Roach v. McNeil, 2014 NSSC 112

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Roach v. McNeil, 2014 NSSC 112 Date: 20140407 Docket: 75305 Registry: Sydney Between: Joseph Roach Applicant v. Kathryn McNeil Respondent Revised Decision : The date of the written decision has been corrected on April 10, 2014 and this decision replaces the previously distributed decision. Judge: The Honourable Justice Theresa M.

Forgeron Heard: May 13 and 14; August 6; and September 19, 2013, in Sydney, Nova Scotia Submissions Received: October 18, 24, 31, and November 1, 2013 Written Decision: April 7, 2014 Counsel: William Burke, for the applicant Kathryn McNeil, on her own behalf By the Court: [ 1 ] Introduction [ 2 ] Cutting electrical wires, disconnecting the hot water and the heat, tampering with the clothes dryer, nailing shut windows,

and locking food in a cage are examples of the bitter and tumultuous unravelling of the common law union of Joseph Roach and Kathryn McNeil. In the aftermath, the court is now left to determine issues related to parenting, maintenance, property division, and debt division.

Unfortunately, the financial issues are considerably more unsettled given the absence of a suitable legislative framework. [ 3 ] Issues [ 4 ] The following issues will be determined in this decision: ∙ What parenting plan is in the best interests of the parties ’ son, Liam? ∙ What is the appropriate child support order? ∙ What is the appropriate spousal support order? ∙ What relief should be granted under the provisions of the Partition Act ? ∙ Has Ms. McNeil proven a claim of unjust enrichment? If so, what remedy is appropriate? [ 5 ] Background [ 6 ] Mr. Roach and Ms.

McNeil commenced a relationship in December 1996. At the time, Ms. McNeil was employed; she also received child support and government benefits for her four children. Mr. Roach was likewise employed. Further, Mr. Roach paid child support for his daughter from a previous relationship. Mr. Roach later adopted Liam, Ms. McNeil ’ s youngest child. [ 7 ] In the summer of 1997, Mr. Roach moved in with Ms. McNeil, and her children, in the home which Ms. McNeil owned. This home was situate at Brodie Avenue, Glace Bay. Mr. Roach did not contribute to the acquisition or maintenance of the home.

Only inconsequential renovations were effected on the Brodie Avenue property after Mr. Roach moved in with Ms. McNeil. [ 8 ] An informal financial arrangement evolved between the parties. There were no joint accounts or joint debt. For the most part, Ms. McNeil paid for the expenses associated with the home and children. Ms. McNeil and Mr. Roach each paid for groceries. The parties equally shared the payment of the van loan. At times, one party would loan money to the other; this money usually would be repaid. Gifts were also exchanged.

There was little intermingling of finances. [ 9 ] Seven years later, in 2004, the parties decided to purchase a home at 70 Park Street, Glace Bay. The home was in significant need of repair; the home was a “ fixer-upper. ” The home was placed in the joint names of the parties. Extensive renovations were effected on 70 Park Street. [ 10 ] The purchase and renovation of the Park Street property were financed from two sources. First, the parties acquired a mortgage held in their joint names in the amount of $65,000. Second, Ms.

McNeil sold the Brodie Avenue property and applied the net sale proceeds, approximately $20,000, to the Park Street property, including the acquisition of household items. Mr. Roach, together with family members, physically provided the labour to effect many of the renovations. [ 11 ] After the Park Street property was acquired, the parties opened a joint account to pay for the mortgage. Each also retained separate bank accounts. A joint line of credit was likewise acquired to pay for the construction of a garage. Further, Ms. McNeil required a vehicle for work.

She was a continuing care assistant who travelled to her clients ’ homes. The car and corresponding car loan

were placed in the joint names of the parties. In addition to the joint debts, each party held various credit cards in their own names. [ 12 ] Between 2004 and November 2010, Ms. McNeil ’ s pays were deposited into the joint account. Mr. Roach was responsible for paying the various bills from the joint account. He was the financial manager. Both parties equally paid the mortgage and line of credit, for the most part. Ms. McNeil paid the car loan, usually from employment mileage claims, and other household accounts. Mr.

Roach was also paying household accounts. [ 13 ] The household operation changed as the parties ’ relationship began to deteriorate. As an example, on December 1, 2009, an insurance cheque, made payable to both parties, issued in the amount of $9,293.73. Mr. Roach did not advise Ms. McNeil of the cheque. Mr. Roach deposited the cheque in the joint account on December 1, 2009 and then immediately transferred $9,294 into an account, held in his name alone. [ 14 ] In approximately October 2010, Ms. McNeil discovered that Mr. Roach was only contributing minimally to the joint account. As a result, Ms.

McNeil stopped depositing her pays into the joint bank account. She stopped paying on the mortgage, line of credit, and other bills in November, 2010. [ 15 ] On April 14, 2011, Mr. Roach commenced a court application seeking custody, child support, exclusive occupation of the residence, and a division of assets under the Matrimonial Property Act . Ms. McNeil filed a response on June 20, 2011. [ 16 ] In July 2011, the vehicle which Ms. McNeil used for work was repossessed. Mr. Roach later made arrangements with the creditor to pay ½ of the outstanding deficiency judgement. Ms. McNeil did not pay the balance. Ms.

McNeil had no transportation for work. Her attempts at financing a new car met without success. [ 17 ] In August 2011, Ms. McNeil was issued an ROE from her employer. The ROE stated that Ms. McNeil ’ s employment was terminated because of illness, which was supported by medical evidence according to Ms. Walker, the book keeper for Cape Breton County Homemakers, where Ms. McNeil was employed. In order to return to work, Ms. McNeil must file appropriate medical documentation. [ 18 ] The home environment at 70 Park Street became increasingly difficult as the parties ’ relationship soured.

Rather than approaching the dissolution of their relationship, in a mature, reasonable, and rational manner, the parties adopted a vindictive and bitter approach. Liam was placed in the middle of the conflict. [ 19 ] At some point, the situation went from difficult to dangerous. Mr. Roach nailed shut the basement window, thus blocking an emergency exit route. He also built a bed of nails and placed it on the basement window where the boys ’ bedrooms were located. Mr. Roach tampered with the clothes dryer to prevent heat from being discharged. Someone cut electrical wires, and also tampered with the hot water.

