HENRY RAYMOND GAUVIN, Petitioner - v. -, 2016 NBQB 188

IN THE COURT OF QUEEN’S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF MONCTON Neutral Citation Number: 2016 NBQB 188 File: FDM-409-09 BETWEEN: HENRY RAYMOND GAUVIN, Petitioner - and - DEBORAH GAUVIN Respondent - and - CINDY BRIDEAU Third Party DECISION BEFORE: Madam Justice Colette d’Entremont AT: Moncton, New Brunswick DATES of hearing: September 1 and 2, 2016 DATE of decision: October 19, 2016 APPEARANCES: Kenneth W. Martin, for the Petitioner

D. James Gerrish, for the Respondent and the Third Party D’ENTREMONT, J. INTRODUCTION [ 1 ] The Petitioner, Henry R. Gauvin, seeks a division of the marital property. In this regard, he is asking for a monetary award from Ms. Gauvin and from Ms. Brideau in whose name some of the assets were registered. [ 2 ] The Respondent, Deborah Gauvin, denies she owes any amount of money to Mr. Gauvin as a result of dividing the marital property. However, Ms.

Gauvin has advanced a claim for spousal support for her benefit. [ 3 ] The Third Party, Cindy Brideau, has been added to this Application as some of the marital property was registered in her name. She disputes the claim advanced against her. [ 4 ] The matter is based on the Divorce Act , R.S.C., 1985, c.3 (2 nd Supp.) and the Marital Property Act , S.N.B., 2012, Chap. 107. SCHEDULING [ 5 ] The originating process in this matter is a Petition for Divorce filed May 26, 2009. The Answer is dated July 31, 2009. The Trial Record was filed April 18, 2013. The first trial date was set for January 6 and 7, 2015.

The matter did not commence on these dates and was rescheduled by the Clerk’s Office. Then the hearing was scheduled for September 3 and 4, 2015. It did not proceed on that day as once again, it was rescheduled by the Clerk’s Office. The third trial date was set for September 1 and 2, 2016 on which days the matter proceeded. FACTS Marital Property [ 6 ] The parties commenced living together around January or February of 1985. At the time, Ms. Gauvin’s children from a previous relationship also lived with the couple.

These children were Cindy Brideau and Robyn Brideau. [ 7 ] When the parties first moved in together, they lived in a house located at 25 Washington Street in Moncton, New Brunswick. At the time, the house was owned by Ms. Gauvin. In fact, she and her first husband moved in the residence in 1977. Following their separation, Ms. Gauvin’s former spouse transferred the house to her. Around this period, there was a small mortgage registered against the property. [ 8 ] As for Mr. Gauvin, after he separated from his first wife, he received $9,000 from the division of the marital property.

These funds were then used by Mr. Gauvin and Ms. Gauvin for their household expenses. [ 9 ] The parties were married on May 2, 1987. The marriage had its good days and bad days. Ms. Gauvin claimed that Mr. Gauvin was abusive towards her. He denies these allegations. As well, both accuse the other of having an affair with other people during the relationship. [ 10 ] The couple separated July 15, 2008. At separation, Mr. Gauvin was 53 years old and Ms. Gauvin was 57 years old. [ 11 ] On July 17, 1987, title to the property at 25 Washington Street was transferred from Ms. Gauvin to Mr. Gauvin and Ms.

Gauvin as joint tenants. Three years later, on March 2, 1990, the property was conveyed solely to Ms. Gauvin. The affidavits under the Marital Property Act found in both of these deeds indicate the property was occupied by the couple as their marital home.

[ 12 ] In the mid-1990’s, renovations were carried out on the home located at 25 Washington Street. Mr. Gauvin estimates these cost about $35,000. The renovations carried out on the outside of the house included building a veranda, installing siding and doors. Inside the house, new flooring and baseboards were installed. Somehow, Ms. Gauvin obtained a loan from NB Housing as the government had a plan to help finance renovations of homes owned by low income families. These renovations were carried out after the title to the property was transferred to Ms.

Gauvin. [ 13 ] While living in the home on Washington Street, Mr. Gauvin mowed the lawn and did other chores around the house. He thought the residence belonged to the couple. [ 14 ] The parties lived in the house at 25 Washington Street in Moncton until November 11, 2005. On that day, the house at 25 Washington Street was completely destroyed by fire. The couple then moved into an apartment on Champlain Street in Dieppe, New Brunswick. [ 15 ] On March 24, 2006, the fire insurance company paid Ms. Gauvin $68,000 for the loss of the house. On April 26, 2006, $39,253 was paid by the insurer to Ms.

Gauvin for the contents of the home. On February 21, 2008, the vacant lot at 25 Washington Street was sold. The proceeds of sale of the lot being $27,016.55 were paid to Ms. Gauvin. The funds from the insurance company and the proceeds of sale of the lot were deposited in the couple’s joint account and taken out shortly thereafter. [ 16 ] In September of 2006, Mr. Gauvin and Ms. Gauvin found a lot having civic address 778 Portage Vale Road in Portage Vale, New Brunswick. They decided to buy the property for $10,000 with funds paid to Ms. Gauvin by the insurance company.

Title to the property was put in Cindy Brideau’s name who, according to Mr. Gauvin, would hold it “in trust” for Mr. Gauvin and Ms. Gauvin. There was no written trust agreement and the deed did not specify that the property was held “in trust”. Ms. Gauvin testified that the plan was that Cindy Brideau would inherit the property at 25 Washington Street when Ms. Gauvin and Mr. Gauvin would pass away. Therefore title to the Portage Vale property was registered in Ms. Brideau’s name as this would eventually be her “inheritance”. At this time, Ms.

Brideau was an adult living independently in Dartmouth, Nova Scotia. [ 17 ] After the Portage Vale property was bought, Mr. Gauvin hired an outfit called Cunningham Contracting to help prepare the lot for the installation of a mini-home. The contractor demolished an old cabin on the lot and built a pad on which a new mini-home would be placed. [ 18 ] In the early winter of 2007, the couple went looking for a mini-home. Ms. Gauvin and Mr. Gauvin found a mini-home to their liking on the Old Shediac Road in Moncton.

All parties agree that Cindy Brideau was not present or involved in any way with the purchase of the mini-home. [ 19 ] On January 17, 2007, a deposit of $1,000 was paid on the mini-home. Although the money came from the proceeds from the insurance company, the receipt indicates the $1,000 was paid by Cindy Brideau. The closing date for the purchase of the mini-home was on February 1, 2007. On that day, the balance of $75,000 was paid to buy the mini-home. The purchaser of the mini-home on paper is listed to be Cindy Brideau. Around this time, $75,000 was taken from Mr. Gauvin and Ms. Gauvin’s joint account.

