Breed v. Breed, 2016 NSSC 42

SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: Breed v. Breed , 2016 NSSC 42 Date: 2016-03-22 Docket: SCHD No. 1201-064992 Registry: Halifax Between: Caryn Grace Breed Petitioner/ Respondent v. Perley Stephen Breed Respondent/ Applicant Judge: The Honourable Justice Carole A. Beaton Heard: July 20-24; September 18; November 5, 2015, in Halifax, Nova Scotia Written Release: March 22, 2016 Counsel: Yvonne LaHaye, Q.C and Deborah Gillis, Q.C for the Applicant, Perley Stephen Breed Christopher Robinson for the Respondent, Caroyn Grace Breed By the Court: Introduction [ 1 ] The Applicant (“Mr.

Breed”) and the Respondent (“Mrs. Breed”) are no strangers to litigation. Mrs. Breed filed a Petition for Divorce in December 2010. There was an interim hearing in January 2012 (Breed v. Breed , 2012 NSSC 83 ) and a divorce trial followed in June 2012 ( Breed v. Breed, 2012 NSSC 285 ). A Partial Agreement and Minutes of Settlement (“the Minutes”) reached just prior to that trial referred certain matters to binding arbitration, held in May-June 2013. Variation applications then resulted in Variation Orders issued on September 4, 2013 and June 18, 2014. Mr.

Breed filed the present Application to Vary, chiefly concerning spousal support on September 2, 2014. [ 2 ] These parties have carried on their conflict, in one forum or another, almost continually for over five years. As this Court noted in the February 2012 interim decision: To date various issues discussed in this divorce proceeding have revealed a high level of mutual distrust and animosity between Mrs. Breed and Mr.

Breed, which is palpable and would seem, on the face of it, to fuel the intensity of their litigation… Little has changed. [ 3 ] Pursuant to the Minutes, as adopted in the Corollary Relief Order (“CRO”) Mr. Breed is required to pay spousal support of $24,800 per month and certain third party payments. Mrs. Breed is to have exclusive use and occupation of the parties’ farm property (“the farm”) pending its sale. Details of this agreement shall be more fully discussed herein. [ 4 ] In his Application to Vary pursuant to

section 17 of the Divorce Act , R.S.C., 1985 c.3 Mr. Breed sought the following relief: a. A reduction in the quantum of monthly spousal support to $15,000 effective August 1, 2015 through to July 31, 2019 at which time support would terminate, or in the alternative a “step down order” staging a gradual reduction in monthly spousal support payments toward zero until July 31, 2019. b. Termination of his obligation to make third party support payments (farm property taxes). c.

In the event the Court grants the relief sought as to quantum of spousal support, elimination of the requirement in the Minutes that the farm be listed for sale and conveyance of his interest in both it and the farm float to Mrs. Breed. In the alternative, Mr. Breed asks that he be permitted to deal with any listing agent and/or relator concerning the sale of the farm or that the farm be listed jointly by a relator chosen by each of the parties. Mr.

Breed also seeks a requirement that the listing of the farm be with an experienced agency and agent regularly engaged in the sale of properties of that nature and price range.

d. That a date be fixed for Mr. Breed and the parties’ daughter to attend at the office of Mrs. Breed’s former legal counsel to review family photos (as set out in the Minutes and in the June 2014 Variation Order) and that Mrs. Breed deliver the ownership documents for certain chattels now in Mr. Breed’s possession pursuant to a prior agreement. e. That the Court order the future suspension of spousal support in the event Mrs.

Breed were to fail to: keep the farm listed and marketed for sale, provide annual financial disclosure, or provide a signed receipt in a form satisfactory to Canada Revenue Agency on or before April 1 st of each year confirming her receipt of spousal support. Background [ 5 ] To understand the present positions of each party, it is important to consider some of the history regarding the spousal support arrangements. In February 2012 this Court made an interim determination that Mr. Breed’s income was $1,186,585 and he was required to pay interim child support of $9,098.00 and interim spousal support of $24,788.

Spousal support entitlement was not contested. Quantum was determined taking into account the family’s standard of living and the need to maintain the status quo, and it reflected Mrs.

Breed’s continued occupation of the farm as her residence, including her ongoing expenses for farm supplies, equipment, operations and employee wages. [ 6 ] In a recital to their Minutes, executed several months later, the Parties agreed: The support obligations contained in the attached Partial Agreement and Minutes of Settlement were premised on the February 27, 2012 Interim Decision of this Court, wherein it was found that Stephen Breed’s annual income adjusted for Federal Child Support Guidelines purposes was $1,186,585; and the representation of Caryn Breed at paragraph 18 of the said Partial Agreement and Minutes of Settlement that at that time she had no independent source of funds to contribute towards her own support. [ 7 ] The Minutes provided for an unequal division of assets, including the farm, in favour of Mrs.

Breed. Sale of the farm was contemplated in these clauses: 1. Real Property and Associated Lots:

a) Farm Property: 35 acres, 16 Woodville Road, Hillsvale, NS The farm property (PID #45024007) will continue to be listed for sale until sold. It is currently listed for sale with Tradewinds Realty for $1,995,000. Caryn Breed may encumber the property pending sale on the understanding that Stephen Breed shall not be liable in any way for said encumbrance. … iii) The attached Farm Float ( Tab 2 ) will also be offered to any potential Purchaser.

If a potential Purchaser is not interested in purchasing the assets listed on the Farm Float, then those assets will be sold and the proceeds divided equally between the parties. iv) Once the farm property has sold (i.e. 35 acre house parcel-PID #45024007; and 70 acre parcel; PID #45371127), Caryn Breed shall retain 100% of the sale proceeds including all sale proceeds over the $1.6 million gross sale price used for purposes of the attached Equalization Chart ( Tab 1 ).

In the event that the property sells for a net amount (“ net amount ” being defined as the sale price less the usual disposition costs of the relator’s commission, HST and a $1,500 stipend for legal fees) below $1,506,500, Steve Breed agrees that he will top up the deficiency below the said net price to a maximum of $200,000 so long as the property is sold to a bona fide and arms length purchaser.

For example, if the farm sells for a net amount of $1.35 million, Steve Breed agrees to pay Caryn Breed an additional $156,000 so that she will have a minimum of $1,506,500 in next sale proceeds. [ 8 ] Spousal support was set out in

section 18 of the Minutes, and was directly connected to Mrs. Breed’s occupation of and the eventual sale of the farm: 18. Spousal Support:

a) Pending the sale of the farm property , Steve Breed shall pay to Caryn Breed the sum of $24,800.00 per month spousal support which sum recognizes her costs associated with her occupation and maintenance of the farm property pending it’s (sic) sale . Further, Caryn Breed represents that at this time she has no independent source of funds to contribute towards her own support.

b) Steve Breed shall continue to make the following third party payments for the benefit of Caryn Breed:

i) Municipal taxes on the farm ($8,160.00/yr); ii) 2008 Audi lease ($1,255 per month/$15,060/yr) until February, 2014, when the lease terminates.

c) The current level of spousal support is premised upon Caryn Breed’s representations with respect to her costs associated with her occupation and operation & maintenance of the parties’ farm property. The parties acknowledge that the property is currently listed for sale with Steve Lumb, Tradewinds Realty at $1,995,000 as of April 10, 2012, after being reduced from the original listing price of $2,195,000.

The parties will cooperate fully with each other and accept such recommendations as may be forthcoming from the listing realtor with respect to selling the farm properties, including, but not limited to price reductions. If issues relating to the sale of the property (including but not limited to list price, terms of listing or offers received) cannot be resolved by the parties by agreement the parties agree to immediately

participate in binding arbitration …

d) The parties acknowledge that the current level of spousal support is premised upon the parties’ respective cooperation with respect to the sale of this property as detailed herein.

e) Upon the sale of the farm, the issue of spousal support shall be reviewable , both as to quantum and duration, with a view to a reduction in the spousal support that may still be payable.

f) In the event of Steve Breed’s retirement and/or sale of any portion of his interest in DEH and related companies, spousal support shall be reviewable, both as to quantum and duration, with a view to a reduction in the spousal support that may still be payable.

g) In the event that Caryn Breed resides in a common-law relationship (in excess of 2 years); remarries, shares living expenses or rents out the farm property, the matter of spousal support shall be reviewable, both as to quantum and duration, with a view to a reduction in the spousal support that may still be payable.

h) Both parties acknowledge the factors (s. 15.2 (4) ) and the objectives (s. 15.2(6) ) of a spousal support order pursuant to the Divorce Act . Caryn Breed acknowledges she has a positive obligation insofar as practicable, to promote her own economic self-sufficiency within a reasonable period of time . She shall advise Steve Breed immediately upon obtaining employment, starting a business, or generating an income from any source. The Issue of spousal support shall be reviewable, both as to quantum and duration, with a view to a reduction in the spousal support that may still be payable.

i) Spousal Support is also reviewable taking into consideration such other changes in circumstances as envisaged by

section l7 of the Divorce Act . (underlined emphasis added) [ 9 ] At a May 19, 2015 case management conference (one of a number imposed by the Court in this application) Mr. Breed made plain he would not argue his means or ability to pay and invited the Court to attribute income to him in the amount of $1.2 million dollars, which Mrs. Breed did not oppose. Issues [ 10 ] The following are the issues for determination: No. 1 Does the Court have jurisdiction to hear the Application to Vary?

