Crowe v. Crowe, 2012 NSSC 180

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Crowe v. Crowe, 2012 NSSC 180 Date: 20120508 Docket: SAMD-075274 Registry: Amherst Between: William Randolph Crowe Petitioner v. Cynthia Jane Crowe Respondent LIBRARY HEADING Judge: The Honourable Justice Elizabeth Jollimore Heard: February 21 and April 20, 2012

Summary: Petition for divorce seeking spousal support and property division. Property and debts divided pursuant to ss. 13 (

b) of the Matrimonial Property Act and spousal support awarded to disabled spouse. Key words: Divorce Act , family, unequal property division, spousal support, pension, student loan Legislation: Divorce Act , R.S.C. 1985 (2 nd Supp.), c. 3, subsection 15.2(4), clauses 15.2(6)(

a) and (

c) Income Tax Act , R.S.C. 1985, (5 th Supp), c. 1, subsections 56.1(1) and 60.1(2) Matrimonial Property Act , R.S.N.S. 1989, c. 275, subsection 12(1), subsections 13 (a), (

b) and (

e) Pension Benefits Division Act , S.C. 1992, c. 46, Sch. II Pension Benefits Division Regulations (SOR/94-612) Public Service Superannuation Act , R.S.C. 1985, c. P-36 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: Crowe v. Crowe, 2012 NSSC 180 Date: 20120508 Docket: SAMD-075274 Registry: Amherst Between: William Randolph Crowe Petitioner v. Cynthia Jane Crowe Respondent Judge: The Honourable Justice Elizabeth Jollimore Heard: February 21 and April 20, 2012, in Amherst, Nova Scotia Counsel: Andrew C. Melvin for William Crowe Catherine M. Hirbour for Cynthia Crowe By the Court: Introduction [1] This is the divorce and corollary relief proceeding of Randy and Cynthia Crowe. I’m asked to resolve the division of theirproperty and Mr.

Crowe’s claim for spousal support. [2] The couple cohabited from 1987 until September 2007, marrying in September 1988. Together, they are the parents of a son anda daughter. Additionally, Ms. Crowe has a son from an earlier relationship and Mr. Crowe has two other children. Mr. Crowe becamedisabled and left the workforce in 1991. His health has further deteriorated as time has passed. [3] The Crowes’ son is employed and lives on his own. By virtue of their daughter’s age and circumstances, there are no claimsrelating to her custody or support.

Approach to issues [4] Where there are multiple issues, they must be approached in their logical order. This means beginning with the division ofproperty. In some cases, a property division may obviate a spousal support claim, as Justice Morrison noted in Harwood v. Thomas,(1980), (NS SC), 43 N.S.R. (2d) 292 (T.D.), affirmed at Harwood v. Thomas, (1981), (NS CA), 45N.S.R. (2d) 414 (A.D.). Alternately, the division of property may affect expenses that are relevant to a spousal support claim.

Divorce [5] Mr. Crowe’s evidence of marriage breakdown is that the parties have lived separate and apart since September 2007. There is noprospect of their reconciliation. Mr. Crowe has lived in Nova Scotia long enough to give me jurisdiction to grant the divorce. [6] All the jurisdictional and evidentiary requirements have been met and I grant the divorce. Property division application [7] Initially, the division of all property was contested.

When the trial began I was told that the parties had reached an agreementabout the division of their household contents and the sharing of their family photographs. [8] The Matrimonial Property Act, R.S.N.S. 1989, c. 275 provides that matrimonial assets are to be divided equally. In limitedcircumstances, the Act allows for an unequal division of matrimonial assets and a division of non-matrimonial assets. Assets [9] I’ll start with the issues relating to the assets: they must be identified; classified pursuant to section 4(1) of the MatrimonialProperty Act; and a preliminary value placed on each asset.

The value is preliminary because a final value can only be determined onceI’ve resolved issues relating to encumbering debts. Once I’ve dealt with the assets, I’ll move to the issues relating to the debts:identifying them, classifying them and determining the amounts owed. Ms. Crowe claims an equal division of matrimonial assets, asmandated by the Act, would be unfair or unconscionable. So, I must consider her claim under

section 13 of the Act. Identifying assets [10] Ms. Crowe’s Statement of Property was entered into evidence. It listed the assets as the couple’s Terris Street home, a 2001 KiaSephia and Ms. Crowe’s employment pension. The parties have agreed to sell their home, though they have not yet taken steps to listit. Classifying assets [11] There was no dispute that the home, car and Ms. Crowe’s pension are matrimonial assets.

Valuing assets [12] In Simmons, (NS S.F.), at paragraph 34, Justice Campbell outlined general principles for determining the dateon which to value an asset: use separation date values for assets which are consumed by use or “whose value has been earned or accruedby reference to the passage of time” and value other assets when the spouses do their accounting.

While a trial decision, Simmons, (NS S.F.) has twice been lauded by the Court of Appeal: in Moore, 2003 NSCA 116 at paragraph 24, Justice Hamiltondescribed the decision as “[a] good review of the rationale behind the choice of valuation date” and in Morash, 2004 NSCA 20 atparagraph 21, Justice Bateman said it provided “a comprehensive discussion of ‘valuation date’”. Justice Campbell’s general principlesfit well within the context of the Court of Appeal’s statement that there is “no requirement in Nova Scotia to assign a single valuationdate for all matrimonial assets” in Reardon v.

Smith, 1999 NSCA 147, at paragraph 38. The matrimonial home [13] In Simmons, (NSSF) at paragraph 33, Justice Campbell said that real estate would normally be valued at thetime when it is divided. The matrimonial home’s value will be determined by its sale. [14] Until then, for the purposes of my analysis, I do need to have some idea of the home’s value. Ms. Crowe testified that shethought when the home sold there would be a deficit. In her evidence, she valued the house at $25,000.00. Mr. Crowe did not place anyvalue on the home. [15] Based on Ms.

Crowe’s evidence, a place a preliminary value of $25,000.00 on the matrimonial home. The 2001 Kia Sephia [16] Ms. Crowe valued the 2001 Kia Sephia at $2,050.00, a value she supported with a printout from the online Canadian BlackBook. Mr. Crowe didn’t challenge this value. Ms. Crowe’s pension [17] The value of Ms. Crowe’s pension is important because she asks me to order an unequal division allowing her to keep herpension. Analysing a claim for an unequal division means assessing the evidence with regard to Ms.

Crowe’s argument that an equaldivision is unfair or unconscionable and, if I accept her argument, determining what division would be fair. Implicit in Ms. Crowe’srequest that I “divide properly unequally so [she] may keep [her] pension” is the suggestion that a fair division equals the value of herpension. I need to know the value of her pension to understand the extent of the unequal division she seeks. [18] The first issue relating to the value of Ms. Crowe’s pension is the period of time to which the pension relates. Ms.

Crowe claimsthat the portion of her pension that should be valued is the portion she had earned up until the time the couple separated. Mr. Croweargues it should include the portion of Ms. Crowe’s pension that pre-dates their marriage. [19] Ms. Crowe’s testimony was that she currently pays two pension amounts: one federal and one provincial. She said that one wasfor “back in ‘88 and ’89 when [she] worked at Correctional Services Canada”. Twice she explained that there were differing pay scalesbetween her federal employment and her provincial employment.

