R.W.B. v. D.C.B., 2015 NSSC 254

Supreme Court of Nova Scotia (FAMILY DIVISION) Citation: R.W.B. v. D.C.B. , 2015 NSSC 254 Date: 20150915 Docket: SFHMCA-083480 Registry: Halifax Between: R.W.B. Applicant v. D.C.B. Respondent ________________________________________________________________________ LIBRARY HEADING Judge: The Honourable Justice Beryl A.

MacDonald Heard: February 11, 12, 13, 18, 19, 20 and 23, 2015 Written Submissions: Respondent – March 16, 2015; Applicant – April 8, 2015; Respondent – April 27, 2015 Keywords: Family Law; Custody/Access; Alienation; Expert Evidence; Family Violence; Retroactive and Prospective Child Support and Spousal Support; Classification of Assets; Division of Assets and Debt Legislation: Maintenance and Custody Act , R.S.N.S. 1989, c. 160, s.37, as amended Matrimonial Property Act, R.S.N.S. 1989, c. 275

Summary: In preparing a custody/assess report reliance upon information received from professionals is an acceptable practice. Alienation is categorized by very significant differences between the child’s expressed feelings and perceptions about the rejected parent and the actual history of their relationship. Without realistic justification, an alienated child expresses hatred or intense dislike of the rejected parent.

While a child’s conduct may appear to be willful, it is clearly inappropriate to blame the child, as the behaviour may be the most emotionally adaptive response to the pressures that he or she is experiencing. This determination does not require a clinical diagnosis, but rather a factual determination using a system based model as a means by which to understand the dynamic between all three participants – Mother, Father and child. The child was or was becoming alienated from the Father. The Father had not abused the Mother or the Child. A parenting plan was devised with a review date to examine progress.

The child was to remain in the primary care of the Mother.

Issues relating to child and spousal support and to the means by which the parents financed their lives from assets were so interrelated, it was inappropriate to order retroactive child or spousal support. Prospective child support was ordered. Spousal Support ceased. The Husband had a 50% interest in business assets because of his contribution and this interest could also have been awarded to him in a claim for unequal division. Determining the equity for division could not be achieved because of the lack of proper accounting by way of business and personal records.

All assets were ordered sold to provide an orderly liquidation of the parties debts with a review set for a final accounting and division of money remaining or debt. Supreme Court of Nova Scotia (FAMILY DIVISION) Citation: R.W.B. v. D.C.B. 2015 NSSC 254 Date: 20150915 Docket: SFHMCA-083480 Registry: Halifax Between: R.W.B. Applicant v. D.C.B. Respondent Judge: The Honourable Justice Beryl A. MacDonald Heard: February 11, 12, 13, 18, 19, 20 and 23, 2015 Counsel: Diana M. Musgrave, counsel and Daniel J. Wood, co-counsel for the Applicant; Kim A.

Johnson, counsel for the Respondent By the Court: [ 1 ] On September 11, 2002 in Oakville, Ontario the Mother and the Father married. This was a first marriage for the Father, a second for the Mother. The Mother’s two younger children from her previous relationship lived with them until they chose to reside

independently from their Mother. The child who is the subject of this proceeding was born to these parents in 2004. That child is 11years old. She presently is in the primary care of the Mother. [2] In the fall of 2012 the parties separated.

They have not been able to agree upon any final arrangements required as a result oftheir separation and as a result I am asked to decide: • whether the Mother is to have custody or the parties are to have joint custody • whether the Father can and should have parenting time (access) with the child who is said to be very afraid of him but who isalleged to have been alienated from him by the Mother • what child support should be paid both retroactively and prospectively • what spousal support should be paid by the Mother to the Father prospectively and retroactively • what are the matrimonial assets and what are the business assets • does the Father have any interest in business assets owned by the Mother • what values should be assigned to the matrimonial and business assets • what are the debts that should be subject to division between the parties and what amounts are owed [3] The Mother and her witnesses have given information much of which is contrary to the information provided by the Father.This is usually the reason why trials are required and judges are directed to make a credibility assessment to determine what informationis reliable.

In assessing credibility I adopt the outline set out in Novak Estate, Re, 2008 NSSC 283, at paragraphs 36 and 37: [36] There are many tools for assessing credibility:

a) The ability to consider inconsistencies and weaknesses in the witness's evidence, which includes internal inconsistencies, priorinconsistent statements, inconsistencies between the witness' testimony and the testimony of other witnesses.

b) The ability to review independent evidence that confirms or contradicts the witness' testimony.

c) The ability to assess whether the witness' testimony is plausible or, as stated by the British Columbia Court of Appeal in Faryna v.Chorny, (BC CA), 1951 CarswellBC 133, it is "in harmony with the preponderance of probabilities which a practical[and] informed person would readily recognize as reasonable in that place and in those conditions", but in doing so I am required not torely on false or frail assumptions about human behavior.

d) It is possible to rely upon the demeanor of the witness, including their sincerity and use of language, but it should be done with cautionR. v. Mah, 2002 NSCA 99 at paragraphs 70-75).

e) Special consideration must be given to the testimony of witnesses who are parties to proceedings; it is important to consider themotive that witnesses may have to fabricate evidence. R. v. J.H. (ON CA), [2005] O.J. No.39 (OCA) at paragraphs51-56). [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 trier may 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 paragraph 93 and R. v.

J.H. supra) [4] The Mother considers herself to be the repository of the truth. She certainly has the ability to relate “facts” that when firstheard may persuade those to whom she is speaking of the logic of her presentation and of the likelihood that she is an accurate reporterof events. However, the more information she provides the more suspicion arises that she can distort events to suit her purpose; that shecan distort “facts” to squeeze into her preferred

interpretation; that she can exaggerate events to achieve her goal; that she can manipulatepeople into agreeing with her. She cannot accept blame. Everything is the “fault” of the Father and she has searched for and occasionallyfound professionals to agree with her. Many of those who have believed her have only one side of the story – the story as told by theMother alone. [5] While the Father has difficulty as an accurate reporter of events, his failures do not arise from a premediated desire to deceiveor mislead.

He has difficulty remembering long past events, he has an after the fact understanding of his motivations that cloud hisinterpretation of events. However his overall presentation was favourable. He was humble and measured in his responses. He wasforthright and was prepared to acknowledge his parenting deficiencies. The Mother, according to her self-report, and those of herwitnesses, has no parenting deficiencies. [6] I do not intend to recite in detail all of the contradictory information provided by the Mother and the Father. Nor do I intend torecite the evidence of the other witnesses.

My decision would be extremely lengthy if I did so. I have carefully read the affidavits and theother documents filed in this proceeding. I have listened to oral testimony. I have ignored hearsay, and given little weight to informationthat merely repeats information received from the Mother. Overall I have decided that the information provided by the Father is credible.The information provided by the Mother and her witnesses is not. This is not to indicate a complete acceptance of all of the informationprovided by the Father or a rejection of all of the information provided by the Mother and her witnesses.

What has been accepted andrejected should become evident in this decision. Background

[ 7 ] The Father has worked primarily as an insurance adjuster estimating the cost to clean up, repair and restore buildings that are vacant or have been damaged by fire or other cause. In this work he has become familiar with material and labour costs; he knows how buildings are constructed and what may be necessary to repair a damaged building. At the time of the parties’ marriage the Father was employed as a manager of technical services for Decoform Corporation. The Mother was unemployed because she was completing the course work required to become a Registered Nurse.

Sometime after their marriage the Father’s employment ended. He attempted self- employment offering design and drafting services under the name of B*** Architectural Drafting and Design but at the time both he and the Mother were considering residing outside of Ontario. [ 8 ] The Father reported, in one of his affidavits, that the decision to move was because of the child’s medical condition, causing her to be allergic to extreme heat, but also because the parties wanted to pursue a more relaxed lifestyle thought to be available in a less urban part of Canada.