No. 2 If the Court has jurisdiction, has there been a material change in circumstances that would justify a change in the Order? No. 3 If there has been a change in circumstances, what is the appropriate result:

i) Should the Spousal Support Advisory Guidelines ( “the SAG”) apply? ii) Should there be an increase in quantum of spousal support? iii) Should there be a decrease in quantum of spousal support, and if so, should there be a termination date? No. 4 Is Mr. Breed entitled to any other of the sundry relief sought in the Application? No. 5 Costs Positions of the Parties [ 11 ] Mr. Breed’s position is that a reduction in and eventual elimination of spousal support is justified based on a number of factors or any of them: that Mrs.

Breed has failed to make any efforts at self-sufficiency, that she now shares her living expenses with another person, that her monthly expenses are unreasonable and currently unrelated to the maintenance of the farm or as otherwise contemplated in the Minutes, that she has failed to continue to market and/or list the farm for sale as required by the Minutes, and that she has significantly diminished the value of the farm asset. [ 12 ] Initially, Mr.

Breed filed his Application and an Affidavit in support thereof, his sworn Statement of Income including copies of his income tax returns and the financial statements of his company DEH . An updated Affidavit was filed closer to the date of the hearing. At the hearing he produced the witnesses Adam Brown, Jessica Weagle-Brown, Keith Zwicker (former farm employees of Mrs. Breed), David Poole (a farm neighbour) and John Salsbury (a realtor). [ 13 ] Mrs.

Breed’s position is that the Application is outside the jurisdiction of the Court, because matters pertaining to the farm are required by the Minutes to be put to binding arbitration and as such cannot come before the Court other than in conjunction with a contempt application.

[ 14 ] In the alternative, if the Court determines it has jurisdiction, Mrs. Breed argues that because the CRO assumed by consent the same spousal support regime contained in the February 2012 Interim Order, there has never been a full adjudication of Mrs. Breed’s entitlement to spousal support other than on the “means and needs basis” discussed in the interim hearing decision. Mrs. Breed says an increase in monthly support is justified to bring the quantum in line with the SSAG . [ 15 ] Mrs. Breed did not file a Response to Application.

She met only some of the disclosure obligations imposed upon her by the Court, filing early in the process a sworn Statement of Income and a sworn Statement of Expenses (December 2014). While she offered no Affidavit evidence or witnesses, she was extensively cross-examined on those Statements during the hearing. Issue No. 1 – Does the Court have jurisdiction to consider the Application to Vary? [ 16 ] Despite Mrs. Breed’s submissions to the contrary, there can be no question this Court has jurisdiction to consider the Application to Vary initiated by Mr.

Breed, as found in three distinct sources: the June 2014 Variation Order, the Minutes adopted in the CRO and the Divorce Act (supra) . June 2014 Variation Order [ 17 ] Mrs. Breed relied on paragraph 14 of the parties June 2014 Consent Variation Order, maintaining its wording prevents Mr. Breed from proceeding.

It reads: This order constitutes a full and final settlement as of the date of this order of all matter arising from the breakup of their marriage to each other and subsequent changes in circumstances , including matters most recently brought before the Court by Stephen Breed’s Notice of Variation Application filed on May 29, 2013 and including all matters, issues and demands which had been communicated by the one party to the other in any forum or format prior to the date of this order either by pleadings in the above variation proceeding or position statements prepared for the parties for a settlement conference or conferences attended prior to the date of this order or by demands or position statements made as a part of the arbitration process, below mentioned, and whether or not particular issues or demands are expressly referred to in this order.

For better clarity and by way of example, previous relief requested in respect of retroactive home/property insurance, car insurance, health insurance and other items for remedy shall hereinafter not be pursued by either party. For further clarity, the Corollary Relief Order in this proceeding (which incorporated the Partial Agreement and Minutes of Settlement), Arbitration Decision of Patrick L. Casey, Q.C. dated July 26, 2013 as amended and the Variation Order of Justice C.

Beaton issued on September 24, 2013 along with this order represent a complete resolution of the entire dispute (as of the date of the order) between the parties in respect of every matter arising from the breakup of their marriage to each other and subsequent changes in circumstances . (emphasis added) [ 18 ] Mrs. Breed asserted that the phrase “subsequent changes in circumstances”, signifies that the June 2014 Order was intended to be a complete resolution of every circumstance up to that date, and because Mr.

Breed filed this Application only two months later, the evidence cannot establish a material change in that short time and further, the evidence Mr. Breed relied on in this Application, in support of a material change, included events occurring prior to the making of that order. [ 19 ] The preceding argument cannot be sustained given the contents of clause 15 of the same June 2014 Order, which states: For purpose of clarity, it is intended that Paragraph 14 herein represents a full and final settlement of all matters that were addressed by the parties by virtue of Mr.

Breed’s Notice of Variation Application filed on May 29, 2013, Justice C. Beaton 2013 Variation Order; Patrick L.

Casey, Q.C.’s Arbitration Decision dated July 26, 2013, as amended; but does not apply to the provisions of the parties’ Corollary Relief Order incorporating their Partial Agreement and Minutes of Settlement that deal with spousal support, or address the issue of future variations of the spousal support payable by Stephen Breed to Caryn Breed pursuant to the May 28, 2012 Partial Agreement and Minutes of Settlement. (emphasis added) The clause provides an exception which clearly permits future variations of the CRO on the issue of spousal support, regardless of the timing of the future variation relative to any other orders made. [ 20 ] It is also noteworthy that the June 2014 Order discussed in paragraphs 9 and 10 the listing of the farm.

Clearly the parties accepted at that time the Court’s jurisdiction to both pronounce on the variation application then before it, and to address matters associated with their actions and obligations in relation to division of property and specifically to the farm. The Minutes [ 21 ] Mrs. Breed asserted that Mr.

Breed’s evidence in this application concerning the listing and marketing of the farm is of no import because this Court has no jurisdiction to rule on matters pertaining to the farm, as the parties agreed in the Minutes to participate in binding arbitration concerning the sale of the farm and spousal support (clause 18(c)) and they agreed the quantum of support was premised on their cooperation with respect to the sale of the farm (clause 18 (d)). Mrs. Breed relied on clause 1(

a) of the Minutes, which states the farm would continue to be listed until sold, which she argued pertains to relief granted pursuant to the Matrimonial Property Act , R.S.N.S. 1989, c. 275. Recognizing real property cannot be addressed in a spousal support variation made pursuant to

section 17 of the Divorce Act (supra) , Mrs. Breed asked the Court to find the remedy Mr. Breed seeks could only be properly brought in a contempt application. Using that same reasoning, Mrs. Breed asserted the Court cannot vary the Minutes to provide, as Mr. Breed requested, that Mrs. Breed now become sole owner of the farm, as there is no “ Miglin application” before the Court to alter the terms of the parties’ property settlement. [ 22 ] It is very clear from the language of clauses 18 (a), (

c) and (

d) of the Minutes that quantum of support was tied to: the costs associated with Mrs. Breed’s occupation and maintenance of the farm (pending its sale), her lack of independent funds to contribute to her own support, and the parties’ cooperation with respect to the sale of the farm. Clause 18 repeatedly referenced both quantum and duration of spousal support being “reviewable” and that the review would be “with a view to a reduction in the spousal support that may still be payable”. [ 23 ] In clauses 18(e), (f), and (

g) of the Minutes the parties contemplated certain events which would trigger a review of support as to

quantum and duration, with a view to a reduction in any support that might still be payable. Clause 18 (

h) acknowledged the factors set out insection 15.2 (4) and the objectives set out in

section 15.2 (6) of the Divorce Act (supra). In it, Mrs. Breed acknowledged her “… positiveobligation insofar as practicable, to promote her own economic self-sufficiency within a reasonable period of time”. That same clause alsocontemplated a review of quantum and duration of spousal support, with a view to a reduction, should Mrs. Breed secure employment, start abusiness or generate income. Clause 18(

i) was a broad review clause, not contingent on a triggering event, which stated “spousal support isalso reviewable taking into consideration such other changes in circumstances as envisaged by

section 17 of the Divorce Act”. [24] While clause 18 of the Minutes contemplated the occurrence of certain events, Mr. Breed’s argument was that a change incircumstances the Court might find in light of the evidence offered in this application would be grounded in events other than thosecontemplated in clause 18 of the Minutes. I agree, with the possible exception that as Mrs. Breed now shares her living expenses with anotherperson, that might go to the trigger of sharing expenses contemplated in clause 18 (g). I am satisfied the arguments advanced and evidencerelied on by Mr.