Once, she said that the differing pay scales meant she must “buy back

the provincial pension” and, almost immediately after she said that, she said that the provincial pension was transferred to the federal one and she had more than two years of employment by the federal government in the 1980s. She concluded “So, I’m buying back federal time and the difference between federal and provincial time”. [ 20 ] It’s difficult to reconcile Ms. Crowe’s testimony with the documents introduced into evidence. [ 21 ] A pension transfer document estimated that, as of February 28, 2009, Ms.

Crowe had $57,776.70 (reflecting eight years, 132 days of pensionable service) to transfer from her provincial pension to her federal one. The form also stated that additional pensionable service of one year, 263 days could be purchased at a lump sum cost of $11,891.93 or by monthly payments of $77.91 for twenty years (the amounts are noted to be approximates). Ms. Crowe completed this form on April 2, 2009 authorizing the transfer of her accrued provincial pension benefits to the federal Public Service Superannuation Act . [ 22 ] Ms. Crowe completed a Service Buyback Form on March 11, 2011.

In it, she opted to pay “for the following service for pension purposes” and indicated the period starting April 1, 1998 and ending October 28, 1999 which is the period of her full-time employment at the Nova Scotia Department of Community Services. She authorized a monthly deduction of $78.71 from her salary for this purchase. [ 23 ] October 28, 1999 is shown on the Service Buyback Form as the date to which Ms. Crowe wanted to purchase pensionable service. This date matches the date shown on the Service Buyback Notice as the earliest date of pensionable service being purchased by the transfer of Ms.

Crowe’s Nova Scotia pension funds. The forms relate to her buying, as federal service, years of service which pre- date the years of service which were bought by her pension fund transfer. [ 24 ] A review of these exhibits suggests that Ms. Crowe is paying an additional contribution to her pension to buy earlier years of provincial service. Her October 26, 2011 paystub shows a deduction of $78.81 with the abbreviated comment “PSSA2 ELCTN CRNT x2” which, I assume, means something about the Public Service Superannuation Act election. More than that, I’m not prepared to hazard. [ 25 ] Ms.

Crowe was clear in saying that she was buying back her earlier years of federal service. She said she could buy eighteen months. She admitted she didn’t know where the documents for this were. Returning to her October 26, 2011 paystub, it shows a monthly deduction of $56.40 with the abbreviated comment “PSSA1 ELCTN CRNT x1”. [ 26 ] Each of the deductions I’ve mentioned in paragraphs 24 and 25 is in addition to Ms.

Crowe’s regulation monthly superannuation contribution. [ 27 ] As Justice Bateman made clear in Morash , 2004 NSCA 20 , the Matrimonial Property Act governs whether the pension will be divided equally or unequally. Ms. Crowe’s pension is pursuant to the Public Service Superannuation Act , R.S.C. 1985, c. P-36 and t he mechanics of its division are governed by the Pension Benefits Division Act , S.C. 1992, c. 46, Sch. II and the Pension Benefits Division Regulations (SOR/94-612). [ 28 ] One variable of a pension’s value is the length of time over which contributions have been made.

In Morash , 2004 NSCA 20 , Justice Bateman addressed this issue in the context of a pension to which contributions had been made both before the marriage and after separation. Mr. Morash’s pensioned employment began four years before the couple married. Justice Bateman determined that the pension benefit which pre-dated the marriage was a matrimonial asset, quoting the language in the opening of section 4(1) of the Matrimonial Property Act : “‘ matrimonial assets’ means [. . .] all other real and personal property acquired by either or both spouses before or during their marriage” (emphasis added). [ 29 ] Mr.

Crowe argued that the portion of Ms. Crowe’s pension earned prior to their marriage was a matrimonial asset and its’ value should be considered in the property division. I accept this is a correct statement of the law; however, I’m not persuaded that the circumstances before me are ones to which the law applies. [ 30 ] Ms. Crowe says that when she left her job at the Springhill Institution in the late 1980s, she did not leave a pension behind. She returned to federal employment after the separation: Ms.

Crowe returned to work for the federal government after the couple separated and she has been financing her pension buy back with her post-separation earnings. [ 31 ] Ms. Crowe was asked whether she had the opportunity to purchase these past years of service because she paid into the pension during her earlier term of employment. She didn’t know. I have no evidence which suggests that she’s been able to purchase the prior years of service for some reason that related to circumstances earlier in the marriage. Ms.

Crowe testified that when she left her federal employment in the late 1980s, she took with her whatever pension she had, taking her contributions which became part of the family’s resources. [ 32 ] In Morash , 2004 NSCA 20 , Justice Bateman determined that the pre-marriage pension benefit a spouse brings to a marriage was a matrimonial asset based on the definition of matrimonial assets in section 4(1) : “ ‘ matrimonial assets’ means [. . .] all other real and personal property acquired by either or both spouses before or during their marriage” (emphasis added). Section 4(1) (

g) of the Matrimonial Property Act excludes “real and personal property acquired after separation unless the spouses resume cohabitation” from the definition of matrimonial assets. [ 33 ] The pension credits which Ms. Crowe is buying through her additional deductions are, I conclude, assets acquired after the separation and not matrimonial. They are being purchased after separation with income earned post-separation. The value of Ms.

Crowe’s pension is the value associated with her provincial and federal employment until September 27, 2007 which accrued to her at that date. [ 34 ] Now that I have determined the dates which are relevant to the pension benefit being divided, I must determine the value. [ 35 ] In the late 1980s, Ms. Crowe was employed by Correctional Service Canada, working at the Springhill Institution for “a few years”. Approximately a decade later, in 1999, she became an employee of the provincial government. In January 2009, she returned to

work for the federal government. [36] Ms. Crowe testified that she did not “leave behind” a pension when she left the Springhill Institution in the 1980s. When she leftthat job (and later employment by the municipality), she says her pension contributions were refunded to her. While working for theprovince, she contributed to a provincial government pension. She contributes to a federal government pension in her currentemployment. [37] When Ms. Crowe left the provincial government, she transferred her provincial pension to her new, federal pension.

HerProperty Statement attached a 2010 Service Buyback Notice from Public Works and Government Services Canada which states the cashcost of purchasing pensionable service from October 28, 1999 to April 1, 2008 to be $63,908.83. In the “Remarks” portion of thisstatement there is the notation: “service purchased by the transfer of $63,908.83 from PROVOFNS under the terms of the pensiontransfer agreement”. From this, I understand that $63,908.83 was the cost of purchasing Ms. Crowe’s membership in the federal pensionplan for the period from October 28, 1999 to April 1, 2008 when she wasn’t a federal employee. Ms.

Crowe said that the money used tobuy this membership was comprised of her contributions to her provincial pension and her employer’s contributions. [38] The forms identify $63,908.83 as the sum transferred from Ms. Crowe’s provincial government pension to her federal one. Thedocuments and Ms. Crowe’s testimony do not persuade me that the amount transferred is equal to the cost Mr. Crowe would have to payif he wanted to buy, today, the future income stream that he would receive if Ms. Crowe’s pension was divided at source.

It’s the presentvalue of the future pension income stream, an amount usually calculated by an actuary, which truly represents the value of Ms. Crowe’spension. I don’t have that information. The exact value of Ms. Crowe’s pension is important if I reach the point of determining theextent of an unequal division. To reach that point, I must first conclude that an equal division of matrimonial assets is unfair orunconscionable. Until I’ve done that analysis, I’ll use the information I have.