However, the Father did not have any family living in Nova Scotia, neither did the Mother. The Father’s family support system was in Ontario but his marriage to the Mother caused conflict. The Mother is reported to have said to Heather Power, M.Sc., the assessor who completed the custody and access assessment, “His relationship with his mom runs and rules every aspect of his life”. (Exhibit 3, Tab 3, p 24) The Mother suggests the Father wanted to get away from his Family but the evidence suggests she was the person who wanted to get him away from his family.

The Father was under her influence and would accede to her wishes, as have many who have had contact with the Mother who can be extremely persuasive. [ 9 ] The parties moved to Nova Scotia in 2007. During their cohabitation in this province the Mother and the Father both were employed, although most of their employment might better be categorized as self-employment.

Two corporate entities were created shortly after they came to Nova Scotia: • B*** Homes and Construction Inc. (often referred to as BHC or B*** Homes), whose sole shareholder and director is the Mother. • K*** Custom Building and Renovation, whose sole shareholder and director is the Mother. [ 10 ] On September 24, 2012 the Father left the matrimonial home because he understood the Mother had told him to leave and he was also coming to the conclusion that he could not continue to live with the Mother. (Exhibit 6, Tab A, para.24, 26) Each of their versions of this event describes the dynamic that has led me to suspect much of the Mother’s evidence.

She initially was unable to accept the Father’s dates. The Father’s testimony appeared straight forward and had an internal consistency. The Mother’s appeared contrived because it had three purposes, the first was to paint the Father as a hopeless maladapted individual, the second was to paint herself as the understanding, sympathetic wife and the third was to overcome any suggestion that she removed $335,000.00 from their joint Line of Credit on September 25, 2012 in order to prevent his access to that money. [ 11 ] The Mother does not succeed in her attempts to mislead this court.

Below is an example of testimony that called into question the accuracy of the Mother’s versions of events. [ 12 ] Mother’s testimony from Exhibit 37, Tab 1, an affidavit sworn November 2, 2012: 23 When (the Father) got fired this last time in September 2012 (politely called laid off, but he knew it was permanent) he again came home very upset. 24 I tried to be as supportive as possible.

I wrote a letter for him to his former employer threatening wrongful dismissal, cruelty, abuse, etc., at his request and under his direction. 25 I then found a labour law lawyer to take the case on a contingency basis, as this was his wish. 26 No matter how supportive I was, it was not supportive enough for (the Father). He continually said I was unsupportive and mean, and that I hurt his feelings. 27 (The Father) was crying often in the day, or sleeping, and unable to sleep at night. Often ranting or pacing. He was showering and shaving every three or four days.

He was not eating properly, and indulging in a lot of junk food. He was depressed. 28 I discussed this with (the Father) and he agreed that he was very sad and very down. He said he was “as low as he could go”. I encouraged him to get help. I am not aware that he did go for help. 29 On Wednesday, October 3, 2012 (the Father) was so down and so sad, that I asked him to go to a hotel for two days, to get some rest. I did this because he was affecting the family and (the child). I thought it would be good for him and the family. He agreed. 30 (The Father) was away for two nights.

When he came back he was worse than ever. He kept accusing me of “kicking him out”.

This was not the case, it was a break for everyone. 31 Sunday, October 14, 2012 we had a big party for (the child’

s) birthday celebration with her friends I had planned with (the child) for weeks. It was at an indoor playground, 35 kids, 50 parents, all catered, it was awesome. (The Father) looked good this day. That night we lay in bed watching TV and talking for hours. He seemed happy. 32 Monday, October 15, 2012, being the next day, the morning after the party, without one word to anyone, he got in his car and drove away. I believe he did not take clothes or even a toothbrush. 33 (The Father) left our family on Monday, October 15, 2012.

I knew he was sad and up and down but I never thought he would do something this drastic. 34 (The Father) called (the child) later that day. When he spoke to (the child) he was crying so she started crying. Then she replied to him “I want to die daddy”.

I ended the call. [ 13 ] Father’s testimony from Exhibit 6, Tab A, an affidavit sworn November 5, 2012: 23 I lost my job with my employer, E ***, and it appears this has had a detrimental effect on the marriage. 24 (The Mother) is working as a Real Estate Agent in Bedford for *** operating a home office and on Monday, September 24, 2012 she told me to leave the family home. 25 Neither one of us have family support in this area and two days after (the Mother) requested that I leave, our daughter *** requested that I return to the home. 26 I moved back into the home but had concerns that this was temporary. 27 Before my return to the home I had discovered that (the Mother) had moved over $350,000 from our Line of Credit on our matrimonial home and placed it into B*** Homes and Construction. (The Mother) indicated that the money was owed to the Company. 28 I do not have access to the company books, and the way it is structured I do not have the ability to see where the funds are in the company bank accounts. 31 At this time I have no source of employment income as both K*** Custom Building and Renovation and B *** Homes and Construction are controlled by (the Mother) and the funds that maintained us as a family came primarily from these companies, although I have worked for and guaranteed mortgages on all of these companies, the control of the cash flow has been with (the Mother) and I have no access to it. 41 After I returned to the home it was an uncomfortable circumstance however I was determined not to ruin our daughter’s birthday. (The Mother had planned an elaborate party which I was not comfortable with but did not want to cause problems with (the child). 42 When I returned on September 26, 2012, I indicated to (the Mother) that matters weren’t working and reviewed the problems of our marriage.

At no time did I indicate to her, or did I say in the hearing, or in the presence of (the child), that I was going to commit suicide. 43 Matters of trust and communication were huge when I left after (the child’

s) a party as (the Mother) was indicating that she would control all of my contact with our daughter and she was already controlling my access to the home and to funds.

[ 14 ] Mother’s testimony from Exhibit 37, Tab 2, an affidavit sworn November 13, 2012 responding to the Father’s affidavit Exhibit 6 Tab A: 6 In response to paragraph 24, I asked (the Father) to go to a hotel for couple of days. I did not tell (the Father) to leave the home. He was so down he was affecting the family. 7 In response to paragraph 25, I asked (the Father) to come back home, the couple of days were up and Grace was crying. 8 In response to paragraph 26 (the Father) only left the home for a couple of days to take a mental health break. He never moved out.

The Mother indicated that she would respond to paragraphs 27, 28 and 31 “later”. [ 15 ] Mother’s testimony from Exhibit 15, an affidavit sworn January 20, 2015. 20 (The Father) got fired from his job on September 14, 2012. This was his sixth or seventh job loss in five years. (The Father) cried when he was fired, as he had each time before.

However, when he was fired on September 14, 2012, the crying did not end after a few days, as it did before. (The Father) would lie in bed and cry all day, and then be up at night pacing and ranting about why it was not fair, and he should not have been fired. 21 At the end of September 2012 I asked (the Father) to go to a hotel for three nights, to “cry it out” and get over this and put this firing behind him and move on to look for another job.

I asked him to go because his being up all night was very disruptive to (the child) who had just started grade *. (The Father) said I was not caring enough and I was putting (the child’

s) needs before his needs; which I was. At this time, I also advised my corporate lawyer what was happening and took steps to protect my corporation, B*** Homes and Construction. [ 16 ] In his affidavit Exhibit 8 sworn February 4, 2015 the Father responded: 134 With regard to paragraph 20, yes I was upset, however I was not fired. The economy in The Maritimes is very difficult in the construction business. Shortly after my departure from (the company which he had been employed), the parent company shut down their operation.