These funds also originated from the fire insurance money. Then the mini-home was hauled to the lot in Portage Vale. Someone was hired to install skirting and insulation around the mini-home. The driveway was widened and repaired. As well, a gazebo and back deck were constructed behind the residence by Brent MacPherson. All of this work was paid for by using the proceeds from the fire insurance company. Mr. Gauvin indicated that he painted the inside of the home.

Furthermore, he and his brother built a deck in the front of the home. [ 20 ] The couple bought new furniture as the furniture previously owned by them had burnt in the fire. Once again, the proceeds from the insurance company were used to buy these items. This furniture included television sets, fireplaces, kitchen set, couches, beds, dressers, tables, and chairs. Ms. Gauvin estimated that furniture and appliances cost $8,000. Mr. Gauvin was of the view that the furniture and appliances cost a lot more. There was no appraisal of the furniture and appliances entered into evidence. [ 21 ] On July 15, 2008, Mr.

Gauvin arrived at the mini-home in Portage Vale and the locks had been changed. There was some friction between the two and the RCMP were called to settle things. In the end, Mr. Gauvin left the premises with his personal belongings in the back of his 1988 half-ton truck. He took his clothes, his guitar, the stereo, and three guns. He also took $10,000 in cash which he had received from his deceased father’s estate. According to Mr. Gauvin, this cash had been hidden in the baby barn. Mr. Gauvin never talked to Ms. Gauvin after he left Portage Vale with his belongings.

[ 22 ] After the separation, Ms. Gauvin kept a 2001 Saturn which was owned by the couple. She also took possession of a travel trailer which the couple had bought for $9,000. After July of 2008, Ms. Gauvin sold the trailer for $2,000 and she kept the funds. [ 23 ] As for the 1998 half-ton truck, Mr. Gauvin eventually sold it for $1,000. Mr. Gauvin retained a 1997 ATV 4 wheeler which he claimed was worth between $500 and $800. He also kept a 1995 Saturn which he later gave to a friend. [ 24 ] In 1998, the couple had purchased a karaoke system. Ms. Gauvin kept the equipment after the separation in mid-July of 2008.

Ms. Gauvin believed the karaoke machine was bought for $400 to $500 and the foundation on which the system was installed was bought for $1,800. At the trial, Mr. Gauvin provided an estimate of $9,253.25 from Long & McQuade, a music store, showing the value of new music equipment and CD’s which he claimed were similar to what the couple owned while they were together. I cannot accept the estimate provided by the music store as a realistic value of the music equipment and the karaoke machine at the time of separation. These items depreciate very quickly. As for Ms.

Gauvin, she was rather of the view that the karaoke machine was broken and worthless. I conclude that the music equipment was worth very little at the separation. [ 25 ] On July 5, 2013, after a discovery was held in conjunction with this litigation and after the Trial Record was filed, the mini- home and the lot at 778 Portage Vale Road in Portage Vale were sold for $96,500. Mr. Gauvin did not receive any of the proceeds of sale. Rather, the money was given to Cindy Brideau who held it for herself and her mother. [ 26 ] Eventually, Ms.

Gauvin received about $50,000 and Cindy Brideau received approximately $50,000 from the sale of the property. Ms. Gauvin used her money to support herself and her two sisters who were battling cancer. At the time of the trial, Ms. Gauvin indicated all the money was gone. As well, she disclosed she had credit card debts totalling $28,300 and a debt of $5,200 owing to Canada Revenue Agency. [ 27 ] As for Ms. Brideau, she used her share of the funds to buy a 2013 Honda Civic for approximately $25,000. As well, she took trips to the Caribbean, and bought furniture. Ms.

Brideau was of the belief that the money she received from the sale of the Portage Vale lot and mini-home was hers to keep. [ 28 ] In addition to requesting one-half of the proceeds of sale of the Portage Vale property, Mr. Gauvin is asking to be compensated for his share of the contents of the mini-home. At the trial, he submitted an estimate for the value of the furniture. He went to Leon’s Furniture, a local furniture store. He priced all new furniture similar to what the couple had in the home. According to Mr. Gauvin’s figures, the cost of similar new furniture would be $23,000.

This is not really the correct manner to appraise used furniture. Normally a professional appraiser would go into the home and give values to each piece of furniture. All in all, I would value the contents of the mini-home at $12,000 as of the date of separation in mid-2008. I have taken into consideration that most of these items were bought after the couple received the fire insurance funds. Employment [ 29 ] Before the parties commenced their relationship, Mr. Gauvin was a long-haul truck driver for Midland Transport. In 1985 he sold his tractor-trailer for about $30,000.

From the proceeds of sale, he paid $18,000 to $19,000 on an outstanding indebtedness to the bank. Furthermore, he paid $5,000 to $6,000 to cover an account with Universal Sales. Mr. Gauvin kept the remainder of approximately $8,000 in a safety deposit box. [ 30 ] From 1985 to 1996, Mr. Gauvin worked as a heavy equipment operator and truck driver for Callaghan Contracting. This was seasonal work during the period from May to December. At times in the winter, he would be hired to plough snow for the same company. Otherwise, during most of the winter months and early spring of the year, Mr.

Gauvin drew employment insurance benefits when he was not working. While working for Callaghan Contracting, Mr. Gauvin earned an annual income in the low $30,000. [ 31 ] From 1997 to the time of the trial, Mr. Gauvin was employed by a recycling company named Rayan Investments. Mr. Gauvin worked as a truck driver for this enterprise. His annual income in the past few years was between $30,000 and $38,000. Once his employer started paying him by direct deposit, his wages went directly in the couple’s joint account at the local Caisse Populaire. [ 32 ] In 1987, when the parties were married, Ms.

Gauvin was not employed outside the home. For a number of years during the relationship, she collected social assistance, telling the authorities that Mr. Gauvin was not living with her. At the relevant time, Mr.

Gauvin rented a mail box and had a mailing address on Elmwood Drive in Moncton. During this period, Ms. Gauvin’s son, Robyn required medication as he was diagnosed with ADHD. According to Ms. Gauvin, the cost of the medication was $200 to $300 a month. By being a recipient of social assistance, this meant the province of New Brunswick paid for her son’s medication. [ 33 ] Around 1995, Ms. Gauvin commenced working in the luggage department at the Sears Department Store in Moncton. She worked twenty to twenty-five hours per week for a period of seven years. Then there was an incident that happened and Ms.

