum and duration, it is necessary to determine whether income should be imputed to Ms. Jardine for the purposes of the spousal support calculation: Saunders v. Saunders , 2011 NSCA 81 .

Income in the amount of $12,500 should be imputed to Ms. Jardine for the following reasons: ∙ Ms. Jardine worked for approximately two years following the separation, and earned $11,637 and $11,556 while so doing. Ms. Jardine quit her employment because of stress. She has not sought employment since that time. ∙ No independent medical information was lead establishing that Ms. Jardine was disabled, or that she was diagnosed with any illness that limited or prevented her ability to work: MacGillivary v. Ross , 2008 NSSC 339 , paras. 27 to 33 . Although MacGillivary v.

Ross , supra , concerned child support, the principles are similarly applicable in this context. ∙ Jordan attends school during the day and does not require Ms. Jardine ’ s undivided attention. Further, Ms. Jardine ’ s interest in assisting her adult daughter does not excuse her failure to seek employment. ∙ Given the increase in minimum wage since 2006, and given Ms. Jardine ’ s past employment history, $12,500 is a reasonable income figure to impute to Ms.

Jardine given her circumstances and after examining the subjective factors unique to her. [ 29 ] In establishing entitlement and duration, I have examined the requirements of the Divorce Act in keeping with the factual evidence elicited in this case. Further, counsel for Ms. Jardine provided the court with SSAG calculations based on an income of $37,500 for Mr. Jardine, and $12,500 for Ms. Jardine. These calculations show a spousal support range of $68 to $271 per month, based upon the split custody scenario.

I have reviewed these Guidelines in concert with the evidence and the statements of expenses, which each of the parties produced. [ 30 ] I have determined that spousal support will be payable at a rate of $200 per month. I have chosen the midrange figure given the nature of the compensatory and non-compensatory claims and the length of the marriage. I also note that Mr. Jardine is solely responsible for access transportation costs, which are high, because the parties live in different communities.

I have also considered the reasonable expenses of the parties in the circumstances of their lives, and the lives of each of the children. [ 31 ] The parties were married for nine years, and have been separated for eight years. Ms. Jardine must make immediate efforts to upgrade her education or return to the work force. The CCA course appears to be an appropriate option. The successful completion of this course will likely allow Ms. Jardine to return to the work force and earn a salary above minimum wage. Ms.

Jardine must make immediate inquiries to determine if any government funding can be accessed as she anticipates. [ 32 ] Although I will not set a termination date, Ms. Jardine must recognize that spousal support will not likely be paid indefinitely. I will set a review date in three years. This will provide time so that Ms. Jardine can upgrade her education and return to the work force. Jordan will also be 18 years old in three years.

This review, however, does not limit the ability of either party to advance an application to vary based upon a material change in circumstances, if one arises, before the review hearing. [ 33 ] Conclusion

[ 34 ] The following relief is granted: ∙ A divorce based upon a breakdown in the marriage as evidenced by the separation which has exceeded one year; ∙ A change in Ms. Jardine ’ s surname to Rasmussen; ∙ An adoption of the parenting plan with the terms as read into the court record; ∙ An adoption of the child support provisions as per the agreement reached between the parties, and read into the court record; ∙ An order confirming that each party will retain all personal property in his/her possession and control, and that each will be responsible for any debt held in his/her name.

No equalization payment is due; ∙ Spousal support of $200 per month commencing January 31, 2013, and continuing on the last day of each and every month until further order from a court of competent jurisdiction; and ∙ A review hearing to be scheduled in three years. The parties are required to file a notice and affidavits in support of the review hearing according to the time lines set out in the Civil Procedure Rules . [ 35 ] Mr. Raniseth will draft the orders and provide to Mr. Jardine and the court.

Any drafting issues are to be brought to the court ’ s attention. [ 36 ] If any party wishes to be heard on the issue of costs, submissions are to be provided within 15 days. Forgeron, J.