Breed in this application pertain to matters other than those triggering events enumerated in clause 18. [25] The Minutes are replete with statements recognizing the capacity of the parties to review the quantum of spousal support and/orconduct a review pursuant to the Divorce Act (supra). I am satisfied there is no language in the Minutes that would limit or serve as a bar toMr. Breed making this application, nor estop the Court from exercising its jurisdiction in a divorce variation. The Divorce Act [26] The Court’s statutory authority to consider Mr. Breed’s Application to Vary is found in

Section 17 of the Divorce Act (supra).Section 17(1) discusses the Court’s authority to make an order varying, rescinding or suspending, prospectively or retroactively, a supportorder. Section 17(3) provides that the Court may include in the Variation Order any provision that could have been included in the orderwhich is sought to be varied. Further, the objectives set out in

section 15.2 (6) with respect to determining a spousal support award arerepeated in

Section 17 as the objectives to be taken into account in a variation. [27] There is nothing about the circumstances of this case - not the contents nor the language of the Minutes, the CRO or any of thesubsequent Variation Orders - which could displace that authority. It is important to attend to the comments of the Supreme Court of Canadain L.M.P. v. L.S., 2011 SCC 64 at paragraph 41: Finally, an agreement incorporated into a

section 15.2 Order may simply include a general term providing that it is final, or finality maybenecessarily implied. But even where an agreement incorporated into an order includes a term providing that it is final, the court’s jurisdictionunder s. 17 cannot be ousted (Miglin; G. (L.); Leskun). A provision indicating that the order is final merely states the obvious: the order ofthe court is final subject to s.17 of the Divorce Act. Courts will always apply the Willick inquiry to determine if a material change incircumstances exists. (emphasis added) [28] In

summary, the three sources discussed above or any one of them establish the Court’s jurisdiction to hear Mr. Breed’s applicationis intact. Issue No. 2 – Has there been a material change in circumstances? [29] The Court is entitled on an application to vary a CRO, to start from the assumption that the CRO is correct (R.P. v. R.C., 2011 SCC65 , [2011] 3 SCR 819; paragraph 25). From there, the Court considers the question as to whether there has been a material changesince the making of that order. [30] The test as to whether there has been a material change in circumstances was set out in Rondeau v.

Rondeau, 2011 NSCA 5 whereinHamilton, J. on behalf of the Court wrote: 10. Both parties acknowledge that the starting point for an application to vary spousal support is a determination of whether there hasbeen a change in the condition, means, needs or other circumstances of either former spouse since the most recent spousal support order wasmade. It is only after there has been such a change that the judge may consider what effect the change should have on the existing spousalsupport order. … 13. The Supreme Court of Canada in Willick v.

Willick, (SCC), [1994] 3 S.C.R, 670 (S.C.C.), ¶ 21 and later in L.G. v.G.B., (SCC), [1995] 3 S.C.R. 370 paragraph 73, set the standard for finding a change in circumstances with respect tospousal support: [21] In deciding whether the conditions for variation exist, it is common ground that the change must be a material change of circumstances.This means a change, such that, if known at the time, would likely have resulted in different terms.

The corollary to this is that if the matterwhich is relied on as constituting a change was known at the relevant time it cannot be relied on as the basis for variation … [31] In Daigle v. Daigle, 2013 NSSC 205, Jollimore, J. considered the nature of any change. At paragraph 13 she wrote: In addition to the requirement that the change be one which was not reasonably anticipated by the parties, the change must have otherqualities. In P.M.B. v.

M.L.B., 2010 NBCA 5 at paragraph 2, Justice Robertson said that “As a general proposition, the court will be askingwhether the change was significant and long-lasting; whether it was real and not one of choice”. The Nova Scotia Court of Appeal approvedof P.M.V. v. M.L.B, 2010 NBCA 5, at paragraph 21 of Smith v. Helppi, 2011 NSCA 65, …

[32] The impact of a party’s knowledge when an order was originally made was considered in Black v. Black, 2015 NBCA 63 ,[2015] N.B.J. No. 235, wherein Baird, J. A. explained the test for variation as articulated in L.M.P v. L.S., (supra): 42. … The decision reiterates that the onus is placed on the moving party to satisfy the requirements of material change, and also requiresconsideration of whether knowledge of circumstances at the time the original order was granted would have altered the terms. … (emphasisadded) [33] In Dedes v.

Dedes, 2015 BCCA 194, Bennet, J.A. said this about the test set out in L.M.P., at paragraph 25: As articulated in L.M.P. the test for material change is based not on what one party knew or reasonably foresaw, but rather on what theparties actually contemplated at the time the order was entered by agreement. A function of the material change threshold is to preventparties re-litigating issues that were already considered and rejected; in such cases, an application to vary would amount to an appeal of theoriginal (see Gordon at para.15).

As was stated by L’Heureux-Dube, J. in Willick at p.734, “the diversity of possible scenarios in family lawdictates that courts maintain a flexible standard of judicial discretion which does not artificially limit the adaptability of the Divorce Actprovisions.” See also L.G. v. G.B. (SCC), [1995] 3 S.C.R. 370 at paras. 49-51 and Jakob v.

Jakob, 2010 BCCA 136 at para.40. [34] The question as to whether there has been any material change which, if contemplated or known by the Breeds at the date of theCRO, would likely have resulted in different terms, must be assessed in light of the evidence put before the Court. [35] The parties were very critical of each other’s evidence, both during their respective cross examinations and through their counsel’ssubmissions. Their castigations aside, the principles set out by Forgeron, J. in Baker-Warren v.

Denault, 2009 NSSC 59 guided myassessments of credibility: [18] For the benefit of the parties, I will review some of the factors which I have considered when making credibility determinations. It isimportant to note, however, that credibility assessment is not a science. It is not always possible to “articulate with precision the complexintermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions ofevents:” R. v. Gagnon 2006 SCC 17 , para. 20.

I further note that “assessing credibility is a difficult and delicate matter that doesnot always lend itself to precise and complete verbalization:” R. v. R. E. M. 2008 SCC 51, para. 49. [19] With these caveats in mind, the following are some of the factors which were balanced when the court assessed credibility:

a) What were the inconsistencies and weaknesses in the witness’ evidence, which include internal inconsistencies, prior inconsistentstatements, inconsistencies between the witness’ testimony, and the documentary evidence, and the testimony of other witnesses: Re: NovakEstate, 2008 NSSC 283 , 2008 NSSC 283 (S.C.);

b) Did the witness have an interest in the outcome or was he/she personally connected to either party;

c) Did the witness have a motive to deceive;

d) Did the witness have the ability to observe the factual matters about which he/she testified;

e) Did the witness have a sufficient power of recollection to provide the court with an accurate account;

f) Is the testimony in harmony with the preponderance of probabilities which a practical and informed person would find reasonable giventhe particular place and conditions: Faryna v. Chorney (BC CA), [1952] 2 D.L.R 354;

g) Was there an internal consistency and logical flow to the evidence;

h) Was the evidence provided in a candid and straight forward manner, or was the witness evasive, strategic, hesitant, or biased; and

i) Where appropriate, was the witness capable of making an admission against interest, or was the witness self-serving? [20] I have placed little weight on the demeanor of the witnesses because demeanor is often not a good indicator of credibility: R v.Norman (1993) (ON CA), 16 O.R. (3d) 295 (C.A.) at para. 55. In addition, I have also adopted the following rule,succinctly paraphrased by Warner J. in Re: Novak Estate, supra, at para 37: There is no principle of law that requires a trier of fact to believe or disbelieve a witness's testimony in its entirety.

