Nickerson v. Nickerson, 2014 NSSC 416

SUPREME COURT OF Nova Scotia Citation: Nickerson v. Nickerson , 2014 NSSC 416 Date: 20141120 Docket: No. 1210-001035 Registry: Antigonish Between: Natalie Dawn Nickerson Petitioner v. David Edward Nickerson Respondent Judge: The Honourable Justice Michael J. Wood Heard: May 20, October 9, 2014, in Antigonish, Nova Scotia Final Written Submissions: October 20, 2014 Counsel: Cindy Murray, for the Applicant Mr. Nickerson, self-represented/not in attendance By the Court: [ 1 ] Natalie Dawn Nickerson and David Edward Nickerson were married on July 28, 1990.

They separated on June 1, 2008 although they continued to reside in the same home until December 2008. [ 2 ] Mr. and Mrs. Nickerson have three children and they are Brandon (born September 29, 1990), Haley (born October 25, 1993), and Nicholas (born November 26, 1996). [ 3 ] Ms. Nickerson commenced divorce proceedings on May 15, 2009. On that same date she filed a statement of financial information and a statement of property. Mr. Nickerson filed the same documents on July 16, 2009. [ 4 ] On December 9, 2009 the Court granted an interim order for joint custody of the children with day-to-day care given to Ms.

Nickerson. Mr. Nickerson was ordered to pay interim child support for the two youngest children in the amount of $341.00 per month beginning in December based upon EI income of $23,200.00. By order issued on June 16, 2010 the amount of child support payable by Mr. Nickerson was increased to $483.00 per month based upon an income of $32,298.00 for the year 2009. The order also required Mr. Nickerson to provide Ms.

Nickerson with a copy of his Income Tax return and all Notices of Assessment received from Revenue Canada on or before June 1 of each year. [ 5 ] On October 28, 2013 a date assignment conference was held at which time the divorce trial was scheduled for May 20, 2014. [ 6 ] On February 22, 2013 Ms. Nickerson had filed statements of income and expenses, a statement of special or extraordinary expenses and an updated statement of property. On May 5, 2014 she provided updated versions of all of these documents. [ 7 ] Mr. Nickerson did not attend at the trial on May 20, 2014. At that time his counsel, Mr.

Daniel MacIsaac, made a motion to withdraw as solicitor of record due to his inability to contact Mr. Nickerson. The motion was granted. Following that the trial

commenced and limited evidence was heard from several witnesses who were under subpoena. The trial was then adjourned until October 9, 2014. [ 8 ] At the time of the adjournment I directed Ms. Cindy Murray, counsel for Ms. Nickerson, to prepare a letter to be sent to Mr. Nickerson summarizing what had taken place, indicating the date that the divorce hearing would resume and requesting that he file sworn statements of property, income and expenses by no later than September 30, 2014. Ms. Murray filed an affidavit of service confirming that this letter was personally served on Mr.

Nickerson on June 2, 2014. [ 9 ] When the trial resumed on October 9, 2014 Mr. Nickerson was not in attendance nor had he filed any of the requested financial information. The trial continued in his absence. [ 10 ] At the trial Ms. Nickerson sought a divorce, a change of name, division of matrimonial property, division of pension/RRSP, child support, reimbursement for extraordinary expenses under s. 7 of the Child Support Guidelines and spousal support. She also seeks costs. I will deal with each of these separately. Divorce [ 11 ] Based upon the testimony of Ms.

Nickerson I am satisfied that the requirements of the Divorce Act have been met and a divorce should be granted. In addition I grant the request for a change of name to Natalie Dawn Langley. Division of Assets [ 12 ] Ms. Nickerson seeks an equal division of matrimonial assets, although as an alternative she requests an unequal division in the event that an equal division might require her to make a payment to Mr. Nickerson. Ms.

Nickerson has not satisfied me that there are circumstances which would justify an unequal division and therefore I will proceed on the basis that an equal division is appropriate. [ 13 ] In December 2008 when the parties physically separated Ms. Nickerson retained three motor vehicles, most of the household furnishings and possession of the matrimonial home. Mr. Nickerson took two vehicles, a few pieces of furniture and his clothes. [ 14 ] In her statement of property filed in May 2009 Ms. Nickerson valued the household items which she kept at $8,480.00.

