Molloy v. Molloy, 2012 NSCA 60

NOVA SCOTIA COURT OF APPEAL Citation: Molloy v. Molloy , 2012 NSCA 60 Date: 20120608 Docket: CA 371180 Registry: Halifax Between: John Molloy Appellant v. Marie Molloy Respondent Judge: The Honourable Justice Linda Lee Oland Appeal Heard: June 4, 2012, in Halifax, Nova Scotia Subject: Spousal support; Delay in application; Maintenance and Custody Act , R.S.N.S. 1989, c. 160, ss. 3, 4 , and 5

Summary: The respondent left her traditional marriage after 27 years. She applied for spousal support 11 years after separation. The appellant appeals the trial judge’s award of monthly support for an indefinite period. Issues: Whether (

a) there was an initial entitlement to spousal support; (

b) the respondent had achieved such a degree of self sufficiency as to terminate any obligation; and, (

c) the amount is appropriate. Result: Appeal dismissed. The judge did not err in principle, significantly misapprehend the evidence, or made an award that is clearly wrong. This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 5 pages. NOVA SCOTIA COURT OF APPEAL Citation: Molloy v. Molloy , 2012 NSCA 60

Date: 20120608 Docket: CA 371180 Registry: Halifax Between: John Molloy Appellant v. Marie Molloy Respondent Judge(s): Oland, Farrar, Bryson, JJ.A. Appeal Heard: June 4, 2012, in Halifax, Nova Scotia Held: Appeal dismissed per reasons for judgment of Oland, J.A.; Farrar and Bryson, JJ.A. concurring. Counsel: David A. Grant, for the appellant Tracey M. Sturmy, for the respondent Reasons for judgment : [ 1 ] At the conclusion of the hearing of this appeal, counsel for the parties were advised that the panel was of the unanimous view that the appeal should be dismissed and that reasons would follow.

These are those reasons. [ 2 ] Some eleven years after the parties to this appeal separated, the respondent applied for spousal support pursuant to the Maintenance and Custody Act , R.S.N.S. 1989, c. 160. Justice Moira Legere Sers of the Nova Scotia Supreme Court (Family Division) awarded her monthly support of $800. Her decision is reported as 2011 NSSC 390 . [ 3 ] The respondent appeals her Order dated December 6, 2011. Background [ 4 ] Each of the parties and the respondent’s brother gave evidence by way of affidavit and under cross- examination.

The parties met when the respondent was 14 and the appellant 18 years old. They married when she was 16 and pregnant. Within eight years, they had four children. The appellant’s work took him to different places, and the family moved several times. The

respondent took care of the children and the household. It was, as the judge said, “a traditional marriage in all senses of the word.” [ 5 ] The marriage lasted 27 years. In 1999, when the children were largely grown, the appellant left the respondent.

In 2001, she successfully applied for child support for the one child then in her care, but received no money. [ 6 ] In her decision the judge set out the appellant’s work history which commenced in 1995, and described her circumstances since separation as “dire at times.” She also reviewed the respondent’s work history as a fisherman, construction worker and tug boat worker. Several years ago, he was unemployed for a lengthy period, and he declared bankruptcy in 2005. The respondent is working on the tug boats.

He testified that he has high cholesterol and blood pressure and possibly arthritis. [ 7 ] In her decision, the judge thoroughly reviewed the law on the issue of delay in seeking spousal support. She pointed to two specific aspects, namely, the explanation for the delay, and the prejudice to the possible payor spouse, that should be taken into account.

The judge referred to s. 3 of the Maintenance and Custody Act respecting court orders for spousal support, and s. 4 which set out factors the court is to consider in determining whether to order such support. [ 8 ] With respect to the obligation of an applicant spouse to make sufficient effort to become self-sufficient or to improve her work skills, the judge considered the testimony of the respondent regarding her efforts over the years since separation to find work, and her employment history, largely in fast-food and other such establishments and often part-time only, and stated: [84] The evidence supports her attempts at living independently to attain self sufficiency.

This was made more difficult due to her lack of education, having met the respondent at 14 when he was 18, becoming pregnant, leaving school, having little family support, and moving around to different geographical locations with her husband and her children as he found work. [85] The applicant never returned to school to complete her education until well after the bulk of her household duties were completed. ... [101] Notwithstanding her depression and her lack of educational skills she has, according to the uncontested evidence, diligently pursued employment. [ 9 ] The judge refused a retroactive award of spousal support, but granted a prospective award.

She reasoned: [102] I conclude on the evidence that a retroactive award of support based on the significant delay would prejudice the respondent. [103] I find as a fact that she has established a current entitlement for support for an indefinite period of time. [104] The respondent earns $45,696.00. I understand the respondent's evidence regarding his medical conditions but he continues to be in a position to earn more than he has in the past. [105] He is currently on stress leave from his employment. This stress leave commenced approximately 3 days before the court hearing.

His stress, he advises, is due to this application before the Court. I have little evidence concerning this. Generally, he is working.

[106] I have no knowledge of his partner's income nor degree to which they split their expenses.

The respondent pays the rent and oil bill and his partner pays the cable and phone bill. [107] I have considered her income and income earning potential, his income and expenses as well as his current circumstances. [108] I award her $800.00 in monthly spousal support commencing October 1, 2011, and continuing thereafter on a monthly basis until agreement of the parties or further order of the Court. [109] Without intending to limit the parties right to apply for a variation in the event of a material change of circumstances, a division of his CPP may well be sufficient to trigger the right to a variation application.

Grounds of Appeal [ 10 ] The appellant distilled his numerous grounds of appeal into three: (

a) whether there was an initial entitlement to spousal support; (

b) whether the respondent had achieved such a degree of self sufficiency as to terminate any obligation; and, (

c) whether the amount is appropriate. Standard of Review [ 11 ] In Hurley v. Hurley , 2012 NSCA 32 , this Court reiterated: [49] The standard of review applicable in cases concerned with spousal support is well-known. The trial judge's decision is entitled to deference. Unless he has erred in principle, significantly misapprehended the evidence or made an award that is clearly wrong, we will not interfere ( Saunders v. Saunders , 2011 NSCA 81 , para. 18 ). Analysis [ 12 ] With respect, none of the arguments made by the appellant in support of his grounds of appeal warrant intervention by this court.

The judge set out the facts as established by the evidence, and carefully reviewed applicable statute and extensive case law. In applying the relevant law to the facts, she clearly and completely addressed all arguments made by both parties. In my view, the judge did not misapprehend the evidence, nor err in her identification of the relevant law and legal principles and her application of them to the facts. Further, in the particular circumstances of this case, her award of spousal support on a prospective basis, is not clearly wrong. [ 13 ] The appeal is dismissed. There will be no award of costs. Oland, J.A.

Concurred in:

Farrar, J.A. Bryson, J.A.