Hastie v Hastie, 2019 NSSC 126

Supreme Court of Nova Scotia (FAMILY DIVISION) Citation: Hastie v Hastie , 2019 NSSC 126 Date: 2019-04-12 Docket: 30420 Registry: Sydney Between: Jane Hastie Applicant v. Johnson Hastie Respondent Library Heading Judge: The Honourable Justice Lee Anne MacLeod-Archer Heard: March 15, 2019 in Sydney, Nova Scotia Written Decision: April 12 , 2019 Subject: Variation of matrimonial property division orders; Enforcement of orders for the sale of real property; Costs

Summary: After the court ordered a division of the parties’ matrimonial property, Ms. Hastie filed an application to enforce the order, while Mr. Hastie filed an application to vary it. Issues:

(1) Does this court have jurisdiction to vary the property division contained in the order issued on December 6, 2017?

(2) Does this court have jurisdiction to divide debts incurred after the order was issued?

(3) What enforcement measures are appropriate?

(4) Costs Result: The court held it had no jurisdiction to vary an order dividing matrimonial property and dismissed the variation application. The court enforced the order and provided direction on the sale of the real properties. 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: Hastie v Hastie , 2019 NSSC 126 Date: 2019-04-12 Docket: 30420 Registry: Sydney Between: Jane Hastie Applicant v.

Johnson Hastie Respondent Judge: The Honourable Justice Lee Anne MacLeod-Archer Heard: March 15, 2019, in Sydney, Nova Scotia Written Release: April 12, 2019 Counsel: Jane Hastie, Self-Represented Nash T. Brogan for the Respondent By the Court: Facts: [ 1 ] The parties separated on September 28, 2015. Neither filed a petition for divorce. However, on November 23, 2016 Ms. Hastie applied for spousal maintenance, exclusive occupation of the matrimonial home, and a division of assets and pensions under the Matrimonial Property Act , [RSNS 1989, C.275] (as amended). Mr.

Hastie did not file a response to her Application, but he did file income and property statements. [ 2 ] The record shows that the parties appeared in Chambers on March 14, 2017 to deal with disclosure. At that time, they were both self-represented. They advised the Chambers judge that they had reached an agreement. When the Chambers judge asked the parties to clarify the terms of the agreement, Ms. Hastie raised concerns about the purported agreement. [ 3 ] In response, Mr. Hastie advised that he’d changed his mind and wanted to take all agreements off the table.

He advised that he simply wanted all assets sold and the proceeds divided equally. [ 4 ] The matter then came before me for a Date Assignment conference on June 13, 2017. The parties were again self-represented. They advised me that they had reached agreement on a property division. However, Ms. Hastie said that she wanted legal advice, and she expressed concerns about the deal.

As a result of this uncertainty and the history on this file, I set a hearing date and encouraged the parties to seek legal advice about any proposed agreement. [ 5 ] When the matter returned before me for hearing on August 30, 2017, the parties were still self-represented. They again advised that they had reached agreement. They were given a brief adjournment to discuss and confirm the terms before reading the agreement onto the record. [ 6 ] However, upon returning to the courtroom, the parties advised that they were not in agreement after all.

They wanted to proceed with the hearing scheduled for that day. [ 7 ] The hearing went ahead and both parties presented evidence. I reserved my decision and delivered it from the bench on November 17, 2017. Because of the dearth of evidence presented by the parties, I found it impossible to divide the real properties or order set-off of their values. Instead, I directed that all properties not subject to a written rent-to-own agreement be sold, and that the net proceeds be divided equally. This was essentially what Mr.

Hastie had requested in March, 2017. [ 8 ] I also gave direction with respect to the listing and viewing of the properties, and I authorized the Sheriff as Trustee, to sign and deliver any necessary documents if either party refused to do so. I further reserved jurisdiction to deal with any disputes arising from the sale of the properties. [ 9 ] I also directed the sale of certain chattels, calculated the equalization payment owing to Ms. Hastie, and granted her request for periodic spousal support. [ 10 ] An order was issued on December 6, 2017 reflecting my decision. It was not appealed. [ 11 ] Ms.