If it is inadequate, I may have to order an actuarialvaluation. [39] Combining the results of my analysis with the parties’ agreements means that the matrimonial assets have the preliminary valuesshown in the following table. Again, values are preliminary because I haven’t yet considered any encumbering debts or dispositioncosts. Asset Preliminary valueMatrimonial home 25,000.002001 Kia Sephia 2,050.00Ms. Crowe’s pension 63,908.83Total preliminary value 90,958.83 Dealing with debts [40] Like assets, debts must be identified, classified and their amount determined. Identifying debts [41] Ms.

Crowe’s Statement of Property listed the following debts: her Capital One MasterCard, her Sears credit card, her Pharmasavedebt, her federal student loan, her provincial student loan, a joint ScotiaBank loan on the matrimonial home and the property taxes andwater taxes for the matrimonial home. Mr. Crowe identified his MasterCard credit card as an additional debt. Neither disputed theexistence of the debts the other listed. Classifying debts [42] Ms. Crowe alleges all the debts she listed are matrimonial debts. Mr. Crowe alleges his MasterCard is a matrimonial debt. [43] Mr.

Crowe accepts that the Pharmasave account, the matrimonial home loan, the property taxes and the water taxes arematrimonial debts. [44] In his brief, Mr. Crowe disputed that the interest and penalties which accrued following the separation on Ms. Crowe’s CapitalOne MasterCard and her Sears credit card were matrimonial debts. He didn’t pursue this argument at the end of the trial. [45] In argument, Mr. Crowe said that Ms. Crowe’s federal and provincial student loans were not matrimonial debts. Ms. Crowe didnot accept that Mr. Crowe’s MasterCard was a matrimonial debt.

Where it isn’t agreed that a debt is matrimonial, the spouse whoalleges that the debt is matrimonial bears the burden of proof. So, Ms. Crowe bears the burden of proving that her Capital OneMasterCard, her Sears credit card and her student loans are matrimonial debts. Mr.

Crowe must prove his MasterCard is a matrimonialdebt. [46] According to Justice Roscoe in Bailey, (NS SC) at paragraph 23, when determining if a debt is “matrimonial”,I must decide whether it was incurred for the family’s benefit, whether it’s an ordinary household debt, and, if it arose after the coupleseparated, whether it was necessary to meet basic living needs or to preserve matrimonial assets. The decision in Bailey was approved bythe Court of Appeal in Ellis, (NS CA). Ms. Crowe’s Capital One MasterCard account [47] The Capital One MasterCard was in Ms. Crowe’s her sole name.

She says that she used it for gas, items the family needed andgroceries. I find that this debt is matrimonial: it was incurred for the family’s benefit. Ms. Crowe’s Sears credit card account [48] The Sears credit card account was also in Ms. Crowe’s name alone. She testified that the account was used for the household,

“for Christmas over the years, kids’ clothing”. I find this debt is matrimonial: it was incurred for the family’s benefit. Ms. Crowe’s federal and provincial student loans [49] Ms. Crowe earned an “administrative legal computers” certificate from Home Ed. She said there was no advantage to her careerfrom this until she went to work for the federal government. [50] After completing her Home Ed study, Ms. Crowe investigated further educational options. She researched different programs,looking at the courses, their duration, cost and other features, such as whether she’d be required to travel to attend them.

Ultimately shechose to study online from home through the University of Phoenix. [51] Ms. Crowe borrowed money to study online through the University of Phoenix. She says she incurred $30,000.00 in student loandebt. The proceeds from her student loans were deposited into the joint Credit Union account or into Ms. Crowe’s Royal Bank ofCanada account. She testified that Mr. Crowe had access to each of these accounts. Debits from the joint Credit Union account were ofthe sort one would expect for a family: payment of power and phone bills, purchases at clothing, sports, grocery, convenience, liquor anddrug stores.

Debits from Ms. Crowe’s Royal Bank of Canada account were also family-oriented: purchases at sports, grocery, drug andliquor stores and payment of insurance premiums. [52] Ms. Crowe said that a portion of her student loan funds were an “allowance” because she was studying online from her home. She said it was to cover “internet and lights”. She didn’t know how much this allowance was. [53] Some of the loan proceeds were spent for Ms. Crowe’s education. Bank records identified tuition costs of $2,754.06 for herUniversity of Phoenix courses. She spent $1,000.00 for a laptop computer for her own use.

The family already had a computer withinternet access. Neither spouse identified any other educational expenses that were financed with loan proceeds. [54] Despite doing “quite a bit” of research, after completing part of the University’s program, she learned that her study wasn’tconsidered fulltime.

She couldn’t afford to continue so she didn’t graduate or receive any sort of diploma from this study and shetestified that this didn’t help her employment circumstances. [55] In Schaller, (NS CA), Justice Roscoe, with whom Justices Matthews and Chipman concurred, overturned atrial decision that a student loan of $1,700.00 borrowed during a marriage was not a matrimonial debt. Ms. Schaller receivedunemployment insurance benefits while she took the business course for which she borrowed the money. The income was used for thefamily’s benefit and all the income Ms.

Schaller earned as a result of the diploma was used for the family’s benefit. On his Statement ofProperty, Mr. Schaller listed the loan as a debt. The Court of Appeal ordered the student loan be paid from the proceeds from the sale ofthe matrimonial home. [56] In Lubin, 2012 NSSC 31 at paragraph 39, Justice B. MacDonald held that a student loan was a matrimonial debt where Ms.Lubin enrolled in a two year program in sewing and fashion design during the marriage. Her student loan proceeds were used to payliving expenses. While Ms.

Lubin was two courses short of a earning a diploma, she did receive a certificate confirming her successfulcompletion of 1,465 hours of study. She worked in the fashion industry for two years after leaving the program and her earnings wereused to support the family. [57] In Crane, 2008 NSSC 33, Justice Forgeron reached the same conclusion that a student loan was a family debt where Ms. Cranereturned to university to study nursing after the closure of the drug store where she was employed.

At paragraph 37, Justice Forgeronsaid that “A substantial portion of these student loans were used to pay the day to day living expenses of the family.” [58] Mr. Crowe argues that the student loans are not a matrimonial debt: he says that they provided no benefit to family and there wasno benefit at all to Ms. Crowe’s employment until after separation. [59] The student loan proceeds were deposited to accounts which were used by both spouses, enhancing the income Ms. Crowecontributed to the household’s operation. Account records show that family bills were paid from these accounts.

Limited amounts wereused to finance education-related expenses (tuition and the computer purchase). Ms. Crowe’s studies didn’t deprive the family of incomebecause she continued to work while she studied. While there was no benefit from Ms. Crowe’s study during the marriage, she says ithas contributed to her current employment and this employment has financed her post-separation support for Mr. Crowe and thechildren. [60] I conclude that the loans were used for family expenses and they are matrimonial debts. Mr. Crowe’s MasterCard account [61] Mr.

Crowe testified that his MasterCard was used for different things: at one point in 2006 when the family’s water taxes wereunpaid and the water was going to be turned off, Mr. Crowe paid the bill which exceeded $1,000.00 with this credit card. He said thathis MasterCard was also used for Christmas in 2006. The couple separated the following September. [62] Ms. Crowe wasn’t always aware of Mr. Crowe’s MasterCard. She became aware of it when it was used to pay the water taxes. In Selbstaedt, 2004 NSSF 110, Justice Dellapinna said it isn’t essential for both parties to be aware of a debt for it to be matrimonial.