On the contrary, a triermay believe none, part or all of a witness's evidence, and may attach different weight to different parts of a witness's evidence. (See R. v.D.R., [1966] 2 S.C.R. 291 at 93 and R. v. J.H. supra). [36] Mr. Breed provided voluminous affidavit evidence. Each party was cross-examined at some considerable length. I do not confuseduration with persuasiveness, but those cross-examinations provided many examples to assist the Court in assessing each party’s credibility.In the end, while Mr.

Breed was occasionally given to speculation and to editorializing on matters not on point, overall he provided the Courtwith clear and persuasive evidence, much of which was corroborated by other equally credible individuals. [37] By sharp contrast, the sometimes very emotional evidence of Mrs. Breed was by times self-contradictory and at others offered whatappeared to be an attempt at a rationale or logic but which amounted to explanations that went around in circles or simply made no sense.

Sherepeatedly tried to link certain events with reasons for her actions and/or decisions, but often there was no casual connection discernible bythe Court. To her credit, there were times when her evidence corroborated what Mr. Breed and/or his witnesses reported. However, where theevidence of Mrs. Breed differed from that of Mr. Breed or his witnesses, I relied on their evidence and not hers. [38] The evidence offered by Mr.

Breed, when considered in light of the test on a variation application (as discussed above) that must bemet by him, leads the Court to the conclusion there has been a change in circumstances. That change is grounded in the credible evidenceconcerning any one or all of three discrete subjects: efforts by Mrs. Breed at self-sufficiency, the condition of the farm and efforts to promote

the sale of the farm. Self-Sufficiency [39] The Minutes attached to the CRO identified in clause 18 (

h) Mrs. Breed’s obligation toward self-sufficiency in so far as practicable.Despite the recognition at paragraph 24 of Strecko v. Strecko, 2014 NSCA 66 that “… an agreement between the parties need notspecifically address all of the objectives and factors set out in the Divorce Act”, these parties’ Minutes did just that, by specific reference tosection 15.2 of the Divorce Act (supra). [40] Mrs. Breed relied on my decision in Bethune v. Bethune, 2015 NSSC 95 to argue that the Court should focus on the disparitybetween the parties’ respective standards of living rather than placing undue emphasis on Mrs.

Breed’s self-sufficiency in the timeframesince the divorce, which would then justify more, not less, spousal support for her. Bethune (supra) allowed that the concept of self-sufficiency did not require the payee Mrs. Bethune to secure highly lucrative employment, which might not be possible, but there needed tobe some nexus between her chosen field of training and a realistic prospect of modest income, even if the lifestyle gap between the partieswas never fully closed. [41] There is little to compare between Bethune (supra) and this case. Completely opposite to the circumstances of Mrs.

Bethune, Mrs.Breed’s evidence was that while she had worked during the marriage, she was not working at the date of the CRO, and post-divorce had notmade any attempt at training, education or employment. With a CRO setting out an unequal division of assets in her favour and globalmonthly support in excess of $25,500, Mrs. Breed should have been positioned to at least attempt to close any perceived lifestyle gap. Thatattempt has not happened, despite being completely within Mrs. Breed’s control. [42] Mrs. Breed also cited Chutter v.

Chutter, 2008 BCCA 507 which decision recognized the principle that self-sufficiency is a relativeconcept which takes into account that following long marriages there should be an effort to achieve rough equivalency of standards of living(Moge v. Moge, (SCC), [1992] 3 SCR 813), that simply looking at the needs of the payee is an overly narrow approach, andthat self-sufficiency encompasses more than meeting basic expenses (Fisher v. Fisher, 2008 ONCA 11). [43] Mrs. Breed maintained that she and Mr.

Breed do not enjoy remotely similar standards of living, she has had to deplete her capital tomaintain herself, she has incurred debt in excess of $650,000 post-divorce, and she is nowhere near the goal of self-sufficiency. Again thisassertion does not reconcile with the fact that the divorce left Mrs.

Breed with a plan for raising further capital through the sale of the farm,sizeable monthly support to enable the farm operation to continue until that time, and an agreement on her part to pursue some measure ofself-sufficiency. [44] It is generally recognized that there is a lower priority attached to self-sufficiency in long term, traditional marriages because thatobjective likely will be harder to or will be unable to be achieved. Despite that, Mrs.

Breed entered into Minutes which specifically stated shehad taken into account all of the factors set out in s.15.2 (6) of the Divorce Act (supra) including the concepts of self-sufficiency and standardof living. Mrs. Breed agreed to an amount of spousal support that she must have deemed suitable to address her standard of living. [45] Mrs. Breed also argued that her efforts at self-sufficiency should not be examined in this application because

section 18 (

h) of theMinutes identified the concept of self-sufficiency without setting any deadline or timeline for her to achieve any milestone. While I agreethere was no specific timeline set, that is not a barrier to the Court’s consideration. It was Mrs. Breed herself who testified there have been noefforts whatsoever on her part. There is nothing to objectively measure at this point in time, by way of efforts at self-sufficiency, but that doesnot negate her obligation in the absence of a specific timeline. [46] It was very difficult to extract from the evidence why it is that Mrs.

Breed has not taken any steps toward self-sufficiency. She spokeof reasons why, none of which I was persuaded were objectively reasonable. As with her evidence about the deterioration of conditions at thefarm, it was difficult to follow Mrs. Breed’s frequently circular arguments and vague explanations for the situation in which she finds herselfat present: not residing at either the farm or her condo, and paying to share an apartment. [47] Mrs.

Breed gave extensive evidence about problems associated with the condo – faulty windows, a water leak, and a faulty alarmsystem to name a few, apparently in an attempt to justify not occupying it or renting it since she assumed sole ownership of it in 2013. I amnot prepared to accept that she could not have rented the condo, or saved on her costs by occupying it herself at the point after she stoppedresiding at the farm. [48] Even if the Court were to accept that Mrs.

Breed is in a strictly cost sharing arrangement in residing with a friend, as opposed toreceiving a benefit (which benefit could trigger a reduction per clause 18 of the Minutes) that is the very same evidence which establishesMrs. Breed is not occupying and operating the farm, which she was required to do pursuant to clause 18 (

a) of the Minutes. [49] The language of the Minutes clearly tied the unequal division of assets in Mrs. Breed’s favor to a future intention to assess her self-sufficiency relative to her ability to earn an income from funds gained through disposal of the farm. Yet Mrs. Breed continues to point to theoperation of the farm as an excuse to fail to promote her self-sufficiency, despite no longer living there or operating it as a working farm. [50] If the argument of Mrs.

Breed was that she is now disadvantaged by the agreement she made in the Minutes, while it begs thequestion as to why she did not make an application to vary at an earlier time, more problematic is that in this application she never filed aResponse to Variation Application seeking specific relief, nor did she offer any persuasive evidence about her present standard of living orexpenses, why she has incurred considerable debt, or why she has depleted her capital post-divorce. [51] Counsel for Mrs.

Breed suggested the efforts towards self-sufficiency she has made are found in her occupation and care of the farmand do not mean that she should be required to find a well-paying job so Mr. Breed can then reduce spousal support. However, Mrs. Breed’sevidence was plain: she no longer occupies the farm. At pages 5 and 19 of her “Response to Requested Disclosure” (Exhibit 9) Mrs. Breedreported that her efforts regarding self-sufficiency were with respect to the sale of the property, an assertion without merit in the face of theevidence of the realtor Mr.

Salsbury (discussed later herein) about the crippling limitations on both the listing and his efforts to show theproperty, and Mrs. Breed’s acknowledgement that the property has not been listed for sale since 2014. While I recognize that Mrs. Breed’sevidence was that the absence of a listing is due to other difficulties with the farm, I do not accept that those other difficulties are legitimatefor reasons set out elsewhere herein.