Gauvin was released by Sears. She then commenced an action against Sears alleging wrongful dismissal. On November 9, 2006, the litigation was settled and Ms. Gauvin received $17,604.27. [ 34 ] Starting in 2003, Ms. Gauvin worked as a bartender at J.R. Lounge, on Collishaw Street in Moncton. She worked thirty-five to thirty-seven hours per week, earning minimum wage and tips. Her shift was during the day or the evening. Mr. Gauvin would show up at the bar most nights where he would have a few drinks. Ms. Gauvin worked there until May 20, 2008. She indicated she earned $250 to $271 per week.

During his testimony, Mr. Gauvin stated he believed she earned $500 per week. [ 35 ] Both parties agree that Ms. Gauvin is the one who handled the family’s finances during the marriage. Mr. Gauvin would give Ms. Gauvin his paycheque and she would deposit it in the couple’s joint account. Ms. Gauvin would then give Mr. Gauvin a weekly allowance of $100 to $200. As well, Ms. Gauvin was responsible for paying the household bills such as electricity, food, and transportation. In fact, from 1985 to the date of separation in July of 2008, Mr.

Gauvin did not go to the bank or the Caisse Populaire. [ 36 ] The pattern according to the Caisse Populaire’s statements is that Ms. Gauvin would deposit cheques and the next day she would withdraw almost the full amount of the cheque. Ms. Gauvin would then pay bills with the cash. Only a minimum amount of money remained in the account. As well, Ms. Gauvin had a habit of keeping cash in a safe at the couple’s home. She did not believe in banks or the Caisse Populaire as a safe and reliable place for keeping money. Mr. Gauvin claims that at one time there was over $50,000 in cash at the home in Portage Vale.

The evidence is weak on this point. On a balance of probability, I am not convinced that Ms. Gauvin had this amount of money hidden at her home at the time of separation. [ 37 ] Since 1997, Mr. Gauvin has been working for Rayan Investments where he earns about $17 an hour. His annual income according to his income tax returns entered into evidence has been as follows: 2008 $32,493 ... 2013 $37,849 2014 $37,664 2015 Employment $38,430 CPP $ 5,107 Total $43,510 [ 38 ] Since 2015, Mr. Gauvin has been receiving CPP benefits as he has turned 60 years of age.

The parties have already divided CPP credits accumulated by the couple during the marriage. [ 39 ] Ms. Gauvin has been unemployed since the spring of 2008. After the couple separated, Ms. Gauvin collected social assistance of about $300 a month. In July of 2008, she applied for CPP disability benefits and her request was denied. Sometime after, she re- applied for CPP disability and was deemed eligible. In 2011, Ms. Gauvin commenced receiving these benefits.

There is no documentation indicating how much she received, however I estimate she received CPP disability benefits of approximately $1,000 per month. [ 40 ] In April of 2016, Ms. Gauvin turned 65 years of age. Since then, she has been receiving Old Age Security of $880 per month and Canada Pension Plan benefits of $499 per month, for a total of $1,379 per month or $16,548 per year.

[ 41 ] At the time of the trial, Ms. Gauvin indicated she has been doing volunteer work at a homeless shelter in Moncton for which she is given $50 per week which would equate $2,600 per year. [ 42 ] A medical report dated April 22, 2010 prepared by Dr. Victor Robichaud was entered into evidence. It indicates that Ms. Gauvin was diagnosed with an adjustment disorder and depression. She underwent surgery to correct a perforated tympanic membrane. As well, she was experiencing chronic cervical pain following a motor vehicle accident in August of 2006. The report indicates that Ms.

Gauvin has been unable to work for medical reasons since April 23, 2008. [ 43 ] Ms. Gauvin’s total annual income (line 150) according to her Notices of Assessments has been as follows: 2001 $12,278 2002 $ 3,373 2003 $13,692 2004 $13,556 2005 $14,620 2006 $48,338 (This year includes the $31,000 gross award from Sears following the wrongful dismissal) 2007 $14,799 2008 $ 8,930 [ 44 ] It is interesting to note that during the years 2002 to 2008, Ms. Gauvin indicated on her tax returns that she was separated. Mr. Gauvin indicated that he was single during some of these years.

The parties continued to live together until mid-2008. [ 45 ] There were no income tax returns entered into evidence by Ms. Gauvin after 2008. At a motion heard on June 30, 2011, Ms. Gauvin was ordered to provide Mr. Gauvin with complete income tax returns and Notices of Re-assessments for 2005 to 2010. I am not sure if she complied with this order. [ 46 ] At the trial, I asked Ms. Gauvin’s lawyer which annual income I should use for the purposes of evaluating her request for spousal support. He indicated $20,000 for Ms. Gauvin and $35,000 for Mr. Gauvin.

DIVORCE [ 47 ] The divorce was granted on September 1, 2016, the first day of the hearing. By then, the parties had been living separate and apart for more than one year with no possibility of reconciliation, and there had been a breakdown of the marriage. ISSUES [ 48 ] The issues in this matter include the following:

a) Was the latest residence in which the parties lived in the marital home, and does Mr. Gauvin have an interest in the proceeds of the sale of this property? In the same context, was title to the property held “in trust” by Ms. Brideau, was it her inheritance or a gift?

b) Is Ms. Gauvin entitled to a retroactive award of spousal support?

c) Is an award of costs appropriate in these circumstances? MARITAL PROPERTY ACT [ 49 ] The Marital Property Act , 2012, S.N.B., Chap. 107 deals with the division of marital property and debts after the dissolution of a marriage. Generally, the Act provides that each spouse is entitled to have the marital property divided in equal shares upon the separation of the parties. The marital property includes family assets.

Section 1 of the Act defines “family assets” as follows:

“family assets” means property, whether acquired before or after marriage, owned by one spouse or both spouses and ordinarily used or enjoyed for shelter or transportation or for household, educational, recreational, social or aesthetic purposes by both spouses or one or more of their children while the spouses were cohabiting, and includes (

a) a marital home and household goods, (

b) money in an account with a chartered bank, savings office, credit union or trust company if the account is ordinarily used for shelter or transportation or for household, educational, recreational, social or aesthetic purposes, (

c) shares in a corporation or an interest in a partnership or trust owned by a spouse having a market value equal to the value of the benefit the spouse has in respect of property owned by the corporation, partnership or trustee that would, if it were owned by the spouse, be a family asset, (

d) property over which a spouse has, either alone or in conjunction with another person, a power of appointment exercisable in favour of himself or herself, if the property would be a family asset if it were owned by the spouse, and (

e) property disposed of by a spouse but over which the spouse has, either alone or in conjunction with another person, a power to revoke the disposition or a power to consume or dispose of the property, if the property would be a family asset if it were owned by the spouse.