I completely deny that I would “lie in bed and cry all day”. 135 I had a completely unsupportive spouse, a daughter who did need to be supported and the need to find a job. 136 With regard to paragraph 21, this is completely inaccurate.

I was asked to leave at the end of September and I was never informed that it was three nights. (The Mother) told me to leave and not to come back. [ 17 ] The Mother did not provide any evidence to substantiate her testimony that she “wrote a letter for him to his former employer threatening wrongful dismissal, cruelty, abuse, etc., or that she “found a labour law lawyer to take the case on a contingency basis”. [ 18 ] I accept the Father’s testimony that he was not fired from his employment but was laid off due to lack of work.

I also accept his testimony that “When I returned on September 26, 2012, I indicated to (the Mother) that matters weren’t working and reviewed the problems of our marriage. At no time did I indicate to her, or did I say in the hearing, or in the presence of (the child), that I was going to commit suicide.” I also accept that she did tell him to leave in late September but then asked him to return because of the child’s request. [ 19 ] The Mother has admitted she withdrew $335,000.00 from their joint Line of Credit on September 25, 2012.

In her submissions she acknowledged having done so but suggested she “acted only to protect the company and herself against the potential actions of the Father”. She has used various categorizations to justify her actions. This money has been referred to as “a loan” to her from B*** Homes that she was called upon to repay. She can point to company resolutions to this effect but she has always been the person looking after the accounts and the company records and so can make them say whatever she wants.

She conveniently ignores the fact that she is the sole director and shareholder of B*** Homes and this was her decision, not the decision of some entity over which she had no control. She had total control and could manipulate at will. This also becomes evident in the records produced in respect to a new corporate entity she created *** Nova Scotia Limited (Exhibit 11 A, Tab C pages 190 to 192). She deposited some of the money she had taken from the joint Line of Credit into this corporation’s account. She did not disclose the existence of this corporation until very late in this proceeding.

She did not disclose this to the accountant she hired during this proceeding to prepare accounting records for the companies. She has suggested she used the balance of this money to pay household and other justifiable expenses but she has never produced an accounting clearly tracing the use of those funds. [ 20 ] The Mother knew, or should have known, by September 25, 2012, that the Father was not happy in their relationship. Yet she suggests she was surprised by his later action to leave their relationship and not return.

If she was fearful of him, and she suggests this was the reason she needed to protect her assets, why did she become so surprised and upset in October when he finally did leave the family home? Why did she permit him to return just because their daughter missed him? Shouldn’t she have protected her daughter

against this abusive man? Strong women can be abused by their partners but this may be less likely of women who have had control inrelationships as it appears she certainly had. She told him to go to a hotel and he leaves. She asks him to return and he does. [21] The Mother tries to present herself in two images – the strong decisive decision maker who can handle every situation,including directing the Father’s life, and the wilting violet who gave into an abusive husband against whom she was incapable ofdefending herself.

The two images cannot be reconciled but perhaps she must continue to believe they exist in order to sustain thedistorted reality she has created. [22] The parties have not lived together since October 15, 2012. Custody/Parenting Plan Custody and Access Assessment [23] The Mother has complained about the custody and access assessment report produced by Heather Power, M.Sc. a Clinical andForensic Psychologist who has prepared this report for the court. Ms.

Power is a seasoned assessor who has frequently provided thesereports to this court. [24] The Mother complains that this assessor: did not interview the collaterals she had providedwas tainted in formulating her opinion by information she received from other professionals who have been involved with thisfamilymade no assessment about the effect the child’s witnessing domestic violence in the family would have on her willingness to havecontact with the Fatherwas in a conflict of interest in respect to her previous counseldid not accurately report information receivedwas generally hostile toward the Mother [25] Heather Power, M.Sc. was extensively questioned during this hearing.

I am satisfied there was no conflict of interest in respectto the Mother’s previous counsel and that this was a distraction raised by the Mother because she did not agree with the results of thisreport although it did support her continuing as the primary care parent. I am satisfied Ms.

Power accurately reported what she was toldby others, and what she read in affidavits and reports. [26] On page 2 of her report Heather Power, M.Sc. explained the information she had reviewed for the assessment and commented: “… Note, (the Mother) provided a list of 19 collateral sources, the majority of whom were personal references, and requested that theundersigned contact each person. (The Father) also provided the name of an additional person, an aunt, whom he wished for theundersigned to contact.

However, due to the resources required to contact so many collateral sources as well as the issues regardingreliability and validity inherent in personal references, the undersigned opted to limit collateral sources primarily to professionals as wellas one personal reference per parent.” [27] Custody and Access Assessments are primarily constructed on the basis of information the assessor obtains from the parties,from the child/children who are the subject of a proceeding; from other professionals who have worked with the family; from others theassessor chooses to interview, who may be relatives or friends; from a review of all written material that is contained in the court file;and in some cases, as is the case here, from various psychological tests completed by the parties.

The information provided to theassessor by persons other than the parties themselves is hearsay information.

The extent to which this information must be proven at asubsequent hearing in order for the court to rely upon, or give weight to, the expert’s opinion was addressed in Wilband v R. (SCC), [1967] S.C.R. 14; R. v Abbey (SCC), [1982] 2 S.C.R. 24; R. v Lavallee (SCC), [1990]1 S.C.R. 852; Ares v Venner (SCC), [1970] SCR 608. (See also the discussion of this topic at pages 643 – 651 in Sopinka, Lederman, & Bryant The Law of Evidence in Canada, 2nd ed (Toronto and Vancouver: Butterworths)). [28] It became evident in the course of this proceeding that the Mother had wanted Ms.

Power to contact her collaterals because sheknew they would speak favorably about her. Their information was not considered to be as objective as the information provided byprofessionals who have worked with the family. Reliance upon information received from professionals is an acceptable practice in thepreparation of assessment reports as is suspicion about information received from a party or a collateral who may have reason to bebiased.

Persons who gave information to the assessor could have been subpoenaed by either of the parties and questioned about theaccuracy of the reporting of their comments by the assessor. Only two persons who spoke or provided information to the assessor werecalled as witnesses in this proceeding. [29] Ms. Power did consider the Mother’s allegations about domestic violence perpetrated upon her by the Father.

She said at page61 of her report: “Note, the undersigned cannot confirm any of the serious and severe allegations of physical and sexual abuse made by (the Mother)against (the Father) and, in fact, questions the validity of these allegation’s based on (the Mother’

s) own presentation and overallfunctioning… these allegations cannot be substantiated via any official means. (The Mother) did not seek supportive services such as

transitional housing or therapy. Notably, she did not file any reports with Child Welfare, at least until (the Father) ultimately ended the marriage, at which point (the Mother) made two referrals to the Agency regarding concerns about (the Father’

s) behaviour toward (the child). In addition, she alleged that (the Father) sexually assaulted her for hours, and then left her immobile for hours, while her older children and (the child), who was an infant, were left unattended. The undersigned has no choice but to question whether these allegations have been fueled by (the Mother’

s) anger toward (the Father) and /or her own desire to gain control of the custody situation. It may be that (the Mother’

s) allegations of physical abuse are somewhat valid but, again, this is not confirmable. If her allegations of abuse are, in fact, accurate and, moreover, if she witnessed (the Father) holding her own children down, this raises questions not only about (the Father’

s) behaviour, but about (the Mother’

s) as well, as she would have therefore been responsible for exposing her children to such behaviour and failing to adequately protect them or take action to insure their safety, such as removing them from the situation.” [ 30 ] In addition, in respect to the Mother’s allegations that the Father abused the child, which were repeated by the child, Ms. Power commented on page 73 of her report: “While concerns about strangulation and twisting of (the child’

s) wrists are legitimate, the undersigned is of the impression that these incidents have essentially been blown out of proportion and are adding fuel to the fire, so to speak, rather than addressing the true issues in this case. The undersigned is concerned that (the Father) has not always acted as an appropriate parent when interacting with (the child), a deficit which has led to these allegations; however, it does not appear that he would purposefully or willfully harm her.

