Cole v. Luckman, 2012 NSSC 118

SUPREME COURT OF NOVA SCOTIA Citation: Cole v. Luckman, 2012 NSSC 118 Date: (2012-03-28) Docket: 1209-001119 Registry: Yarmouth Between: Kenneth Gary Cole Petitioner/Responding Party v. Patricia Lee Luckman (Cole) Respondent/Moving Party LIBRARY HEADING _ _________________________________________________________________ Judge: The Honourable Justice Pierre L. Muise Heard: May 25 and 26 in Annapolis Royal and July 13, 2011 in Digby Final Written Submissions: August 30, 2011

Summary: Ms. Luckman filed this motion for a determination of the issues of asset division and spousal support. She sought an equal division of farming and matrimonial assets based on: her contributions to the business; and, the co-mingling of the household and farm operations. Mr. Cole sought an equal division of only matrimonial assets based on Ms. Luckman’s contributions to the business being minimal and her having been paid for her services. During the 24 to 25 year marriage, Mr. Cole worked in his own farrier and farming business, and drove a school bus. Ms. Luckman has a degree in architectural drafting.

During the marriage she only worked intermittently, mostly in retail. She mainly worked in the home, caring for the children and the household, and assisted in the farming operation. Mr. Cole continues to work in the same occupations. Ms. Luckman is now employed full-time with the Valley Credit Union. Her income tax returns show a much higher income than his do, after farming losses are deducted. She alleged he earned more income than what was reflected in his income tax returns.

Issues: C redibility and reliability of the witnesses; division of assets and debts; and, whether spousal support should be paid by either party. Result: Mr. Cole was found to be much more credible than Ms. Luckman. Ms. Luckman was entitled to: 50% of the

matrimonial assets; 15% of the farming business; and, 10% of the farrier business. Considering the assets retained, payments made and debts assumed by the parties, an appropriate division of assets and debts would be effected by Ms. Luckman paying $2,546 to Mr. Cole. It was not established that Mr. Cole’s tax returns did not reflect his actual income. The economic disadvantages suffered by Ms. Luckman led to an entitlement to spousal support; but, Mr. Cole had no ability to pay. Her income had become higher than his. Mr. Cole had not been financially dependent on Ms.

Luckman and had not suffered economic hardship from the breakdown of the marriage. Neither party was ordered to pay spousal support. SUPREME COURT OF NOVA SCOTIA Citation: Cole v. Luckman , 2012 NSSC 118 Date: (2012-03-28) Docket: 1209-001119 Registry: Yarmouth Between: Kenneth Gary Cole Petitioner/Responding Party v. Patricia Lee Luckman (Cole) Respondent/Moving Party Judge: The Honourable Justice Pierre L. Muise Heard: May 25 and 26 in Annapolis Royal and July 13, 2011 in Digby Final Written Submissions: August 30, 2011 Counsel: Kenneth Gary Cole represented by W. Bruce Willis, Q.C.

Patricia Lee Luckman (Cole) self-represented

A. INTRODUCTION [ 1 ] K. Gary Cole and Patricia Lee Luckman (formerly Cole) were married on August 30, 1986, after 4 to 5 years of cohabitation, and separated, in or about, October 2006. Justice Duncan, in Cole v Cole , 2008 NSSC 189 , released June 17, 2008, granted the divorce judgment and the change of Ms. Luckman's name. He also determined that neither party would pay child support. [ 2 ] The parties reserved the right to later seek a determination of the issues of asset division and spousal support. Ms. Luckman filed this motion requesting that Mr.

Cole be ordered to pay her: $58,856.57 to effect an appropriate division of assets; and, retroactive and ongoing spousal support. Mr. Cole contested the motion and requested that Ms. Luckman be ordered to pay him: $14,379.39 to effect an appropriate division of assets; and, a modest amount of spousal support. [ 3 ] During the marriage, Mr. Cole trained as a farrier and worked in his own farrier business and farming business, as well as a school bus driver. Ms. Luckman, had completed a program in architectural drafting. During the marriage she only worked intermittently, mostly in retail.