Hastie filed a Notice of Variation Application on August 7, 2018 . She seeks enforcement of clause 5 of the order, which empowers the Sheriff as Trustee to sell the real properties, failing compliance by either party with the sale process. [ 12 ] In response, Mr. Hastie filed his own Application to Vary on November 23, 2018. He seeks an order placing title to the real properties in his name, delivery of personal items not addressed in the order, and adjustment of the equalization payment owing to Ms. Hastie. Issues: 1.

Does this court have jurisdiction to vary the property division contained in the order issued on December 6, 2017 ? 2. Does this court have jurisdiction to divide debts incurred after the order was issued ? 3. What enforcement measures are appropriate ? 4. Costs

The Legislation: [ 13 ] The Matrimonial Property Act governs property divisions for married couples. Parties can seek a division of matrimonial assets under s.12 of the MPA without filing a Divorce petition. That is what occurred here. [ 14 ] The relevant sections of the MPA include: Powers of court 10

(1) The court may by order, on the application of a spouse or any other person having an interest in property, . . . (

b) authorize the disposition or encumbrance of a matrimonial home where the spouse whose consent is necessary (

i) cannot be found or is not available, (ii) is not capable of giving consent, or (iii) is unreasonably withholding consent, subject to such terms and conditions as the court considers appropriate; Variation of order under clause (1)(

b) The court may, on the application of a person subject to an order under clause (

b) of subsection (1), discharge, vary or suspend any terms and conditions imposed in the order. R.S., c. 275, s. 10. Powers of court respecting matrimonial home 11

(1) Notwithstanding the ownership of a matrimonial home and its contents, the court may by order, on the application of a spouse, (

a) direct that one spouse be given exclusive possession of a matrimonial home, or part thereof, for life or for such lesser period as the court directs and release any other property that is a matrimonial home from the application of this Act; (

b) direct the spouse to whom exclusive possession is given under clause (

a) to pay such periodic or other payments to the other spouse as is prescribed in the order; (

c) direct that the contents of a matrimonial home that are matrimonial assets, or any part thereof, remain in the home for the use of the person given possession; (

d) determine the obligation to repair and maintain the matrimonial home and to pay for other liabilities arising in respect of the matrimonial home; . . . Variation of order

(5) Where the court is satisfied that there has been a material change in the circumstances, it may discharge, vary or suspend an order made under clause (a), (b), (

c) or (

d) of subsection (1) or subsection (3), upon the application of a party to the original application. R.S., c. 275, s. 11. Application for division of matrimonial assets 12

(1) Where . . . (

c) the spouses have been living separate and apart and there is no reasonable prospect of the resumption of cohabitation; or . . . either spouse is entitled to apply to the court to have the matrimonial assets divided in equal shares, notwithstanding the ownership of these assets, and the court may order such a division. … Harsh or fraudulent contract or agreement 29 Upon an application by a party to a marriage contract or separation agreement, the court may, where it is satisfied that any term of the contract or agreement is unconscionable, unduly harsh on one party or fraudulent, make an order varying the terms of the contract or agreement as the court sees fit.

R.S., c. 275, s. 29. [ 15 ] It’s clear that the MPA allows variation of certain orders. These include orders for exclusive occupation made under s.11, and orders for sale or encumbrance of matrimonial homes under 10(1)(b).

[16]

Section 29 of the MPA also allows the court to vary the terms of a marriage contract or separation agreement in certaincircumstances. That

section isn’t applicable in this case. [17] There is no provision in the MPA for variation of orders made under s.12. The Caselaw: [18] In Rent v. Rent, (1987) 79 NSR (2d) 186 the Nova Scotia Court of Appeal stated: 2 This is an appeal from an order of March 10, 1987, under the Matrimonial Property Act made by the Honourable Judge Haliburton,sitting as a Local Judge of the Supreme Court. The order, among other things, purported to give the respondent Mrs. Rent title to thematrimonial home property, which was owned by the parties as joint tenants, and the title to certain woodlands owned by Mr. Rent.

Theorder resulted from an application by Mrs. Rent to vary a previous order of October 14, 1986, which had authorized the sale of thematrimonial home and an unequal division of the proceeds between the parties and exclusive possession by Mrs. Rent of the homepending sale. In November, shortly after the order of October 28, Mr. Rent attacked and seriously damaged the matrimonial home,reducing its probable value. Mrs. Rent, seeking a remedy, sought the order now under appeal. 3 The respondent relied on s.11(5) of the Act as justifying the order under appeal.