I infer that Mr. Roach was responsible for this risky activity. Mr. Roach also locked up food in cages so that no one else in the house could access his food. Finally, various areas of the house sustained water damage. Mr. Roach did not cooperate with the insurance claim process. The living conditions at 70 Park Street were desperate. [ 20 ] After the court file was processed through conciliation, a date assignment conference was held on January 25, 2012. This court advised that the Matrimonial Property Act claim could not succeed because the parties were neither married, nor registered.

Filing directions were provided for disclosure; hearing dates were assigned. Mr. Roach filed an amended notice of application on February 7, 2012, where he sought relief under the provisions of the Partition Act . [ 21 ] On July 19, 2012, Ms. McNeil filed an emergency, ex parte motion. Although the court refused to proceed on an ex parte basis, given the nature of the emergency, the matter was heard on an inter partes basis, with abbreviated notice, on July 20, 2012. An interim order issued granting the following relief: ∙ Ms.

McNeil was awarded interim exclusive occupation of the Park Street property under the provisions of the Maintenance and Custody Act . Mr. Roach was ordered not to attend the property, or enter the residence. Arrangements were made for Mr. Roach to receive his personal belongings.

∙ Each party was directed to pay one half of the mortgage and taxes during the operation of the interim order. ∙ Mr. Roach was required to pay spousal support of $300 per month and $452 per month in child support. Mr. Roach was to name Liam and Ms. McNeil on his employment medical/dental plan. [ 22 ] The final hearing was scheduled for October 18 and 19, 2012. On October 18, 2012, Ms. McNeil requested an adjournment. Ms. McNeil advised that although she qualified for legal aid, no lawyer was available to represent her. The adjournment request was contested, but ultimately granted, subject to Ms. McNeil paying Mr.

Roach $1,000 costs, payable in the cause. [ 23 ] The hearing was eventually rescheduled for May 13 and 14, 2013. On April 23, 2013, the court granted the motion of Ms. Donnelly-McDonald to withdraw as solicitor of record for Ms. McNeil. Ms. McNeil indicated that she would be representing herself. [ 24 ] During the course of the hearing, the parties agreed on a division of household and garage contents. They further agreed that each would retain their respective pension/RRSP plans, without equalization to the other.

These agreements are accepted and are to be incorporated into the final order. [ 25 ] The hearing was not completed on May 13 and 14. Additional trial dates were secured for August 6, and September 19, 2013. The following witnesses testified: Katherine Ford, Bryce McNeil, Jordan McNeil, Laura Walker, Joseph Roach, Jolene Antle, and Kathryn McNeil. At the conclusion of the hearing, the parties were assigned dates for filing written submissions. The last submission was received on November 1, 2013. [ 26 ] In her submissions, Ms. Roach raised an issue not canvassed during the trial related to her health records.

This was not appropriate and will not be addressed in this decision. [ 27 ] Analysis [ 28 ] What parenting plan is in the best interests of the parties ’ son, Liam? [ 29 ] Liam is 17 years old. There was little contest on the parenting issue. Given the hostilities and inability to communicate, an order of sole custody is granted to Ms. McNeil. Mr. Roach is granted access to Liam based upon arrangements that he and Liam make. Mr.

Roach will continue to have access to Liam ’ s school and medical records, subject, of course, to the privacy rights of a 17 year old. [ 30 ] The court hopes that in the future the parties will focus less on their own conflict, and more on the needs of Liam. Liam has been exposed to much hostility, bitterness, and anger because of the parties ’ inability to prioritize Liam ’ s needs. The parties are encouraged to amend their ways. [ 31 ] What is the appropriate child support order? [ 32 ] The parties agreed that Mr. Roach will pay child support according to the Guidelines . Mr.

Roach is employed as a manager of a local small business. His 2012 notice of assessment shows a total income of $55,195. Child support for one child is thus payable at a rate of $465 per month, commencing April 1, 2014, and continuing monthly thereafter. [ 33 ] An order will also issue for

section 7 health expenses. Liam has a medical condition, which in the past, required medication, and at times, attendance at a hospital in Halifax. The order will therefore include a provision that the parties will pro-rate health and dental related expenses for Liam, that exceed insurance reimbursement by at least $100 annually. The pro-rata distribution will be based upon an income of $55,195 to Mr. Roach, and $35,000 to Ms. McNeil. Thus, Mr. Roach is responsible for 61% of any health and dental expenses, while Ms. McNeil is responsible for 39%. Mr. Roach must pay his share of the health and dental expenses to Ms. McNeil 30

days after being presented with a copy of the receipt. Any tax benefit will also be shared on the same pro-rata basis. [ 34 ] Mr. Roach must further reimburse Ms. McNeil for all insurance claims which she processes through Mr. Roach ’ s health plan, upon receipt. Mr. Roach must continue to name Liam on his health plan for so long as the health plan permits, and must provide Ms. McNeil with relevant forms, inclusive of the health plan number, so she can access the health plan for Liam. [ 35 ] What is the appropriate spousal support order? [ 36 ] Position of the Parties [ 37 ] Mr. Roach states that Ms.

McNeil is not entitled to spousal support, effective September 2012, about six weeks after the interim order issued. Mr. Roach states that Ms. McNeil was physically and emotionally capable of gainful employment since September 2012. Ms. McNeil remains an employee of the Cape Breton County Homemakers, despite the issuance of a ROE. Ms. Walker indicated that Ms. McNeil would gross approximately $34,000 to $36,000 per annum, depending on the amount of overtime earned, as a CCA. Ms. Walker stated that Ms. McNeil is a union member; all that is required to return to work is a medical certificate. When employed, Ms.

McNeil is also paid mileage for travel. [ 38 ] In contrast, Ms. McNeil seeks spousal support until she completes her electrical training. Ms. McNeil notes that she is currently attending the Nova Scotia Community College, Marconi campus, and is taking an electrical course. She asks that spousal support continue. [ 39 ] Law [ 40 ]

Section 3 of the Maintenance and Custody Act provides the court with the jurisdiction to order maintenance as between common law partners.