The majority of the marriage, she worked in the home, caring for the children and the household, and assisted in the farming operation. Mr. Cole continues to work in the same occupations. Ms. Luckman is now employed full-time with the Valley Credit Union. Her income tax returns show a much higher income than his do, after farming losses are deducted. She alleges he earned and is earning more income than what is reflected in his income tax returns. [ 4 ] Ms.

Luckman seeks an equal division of farming/farrier business assets and matrimonial assets based on: her contributions to the business; and, the co-mingling of the household and farm operations. Mr. Cole seeks an equal division of only matrimonial assets based on: Ms. Luckman’s contributions to the business having been minimal; and, her having been paid for her services. [ 5 ] In her submissions, Ms. Luckman included references to factual points which were not in evidence. My decision is based on the evidence presented and agreed facts.

I have ignored references to factual points which were not in evidence, nor agreed upon. B. ISSUES The issues to be determined on this motion are the following: 1. The credibility and reliability of the witnesses; 2. The appropriate division of matrimonial assets and debts; 3. The appropriate division of business assets and debts; 4. The payout to be made to effect an appropriate division of assets and debts; and, 5. Whether spousal support should be paid by either party. C. LAW AND ANALYSIS 1. CREDIBILITY AND RELIABILITY OF WITNESSES (

a) Patricia Luckman [ 6 ] During her examination for discovery, Ms. Luckman stated under oath that she had a second job in 2009 which she was unable to maintain. She said she had worked for a business called Laser Industries, which did consulting in the field of management and/or marketing. She worked as a consultant, researching, advising and making suggestions regarding any changes they may be looking at in the area of marketing. She provided this service to a specific client.

She indicated she could not go into detail for reasons of confidentiality. [ 7 ] At trial, she acknowledged that Laser Industries was owned by Edward Reagh, who she acknowledged had lived with her and not contributed financially to living expenses. She said he had hired her to help him in designing a house he was building and with staffing issues he had at the time. According to her, it started around the time that he moved out of her house. [ 8 ] She indicated that, at the discovery examination, she thought it might be detrimental to him if she revealed what was going on.

She was fearful that if she revealed too much, he might become angry and sue her. She clarified that she was, at trial, saying that she also helped him design a house, on top of the other services she provided. She said she considered herself to be consulted. He had asked her to look up things on the computer. [ 9 ] In my view, the arrangement described by Ms. Luckman during the discovery examination was not a true and accurate

account. It was misleading; and, she intended it to be misleading. It was made under oath. In my view, that is a factor which seriously undermines her credibility. [ 10 ] There was also inconsistency within her explanation at trial. Initially she indicated that Mr. Reagh had her on payroll and she was paid direct deposit. Then she testified that it was all done in exchange for a 2001 Honda Civic. She indicated that Mr. Reagh bought the car and signed it over to her name. He was able to write it off as an expense.

She had to pay the income tax bill associated with the value of car. [ 11 ] Other inconsistencies, or apparent inconsistencies, in her evidence, include the following. [ 12 ] Ms. Luckman's affidavit evidence was that, prior to their marriage in August of 1986, she and Mr. Cole lived together for four years. At trial, she testified that they lived together for five years before marriage. [ 13 ] In her affidavit, Ms. Luckman indicated that Mr. Cole withdrew $600 for a hay wagon and $900 for a chainsaw.

At trial, she testified that he had withdrawn $900, $600 of which was for a chainsaw and $300 of which was for a hay wagon. [ 14 ] Ms. Luckman swore an affidavit, on August 31, 2010, indicating that she and Mr. Cole shared the farming duties equally. However, in her oral evidence at trial, she testified that her part was not as extensive as his. [ 15 ] Ms. Luckman testified that, while Mr. Cole was training with another farrier for free, she was working at Valley Drug Mart. She worked there until about one week before Zachary's birth and returned to work shortly after his birth.

