MacPherson v. Williams, 2019 NSSC 17

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: MacPherson v. Williams, 2019 NSSC 17 Date: 2019 - 01 - 28 Docket: FATMCA-97030 Registry: Antigonish Between: Diane Lynn MacPherson Applicant v. Derek Robert Williams Respondent LIBRARY HEADING Judge: The Honourable Justice Elizabeth Jollimore Heard: October 9 – 10, October 16, and November 19, 2018

Summary: Following a 24-year relationship, MacPherson was awarded an equal share of Williams’ RRSP contributions under an unjust enrichment claim. Child and spousal support varied. Key words: Family law, unjust enrichment, variation, child support, spousal support, arrears Statutes: Nova Scotia Child Maintenance Guidelines , NS Reg 53/98, subsection 3(1) ;

Schedule III,

section 1; clause 19(1)(

a) Parenting and Support Act , R.S.N.S. 1989, c. 160, subsection 3A(1) THIS INFORMATION SHEET DOESN’T FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET . ____________________________________________________________________________ SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: MacPherson v. Williams , 2019 NSSC 17 Date: 2019 - 01 - 28 Docket: FATMCA-97030 Registry: Antigonish Between: Diane Lynn MacPherson Applicant v. Derek Robert Williams Respondent Judge: The Honourable Justice Elizabeth Jollimore

Heard : October 9 – 10, 2018 October 16, 2018 November 19, 2018 Counsel: Andrea L. Pierce for Derek Williams Karen Killawee for Diane MacPherson 1. Introduction 2. Credibility 3. Unjust enrichment claim a. Was Ms. MacPherson deprived? Was Mr. Williams enriched? b. Is there a juristic reason for Ms. MacPherson’s enrichment and Mr. Williams’ deprivation? i. Is bankruptcy a juristic reason? ii. Does mutual benefit provide a reason to deny recovery? c. Is there a defence to Ms. MacPherson’s unjust enrichment claim? i. Does Ms. MacPherson’s failure to claim unjust enrichment in Mr.

Williams’ bankruptcy provide a reason to deny recovery? ii. Estoppel iii. Laches iv. Does mutual benefit provide a defence? d. What is Ms. MacPherson’s remedy? e. Mr. Williams’ pension 4. Support variation a. Child support i. What is Mr. Williams’ income? 1. 2017 2. 2018 3. 2019 ii. Who should receive Molly’s child support payments? b. Spousal support i. What is the basis for Ms. MacPherson’s entitlement to spousal support? ii. What is Mr. Williams’ income? iii. What is Ms. MacPherson’s income? iv. How much spousal support should Mr. Williams pay to Ms. MacPherson?

1. March 2017 to June 2018 2. Prospective: ongoing from July 2018 ii. Should Ms. MacPherson’s spousal support be time-limited? 5. Arrears 6. Settlement information 7. Costs By the Court: 1. Introduction [1] After cohabiting for 24 years, Derek Williams and Diane MacPherson separated in 2013. [2] Ms. MacPherson has made an unjust enrichment claim relating to Mr. Williams’ RRSPs and the couple’s home. Mr. Williamshas applied to vary child and spousal support. I will address Ms. MacPherson’s property claims before Mr. Williams’ support claims. Ido this for the reasons outlined in Harwood v.

Thomas, (1980), (NS SC), 43 N.S.R. (2d) 292 (T.D.), affirmed atHarwood v. Thomas, (1981), (NS CA), 45 N.S.R. (2d) 414 (A.D.), though I am dealing with claims under thecommon law and the Parenting and Support Act, R.S.N.S. 1989, c. 160, rather than the Divorce Act and the Matrimonial Property Act. 2. Credibility [3] The parties’ evidence conflicted so I must first address credibility. Where their evidence conflicted, I reject Mr. Williams’evidence for five reasons. 1. Mr. Williams frequently admitted that he couldn’t remember things. 2. Mr.

Williams admitted that he swore documents when he “had no idea if they were true or false”. 3. Mr. Williams avoided responding directly to questions unless I specifically told him to answer the exact question asked. Forexample, when asked to acknowledge an event, he wouldn’t admit or deny what happened, but would say that that it wasn’t what heintended. 4. Mr. Williams’ testimony was strategic. He used questions as a jumping off point to try to make a good impression.

For example,in response to a direct question asking him to confirm that he didn’t want to pay spousal support, he said he “wanted to minimize thedamage on the children, to give Diane and me a fair break”. His testimony contained many of these non sequiturs. 5. Mr. Williams’ answers were self-serving. When asked about shortcomings in his documentary evidence, he blamed his lawyers:they prepared the documents, he just signed them. When asked about his bankruptcy, he blamed his trustee in bankruptcy formiscommunication and not telling him things. [4] Three months before the hearing, Mr.

Williams was injured in a motorcycle accident. He said that he’s had difficulty focusingsince the accident. He didn’t know if his focus was impaired by the accident or by the medicine that he now takes for pain andcirculatory problems. Of his fourteen Statements and affidavits, thirteen were sworn before his accident, so they wouldn’t be affected byhis accident or new medications. His difficulty in focusing may have affected his testimony, though he didn’t ask for questions to beclarified or re-phrased more than any other witness would.

He didn’t say that he had difficulty with his memory or comprehensionbecause of the accident or his medications. [5] I prefer Ms. MacPherson’s evidence for three reasons: 1. Ms. MacPherson didn’t try to avoid answering questions. 2. Ms. MacPherson answered questions directly without prompting. 3. Ms. MacPherson made admissions against her own interest, such as admitting she wrote a vitriolic letter to Mr. Williams whenshe believed he had begun a new relationship in Halifax. [6] I now turn to the claims. 3. Unjust enrichment claim

[ 7 ] Ms. MacPherson makes an unjust enrichment claim against Mr. Williams’ RRSPs and the couple’s home. [ 8 ] An unjust enrichment claim has three elements. As claimant, Ms. MacPherson must show: a. she has been deprived, b. Mr. Williams has been enriched, and c. there is no juristic reason for her deprivation and his enrichment. [ 9 ] Mr. Williams contests each element. a. Was Ms. MacPherson deprived? Was Mr. Williams enriched? [ 10 ] In analysing deprivation and enrichment, I am to take a “straightforward economic approach”: Moore v. Sweet , 2018 SCC 52 at paragraph 41 . [ 11 ] I find that Ms.