[52] Mrs. Breed also relied on the decision in Strecko (supra) citing from Leskun v. Leskun 2006 SCC 25, wherein the Supreme Court ofCanada recognized promotion of self-sufficiency as a factor as opposed to a duty in s.15.2 (6) of the Divorce Act (supra), and the decision inAllaire v. Allaire, (ON CA), [2003] O.J. No.1069 wherein the Ontario Court of Appeal noted that self-sufficiency is not afree standing concept and is to be seen in the context of the standard of living enjoyed by the parties in the marriage. Once again, thedifficulty here is that the evidence of Mrs.

Breed, which I accept on the point, is as to an absence of any effort on her part. It would be adifferent matter had the Court been presented with evidence of something upon which to assess her degree of effort. [53] Arguably, while Mrs. Breed is ultimately able to choose not to make any efforts or take any steps toward self-sufficiency, that doesnot negate her obligation as set out in the Minutes or the Divorce Act (supra). Since she has chosen not to take any steps to attempt to meether obligation, I am satisfied a change in circumstances is made out.

That choice comes with implications for the quantum of support. [54] While Mrs. Breed is not required to become entirely self-sufficient, she has an obligation to make some efforts to attempt tocontribute, while recognizing that she might never be able to achieve the standard of living enjoyed during the marriage. That obligationcannot be reconciled with Mrs. Breed’s simultaneous depletion of the farm, an asset intended to be used to assist in her efforts to exploreand/or achieve some measure of self-sufficiency. [55] A change in circumstances can be found in the absence of evidence that Mrs.

Breed has done anything to contribute toward her self-sufficiency, despite the positive obligation upon her in

section 18 of the Minutes “… insofar as practicable, to promote her own economicself-sufficiency within a reasonable period of time”. That complete lack of action or effort could not have been contemplated when theMinutes were signed, and indeed is completely contrary to the positive goal imposed on Mrs. Breed therein. Condition of the Farm [56] Of all of the sometimes disjointed or implausible evidence offered by Mrs. Breed, it was that surrounding events at the farmproperty which was, in a word, troublesome. I accept the evidence of Mrs.

Breed’s former employees Adam Brown, Jessica Weagle Brownand Keith Zwicker, all of whom were subpoenaed. As an aside, I also accept their evidence that Mrs. Breed visited all three of them in thedays just prior to the hearing, to try to dissuade them from giving evidence, a tactic which left Mr. Brown and Ms. Weagle Brown refusing toexecute their Affidavits before the hearing. Furthermore, in her viva voce evidence before the Court, Ms. Weagle-Brown was clearlyconcerned about her family’s safety, believing Mrs.

Breed could impose consequences for her evidence. [57] All three witnesses provided considerable detail about operations and various activities and events on the farm in the period 2013-15. All three appeared to have enjoyed a good relationship with their employer; Mr. Zwicker in particular expressed a fondness for her, butwas very sincere in his concern for the state of the farm and for Mrs. Breed herself. [58] Some of the employees’ observations were corroborated in the evidence of farm neighbour, David Poole, who was also subpoenaedafter refusing to execute an Affidavit in advance. In sharp contrast to Mrs.

Breed’s relationship (at the relevant times) with her employees, itwas more than clear from Mr. Poole’s evidence that he and Mrs. Breed have never enjoyed a friendly co-existence. [59] I found all four witnesses to be credible and I relied on their evidence and their descriptions of the farm in coming to conclusionsabout what can only be characterized as a shocking decline in the state of the farm between approximately 2013 and the time of the hearing.Examples of that deterioration, all of which I am satisfied was generated by or on the instruction of Mrs. Breed, are set out below.

The list isnot intended to be an exhaustive canvass of the evidence, but rather to highlight some of the more significant events I am satisfied occurredduring a time when the property was supposed to be marketed for sale. (The initials in brackets signify which witness testified regarding eachexample listed.) The Home: (

i) Some of the duct work used for the heating/air conditioning system in the house was removed (KZ). (ii) The wires for the woodstove fan were cut and the back of the stove removed (KZ). (iii) Power to the home was shut off for a period of time (KZ). The Barn: (

i) Electrical wires and electrical panel wires in the barn and/or garage were cut (AB; KZ). (ii) There was no unusual or excess moisture observed in the barn despite Mrs. Breed’s ongoing complaint about the same (AB). (iii) During certain periods there was no electricity or water available in the barn (AB; JWB; KZ); The Property: (

i) There were marked negative changes in and deterioration of the appearance of the farm over time (JWB; AB; KZ; DP). (ii) There was extensive excavation conducted at several locations on the property (JWB; AB; DP). (Photographs in Exhibit 1, Tab E andExhibit 2, Tab 9 also depict excavation). (iii) Large logs were placed in front of the main gates to the principle entrance to impede entrance to the property; (AB; JWB; DP). (iv) Significant sums of money were spent at a neighbour’s barn to prepare it for the boarding of Mrs. Breed’s horses but no horses wereplaced there (JWB; KZ). (

v) Farm equipment and property was damaged by employees (KZ; DP). (vi) In 2015 a number of power poles between the barn and the roadway were removed (DP);

(vii) There was no hay made on the property in 2014 or 2015 (DP). (viii) Certain events such as equipment malfunctions that occurred, Mrs. Breed blamed on “them”, on Mr. Breed or on people working for him (AB; JWB). [ 60 ] Farm labourers were, by times, paid to provide personal services to Mrs. Breed. For example, for lengthy periods she paid Ms. Weagle –Brown to act as her personal assistant or secretary, despite the fact Mrs. Breed herself was not engaged in any employment or other endeavours, save her apparently persistent efforts to undermine the state of the farm. (Curiously, Ms.

Weagle-Brown described some of her secretarial activities involved assisting Mrs. Breed with document collation which Mrs. Weagle-Brown understood to be in connection to Mrs. Breed’s preparation of evidence for this case, yet no evidence was advanced by Mrs. Breed.) [ 61 ] Mrs. Breed was heard by all three employees, at various times and in various contexts, to express her belief that the property was being gassed and that she was being spied upon. Mrs.

Breed corroborated many aspects of what the witnesses described, albeit along with different reasons as to why, and she maintained the farm is currently uninhabitable. [ 62 ] There was nothing in the lengthy cross-examination of Mrs. Breed that could permit the Court to understand a logical or reasonable explanation for all of the instructions given and destructive actions the evidence established were taken by or on behalf of Mrs. Breed in relation to the farm over the 2013-15 period.

There was nothing that could assist the Court in discerning any sound, persuasive reason for the farm being in the deteriorated state I am satisfied now exists, relative to its condition at the time the Minutes were executed. [ 63 ] As regards Mrs. Breed’s motivations for many of the decisions made in relation to the farm, much remains a mystery. For example, Mrs.

Breed’s evidence on cross examination was that she has spent over $70,000 in excavation activity on the property, but the Court was not able to discern why she has continued that activity for any reason other than that she believes there is contamination on the property, and yet she agreed that an independent consulting firm she hired conducted soil sampling tests in May-June 2014 and reported the samples met regulatory guidelines and no intervention was required. [ 64 ] Even if Mrs.

Breed was to now try to list the farm for sale the evidence regarding the damage to the farm begs the question as to how the property could be marketed as a going concern, a working farm, an “equestrian showpiece” as it was once described. By analogy, if Mrs.

Breed had received a sum of money, rather than the farm, to help with her self-sufficiency and she had been required to invest the money to generate an income, then today she would not only be at the point where she had done nothing to generate income (analogous to not listing and marketing the farm) but in fact she would have encroached on the capital by inexplicably depleting it. [ 65 ] The evidence produced by Mr. Breed to support his assertion that Mrs. Breed has fundamentally altered the farm was compelling. Further, because some of the evidence of Mr.

Breed and his witnesses chronicled certain events unfolding in the time after Mr. Breed commenced this application, it became obvious that Mrs. Breed continued to take steps to alter the use and nature of the farm even in the face of and with knowledge of Mr. Breed’s assertions. [ 66 ] Mrs. Breed has damaged the farm and now insists she must live elsewhere. The evidence of the unforeseen depletion of a core asset, the sale of which was pivotal to any examination of Mrs. Breed’s efforts at self-sufficiency, constitutes a change in circumstances. The unilateral actions taken by Mrs.

Breed which brought about that depletion could not reasonably have been contemplated by Mr. Breed at the time the CRO was issued. Efforts to Promote the Sale of the Farm [ 67 ] The Minutes contemplated Mrs. Breed’s cooperation to achieve a sale of the farm, following which spousal support would be reviewable. Inherent in achieving a sale was the obligation to keep the farm listed with a realtor, as enumerated in the Minutes. However, the evidence establishes the farm has not been listed for sale since June 30, 2014. [ 68 ] The evidence of subpoenaed realtor John Salsbury was of great assistance to the Court.