Section 4 of the Act sets out compensatory, non-compensatory, and contractual factors to be considered when determining a maintenance application. These factors are as follows: Factors considered 4 In determining whether to order a person to pay maintenance to that person's spouse or common-law partner and the amount of any maintenance to be paid, the court shall consider (

a) the division of function in their relationship; (

b) the express or tacit agreement of the spouses or common-law partners that one will maintain the other; (

c) the terms of a marriage contract or separation agreement between the spouses or common-law partners; (

d) custodial arrangements made with respect to the children of the relationship; (

e) the obligations of each spouse or common-law partner towards any children; (

f) the physical or mental disability of either spouse or common law partner;

(

g) the inability of a spouse or common-law partner to obtain gainful employment; (

h) the contribution of a spouse or common-law partner to the education or career potential of the other; (

i) the reasonable needs of the spouse or common-law partner with a right to maintenance; (

j) the reasonable needs of the spouse or common-law partner obliged to pay maintenance; (

k) the separate property of each spouse or common-law partner; (

l) the ability to pay of the spouse or common-law partner who is obliged to pay maintenance having regard to that spouse's or common-law partner's obligation to pay child maintenance in accordance with the Guidelines; (

m) the ability of the spouse or common-law partner with the right to maintenance to contribute to his own maintenance. R.S., c. 160, s. 4; 1997 (2nd Sess.), c. 3, s. 3; 2000, c. 29, ss. 5, 8 . [ 41 ] Further,

section 5 of the Act states that a common law partner has an obligation to assume responsibility for his/her own maintenance, unless it would be reasonable to require the other common law partner to continue to bear the responsibility.

Section 6 of the Act outlines the factors to be considered which would reduce or forfeit the right to maintenance. [ 42 ] Decision [ 43 ] Spousal support will be reduced to $1 a month effective April 1, 2014, and continuing every month thereafter until the Park Street property is sold, as will be discussed later in this decision. After the property is sold, the obligation of Mr. Roach to pay spousal support to Ms. McNeil will terminate. In addition, I will not grant a retroactive adjustment to spousal support as claimed by Mr. Roach.

My reasons for reaching this decision are as follows: ∙ Although both parties maintained full time employment during the course of their lengthy common law relationship, Ms. McNeil was primarily responsible for the care of Liam and the home. ∙ Ms. McNeil ’ s primary responsibility for the home and Liam enabled Mr. Roach to concentrate on his career. Mr. Roach manages several stores in the local area. Mr. Roach ’ s income is greater than the income of Ms. McNeil. ∙ Liam continues to reside with his mother; Ms. McNeil is solely and extensively responsible for Liam ’ s care.

Liam does not have a relationship with his father. Mr. Roach assumes no parenting role. ∙ Although neither party is currently facing physical or mental health challenges, the court acknowledges the problems which arose because of the household conflict. This conflict negatively impacted Ms. McNeil and Liam. Further, as a result of the strife, Ms. McNeil ’ s vehicle was repossessed and she had no vehicle for work purposes. Ms. McNeil ’ s ability to secure credit for another vehicle was impacted because of her poor financial circumstances. Ms. McNeil required transitional maintenance. ∙ Mr.

Roach was not able to maintain Ms. McNeil on his health plan as ordered. ∙ Ms. McNeil applied for a few jobs after she lost her vehicle, but made minimal efforts to return to work as a CCA, or otherwise.

∙ The means and needs of the parties have been reviewed. I note that Mr. Roach uses a company vehicle, at no cost to him. Thisenhances his financial circumstances. I also note that Mr. Roach continues to support his daughter from another relationship; thisimpacts on his ability to pay. I reviewed the expenses of the parties, and have made adjustments based upon the evidence, and thecourt’s determination as to the parties’s reasonable needs. ∙ I have reviewed the property and debt situations of the parties and their current financial circumstances. I note, in particular, thatMs.

McNeil’s financial circumstances appear to be difficult, given her debt load. Insufficient evidence was led to prove why this debtwas incurred. ∙ Ms. McNeil obtained a student loan to finance the electrical course that she is taking. She is doing well in her studies. ∙ The evidence does not support a finding that Ms. McNeil is engaged in a course of conduct that repudiated the common lawrelationship, or that she is cohabiting with another person in a conjugal relationship, or that any factors exist which extinguish her right tospousal support. ∙ The $300 spousal support obligation is tax deductible to Mr.

Roach, and tax inclusive to Ms. McNeil. The interim order was notappealed. It should not be adjusted retroactively. The amount of interim maintenance is not substantial, especially in light of the taxtreatment. ∙ Any requirement to pay, or adjust, maintenance would negatively impact on Liam. Liam has endured enough difficulties andchallenges; a further reduction in his standard of living is not appropriate. ∙ A nominal maintenance order is required to allow Ms. McNeil, and therefore Liam, to exclusively use and occupy the Park Streetproperty pending its sale, given the legislative restrictions found in

section 7 of the Maintenance and Custody Act, and in the absence oflegislative authority to order such relief under the provisions of the Partition Act, where a sale, and not a partition, has been granted, aswill be discussed later in this decision. The court is not willing to expose Liam to further danger by permitting Mr. Roach to return to thePark Street property. Past history confirms that a toxic environment will likely be produced if Mr. Roach returns to the Park Streetproperty. [44] What relief should be granted under the provisions of the Partition Act? [45] Position of the Parties [46] Mr.

Roach seeks to have the home sold. In addition, he seeks an equal division of the sale proceeds, subject to a number ofadjustments for bills that he paid, and debt that he states is owed to him by Ms. McNeil. He also seeks occupation rent. [47] Ms. McNeil seeks to acquire Mr. Roach’s interest in the joint property, without making an equalization payment to him. Ms.McNeil seeks an unequal division in her favour in light of her greater contributions to the acquisition and maintenance of the home. [48] Available Remedies [49] In Allen v.