MacPherson was deprived. She lost her qualifications to work as a graphic designer, and the chance to save for her retirement through employment during the years when she was caring for the couple’s two children and the family home. [ 12 ] I find that Mr. Williams was enriched by Ms. MacPherson’s unpaid labour for the family, by the opportunity to enhance his professional credentials, and by the retirement savings he was able to make through his employment. [ 13 ] I find that Ms. MacPherson’s deprivation was the source of Mr. Williams’ enrichment. [ 14 ] Ms.

MacPherson completed her training as a graphic designer in the late 1980s, before the internet was the basis for graphic design. She testified that graphic design work is now internet-based. Her employment qualifications became outdated while she stayed home to maintain the home and raise the children when Mr. Williams worked away from home. [ 15 ] When the parties first met in 1989, both were working: he was an apprentice plumber, and she was a server at the Banff Park Lodge. Ms. MacPherson found a contract position as a graphic designer at the Banff Centre. They moved to Calgary where Mr.

Williams worked as a pipefitter and plumber and she continued to work as a graphic designer. Their older daughter was born in 1992. [ 16 ] Around 1995, the family returned to Nova Scotia. Ms. MacPherson worked first at St. Francis Xavier University and then at Kwik Kopy Printing in Truro. Mr. Williams returned to work in Calgary and completed his training as a plumber. He earned tickets as a journeyman plumber and gasfitter. [ 17 ] After completing his training, Mr. Williams returned to Nova Scotia and began work at Stora. He stayed with his mother in Monastery while Ms.

MacPherson and their daughter lived in Truro. He’d visit in Truro a few times each week. Mr. Williams left Stora for work in Goldboro at the Sable Offshore Energy Project. He stayed in Goldboro and continued to visit in Truro a few times each week. [ 18 ] The couple’s younger daughter was born in 1998 and Ms. MacPherson took time off work to care for her. [ 19 ] Around 2000, the parties made an offer to buy a home in Boylston, a small rural community. Their daughters were aged 2 and 8 and Mr. Williams was still working in Goldboro. Before they completed the purchase, Mr.

Williams’ job ended, and he went to work in Bermuda for a few months, while Ms. MacPherson and the girls moved into the Boylston home. After his Bermuda job ended, Mr. Williams spent the next three years working away from home at various pipefitting jobs in Ontario and northern Alberta. [ 20 ] In 2004, Mr. Williams found work for Parks Canada in Jasper. A few months later, Ms. MacPherson and the girls followed him. The home in Boylston was rented. While in Jasper, Ms. MacPherson found work as a graphic designer, earning $50,000.00 annually. This is the last time Ms.

MacPherson worked as a graphic designer. [ 21 ] In 2007, the parties decided to return to Boylston. Mr. Williams took a leave of absence from his job in Jasper. He couldn’t find work in Boylston and tried, unsuccessfully, to start a plumbing business. He returned to work in northern Alberta. In 2010, he began working in Halifax, returning to Boylston on alternate weekends. Ms. MacPherson and the girls remained in Boylston. [ 22 ] The return to Boylston in 2007 meant Ms. MacPherson gave up her career as a graphic designer.

In 2008, she began to work in the community’s convenience store which is owned and operated by her family. The store is one of three employers in Boylston. Other employers include a machine shop and an electrical shop. Ms. MacPherson is qualified for neither. [ 23 ] Over the course of the couple’s relationship, Ms. MacPherson was the primary caregiver for the couple’s two children. During those periods when Mr. Williams lived and worked away from the family, she was the children’s sole caregiver. [ 24 ] Ms. MacPherson’s employment has always been secondary to Mr. Williams’.

His employment and education were not compromised by the need to care for the children because Ms. MacPherson provided their care. His employment credentials improved during their relationship. Hers deteriorated. He accumulated retirement savings. She did not. Mr. Williams’ success would not have been possible without Ms. MacPherson’s contribution. [ 25 ] Mr. Williams says there is no deprivation or enrichment because he has not been left with a disproportionate share of the family’s wealth.

He asks me to look at the distribution of family wealth, using the current value of his RRSPs and the amount owed on the credit line and mortgage at the date of separation. [ 26 ] Mr. Williams says the current amount on deposit in his RRSPs is $105,806.50 (pre-tax). He discounts this amount by one-third for taxes, so he has $70,361.32. Additionally, he was left with three vehicles and, possibly, a pension. The vehicles had a value of

$5,400.00. [ 27 ] When the relationship ended, he had assets worth $81,161.32, exclusive of any pension. [ 28 ] Ms. MacPherson has the Boylston home which was appraised for $90,000.00. Mr. Williams says it is “fair” to discount the home’s value by the amount owed on the credit line ($16,915.00) and mortgage (approximately $32,000.00) on the date he went bankrupt. This leaves equity of $41,085.00, which is further reduced by notional disposition costs of $6,175.00. Ms. MacPherson has an asset worth $34,910.00. [ 29 ] I reject Mr. Williams’ suggestion that Ms. MacPherson had savings of $12,000.00. Ms.