While Mr. Salsbury was frequently defensive in his tone and visibly unhappy to be a witness, his illuminating evidence permitted the Court to conclude that: (

i) Mr. Salsbury had no previous experience listing a property in the nature of the farm, nor a property in that price range. (ii) Mrs. Breed listed the farm with him in November 2013 but gave him virtually no ability to market it and no ability to conduct showings without her permission and presence. (iii) Mrs. Breed refused or failed to respond to requests for showings on several occasions during the listing period. (iv) Mrs. Breed communicated directly to Mr. Salsbury and through previous counsel that she was emotionally attached to the property and did not intend to sell it. (

v) Mrs. Breed also asked Mr. Salsbury to advertise her condo for rent but when presented with prospective tenants she declined to entertain the possibility. [ 69 ] While it is tempting to suspect that Mrs. Breed intentionally sought out a realtor with no particular expertise in marketing a niche property, the evidence established that she tied Mr. Salsbury’s hands in refusing to cooperate with or do anything that would allow marketing to happen. One of the more unusual examples came in the incident described by both Mr. Salsbury and Mrs.

Breed when she refused to authorize a showing because she was otherwise busy tending to her sick cat. [ 70 ] There was no evidence that Mrs. Breed kept Mr. Breed informed about any of what she perceived as problems or challenges at the farm or any of her actions in response thereto, which one would have reasonably expected Mrs. Breed to do given her obligation pursuant to the CRO to cooperate with Mr. Breed in keeping the farm listed for sale. [ 71 ] The evidence supports that Mrs.

Breed’s actions and lack of actions have changed profoundly the nature and quality of the property compared to what it was at the date of the CRO. Not only has she failed to market the property, but it is only reasonable to conclude the

property likely cannot presently be marketed as the kind of property it was previously given Mrs. Breed has devalued it to a significantdegree. [72] While Mrs. Breed’s failure to list the farm, as with the damage to it, could arguably be the basis of a contempt argument for failureto meet the terms of the CRO, it is clear that her failure to list the farm could not have been contemplated when the CRO issued and I amsatisfied it constitutes a material change in circumstances. [73] In

summary, even if any one of the three subjects considered above on the question of a change in circumstances could be said tofail to meet the test for material change, which I do not accept, then the cumulative effect of all three also establishes there has been amaterial change in circumstances, which could not have been contemplated when the CRO was made (or for that matter when twosubsequent Variation Orders were made) and which, if known then, would very likely have resulted in different terms. [74] Having been satisfied on the test for material change which would justify a variation to the terms of the CRO, what relief isappropriate?

Issue No. 3 (i) – Should the SSAG apply? [75] Mrs. Breed argued that although this Court chose not to apply the SSAG in the 2012 Interim Hearing (for the reasons set out in thatdecision), nonetheless the SSAG can be considered on a variation, as per Gray v. Gray, 2014 ONCA 659. Mrs. Breed submitted that evenimputing to her an income of $100,000 from employment and $40,000 a year from rental income (for the condo and the farm), spousalsupport at the SSAG mid-point range would be $25,000 to $33,000, which is more than Mr. Breed currently pays. [76] There is no evidence before the Court upon which to impute income.

What would be the basis for using the figures Mrs. Breedsubmitted? Those numbers were suggested, but without providing any context or evidence of their significance or relevance.

Furthermore, theonly court-made determination of quantum of spousal support was in the February 2012 Interim Order (where the SSAG were not applied)but this application does not concern that order; any variation order made pursuant to this application must be in relation to the CRO, whichalso did not apply the SSAG. [77] In my view there is no obligation on the Court to now utilize the SSAG in this variation decision, when it was not previouslyapplied in this case, merely because the tool exists. As discussed in Fisher (supra): [95] In the seminal case of Yemchuk v. Yemchuk, 2005 BCCA 406 , [2005] B.C.J.

No. 1748, 16 R.F.L. (6th) 430 (C.A.), atpara. 64, Prowse J.A. aptly characterized the Guidelines as a "useful tool". [See Note 22 below] She recognized that, unlike the CSGs, theGuidelines are neither legislated nor binding; they are only advisory. The parties, their lawyers and the courts are not required to employthem. As well, the Guidelines continue to evolve; they are a "work in progress" subject to revision. … [96] Importantly, the Guidelines do not apply in many cases.

They specifically do not apply at all in certain enumerated circumstances,including where spouses earn above $350,000 [See Note 23 below] or below $20,000. Furthermore, they only apply to initial orders forsupport and not to variation orders. They are thus prospective in application. They do not apply in cases where a prior agreement provides[page265] for support and, obviously, in cases where the requisite entitlement has not been established.

They will not help in atypical cases.[See Note 24 below] As well, there will be regional variations, as well as rural and urban variations, that may be seen to merit divergentresults based on variations in cost of living or otherwise.

Importantly, in all cases, the reasonableness of an award produced by the Guidelinesmust be balanced in light of the circumstances of the individual case, including the particular financial history of the parties during themarriage and their likely future circumstances. [97] Accordingly, the Guidelines cannot be used as a software tool or a formula that calculates a specific amount of support for a setperiod of time.

They must be considered in context and applied in their entirety, including the specific consideration of any applicablevariables and, where necessary, restructuring. (emphasis added) [78] For all of the same reasons as specifically emphasized in the quote above, the use of the SSAG is neither instructive nor constructivein this case. In 2014 in Gray (supra) decided after Fisher (supra) the Ontario Court of Appeal noted that “the July 2008 SSAG publicationcontemplates that the guidelines have a role to play on variation” (para 43).

Nonetheless, in the same year in Strecko (supra) the Nova ScotiaCourt of Appeal found no error in law by the trial judge who chose not to apply the SSAG on a review of spousal support “… since the lawdoes not oblige the judge to apply the Guidelines…” (para 50). [79] Determination of spousal support awards even when utilizing the SSAG requires a more nuanced approach than simply calculatingthe quantum of support as a mathematical outcome of the application of the Guidelines.

Determining whether to apply the low, mid or highrange figures requires the trial judge to exercise discretion in considering the influence of the facts of the particular case on the choice ofrange to be used. [80] There are many unique features of this case that in my view make the use of the SSAG unhelpful as opposed to those in which thetool can be of greater assistance.

The unique features here include the amount of the payor’s annual income, the prior agreement of theparties, and the lack of reliable evidence as to the payee’s current expenses, which goes in hand with a lack of opportunity to objectivelyassess her standard of living. Mrs. Breed should not automatically now be entitled to achieve a higher amount of support, as was argued onher behalf, simply on the basis that by applying the SSAG she could achieve a higher quantum, particularly when it would be most difficult todo anything other than “guess” at what income might properly be imputed to her.

Issue No. 3 (ii) – Should there be an increase in quantum? [81] Mrs. Breed argued in the alternative that she requires an increase in support to prevent the “ongoing slide” in her financial situation.Mrs. Breed noted that at the time the Minutes were executed she had no other sources of income and Mr. Breed must have accepted herexpenses as reasonable because he agreed to be bound by the same support amount that was determined in the February 2012 Interim Order.Mrs. Breed maintained that at the time, Mr. Breed earned 1.18 million per year and Mrs.

Breed was debt free, with $342,000 in RRSP’s andover $200,000 in non-registered investments. [82] Mrs. Breed also maintained her support should be increased because her ownership of the farm, which she asserts is now beyond her

ability to manage and finance, jeopardizes her future security as she has been left with an asset that is valuable on paper but has cost her to maintain. That assertion is not tenable given that the devaluation of the property was caused by her. [ 83 ] Mrs. Breed asserted that her income as a result of the 2012 Interim Hearing had decreased by one third within 18 months of the CRO, in part due to an increase in her tax liability.

There was not sufficient evidence presented to support that submission. [ 84 ] The July 2012 divorce trial, the July 2013 Arbitration Decision and the September 2013 Variation Consent Order eliminating child support, all occurred within 16 months. While a loss of child support monies may qualify as a change in circumstances, the Court was not provided with the evidentiary foundation to support that submission. If Mrs.