Carver, (1981) (NS CA), 44 NSR (2d) 345 (C.A.), MacKeigan, CJNS reviewed the historicalbackdrop of the Partition Act. He notes that the Act, in its modern form, is based upon the 1851 revised statute, the provisions of whichhave continued, with only minor changes to the present day: para. 27.

An Act based upon the social conditions of 1851 is not one that is

ideally suited to the resolution of property rights arising from the break down of conjugal relationships in the 21 st century. It is, nonetheless, the Act that applies, given the current legislative vacuum. [ 50 ]

Section 4 of the Partition Act provides two principle remedies. The first, and the preferred remedy, is the partition of real property, which is legislatively delegated as the responsibility of court-appointed commissioners pursuant to ss. 17 and 18 of the Act : MacMillan v. MacMillan , 2013 NSSC 393 , para. 53 . The detailed procedures and processes to be followed by commissioners are outlined in ss.19 to 24 and 29 to 32 of the Act.

Under s. 24(1) of the Act , Commissioners have the authority, in specified circumstances, to “ ... set off to any one of the parties who will accept it, upon payment by him to any one or more of the others of such compensation as the commissioners determine. ” [ 51 ] The second option is the sale of real property as ordered by the court pursuant to s.28(1)(

a) of the Act . This

section does not authorize a buy out as between property owners; nor is the right to a set off found in s.28(1)(a).

Section 28 states as follows: Sale of land 28

(1) Where (

a) the land, or any part thereof, cannot be divided without prejudice to the parties entitled; or (

b) any party is, by reason of infancy, insanity or absence from the Province, prevented from accepting such land, or part thereof, incapable of division under this Act, the Court or a judge may order that such land shall be sold after such notice and in such manner as the Court or judge directs, and that the net proceeds of such sale shall be divided among the parties entitled.

(2) Such order may be made instead of an order appointing commissioners for the division of the land, or may be made at any time subsequent to such an order.

(3) Every person interested, and every encumbrancer, shall have at least two days notice of the application for the sale of such land, but if from infancy, insanity or absence from the Province, or other cause, actual notice cannot be given, the Court or judge shall direct such notice to be given by service on a guardian, or by publication, or otherwise, as is deemed best.

(4) Such sale may be made and the deed executed by the sheriff of the county in which the land lies, or by an auctioneer, or such other person as is mentioned in the order, or the land may be conveyed to the purchaser by a vesting order to be made by the Court or a judge, and the purchaser of the land shall acquire, by such deed or vesting order, all the interest and title of all persons interested in the said land, and of all such encumbrancers.

(5) Where the share of any person interested in such land, so ordered to be sold, is subject to dower or to encumbrances, appearing from the certificate of the registrar of deeds for the registration district in which the land lies, or where any person entitled to a share is an unknown person, an infant or insane person or is absent from the Province, and was not personally served, the share of any such person in the proceeds of the sale shall be paid into court, or to such persons and according to such priorities, and in such amounts, as the Court or judge directs.

R.S., c. 333, s. 28. [ 52 ] The fact that s. 28 does not permit set off is confirmed in Allen v. Carver , supra , wherein MacKeigan, CJNS, juxtaposed the distinction between the right of set off under the Probate Act and the Partition Act . He noted that in the former, set off was made by a judge of Probate, and in the latter, by commissioners at para. 28, which provides as follows:

28 Our Probate Act, R.S.N.S. 1967, c. 238, ss. 84-102, contains provisions with similar purpose and effect, and similar old origin: R.S.N.S. 1851, c. 130 — but with the important difference, which may have led to some of the confusion in the present case, that the set-off of indivisible lands is made under the Partition Act by the commissioners, confirmed by the Court, but under the Probate Act is made by the judge of Probate after valuation by commissioners . [ 53 ] Further, MacKeigan, CJNS, applied an 1873 decision which rejected the suggestion that an owner who bid the highest amount for disputed land should be entitled to acquire it on a sale, at para. 33, which states as follows: 33 In Lecain v.

Hosterman , supra, the Court preferred allotment by set-off to judicial sale. Commissioners had allotted to the eldest Hosterman a lot for $25,000, which contained his homestead and a nail factory operated by water power. The Court rejected the complaint by the plaintiff that he would have been willing to pay $27,000 for the property and confirmed the report and allotment.

At p. 180, McCully J., for the Court said: Had the statute prescribed as the mode of disposing of lands unfit for division that they should be allotted to the party who would offer the highest price, then the rich man would always, if so inclined, be able to dispossess the poorer occupant, no matter what his attachments to the ancestral home, or what the loss or inconvenience of removing expensive machinery in a factory, however extensive, unattached to the freehold. [ 54 ] Finally, MacKeigan, CJNS, confirmed that a judge had no authority to independently order a partition set off at para. 39, which states as follows: 39 The order of May 27, 1980, is, of course, indefensible, having been made ex parte with no notice of any kind.

It is, in any event, a nullity in purporting to confirm the invalid report and "the partition of the lands", where no partition of any kind had been made. Finally, I can find no authority or statute which gives a judge any power independently to order a partition set-off and to issue a vesting order in these circumstances. [ 55 ]

Section 3 of the Act is arguably a potential solution to the court ’ s lack of jurisdiction to order a set off or buy out.

Section 3 states as follows: Jurisdiction of Supreme Court preserved 3 The provisions of this Act shall not restrict the jurisdiction and powers of the Supreme Court, possessing the jurisdiction and powers of the former Court of Chancery in England as to the partition of land, but shall be construed as enlarging the same. R.S., c. 333, s. 3. [ 56 ] Unfortunately, this argument appears to be without merit. In Ontario Power Co. v.

Whattler , 1904 CarswellOnt. 180, (Ont.Div.Ct.) , Meredith, C.J, on appeal, noted the jurisdictional limitations of the Court of Chancery, at paras. 3 to 6, which provide as follows: 3 Before the English Partition Act of 1868 Was passed, there was no jurisdiction in the Court of Chancery, unless with the consent of the parties, to direct a sale instead of a partition, although that Court had had for very many years jurisdiction, and perhaps an exclusive one, to decree partition. 4 [Review of the legislation in Upper Canada: 3 Wm. IV. ch. 2; 4 Wm.