MacPherson received this money in 2016, three years after the couple separated. It is not money she was left with from the relationship and I don’t consider it in assessing the parties’ relative positions. [ 30 ] I have not assigned any value to the contents in the Boylston home because I cannot: I do not have evidence of what the contents were, who has them, or what they are worth. [ 31 ] Mr. Williams was left with $81,161.32 and Ms. MacPherson had $34,910.00: this is a substantial discrepancy in their positions. Mr. Williams has 70% of the parties’ wealth. [ 32 ] I conclude that Ms.

MacPherson was deprived, and Mr. Williams was enriched, and her deprivation left him with a disproportionate share of the family wealth. b. Is there a juristic reason for Ms. MacPherson’s deprivation and Mr. Williams’ enrichment? [ 33 ] Only if there is no juristic reason for Ms. MacPherson’s deprivation and Mr. Williams’ enrichment may I consider Ms. MacPherson’s recovery. If there is a juristic reason for her deprivation and his enrichment, then there is no basis for her to recover anything. [ 34 ] There are two stages in considering whether there is a juristic reason to deny recovery.

The first stage is determining whether there is an established category that provides a reason for the deprivation and enrichment. Established categories include contract, disposition of law, donative intent, and obligations found in the common law, equity or statute. Ms. MacPherson has the burden of proving there is no established category that provides a reason to deny her recovery. If she shows the established categories do not apply, a prima facie case under this stage is made out: Garland v.

Consumers’ Gas Co. , 2004 SCC 25 at paragraph 44 . [ 35 ] The second stage is determining whether there is a reason - beyond the established categories - to deny recovery. At this stage, Mr. Williams may rebut the prima facie case by proving there is some other reason to deny recovery. Mr. Williams has the burden of showing why he should retain the enrichment: Garland v. Consumers’ Gas Co. , 2004 SCC 25 at paragraph 45 . i. Is bankruptcy a juristic reason? [ 36 ] Mr. Williams made an assignment in bankruptcy in November 2016 - more than three years after the couple separated in June 2013.

He was discharged nine months later, in August 2017. [ 37 ] In his pre-hearing brief, Mr. Williams argued that his bankruptcy was a juristic reason to deny Ms. MacPherson recovery for her deprivation and his enrichment. Any property that survived his bankruptcy couldn’t be claimed by Ms. MacPherson. If applicable, this is a statutory reason (an established category) for Ms. MacPherson’s deprivation and Mr. Williams’ enrichment. [ 38 ] I reject this argument because it misconstrues the effect and intent of the Bankruptcy and Insolvency Act , R.S.C. 1985, c.

B-3 . [ 39 ] The effect of the Bankruptcy and Insolvency Act is to pass the bankrupt’s property to his or her trustee for distribution among the bankrupt’s creditors. When property is passed to the trustee, the bankrupt has no more interest in it. The property is the trustee’s, and available for distribution to the bankrupt’s creditors. [ 40 ] Not all a bankrupt’s property is passed to his or her trustee for distribution. The Bankruptcy and Insolvency Act defines which property is passed to the trustee and which is not:

section 67 . [ 41 ] A ll of Mr. Williams’ RRSPs were exempted from distribution among his creditors under clause 67(1) (b.3) of the Bankruptcy and Insolvency Act . Mr. Williams has owned his RRSPs throughout and since his bankruptcy. [ 42 ] The intent of the Bankruptcy and Insolvency Act can be no better understood than by reference to the writing of Robert A.

Klotz, who has written extensively, and excellently, on it: Bankruptcy, Insolvency and Family Law (Scarborough: Thomson Carswell, 2 nd ed., 2001) and, more particularly, “Bankruptcy and Pensions/RRSPs” (paper delivered at the Law Society of Upper Canada program, Understanding Pensions in Family Law, 30 November 2014). [ 43 ] According to Klotz, RRSPs are exempted from distribution among creditors, so the bankrupt can support himself or herself and any dependants in retirement. They are not exempted to prevent their division among family members.

Justice LeBel confirmed this when he said that “None of the policies underlying the BIA require that the appellant [wife] emerge from the marriage with no substantial assets.”: Schreyer , 2011 SCC 35 at paragraph 25 . [ 44 ] The Bankruptcy and Insolvency Act ’s exemption for RRSPs is not a juristic reason to deprive Ms. MacPherson and enrich Mr.

Williams. [45] I conclude that there is no established category which provides a juristic reason for Ms. MacPherson’s deprivation and Mr.Williams’ enrichment. She has discharged the burden of showing there is no established category that provides a reason for thedeprivation and enrichment. [46] At the next stage, Mr. Williams may rebut the prima facie case by proving there is some other reason to deny recovery. Mr.Williams has the burden of showing why he should retain the enrichment: Garland v. Consumers’ Gas Co., 2004 SCC 25 at paragraph45. [47] At the end of the hearing, Mr.

Williams raised two other arguments which, he said, provided juristic reason for Ms.MacPherson’s deprivation and his enrichment: 1. The parties mutually benefit from their relationship; and 2. Ms. MacPherson should have made her unjust enrichment claim in his bankruptcy. [48] Mutual benefit can be a reason to deny recovery. [49] The argument that Ms. MacPherson should have made her unjust enrichment claim in Mr. Williams’ bankruptcy is not a reasonto deny recovery, it’s a possible defence to the unjust enrichment claim: Wilson v. Fotsch, 2010 BCCA 226 at paragraph 11.

I’ll addressthis argument when I consider possible defences. ii. Does mutual benefit provide a reason to deny recovery? [50] Mr. Williams says that the parties’ mutual benefit is a juristic reason to deny Ms. MacPherson recovery. [51] The conferral of mutual benefits should only be considered at the juristic reason stage to determine whether Mr. Williams’enrichment was just: Kerr v. Baranow, 2011 SCC 10 at paragraph 115. For example, the mutual benefits might be an example of acontract (an existing category of juristic reason for Ms. MacPherson’s deprivation and Mr.