Part 2 of the Act deals with the marital home and household contents. In this regard, subsections 16(1), 19(1), 20(1), and 20(3) are relevant and read as follows: 16 (1)Property that is or has been occupied by a person and his or her spouse as their family residence is a marital home, and if property that includes a marital home is used for a purpose in addition to a family residence, the marital home is that portion of the property that may reasonably be regarded as necessary to the use and enjoyment of the family residence. ... 19 (1)No spouse shall make a disposition of any interest in a marital home unless (

a) the other spouse joins in the instrument, (

b) if the disposition is not made by an instrument, the other spouse consents to the disposition, (

c) the other spouse has released all rights to the marital home under this Part by a domestic contract, (

d) the marital home has been released from the application of this Part by an order under paragraph 23(1)( b ), or (

e) the disposition has been authorized by the Court. ... 20 (1)Subject to an order made under subsection (2), and to the provisions of a domestic contract, each spouse is entitled to one- half of the net proceeds realized by one or by both of the spouses from the disposition of an interest in the marital home.

... 20(3)If one spouse or any other person acting for or on behalf of either or both spouses holds the net proceeds mentioned insubsections (1) and (2), that spouse or person holds those net proceeds in trust to be divided equally between the spouses, or inaccordance with an order made under subsection (2) or the provisions of a domestic contract. [50] The Supreme Court of Canada in the decision Pecore v. Pecore 2007 SCC 17 , [2007] 1 S.C.R. 795 dealt with thepresumption of advancement and resulting trust in the context of a joint bank account.

Some of the principles enunciated in the decisionare relevant to the case at hand. The passages found in paragraphs 20, 21, 24, 25, 27, and 36 relating to resulting trust and advancementare relevant in this regard and they read as follows: 20 A resulting trust arises when title to property is in one party's name, but that party, because he or she is a fiduciary or gaveno value for the property, is under an obligation to return it to the original title owner: see D. W. M. Waters, M. R. Gillen and L.D. Smith, eds., Waters' Law of Trusts in Canada (3rd ed. 2005), at p. 362.

While the trustee almost always has the legal title, inexceptional circumstances it is also possible that the trustee has equitable title: see Waters' Law of Trusts, at p. 365, noting thecase of Carter v. Carter (1969), (BC SC), 70 W.W.R. 237 (B.C.S.C.). 21 Advancement is a gift during the transferor's lifetime to a transferee who, by marriage or parent-child relationship, isfinancially dependent on the transferor: see Waters' Law of Trusts, at p. 378. In the context of the parent-child relationship, theterm has also been used because "the father was under a moral duty to advance his children in the world": A. H.

Oosterhoff etal., Oosterhoff on Trusts: Text, Commentary and Materials (6th ed. 2004), at p. 575 (emphasis added). … 24 The presumption of resulting trust is a rebuttable presumption of law and general rule that applies to gratuitous transfers.When a transfer is challenged, the presumption allocates the legal burden of proof. Thus, where a transfer is made for noconsideration, the onus is placed on the transferee to demonstrate that a gift was intended: see Waters' Law of Trusts, at p. 375,and E. E. Gillese and M. Milczynski, The Law of Trusts (2nd ed. 2005), at p. 110.

This is so because equity presumes bargains, notgifts. 25 The presumption of resulting trust therefore alters the general practice that a plaintiff (who [page808] would be the partychallenging the transfer in these cases) bears the legal burden in a civil case. Rather, the onus is on the transferee to rebut thepresumption of a resulting trust. … 27 The presumption of resulting trust is the general rule for gratuitous transfers.

However, depending on the nature of therelationship between the transferor and transferee, the presumption of a resulting trust will not arise and there will be apresumption of advancement instead: see Waters' Law of Trusts, at p. 378. If the presumption of advancement applies, it will fallon the party challenging the transfer to rebut the presumption of a gift. … 36 I am inclined to agree.

First, given that a principal justification for the presumption of advancement is parental obligationto support their dependent children, it seems to me that the presumption should not apply in respect of independent adultchildren. As Heeney J. noted in McLear, at para. 36, parental support obligations under provincial and federal statutes normallyend when the child is no longer considered by law to be a minor: see e.g. Family Law Act, s. 31.

Indeed, not only do child supportobligations end when a child is no longer dependent, but often the reverse is true: an obligation may be imposed on independentadult children to support their parents in accordance with need and ability to pay: see e.g. Family Law Act, s. 32. Second, I agreewith Heeney J. that it is common nowadays for ageing parents to transfer their assets [page812] into joint accounts with theiradult children in order to have that child assist them in managing their financial affairs. There should therefore be a rebuttable

presumption that the adult child is holding the property in trust for the ageing parent to facilitate the free and efficient management of that parent's affairs. [ 51 ] When the parties started living together in early 1995, Ms. Gauvin was the registered owner of the home located at 25 Washington Street in Moncton. [ 52 ] About two months after the parties were married, on July 17, 1987, the title to the property was transferred to Mr. Gauvin and herself. On March 2, 1990, Ms. Gauvin had the title transferred from Mr. Gauvin and herself to solely herself.

Both deeds contained an affidavit under the Marital Property Act stating that the property had been occupied by the parties as their marital home. [ 53 ] Despite the deed in 1990 from Ms. Gauvin and Mr. Gauvin to solely Ms. Gauvin, the residence located at 25 Washington Street in Moncton was the marital home. The couple continued to live there until 2005. I do not accept Ms. Gauvin’s argument that the deed to her in 1990 erased all of Mr. Gauvin’s rights to the marital home and contents. [ 54 ] Following the fire in 2005, which completely destroyed the marital home and its contents, Ms.

Gauvin received funds from the insurance company in her name alone. She received $68,000 for the loss of the residence, $39,253.90 for contents of the home, and $27,016 as a result of the sale of the vacant lot at 25 Washington Street in Moncton. [ 55 ] On November 27, 2006, Ms. Gauvin received $18,600 as a result of the settlement of wrongful dismissal lawsuit involving Sears Canada. This award included general damages and lost wages. [ 56 ] By September 29, 2006, a portion of the funds received from the insurance company were used to buy a lot at Portage Vale. The lot was bought for $10,000.