She said the three vehicles which she retained were worth $13,000.00. Mr. Nickerson’s statement of property filed in July 2009 did not place a value on the personal effects retained by Ms. Nickerson but said the items he took were worth $800.00. He said the vehicles retained by Ms. Nickerson were worth $10,160.00. [ 15 ] In her statement of property filed in May 2014 Ms. Nickerson said two of the three vehicles had been junked and were of no value while the third was worth $1,500.00. She valued the household items remaining in her possession at $360.00. Mr.

Nickerson did not file any further statement of property after 2009. [ 16 ] There was no appraisal evidence with respect to the value of the household contents or the vehicles. [ 17 ] In 2009 both Mr. Nickerson and Ms. Nickerson valued the family home at $40,000.00. It consisted of a house and two lots of land. At trial Ms. Nickerson adduced appraisal evidence indicating the value of the property was $44,500.00 as of August 2011. The appraiser attributed no value to the matrimonial home as he understood it was partially encroaching on the land of an adjoining neighbour.

The appraisal was based solely on the land value of the two lots. [ 18 ] Ms. Nickerson says because of the encroachment of the home on the adjoining property she must spend $25,000.00 to move it to another location on the land. In addition, she says she must dig and install a frost wall and a new septic system at a cost of approximately $28,000.00. Ms. Nickerson provided receipts for work carried out on the home after separation totalling approximately $14,000.00. She wants all of these costs to be deducted before arriving at the value of the land for division purposes.

Without taking into account other assets, this means she believes Mr. Nickerson should convey his interest in the property and pay her a significant amount of money. [ 19 ] I do not agree that the approach taken by Ms. Nickerson is appropriate. The problem with the encroachment of the home was dealt with in the appraisal by removing the building from the valuation process. This means the land was appraised as if it was vacant. I accept the appraiser’s opinion that this is the appropriate way to deal with that issue. By eliminating the home from the equation any other deficiencies are likewise eliminated.

If the costs of correcting deficiencies are to be taken into account then logically the valuation for division purposes should include the home in its renovated and relocated condition. Ms. Nickerson cannot have it both ways. [ 20 ] There may be a question as to the date at which the valuation of assets should take place for division purposes. I believe it should be December 2008 when Mr. Nickerson moved from the family home. The appraisal is as of August 2011 which is almost three years later. I have no appraisal as of December 2008. It is interesting to note that both Mr. Nickerson and Ms.

Nickerson used a value of $40,000.00 for the matrimonial home in their sworn statement of property which each filed in 2009. This is approximately 10% less than the appraised value in 2011. I believe the value of $40,000.00 is appropriate and apparently satisfactory to both parties. From this I need to deduct notional disposition costs of $3,133.75 to arrive at the figure for division purposes - $36,866.25. [ 21 ] Ms. Nickerson also testified the property is held jointly with her father Francis Glen Langley and argues the value should be apportioned amongst the three title holders. Mr.

Langley testified that the reason the property was transferred into the three names was because Mr. Nickerson and Ms. Nickerson could not otherwise qualify for a mortgage. He did not provide any part of the purchase price but did give financial assistance for construction of the septic field and hiring the crane used to set up the mini home. The total amount was $7,500.00. In addition Mr. Langley testified he made three mortgage payments which would total $520.00. There was no testimony to suggest that title was put in Mr.

Langley’s name as security for repayment of these amounts. [ 22 ] Having listened to the testimony of Mr. Langley and Ms. Nickerson I believe the beneficial owners of the property are Mr. Nickerson and Ms. Nickerson and Mr. Langley holds his interest in trust for them. I accept that Mr. Langley has provided financial

assistance in a total of $8,020.00; however, I believe this should be treated as a matrimonial debt rather than a property interest. [ 23 ] In the absence of more reliable appraisal information I will use the values set out in the parties’ 2009 statements of property for purposes of valuing the assets on division. The van kept by Ms. Nickerson is worth $8,000.00. She now says the other two vehicles have no value even though she had initially attributed some to them. She says this information came from Mr. Nickerson but the vehicles were ultimately junked.