Hesaid, at paragraph 45, that the lack of awareness makes it more difficult to discharge the burden of proving the debt is matrimonial. Here, of course, Ms. Crowe did become aware of the existence of Mr. Crowe’s MasterCard and its family-related use. I find that Mr.Crowe’s MasterCard was a matrimonial debt. Determining the amount of the debts [63] Where parties agree on the amount of a debt, I accept their agreement. Where they disagree, I return to the applicable legalprinciples outlined by Justice Campbell in Simmons, (NS SF).

Ms. Crowe’s Capital One MasterCard account [64] Ms. Crowe didn’t identify the amount owed on this account when the couple separated. Her Property Statement attached a copyof the credit card statement for February 2007 when the balance was $856.24. She also provided a copy of the credit card statement forJuly 2008 which showed a balance of $1,281.30. She offered no evidence to explain the increase in the balance following the couple’sseparation. [65] Ms. Crowe said that she contacted the collection company in 2011 and offered to settle this debt.

Her offer was accepted and sheretired the debt in two months by paying $800.00. While the debt owed at earlier dates was greater than the amount Ms. Crowe paid toretire it, I find the amount of the debt, for the purposes of the property division, is $800.00. Ms. Crowe’s Sears credit card account [66] I wasn’t told the amount owed to Sears when the couple separated. Ms. Crowe provided a copy of a letter from a Quebec lawfirm demanding repayment of the debt of $2,041.14 owed to Sears and a further additional amount for interest and the collection letter.

This letter was dated August 3, 2007 so it is roughly contemporaneous with the date the couple separated. [67] Ms. Crowe says she contacted the collection company and made an offer to settle the debt which was accepted. She repaid thisdebt since late 2010 by paying $1,500.00. As I did with the Capital One MasterCard, I fix this as the amount of the debt.

The Pharmasave account [68] I was provided with an account statement showing that when the couple separated at the end of September 2007, the balance was$1,366.97. [69] From September 2007 to December 31, 2010, there was only one purchase on the account (for $4.93 in October 2008). Therewere various small payments (totalling $60.00) made in December 2007. In January 2008, there were “interest reversals” totalling$453.87. Otherwise, the account had a balance on December 31, 2010 of $1,116.26 – a balance lower than the balance at separation.

Interest accrues at a monthly rate of two percent, adding approximately $20.00 to the balance monthly. Based on the balance owing, itappears that this debt hasn’t really been serviced at all since the separation. [70] Mr. Crowe did not dispute the amount of this debt and, accordingly, I find the amount of the debt to be $1,116.26. Ms. Crowe’s federal and provincial student loans [71] In her Statement of Property, Ms. Crowe listed both a federal and a provincial student loan. She owed $18,287.14 and$15,183.42 for these debts respectively, in August 2007. Ms.

Crowe says that the federal loan debt is currently approximately$18,000.00 and “a ballpark” estimate of the outstanding provincial loan debt is $10,000.00. [72] Ms. Crowe was unable to tell me how much money was actually advanced to her as student loans. She said that money wasreceived in the fall and the second part of the loan would arrive in January of the following year. The bank records I have areincomplete. None of those provided to me record receipt of the “second part” of the loans. [73] I find that the amount owed on Ms.

Crowe’s federal student loan to be $18,000.00 and the amount owed on her provincial studentloan to be $10,000.00. I use the current values on the basis that the couple’s finances have remained intermingled since their separation:Mr. Crowe lived in the home and supported Larissa without formal child or spousal support payments. In lieu of these payments, Ms.Crowe paid the house loan and property insurance.

As Justice Campbell said in Simmons, (NSSF) in the context ofpost-separation mortgage payments: . . . until the entire asset and support issues are resolved, the somewhat separate finances of the divorcing couple continues to besufficiently intermingled so as to require the conclusion that typically the division date is the appropriate valuation date for the mortgageso that both spouses have a share in the pay down. Property taxes [74] Ms. Crowe’s Property Statement shows property taxes of $1,800.00 owed at the date of separation. She provided a “SingleProperty Information Report”.

She said the invoice total was $6,398.75 and she was “not sure if that’s what’s owed or if the secondbalance amount is owed”. The “second balance amount” shown was $4,679.34. Each amount is dated May 31, 2011. [75] It was Mr. Crowe’s evidence that he “wasn’t exactly sure of the exact amounts” owed on the taxes. He estimated theoutstanding property taxes at approximately $4,600.00. He said that there were five post-dated cheques at the town hall makingpayments on the property taxes. He said that he was paying the property taxes as part of his agreement with Ms.

Crowe that he wouldpay these and the water taxes, while she would pay the home loan and property insurance. [76] The couple has agreed that the home will be sold. When that occurs, all property taxes must be paid so that clear title can betransferred to the purchasers. The amount owed will be determined when the house is sold. At this point, for the purpose of mycalculations, I determine that the outstanding property taxes are $4,600.00. Mr. Crowe was responsible for paying the property taxesfollowing the separation so I accept his evidence of the amount owed in preference to Ms. Crowe’s uncertain testimony.

Water taxes [77] Ms. Crowe’s Property Statement shows water taxes of $900.00 owed as of April 2011. I was provided with a “Single PropertyInformation Report” by Ms. Crowe. While she said she wasn’t sure how to read the report, she said the tax balance was $856.65. [78] Again noting that he could not be exact, Mr. Crowe testified that these taxes were $400.00 or $500.00. Like the property taxes,

these must be fully paid before the house is sold and that will determine the actual amount owed. For the purpose of my calculations, Idetermine that the outstanding water taxes are $500.00. As with the property taxes, Mr. Crowe was responsible for paying the watertaxes following the separation so I accept his evidence of the amount owed in preference to Ms. Crowe’s uncertain testimony.

Matrimonial home loan [79] In Simmons, (NSSF) at paragraphs 49 and 50, Justice Campbell addressed the question of whether themortgage balance should be fixed at the separation date so that the person who pays the mortgage installments during the separation getsthe benefit from the reduction in principal. Using the division date value of the mortgage allows the spouses to share equally in thegrowth in equity which comes from reduction in the mortgage principal. [80] Since the Crowes separated, they have not equally serviced the loan relating to the home.

Justice Campbell, in Simmons, (NSSF), didn’t restrict use of the division date value for the mortgage to circumstances where spouses equally paid themortgage. He said that: . . . until such time as the final division of all assets is implemented, there continues to be an overlap between [the spouses’] respectiveestates. [ . . . ] In some cases, responsibility for mortgage installments is taken on in exchange for the other spouse paying various otherdebts. Furthermore, while the occupier spouse pays the mortgage the other spouse usually pays rent.

It occurs to me that until the entireasset and support issues are resolved, the somewhat separate finances of the divorcing couple continues to be sufficiently intermingled soas to require the conclusion that typically the division date is the appropriate valuation date for the mortgage so that both spouses have ashare in the pay down. [81] I agree with Justice Campbell. Until this trial began, Mr. Crowe did not act on his claim for child support or spousal support. The spouses’ finances remained intermingled. So, the amount of the loan will be determined when the house is sold.

Until then, for thepurpose of my analysis, I will use the amount of $28,552.35. I have calculated this amount by subtracting five monthly payments of$510.77 from the amount the couple borrowed in November 2011, as shown on the personal credit agreement. Mr. Crowe’s MasterCard account [82] Mr. Crowe testified that he owed $3,600.00 on his MasterCard when the couple separated and that he has been repaying this debtsince then. Following the separation, he obtained a new credit card in his own name. Division [83] The table below assembles the information needed to consider the division of property.