That subsection reads: 11(5) Where the court is satisfied that there has been a material change in the circumstances, it may discharge, vary or suspend an ordermade under clause (a), (b), (

c) or (

d) of subsection (1) or subsection (3), upon the application of a party to the original application. 4 Subsection (3) has no relevancy in the present case. 5 The respondent claims that one or more of the provisions of the order, which was replaced by the order of March 10, fell withins.11(1)(a), (b), (

c) or (d).

These provisions authorize a court to direct exclusive possession, direct that the contents remain in the house,determine the obligation to repair and maintain the matrimonial home, and pay for other liabilities arising in respect of the matrimonialhome. 6 We doubt whether any provision of the order of October 14 could be varied under s.11(5) on the particular facts of this case.In any event, the order under appeal goes far beyond any variation but replaces any questioned provisions with entirely differentsubstantive matters, viz., vesting title in both the matrimonial home and certain woodlands--substantive matters which do not fallwithin the judge's jurisdiction under any application before him. 7 We must accordingly allow the appeal and set aside the order of March 10, 1987, as being void and without jurisdiction.

Inthe circumstances, there will be no costs to either party either here or in the court below. [Emphasis Added] [19] In MacKenzie v MacKenzie, (1988) (NS SC), 86 NSR (2d) 314 Grant, J. declined to vary a division ofproceeds from the sale of a matrimonial home, citing lack of jurisdiction. The court noted that “any authority to vary … must be givenby the legislation.” [20] In Hebert v Hebert,

(1988) NSR (2d) 87 Davison, J. held that he did not have jurisdiction to vary a final order of matrimonialproperty division and stated: 32 It is submitted that the order could be varied by reason of the terms of the Matrimonial Property Act, S.N.S. 1980, c. 9, and, inparticular, by virtue of s. 10, s. 15 or s. 29. In my opinion none of these sections gives jurisdiction to vary a final disposition ofmatrimonial property set forth in a corollary relief judgment. 33 Under s. 10, the only order which could be varied is one made under s. 10(1)(b). 34 It is clear from the

preamble to s. 15 that it was intended to bestow on the court power to effect a first-time division, and if it was intended that a court had power to vary orders under this section, thelegislation should have clearly set out this authority, as it does in other sections of the Act.

35 Only contracts or agreements can be varied under s. 29. There is no power thereunder to vary an order . In any event, it cannot be said that any term of the contract is unconscionable or unduly harsh. Circumstances which arose after the contract was executed may be perceived as being unfair. 36 In the result, the applicant has not convinced me that I could or should amend or vary the corollary relief judgment. […] 45 As indicated earlier in this judgment, s. 15 of the Matrimonial Property Act gives power to the court upon division of the assets.

It does not permit any variation, amendment or addition to orders granted pursuant to its terms. My jurisdiction under the Matrimonial Property Act concluded at the time the order was signed . [i] [Emphasis Added] [ 21 ] In Croitor v Croitor, 2001 NSCA 37 , the Nova Scotia Court of Appeal confirmed that this court doesn’t have jurisdiction to entertain an application under the MPA to divide assets where an order has already been granted. [ 22 ] As noted by commentator James G. MacLeod in his commentary on the Croitor decision: “Once you make your application and get your order, the issue is res judicata .

And, you can’t vary a final property order just because you changed your mind or something changed”. [ 23 ] In this case, several things changed after the decision was rendered. One of those changes was unfolding when the hearing was held. A foreclosure proceeding on the Forman Street property was filed on May 18, 2017. Neither party brought that to the court’s attention. [ 24 ] The changes that occurred after my November 17, 2017 decision include: • Mr.

Hastie cashed an RRSP and paid a lump sum towards the Forman Street mortgage in November, 2018 to avoid foreclosure. • The bank commenced foreclosure proceedings on the matrimonial home. • Mr. Hastie received an offer to purchase the matrimonial home, but because foreclosure proceedings were by then underway, he was unsure whether it could be sold. He did not seek legal advice on that question and did not accept the offer. • The bank entered a deficiency judgment against both Mr. and Ms. Hastie after the foreclosure proceedings on the matrimonial home were completed and it was sold.