In light of this evidence I will only use the $8,000.00 van as an asset for Ms. Nickerson. [ 24 ] Even though it may be high, I will use Ms. Nickerson’s estimate of $8,780.00 for the household effects which she retained. She also testified that she received an income tax refund of $121.38 for the 2008 tax year and that should be considered an asset. As previously noted the matrimonial home should be valued at $36,866.25. She requests that I order Mr. Nickerson to convey his interest to her and I will do so. [ 25 ] The vehicles retained by Mr. Nickerson were valued by Ms.

Nickerson at $3,500.00 and I will use that amount. He also received a tax refund of $4,592.75 for 2008 which is an asset to be included in the division. Mr. Nickerson estimated $800.00 for the household furnishings which he took. Ms. Nickerson testified that a firearm was also taken which she valued at $250.00. [ 26 ] Mr. Nickerson’s employment with the Province of Nova Scotia was terminated in February 2009. As a result he received a cash payout of his pension entitlement in the amount of $11,128.31 which should be considered a matrimonial asset. [ 27 ] With the requirement for Mr.

Nickerson to convey his interests in the matrimonial home to Ms. Nickerson I value the assets for division purposes as follows: Ms. Nickerson Mr. Nickerson Car $8,000.00 Truck $3,500.00 Household Effects $8,789.00 Tax Refund $4,592.75 Tax Refund $121.38 Firearm $250.00 Matrimonial Home $36,866.25 Household effects $800.00 Pension Payout $11,128.31 Total $53,776.63 Total $20,271.06 [ 28 ] Ms. Nickerson testified about a number of debts which she assumed responsibility for following separation. Copies of account statements were provided for all of them.

To this list I would add the debt of $8,020.00 owed to her father, Mr. Langley. Ms. Langley’s debts are as follows: Francis Langley $8,020.00 CIBC Line of Credit $15,293.57 Capital One $1,042.80 PC MasterCard $702.78 HBC Card $505.73 CIBC Visa $3,056.60 Aliant $1,358.79 Nova Scotia Power $343.79 Total $30,324.06 [ 29 ] The only debt assumed by Mr. Nickerson was the mortgage on the matrimonial home in the amount of $9,386.08. [ 30 ] After deducting debts from assets Ms. Nickerson is left with $23,452.57 and Mr. Nickerson has $10,884.98. In order for each spouse to end up in the same position Ms.

Nickerson must make an equalization payment of $6,283.80 to Mr. Nickerson. There is a judgment against Mr. Nickerson in the amount of $1,175.00 which was issued in February 2010. It does not appear to be a matrimonial debt, however it has been recorded and forms a lien on the matrimonial home. Mr. Nickerson must give credit for that amount together with accrued interest which comes to $1,440.00. This means the net equalization payment is $4,843.80. [ 31 ] To the extent that Mr. Nickerson has accrued RRSP funds over the course of the marriage this is also an asset that should be divided equally.

Given his lack of financial disclosure the amount and existence of such assets is not clear. The witness from the Royal Bank of Canada testified that Mr. Nickerson established an RRSP in February 2010 which has a current value of $28,269.61. Ms. Nickerson is entitled to a half interest in those funds as well as any other employment pension entitlement accrued during the marriage. [ 32 ] If there are any other matrimonial assets that Mr. Nickerson has not disclosed Ms. Nickerson is entitled to an equal share of them. Child Support [ 33 ] Ms. Nickerson seeks child support based upon the Child Support Guidelines .

The difficulty is that the Court has no information concerning Mr. Nickerson’s current income. The last information with respect to Mr. Nickerson’s income is for the 2008 tax year. His

tax return indicates at line 150 a total income of $49,730.05. According to Ms. Nickerson she understands that he is working as a commercial diver. [ 34 ] On April 19, 2010 copies of T-4 slips for Mr. Nickerson for the calendar year 2009 were filed with the Court. They were not part of a sworn Statement of Income and there is nothing to establish whether this represents all of his line 150 income for the 2009 tax year. The total of the slips is $32,860.43. On June 16, 2010 an interim order for child support was issued which includes a statement that Mr.

Nickerson’s income for 2009 was $32,298.00 Presumably this was based on the T-4 slips filed with the Court. [ 35 ] The interim order set child support at $483.00 per month for Haley and Nicholas. Mr. Nickerson has paid that amount monthly up to and including the time of the divorce trial. [ 36 ] As of December 2012 Haley ceased to be a child of the marriage within the meaning of the Divorce Act and as a result Mr. Nickerson would no longer have been obliged to pay child support for her. Although he was represented by legal counsel up until June 2014 Mr.