Williams’ enrichment. [52] Neither party offered evidence about how the conferral of mutual benefits provided a reason – from an existing or new category -for Mr. Williams to be enriched, and Ms. MacPherson to be deprived. The evidence was the opposite: Ms. MacPherson said that Mr.Williams told her that his retirement savings were for “their retirement”. [53] While mutual benefit (to the extent it is relevant evidence of a juristic reason for enrichment) can provide a reason to denyrecovery, it does not do so in this case. I conclude there is no juristic reason to deny Ms. MacPherson recovery. c.

Is there a defence to Ms. MacPherson’s unjust enrichment claim? i. Does Ms. MacPherson’s failure to claim unjust enrichment in Mr. Williams’ bankruptcy provide a reason to denyrecovery? [54] Mr. Williams says that Ms. MacPherson’s unjust enrichment claim should have been made in his bankruptcy proceeding and,since it wasn’t made then, she can not advance it now. In essence, Mr. Williams raises the defences of estoppel or laches. ii. Estoppel [55] The Bankruptcy and Insolvency Act resolves the issue of whether Ms. MacPherson’s unjust enrichment claim is estopped becauseshe failed to advance it in Mr.

Williams’ bankruptcy. [56] While estoppel may apply in family situations of unjust enrichment, Ms. MacPherson’s failure to advance this claim Mr.Williams’ bankruptcy does not estop her from making the claim elsewhere. Mr. Williams’ RRSPs were exempted from distributionamong his creditors: Bankruptcy and Insolvency Act, clause 67(1)(b.3). The RRSPs were not available to creditors in Mr. Williams’bankruptcy, so Ms. MacPherson could not make her unjust enrichment claim against them in that context. iii.

Laches [57] In cases of extraordinary delay, laches and acquiescence have been a defence to an unjust enrichment claim: Lawrence v.Lindsay, (ABQB), and Angeletakis v. Thymaras, (ABQB). In McIlreith v. Payzant (1893), N.S.R.377 (NSSC(AD)), a delay of more than twenty years defeated a trust claim. [58] The parties separated in June 2013. Until early 2016 when a putative settlement was reached, there were settlementnegotiations. No settlement was reached. Ms. MacPherson filed her unjust enrichment claim in February 2017. Mr. Williams applied toreduce his support payments the next month. [59] Ms.

MacPherson’s delay was not extraordinary. It is not a defence to her claim. iv. Does mutual benefit provide a defence? [60] When mutual benefit is raised as a defence it relates to change of position: Mitchell McInnes, The Canadian Law of UnjustEnrichment and Restitution (Markham: LexisNexis Canada, 2014). This defence is available when “an innocent defendant demonstratesthat it has materially changed its position as a result of an enrichment such that it would be inequitable to require the benefit to bereturned”: Garland v. Consumers’ Gas Co., 2004 SCC 25 at paragraph 63.

[ 61 ] While Mr. Williams has argued the existence of mutual benefit, he has not argued it as a defence and he has not demonstrated that he has materially changed his position as a result of an enrichment such that requiring the return of the enrichment would be inequitable. [ 62 ] I conclude there is no defence to Ms. MacPherson’s unjust enrichment claim. d. What is Ms. MacPherson’s remedy? [ 63 ] Ms. MacPherson seeks a remedy reflective of the parties’ joint family venture, as described in Kerr v. Baranow , 2011 SCC 10 at paragraphs 60 to 69, and 87 to 100 . She seeks an unequal division of Mr.

Williams’ RRSPs and the value of the parties’ home. A joint family venture allows me to consider the mutual conferral of benefits. [ 64 ] These parties were engaged in a joint family venture throughout their relationship, based on their mutual effort, economic integration, actual intention and the priority they gave to their family. [ 65 ] The parties pooled their resources where Ms. MacPherson “took on all, or a greater proportion, of the domestic labour” freeing Mr. Williams to enhance his employment qualifications and advance his career: Kerr v. Baranow , 2011 SCC 10 at paragraph 91 .

They chose to have a family and had two children, the younger of whom was 15 when her parents separated. Ms. MacPherson left work for a period to raise the couple’s daughters. She and the girls relocated from Nova Scotia to Jasper after Mr. Williams went to work for Parks Canada. She lived in places where there was no employment for her as a graphic designer because that advanced Mr.

Williams’ career. [ 66 ] The parties’ finances were integrated: both parties contributed to the household expenses and they shared in significant financial decisions, such as buying the Boylston home in 2000 and living there, together or alone, at different times. They planned for their eventual retirement in Boylston. This conduct shows “they intended the domestic and professional spheres of their lives to be part of a larger, common venture”: Kerr v.

Baranow , 2011 SCC 10 at paragraph 95 . [ 67 ] In deciding if the parties (or one of them) has given priority to the family, my focus is “on contributions to the domestic and financial partnership, and particularly financial sacrifices made by the parties for the welfare of the collective or family unit”: Kerr v. Baranow , 2011 SCC 10 at paragraph 98 .

Examples offered include: • Leaving the workforce for a period to raise children • Relocating for the benefit of the other party’s career (and giving up employment and employment-related networks as a result) • Foregoing career or educational advancement for the benefit of the family or relationship • Accepting underemployment in order to balance the financial and domestic needs of the family unit ( Kerr v. Baranow , 2011 SCC 10 at paragraph 98 ). [ 68 ] In each of these ways, Ms. MacPherson has given priority to the family. Mr.

Williams gave priority to the family by working away from home, so he could support the family, a personal sacrifice made for the family’s benefit. [ 69 ] When the parties separated, the mortgage was approximately $45,000.00. After the separation in 2013, Ms. MacPherson and the couple’s younger daughter, Molly, remained in the home while Mr. Williams lived and worked in Halifax. He paid the mortgage and the credit line that was secured by the home. [ 70 ] At some point, Mr. Williams told Ms. MacPherson that if she intended to continue living in the home, she’d have to begin paying him for some of the expenses.