Breed needed to have adjustments made to spousal support to reflect her reduction in child support as she suggested, it is notable she had an opportunity to do so at the time of the 2013 Variation Order or the 2014 Variation Order, which apparently she did not do. In any event, the point is moot because the Court is satisfied, for the other reasons set out herein, that a change in circumstances is found to exist. [ 85 ] There is no meaningful evidence from Mrs.

Breed or any other source to support her assertions she has insufficient income to support herself and that she does not live a lifestyle commensurate with that enjoyed prior to separation because she has had to rely on credit and has incurred debt. As the hearing was imminent, Mrs. Breed filed (out of time and at the last possible moment) over 1500 pages of paper, including what appeared to be credit card statements, as contained in her Exhibit Books. As the Court ruled at the commencement of the hearing, the mere act of filing those documents did not automatically render them relevant or put them into evidence.

The filing of any document is not proof of it, much less to the standard of proof on a balance of probabilities, and there was no conclusive evidence put before the Court about the significance of those documents. [ 86 ] As to Mrs. Breed’s monthly expenses, clearly they cannot include those associated with a working farm, given her current living arrangement and the state of the farm property. Cross-examination of Mrs.

Breed revealed that a number of the expenses she reported having in 2012 when spousal support was set were no longer being incurred by her – but two examples being electricity and farm labour wages. She also agreed that many of the expenses shown in her Statement of Expenses (Exhibit 6) were not actually being incurred by her by the time of the hearing, but rather were “budgeted” because they were, in effect, what she would like to plan to spend. [ 87 ] Inexplicably, Mrs. Breed listed over $2,300 in monthly expenses for the condo she does not live in and apparently refuses to rent to offset her costs.

It was almost impossible for the Court to extract an understanding of true and/or reasonable monthly costs from the document. Ms. Breed also testified about lending money to others, which is difficult to reconcile with her assertion she requires more support, not less. It was most disturbing to hear the evidence of her two former employees Ms. Weagle-Brown and Mr. Zwicker that they heard Mrs. Breed say, in the context of a discussion about spousal support paid by Mr. Breed, that she needed to “spend it or lose it”. [ 88 ] In

summary, the Court had no current, reliable information about Mrs. Breed’s true expenses by the close of the hearing. Even in moving away from a rigid means versus needs assessment, more broadly speaking there was nothing upon which to base an increase in quantum of support. Issue No. 3 (iii) – Should there be a decrease in quantum of spousal support? [ 89 ] As stated earlier, it is important to remember that Mrs. Breed entered into an agreement with respect to the quantum of spousal support that is reflected in the Minutes, as adopted in the CRO.

Not only is the Court entitled to conclude that the factors set out in s.15.2(4) and 15.2(6) of the Divorce Act (supra) were properly considered, they were specifically recited in paragraph 18(

h) of the Minutes. Furthermore, paragraph18(

c) stated that the level of spousal support was “premised upon Caryn Breed’s representation with respect to her costs associated with her occupation and operation and maintenance of the Parties’ farm property.” This Court must start from the assumption that everything that should have been was properly taken into account by the parties in coming to what must be deemed to have been a reasonable quantum of spousal support, which Mr. Breed now seeks to reduce. [ 90 ] Mrs.

Breed argued that because the proceeds of sale of the farm will belong to her and the risks associated with ownership are hers alone, once the property sells Mr. Breed cannot automatically reduce spousal support, due to the absence of any identification of her expenses in the Minutes. Mrs. Breed suggested that once the farm sells there can then be a full analysis pursuant to the objectives set out in the Divorce Act (supra) that could result in either an increase or a decrease in quantum. I cannot agree given clauses 18 (

c) and (

e) of the Minutes speak to the amount of support being based on her occupation and operation of the farm, which she no longer does, and further the Minutes contemplated the possibility of a reduction in spousal support upon the sale of the farm. [ 91 ] Mr. Breed provided a proposed budget (Exhibit 4, Tab 29) suggesting expenses for Mrs. Breed of $15,000 per month would be reasonable and should be relied upon to justify a reduction in the quantum of support to that monthly amount. The Court is not prepared to rely on what Mr. Breed essentially speculates Mrs.

Breed’s budget should be, as his budget could not be truly objective nor necessarily entirely accurate. Given the Court is not prepared to accept Mrs. Breed’s November 2014 sworn Statement of Expenses as accurate, reliable or realistic for the reasons set out above, neither should Mr. Breed attempt to assess it. A decrease in spousal support is justified, but determining what the adjustment to the quantum should be is more difficult. [ 92 ] I am persuaded the quantum of support should properly be lowered from what was set in the CRO because Mrs.

Breed’s expenses have been reduced (farm labor wages and electricity to name but a few), because the asset designed to assist with her future financial security has been devalued, and because she has made a choice not to strive for any degree of self-sufficiency. The parties have been separated since September 2008 (7.5 years), when Mrs. Breed was fifty-years-old. Now fifty-eight, she has made some poor choices since that time but Mr.

Breed should not have the same responsibility to her in light of them as he might have had were they still married or had the changes in circumstances identified herein not occurred. Mrs. Breed was very emotional under cross-examination when expressing her resentment of Mr. Breed’s perceived lifestyle, but with the greatest of respect, she has done nothing to help her own situation, and much to harm it. [ 93 ] I see nothing unreasonable in varying the quantum of support to $15,000 per month, not on the basis of Mr. Breed’s proposed budget for Mrs.

Breed, but because it is a reasonable figure that provides the appropriate response to the changes in circumstances that have been found to have occurred. There is no way to measure the influence of efforts toward self-sufficiency because there have been none, aggravated by a depletion of an asset intended to assist with self-sufficiency. There is evidence that many of the expenses Mrs. Breed had at one time no longer exist, as she testified is the case. To be clear, a forty percent reduction in quantum is not and cannot be a “punishment”; rather, it is a consequence of Mrs. Breed’s decisions and actions.

[ 94 ] In light of the earlier discussion as to the devaluation of the farm, it is no longer appropriate to tie the sale of the farm to the quantum of support. Not unlike Mrs. Breed’s decision not to pursue any measure of self-sufficiency, while it may be said that she can “choose” to devalue the farm asset, the consequences of having done so should not be borne by Mr. Breed. While Mr. Breed might choose to execute a Quit Claim Deed to the farm and abandon his interest in it, and by extension the farm float, in Mrs.

Breed’s favour, ownership of property is not for the Court to give directions upon within the confines of this variation application. [ 95 ] Spousal support payable by Mr. Breed is hereby reduced to $15,000 per month effective May 1, 2016. That date provides ample time for Mrs. Breed to adjust her affairs in light of the pending reduction. Despite all that has been said herein about each party’s responsibilities for their current circumstances, I decline to order the reduction retroactive to August 1, 2015 as Mr. Breed had requested during closing arguments. It is recognized that Mrs.

Breed could arguably be said to suffer a hardship, in light of the timing of this decision, were it made retroactive to that date. [ 96 ] Mr. Breed argued that his current plan to retire several years from now should also be considered by this Court if the quantum of support was adjusted, by imposing an end date for his obligation. Mrs. Breed opposed the suggestion of a time limited order, relying on Rondeau (supra) , wherein the Court of Appeal confirmed that the passage of time alone does not create a change in circumstances. [ 97 ] Mr.

Breed’s contemplation of retirement is expressly identified in the Minutes and Mrs. Breed has been on notice for some time. Nonetheless, it would be premature to attempt to assess the impact of that future event in a variation order made now, without knowing more about the then circumstances of the parties when the retirement occurs. For the same reason, the alternative of a “step-down” order as proposed by Mr. Breed, terminating in 2019, would be speculative, particularly following a lengthier marriage.

In L.M.P. (supra) the Supreme Court of Canada cautioned against making an order that exceeds what would be justified by the change in circumstances (para 47). [ 98 ] Mr. Breed should no longer have to bear the cost of funding the third party payment of municipal property taxes for the farm for the reasons discussed herein related to the devaluation of that asset by Mrs. Breed. Whatever might be the proper assessed value of the farm in its current state, that cost should not be borne by Mr. Breed. Issue No. 4 – Is Mr. Breed entitled to any other of the relief sought in his Application? [ 99 ] Mr.

Breed advanced an alternative argument for the imposition of certain requirements upon Mrs. Breed regarding the listing of the farm. In light of the discussion herein that recognizes Mr. Breed’s spousal support obligation is no longer tied to the sale of the farm, those requirements as currently set out in the Minutes are moot and no longer of practical application. [ 100 ] As to the request that a date be fixed for Mr. Breed to attend at the offices of Mrs. Breed’s former counsel to view photos, that same matter was already addressed in both the Minutes and the June 2014 Order.