That does not appear to be consistent with her evidence that she gave up a career in architectural drafting to look after Zachary. Even if one accepts her evidence that Zachary had already been born when she refused drafting job offers, and rejects Mr. Cole’s evidence that they were refused prior to Zachary's birth, it does not explain why she could not take a drafting job, but was able to work in retail. [ 16 ] For the most part, Ms. Luckman readily answered questions relating to banking transaction records. However, when transaction 18, in the bank account she held jointly with Mr.

Cole, was shown to her, and she was asked what it was, she indicated that she was not really sure and that she could not recall. That transaction is a record of the $1359.94 deposited by Mr. Cole on March 2, 2007, to pay the overdraft. When it was suggested to her that that's what it was, she simply responded that she believed that he had borrowed money from his common-law spouse, Susan Savoy (a.k.a. Judge).

Her professed lack of knowledge and recollection in relation to that transaction, compared to her readiness in answering other questions regarding banking transactions, suggests that she was avoiding providing answers in Mr. Cole's favor. [ 17 ] She explained that she could not recollect what happened years ago. That explanation appears inconsistent with her assertion that she recalled the amount Mr. Cole deposited in Codi’s account from the sale of the horse Zippy. [ 18 ] Ms. Luckman acknowledged that Mr. Cole was an experienced horse trainer and farrier.

However, she initially denied that he was able to recognize common equine problems. She disagreed that, as a farrier, he could shoe horses in a way to correct foot problems. She was asked whether he did not do that every day. She responded, flippantly, that she did not know and that Mr. Gillis had led her to believe that Mr. Cole was not shoeing. On further questioning, she conceded that she did know that he did things to correct foot problems; but, added that she also knew be consulted with veterinarians on a regular basis. She further conceded that there were times that he did diagnose equine problems.

She was asked whether she ever challenged his diagnosis. She indicated that she questioned it at the time. She was asked to give an example. She responded by giving an example of when she disagreed with the treatment that he implemented, thus evading the question. She conceded that, on the occasion she was referring to, Mr. Cole had recognized the lameness problem with the horse and that it had been confirmed by a veterinarian. In my view, this exchange demonstrates an unreasonable reluctance to concede a point, and evasiveness, on the part of Ms. Luckman. [ 19 ] Ms.

Luckman testified, on direct examination, that her name was included as a joint account holder with her daughter, Codi, and that she had seen an entry of $2000, not $3500, representing the amount deposited into Codi's account from the sale of the horse "Zippy". Exhibit 13 is a Valley Credit Union Limited transaction history printout. It shows a deposit of $3500 on September 2, 2008. [ 20 ] After Mr. Cole introduced Exhibit 13, as a banking record, he provided evidence regarding the portions Codi wrote and marked in by hand.

He said Codi had: written in the account number as being "41100-1"; and, marked the arrow pointing to the $3500 deposit Mr. Cole testified he made on September 2, 2008. [ 21 ] Ms. Luckman provided rebuttal evidence in relation to that transaction record. She indicated that she had a joint account with Codi and she did not recognize the account number, purportedly handwritten by Codi, as being from her account. She said she did not recognize it as the account they had together. [ 22 ] On cross-examination, Bruce Gillis asked her whether she was saying it was not the joint bank account she held with Codi.

She responded that it was not even a bank account number. She was asked what the joint bank account number was. She responded that it was “41100-1-01". Mr. Gillis then suggested to her that it was likely the same bank account. She responded that it could be and that anything could be likely. [ 23 ] In my view, Ms. Luckman's evidence in relation to the account she jointly held with Codi was misleading, an attempt to hide the truth, and evasive. [ 24 ] Ms. Luckman was then asked whether she had said, on direct examination, that Mr. Cole only deposited $2000 into that account.