She couldn’t afford to do this, so she and Molly moved into the basement apartment at her uncle’s convenience store. Ms. MacPherson worked longer hours at the store in exchange for this housing. She was taxed for this benefit. [ 71 ] The home was left empty after Ms. MacPherson and Molly moved. Ms. MacPherson’s efforts to engage Mr. Williams in selling the property were unsuccessful. Sometime around December 2014 Mr. Williams changed the locks on the property. [ 72 ] In November 2016 when Mr. Williams made his assignment into bankruptcy, the mortgage was approximately $32,000.00. Mr.

Williams’ interest in the Boylston home passed to his trustee in bankruptcy in November 2016, with his assignment into bankruptcy. When this happened, Ms. MacPherson started paying the costs associated with the home. She paid approximately $11,000.00 before ultimately paying the trustee $18,000.00 for Mr. Williams’ half-share of the home. The $18,000.00 payment was roughly one-half of the equity in the home, after the mortgage, credit line and notional disposition costs were deducted. Her payment was distributed among Mr. Williams’ creditors. [ 73 ] By staying in Truro and caring for the couple’s older child, Ms.

MacPherson enabled Mr. Williams to improve his employment credentials which, in turn, improved his income and his retirement savings. Mr. Williams frequently pursued work that left Ms. MacPherson solely responsible for the home and the children. [ 74 ] Mr. Williams conferred benefits on Ms. MacPherson, as well. His income was used to pay the major family bills while the couple was together and in the initial period after their separation. Ms. MacPherson and the children benefit from his income. [ 75 ] Mr.

Williams made the sacrifice of working away from home when jobs weren’t available in Nova Scotia and living apart from the family when his Nova Scotian workplace was too far from the couple’s home. Ms. MacPherson sacrificed, too, when Mr. Williams worked or lived away from home: he couldn’t share the day-to-day responsibilities of caring for the home and the children. [ 76 ] Ms. MacPherson makes a proprietary claim.

As McInnes notes in The Canadian Law of Unjust Enrichment and Restitution (Markham: LexisNexis Canada, 2014) at page 1205, the “most common” ground for making a proprietary claim is where a claimant says that he or she provided money, goods or services that facilitated the defendant’s accumulation of assets, though he or she did not

financially contribute to the property’s acquisition. This includes the claimant using money to pay daily bills while the defendant acquires property or providing unpaid labour or performing services that preserved or enhanced the defendant’s property. [ 77 ] Here, Ms. MacPherson provided unpaid labour and worked to enhance the home. Mr. Williams’ retirement savings left Ms. MacPherson to use her funds to meet household needs rather than save for her retirement. [ 78 ] An order for proprietary relief requires greater justification than one for personal restitution.

McInnes says the same four factors are consistently cited when proprietary relief is claimed: 1. A monetary order must be inadequate 2. There must be a sufficiently substantial and direct nexus between Ms. MacPherson’s contribution and Mr. Williams’ property 3. The duration of the relationship must make it appropriate to ensure that both parties enjoy proprietary interests that allow them to share in accumulated assets 4. Ms. MacPherson must have acted with a reasonable expectation of receiving an interest in Mr. Williams’ property McInnes, supra , at pages 1206-1208 [ 79 ] A monetary remedy would be inadequate.

The RRSPs are tax-deferred savings. The initial deposit into the RRSP and its growth are both tax deferred until withdrawn. If the initial deposit was invested in shares, there may be share splits. A monetary award does not provide Ms. MacPherson with these advantages. [ 80 ] Mr. Williams’ RRSPs were acquired through his employment. Throughout the relationship, Ms. MacPherson contributed to Mr. Williams’ employment by caring for the home and family while he improved his qualifications and pursued positions that took him away from home.

I find this connection is substantial and sufficiently direct. [ 81 ] This is a 24-year long relationship which makes it appropriate to ensure both Ms. MacPherson and Mr. Williams share the accumulated assets. [ 82 ] Ms. MacPherson’s actions in expectation of receiving an interest in Mr. Williams’ RRSPs were reasonable. The parties invested significantly in purchasing a house in Boylston. Ms. MacPherson worked to make this into their home, planning for their retirement. She remained there, abandoning work as a graphic designer, while Mr. Williams advanced his career and accumulated retirement savings. Ms.

MacPherson’s expectations were reasonable. [ 83 ] I find the circumstances of the parties’ relationship justify an equal division of Mr. Williams’ RRSP contributions. An equal division reflects their joint contribution and the expectation that the domestic and professional spheres of their lives were part of a larger, common venture. [ 84 ] I find it is not appropriate to make any order regarding the Boylston home. During cohabitation, the parties jointly contributed to acquiring the home, each in his or her own way.

After their separation – when their joint family venture ended – each party made a direct financial contribution to the home’s value. Mr. Williams paid costs from June 2013 until his bankruptcy in November 2016. After November 2016, Ms. MacPherson paid the costs. Ultimately, she paid Mr. Williams’ trustee one-half the home’s equity which was distributed among Mr. Williams’ creditors. The current division of its value, in approximately equal shares, is appropriate. e. Mr.

Williams’ pension [ 85 ] Pension division legislation allows common law spouses to divide pensions without making trust or unjust enrichment claims. The division is enabled by the statute. Ms. MacPherson didn’t claim a share of Mr. Williams’ pension under any pension division legislation. [ 86 ] Mr. Williams swore two Statements of Property: one was sworn in 2015 and one was sworn in 2017. [ 87 ] When Ms. MacPherson started her claim, she had Mr. Williams’ 2015 Property Statement where he swore that he had no pension.