Title to the property was placed in Cindy Brideau’s name. In the months that followed, extensive work was carried out on the lot to prepare it for the installation of a mini-home. On February 1, 2007, the mini-home was purchased using the proceeds from the fire insurance. Title to the mini-home was placed in Ms. Brideau’s name although she really had nothing to do with the selecting or financing of the home. Then, the mini-home was furnished with furniture and appliances. These were paid for with the proceeds from the insurance company. Ms.

Brideau never lived in the Portage Vale property, nor did she in any way contribute to the acquisition of the home. [ 57 ] On July 5, 2013, after the within litigation was commenced, the mini-home and property were conveyed by Ms. Brideau to a third party. The sum of $96,500 was realized on the sale. According to testimony, Ms. Brideau received some of these funds and Ms. Gauvin received the remainder. At the time of the trial, these funds had been spent. [ 58 ] There is no doubt that the residence at 25 Washington Street, Moncton was occupied by the couple as their marital home.

The proceeds from the sale of the lot and the insurance benefits paid by the insurance company following the fire were used to acquire the Portage Vale property. Then, the Portage Vale property was occupied by the couple as the marital home. The proceeds of the sale from the Portage Vale property were given to Ms. Brideau who then gave about $50,000 to Ms. Gauvin. [ 59 ] The fact that the Portage Vale property, which I have categorized as the marital home, was in Cindy Brideau’s name raises the questions as to whether it was held in trust, an inheritance or a gift. [ 60 ] Ms.

Gauvin said numerous times that the Portage Vale property was in Ms. Brideau’s name as the 25 Washington Street property was to be her inheritance. It was put in Ms. Brideau’s name as she would be the beneficiary when Mr. Gauvin and Ms. Gauvin died. However, an inheritance does not take effect until the donor dies. Therefore, Ms. Brideau could not inherit anything while Mr. Gauvin and Ms. Gauvin were living. [ 61 ] The presumption of advancement that is a gift during the transferor’s lifetime to a transferee who is financially dependent on the transferor does not apply in respect of independent adult children.

In the within matter, Ms. Brideau was an independent adult child living in Dartmouth, Nova Scotia at all relevant times. Accordingly, there is no presumption that the Portage Vale property was a gift to Ms. Brideau.

[62] On the other hand, Mr. Gauvin’s version was that Ms. Brideau held the property in trust for Ms. Gauvin and Mr. Gauvin. Thedeed and documents relating to the purchase of the mini-home do not indicate that the property was held “in trust”. [63] The principle of resulting trust applies when title to the property is in a party’s name but that party, because she was a fiduciaryor gave no value for the property is under an obligation to return it to the original title owner. When the transfer is challenged as it wasmade for no consideration, the transferee has the onus to demonstrate that a gift was intended.

In the case at hand, title to the PortageVale property was registered in Ms. Brideau’s name. She gave no consideration for the property, and she never lived there. Regardingthe intention of Mr. Gauvin and Ms. Gauvin, I cannot conclude that it was their intention to give Ms. Brideau the property and theproceeds from the sale of the property. Rather, I infer it was a scheme by Ms.

Gauvin to attempt to transfer the title of the marital hometo someone else during a period of time when the marriage was not going well and there was a possibility that her spouse might ask thatthe marital property be divided following the anticipated separation of the couple. [64] In

summary, there was no intention by the parties to gift the Portage Vale property to Ms. Brideau. Ms. Brideau was acting onbehalf of the spouses and holding the net proceeds realized from the disposition of the home in trust to be divided equally by thespouses. Ms. Brideau was under an obligation to return the proceeds of the sale to the original owners, that is, Mr. Gauvin and Ms.Gauvin. She appears to have already given Ms. Gauvin her share and she must return Mr. Gauvin’s share. Accordingly, Ms. Gauvin andMrs.

Brideau are jointly and severally liable to return one half of the proceeds of the sale, that is, $48,250 to Mr. Gauvin. [65] Mr. Gauvin is also entitled to one half of the value of the contents of the mini-home which are considered to be maritalproperty. These items were bought after the fire and kept by Ms. Gauvin after the separation. I have used $12,000 as the value of thefurniture and appliances in the mini-home. Once again, Mr. Gauvin is entitled to one-half of the value, that is, $6,000. Accordingly, Ms.Gauvin shall pay Mr. Gauvin $6,000 as his share of the contents of the mini-home.

Spousal support: [66] Ms. Gauvin is requesting a retroactive award of spousal support to be paid by Mr. Gauvin. [67] In determining the request for spousal support, sections 15.2(1), 15.2(4) and 15.2(6) of the Divorce Act are relevant. They readas follows: 15.2

(1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse tosecure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinksreasonable for the support of the other spouse. …

(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration thecondition, 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 aboveany 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. [68] In Bracklow v. Bracklow (SCC), [1999] 1 S.C.R. 420, the Supreme Court of Canada dealt with entitlement to

spousal support. McLachlin, J. (as she then was), wrote the decision for the Court. The following passages found in paragraphs 15, 34,35, 36, 38, 39, and 41 are relevant: 15 ... I conclude, however, that the law recognizes three conceptual grounds for entitlement to spousal support: (1)compensatory; (2) contractual; and (3) non-compensatory.

These three bases of support flow from the controlling statutoryprovisions and the relevant case law, and are more broadly animated by differing philosophies and theories of marriage andmarital breakdown. ... 34 The Divorce Act and the provincial support statutes are intended to deal with the economic consequences of the marriagebreakdown for both parties ... 35 Moge, supra, sets out the method to be followed in determining a support dispute.

The starting point is the objectives whichthe Divorce Act stipulates the support order should serve: (1) recognition of economic advantage or disadvantage arising fromthe marriage or its breakdown; (2) apportionment of the financial burden of child care; (3) relief of economic hardship arisingfrom the breakdown of the marriage, and (4) promotion of the economic self-sufficiency of the spouses: s. 15.2(6). No singleobjective is paramount; all must be borne in mind.

The objectives reflect the diverse dynamics of the many unique maritalrelationships. 36 Against the background of these objectives the court must consider the factors set out in s. 15.2(4) of the Divorce Act.Generally, the court must look at the "condition, means, needs and other circumstances of each spouse". This balancing includes,but is not limited to, the length of cohabitation, the functions each spouse performed, and any order, agreement or arrangementrelating to support. Depending on the circumstances, some factors may loom larger than others.