IV. ch. 1, sec. 39; 13 & 14 Vict. ch. 50; 14 & 15 Vict. ch. 6; 20 Vict. ch. 65; C. S. U. C. ch. 86; 32 Vict. ch. 33.] 5 The existing statute law, R. S. O. 1897 ch. 123, is, apart from some minor amendments, to which it is not necessary to refer,

substantially the same as 32 Vict. ch. 33. 6 It was under the authority from time to time conferred by these various statutes that the Court of Chancery acquired jurisdiction to direct a sale instead of a partition, and it is under the provisions of R. S.

O. ch. 13, and secs. 64, 65, and 66 of the Devolution of Estates Act, and secs. 33 and 40 of the Judicature Act, that the High Court has now that jurisdiction, there being . . . apart from that conferred by statute, no jurisdiction to order a sale instead of a partition of lands held in joint tenancy, tenancy in common, or co-parcenery. [ 57 ] Further, this court could find no text, including historical texts, nor manuals, nor case law that suggest that the Court of Chancery had the jurisdiction to order a buy out or set off as between the co-owners.

I, therefore, unfortunately conclude that my jurisdiction is limited by the bounds of the Act . I draw this conclusion despite the family law decisions which have taken a pragmatic approach to the contrary, and which cases authorize buy outs and set offs as between co-owners. From my perspective, I can either appoint commissioners to have the parties ’ property partitioned, or I can order the property sold. There is no third option. [ 58 ] The problematic result posed by the Nova Scotia Act has been avoided in other jurisdictions.

For example, Prince Edward Island, in its Real Property Act , RSPEI 1988, c R-3, provides the court, and not a commission, with the authority to order a set off, and also provides the court with the authority to allow co-owner buy outs when requested. British Columbia, in its Partition of Property Act , RSBC 1996, c 347, authorizes the court to order a buy out between co-owners if an owner undertakes to purchase the share of a party requesting the sale. Similar language is found in the Newfoundland Conveyancing Act , RSNL 1990, c C-34. [ 59 ] Partition or Sale [ 60 ] Section 28(1)(

a) of the Act states that where land cannot be divided without prejudice to the parties, the court may order the land sold. I find that the Park Street property cannot be divided without prejudice to the parties for the following reasons: ∙ The parties have limited financial resources; they are not in a position to pay the additional costs associated with the appointment of commissioners and the partition process. ∙ The lot contains a home and garage that is a single family unit and is situate in the town of Glace Bay.

I have no evidence that such a lot is capable of division. ∙ The partition process is a lengthy one, and one which requires ongoing communication between the parties. Given their volatile history, such a process should be avoided where possible. [ 61 ] Further, in Deloisio v. Dolejs [1994] N.S.J. No. 565 (C.A.) , Hallett, J. held that a trial judge did not have a duty to consider partition when only a sale had been sought in the pleadings, and erred in so doing. No request for partition was advanced in the case before me. [ 62 ] Terms of Sale [ 63 ] Case law reveals two options for sale orders.

One option was discussed in Lynch v. Nova Scotia (Attorney General) 1987 CarswellNS 535 (T.D.) . Hallett, J., as he then was, ordered a sale “ in a manner much as is done in foreclosure sales ” : para. 2. This process would engage advertisements and a Sheriff. The other option is to sell through a realtor. In Finanders v. Finanders , 2005 NSSC 145 (S.C.) , Edwards, J. ordered the disputed property to be sold through a listing agent.

If the parties could not agree on a listing price, agent, or the acceptance of an offer, the matter was to be referred to the court for determination “ after hearing telephone representations from Counsel ” : para 29. [ 64 ] I order a sale through a listing agent as this method will likely expose the property to a larger market and maximize the sale

price. The order will provide as follows: ∙ The parties must forthwith list the Park Street property with a mutually acceptable realtor, and at a listing price set in conjunctionwith the realtor, who is knowledgeable of property values in the area where the property is situate. In the event, the parties cannot agreeon a listing agent or listing price, either party may apply to the court, on abbreviated notice, for an order confirming the listing agent orlisting price, or both. Costs may also be sought at this time. ∙ No reasonable offer will be refused by either Mr. Roach or Ms. McNeil.

In the event, the parties cannot agree on what is areasonable offer, either party may apply to the court, on abbreviated notice, for an order confirming that an offer is reasonable. Costsmay also be sought at this time. ∙ Both parties must co-operate in the listing and sale of the Park Street property by signing whatever documentation may be required,or by performing such actions that may be required, to effect the terms and provisions of this order. ∙ Until the Park Street property is sold, Ms.

McNeil will continue to have interim exclusive occupation and use of the Park Streetproperty pursuant to s. 7 of the Maintenance and Custody Act. Mr. Roach is not permitted to attend at the Park Street property. Ms.McNeil must keep the Park Street property clean and maintained. Ms. McNeil must cooperate with the realtor in showing the Park Streetproperty to potential purchasers. Each party must pay ½ of the monthly mortgage payments, taxes, and insurance on the Park Streetproperty. Ms. McNeil must pay all utilities, water bills, and applicable monthly lease payments until the Park Street property is sold.

Inthe event, the parties cannot agree on what is entailed by this order, either party may apply to the court, on abbreviated notice, for anorder confirming that detail. Costs may also be sought at this time. ∙ Once the Park Street property is sold, the net proceeds of sale must be retained in a solicitor trust account, which solicitor ismutually acceptable to the parties, and the funds disbursed according to the formula to be outlined.

In the event, the parties cannot agreeon the terms of the disbursement of the proceeds of sale, either party may apply to the court, on abbreviated notice, for an orderconfirming the same. Costs may also be sought at this time. [65] Division of the Sale Proceeds, Equitable Adjustments, Occupation Rent [66] In Finanders v. Finanders, supra, Edwards, J. reviewed the law on equitable allowances in the context of a Partition Actclaim at paras. 19 to 22, which state as follows: 19 In making an order for sale, the Court takes into account any equitable allowances. In this regard see Mastron v.