He swore he had four locked in RRSPs. [ 88 ] On the day I heard the motion for directions and scheduled the hearing, Mr. Williams filed his 2017 Property Statement and an affidavit at the court. These were both sworn on the same day. [ 89 ] In his 2017 Property Statement, Mr. Williams swore that he had six RRSPs and one pension: • three RRSPs at TD, • one RRSP at London Life, • one group RRSP at ManuLife, and • one group RRSP with CLAC, the Christian Labour Association of Canada. [ 90 ] He swore that his one pension was with CLAC and that it had no value at November 2016.

[ 91 ] In his affidavit, Mr. Williams swore to the assets which had not vested in his trustee: five RRSPs (none at London Life) and the CLAC pension. [ 92 ] Mr. Williams filed his last affidavit six weeks before the hearing began and well after pleadings closed. In this affidavit, he provided a letter from CLAC containing a screen shot of his “Pension current account balance”, showing a current market value of $11,285.88 for his CLAC pension plan. [ 93 ] Mr. Williams’ property disclosure was inconsistent. He did not consistently disclose the existence of RRSPs.

He did not consistently disclose the existence of a pension. He did not report consistent values for these assets. [ 94 ] Mr. Williams’ evidence about his assets and their values was inconsistent. Ms. MacPherson didn’t have disclosure in a timely way that would allow her to make a pension division claim, so I am making no decision about any claim by Ms. MacPherson to Mr. Williams’ pension. [ 95 ] I order Mr. Williams to obtain statements showing the year end balance in every pension and group RRSP in his name at CLAC for the years ending 2013, 2014, 2015, 2016, 2017 and 2018, and to provide these to Ms.

MacPherson by March 29, 2019. Mr. Williams’ counsel will prepare this order. [ 96 ] If Mr. Williams only has a group RRSP at CLAC, my decision will resolve Ms. MacPherson’s claim to it. If Mr. Williams has a pension at CLAC that existed when the parties separated, my decision does not resolve that claim and Ms. MacPherson may make that claim. 4. Support variation [ 97 ] Mr. Williams wants to vary Judge Daley’s child and spousal support order. Judge Daley’s decision is reported at 2016 NSFC 13 . [ 98 ] Judge Daley noted that an annual income of $85,332.00 had been imputed to Mr. Williams: paragraph 43.

Elsewhere, he said that the parties agreed Mr. Williams’ annual income was $85,332.00. [ 99 ] I’m analysing the variation application on the basis that Mr. Williams’ income was not imputed. I do this because no reason was provided for imputing income. If income was imputed, then a reason must be provided for the imputation of income, so a later judge can determine whether a change has occurred, and support should be varied: Trang , 2013 ONSC 1980 at paragraphs 46 , 50-60. [ 100 ] Mr. Williams asks me to change his child and spousal support effective March 2017 when he filed his variation application. a.

Child support [ 101 ] Ms. MacPherson claims the table amount of child support. She didn’t want Molly to prepare Expense or Income Statements, so she hasn’t asked for a contribution to Molly’s special expense for post-secondary education under clause 7(1) (

e) of the Child Maintenance Guidelines , NS Reg. 53/98 . [ 102 ] Molly works during the school year and vacations to earn money for her education. She has student loans. Ms. MacPherson helps financially. [ 103 ] The parties agree Molly’s entitled to child support under

section 3 of the Guidelines until she finishes her post-secondary program. I order that Ms. MacPherson notify Mr. Williams and the Maintenance Enforcement Program when Molly completes her program. Mr. Williams’ last child support payment is due in the month when Molly graduates. [ 104 ] The parties disagree on the amount of Mr. Williams’ income and who should receive the child support payments. i. What is Mr. Williams’ income? [ 105 ] I must use the current income information when determining child support: Guidelines , subsection 2(3). 1. 2017 [ 106 ] In 2017, Mr. Williams’ gross earnings were $77,060.44. From this, I must make the adjustments in

Schedule III of the Guidelines . I deduct his union dues of $976.53, leaving annual earnings of $76,083.91. [ 107 ] In 2017, Mr. Williams received $387.86 from Blue Cross for two weeks when he was off work and collecting short term disability benefits, so his total income was $76,471.77. This amount reflects Mr. Williams working at less than full-time employment. I accept that this brief period of unemployment was for health reasons and the reduction in his income is appropriate. [ 108 ] Mr.

Williams must pay monthly child support of $647.00 from March 2017 to November 2017 based on subsection 3(1) of the Guidelines . He owes child support of $5,823.00 for this period. [ 109 ] The Guidelines changed effective December 2017 and Mr. Williams must pay child support of $655.00 for December 2017 based on the current tables. 2. 2018 [ 110 ] Mr. Williams was paid weekly at the shipyard. By March 17, 2018 his gross income was $17,537.31. He stopped working on June 12, 2018 because of his motorcycle accident.

[111] I’ve taken the income Mr. Williams earned during the first 11 weeks of 2018 and divided it by 11 to determine his weeklyincome (17,537.31/11 = 1,594.30). I’ve multiplied his weekly income by 23 to determine his earnings until June 12, 2018 when hestopped working (1,594.30 x 23 = 36,668.90). This assumes Mr. Williams’ average earnings during the first 11 weeks of 2018 wereconsistent until his accident. I calculate total earnings of $36,668.90 from January 1, 2018 until June 12, 2018. [112] From his earnings, I deduct union dues of $488.26 under

Schedule III of the Guidelines. I’ve estimated this amount based on Mr.Williams’ 2017 union dues. His 2018 earnings are $36,180.64 for child support purposes. [113] Since his accident, Mr. Williams has received Blue Cross benefits of $547.00 each week (547 x 29 = 15,863). These paymentsare taxable. He received $15,863.00 from Blue Cross in 2018. [114] Mr. Williams also receives

Section B benefits of $250.00 each week from Intact Insurance. These are not taxed. I have grossedthem up by 30% to reflect their pre-tax value so I can apply Child Maintenance Guidelines which are based on pre-tax income (250 x 1.3= 325). His

Section B benefits provided him with the equivalent of $9,425.00 (325 x 29 = 9,425). [115] Mr. Williams’ 2018 is calculated as follows: Earnings - $36,180.64Blue Cross - $15,863.00Intact - $ 9,325.00TOTAL INCOME $61,468.66 [116] Starting on January 1, 2018, Mr. Williams’ monthly child support obligation was $524.00. He owes child support of $6,276.00for 2018. 3. 2019 [117] I calculate Mr. Williams’ 2019 income as follows: Blue Cross - $28,444.00 Intact - $16,900.00 TOTAL INCOME $45,344.00 [118] Starting on January 1, 2019, Mr. Williams must pay monthly child support of $386.00. ii.