Pursuant to Clancey, (NS S.C.), I have deducted the notional disposition costs of the home. I have calculated sales commission at five percent (with anadditional fifteen percent as HST) and legal fees on the sale at $575.00 ($500.00 plus $75.00 for HST).

Asset ValueMatrimonial home worth 25,000.00 Less loan of 28,552.35 Less property taxes of 4,600.00 Less water taxes of 500.00 Less sales costs 1,826.15 (10,478.50)2001 Kia Sehpia 2,050.00Pension 63,908.83Total 55,480.33 [84] Section 12(1) of the Matrimonial Property Act mandates that matrimonial assets are divided equally notwithstanding theownership of the assets. An equal division of matrimonial assets, based on the figures in paragraph 83, would provide each spouse with$27,740.16. [85] There is no similar mandate in the Matrimonial Property Act that debts should be divided equally.

In Cameron, (NS SC), affirmed by Cameron, 1996 NSCA 86 , (NS CA), Justice Goodfellow noted, at paragraph 25,that a debt is not automatically shared simply because the debt may be labelled as a matrimonial indebtedness. Whether debts will beshared depends on

section 13 of the Act. [86] I must bear certain things in mind when considering a claim under

section 13. [87] In Harwood v. Thomas (1981), (NS CA), 45 N.S.R. (2d) 414 (A.D.), Chief Justice MacKeigan wrote, atparagraph 7, that the proponent of an unequal division must produce “strong evidence” that an equal division would be clearly unfair andunconscionable. He continued: That initial decision is whether, broadly speaking, equality would be clearly unfair not whether upon a precise balancing of credits anddebits of factors largely imponderable some unequal division of assets could be justified. [88] This view, expressed in the year following the enactment of the Matrimonial Property Act, continues to govern applications for

unequal property divisions. In Young, 2003 NSCA 63, Justice Bateman wrote, at paragraph 15: The inquiry under s.13 is broader than a straight forward measuring of contribution. The predominant concept under the MatrimonialProperty Act is the recognition of marriage as a partnership with each party contributing in different ways. A weighing of the respectivecontributions of the parties to the acquisition of the matrimonial assets, save in unusual circumstances, is to be avoided.

Since theintroduction of the Matrimonial Property Act, it has been repeatedly stressed by this Court, that matrimonial assets will be divided otherthan equally, only where there is convincing evidence that an equal division would be unfair or unconscionable. [89] It is also settled that I am limited to considering the factors enumerated in

section 13 in determining, first, if it would be unfair orunconscionable to divide matrimonial assets equally. If I conclude that an equal division would be unfair or unconscionable, I’m then toapply the same factors to fix a division that would be fair and conscionable. Justice Hallett stated this in Archibald (1981), (NS SC), 48 N.S.R. (2d) 361 (T.D.) at paragraph 67 and this view was endorsed by the then-Appeal Division at paragraph 20 inDonald, (N.S.S.C.(A.D.))

Section 13(a) “unreasonable impoverishment” [90] Ms. Crowe seeks an unequal division of property based on

section 13(

a) of the Act: “the unreasonable impoverishment by eitherspouse of the matrimonial assets”. Specifically, she argues that Mr. Crowe wasted the family’s resources “to purchase beer, cigarettesand his golf membership” and mentions his “irresponsible behaviour regarding the matrimonial home, which ultimately led to the waterdamage after the radiators burst.” I’ll address the evidence about Mr. Crowe’s spending before I consider the evidence about the waterdamage. [91] A considerable portion of Mr.

Crowe’s cross-examination was dedicated to his reading debit entries from bank statements, withparticular attention to transactions at the liquor store and the West End Gas Bar. [92] The West End Gas Bar is a gas station and convenience grocery store near the Crowes’ home. The store sells milk, gas, coffee,treats, grocery essentials and it rents videos. Mr. Crowe said he “rarely went over to the store” and “a lot of times, the kids went [there]for movies or treats” and Ms. Crowe bought gas there. Both spouses had debit cards.

It isn’t possible to identify what was purchased atthe Gas Bar or who bought it. [93] For the first twelve years of the relationship, both spouses smoked. Mr. Crowe said when cigarettes started getting expensive“we’d roll our own”. Ms. Crowe quit smoking in 1999. At most, Mr. Crowe smoked two packages of cigarettes each day. He hasreduced his smoking and now smokes nine packages each week. [94] Both spouses drank. Mr. Crowe testified that he didn’t drink regularly. He said that early in the marriage, before his surgery,both spouses had a good time and drank on weekends. Ms. Crowe admits that she drank, too.

She disputes the amount of drinking Mr.Crowe says he did: she says he drank daily. [95] I received twenty-two separate bank statements: six from Ms. Crowe’s sole account; six from a joint Credit Union account andten from a joint Royal Bank account. The statements were all from 2003, 2004 and 2007. There was no evidence that persuades me thatI can generalize from these statements to the family’s finances overall.

There was no evidence of the magnitude of the expenditures onalcohol and I am unable to allocate those NSLC purchases which I can identify from the bank statements to one spouse or the other. [96] Looking at the statements that were provided, on average, the liquor store purchases cost the family less than $65.00 eachmonth. I only have Ms. Crowe’s tax returns for one year where I have bank statements. In that year, her income was $37,355.00. Thetotal Canada Pension Plan disability benefit was $15,341.64 annually. I can’t isolate Mr.

Crowe’s disability benefits from the portion ofthe payment that related to Larissa. With an annual household income of $52,676.64, an annual average expenditure of $780.00 foralcohol is less than 1.5% of the household income. [97] In terms of the golf membership, I was given a receipt for partial payment of a family membership in the golf club in 2004: one-half of the $400.00 family dues were paid. Mr. Crowe said that for two years, there was no membership. Ms. Crowe said that duringthe summers when she worked at tournaments at the golf course, her husband probably played at those tournaments.

She said sheprobably worked at five tournaments each summer for three summers. She testified that later in the marriage, Mr. Crowe golfed everyFriday. She admitted that she golfed herself. [98] In his cross-examination, Mr. Crowe was asked to identify whether an expense (on July 3, 2007) was for golf, but he didn’t doso. Aside from the receipted expense for the 2004 family membership dues which allows me to conclude that the annual family duesthat year were $400.00, I wasn’t told how much was spent on golf. [99] Mr. Crowe’s “irresponsible behaviour regarding the matrimonial home” was the last issue that Ms.

Crowe mentioned in herargument that Mr. Crowe had unreasonably impoverished the matrimonial assets. This refers to her claim that, when radiators at thehome burst, there was water damage to the home. Mr. Crowe vacated the home in January 2012. In the time following his departure,the furnace was empty, the radiators froze and some burst. [100] Ms. Crowe says that after she learned Mr. Crowe would be moving from the home, she said she’d “get the pipes done and rads[radiators] looked at”. She says she had a phone call with Mr.

Crowe and said he could stay in the home until after Christmas and thatshe had someone who could “blow the lines out”. Ms. Crowe says she was not told the specific date when Mr. Crowe would leave. [101] On January 6, 2012 both Mr. Crowe and Ms. Crowe were at the home. They had a discussion about the plumbing: Mr. Crowetold her he was finding the proper point to drain them. He’d finished work on the sink and toilets. Ms. Crowe asked when he’d be ableto give her the key, but he didn’t answer. Mr. Crowe had spent a couple of nights at his mother’s, according to Ms.