In fact, it appears that he is quite concerned for her safety and well-being, as evidenced by his ongoing attempts to play a role in her life.” [ 31 ] The Mother’s complaints about the assessor are rejected. Ms. Power has prepared a professional report using acceptable standards and processes. She drew some negative conclusions about each of the parents based upon her observations of the parties and analysis of the information she received and material she reviewed. Her report is to provide assistance to the court but it is not determinative. I may draw different conclusions from those of Ms. Power.

Ultimately I must decide what constitutes reliable information from which I am to craft a parenting plan for these parents. Best Interest of the Child [ 32 ] I am well acquainted with the factors the court is to consider when asked to determine the custodial and parenting arrangements for a child.

The focus is on the best interest of the child. [ 33 ] The Mother is seeking custody because: • she has always been the person who has made decisions about the child’s care and there is no history of productive non-conflictual joint decision-making between these parents • requiring joint decisions will only lead to more conflict that will negatively impact the child • the Father is not competent to make health care decisions for the child [ 34 ] The Mother is seeking restricted contact between the child and the Father.

She requests this because: • the child is estranged from the Father and her estrangement has occurred because: ⋅ of his poor parenting practices both during the marriage and after separation ⋅ the Father has emotionally and physically abused the child ⋅ the child has witnessed (or overheard) the Father emotionally and physically abuse the Mother • creating a

schedule would be very difficult: ⋅ the Mother’s son is the child’s primary babysitter and he does not wish to have any contact with the Father ⋅ the Mother has a very complicated work

schedule that is subject to change at any time ⋅ the Father frequently needs to work weekends and evenings further complicating the creation of the

schedule ⋅ the Mother will be required to do all of the transportation because the child is not yet comfortable driving with the Father in his vehicle ⋅ the Mother and the child have a “special night every Wednesday the Mother is not working in a program that cannot be moved to another night” (quote from counsel for the Mother closing submissions page 6) ⋅ the child is in a French after school program every day and she should not be removed from this program until it ends each day

• the arrangements for access in place since December 2014 are working for the child and should be continued until the child is comfortable with different arrangements that have been developed when the parties “have engaged additional counsellors to facilitate faster access development”. (quote from counsel for the Mother closing submissions – page 7) Child’s Health [ 35 ] The Mother has convinced herself, and has attempted to convince others, including treating physicians, that the child is fragile and has numerous health care needs because as a young child she had developed Kawasaki Disease.

The Mother’s overinflated opinion of her diagnostic abilities have often resulted in her rejection of reports from treating physicians that their daughter is healthy and doing well and does not require continuous follow-up for the various ailments from which the Mother suggests she is suffering. [ 36 ] In this proceeding I was not provided cogent complete information about Kawasaki Disease. No doubt this occurred because so many matters were in issue in this proceeding that obtaining independent medical evidence about this disease would have increased costs overall and was not considered a priority.

I was not prepared to accept the Mother’s analysis of the consequences likely to be suffered by the child because she had contracted this disease. [ 37 ] I must determine what is in the best interest of this child and I determined it was not inappropriate to consult a “dictionary” or sources similar in nature to gain a basic understanding of Kawasaki Disease. Both the online Mariam-Webster Medical Dictionary, and the Encyclopedia Britannica define this disease similarly but neither discuss prognosis.

Online information provided about this disease by the Mayo Clinic provided the following: Kawasaki Disease is a condition that causes inflammation in the walls of medium-size arteries throughout the body, including the coronary arteries, which supply blood to the heart muscle… it also affects lymph nodes, skin, and the mucous membranes inside the mouth, nose and throat… The good news is that Kawasaki Disease is usually treatable, and most children recover from Kawasaki Disease without serious problems… Kawasaki Disease is a leading cause of acquired heart disease in children, but with effective treatment, only a small percentage of children have lasting damage.

The complications include: - inflammation of blood vessels… usually the coronary arteries, that supply blood to the heart - inflammation of the heart muscle - heart valve problems - abnormal heart rhythm - for a very small percentage of children who develop coronary artery problems, Kawasaki Disease is fatal, even with treatment. [ 38 ] Much of the independent information I have about this child’s illness comes from information reviewed by Heather Power, M.Sc. in completing her assessment report.

The reports from the professionals can generally be considered to be a reliable recording about what that professional’s diagnosis was at the time of treatment. Treating physicians can be mistaken in their diagnosis. However, this child has been examined more than once to determine whether she has any complications resulting from Kawasaki Disease. The preponderance of the evidence indicates she does not. She has not developed heart problems. Unfortunately the Mother does not accept the diagnosis that the child is healthy and she continues to request repeated examinations.

She also takes the child to different physicians who provide reports based almost, if not, entirely on information received from the Mother. There is little indication that they independently diagnosed the child for many of the afflictions about which they have provided information in their reports. Reports from Dr. Sandeep Kapur, and Dr. Warren are examples of this. [ 39 ] The child may suffer from asthma and may need to use an EpiPen but the evidence about why this may be so was unclear. I am satisfied the Father has the ability to have her condition properly diagnosed and to follow medical advice.

The child’s former family physician may be consulted by the Father and he will have the right to consult with and receive information from Dr. Warren if he is to continue treating this child. [ 40 ] Many of the other requirements that are insisted upon by the Mother to maintain the child’s health such as an organic vegetarian diet, utilization of organic cleaning products and an over cautious attitude about her exposure to fresh air and sunlight, because she may get overheated, have not been substantiated on the evidence before me as requirements in her life.

She can be protected against adverse effects of sunlight by wearing a hat and light clothing. Potential for overexertion can be monitored. The Father is aware of his need to be careful in this respect when his daughter is in his care. However, she does not need to be treated like a hothouse plant. The Mother’s obsession with the child’s health raises serious concerns about her fitness to manage the child’s health care over the long term.

Child Abuse [ 41 ] The events most frequently cited by the Mother to support her contention that the Father physically abused the child are: • he twisted her wrist and refused to let go

• he had a pillow fight with her and the child was injured • he tried to strangle her [ 42 ] These incidents were investigated by the Minister of Community Services as a result of reports from professionals engaged by the Mother to whom she provided her version of these events. The investigations by the Minister did not substantiate the complaints. The Father explained each of these events. When the child was to brush her teeth the Father could not get her to pay attention and so he did take her by the wrist to the sink. He did hold her wrist tightly as she tried to twist away. This did hurt her wrist.

The child complained to the Mother who did not support the Father’s efforts to have the child obey him. Instead she scolded him in front of the child. [ 43 ] The child may have been “pinched” during the pillow fight. She did complain to her Mother. [ 44 ] While in the Father’s vehicle during a heavy rainstorm the child kept playing with the window letting rain into the vehicle. The child would not obey the Father when he told her to close the window and he eventually grabbed her coat to pull her away from the window so he could close it.

Unfortunately the coat has a pull cord and this tightened as he pulled her toward him. After hearing the child’s complaint the Mother accused the Father of trying to choke the child. The Mother informed Dr. Warren that she had a videotape of the Father choking the child. (Exhibit #1, Dr. Warren’s Notes). No such videotape was produced for the Minister’s agents or this court. [ 45 ] These events do not satisfy me that this Father is abusive.

They do indicate he did not have effective parenting skills and the child rarely obeyed his requests. [ 46 ] The Mother has exaggerated these events and the child now believes the Father presents a danger to her safety. Psychological Abuse of the Child [ 47 ] While the Father/Child relationship is much compromised, the evidence does not satisfy me that the Father has psychologically abused this child. I do not accept the Mother’s evidence that he threatened to commit suicide in front of the child or within her hearing.