In cases where the extent of theeconomic loss can be determined, compensatory factors may be paramount. On the other hand, "in cases where it is not possibleto determine the extent of the economic loss of a disadvantaged spouse . . . the court will consider need and standard of living asthe primary criteria together with the ability to pay of the other party": Ross v. Ross (1995), (NB CA), 168N.B.R. (2d) 147 (C.A.), at p. 156, per Bastarache J.A. (as he then was). There is no hard and fast rule.

The judge must look at allthe factors in the light of the stipulated objectives of support, and exercise his or her discretion in a manner that equitablyalleviates the adverse consequences of the marriage breakdown. ... 38 The contractual or consensual basis for support finds its source in s. 89(1)(

b) of the Family Relations Act, which counselscourts to "hav[e] regard to . . . (

b) an express or implied agreement between the spouses that one has the responsibility tosupport and maintain the other", and s. 15.2(4) of the Divorce Act ("In making an order under subsection (1) . . ., the court shalltake into consideration . . . (

c) any order, agreement or arrangement relating to support of either spouse"). Consensualconsiderations may either create or negate an obligation to support, under appropriate circumstances. 39 The compensatory basis for support finds its source in a number of factors mentioned in the statutes. In the BritishColumbia Family Relations Act, these include s. 89(1)(

a) and (d). "[T]he role of each spouse in their family" embraces thecontributions made by the spouses to the family for which compensation may be appropriate on the collapse of the marriage.Similarly, "the ability and capacity of ... either or both spouses to support themselves" permits a court to examine whetherspouses have foregone opportunities to develop the ability to support themselves because of the marriage, or have been renderedless able to support themselves by adverse effects of the marriage or the marriage breakdown.

"[C]ustodial obligations respectinga child" (Family Relations Act, s. 89(1)(c)) may relate to compensation. While spousal support is distinct from child support, theneed to care for children has an impact on factors relevant to spousal support.

Under the Divorce Act, compensation argumentscan be grounded in the need to consider the "condition" of the spouse; the "means, needs and other circumstances" of thespouse, which may encompass lack of ability to support oneself due to foregoing career opportunities during the marriage; and"the functions performed by each spouse during cohabitation", which may support the same argument. In sum, thesecompensatory statutory provisions can be seen to embrace the independent, clean-break model of marriage and marriagebreakdown. ... 41

Section 15.2(6) of the Divorce Act, which sets out the objectives of support orders, also speaks to these non-compensatory

factors. The first two objectives -- to recognize the economic consequences of the marriage or its breakdown and to apportionbetween the spouses financial consequences of child care over and above child support payments -- are primarily related tocompensation. But the third and fourth objectives are difficult to confine to that goal.

"[E]conomic hardship . . . arising from thebreakdown of the marriage" is capable of encompassing not only health or career disadvantages arising from the marriagebreakdown properly the subject of compensation (perhaps more directly covered in s. 15.2(6)(a): see Payne on Divorce, supra, atpp. 251-53), but the mere fact that a person who formerly enjoyed intra-spousal entitlement to support now finds herself orhimself without it. Looking only at compensation, one merely asks what loss the marriage or marriage breakup caused thatwould not have been suffered but for the marriage.

But even where loss in this sense cannot be established, the breakup maycause economic hardship in a larger, non-compensatory sense. Such an

interpretation supports the independent inclusion of s.15.2(6)(

c) as a separate consideration from s. 15.2(6)(a). Thus, Rogerson sees s. 15.2(6)(c), "the principle of compensation for theeconomic disadvantages of the marriage breakdown as distinct from the disadvantages of the marriage", as an explicitrecognition of "non-compensatory" support ("Spousal Support After Moge", supra, at pp. 371-72 (emphasis in original)). [69] Ms. Gauvin argues that she is entitled to an award of spousal support on a compensatory and non-compensatory basis. [70] This is a relationship lasting twenty-three years, which by today’s standards is a long marriage.

During the marriage, Mr.Gauvin always worked outside the home and he was the primary bread winner on which the family relied. At the beginning of therelationship, Ms. Gauvin was not employed outside the home and took care of the household. Afterward, Ms. Gauvin worked as a salesclerk at Sears. Then she worked as a bartender earning minimum wage and tips. During the relationship, Ms. Gauvin was economicallydependent on Mr. Gauvin. At the time of the separation in July of 2008, Ms. Gauvin was 57 years of age and Mr. Gauvin was 53. At thetime of the trial, Ms. Gauvin was 65 and Mr. Gauvin was 61.

Following the separation, Ms. Gauvin worked very little. She collectedsocial assistance, CPP disability benefits, one-half of the CPP credits accumulated by the couple during the marriage and $50 per weekfor doing volunteer work at a homeless shelter. She used the proceeds of the sale of the marital home to meet her needs. When sheturned 65 years of age, she started receiving the Old Age Security. She has suffered economic hardship since the separation of theparties. [71] Ms. Gauvin did not provide any income tax returns for the years 2009 to 2015. The lawyer for Ms.

Gauvin proposed that theproper annual incomes to be used for Ms. Gauvin for the past few years was $20,000, and for Mr. Gauvin, $35,000. [72] Taking into consideration the condition, means, needs, and other circumstances of the spouses and the objectives of a spousalsupport order, I am of the view that Ms. Gauvin has established that she is entitled to an award of spousal support. In fact, counsel forMr. Gauvin did not vigorously oppose entitlement to spousal support. RETROACTIVITY [73] Ms.

Gauvin is asking that I grant a spousal support award retroactive to July 1, 2008. [74] The Ontario Court of Appeal in Bremer v. Bremer (ON CA), [2005] O.J. No. 608 outlines factors to beconsidered when making an award of retroactive spousal support. Paragraph 9 details these as follows: 9 The considerations governing an award of retroactive spousal support include:

i) the extent to which the claimantestablished past need (including any requirement to encroach on capital) and the payor's ability to pay; ii) the underlying basisfor the ongoing support obligation; iii) the requirement that there be a reason for awarding retroactive support; iv) the impact ofa retroactive award on the payor and, in particular, whether a retroactive order will create an undue burden on the payor oreffect a redistribution of capital;

v) the presence of blameworthy conduct on the part of the payor such as incomplete ormisleading financial disclosure; vi) notice of an intention to seek support and negotiations to that end; vii) delay in proceedingand any explanation for the delay; and viii) the appropriateness of a retroactive order pre-dating the date on which theapplication for divorce was issued: see Horner v. Horner, (ON CA), [2004] O.J. No. 4268 (C.A.); Marinangeliv. Marinangeli (2003), (ON CA), 66 O.R. (3d) 40 (C.A.) and Price v. Price, [2002] O.J.