Crowe, who alsosaid there was no indication that he’d moved from the matrimonial home, despite the fact that the toilets were inoperable. Mr. Crowesays Ms. Crowe knew when he moved out and knew that he couldn’t afford to put oil in the furnace.

[ 102 ] Reviewing the testimony that I heard, each spouse failed to take steps to ensure the radiators would not burst while the furnace was empty. Neither bought oil, neither ensured the pipes and radiators were sufficiently drained. I conclude that responsibility for this event does not lay exclusively with one or the other and Mr. Crowe has, no more than Ms. Crowe, impoverished the value of the home as a result of this incident. [ 103 ] In any event, there is the question of whether this event impoverished the value of the home. [ 104 ] Mr.

Crowe said that when he learned the radiators broke, he went to the home. He said the most water was in the downstairs bedroom, a puddle measuring roughly three feet by two feet. Radiators in another bedroom and the sun porch broke. In other rooms, he said a seam in the radiator had split, with very little water coming out. In one bedroom, the water in the radiator was still frozen. Mr. Crowe says that some puddles dried up on their own, the two bathrooms were cleaned with “one swipe of the rag” and otherwise he used a shop vacuum to clean. [ 105 ] Ms. Crowe described the amount of water as “around six puddles”.

When asked how large the puddles were, Ms. Crowe described them as a “good size” and “not like a glass of water”. She indicated their size by holding her arms out in front of her making a circle. [ 106 ] Ms. Crowe said she couldn’t estimate the extent of the damage. She had no one come to assess the damage. When questioned by her counsel, she said the house was carpeted throughout with some cushion floor and she didn’t know about damage to the floor underneath. In response to cross-examination Ms. Crowe said that the puddles “probably could have caused damage” and she was “guessing some damage”.

She said there was water on the floor, it “hurt the carpet and floor underneath”. When asked how she was sure of this damage, she said because of the amount of water. [ 107 ] Ms. Crowe had the matrimonial home appraised on February 5, 2012 and a real estate agent provided a valuation of it on February 3, 2012. In neither is there any mention of water damage to the carpet or floor. [ 108 ] I accept there will likely be some reduction to the value of the matrimonial home because the broken radiators must be replaced, but I don’t know what this will cost. Ms.

Crowe’s testimony doesn’t persuade me that the broken radiators caused any other damage to the home which has had a negative impact on its value. Without evidence of the reduction in the house’s value, I cannot conclude the decrease has been “improvident”. [ 109 ] The evidence of smoking, drinking, golf membership and the radiators’ bursting is not “strong evidence” that an equal division is unfair or unconscionable.

Section 13(

a) does not provide a basis for an unequal division of assets and debts.

Section 13(e) “date and manner of acquisition of assets” [ 110 ] Ms. Crowe told me that the matrimonial home was purchased at a discount from her father and uncle. She says that they moved into the home in October 1989 and they bought the home for $10,000.00, an amount she described as a “very small amount to pay”. I wasn’t told what the value of the house was in 1990 or what an arm’s length purchaser would pay. Over the years, the house has been encumbered by a loan which is paid from the household income. Ms. Crowe did not directly pursue an argument pursuant to

section 13(

e) that “the date and manner of acquisition of the assets” entitled her to an unequal division beyond mentioning the reduced purchase price. If she had pursued this argument, I would dismiss it. I don’t have evidence of the extent of the discounted price so I cannot conclude that there was a sufficient discount that, after almost twenty years and the investment of family funds into the home, it would be unfair or unconscionable to divide property unequally. [ 111 ]

Section 13(

e) does not provide a basis for an unequal division of assets and debts.

Section 13 (b) “the amount of the debts and liabilities of each spouse and the circumstances in which they were incurred” [ 112 ] My classification of matrimonial debts and my determination of the amount owed leaves me with the following information about debts: Debt Amount Ms. Crowe’s Capital One MasterCard account 800.00 Ms. Crowe’s Sears credit card account 1,500.00 Pharmasave account 1,116.26 Ms. Crowe’s student loans 28,000.00 Mr. Crowe’s MasterCard account 3,600.00 Total 35,016.26 [ 113 ] Whether debts will be shared depends on the application of

section 13 of the Act . [ 114 ] If debts are assigned to the individual debtor, Ms. Crowe is responsible for $31,416.26 in debts, while Mr. Crowe is responsible for $3,600.00. If I consider this in the context of an equal division of matrimonial assets which I’ve earlier given a preliminary value of $55,480.33, this would leave Mr. Crowe with a negative net worth of $3,676.10, while Mr. Crowe would have $24,140.16 as shown in the table below. Ms. Crowe Mr. Crowe Equal share of assets 27,740.16 27,740.16 Less debts owed in his or her name (31,416.26) (3,600.00) Value of final share (3,676.10) 24,140.16

[115]

Section 13(

b) of the Matrimonial Property Act allows me to divide matrimonial assets unequally where I am satisfied that theequal division of matrimonial assets would be unfair or unconscionable taking into account the amount of the debts and liabilities of eachspouse and the circumstances in which they were incurred.

Equally dividing assets and leaving debts with the person who iscontractually obliged to pay them creates the result shown in the table immediately above. [116] In Lawrence (1981), (NS CA), 47 N.S.R. (2d) 100 (A.D.) at paragraph 31, Justice Hart said, “If substantialdebts were borne by one spouse for the benefit of the whole family it would be unfair to divide assets without providing for theobligations of the matrimonial unit.” Leave to appeal this decision to the Supreme Court of Canada was dismissed at Lawrence (1981), (NS CA), 49 N.S.R. (2d) 209 (A.D.). Justice Hart’s comments are à propos in this case: Ms.

Crowe has bornesubstantial debts for the benefit of the whole family. It would be unfair or unconscionable to divide matrimonial assets equally andwithout regard to the debts in light of these debts.

As a result, this is an appropriate case to divide matrimonial assets unequally. [117] As Justice Hallett said in Archibald (1981), (NS SC), 48 N.S.R. (2d) 361 (T.D.) at paragraph 67 (endorsed bythe then-Appeal Division at paragraph 20 in Donald, (N.S.S.C.(A.D.))), I am to apply the same factors that I used tofind an equal division was unfair or unconscionable to determine what division would be fair and conscionable. [118] Ms.

Crowe asks me to order an unequal division of property such that she would retain her car and her pension, she would payany shortfall arising from the sale of the matrimonial home and she would be responsible for her credit cards, the Pharmasave debt andher student loans while Mr. Crowe would be responsible for the property taxes, water taxes and his credit card. Using the figures I’vedetermined, the property division she suggests is this: Ms. Crowe Mr.

CroweMatrimonial home worth 25,000.00 Less loan of 28,552.35 Less sales costs 1,826.15 (5,378.50) 2001 Kia Sephia 2,050.00 Pension 63,908.83 Sub-total 60,580.33 0.00Ms. Crowe’s Capital One MasterCard account

(800.00) Ms. Crowe’s Sears credit card account (1,500.00) Pharmasave account (1,116.26) Ms. Crowe’s federal student loan (18,000.00) Ms. Crowe’s provincial student loan (10,000.00) Property taxes (4,600.00)Water taxes (500.00)Mr. Crowe’s MasterCard account (3,600.00)Total 29,164.07 (8,700.00) The value of the matrimonial home in this table differs from its value in the table at paragraph 83 because in this table, Mr. Crowe issolely responsible for the property and water taxes. [119] Ms. Crowe’s proposal leaves her with assets having a net value of $29,000.00 while Mr. Crowe is left with debts of $8,700.00.