Her response was: "If that's what I said, I stand by it." That demonstrates a reluctance to acknowledge when she may have been mistaken. In addition, her earlier evidence had been that she knew the amount deposited by Mr. Cole because she was joint on the account and was familiar with it. She testified that: her evidence that $2000 was deposited was based on her memory; and, she did not recall going back to check. In my view, the transaction history shows that the amount deposited was $3500, not $2000. Therefore, it calls into question the reliability of Ms.

Luckman's evidence as to what was shown in the account statements.

[ 25 ] Ms. Luckman's inconsistencies, evasiveness, reluctance to make reasonable admissions against interest, and, flippant attitude, in my view, are factors which significantly diminish her credibility. Her maintaining her position, in the face of clear evidence that she was mistaken, in my view, diminishes the reliability of her evidence. (

b) Gary Cole [ 26 ] Mr. Cole’s affidavit evidence was that, when Ms. Luckman moved out of the farm in July of 2007, there were eight wrapped round bales remaining on the farm. However, on cross-examination, he indicated that he did not know whether there was any haylage left when he moved back on the farm. I understood the reference to haylage to be the same as the reference to wrapped round bales. If my understanding is correct, that appears to be an inconsistency in his evidence. [ 27 ] On May 25, 2011, Mr.

Cole testified that he had not had a client’s horse at his farm for training for a full month in the preceding two years. On July 13, 2011, he was asked how many horses he had on his farm training in the current year. He indicated that he had one for 30 days. At first blush, that would appear to be an inconsistency. However, it was not clarified whether or not he had taken in that horse after May 25. Therefore, it cannot be determined whether or not it was an inconsistency. [ 28 ] The fact that Mr.

Cole’s income tax returns repeatedly show a net farming loss appears to be inconsistent with his statement, at paragraph 31 of his affidavit sworn May 15, 2007, that he needed uninhibited access to the farm "to carry on the business which produces a substantial portion of [their] family income". However, if he meant gross income, as opposed to net income, that would explain the apparent inconsistency. The inconsistency is also, to some extent, explained by the comment, in paragraph 9 of Mr.

Cole's affidavit, sworn February 28, 2008, that he has "had a drastic reduction in income over the past year", as well as his later evidence to the same effect. [ 29 ] Mr. Cole estimated the value of the saddle retained and used by Ms. Luckman, at one point, as being $2,500. However, in the list attached to his affidavit, he valued it at $1500. There was no evidence that he included only a portion of the value of the saddle in the list attached to his affidavit. Therefore, that appears to be an inconsistency. [ 30 ] Mr.

Cole’s answer to many of the questions regarding deductions from income in his income tax returns was that he did not know because he simply turns everything over to his accountant, who determines what can be claimed and deducted. I questioned whether that was simply a tactic to avoid having to answer questions about deductions. However, I noted that he indicated he was unable to answer, or was unsure about the answer, even where it would have worked in his favor to provide an answer. One example is when Ms.

Luckman suggested that claiming identical amounts for motor vehicle expenses under both the business and the farm in 2008 might be explained by a totaling of all the expenses and an equal splitting of them. He simply responded that was possible. He did not readily adopt it as the likely explanation, even though, in my view, it would have been in his favor to do so. [ 31 ] In my view, his lack of knowledge regarding deductions, was genuine. In assessing the whole of his evidence, and observing his demeanor, it became apparent that he is not one to concern himself with financial details.

That is highlighted by the fact that, in some years, there are no amounts noted for what should be deductible expenses, such as motor vehicle expenses. That suggests that he forgot to give his accountant the necessary documentation. In addition, in 2007 and 2008, he omitted indicating in his tax return that Susan Judge was his common-law spouse. That is a further example of lack of attention to those types of details. As he testified, he does not pay attention to details of expenses. He is told what is owing and he pays it. He is not good with the numbers.