There was no explanation, or at least none satisfactory, found in the evidence as to why this has not occurred. It would seem the problem may be one of enforcement of the requirement, not strictly speaking a matter for variation. It would be impractical and expensive to force the parties to a separate contempt hearing on that point. [ 101 ] Without casting culpability, the matter can be practically addressed by fixing a date for the event and providing consequences if the obligation is not met. Absent submissions that could have assisted, that date is unilaterally fixed at May 2, 2016 at 10:00 a.m. .

If the date is not met or adhered to or is frustrated by Mrs. Breed for any reason, her spousal support entitlement beginning in the next month shall be reduced by $200 per day for each day the condition is not met. If not the date is not met or adhered to or is frustrated by Mr. Breed for any reason, his spousal support obligation beginning in the next month shall increase by $200.00 per day for each day the condition is not met. [ 102 ] Mr. Breed sought future suspension of the spousal support order should Mrs.

Breed fail to produce the annual receipt for support payments received, which he is required to forward annually to CRA to permit him to claim a deduction. This relief was already ordered once in the course of this application, pursuant to an interim motion filed simultaneously with commencement of the matter, which resulted in the temporary suspension of Mr. Breed’s spousal support obligation until Mrs. Breed produced the receipt(s). Again, the relief sought goes to a matter of enforcement, not variation.

Without casting aspersions, there is undoubtedly a need to reduce opportunities for further conflict, litigation and court appearances for these parties. The preventive but necessary approach is to declare that the relevant terms of the December 2014 Order granting that same relief, with the same requirements and consequences, continues in full force and effect until any order to the contrary. [ 103 ] In the same vein Mr. Breed asked the Court to order future suspension of support should Mrs. Breed fail to provide the annual financial disclosure required by clause 23 of the Minutes, as has happened in the past.

The wording of clause 23 require each party to meet the obligation but sets no deadline, referring only to “annual” disclosure. For the same reasons as discussed in the paragraph immediately above and again in an effort to be practical, either party’s right/obligation to receive/pay spousal support shall be decreased /increased by $200 per day for every day after June 30 when either party fails to provide the disclosure. [ 104 ] Mr. Breed also sought transfer to him of certain chattel ownership documentation as provided for in the Minutes. Again this seems to be more in the manner of enforcement.

Once again, to achieve a practical end, counsel for Mr. Breed may prepare a Declaratory Order stating a description of each of the relevant items which he possesses but for which he does not have the ownership paperwork, which Order shall confirm his sole right and title to the same. Issue No. 5 - Costs [ 105 ] Costs are governed by Civil Procedure Rule 77. They are at the discretion of the Court and should strive to do justice as between the parties. The principles to be considered in addressing costs were identified in Fermin v. Yang , 2009 NSSC 222 , and echoed more recently in Higgins v.

Bourgeois Higgins , 2015 NSSC 293 . As per paragraph 3 of Fermin (supra) : 1. Costs are in the discretion of the Court. 2. A successful party is generally entitled to a cost award. 3. A decision not to award costs must be for a “very good reason” and be based on principle. 4. Deference to the best interests of a child, misconduct, oppressive and vexatious conduct, misuse of the court’s time, unnecessarily

increasing costs to a party, and failure to disclose information may justify a decision not to award costs to a otherwise successful party or toreduce a cost award. 5. The amount of a party and party cost award should “represent a substantial contribution towards the parties’ reasonable expenses inpresenting or defending the proceeding, but should not amount to a complete indemnity”. 6. The ability of a party to pay a cost award is a factor that can be considered, but as noted by Judge Dyer in M.C.Q. v.

P.L.T. 2005 NSFC27: “Courts are also mindful that some litigants may consciously drag out court cases at little or no actual cost to themselves (because of publicor third-party funding) but at a large expense to others who must “pay their own way”. In such cases, fairness may dictate that the successfulparty’s recovery of costs not be thwarted by later pleas of inability to pay. [See Muir v. Lipon, 2004 BCSC 65 ].” 7. The tariff of costs and fees is the first guide used by the Court in determining the appropriate quantum of the cost award. 8.

In the first analysis the “amount involved” required for the application of the tariffs and for the general consideration of quantum isthe dollar amount awarded to the successful party at trial. If the trial did not involve a money amount other factors apply. The nature ofmatrimonial proceedings may complicate or preclude the determination of the “amount involved”. 9. When determining the “amount involved” proves difficult or impossible the court may use a “rule of thumb” by equating each day oftrial to an amount of $20,000 in order to determine the “amount involved”. 10.

If the award determined by the tariff does not represent a substantial contribution towards the parties’ reasonable expenses “it ispreferable not to increase artificially the “amount involved”, but rather, to award a lump sum”. However, departure from the tariff should beinfrequent. 11. In determining what are “reasonable expenses”, the fees billed to a successful party may be considered but this is only one factoramong many to be reviewed. 12.

When offers to settle have been exchanged, consider the provisions of the civil procedure rules in relation to offers and also examinethe reasonableness of the offer compared to the parties position at trial and the ultimate decision of the court. [106] Applying the above principles, there can be no question that Mr. Breed, properly considered as the successful party, is entitled tocosts. Some of the aspects of the case that support an award in his favor include: a. In November 2014 Mr. Breed had to seek an Order for disclosure containing a requirement that Mrs. Breed produce a number ofitems.

On December 14, 2014 she filed a “Response to Requested Disclosure” (Exhibit 9) which attached inaccurate or redacted informationand a number of items were not disclosed (as subsequently discussed at a case conference on February 11, 2015), most of which had stillnot been disclosed by the time of the hearing. b. Mr. Breed had to seek additional Orders for Production at a February 2015 case conference to obtain records Mrs. Breed claimedshe could not obtain or had simply not disclosed as previously ordered. At the July 2015 hearing Mrs.

Breed testified she had earlier beenincorrect about certain of the banking documents not having been available to her. c. Mrs. Breed was directed in the November 2014 Order to provide certain particulars of the listing with realtor John Salsbury, butprovided only an expired listing agreement. Mr. Salsbury then had to be discovered by counsel for Mr. Breed and ultimately subpoenaed tothe hearing. d. Mrs. Breed refused to complete discoveries after they commenced, and eventually the Court had to order her to do so. e.

Despite maintaining at earlier case conferences that she would file an Affidavit, and despite requesting several last moment or out-of-time extensions to the time for filing the same, Mrs. Breed never did file any evidence. f. Mrs. Breed made direct overtures to Mr. Breed’s witnesses to attempt to dissuade them from giving evidence. g. Two clear days priors to the hearing, Mrs. Breed filed her pre-trial brief, raising for the first time the position that not only shouldMr.

Breed’s application fail, but that the Court had no jurisdiction and in the alternative an upward variation in spousal support should begranted. This was the first time Mr. Breed, and the Court, were put on notice of Mrs. Breed’s position. h. Mrs. Breed made a Motion mid-hearing to be permitted to then produce certain evidence, which was denied. [107] In short, Mrs. Breed thwarted at every possible turn the reasonable or efficient unfolding of the litigation, and put Mr. Breed tounnecessary expense in the course. [108] Mrs. Breed can expect an Order for Costs will be made in Mr.

Breed’s favour, although quantification of Mr. Breed’s entitlement oncosts cannot be fully undertaken or assessed until counsel for both parties have had an opportunity to provide submissions to the Court onwhether any offers to settle were exchanged. I invite the parties to make every effort to reach a resolution on the matter of costs, but barringsame, counsel may provide written submissions on that narrow point no later than 30 days from the date of this decision, and I will provide adecision thereafter.

Conclusion [109] The application to vary is granted, a change in circumstances having been established by the Applicant on a balance of probabilities.Spousal support is reduced effective May 1, 2016 to $15,000 per month. The Court declines to make an order transferring property from theApplicant to the Respondent. The Applicant may review certain photos in the possession and/or control of the Respondent on May 2, 2016 at10:00 a.m., with consequences for both parties if they do not meet that date.

Consequences are imposed should the Respondent fail to produce certain documents (receipts) or if either party fails to deposit certain documents (financial disclosure by June 30th of each year) with

the other. A declaratory order will address ownership of certain chattels presently possessed by the Applicant. Assessment of costs in favor of the Applicant is adjourned pending receipt of further info

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