This result is unsustainable for two reasons. First, it doesn’t apply the factors that I used to find an equal division was unfair orunconscionable to determine a fair and conscionable division: allocating the pension to Ms. Crowe is unrelated to the amount of the debtsand liabilities of each spouse and the circumstances in which they were incurred. Second, the division is out of proportion to the basisfor it: Ms. Crowe seeks an unequal division on the basis that she will be responsible for debts of $31,416.26.

While an equal division ofall assets and debts would leave each spouse with approximately $10,000.00, Ms. Crowe seeks a division that leaves her with almostthree times that amount. Conclusion [120] On the basis of subsection 13(

b) of the Matrimonial Property Act, I find that an equal division of matrimonial assets would beunfair or unconscionable. A fair or conscionable division is one which equally divides matrimonial assets and matrimonial debts. Thismanner of unequal division is related to the basis on which I’m granting the unequal division and better reflects the fundamentalprinciple of equality that underlies the Matrimonial Property Act. [121] Until the home is sold, Ms. Crowe shall service the loan relating to it and pay the property insurance and Mr. Crowe shall pay theproperty taxes and water taxes.

If there is a shortfall when the home is sold, it’ll be shared equally between the spouses, as will be anyprofit. [122] Ms. Crowe’s pension shall be divided at source pursuant to the Pension Benefits Division Act and its regulations. The period to bedivided will begin at the commencement of the couple’s cohabitation and end on September 27, 2007. Any pension credits relating tothat period which Ms. Crowe purchased with earnings from after that date are not to be divided. A separate order should be prepared forthe pension division. Spousal support Entitlement [123] Mr. Crowe has applied for spousal support.

His application is pursuant to

section 15.2 of the Divorce Act, R.S.C. 1985 (2nd

Supp.), c. 3. Ms. Crowe challenges Mr. Crowe’s entitlement to spousal support. Regardless, the parties have agreed that Ms. Crowe will maintain coverage for Mr. Crowe and their children on her workplace health insurance policy as long as possible. [ 124 ] In the early years of the marriage, Mr. Crowe worked recruiting volunteers for a literacy program offered at the nearby Springhill Institution. This was contract work which lasted until March 1990. He then started work at a local tavern. He worked until he became disabled by spinal stenosis. In January 1991, Mr.

Crowe had surgery and four vertebrae were removed from the base of his neck. The surgery didn’t remedy his problem. Physical therapy doesn’t assist him. Mr. Crowe says he is unable to sit, stand or lay down for very long. He takes various medications: gabapentin, diazepman, zanaflex and morphine. These contribute to his inability to work. Mr. Crowe has had no paid employment since he became disabled. [ 125 ] Mr. Crowe says that when he suggested returning to work, he was stymied by the question “what can [I] do?” There was nothing he could do. He once applied to take an online course on basic web design.

However, the family’s finances stopped him. He would need to borrow money and Ms. Crowe had incurred a student loan already. Mr. Crowe said he wasn’t willing to increase the family’s debt. [ 126 ] Mr. Crowe receives Canada Pension Plan disability payments. The bank records show that these were deposited into accounts where they were made available for household expenses. Mr. Crowe testified that “as far as work goes, [Ms. Crowe] was the main wage earner”. He said that his CPP disability payments were between $1,300.00 and $1,400.00 each month (when one considers the children’s pension payments) and that Ms.

Crowe was “making close to that or maybe a little above.” Mr. Crowe testified that he was bringing in as much money as his wife. [ 127 ] When the children were younger, they received a Canada Pension Plan payment related to Mr. Crowe’s disability pension. [ 128 ] In the early 1990s, Ms. Crowe worked at the local golf course during a few summer golf tournaments. [ 129 ] Ms. Crowe was out of the workforce for an unspecified period when Landon was born in 1989. When Larissa was born in 1993, Ms. Crowe was working as a casual employee. Mr. Crowe said that Ms.

Crowe returned to work in a matter of weeks after Larissa was born, leaving him to care for the three children: only Paul was old enough to be in school. He did this with the help of his older daughter who was staying with them at the time. [ 130 ] Mr. Crowe says that during the marriage he was responsible for the majority of the housework. In addition to their two children, Ms. Crowe’s son from an earlier relationship, Paul, lived with them throughout their marriage. Mr. Crowe says he made lunch and supper, and that when he was tired, Ms. Crowe would come home and fix supper. Prior to surgery in 2009, Mr.

Crowe’s sleep apnea disturbed his sleep so significantly that, on occasion, Larissa would phone her mother to see if she could make supper. Mr. Crowe said this was about three times each month. [ 131 ] Mr. Crowe says he did the dishes. He did the laundry once or twice during the week, while Ms. Crowe would do the laundry on the weekend. He said he cleaned the bathrooms, acknowledging that Ms. Crowe did this, as well. Mr. Crowe said he would vacuum, which was very hard because of arthritis in his lower back.

He said he “did just general household daily duties” and he “referred to [himself] as a ‘50s, ‘60s housewife”. In cross-examination, Mr. Crowe said that his wife used to “boast that she didn’t have to do anything when she got home from work, it was already done.” [ 132 ] Mr. Crowe says he was the “main helper of homework”. Since Mr. Crowe didn’t drive, Ms. Crowe was responsible for taking the children to any activities. [ 133 ] Ms. Crowe testified that when she took her Home Ed course, it required her to spend approximately eighteen hours each week studying.

Following the completion of that course, she took two courses online through the University of Phoenix in 2003 – 2005. She says these required approximately twenty-five hours of study each week. Ms. Crowe said that she would do her course work late at night, staying up until midnight and beyond and that this didn’t disturb her contribution to work around the home. She said she had to wait until the computer was available, though she used some of her student loan proceeds to purchase a laptop for her own use: there was another computer in the household. [ 134 ] In addition to her full-time job, when Ms.

Crowe took Paul to register for the cadets in the mid-1990s, she was asked whether she’d like to volunteer. She was interested in doing this and learned she’d be paid for it. I wasn’t told how much time this occupied, but Ms. Crowe did make references to weekends when she would be away on cadet trips. She was offered at least one opportunity to advance her career in the cadets by taking a leadership course. [ 135 ] Ms. Crowe began a walking program in 2006, walking for exercise before and after work unless she was busy driving Landon to his hockey. [ 136 ] When asked about his contribution to Ms.

Crowe’s education, Mr. Crowe said that he didn’t “want to say she didn’t help with the kids. She helped tremendously.” He said that he helped her with some of her studies, describing how he would help her read through questions she found difficult. [ 137 ] In her testimony, Ms. Crowe said that Mr. Crowe was a “very good father” for the first half of the marriage: “He did everything and worked with the kids.” She said she thought their relationship was good, until “things got worse with his condition” when she said “he didn’t seem able to help himself”. During the latter part of the marriage, Mr.