It is the Mother who has been trying to convince others and the child that the Father is mentally ill. There is no evidence that he suffers from mental illness. He is quite rational. He made the very difficult but necessary decision to leave a deteriorating relationship to protect the child from viewing parental fighting and arguing. Spousal Abuse [ 48 ] The factors considered by Ms. Power in respect to allegations of spousal abuse are not dissimilar to those frequently used by judges.

We do look for: • objective verification • corroboration by nonaligned, nonrelative others • a pattern of abuse complaints • whether the alleged abuser has exhibited a pattern of abusive behaviour toward others • whether the alleged abuser suffers from a mental disorder, personality trait, or substance abuse that presents a risk factor indicative of abusive behaviour • whether the alleged victim of abuse may have a mental disorder, personality trait or substance abuse that may contribute to fabrication, distortion or exaggeration of mistreatment • whether the alleged victim is fearful of the alleged abuser • whether the alleged victim is financially dependent on the alleged abuser • whether the alleged abuser has exerted or attempted to exert power, coercion or control in the relationship • whether the alleged abuser has isolated the alleged victim or attempted to do so [ 49 ] In this proceeding there is no objective verification or nonaligned corroboration that the Father physically, sexually or emotionally abused the Mother.

The Father did acknowledge to Ms. Power episodes when he “restrained” the Mother. I accept there was some physical pushing, shoving, and pulling that occasionally occurred when they argued but this was situational and the Mother was as much a participant as was the Father. This is unacceptable behaviour but does not indicate the type of coercive control that indicates intimate partner violence of the type I described in L.(N.D.) v L. (M.S.), 2010 NSSC 68 . [ 50 ] The Mother’s complaints to persons in authority have only come forth after the parties separated and the Father commenced these proceedings.

There is no evidence the Father abused others or that he suffers from a mental illness or disorder. I have determined that the Mother is capable of and does fabricate, distort and exaggerate. The Mother is not fearful of the Father despite her occasional suggestions to the contrary. The Mother was not financially dependent upon the Father and, in fact, the evidence is clear that she

controlled the purse strings in this family and the Father did as she asked. The person asserting power and control in this relationship was the Mother not the Father. I conclude the Father did not physically, sexually or emotionally abuse the Mother. Alienation [ 51 ] I am asked to decide whether this child is alienated from her Father and if so what contact, if any, the child should have with her Father.

In an article, Alienated Children and Parental Separation: Legal Responses in Canada’s Family Courts, co-authored by Nicholas Bala , Barbara-Jo Fidler, Dan Goldberg and Clare Houston reported in Queen’s Law Journal cited as 33 Queen LJ 79 the following analysis appears: … Alienation is categorized by very significant differences between the child’s expressed feelings and perceptions about the rejected parent and the actual history of their relationship. Without realistic justification, and alienated child expresses hatred or intense dislike of the rejected parent.

This rejection and vilification is done without apparent feelings of guilt or ambivalence by the child, and sometimes children appeared to enjoy the fight. When these children are interviewed, often their stories have a rehearsed quality, their language may be age inappropriate and they may mimic information provided by the alienating parent. While a child’s conduct may appear to be willful, it is clearly inappropriate to blame the child, as the behaviour may be the most emotionally adaptive response to the pressures that he or she is experiencing.

Because the alienated child’s perception is distorted, the parents whom they demonize and reject are often not bad parents. For the most part, they fall within the range of marginal to good enough and sometimes better. However, certain characteristics of rejected parents may influence or encourage a child’s rejection. Rejected parents, generally fathers, tend to be lacking in warmth, empathy and understanding of the child’s viewpoint. They may engage in emotionally abusive behaviour with their former partners or children, and often have difficulty managing emotional responses.

Faced with these unexpected responses from their children rejected parents may be inclined to distance themselves further from the child thereby contributing to any negative feelings the child may have. [ 52 ] To understand how alienation occurs the authors describe the more recent emphasis on what is called a system based model.

It encourages clinicians to consider a number of different factors when investigating possible cases of alienation including the age and development level of the child, the psychological vulnerability of the child, the behaviours and personalities of both parents, sibling dynamics, the remarriage situation, and the adversarial nature of the custody litigation context.

They suggest the psychological literature identifies as an important aspect of an assessment whether a child is rejecting one parent with good reason, for example because of abuse, causing the child to be realistically estranged, or whether there appears to be no reason for the rejection other than unjustified or pathological alienation.

This determination does not require a clinical diagnosis, but rather a factual determination. [ 53 ] Heather Power, M.Sc. on page 64 indicates acceptance of this system based model as a means by which to understand the dynamic between all three participants – Mother, Father and child. Her analysis led her to conclude “there are limited options in terms of recommendations that may be useful for this family”. [ 54 ] Ms. Power in her report supports the child remaining in the primary care of the Mother with supervised access to the Father. She does suggest the parties have joint custody.

However with the child in the Mother’s care she has reservations about whether there can be a successful reunification between Father and child. She suggests he may need to withdraw from his relationship with the child. She gives detailed reasons for her opinion but it primarily appears to result from her determination that the child is now so fearful of her Father that she refused to meet with him even in supervised settings.

The Mother is not likely to become an ally in reintegration with the Father because it is doubtful she will accept her role in creating the dynamic that has resulted in this child’s rejection of the Father. The Mother has made it clear in her testimony that she is not an “alienating” parent. She suggests she wants the child to have a relationship with the Father and that she has done everything that has been asked of her to achieve that result. However I am satisfied she has through her actions, behaviours and motivations, contributed to her daughter’s rejection of the Father.

Some examples are: • Her vilification of the Father by her continuous references to the Father’s inability to keep a job with suggestions that he often was fired from his employment.

I very much doubt that the child is unaware of the Mother’s opinion about the Father. • Her vilification of the Father by continuously suggesting he is mentally unbalanced and that he fell apart completely when he lost his job in September 2012 for which there is no independent corroboration. • Her exaggerated and distorted information about events she says have caused the child to be fearful of the father and in particular those relating to a time when the Father walked in to the bathroom when the Mother and child were present, when he grabbed her by the wrist at a time when she was brushing her teeth, suggesting that he would need supervised contact with the child because unsupervised contact would be “nothing more than him crying to her about all his adult problems”. (Exhibit 37, Tab 1 para. 68) • Her exaggeration about the event when the Father wanted the child to roll up the window of his vehicle in a rainstorm.

The child now believes her Father deliberately tried to harm her. • The obstacles she would find to make setting up schedules with professionals difficult. • Her willingness to have the child return to her care rather than encourage Father and child to work out their differences. [ 55 ] Given what the Mother has said about the Father it is difficult to believe that she has encouraged the child to be loving and respectful toward this man about whom she can say nothing positive. While the child does not directly admit to any “coaching” by the Mother they have an enmeshed relationship.

The child still sleeps with the Mother. I am confident this child is well aware of her Mother’s opinion about the Father which may have sown the seeds of the dilemma faced by this child in attempting to have a relationship with both parents. She has been caught in the middle and she needed an exit strategy. Becoming aligned with the Mother and rejecting her Father was the result. [ 56 ] The Mother has no insight into how she has contributed to this result and it may be unlikely that she will willingly accept or

participate in therapy that might assist her in this respect. [57] The Father also has parenting deficiencies that have contributed to his daughter’s estrangement from him. Those aredocumented in Heather Power’s assessment report and I do not intend to repeat them. I accept, based on all of the evidence I have heardand reviewed, that those deficiencies did exist. However I do not accept that these deficiencies would have caused his daughter to rejecthim absent the encouragement of the Mother who exaggerated those deficiencies and contributed to the child’s development of fear.