The judgment is for $72,735.73. • The Canada Revenue Agency entered judgment against Mr. Hastie on February 2, 2018 in the amount of $108,784.12. • The parties signed a listing agreement for the Brook Street property (and 2 adjacent lots) on February 10, 2018. It did not sell and was not relisted when the listing expired. • Mr. Hastie obtained appraisals of the Brook Street and Forman Street properties in November, 2018. • Mr.

Hastie paid the real property taxes and municipal water costs for the Forman Street and Brook Street properties from the sale proceeds of his home on High Street (exempt after-acquired property). [ 25 ] The circumstances in this case are unfortunate, but so too were the circumstances in Rent (supra ). That decision is binding, and on that basis I conclude that absent express legislative authority, I can not vary my earlier order dividing the matrimonial property. The order issued December 6, 2017 was a final order, not an interim order as suggested by Mr. Hastie.

Nor does my inherent jurisdiction as a court of equity give me the power to vary the order, despite Mr. Hastie’s argument to the contrary. [ 26 ] The property division issue is res judicata . [ 27 ] Mr. Hastie’s alternative argument in support of his request for variation relies on clause 5 of my order, in which I reserved jurisdiction to deal with “any disputes surrounding the sales [of the properties] which cannot be resolved between the parties”. This reservation does not, and cannot, extend to variation of the substantive portions of the order.

It simply allows the court to provide direction to implement and enforce its own order. [ 28 ] A further claim advanced by Mr. Hastie involves personal items that neither party addressed during the August, 2017 hearing. He asks the court to direct the return of those personal items he says were left in the home. [ 29 ] Clause 10 of the order states that Ms. Hastie will retain the contents of the matrimonial home. To ask for delivery of items from the home now, is to ask for a variation of that clause. As discussed above, I have no jurisdiction to do so. [ 30 ] Alternatively, Mr.

Hastie is asking for a further division of assets, which again I have no jurisdiction to order (see Croiter , supra ).

[ 31 ] In the result, Mr. Hastie’s Application to vary the property division is dismissed. Issue #2 [ 32 ] The bank entered a deficiency judgment against both parties after the sale of the matrimonial home in Boularderie. That judgment was entered after my order was issued. Mr. Hastie asks this court to “deal with equal division of the [deficiency judgment] debt” in varying the property division. [ 33 ] I have no jurisdiction to do so. As noted in the caselaw, I cannot vary or grant a substantially different order than the one issued on December 6, 2017. That order remains effective and enforceable.

Issue #3 [ 34 ] Both parties ask the court to enforce parts of my earlier order. I have jurisdiction to do so under the Judicature Act, RSNS 1989, c.240 (as amended). [ 35 ] Ms. Hastie asks that I direct Mr. Hastie to account for the rents received on Brook Street and Forman Street, as well as the expenses he paid from those rents, in accordance with clause 6 of my order. Mr. Hastie tendered no accounting and was not asked about rents and expenses on cross-examination. [ 36 ] From the evidence, it’s clear that the Forman Street property is rented to Mr. Hastie’s nephews. I also accept Ms.

Hastie’s evidence that Brook Street was rented, but the tenants were evicted to allow Mr. Hastie to move in. He did not pay Ms. Hastie any monies from rents collected, nor any monies for his occupation of Brook Street, although he says he paid significant arrears of taxes and water on both properties. [ 37 ] Mr. Hastie produced proof of payments in excess of $17,000.00 to the municipality. I accept that these payments were for water and taxes owing on the Brook Street and Forman Street properties.

Given the description of the properties and the appraised values, I conclude that this payment likely offsets the value of any rents collected or payable by Mr. Hastie between November, 2017 and April 2019. So there will be no monies payable to Ms. Hastie for her share of rents to date. [ 38 ] For enforcement purposes, and in accordance with my reserved jurisdiction at clause 5 of the order, I direct that Mr. Hastie provide copies of cheques or receipts for rent collected from the tenants on Forman Street monthly to Ms. Hastie, pending the sale of that property.

He will pay her half the rent collected, less documented expenses (per clause 6 of the order) monthly, commencing May 1, 2019 and continuing until the property is sold. [ 39 ] Mr. Hastie asked that I require Ms. Hastie to provide him with his tools (which I directed that he remove within 7 days). Ms. Hastie says that he’s already retrieved all of his tools, and that 3 people witnessed this. Mr. Hastie denies this. I accept Ms. Hastie’s evidence that the tools have all been removed, and even if they have not, that the period for doing so has passed. [ 40 ] In my decision, I directed that Mr.