No. 2386 (C.A.). [75] The subject of retroactive spousal support orders was dealt with by the Supreme Court of Canada in Kerr v. Baranow 2011 SCC10 , [2011] 1 S.C.R. 269. The judgment of the Court was delivered by Justice Cromwell. The portions of the decision thatrelate to retroactivity are paragraphs 207 to 212. They read as follows: 207 While D.B.S. was concerned with child as opposed to spousal support, I agree with the Court of Appeal that similarconsiderations to those set out in the context of child support are also relevant to deciding the suitability of a "retroactive" awardof spousal support.

Specifically, these factors are the needs of the recipient, the conduct of the payor, [page361] the reason for thedelay in seeking support and any hardship the retroactive award may occasion on the payor spouse. However, in spousal supportcases, these factors must be considered and weighed in light of the different legal principles and objectives that underpin spousalas compared with child support. I will mention some of those differences briefly, although certainly not exhaustively.

208 Spousal support has a different legal foundation than child support. A parent-child relationship is a fiduciary relationshipof presumed dependency and the obligation of both parents to support the child arises at birth. In that sense, the entitlement tochild support is "automatic" and both parents must put their child's interests ahead of their own in negotiating and litigatingchild support.

Child support is the right of the child, not of the parent seeking support on the child's behalf, and the basic amountof child support under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), (as well as many provincial child support statutes) nowdepends on the income of the payor and not on a highly discretionary balancing of means and needs. These aspects of childsupport reduce somewhat the strength of concerns about lack of notice and lack of diligence in seeking child support. Withrespect to notice, the payor parent is or should be aware of the obligation to provide support commensurate with his or herincome.

As for delay, the right to support is the child's and therefore it is the child's, not the other parent's position that isprejudiced by lack of diligence on the part of the parent seeking child support: see D.B.S., at paras. 36-39, 47-48, 59, 80 and 100-104. In contrast, there is no presumptive entitlement to spousal support and, unlike child support, the spouse is in general notunder any legal obligation to look out for the separated spouse's legal interests. Thus, concerns about notice, delay andmisconduct generally carry more weight in relation to claims for spousal support: see, e.g., M. L.

Gordon, "Blame Over:Retroactive Child and Spousal Support in the Post-Guideline Era" [page362] (2004-2005), 23 C.F.L.Q. 243, at pp. 281 and 291-92. 209 Where, as here, the payor's complaint is that support could have been sought earlier, but was not, there are twounderlying interests at stake. The first relates to the certainty of the payor's legal obligations; the possibility of an order thatreaches back into the past makes it more difficult to plan one's affairs and a sizeable "retroactive" award for which the payordid not plan may impose financial hardship.

The second concerns placing proper incentives on the applicant to proceed with hisor her claims promptly (see D.B.S., at paras. 100-103). 210 Neither of these concerns carries much weight in this case. The order was made effective the date on which the proceedingsseeking relief had been commenced, and there was no interim order for some different amount. Commencement of proceedingsprovided clear notice to the payor that support was being claimed and permitted some planning for the eventuality that it wasordered. There is thus little concern about certainty of the payor's obligations. Ms.

Kerr diligently pursued her claim to trial andthat being the case, there is little need to provide further incentives for her or others in her position to proceed with morediligence. 211 In D.B.S., Bastarache J. referred to the date of effective notice as the "general rule" and "default option" for the choice ofeffective date of the order (paras. 118 and 121; see also para. 125). The date of the initiation of proceedings for spousal supporthas been described by the Ontario Court of Appeal as the "usual commencement date", absent a reason not to make the ordereffective as of that date: MacKinnon v.

MacKinnon (2005), (ON CA), 75 O.R. (3d) 175, at para. 24. While inmy view, the decision [page363] to order support for a period before the date of the order should be the product of the exercise ofjudicial discretion in light of the particular circumstances, the fact that the order is sought effective from the commencement ofproceedings will often be a significant factor in how the relevant considerations are weighed.

It is important to note that, inD.B.S., all four litigants were requesting that child support payments reach back to a period in time preceding their respectiveapplications; such is not the case here. 212 Other relevant considerations noted in D.B.S. include the conduct of the payor, the circumstances of the child (or in thecase of spousal support, the spouse seeking support), and any hardship occasioned by the award. The focus of concern aboutconduct must be on conduct broadly relevant to the support obligation, for example, concealing assets or failing to makeappropriate disclosure: D.B.S., at para. 106.

Consideration of the circumstances of the spouse seeking support, by analogy to theD.B.S. analysis, will relate to the needs of the spouse both at the time the support should have been paid and at present. Thecomments of Bastarache J. at para. 113 of D.B.S. may be easily adapted to the situation of the spouse seeking support: "A[spouse] who underwent hardship in the past may be compensated for this unfortunate circumstance through a retroactiveaward.

On the other hand, the argument for retroactive [spousal] support will be less convincing where the [spouse] alreadyenjoyed all the advantages (s)he would have received [from that support]". As for hardship, there is the risk that a retroactiveaward will not be fashioned having regard to what the payor can currently afford and may disrupt the payor's ability to managehis or her finances.

However, it is also critical to note that this Court in D.B.S. emphasized the need for flexibility and a holisticview of each matter on its own merits; the same flexibility is appropriate when dealing with "retroactive" spousal support. [76] The parties have been separated since July of 2008. Since then, Ms. Gauvin has been a recipient of social assistance and CPPbenefits. Lately, since turning 65 years of age in 2016, she has collected Old Age Security. I conclude that Ms.

Gauvin had a past needfor spousal support as her primary source of income consisted of government benefits. [77] When the hearing took place, Ms. Gauvin stated that she had no funds left as a result of the sale of the Portage Vale property. Infact, she had credit card debts of about $25,000 and a debt to Canada Revenue Agency of about $8,000.

[ 78 ] I am of the view that Ms. Gauvin has established that the basis for the spousal support award is both compensatory and non- compensatory. [ 79 ] Notice of Ms. Gauvin’s request for spousal support was made in July of 2009 when she filed the Answer to the Petition for Divorce in which she requested spousal support. Once Ms. Gauvin filed the Answer, Mr. Gauvin was aware that she was requesting spousal support. [ 80 ] The date set for the hearing of the within matter was rescheduled three times.