In my view, his focus and interest is simply to work the farm and work with the horses. While he was with Ms. Luckman, employment income supplemented the farm and business income. He continues to do that. Mr. Cole did not, and does not, overly concern himself with where the monies come from, as long as he is able to continue his farming operations. [ 32 ] I find that his recurring answer that he did not know, and that his accountant determines what to include in his tax returns and statements of farming and business activities, was genuine, and not a tactic to evade questions. [ 33 ] On the points that Mr.

Cole did know the answer to, he gave direct and forthright answers, without evasiveness or reluctance to answer. [ 34 ] Mr. Cole also demonstrated he had no difficulty agreeing with suggestions from Ms. Luckman. For instance, when she referred him to a Canada Life debit of $186.76 he indicated he did not know what it was. He thought it must be an investment of some sort. However, when Ms. Luckman suggested that it could be additional life insurance, he agreed that he thought it was life insurance of some sort. [ 35 ] As a general comment, I found Mr. Cole to be much more credible than Ms. Luckman.

His lack of attention to financial detail negatively impacted the reliability of some of his evidence. However, due to my concerns over the credibility and reliability of Ms. Luckman, and my finding that Mr. Cole was a credible witness, where their evidence conflicted, I generally accepted that of Mr. Cole. [ 36 ] However, a trier of fact may believe none, part or all of the witnesses’ evidence, and may attach different weight to different parts of a witness’ evidence. On some points, I accepted the evidence of Ms. Luckman over that of Mr. Cole. 2.

APPROPRIATE DIVISION OF MATRIMONIAL ASSETS AND DEBTS [ 37 ] Exhibit 4 contains various documents giving: valuations of assets; details of debts; amounts received for assets; information

relating to whether services were provided or traded; and, information regarding items remaining in the matrimonial home when Ms. Luckman left. It was agreed that all of those documents were admitted as evidence of the truth of their contents. [ 38 ] Ms. Luckman acknowledged that, other than the appraisal she obtained from Bean's Antiques, she had no independent appraisal of the value of any of the assets. Some of the figures were based upon discussions with Mr. Cole. Evaluation of the horses was based on the amount shown on the Credit Union Loan Application introduced into evidence as Exhibit 1. [ 39 ] Mr.

Cole testified that the values noted on the Credit Union Loan Application were picked out of the air amongst himself, Ms. Luckman, and the bank manager. As they were sitting together, filling out the loan application, they tried to figure out the appropriate numbers to insert. In his view, the $5000 noted for the gun collection is not a valid valuation because he's not a gun appraiser. He indicated that the $19,000 shown for horses would be the asking price, not the value. [ 40 ] Mr.

Cole testified that the values noted in the Statement of Property attached to his affidavit of January 10, 2011, came from him, based on what he thought the items were worth. He indicated some of the values were the amounts paid for the items in question. In relation to the silverware, glassware and dishes, he indicated that the values came from what it cost him to buy replacements at yard sales. [ 41 ] Neither party is requesting an unequal division of matrimonial assets, and there is no indication that an equal division would be "unfair or unconscionable". In my view, they are to be divided equally. (

a) Matrimonial Assets Matrimonial Home [ 42 ] Two appraisal reports were obtained to determine the value of the matrimonial home. They are found at Tabs 1 and 2 of Exhibit 5. One gives a valuation of $140,000. The other gives a valuation of $160,000. The parties agreed that the actual value was the average between the two, $150,000. [ 43 ] Ms. Luckman agreed that both appraisals valued the entire property, including the portion used for farming and horse training, and all of the buildings on it, including the house and barn .

She also agreed that she had already been paid approximately $61,000 as her share of the net value of that entire property, including the portion used for farming and horse training. Mr. Cole indicated that it was about $62,000 that he had paid her. However, the document entitled "Matrimonial Property Breakdown for Equal Division", attached to his affidavit sworn January 10, 2011, indicates that the payment was made in July 2007 and was in the amount of $61,126.34. I accept that amount as the amount paid. That amount must be included as a matrimonial asset received by Ms. Luckman and credited to Mr.