Hastie retain both Hummer trucks, valued together at $15,000.00. Mr. Hastie asks that I reduce the equalization payment he owes to Ms. Hastie by the value of the Hummer that she sold; he received neither the vehicle nor the proceeds of its sale. [ 41 ] This is not an enforcement request, it is a request to vary the equalization payment ordered. I have no jurisdiction to do so. However, I grant judgment to him for half the value of the Hummers ($7,500.00) as an enforcement measure. He can pursue payment as he sees fit. [ 42 ] Likewise, Ms. Hastie seeks enforcement of Mr.

Hastie’s obligation to deliver to her the camper trailer, which was valued at $1,200.00. Mr. Hastie sold the camper and kept the money. He acknowledges that he owes Ms. Hastie $1,200.00 for that asset. I grant judgment to her for that amount. She can pursue payment as she sees fit. [ 43 ] Ms. Hastie also seeks enforcement of the requirement that Mr. Hastie sell the skid-steer and split the proceeds. I accept Mr. Hastie’s evidence that he sold that vehicle for the amount owing on the loan, and that there were no proceeds to split with Ms. Hastie.

No adjustment of the equalization payment is necessary. [ 44 ] One final item that falls under the enforcement issue is the land in Newfoundland, which was one of the real properties I considered in August, 2017, and one of the properties that I directed to be sold. At this hearing, Mr. Hastie testified that he never received title to these lands and that he cannot sell them as a result. If title is not recorded in either party’s name, then the Sheriff is directed to take no enforcement action in respect of that Newfoundland property.

Otherwise it is to be sold. [ 45 ] The Sheriff is directed to immediately take steps to list and sell the real properties at Brook Street (3 lots) and Forman Street (2 lots), as well as lands in Newfoundland for which title is vested in one or both parties. [ 46 ] Acting as Trustee, the Sheriff will list the properties with a licensed realtor, at a market price recommended by the realtor. The realtor will show the properties, and the Sheriff will accept any offer within 10% of the list price.

Failing any offers within 60 days, the price may be reduced in consultation with the realtor and any offer within 10% of that price must be accepted. On closing the sale, the Sheriff’s fees will be paid, as well as legal and realtor’s fees, plus any municipal charges and judgments recorded against the parties. [ 47 ] In the event that the proceeds are less than the amounts owing, the Sheriff may apply to this court for further direction, on notice to all interested parties. [ 48 ] In the event that Mr.

Hastie files an assignment in bankruptcy, the provisions of the Bankruptcy and Insolvency Act [RSC 1985, c B-3 ] will apply. The Sheriff may apply for a discharge as Trustee in that event, however I retain jurisdiction to deal with issues arising from the sale of any real property not sold by the Trustee.

Issue #4: [ 49 ] Ms. Hastie argues that she’s entitled to costs because she had to file this Application to force Mr. Hastie to comply with the order. [ 50 ] In considering a costs award, I recognize that Ms. Hastie represented herself, while Mr. Hastie retained counsel and incurred fees. However, when this matter was scheduled, I inquired whether the principle of res judicata might apply. Mr. Hastie forged ahead despite that. He was unsuccessful in seeking variation of the order, and although both parties met with some success on the enforcement issue, Ms.

Hastie was clearly the more successful party. [ 51 ] I award costs of $1,000.00 inclusive of disbursements to Ms. Hastie, payable within 30 days. I am using Tariff C, rather than Tariff A, as this was a hearing that lasted less than half a day and the amount involved is unknown. This sum will do justice between the parties. Conclusion: [ 52 ] Mr. Hastie’s Application to vary is dismissed. Enforcement of my order is granted as outlined. Mr. Hastie will pay Ms. Hastie costs of $1,000.00 within thirty days. [ 53 ] On a final but related note, I wish to address Ms. Hastie’s submissions on spousal support.

Her Application filed on August 7, 2018 does not ask for variation of the spousal support clauses of my order. I advised Ms. Hastie during this hearing that I would not be dealing with support for that reason. This is, of course, without prejudice to either party’s right to file and pursue such an Application in future. MacLeod-Archer, J.