Nickerson did not make any motion to reduce child support as a result of Haley’s change in status. The Child Support Guidelines say that child support for a single child in the amount of $483.00 would arise where the payer’s income is approximately $57,000.00. [ 37 ] Ms. Nickerson says that in light of the lack of any current financial information from Mr. Nickerson the Court should impute income to him for child support purposes. She suggests the figure of $57,000.00 on the basis that Mr. Nickerson continued to pay child support based on that level of income after December 2012.

In my view that is a reasonable approach in the circumstances. Mr. Nickerson is in breach of his court ordered obligation to produce financial statements and has effectively ignored this proceeding. He paid child support at a level commensurate with income of $57,000.00 for approximately two years and was represented by legal counsel during most of the period. The last documented income from Mr. Nickerson’s tax return is approximately $50,000.00 in 2008. It is not unreasonable to expect that six years later his income would be slightly higher. [ 38 ] I am prepared to impute income to Mr.

Nickerson in the amount of $57,000.00 and using the Child Support Guidelines order payment of $483.00 per month as child support for Nicholas effective as of December 2012. Spousal Support [ 39 ] Ms. Nickerson seeks spousal support both retroactively and on an on-going basis. [ 40 ] According to Ms. Nickerson she is 45 years old and currently unemployed. She was married to Mr. Nickerson since July 28, 1990 and they lived together for two years prior to marriage. During the marriage she worked outside the home and has certificates from the Nova Scotia Community College in business and computer science.

Following separation Ms. Nickerson was injured at work and in a motor accident. Her injuries have restricted her ability to work although she was able to work for a trucking company for eight weeks in May and June 2014. [ 41 ] Ms. Nickerson’s evidence does not show that either party benefitted at the expense of the other during the marriage. She did not make sacrifices to allow Mr. Nickerson to advance his career by shouldering a greater burden of household responsibility. I do not believe that spousal support on a compensatory basis is warranted. [ 42 ] The Statement of Income filed by Ms.

Nickerson in May 2014 indicates monthly income of $919.00 consisting of child support, child tax benefit and GST credit. Her Notice of Assessment for 2013 shows no line 150 income and for 2012 the figure was $3,717.00. [ 43 ] The financial information provided by Ms. Nickerson indicates that her monthly budget is in a significant deficit. Mr. Nickerson has refused to provide any financial details but I am prepared to impute income in the amount $57,000.00.

There is a clear discrepancy in the financial circumstances of the parties which, in my view, would justify a non-compensatory award of spousal support. [ 44 ] Ms. Nickerson is capable of earning income to some extent. The fact that she was able to work for eight weeks and earn $3,528.00 during that timeframe is proof of this. Availability of work may be an issue but I believe Ms. Nickerson will be diligent in looking for employment and succeed to some extent. If one extrapolated Ms. Nickerson’s eight weeks employment to a full calendar year it would come to approximately $23,000.00.

I think that it is unreasonable to expect that she would be able to obtain employment at that level in the near future. In 2010 (prior to her injury) Ms. Nickerson earned $31,173.00. For purposes of calculating spousal support, I will use an income figure of $15,000.00 for her. [ 45 ] With the income levels noted above and child support payable for Nicholas in accordance with the Child Support Guidelines the Spousal Support Advisory Guidelines suggest spousal support payable to Ms.

Nickerson in an amount between $287.00 and $652.00 per month for a period between 9.5 to 19 years from the date of separation. [ 46 ] In light of Ms. Nickerson’s needs as disclosed in her Statements of Income and Expenses and her potential for gainful employment, I believe spousal support in the amount of $400.00 per month is appropriate. Mr. Nickerson did not file a Statement of Income and Expenses but based upon his imputed income I believe that he has the ability to pay this amount. [ 47 ] The spousal support will be retroactive to May 1, 2014 which is the month in which the divorce trial commenced.