Cole, as an equalization payment made by him, against the value of the matrimonial home retained by him. [ 44 ] Mr. Cole conservatively attributed $28,000 to the business portion of the total value of the lands and buildings. That estimate was based on valuing the 52' x 84' steel covered pole barn at $10,000 and the approximately 63 acres of land at $18,000. Mr. Cole indicated he had built it with telephone poles from the railway and steel he obtained for free when he tore down barns. He indicated that farmland was worth approximately $500 per acre.

He estimated he had about 38 acres of hay fields and approximately 7 acres of pasture near the house. The rest was Woodland. There are covenants on the land which limit its use to farming. He has since added an 18 foot roof on the side of the barn to cover equipment. However, that was not included in the value. The 38 acres of hay field alone, at $500 per acre, would have a value of $19,000. Therefore, I agree that the $28,000 attributed to the business portion of the property is conservative, and, unless Ms. Luckman is determined to have an interest of 50% or more in the business, is to her benefit. Yet, Mr.

Cole accepts that amount as the value of the business portion of the property; and, that is the value which the Court attributes to it. Vehicles Truck With Non-Functioning Transmission/Chev Crew Cab [ 45 ] There is a vehicle which Mr. Cole referred to as a truck with the transmission gone. I believe it to be the same truck that Ms. Luckman referred to as the Chev Crewcab. Mr. Cole referred to it as a business asset. Ms. Luckman referred to it as a matrimonial asset. There was no evidence to establish that it was a business asset. Therefore, I have found it to be a matrimonial asset. Mr.

Cole valued it, in his Statement of Property, sworn May 15, 2007, at $2000. He then, in his updated statement of property, and in the statement of property attached to his affidavit of January 10, 2011, valued it at $1000 because the transmission was gone. Therefore, it appears that the transmission went at some point after May 15, 2007. A motor vehicle almost inevitably depreciates in value. The party retaining a motor vehicle gets the benefit of its use, and must therefore absorb the loss associated with its depreciated value. It is the valuation prior to the transmission going which is relevant. Ms.

Luckman valued it at $4000. I have no information to properly assess the value of the vehicle. However, as a general comment, Ms. Luckman appeared to overvalue the assets retained by Mr. Cole. With the exception of the farm tractor, the parties did not appear to have vehicles of much value. As such, I assess the value of the crew cab truck at $2000. Other Vehicles

[ 46 ] I will address the other vehicles forming part of the matrimonial assets under the headings dealing with the household items and vehicles retained by each party. Bank Accounts [ 47 ] Ms. Luckman gave evidence regarding the bank account statements at Tab 3 of Exhibit 5. Account number 40622-10-5 was referred to as the parties’ joint bank account. Account number 40622-24-5 was their joint savings account. Account number 44462-10-2 was Ms. Luckman's personal account.

Account number 40622-20-25 was the hay account. [ 48 ] Transaction 55 in the joint bank account showed a deposit of $230.80 on December 13, 2006. Transaction 54 showed a transfer of that same amount on the same day. Ms. Luckman indicated that that represented the child tax credit that she transferred to her account. That amount is shown as having been transferred to her account on the same day as transaction 595. Ms. Luckman also transferred the child tax credit, in the amount of $230.80, from the joint bank account to her personal account, on January 22, 2007.

The relevant transaction numbers are transactions 29 and 30 in the joint bank account, and transaction 531 in Ms. Luckman's account. [ 49 ] Ms. Luckman's personal account was opened November 7, 2006. The opening deposit was a transfer deposit of $2,468.73. [ 50 ] Ms. Luckman's evidence was that, after separation, Mr. Cole approached her to withdraw money from the hay account to buy a hay wagon and a chainsaw. In Appendix A to her affidavit, she noted the value of the hay wagon as $600 and the value of the chainsaw as $900. She indicated that they were purchased in October 2006.