Crowe’s sleep apnea left him too fatigued to do the household work he’d done in the past. [ 138 ] Ms. Crowe has worked hard to support the family. In addition to her regular employment, she worked at the local golf course during a few summers in the early 1990s and was paid for her efforts with the cadets starting in the mid-1990s. As allowed by his disability, Mr. Crowe also worked to support the family taking care of responsibilities in the home. [ 139 ] The Divorce Act establishes four objectives for spousal support. No objective is paramount and any may be the basis of an

entitlement to spousal support. The objectives include recognizing any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown (section 15.2(6)(a)) and relieving any economic hardship of the spouses arising from the marriage breakdown (section 15.2(6)(d)). [ 140 ] I am also to consider the length of the spouses’ cohabitation, the functions they performed during cohabitation and any order, agreement or arrangement relating to the support of either of them, pursuant to

section 15.2(4). The Crowes cohabited for twenty years during which they had a traditional division of labour (albeit with the gender roles reversed) and, when they separated, they arranged their financial affairs such that Ms. Crowe continued to support Mr. Crowe by maintaining the matrimonial home. [ 141 ] I have evidence from Ms. Crowe that her studies during the marriage (which created much matrimonial debt), did not create any career advantage for her until after the separation. This is an example of a spouse experiencing an economic advantage arising from the marriage.

As well, the separation and divorce creates an economic disadvantage for Mr. Crowe by depriving him of Ms. Crowe’s income. Considering the factors and objectives outlined in

section 15.2 of the Divorce Act , I conclude that Mr. Crowe is entitled to spousal support. Quantum [ 142 ] Mr. Crowe asks me to award him monthly spousal support of $1,000.00. He has provided calculations pursuant to the Spousal Support Advisory Guidelines. Perhaps because these were filed, neither his current Statement of Expenses nor his Statement of Income was entered into evidence. [ 143 ] Mr. Crowe receives a monthly disability pension of $953.77 from the Canada Pension Plan. This is taxable and it is his only income. [ 144 ] Mr. Crowe outlined his expenses for me.

They are shown below: Expense Amount Rent 475.00 Heat 50.00 Electricity 40.00 Phones: Mr. Crowe and Larissa’s contract 99.00 Satellite television 54.00 Furniture replacement 50.00 Food 300.00 Household supplies 15.00 Clothing 40.00 Laundry and dry-cleaning 10.00 Transportation 30.00 Health-related expenses 42.25 Hair and grooming 15.00 Gifts 20.00 Holidays 40.00 Entertainment 40.00 Cigarettes 70.00 MasterCard (from marriage) 60.00 MasterCard (post-separation) 15.00 Water taxes on matrimonial home 100.00 Computer and tv purchases 68.67 Total 1,633.92 [ 145 ] Mr. Crowe’s total expenses are $1,633.92 each month.

Based on his current disability payments, he has a monthly deficit of $680.15. At his current income level he pays no income tax. [ 146 ] As I noted at the outset, dividing property first, informs decisions relating to support by allowing me to appreciate each spouse’s expenses. The property division I’ve made is that sought (to some degree) by Mr. Crowe. He asked that Ms. Crowe’s pension be divided at source and proposed that he keep the debts he was already servicing (property taxes, water taxes and his own MasterCard). [ 147 ] Mr.

Crowe acknowledges that he shouldn’t have made some of the purchases he did, such as buying a cell phone for Larissa. He made the wrong decision in ending Landon’s cell phone contract, incurring a cost. His own cell phone is a cheaper option than a landline. Mr. Crowe explains his television expense, saying that he “can’t do much – can’t go out, drive. I’m home most of the time. I watch tv.” Mr. Crowe has reduced his smoking from two packs per day to nine packs each week. Even considering these expenses, his budget is modest. [ 148 ] At his marginal tax rate, Mr.

Crowe would need approximately $975.00 each month in spousal support to cover his deficit and pay the consequent income taxes. [ 149 ] The expenses Mr. Crowe has described do not include his equal contribution to the family’s debt load. The debts he offered to carry totalled $8,700.00, while Ms. Crowe has $31,416.26. To shoulder his equal share, Mr. Crowe must bear an additional $11,358.13 of the debts. At his current income level, it’s unlikely that he could borrow enough to consolidate these debts into his name and he

cannot afford to service the debts. [ 150 ] Ms. Crowe filed an Income Statement in June 2011 and an Expense Statement in July 2011. These were not updated for trial. Her annual income in June 2011 was $54,118.32. From this, she said she was paying on both of her student loans, maintaining the payments on the house loan and insurance, totalling $797.45. Her Expense Statement includes various expenses which no longer exist, such as Larissa’s prom, graduation and Community College costs. [ 151 ] I order that commencing in June 2012, Ms. Crowe pay monthly spousal support of $1,625.00 to Mr. Crowe.

She may select the date which best accommodates when she is paid and other debt obligations she has. Ms. Crowe will make twenty-four consecutive monthly payments in this amount. This payment shall be paid by way of direct and indirect payments: she shall pay $1,125.00 directly to Mr. Crowe each month. She shall pay $500.00 toward the repayment of matrimonial debt incurred in her name, such as the Pharmasave debt or student loans. After Ms. Crowe has made twenty-four consecutive monthly spousal support payments of $1,625.00 in this fashion, monthly spousal support for Mr. Crowe shall reduce to $1,000.00.

In this way, Mr. Crowe will retire his share of the matrimonial debt, other than the property taxes, water taxes and MasterCard which he is paying on his own. Conclusion [ 152 ] Neither party has claimed costs, so I need not address this issue. [ 153 ] The matrimonial home shall be sold as the parties have agreed. Ms. Crowe shall retain the 2011 Kia Sephia. Her pension shall be divided at source to affect an equal division of the pension credits accumulated to the date of the couple’s separation on September 27, 2007.

While her pension has, subsequent to that date, been transferred from the provincial government to the federal one, no service prior to that which was transferred and which has been purchased other than through the initial transfer of pension funds, will be shared with Mr. Crowe. [ 154 ] In the overall property division, Mr. Crowe shall retain responsibility for the property taxes and water taxes on the home as well as his MasterCard. Ms. Crowe shall be responsible for the Pharmasave debt and her student loans. She has already paid her credit card debts that relate to the marriage. [ 155 ] Ms.

Crowe shall pay monthly spousal support of $1,625.00 commencing in June 2012 and continuing until she’s made twenty- four consecutive payments of this amount, when the amount of spousal support shall reduce to $1,000.00 each month. [ 156 ] Mr. Melvin will prepare the Corollary Relief and Divorce Orders. Ms. Hirbour will prepare the pension division order. Where some matters, such as the division of household contents and sharing of photographs, have been resolved by the parties’ agreement, counsel may include terms relating to these issues in the Corollary Relief Order. [ 157 ] Mr.

Melvin should specifically reference those sections of the Income Tax Act , R.S.C. 1985, (5 th Supp), c. 1, ( subsections 56.1(1) and 60.1(2) ) dealing with third party payments being treated as spousal support to ensure that the proper tax treatment is accorded to these payments: that is, that Ms. Crowe is able to deduct, as spousal support, the entire sum of $1,625.00 paid to Mr. Crowe each month and Mr. Crowe is required to claim, as taxable income, the entire sum of $1,625.00 paid to him and to retire his share of the matrimonial debts. [ 158 ] Counsel may

schedule a conference call with me if there are difficulties in formalizing the terms of the orders. If there are disputes arising on the sale of the home, I consider myself seised of this matter and the disputes should be referred to me. _________________________________ Elizabeth Jollimore, J.S.C.(F.D.) Halifax, Nova Scotia