Who should receive Molly’s child support payments? [119] Mr. Williams wants to pay support directly to Molly. He says there’s “no reason” for support to be paid to Ms. MacPherson. Ms.MacPherson wants to receive the payments. [120] Mr. Williams last spoke with Molly by phone at Christmas in 2017. Mr. Williams told Molly he had a Christmas gift for her. Hestarted to talk to Molly about money and sent her screen shots of his bank account “to show her where the money was going”. Their callended. I have no evidence that Mr.

Williams ever sent Molly the Christmas gift after their call. [121] Since this phone call in December 2017, Molly hasn’t had contact with her father. [122] Mr. Williams has been in arrears of his support payments. [123] Molly is 20. With work and student loans, she understands the realities of her financial situation. Molly should not be exposed toher parents’ dispute over her support or involved in enforcement efforts. Mr. Williams has tried to bring Molly into the dispute about hersupport, Ms. MacPherson has tried to shield Molly from it. I order Mr.

Williams to make Molly’s child support payments to Ms.MacPherson. b. Spousal support [124] It’s agreed that Ms. MacPherson is entitled to spousal support. The parties disagree on each other’s income and whether thereshould be a time limit on the spousal support payments. i. What is the basis for Ms. MacPherson’s entitlement to spousal support? [125] Ms. MacPherson is entitled to spousal support. There is no agreement on the basis for her entitlement. I find her entitlement tobe compensatory and non-compensatory.

In terms of her compensatory entitlement, she contributed financially indirectly to assist Mr.Williams in his education and career development: Shurson, 2008 NSSC 264 at paragraph 13. In terms of her non-compensatoryentitlement, this relationship created interdependencies and expectations of dependency. Non-compensatory support recognizes andenforces the consequent obligation: Bracklow, (SCC) at paragraphs 23, 27, 30 - 31. ii. What is Mr. Williams’ income? [126] While Ms. MacPherson agreed Mr.

Williams’ child support payments should reflect his actual income, she argued that incomeshould be imputed to him for the purpose of spousal support.

[ 127 ] Ms. MacPherson said that Mr. Williams was able to find profitable work when he wanted to and that he’s chosen not to: for example, he was working at Ledcor in the spring of 2013. He left this job in July - around the time the couple separated - and took on a job at Dalhousie University at a substantial pay reduction. The Dalhousie job didn’t start until September. Mr. Williams stayed in Halifax and didn’t work at all during the summer of 2013. Mr.

Williams said he thought working in Halifax would let him be closer to Molly (who still lived in Boylston) and reduce tuition costs if Molly wanted to study at Dalhousie. Molly was 15 and years away from attending university. [ 128 ] Mr. Williams worked at Dalhousie until April 2014, when he went to northern Alberta to work for Saipem Construction. In one month, he earned approximately $29,000.00. When his job at Saipem ended in May 2014, Mr. Williams was unemployed until September 2014 when he went to work in Saskatchewan at PCL Energy.

He offered no evidence to explain why he was not working or what efforts he made to find work from May to September 2014. In his first three months at PCL Energy, Mr. Williams received $61,796.41 in earnings, overtime and allowances. [ 129 ] Mr. Williams stayed at PCL Energy until he was laid off in April 2015. During the first four months of 2015, he earned $53,013.69 at PCL Energy. [ 130 ] After his layoff, Mr. Williams received Employment Insurance benefits until he went to work in Newfoundland at Kiewit for three months (June – August 2015).

He then returned to Irving Shipbuilding where he remained until his motorcycle accident. [ 131 ] Mr. Williams has had longer and more frequent periods of unemployment since Judge Daley ordered him to pay support in early 2016. [ 132 ] Mr. Williams’ annual total income since separation is shown on the following page. 2013 $ 89,832.79 2014 $103,038.62 2015 $ 90,275.97 2016 $ 72,275.39 Judge Daley ordered support payments in early 2016 2017 $ 76,471.77 [ 133 ] Judge Daley’s order was based on an annual income of $85,332.00 - $9,000.00 less than Mr.

Williams’ average income for the three years before the order was made. [ 134 ] Mr. Williams’ income decreased after he was ordered to pay support. Mr. Williams didn’t explain why he couldn’t earn as much as he did before Judge Daley ordered he make support payments and he didn’t identify efforts he made to find employment at times when he wasn’t working. [ 135 ] I find it is appropriate to impute income to Mr. Williams for the period prior to his accident. Based on clause 19(1) (

a) of the Child Maintenance Guidelines , I impute to him the same annual income the parties agreed upon in 2016: $85,332.00. Historically, the parties agreed this amount was appropriate. Mr. Williams’ employment history after 2016 shows he was able to find work which provided an excellent income. An annual income of $85,332.00 was achievable. iii. What is Ms. MacPherson’s income? [ 136 ] Mr. Williams wants me to impute income to Ms. MacPherson. He says I should impute an annual income of $34,463.00 to Ms. MacPherson. This is the amount she earned in 2017. She earned $33,920.00 in 2016. [ 137 ] Ms.