She pointed to the note from Brian Foster indicating that Mr. Cole paid him $150 for a chainsaw, and suggested that the Mr. Cole may have pocketed the balance. However, on cross-examination, she testified that Mr. Cole withdrew $900, $600 of which was for a chainsaw, and $300 of which was for a hay wagon. The hay account statement shows a $900 transfer withdrawal on October 5, 2006 and a $1500 member direct transfer on October 23, 2006. It appears that Ms.

Luckman’s evidence may have been engineered so that the total cost of the chainsaw and haywagon would match a recorded transaction; but, was uncertain which transaction to base her evidence on. [ 51 ] Mr. Cole confirmed on the witness stand that the receipt from Brian Foster was a receipt for the chainsaw he bought with the money that he obtained from Ms. Luckman. [ 52 ] The hay account statement shows that the account was closed November 30, 2006. Mr. Cole testified that it was Ms. Luckman that closed that. All of the contents of the account were gone. He is not aware that any of it went to him.

The statement shows transfer withdrawals on November 7 and 30, 2006, of $380 and $379.64 respectively. [ 53 ] These are examples of amounts transferred by Ms. Luckman. [ 54 ] Transaction 18, in the joint bank account, shows a transfer deposit of $1359.94, on March 2, 2007, which reduced the balance to zero. Mr. Cole testified that he had made that deposit, from money he borrowed from Susan Judge, to pay off the overdraft. Ms. Luckman could not recall what the entry was; however, she did acknowledge that she believed that he had borrowed money from his current common-law spouse, Susan Savoy (a.k.a.

Judge), to pay the overdraft. [ 55 ] Mr. Cole indicated that Ms. Luckman transferred a total of $4533.72 from their bank accounts to her personal account. That is supported by the banking statements and Ms. Luckman did not offer evidence to contradict it. I accept his evidence that she transferred that amount. [ 56 ] I also accept his evidence that he paid the overdraft of $1359.94. That amount will be added to the matrimonial debts he took responsibility for. [ 57 ] The hay account statement does show a $900 transfer withdrawal on October 5, 2006. I find that Mr.

Cole withdrew that amount to purchase business assets, including the chainsaw he paid $150 for and the hay wagon. The hay account was used primarily for income and expenses related to the farm. As such, in my view, it was a business asset. Therefore, this amount taken from the account to purchase further business assets, and/or for further business use, is not to be treated as matrimonial property retained by Mr. Cole. I treated the amounts removed from the account by Ms. Luckman as having been matrimonial assets because she was not extracting them for business purposes.

Funds had been taken from that account for matrimonial purposes at times. Pensions [ 58 ] Mr. Cole's pension with the Annapolis Valley School Board had a value, at time of separation, of approximately $22,000. He kept that pension. [ 59 ] Ms. Luckman's pension with the Valley credit union had a value, at time of separation, of approximately $200. She kept that pension. Insurance Policies

[ 60 ] Ms. Luckman had life insurance with Clarica having a cash surrender value of $3193.00. [ 61 ] Mr. Cole also had life insurance with Clarica having a cash surrender value $5058.70. Dividends [ 62 ] Mr. Cole retained $22 in dividends. Saddles [ 63 ] In Murchy v Cole , 1994 CarswellNS 398 (S.C.) , the Court classified saddles as matrimonial assets. In the case at hand, horseback riding was a family activity, even though each individual member of the family participated in varying amounts, and at varying levels.

Therefore, it is appropriate that saddles used in that family activity be classified as matrimonial assets, rather than personal effects. I accept that the riding done by Ms. Luckman, as part of the horse training business, was significantly less extensive than her pleasure riding. Therefore, her saddle is properly characterized as a matrimonial asset. [ 64 ] It was not established that particular saddles retained by Mr. Cole were used solely in the horse training business. There was evidence that he participated in weekend horse competitions. I consider those to be pleasure, rather than business activities.

