Smith v. Smith, 2012 NSSC 432

SUPREME COURT OF NOVA SCOTIA Citation: Smith v. Smith, 2012 NSSC 432 Date: 20121212 Docket: SYMPAY 080524 Registry: Yarmouth Between: Ellie Norman Smith Applicant v. Carel Patricia Smith Respondent Judge: The Honourable Justice Arthur J. LeBlanc Heard: May 24, 2012, in Yarmouth, Nova Scotia Oral Decision : June 7, 2012 Written Decision: December 12, 2012 Counsel: Louis d ’ Entremont, for the Applicant Celia J. Melanson, for the Respondent By the Court : [ 1 ] This is an application for exclusive possession of the matrimonial home.

[ 2 ] The applicant, Mr. Smith, claims that he needs the matrimonial home, located at 39 Riverdell Road, Cedar Lake, Digby County, Nova Scotia, for the purpose of his fishing business. In addition, Mr. Smith claims that he needs the home because of a medical ailment. The respondent, Mrs. Smith opposes the application, arguing that the factors and circumstances submitted by Mr. Smith do not exist or have not been made out on a balance of probabilities. [ 3 ] The parties met in 1996 and were married in 1997. They have lived in the matrimonial home since at least 1997.

Some improvements have been carried out to the home during that time, including certain improvements to the lower level, particularly the sunroom area. Mr. Smith testified, and I am satisfied, that the sunroom was significantly improved after Mrs. Smith moved into the home. He maintains that these improvements were paid for with funds from his fishing company, Ellie N. Smith Fisheries Ltd. [ 4 ] I also accept Mr. Smith ’ s evidence that prior to 1997 he would do some fishing related work in the so-called sunroom area, including fixing buoys, fishing nets and related equipment.

I also accept his evidence that he stored fishing equipment and tools in the lower level, and that he used a computer located on the lower level for following the weather, and weather systems, which he claims are vital to the fishing operation he carries on. [ 5 ] I am not convinced, however, that Mr. Smith used the matrimonial home for his fishing operations to the exclusion of any other location. I believe Mrs. Smith ’ s evidence that some of the operations allegedly carried on in the matrimonial home are in fact conducted from the fishing location at Port Maitland, Nova Scotia. [ 6 ] Mrs.

Smith does not have separate accommodation. Consequently, the parties are living separate and apart in the matrimonial home, Mrs. Smith on the main level and Mr. Smith on the lower level. This situation has led to significant upheaval to the point where the police have been called on six different occasions to the matrimonial home by one complainant or the other. To date, there has been no physical injury, but that does not mean I do not have concern about their continued living in the same dwelling. [ 7 ] Since the separation, both parties have been harassing each other.

Both are to blame for the circumstances they now find themselves in. No one is free from blame. On one hand Mr. Smith will do things that will simply frustrate and anger Mrs. Smith and, similarly, Mrs. Smith will occasionally do things that will frustrate and anger Mr. Smith. [ 8 ] Mr. Smith has put up a barrier so that Mrs. Smith cannot access the lower level of the home, where one refrigerator and the electrical panel are located. While Mrs. Smith was away, Mr. Smith physically relocated the steps leading to the entry door so that they would lead directly to Mrs.

Smith's bedroom. [ 9 ] Another example of this behaviour is that while she was away, the food that Mrs. Smith was storing in her refrigerator located in the main level was removed. She claims that Mr. Smith placed the food in the refrigerator located on the lower level, with a chain and lock preventing her from accessing it. Furthermore, she damaged the outside and inside doorknobs because Mr. Smith had changed the locks on them and she had no access or key. Mrs. Smith also testified that the computer is located in a common room which they used in the past to entertain guests.

In addition, the storage room which Mr. Smith claimed was exclusively used for his tools and supplies for his fishing operation was always used as a common utility room where the washer and dryer were located. She also testified that Mr. Smith did not use the sunroom to the extent claimed. She admitted selling some of the furnishings from the home, but said this was for the purpose of buying necessities such as food, as Mr. Smith was not providing her with any support. Since the granting of a Family Court Order she has not engaged in such activity.

DISCUSSION [ 10 ] Pursuant to Section 6 (1) of the Matrimonial Property Act , spouses are equally entitled to the possession of the matrimonial home. Therefore, the parties stand on an equal footing with respect to possession of the matrimonial home. [ 11 ] The matrimonial home means “ the dwelling and real property occupied by a person and that person's spouse as their family residence and in which either or both of them have a property interest other than the leasehold interest ” : Matrimonial Property Act ,

S.3(1). I am satisfied that the home occupied by both Mr. Smith and Mr. Smith fits that definition. [12] I have carefully reviewed the evidence and I am of the view that s.3(2) of the Act does not apply. This provision deals with asituation where property that includes the matrimonial home is used for other than residential purposes. In that case, the matrimonialhome only includes that portion of the property that can be reasonably regarded as necessary for the use and enjoyment of the familyresidence. [13] Mr. Smith contends that the Court should award him exclusive possession of the matrimonial home. He relies on

Section 11 ofthe Act, which states: Powers of court respecting matrimonial home 11

(1) Notwithstanding the ownership of a matrimonial home and its contents, the court may by order, on the application of a spouse, (

a) direct that one spouse be given exclusive possession of a matrimonial home, or part thereof, for life or for such lesser period as thecourt directs and release any other property that is a matrimonial home from the application of this Act; (

b) direct the spouse to whom exclusive possession is given under clause (

a) to pay such periodic or other payments to the other spouseas is prescribed in the order; (

c) direct that the contents of a matrimonial home that are matrimonial assets, or any part thereof, remain in the home for the use of theperson given possession; Section 11 (4) of the Matrimonial Property Act provides as follows: Conditions for order for possession

(4) The court may only make an order for possession of the matrimonial home under subsections (1) or (3) where, in the opinion of thecourt, (

a) other provision for shelter is not adequate in the circumstances; . . . [14] The parties have cited opposing authorities: Mr. Smith relies on the decision of this Court in Mailman v. Mailman, (1991), (NS SC), 107 N.S.R. (2d) 33, [1991] N.S.J. 269 (S.C.T.D.), where the husband and wife both sought exclusivepossession of the matrimonial home pursuant to s. 11 of the Matrimonial Property Act. The wife was not living in the matrimonial homeat the time, while the husband and one of his sons occupied the matrimonial home. They both had financial means to seek adequateshelter elsewhere.