MacPherson says her annual income should be fixed at $26,000.00. The store was closed for a period and she was unsure “when it will open or what [her] work commitment/income will be when it does”. She says her income will not exceed her previous pay level. [ 138 ] Ms. MacPherson’s earnings (from her Notices of Assessment or Re-Assessment) are shown below. When she worked at the store and was provided with accommodations as part of her remuneration, she received a T4 slip which valued that benefit for tax purposes. I have excluded the amounts Ms. MacPherson received as support from Mr.

Williams. 2014 $33,520.00 2015 $34,000.00 2016 $33,920.00 2017 $34,462.75 (from her 2017 T4) [ 139 ] Absent evidence that she is earning less than she has earned in the recent past, I conclude that Ms. MacPherson will continue to earn an annual income in the range of $33,250.00. iv. How much spousal support should Mr. Williams pay Ms. MacPherson? 1. March 2017 to June 2018 [ 140 ] Mr. Williams applied to vary his spousal support payments in March 2017. [ 141 ] I’ve imputed an annual income of $85,332.00 to Mr. Williams for the period before his accident.

[142] In 2016, the parties agreed to impute an annual income of $33,000.00 to Ms. MacPherson. Her actual annual income in 2016 was$33,290.00 and $34,462.75 in 2017. [143] Based on these income amounts, I find there is no change in circumstances enough to provide me with jurisdiction to vary JudgeDaley’s spousal support order from Marcy 2017 to June 2018. [144] I dismiss Mr. Williams’ application to vary his spousal support payments during this period. 2. Prospective: ongoing from July 2018 [145] Since his accident, Mr. Williams’ annual income is $45,344.00.

This is considerably less than his income in previous years. Ms.MacPherson’s annual income has been relatively stable, around $33,250.00. [146] From his income, Mr. Williams has the obligation of paying monthly child support of $386.00. This reduces his gross annualincome from $45,344.00 to $40,712.00 so he and Ms. MacPherson have annual incomes that are within $7,500.00 of each other. [147] I order Mr. Williams pay monthly spousal support of $350.00 to Ms. MacPherson starting on July 1, 2018. This amount reflectsMs. MacPherson’s non-compensatory entitlement, in the context of Mr.

Williams’ reduced income. [148] In determining spousal support, I have given priority to Mr. Williams’ obligation to support Molly, as I must under subsection3A(1) of the Parenting and Support Act. So, the future termination of Molly’s support will constitute a change of circumstances for thepurposes of an application to vary Ms. MacPherson’s spousal support under subsection 3A(2) of the Parenting and Support Act. v. Should Ms. MacPherson’s spousal support be time-limited? [149] Mr. Williams asks for a time-limited order, suggesting a time limit of seven years is appropriate. Ms. MacPherson is 49.

In sevenyears, she’ll be 56. [150] Ms. MacPherson’s formal education ended thirty years ago, when she was 20. For the last decade she has worked in her family’sconvenience store. When the couple separated in 2013, their younger daughter had just turned 15. With limited work skills, Ms.MacPherson chose to remain in Boylston where she had accommodating employment at her family’s store, and where Molly’s schooland social life would not be disturbed. Mr. Williams was working and living in Halifax. There was no suggestion that Molly would livewith her father. Ms.

MacPherson’s choice to remain in Boylston was reasonable, given her employment and economic circumstances,and Molly’s well-being. [151] In 2016, Judge Daley ordered Mr. Williams to pay prospective and retroactive child and spousal support and costs. Mr. Williamsfell into arrears of the retroactive spousal support payments within three months of Judge Daley’s order. Within eight months of JudgeDaley’s order, Mr. Williams began bankruptcy proceedings. The mortgage and credit line became Ms. MacPherson’s responsibility. Ms.

MacPherson became more dependent on the affordable housing and accommodating employment offered by her family. Hercontinued economic dependency is reasonable. [152] This was a 24-year relationship of clear economic dependency. [153] The Court of Appeal has repeatedly said that time limited orders based on the anticipated achievement of self-sufficiencyshouldn’t be made “unless the evidence supports the conclusion that, with reasonable effort, self-sufficiency probably will be achievedwithin the limited time”: MacLennan, 2003 NSCA 9 at 57, Huggins, 2000 NSCA 30 at 6, MacIsaac, (NS CA), andDonald, (NSCA).

There is no such evidence here and I dismiss Mr. Williams’ request that I make a time limitedorder. 5. Arrears [154] Mr. Williams did not keep current in paying his support payments. The parties agree that as of March 2017, Mr. Williams owedsupport arrears of $21,557.83. 6. Settlement information [155] Mr. Williams objects to providing information about settlement discussions relating to his motorcycle accident claim. He saysthe negotiations might be harmed by the disclosure. Ms. MacPherson says that if Mr.

Williams isn’t required to disclose the offers andfinal settlement, it will be possible to craft a settlement that doesn’t fairly reflect his wage loss and her spousal support claims could beundermined. [156] I accept Ms. MacPherson’s argument. Mr. Williams has offered no evidence of how negotiations would be compromised by thisdisclosure. Disclosure will ensure that negotiations are not structured to undermine Ms. MacPherson’s spousal support claim. [157] Mr. Williams must inform Ms. MacPherson about the resolution of his claim for the income he’s lost because of his accident.

Iorder him to provide her with information about settlement offers and the ultimate resolution of this claim. 7. Costs [158] If the parties cannot resolve the issue of costs, they may make submissions to me in writing, providing copies of any settlementoffers. Mr. Williams shall file his submissions by February 15, 2019 and Ms. MacPherson shall respond by March 1, 2019.

Submissions are limited to five pages. [159] Ms. MacPherson’s counsel will prepare the order once a decision has been made, if needed, on costs. __________________________ Elizabeth Jollimore, J.S.C. (F.D.) Halifax, Nova Scotia