Cotton (ON CA), [1926] 1 D.L.R. 767, a decision of the Ontario Supreme Court, Appellate Division. The Court there stated: "What is just and equitable depends on the circumstances of each case. For instance, if the tenant in occupation claims for upkeep andrepairs, the Court, as a term of such allowance, usually requires that the Claimant shall submit to an allowance for use and occupation:Rice v. George (1873) 20 G.r.221; Pascoe v. Swan (1859) 27 Beav. 508, 54 E.R. 201.

Again if one tenant has made improvements whichhave increased the selling value of the property, the other tenant cannot take the advantage of increased price without submitting forallowance for the improvements: Leigh v. Dickson, 15 Q.B.D. 60, per Cotton L.J., p. 67; 21 A. a.l.s., p. 851, para. 1595. and, once again,when, as here, one tenant has paid more than his share of encumbrances, he is entitled to an allowance for such surplus: re Curry, Curryv. Curry (1898), 25 O.A.R. (Ont.) 267; 33 Court. J.u.r., p.909.

These allowances being made as equitable allowances, there may as a matter of course, be circumstances under which they should not bemade. For instance, the circumstances may indicate that the improvements were made or the surplus payments were made or intended tobe as gifts by one tenant to the other." 20 Also in Lasby v. Crewson, [1891] O.J. No. 76, (O.H.C.J..) the Court stated:

"I think the authorities determine beyond any question that in a suit for partition a co-tenant is entitled to lasting improvements or repairs,by which he has enhanced the value of the property. I refer to Rice v. George, 20 Gr. at p. 226; Wood v. Wood, 16 Gr. 471; Morley v.Mathews, 14 Gr. 551; Pascoe v. Swan, 27 Beav. 508; Teasdale v. Sanderson, 33 Beav. 534, and Leigh v. Dickeson, 15 Q.B.D. 60. Thejudgment of Cotton, L.J., in the latter case, puts the questions in my judgment beyond any doubt.

He says at p. 67: 'Therefore, no remedyexists for money expended in repairs by one tenant in common; so long as the property is enjoyed in common; but in a suit for partition itis usual to have an enquiry as to those expenses of which nothing could be recovered so long as the parties enjoyed their property incommon; when it is desired to put an end to that state of things, it is then necessary to consider what has been expended in improvementsor repairs: the property held in common has been increased in value by the improvements and repairs; and whether the property isdivided or sold by the decree of the Court, one party cannot take the increase in value, without making an allowance for what has beenexpended in order to obtain that increased value; in fact, the execution of the repairs and improvements is adopted and sanctioned byaccepting the increased value.

There is, therefore, a mode by which money expended by one tenant in common for repairs can berecovered, but the procedure is confined to suits for partition'." 21 In Handley v.

Archibald, (1899), 1899 CanLII 79 (SCC), 30 S.C.R. 130, an appeal from a decision of the Supreme Court of NovaScotia, 32 N.S.R. 1, Sir Henry Strong of the Supreme Court of Canada noted in an action amongst tenants-in-common: "The appellants are entitled to an account of and allowance for the improvements made by them or any of them, but if they insist on suchan account they must also themselves account for the rents and profits received by them or for an occupation rent and that at theimproved value.

The case for an account of the improvements is made by the clear added defence, and it is also claimed in theappellant's factum. The law on this head appears clear. An action cannot be maintained by one tenant in common against another for thevalue of improvements alone.

But in a partition action in equity such an allowance was always made." 22 Anger and Honsberger Real Property, 1985, Canada Law Book, at page 822 states: "At common law there could be no action of account by one tenant in common against another who had occupied the whole propertyunless he had appointed the latter as his bailiff so as to make him liable to account in that capacity. In equity, however, a tenant incommon is liable to account in an action by the others and, by statute, a tenant in common who receives more than his share is madeliable to account to co-tenants." [67] In Finanders v.

Finanders, supra, Edwards, J. held that the plaintiff was entitled to 25% of the net proceeds of sale, while thedefendants would receive 75%. The parties had contributed equally to the purchase of the land. The defendants, however, erected thecottage, while the plaintiff provided some labour and materials. The court held that the plaintiff’s services were provided on a volunteerbasis without expectation of compensation. The plaintiff’s claim for occupation rent was offset by tax payments made by thedefendants. [68] In Soubliere v.

MacDonald, 2011 NSSC 98, Jollimore, J. discussed the Partition Act in the family law context. Jollimore, J.ordered an equal division of the property held in the joint names of the parties, notwithstanding the fact that the husband made the downpayment, and all mortgage and tax payments before the parties’ separation. Jollimore, J. gave effect to the presumption in favour of anequal division, and the principles which emerged from the case law, including Anderson v. Wilson (1986), (NS SC),73 N.S.R. (2d) 1 (T.D.); Primeau v. Richards, 2004 NSSF 86 (S.C.); MacDonald v.

Jollymore, 2006 NSSC 152 (S.C.); and Davis v.Munroe, 2011 NSSC 14 (S.C.). In contrast, Jollimore, J. also noted that mortgage and property taxes made post separation aregenerally equally divided at para 32. [69] In Soubliere v. MacDonald, supra, Jollimore, J. also canvassed the law on occupation rent at paras. 42, 43, and 45 whichprovide as follows: 42 In Anger and Honsberger's Law of Real Property, 3rd ed. (Aurora: Canada Law Book Inc., 2010), at s. 14:20.140, the authorsnote that "Joint owners of property are inherently entitled to possession of the property they own and neither is entitled to excludeanother.

If one owner excludes the other, the owner in possession may be charged with occupation rent." A similar statement of the lawwas adopted by Justice Jones in Davis v. Cipryk (1977), (NS SC), 21 N.S.R. (2d) 266 (T.D.) at paragraph 8 where hequoted from the authors' Canadian Law of Real Property (Toronto: Canada Law Book Company Ltd., 1959). 43 In Davis v. Cipryk (1977), (NS SC), 21 N.S.R. (2d) 266 (T.D.), Justice Junes ordered Mr. Davis to pay monthlyoccupation rent of $150.00 for the twenty-two months when he solely occupied the home. ...