This was not the fault of the parties but rather a function of a heavy docket filled with time sensitive child protection cases. [ 81 ] Mr. Gauvin has since 2008 to 2016 earned from $32,000 per year to $38,000 from his place of employment. A retroactive award could be a hardship to him. I do believe the award can be crafted in such a way as to minimize such hardship. On the other hand, Ms.

Gauvin has had to live on a much lower income and has certainly endured financial hardship herself while waiting for a court date and this decision. [ 82 ] Regarding disclosure of documents, I cannot find any blameworthy conduct on the part of Mr. Gauvin, as he provided income tax returns and financial disclosure. It is Ms. Gauvin who has not provided her income tax returns for the years she is requesting spousal support. [ 83 ] The Kerr v.

Baranow decision speaks of the date of effective notice being the “general rule” and “default option” for the choice of effective date of the order. [ 84 ] Taking a holistic view of the facts in this case, I am of the view that a retroactive award of spousal support should commence January 1, 2010, that is, six months after Ms. Gauvin filed an Answer in which she requested spousal support. [ 85 ] Neither party has submitted any software calculation of the proposed spousal support as per the Spousal Support Advisory Guidelines , prepared by Prof. Carol Rogerson and Prof.

Rollie Thompson, July 2008, Department of Justice, Canada. However, I have used the Divorcemate software which produces a range of monthly spousal support amounts. The data imputed include the fact that this was a twenty-three year relationship and Ms. Gauvin was 57 years old at the date of separation. She has been deemed disabled for the purposes of CPP disability since 2011. Counsel for Ms. Gauvin indicated that using $35,000 for Mr. Gauvin’s income and $20,000 for Ms. Gauvin’s income would be appropriate.

Using these annual incomes, the Without Child Support Formula produces the following monthly spousal support: Low Mid High $431 $503 $575 I have used these numbers as a guide only as a lump sum award is appropriate in these circumstances. These parties need a clean break from one another. As well, Ms. Gauvin is never going to pay Mr. Gauvin the marital property award I have made against her as she is judgment proof. [ 86 ] I am of the view that a spousal support award of $6,000 per year, commencing January 1, 2010 is appropriate. Mr.

Gauvin is now 61 years of age and I anticipate he will retire when he will be between 65 to 67 years old at which time his annual income will decrease substantially. Therefore, a lump sum spousal support award is awarded for twelve years at $6,000 a year from 2010 to 2021, that is, $72,000. [ 87 ] This amount will be paid as a lump sum and should be reduced given that normally the monthly spousal award is tax deductible to the payor and tax inclusive to the recipient. [ 88 ] Regarding tax issues when retroactive spousal support is awarded as a lump sum, the SSAG give guidance on this topic.

Page 113 of the SSAG, The Revised User’s Guide, February 2016 is relevant in this regard and reads as follows: (

c) Tax issues

Retroactive spousal support is paid in the form of a lump sum. Ordinarily, lump sum spousal support is neither deductible to the payor, nor taxable in the hands of the recipient. This means that any calculation of periodic spousal support, or increased support, must be discounted or netted down to arrive at an after-tax amount. For cases where this discounting is discussed, see Hume v.

Tomlinson, 2015 ONSC 843 ; Samoilova v Mahnic, 2014 ABCA 65 (retroactive lump sum support 2004-08 calculated using mid-point SSAG, initially no adjustment for tax, subsequently discounted by 30%; appeal dismissed; the discount rate the judge chose was an average of the parties' respective marginal tax rates and was reasonable, based on the evidence); Robinson v. Robinson, 2012 BCCA 497 ; and Patton - Casse v. Casse , 2011 ONSC 6182 (supplementary reasons to 2011 ONSC 4424 ) (balance between respective tax positions of parties necessary).

See also the discussion of discounting lump sums arrived at in restructuring prospective support under “Restructuring”, above. There is now an additional method of resolving these tax issues in the case of retroactive support. In 2013, the Tax Court ruled in James v. Canada, 2013 TCC 164 , that a large lump sum retroactive top-up payment ordered by the B.C. Court of Appeal could be deducted by the husband. The Canada Revenue Agency has now accepted the policy underlying this decision, in its Income Tax Folio S1-F3-C3, which was updated effective March 5, 2015 (these Folios replace the older

Interpretation Bulletins, in this case IT-530R). The payor is permitted to deduct the lump sum payment where it can be identified that: ▪ the lump sum payment represents amounts payable periodically that were due after the date of the order or written agreement that had fallen into arrears, or ▪ the lump sum amount is paid pursuant to a court order that establishes a clear obligation to pay retroactive periodic maintenance for a specified period prior to the date of the court order.

In these cases, the recipient who must pay tax can complete Form T1198 (Statement of Qualifying Retroactive Lump-Sum Payment) and CRA will adjust the recipient’s relevant prior year taxes, to reduce the impact of the one-time payment. At the time of any settlement or order, it will be necessary to make an estimate of the tax implications for both parties, if this option is chosen. For a judicial reference to this tax method, see Frank v. Linn, 2014 SKCA 87 . [ 89 ] In other words, the SSAG are premised on periodic spousal support awards being tax deductible by the payor and taxable in the hands of the recipient.

This is not always the case for lump sum awards. [ 90 ] In the case at hand, I will adjust the lump sum award as my intent is to set off the marital property award against the spousal support award. In order to do so, I have discounted the award by the marginal tax rate of the parties. Having verified the federal and provincial income tax rates for individuals earning $40,000 or less, I am of the view that deducting the lump sum award by 25% is appropriate in these circumstances. [ 91 ] Therefore the lump sum award of $72,000 is deducted by 25% meaning that Mr.

Gauvin shall pay a lump sum spousal support of $54,000. COSTS [ 92 ] In this matter, Mr. Gauvin was successful in his claim regarding the division of marital property and Ms. Gauvin was successful in her claim regarding spousal support. [ 93 ] Given that both parties have been equally successful, each will be responsible to support his or her costs. DISPOSITION

[ 94 ] I order as follows:

a) Ms. Gauvin and Ms. Brideau are jointly and severally responsible to pay the sum of $48,250 to Mr. Gauvin for his share of the marital home.

b) Ms. Gauvin shall pay $6,000 to Mr. Gauvin for his share of the contents of the home.

c) Mr. Gauvin shall pay a lump sum spousal award to Ms. Gauvin of $54,000.

d) The parties shall set off the amounts owing to one another.

e) Each party shall be responsible for his or her costs disbursements. DATED at Moncton, New Brunswick this 19 th day of October, 2016. ___________________________________ Colette d’Entremont Justice of the Court of Queen’s Bench New Brunswick, Family Division