I will not specify a time limit for payment of spousal support and therefore it will be of unlimited duration. I chose the lower range of the amounts calculated under SSAG because the basis for the award was non-compensatory and it is for an indefinite period. Extraordinary Child Care Expenses [ 48 ]

Section 7 of the Child Support Guidelines permits a court to order payment of special or extraordinary child care expenses. Ms. Nickerson is seeking payment of these expenses since separation for both Nicholas and Haley. A request for such a contribution is made in Ms. Nickerson’s interlocutory application filed in November 2009 although nothing was ordered as a result of that hearing. The expenses in relation to Haley are for the period from 2009 until December 2012 and relate exclusively to medical and dental

expenditures. Ms. Nickerson has prepared a calculation prorating these expenses between the parties based upon her reported income and Mr. Nickerson’s imputed income of $57,000.00. [ 49 ] For Nicholas the expenditures are for the period 2009 to date and include medical and dental costs as well as expenses associated with his high school basketball participation (starting in 2011). According to Ms. Nickerson he is on the varsity basketball team and this involves significant travel costs. In addition, there are equipment expenses which have arisen.

In my view, the basketball costs are in a slightly different category than the medical and dental expenses. In order to recover contribution for these costs they must meet the criteria in s.7(1.1) of the Child Support Guidelines for extraordinary expenses. These include the amount of expense in relation to the income of Ms. Nickerson, the overall costs of the programs and any special needs and talents of Nicholas. According to Ms. Nickerson’s Notices of Assessment her income for 2009 was $35,960.00 and for 2010 it was $31,173.00.

Starting in 2011 her income dropped significantly and I believe it is reasonable for Mr. Nickerson to have contributed to the basketball expenses for those years. I am satisfied based upon the testimony of Ms. Nickerson that it was in the best interest of Nicholas for him to continue participating in the high school basketball program. [ 50 ] I accept the calculations prepared by Ms. Murray setting out the requested amount of Mr. Nickerson’s contribution to s.7 expenses of $6,682.52 and would order payment of that amount.

This is the prorated amount of the reasonable costs based upon the incomes of the parties from year to year. Costs [ 51 ] Ms. Nickerson seeks costs of the Divorce hearing. Although she was represented by Legal Aid at the trial, she had previously retained private counsel and incurred expenses related to their services. I have reviewed the solicitor-client accounts from Ms. Nickerson’s former counsel as well as invoices for various disbursements incurred. Disbursements total $386.26 and counsel’s invoices come to $2,482.48.

The divorce took place over two court sessions but the total time was approximately one day. In the circumstances I would award Ms. Nickerson $2,000.00 in costs inclusive of disbursements. Conclusion [ 52 ] I would ask Ms. Murray to prepare a form of order reflecting my decision and in particular including the following provisions: 1. Mr. Nickerson shall execute a quit claim deed conveying his interest in the matrimonial home to Ms. Langley failing which the Sheriff shall be authorized to execute a deed conveying his interest in accordance with the provisions in s.39 of the Trustee Act . 2. Ms.

Nickerson shall make an equalization payment to Mr. Nickerson in the amount of $4,843.80. 3. The parties shall retain ownership of the motor vehicles and household items in their respective possession. Ms. Nickerson shall be entitled to one-half of any undisclosed matrimonial assets as well as any employment pension or RRSP held by Mr. Nickerson arising out of the period 1988 to December 2, 2008. In particular she shall be entitled to a one-half interest of Mr. Nickerson’s RRSP with the Royal Bank of Canada. 4. Mr.

Nickerson shall pay child support based upon an imputed income of $57,000.00 effective as of December 1, 2012 in the amount of $483.00 per month. 5. Mr. Nickerson shall pay spousal support in the amount of $400.00 per month commencing May 1, 2014. Payment of this amount may be set off against the equalization payment owed by Ms. Nickerson so long as there is a balance outstanding on that debt. 6. Mr. Nickerson shall pay arrears of s.7 expenses in the amount of $6,682.52. 7. Mr. Nickerson shall pay Ms. Nickerson’s costs in the amount of $2,000.00 inclusive of disbursements. 8. The parties shall be divorced and Ms.

Nickerson’s name changed to Natalie Dawn Langley. [ 53 ] Ms. Murray had requested that I order Mr. Nickerson to provide security for payment of both spousal and child support in the form of life insurance, however I am not prepared to do so in the absence of any evidence that Mr. Nickerson has a current life insurance policy which could be used for that purpose. [ 54 ] The order may include additional provisions of an administrative nature necessary to implement and enforce this decision. Ms. Murray should send the order directly to me for review as soon as it is prepared. Wood, J.