The Father has taken steps to ameliorate those deficits. His progress in this regard has not been evaluated by Ms. Power because much ofit has occurred after the date of her report which was February 28, 2014. In addition the Father had been having some contact with thechild with the assistance of a therapist and her fear may have lessened as a result although I have no further report in respect to this.

TheMother suggests the arrangements for contact should continue as they have progressed but she does not suggest how to move from thecurrent situation to a normalized relationship with, at the very least, every second weekend overnight parenting of the child by theFather. [58] The Father can be a more responsive parent and he can learn how to set reasonable expectations for this child. Recently he hasbeen engaging her interest. His primary difficulty will be disciplining this child when she refuses to comply with his requests.

She hasbeen permitted to complain to her Mother when she does not want to do as her Father has requested. The Mother has been unwilling toimpose consequences upon the child for misbehavior because she interprets the Father’s actions and requests as abusive of the child. Thisdynamic must stop. [59] There appear to be two strains of analysis that are used to discern a child’s best interest in these high conflict cases when oneparent has been primarily responsible for a child’s increasing reluctance and often refusal to be parented by the other parent.

The first isto protect the child’s immediate psychological wellness by refusing access to the other parent. This is often recommended because it isbelieved contact with the other parent will cause trauma to the child. This is a common response when therapeutic interventions havefailed or when the child has been so severely alienated from a parent therapeutic intervention is not likely to be of any assistance. Usuallythis is the response when children are older. This child is only 11. [60] The opposite analysis is to focus on the long term best interest of a child.

In Tremblay v Tremblay (1987), (AB KB), 10 R.F.L. (3d) 166 (Alta. Q.B.) the court commented: 9. I start with the premise that a parent has the right to see his or her children and is only to be deprived of that right if he or she hasabused or neglected the children. Likewise, and more important, a child has a right to the love, care and guidance of a parent. To bedenied that right by the other parent without sufficient justification, such as abuse or neglect, is, in itself, a form of child abuse. [61] In Reeves v Reeves, [2001] O.J. No 308 (Ont. S.C.J.) Mossip J. said: 38.

Based on a significant number of studies and case law in this area, any support or encouragement by one parent that the children nothave a relationship with the other parent simply demonstrates the responsibility of the parent who has the children and demonstrates thatparent’s inability to act in the best interests of their children. Children do not always want to go to school or want to go to the dentist ofthe doctors. It is the responsibility of good parents to manage their children’s health and safety issues without necessarily the consent orjoy of their children.

A healthy relationship with both parents is a health and safety issue that good parents in short takes place. [62] In F. (A.M.) v. W. (J.R.) 2011 ONSC 1868 Harper J. decided the children were alienated from their father as a result of themother’s actions and behaviours. He decided the children were suffering from emotional abuse and he called upon his parens patriaejurisdiction to require the Children’s Aid Society to supervise the mother’s care of the children and their contact with the father.

Harper J.must have expected that services would be provided to this family that would lead to an eventual normalization of contact between thefather and the children. About the mother’s actions he commented: 173 I find that these children have shown signs of serious anxiety, self-destructive and aggressive behaviour. I have also found thatthese manifestations of emotional harm or as a result of the actions of the mother, A , by her entrenching the children in such a distortedview of their father that they have an intense dislike and fear of him.

I find that, A. is so fixated on her view of J. that she is unable toappreciate all of the consequences of her actions and therefore, although she has consented to treatment for her children, in the past, sheis unable to effectively support such treatment. The result is a cyclone of distortions within the children about their father. [63] I can make the same comment about the Mother in this case although I am not satisfied that the child is as severely alienated aswere the children in the case before Harper J.

I say this because this child has been having lunch with her Father on occasion andappeared willing to engage in activities with him that had been previously discussed between the Father and the therapist then workingwith the family. Unfortunately that therapist discontinued her work because of the contrary actions of the Mother but there is someindication she may be prepared to work with this family once again. The evidence is unclear but does suggest there was continuingcontact without therapeutic assistance because of the Mother’s co-operation.

Perhaps she is beginning to realize the child does want arelationship with the Father. [64] While the prognosis for the Mother accepting her role in distorting the child’s view of the Father is guarded, the Mother may beprepared to change her behaviour to ensure she will continue to be the primary care parent for this child. The anxiety that this child hassuffered indicated to me this situation has caused her to suffer from emotional abuse and it must stop.

The emotional abuse arises becauseof the Mother’s actions and behavior in placing the child in the middle of this dispute and assisting in the development of the child’sdistorted view of the Father. I do take note of section 23(1) of the Children and Family Services Act.

I am not prepared, based upon thepresent circumstances, to consider this child to be in need of protective services but if the situation continues without improvement I mayreconsider this issue. [65] I do intend to continue the Mother’s primary care of the child but I will require the Mother and the Father to make jointdecisions with some constraints that will become evident with the reading of the parenting plan I have attached to this decision. [66] This child does need therapeutic intervention to assist her in accepting contact with her Father in circumstances that will provideher some comfort.

Both parents must do as the therapist advises in respect to structuring that contact. This is not a choice issue. The

parents are to implement the advice received and the therapist must be able to tell me what that advice was and whether the parents co- operated. If the therapist advises that the child requires an individual therapist, the therapist is to advise the Father about who might be prepared to undertake that role and he is to make the necessary arrangements.

All therapists providing services are to be informed that the purpose of the therapy is to: • Facilitate and strengthen the child’s ability to maintain a healthy relationship with both parents • Help the child avoid being caught in the middle of the parent’s conflict • Strengthen the child’s critical thinking skills • Help the child maintain a balanced view of each parent • Recommend contact that the child is ready to have with the Father and under what conditions [ 67 ] I realize the Mother may continue to undermine this child’s willingness to have contact with the Father except to a very limited extent.

My expectation is that the Mother will find an appropriate way to dispel this child’s fear of her father. Perhaps a therapist she individually engages for this purpose may be of assistance to her. When this matter returns on a review, if there is little progress that fact may suggest the Mother remains unwilling to do what must be done to allow the child to have a normalized relationship with the Father. The Mother testified the child always obeys her. I expect the Mother to build on that obedience so she can actively assist in altering the child’s opinion about the Father.

The parenting plan is to be provided to the therapists as is a copy of the assessment provided by Heather Power, M.Sc. and this decision in respect to the parenting issues. Division of Assets and Debts [ 68 ] Counsel for the Father and the Mother attempted to treat the division of the parties’ assets and debts as if their situation was free from the complications presented by the evidence.

The evidence revealed a family that operated primarily on debt making no distinction between money received from employment and money received from their Line of Credit, from mortgages on the matrimonial home and on other real property acquired either by the Father or by the corporate entities, or from money received as rent from tenants.

Money from any of these sources may have been deposited into the parties’ joint bank account or applied to the Line of Credit, or used to pay down a mortgage, or placed in B*** Homes’ bank account. [ 69 ] The accounting presented to me during the hearing was convoluted and difficult to follow primarily because it had to be reconstructed from bank statements and other material provided by the Mother to Scott Webster, an accountant, hired by the Mother to provide books and records of account for B*** Homes.

Also complicating my evaluation of the financial position of the parties and the corporate entities was the reliance I was expected to place upon the tracing efforts described by the Mother to explain “where the money went”.

Because of my assessment of the Mother’s credibility I have difficulty relying upon her information but I do know that these parties cannot afford to hire accountants to do a proper forensic analysis leaving me to determine how best to carry out the purposes of the Matrimonial Property Act to “provide in law for the orderly and equitable settlement of the affairs of the spouses upon the termination of the marriage relationship”. In doing so my focus must be on the reality of the parties’ situation. [ 70 ] Neither party had significant employment since their move to Nova Scotia.