45 In some cases, occupation rent is claimed where children are sheltered in the home and no support is otherwise provided for thechildren. In such cases (MacLeod (1994), (NS SC), 135 N.S.R. (2d) 49 (S.C.)) the claim for occupation rent isn'tsuccessful. Similarly, claims for occupation rent are unsuccessful where the occupant has paid the mortgage and property taxes in casessuch as Dodeman (1991), (NS SC), 107 N.S.R. (2d) 113 (T.D.) and has not been compensated for this.

Notably, theseare cases which do not include claims under the Partition Act where there is recognition for payment of the mortgage and property taxes. [70] In Soubliere, supra, Jollimore J. granted the claim for occupation rent where the husband changed the locks and therebydenied the wife entry to the home after the separation in 2006. [71] Decision [72] I am ordering an equal division of the sale proceeds, subject to the following adjustments: ∙ Real estate commission, legal fees, and the usual adjustments on closing will be deducted from the sale proceeds. ∙ The mortgage and joint line of credit will be paid from the sale proceeds. ∙ The balance of the sale proceeds will then be equally divided between the parties, and the following adjustments made: ∙ Mr.

Roach must pay Ms. McNeil $4,646.86 from his share of the net proceeds from the sale of the Park Street property. InDecember 2009, Mr. Roach did not advise Ms. McNeil of the insurance payout in the amount of $9,293.73, which insurance cheque wasmade payable to both parties. Mr. Roach signed the cheque himself, and deposited it into the joint account. He then immediatelytransferred the sum of $9,294 into his own account on December 1, 2009. I find that Mr. Roach did not use this money for familypurposes. The transfer was completed surreptitiously. Mr.

Roach did not provide the court with proof of a clear, convincing, andcogent nature to support his claim of family usage. ∙ Ms. McNeil must provide Mr. Roach with $1,000 from her share of the sale proceeds. This represents the cost award flowing fromthe adjournment decision. ∙ Ms. McNeil must pay, from her share of the sale proceeds, ½ of any missed mortgage or tax payments arising since the issuance ofthe interim order in July 2012. If Mr. Roach has made such payments, he will be reimbursed. ∙ Ms.

McNeil is solely responsible for the cost of all utilities, water rates, and lease payments incurred since the issuance of theinterim order in July 2012. If Mr. Roach has made any of these payments, he will be reimbursed by Ms. McNeil from her share of thesale proceeds. If there are arrears on these accounts, such will be paid from Ms. McNeil’s share of the sale proceeds. ∙ The parties must equally share in the cost to insure the Park Street property since the issuance of the interim order in July 2012. IfMr. Roach has paid the insurance account, Ms. McNeil will reimburse Mr.

Roach for ½ of the same from her share of the sale proceeds. ∙ Ms. McNeil must pay from her share of the sale proceeds, the cost to register any releases of judgments filed against her. [73] I have rejected the other claims of the parties, including an unequal division claim advanced by Ms. McNeil, the competingclaims for reimbursement for other expenses, and the occupation rent claim. My reasons for so doing include the following:

∙ The parties placed the Park Street property in their joint names. They could have chosen another route. By so doing, they expressed an intention of equal ownership. ∙ Although Ms. McNeil netted $20,000 from the Brodie Avenue property, not all of these proceeds were injected into the Park Street property. For example, in exhibit 3, page 266, Ms. McNeil lists the household items that she purchased with some of the Brodie Avenue sale proceeds. ∙ Mr. Roach expended many hours in manual labour effecting the substantial renovations required on the Park Street property. ∙ Although Mr.

Roach likely paid more of the household accounts between the time of the parties ’ separation and the July 2012 interim order, Ms. McNeil paid significantly more of the household accounts while the parties lived on the Brodie Avenue property, a period of seven years. It is inappropriate to make financial adjustments for a single snapshot in time. ∙ It is difficult for the court to discern, with precision, the exact financial input of each of the parties over the totality of their relationship. No forensic audit was supplied.

The court is satisfied, however, on a balance of probabilities, that there was an approximate equal conferral of mutual benefits over the course of the relationship. Fairness and equity principles support a denial of Mr. Roach ’ s claim for reimbursement for expenses paid between the date of separation and the July 2012 interim order. ∙ Mr. Roach was not paying child or spousal support after separation and before the July 2012 order. ∙ Neither party proved that their individual credit card debt was incurred for family purposes. There should be no adjustment for this debt. ∙ Ms. McNeil did not prove that Mr.

Roach stole her missing jewellery. There should be no adjustment for this claim. ∙ Mr. Roach ’ s poor behaviour was the reason for his ouster from the Park Street property, as confirmed by court order. Mr.

Roach ’ s conduct included turning off the hot water while other family members were taking showers; creating a fire hazard by building a bed of nails and securing it under a basement window; nailing shut windows; tampering with the dryer; disconnecting heat from select areas of the home; locking food in the fridge and freezer to prevent access by other family members; and failing to cooperate with an insurance claim process.

Fairness and equity principles support a denial of the occupation rent claim in these circumstances. ∙ The court ’ s interim spousal support order was premised on the income and expenses of the parties as stated at the time. Had Ms. McNeil been required to pay occupation rent, her expenses would have increased, as would the financial ability of Mr. Roach to pay a greater amount of spousal support. [ 74 ] Has Ms. McNeil proven a claim of unjust enrichment? If so, what remedy is appropriate? [ 75 ] Positions of the Parties [ 76 ] Ms. McNeil seeks relief pursuant to the equitable doctrine of unjust enrichment. Ms.

McNeil seeks to retain the Park Street property, without paying Mr. Roach any money for his interest. She also seeks equalization of the credit card debt held in her name, and a return of her missing jewellery. Mr. Roach did not seek relief under this heading. He disputed Ms. McNeil ’ s claim. Much of evidence on this issue is reflected in the previous discussion.