The Court determined that the husband’s fishing operations would be extremely inconvenienced should he be forcedto live elsewhere. He also found that the husband’s dwelling location was an integral part of the fishing activity. Both the husband andhis youngest son were benefiting economically from the continued success of the fishing operation. As a result, the husband was grantedexclusive possession of the home for a period of 45 days. By the end of this period he was to pay the wife fifty percent of the value ofthe matrimonial home.

Failing this, the property was to be sold, with the profit divided equally between the two of them. [15] In Goodwin v. Goodwin, 2009 NSSC 109, an estranged husband and wife had been living apart over a year. Both were seekingexclusive possession of the matrimonial home. O'Neil J. (as he then was) refused to order exclusive possession for either party, anddirected that if the parties were unable to agree, absent compelling or persuasive reasons to grant exclusive possession, the Court wouldorder that the home be listed for sale.

[16] In Legg v. Legg, 2010 NSSC 326, both the husband wife were seeking exclusive possession of the matrimonial home. Jollimore J. concluded that the only situation where exclusive possession will be granted is in circumstances where it is proven, onevidence, that alternative shelter is inadequate. Neither spouse proved that alternative shelter was inadequate. The husband claimed thathe required use of the matrimonial home to assist in his employment. He stored cables in the matrimonial home or on the property andrequired the home to park his truck.

Jollimore J. was not satisfied that the matrimonial home was sufficiently unique to his businessneeds to grant him exclusive possession. [17] A novel approach was taken in Lindsay v. Lindsay (1991), (NS SC), 106 N.S.R. (2d) 128, [1991] N.S.J. No.251 (S.C.T.D.). Both parties were occupying the matrimonial home and neither of the parties could afford alternative shelter. SaundersJ. (As he then was) directed that a carpenter be engaged to alter the matrimonial home, dividing the upstairs from the downstairs.

Agyproc wall was to be installed, giving the wife exclusive possession of the upstairs, and the husband exclusive possession of thedownstairs. [18] In this application, I am unable to find that there is an evidentiary basis to make an order of exclusive possession. I am notsatisfied that alternative accommodations are not available. Mr. Smith maintained that he was prepared to pay the costs of Mrs. Smith'salternative accommodation, from which I conclude that he believes that some are available. Furthermore, I do not believe Mr.

Smithmade adequate attempts to locate such accommodations for himself, which in my mind, would be a prerequisite to any successfulapplication for exclusive possession. [19] In addition to not being satisfied that there is no alternate shelter available to Mr. Smith, it is my view that the claim that thematrimonial home is an integral part of his fishing operation has not been made out. He does minor adjustments and repairs to his fishinggear in the matrimonial home, and his computer is located in the lower level of the home. I find that these activities can be relocated.

Iam not at all satisfied that the storage area is necessary to his continued successful fishing operation as claimed. Insofar as his medicalcondition is concerned, I would need additional evidence to establish that Mr.

Smith suffers from the ailment he alleges, and that the jettub is the only means by which such ailment can be alleviated or curtailed. [20] Having determined that I am unable to make such a finding and direction under the Act, the next question that I have todetermine is whether I have inherent jurisdiction to make such an order outside the legislative scheme in order to come to a fair andequitable result in the application before me. [21] I have reviewed several cases, but none of them appear to permit me to make such a finding. [22] In Baxter Student Housing Limited et al. v.

College Housing Cooperative , (SCC), [1976] 2 S.C.R. 475,following a dispute as to which party would incur the expense of water, mold and ice damage in a recently constructed student housingproject, the trial judge made an order appointing a receiver of the balance of proceeds from the mortgage, despite an explicit provisionpreventing such an order in the Mechanics’ Liens Act. The Supreme Court of Canada stated that the inherent jurisdiction of the trialjudge is not such as to empower a judge to make an order negating the express and unambiguous intent of the legislature.

In altering thepriorities of the statute, the Supreme Court ruled, the trial judge made a decision outside of his jurisdiction constituting an error of law. [23] I also refer to Halifax Regional Municipality v. Maureen Ofume ,2003 NSCA 110, wherein the Nova Scotia Court of Appealdid not interfere with MacAdam J.’s exercise of the court’s inherent jurisdiction to control its own process. However, that case has noapplication to the matter before me. [24] In an

article authored by I. H. Jacob entitled Inherent Jurisdiction of the Court, (1970), 23 Current Legal Problems 23, theauthor states that the jurisdiction which is inherent in a superior court of law is that which enables it to fulfill itself as a court of law. Inherent jurisdiction cannot, of course, be exercised so as to conflict with a statute or Rule.

It is a special power which should beexercised only sparingly and in a clear case. [25] Although in some instances, the inherent jurisdiction is available to achieve a just and equitable result where necessary, thisCourt, in this instance, cannot invoke its inherent jurisdiction to override a specific provision of the Matrimonial Property Act.

[ 26 ] The application for exclusive possession of the matrimonial home is denied, without costs. LeBlanc, J.