They pooled all the money they had from her insurance claim proceeds and from the proceeds of the sale of their homes in Ontario. They used these proceeds to purchase a home in Nova Scotia, set up a Line of Credit, and begin their real estate purchase/sale and renovation business. The majority of the debt they accumulated is family debt and all the assets they own must now be used to eliminate or reduce that debt so they can start over and pursue their separate financial lives.

This however, is complicated by the fact that the Mother has had control over the income/money producing assets that were used to support the family. [ 71 ] Upon separation the Father had nothing from which to support himself and the Mother was required to provide him spousal support in an interim order. The parties now want me to undo what has been done.

Recreating the past may be impossible and I have tried to focus on how an orderly liquidation of assets and debts can be managed with an accounting once this has been accomplished to determine if there is anything left, asset or debt, to equalize or account for between the parties. That will be the subject of a review. Matrimonial Assets [ 72 ] The parties have very few matrimonial assets. The value of the matrimonial home is a moving target because of the Mother’s use of the Line of Credit to pay personal, family and corporate expenses.

This Line of Credit was used to fund purchases of properties registered in the name of the Father and B*** Homes. What is to happen in respect to the home will become evident later in this decision. [ 73 ] Neither party agreed upon the value of the Father’s vehicle or the household furnishings. Neither produced independent valuations for these assets. I have decided the Father overvalued the household furnishings and the Mother overvalued the Father’s vehicle. The Father is to retain the vehicle and he is to be solely responsible for any remaining debt against it.

The Father suggested the black book value for the vehicle is $19,000.00. The Mother suggested it is worth $31,000.00. As a result of an interim order made in this

proceeding the Mother made some, possibly all of the payments owed on this vehicle but she is not to be reimbursed. Those paymentscan be justified under several categories – spousal support; the Father’s share in the income/money generated from the business assets; asa trade-off for a reduction in the amount the Mother will owe the Father for the household furnishings. The Father suggested thosefurnishings were worth more than the $9,500.00 he has used in his equalization chart. I have decided to use $3,000.00.

The Mother is topay the Father $1,500.00 for the household furniture and possessions located in the matrimonial home. In determining these values Iadopt the reality expressed by Campbell J. in Koken v. Dokueva 2014 NSSC 209: 20. Although this adjudication is somewhat arbitrary, I might say that such is often necessary in Family Law where he parties often donot have the resources to have professional valuations of furniture and other chattels. The Court is left with the task of attempting to dorough justice in the circumstances. [74] The parties had RRSP’s prior to their separation.

The Mother provided date of separation values but given the disagreementabout when their separation occurred both parties are to obtain the values for these assets as of June 1, 2012 to current date. This willprovide a record of withdrawals made. It is known that the Father cashed out his RRSP to support himself when he was unemployed.The amount he received after taking into account any remaining tax issues will be equally shared with the Mother as a line item to beconsidered in the final accounting between the parties. If the Mother’s RRSP remains intact one-half of its current value, less tax, will beshared.

If it has been cashed out it will be treated in the same way as the Father’s RRSP. [75] The parties’ personal bank accounts, as described in the Father’s equalization chart, had approximately equal values at the dateof separation. The Mother does not mention these in her equalization chart. Given the dreadful state of the parties’ finances andaccounting I will not make any adjustment for this line item. [76] I have very little information about the Red Pine Camp shares the Father testified were gifted to him. He suggested they wereonly worth $1,000.00 and that they cannot be sold on the market.

The Mother values the shares at $15,000.00. Neither she nor the Fatherhave any independent valuations for those shares. I accept the evidence of the Father about how he acquired these shares. I have noevidence to suggest these were used to benefit the family. This asset is a gift and is exempt from division pursuant to section 4(1) (

a) ofthe Matrimonial Property Act, R.S.N.S. 1989, c. 275 Business Assets [77] The Matrimonial Property Act requires the court to distinguish between assets that are matrimonial and assets that are businessassets. In its Final Report “Reform of the Law Dealing with Matrimonial Property in Nova Scotia”, the Law Reform Commission ofNova Scotia, March 1997, the authors recommended that the exempt status of business assets should end.

In that report the authorscommented: There is no doubt that the line between business assets and matrimonial assets has been a difficult one for Nova Scotia courts to draw.Without going into a lengthy discussion of the various case authorities, it is clear that there are many decisions which are difficult toreconcile.

In particular, the courts have tried to draw line between assets held for long-term investment or appreciation, which tend to becategorized as providing security during retirement and are therefore matrimonial assets, versus assets held for short-term investment orspeculation, which are treated as business assets and excluded from division.

Any such classification, relying on intentions of the partieswhich may not be well formulated at the outset and which may change over time or which may not be shared by both parties, will giverise to problems of application.” [78] There has been an attempt, in the case law, to restrict the category of business assets to property that has been used to generateincome or profit in an entrepreneurial manner.

Persons who spend time manipulating investment portfolios and who may do so byholding within a portfolio bonds, GICs, RRSP’s and mutual funds often are not considered to be persons who are acting in anentrepreneurial manner although it may take considerable skill and experience to be a successfully investor. (Tibbets v Tibbets(1992),1992 NSCA 17 , 119 N.S.R. (2d) 26) However the Court of Appeal, in Roberts v.

Shotton 1997 NSCA 197 ,156 N.S.R. (2d) 47, stated that the Tibbets decision is not authority for the proposition that “even in appropriate factual circumstances aninvestment portfolio cannot be classified as a business asset”. [79] In that decision the Court of Appeal used a form of tracing in coming to its decision and also relied on

section 10 of theMatrimonial Property Act in concluding: 33 It is unnecessary, in these circumstances, to re-examine the classification of the Midland Walwyn margin and RRSP accounts andthe share portion of the Offshore Interests, because, whatever their classification, Ms. Roberts is not entitled to a share. They were clearlyaccumulated by Mr. Shotten prior to the marriage. Ms. Roberts provided no contribution to their maintenance or improvement. Theywere not assets, to use the words of Hallett, J.A. in Tibbetts, supra, derived from "earnings surplus to the family's needs". Even if foundto be matrimonial assets, the application of s. 13(

d) and (

e) of the Matrimonial Property Act leads, overwhelmingly, to the conclusionthat, in these circumstances, it would be unfair or unconscionable to award Ms. Roberts any share. [80] As noted “entrepreneurial purpose” may be defined differently depending on the type of asset involved Tibbets v Tibbets(1992),1992 NSCA 17 , 119 N.S.R. (2d) 26) and it may also be displaced by intention Hebb v. Hebb (NSCA), 1991CarswellNS 49 (N.S.C.A.). There no longer appears to be a clear principled approach that can be applied to determine theclassification of an asset.

What has emerged are a number of factors that should be considered in reaching a conclusion and those appearto be: • Was the asset purchased or created to earn money/earn a profit? (may be a business asset)

• How much effort is required in order to earn that money or profit? (little effort = matrimonial?; considerable effort = business? • When and how was the asset acquired? (prior to marriage = business? no involvement of spouse, or use of income surplus to family need = business? mortgage on matrimonial home = matrimonial but may be limited to

section 18 claim?) • What discussions did the parties have about the acquisition of the asset when it was acquired and during the marriage? (nest egg for retirement = matrimonial?) [ 81 ] In this case I am satisfied both parties discussed how they would earn income in Nova Scotia using the skills each professed to have. I accept the Father’s testimony about those discussions. The Father was convinced by the Mother, (and this may have appeared to be a reasonable suggestion), that the corporations should be solely owned by her to protect other assets.