[ 77 ] Law [ 78 ] In Kerr v. Baranow , 2011 SCC 10 , Cromwell, JA, discussed the doctrine of unjust enrichment, and the corresponding available remedies. He noted that legal principles must respond to the factual and social context in which they arise. In order to succeed in a claim of unjust enrichment, three elements must be proved as follows: ∙ The plaintiff must first prove an enrichment - the plaintiff gave something that the defendant received and retained. The benefit must be tangible, either positive or negative. It need not be retained permanently.

An economic approach is applied to this element of the test. ∙ The plaintiff must next prove a corresponding deprivation - the defendant ’ s enrichment corresponds to the plaintiff ’ s loss. An economic approach is applied to this element of the test. ∙ The plaintiff must then prove an absence of juristic reason - there is no reason in law or justice for the defendant ’ s enrichment and the plaintiff ’ s loss, such as donative intent (gift), contract, or disposition of law. If there is no juristic reason, the plaintiff has made out a prima facie case which is rebuttable by the defendant.

At this stage, the court is permitted to look to all of the circumstances in order to determine if there are other reasons to deny recovery, and specifically the court must examine the reasonable expectations of the parties and public policy considerations, including how the parties organized their affairs. Mutual benefit conferral can be considered at this stage. [ 79 ] If an unjust enrichment has been proven, the court then must determine the appropriate restitutionary remedy, one which results in the defendant repaying or reversing the unjust enrichment.

Cromwell, J.A. discussed the types of available remedies, which are summarized as follows: ∙ The first remedy is a monetary one. A monetary award is usually appropriate in most circumstances. A monetary remedy can be based upon the value survived approach or the fee for service approach. The test for each of these monetary remedies is as follows: ∙ To succeed with the value survived approach, the plaintiff must prove a joint family venture and a nexus between the plaintiff ’ s contributions and the accumulation of wealth.

The determination of the existence of a joint family venture is a question of fact which must be assessed in regard to all relevant circumstances, including factors relating to mutual effort, economic integration, actual intent, and priority of the family. The actual intentions of the parties, either expressed, or inferred from their conduct, must be given considerable weight. The more extensive the integration of the couple ’ s finances, economic interests and economic well being, the more likely that they have engaged in a joint family venture.

The court must assess the mutual contributions of the parties in determining the plaintiff ’ s proportionate share. ∙ On a fee for service approach, the court calculates a wage for the services provided during the relationship, and provides a remedy sufficient to compensate the applicant for the services provided. The court also takes into consideration the respective contributions of the parties in determining the claimant ’ s remedy. ∙ The second remedy is a constructive trust.

A proprietary order will be granted if the plaintiff can demonstrate a nexus, or causal connection between his or her contributions, and the acquisition preservation, maintenance, or improvement of the disputed property, and that a monetary award would be insufficient. In such a case, a constructive trust can be impressed upon the property in proportion to the claimant ’ s contribution. [ 80 ] Decision [ 81 ] Ms. McNeil has proven that she provided Mr. Roach with tangible benefits, in the form of cash and services, over the course of their relationship. She provided a home to Mr.

Roach while he lived with her on Brodie Avenue. She paid for some of his bills, including ½ of the van payment, all shelter related expenses while he lived on the Brodie Avenue property, and many shelter related

expenses while they lived at the Park Street property. Ms. McNeil provided housekeeping and child care services throughout the duration of the relationship. Mr. Roach was able to concentrate on his career because Ms. McNeil was primarily responsible for Liam and the home. [ 82 ] Ms. McNeil has also proven that she suffered a corresponding loss by Mr. Roach ’ s receipt of these benefits. [ 83 ] I must now review the third element of the test, juristic reason. This requires an examination of the parties ’ expectations and the organization of the parties ’ affairs.

This requires an examination of the mutual benefits conferred. [ 84 ] Before doing so, the court notes that the evidence was deficient and lacking in many details. The court, however, is left to render its decision based upon the evidence presented. Although the court may make inferences, such does not create a licence to manufacture facts that were not presented. As a result, the claim of Ms.

McNeil is dismissed at the juristic reason stage because of an absence of proof. [ 85 ] Further, for the reasons which I have reviewed under the previous discussion, I find that the mutual benefits conferred, based on the totality of the relationship, are approximately equal based upon the evidence which was presented. Mr. Roach contributed more financially at the end of the relationship than did Ms. McNeil. Ms. McNeil contributed more financially during the early stages of their relationship. Mr. Roach also contributed by performing extensive physical labour to effect the renovations to the Park Street property.

Further, Mr. Roach also assisted in household chores. [ 86 ] If I am wrong, I also find that Ms. McNeil ’ s remedial claim would be negligible because of the nature of the mutual benefits conferred over the totality of the relationship, and as reviewed under the previous issue. I also note that in her submissions, Ms. McNeil strenuously argued against a finding of joint family venture. I agree. [ 87 ] Ms. McNeil has not provided the court with clear, convincing, or cogent evidence to support a claim for unjust enrichment. Neither party was credible.

Neither party placed emphasis on the obligation to testify truthfully. Each party frequently took liberties with the truth. The evidence was disorganized and general. The mutual conferral of benefits was approximately equal. [ 88 ] Conclusion [ 89 ] The following relief is granted: ∙ Ms. McNeil is awarded sole custody of Liam; Mr. Roach is granted reasonable access at times to be determined by Liam and Mr. Roach. ∙ Mr. Roach must pay the table amount, and his pro-rata share of s.7 health expenses for Liam. Mr.

Roach must continue to name Liam on his medical plan. ∙ 70 Park Street is to be sold at fair market value, upon terms and conditions outlined in this decision. Ms. McNeil ’ s application for a spousal buy out is dismissed because such relief is not available under the provisions of the Partition Act . The court retains jurisdiction to determine issues which may arise as a result of the order for sale. ∙ The net proceeds of sale will be divided equally, but subject to the specific adjustments noted in this decision. ∙ The claim for occupation rent is denied.

∙ The unjust enrichment claim is denied. [ 90 ] Mr. Burke will draft the order. If either party wishes to be heard on the issue of costs, submissions are to be provided in writing, and no later than April 18, 2014. Forgeron, J.