In addition the Father could be paid as an employee for work provided to those corporations. Their discussions at the time indicated a joint venture in respect to both corporations they created. The family would be supported through the earnings generated by these companies although both knew it may take time for them to become profitable and both may need to find other employment to supplement income. The Mother knew this is what the parties intended and this is why she was so concerned the Father would insist on an interest in these companies when they separated.

She then tried to acquire control over any money that could be leveraged from all assets including the matrimonial home, which was the original and continuing source of capital permitting the purchase of properties for renovation and sale and later for renovation and production of rental income. The rental properties are owned by B*** Homes. The Mother insists B*** Homes is her business asset and the Father has no interest in this asset. She suggests K*** Custom Building and Renovation was meant to be his company although it is not disputed she is the sole shareholder and director of that company.

The Mother testified that company never made a profit. She suggests properties that were supposed to be registered in the name of K*** Custom Building and Renovation were not because the bank would not lend money to that company overlooking the fact that the bank has required the Father to guarantee loans to “her company” and this may also have been arranged for “his company”.

She asserts the Father made little contribution to “her company”. [ 82 ] I am satisfied the Father was not actively involved in the legal work required to purchase and sell the properties that were to be properties of K*** Custom Building and Renovation. The Mother looked after the details. She was, by her own testimony, the “entrepreneur” in the family. She was the person who understood the buying and selling of properties and she worked as a real estate agent. The Mother and her witnesses have testified about how skilled and competent a business woman she is.

An example of how the Mother views herself versus how she depicted the Father is revealed in paragraph 86 of Exhibit 14: 86 [The Father] worked full time, or was looking for full time work throughout my ownership of B*** Homes between February 2008 and separation. [The Father] did work on and off as a handyman but was in no way and integral part of the business, which is a real estate rental business. I have been in rental properties for over 30 years. When I met [the Father] he had just purchased his first home. I had already owned dozens of homes; and managed many rentals. It is my skill.

As a realtor, entrepreneur and business person, that is required for this business. If [the Father] had been unavailable to act as a handyman for the company, the company could easily have hired another. [ 83 ] Yet the testimony of Scott Webster, a certified management accountant, is that this extremely competent business woman had not set up proper accounting records for that business or any business. He was hired by her in April 2012 to prepare accounting records for B*** Homes from 2008. He had to use banking statements to do so.

He prepared corporate income tax returns from 2008 and her personal income tax return for 2012 and 2013. His evidence confirmed the Father’s testimony that the Mother had not kept proper business accounting records. The Father had expected her to do so and was somewhat naive to have trusted her capacities in this respect but, as I have noted, she can be very convincing and he believed she was capable of looking after the legal and financial details for both companies.

He trusted her. [ 84 ] I accept the Father’s testimony that he was completely involved in the renovation of properties that were to be owned by K*** Custom Building and Renovation and B*** Homes. I am satisfied that he often used his personal Canadian Tire MasterCard to fund the material costs involved. Unfortunately for the Father the properties purchased for “his” company were registered in his name, not in the name of the company. He may be called upon by Revenue Canada to pay capital gains tax on these properties. However, the Mother now has her own difficulty with Revenue Canada.

K***Custom Building and Renovation paid income to the Father and did not pay required payroll taxes. The amount owing is approximately $45,000.00. She alleges the Father is responsible for this mess but I have decided he had nothing to do with the financial accounting for this family. She looked after family finances. Nevertheless this is a debt that should have been paid by the parties and it is not to be assessed as the Mother’s alone to bear. [ 85 ] I accept the Father’s testimony contained in Exhibit 7A, 8 and elsewhere in respect to the financial issues surrounding the corporations.

This testimony satisfies me that the Mother: • Was responsible for and dealt with all legal and financial issues pertaining to properties that were supposed to be registered in the name of K*** Custom Building and Renovation but were in fact registered in the Father’s name resulting in capital gains not accounted for in the Income Tax Returns he had previously filed and the failure to pay payroll deductions to Revenue Canada. • Was responsible for and dealt with all legal and financial issues involving B*** Homes. • Was the last person to have possession of the financial accounting spreadsheet prepared by the Father for both companies and of receipts, invoices etc. for both K*** Custom Building and Renovation and B*** Homes. • Was an incompetent manager and bookkeeper resulting in: ⋅ a failure to properly arrange for and register the properties purchased to be registered in the name of K*** Custom Building and Renovation

⋅ a failure to properly record the money K*** Custom Building and Renovation and B*** Homes owed to the parties and received from sales, mortgages and tenants ⋅ a failure to properly record expenses in respect to the assets owned by and operations of K*** Custom Building and Renovation and B*** Homes resulting in unreliable accounting information provided to this court. [ 86 ] I accept the Husband’s testimony that the properties, inappropriately registered in his name instead of K*** Custom Building and Renovation, were sold at a profit.

The evidence suggests the proceeds from those sales went into either the parties’ joint account or were applied to the Line of Credit secured by a mortgage on the matrimonial home.

I also accept the Father’s testimony that he contributed to the acquisition, maintenance, and improvement, of the assets owned by B*** Homes by: • consenting to the use of the equity in the matrimonial home through a mortgage/joint Line of Credit to fund its operations and acquisitions • signing as a guarantor for mortgages placed on property acquired by B*** Homes • providing labour and services required by B*** Homes for which he was not paid [ 87 ] The time and manner of acquisition, and the intention of the parties suggests B*** Homes could be described as a matrimonial asset.

The purpose of its creation, to produce a profit, and the effort required to make it a successful corporation may suggest it is a business asset. That effort was required of both parties. However I have decided the effort provided by the Father and his contribution to the acquisition, management, maintenance, operation and improvement of assets owned by B*** Homes is more properly considered under

section 18 of the Matrimonial Property Act . But for the original intention of the parties all other factors are more in favour of supporting a

section 18 finding than to declare B*** Homes to be a matrimonial asset although the result is the same because I have decided the Father is entitled to a 50 % interest in B*** Homes. This decision could also be justified under a

section 13 Matrimonial Property Act analysis. For similar reasons he has a 50% interest in K*** Custom Building and Renovation but this company is more of a liability than an asset. Valuation of B*** Homes [ 88 ] I am not a forensic accountant. I cannot accurately recreate the financial position of these parties or the companies with the information that has been provided. Too much information is missing. Invoices, bills, receipts etc. are not before me.

The accountant preparing the records for B*** Homes primarily used bank statements and he relied on the Mother’s information to categorize many of the entries on those statements. No records have been produced for K*** Custom Building and Renovation. No complete detailed record, other than the tracing provided by the Mother from bank statements (which I do not accept as completely reliable), explains the profit or loss from sales of the properties that were to be registered in the name of K*** Custom Building and Renovation.

Prior to separation the accounts used to pay personal and business expenses, and to deposit “profit” were the parties’ joint bank account and the Line of Credit. Only after separation did the Mother begin to regularly use the B*** Homes business account for its business activities although it appears she was still using the Line of Credit to purchase properties for B*** Homes. Nevertheless I must use the evidence I have to make a determination about whether the Mother has taken any money that more properly should have been retained for division between the parties.

Because she has had control of the assets since the parties appeared before me there may be a need for a similar accounting if new information becomes available and to explain what she has done since the date of the hearing. [ 89 ] The parties each retained persons with significant appraisal skill and experience to provide information about the potential sale price that may be received if the properties owned by B*** Homes were sold. They disagree about that sale price and much time was consumed cross examining them during the hearing.

Appraisals are only useful when an accurate analysis of equity can be determined. In this case it cannot because I have decided there is no accurate accounting for the operations of B*** Homes. The intermingling of business with personal expenses, the use of the parties joint

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