However, more likely than not, at least half of the saddles retained by Cole would be for business use, or at least half of the use of the saddles retained by him would be business related. Therefore, in my view, it is appropriate that half of the value of the saddles retained by Mr. Cole be classified as matrimonial assets, and half as business assets. [ 65 ] In my view, the bridles and accessories should be treated the same as the saddles. [ 66 ] Mr. Cole estimated the value of the saddle retained and used by Ms. Luckman, at one point, as being $2,500.

However, in the list attached to his affidavit, he valued it at $1500. Ms. Luckman testified that her saddle was not worth over $1200. However, in her statement of property, sworn September 4, 2007, she valued the saddle retained by her at $150. [ 67 ] Mr. Cole valued the four saddles he kept at $1200, and the bridles and accessories at $100. In her statement of property, Ms. Luckman valued the four saddles at $2850, and the bridles and harnesses at $1500.

In appendix A to her affidavit of August 31, 2010, she gave a combined value of $4000. [ 68 ] There is no additional evidence to assist me in determining the value of the saddles and accessories. In relation to the saddle retained by Ms. Luckman, I take the mid-point between her estimate of $1200 and Mr. Cole’s estimate of $1500, i.e. $1350, as the value of that saddle. I also accept Mr. Cole’s evidence that Ms. Luckman kept a bridle and reins worth $50. I find that Ms. Luckman had a greater tendency to overestimate the value of assets retained by Mr. Cole, than Mr. Cole did to underestimate that value.

Therefore, I attribute $1800 to the value of the saddles, bridles and accessories retained by Mr. Cole. Guns [ 69 ] In Sproule v Sproule , 1985 CarswellNS 52 (S.C., T.D.) , the Court, at paragraph 11, found that the guns in question were purchased for personal use. Therefore, they were part of the "reasonable personal effects" of the spouse in question, and exempt from division as a matrimonial asset, pursuant to s. 4(1) (

d) of the Matrimonial Property Act , R.S.N.S. 1989, c. 275. [ 70 ] In addition, Mr. Cole testified that some of the guns had belonged to his father and it was his responsibility to split them up amongst the “boys” in the family. Thus, not only were they not matrimonial assets, they were not even personal assets belonging to him. He also indicated that the "50" was to go to Zack. I took that to mean the 50 caliber Hawkins black powder rifle. [ 71 ] In the Credit Union Loan Application, both parties certified, in April 2006, that the gun collection was worth $5000. Ms.

Luckman testified that the only gun that was hers was a 50 caliber Hawkins black powder rifle which she has now returned to Mr. Cole. Mr. Cole valued that rifle at $2500. However, a letter from Dale Young, of Trapper’s Sports and Gun Shop, estimated its value at $300. She indicated that it had a blued barrel; and, that Mr. Cole had a twin to it with a chromed barrel. In her view, Mr. Cole’s 50 caliber Hawkins ought to be worth more than hers. That appears to be a reasonable view. [ 72 ] Dale Young estimated the value of the 30–06 Remington Woodmaster model number 742 at $200 for parts.

He valued the 32 Winchester Special model 94 rifle at $225. [ 73 ] It was agreed that the two 22 caliber rifles in Ms. Luckman's possession belonged to the children. [ 74 ] I find that the 50 Caliber Hawkins with the blued barrel is a personal asset belonging to Ms. Luckman. The two 22 calibre rifles belong to the children. The remaining firearms are either personal assets belonging to Mr. Cole, or he is holding them in trust for someone else. Therefore, he is to keep or distribute them according to the arrangement by which he is in possession of them.

None of the firearms are to divided as matrimonial assets. Horses In the Credit Union Loan Application entered as Exhibit 1, both parties certified, in April 2006, that they had horses with a total value of $19,000. Zippy [ 75 ] Mr. Cole’s affidavit evidence, at one point, was that the horse, Zippy, sold for $3500 and the money was put into Codi's account for university tuition. At another point he testified that Zippy sold for $4000, and that he deposited $3500 of that into Codi's account.

Both versions are consistent with the $3500 deposit entry for September 2, 2008, noted in Exhibit 13, which is a Valley Credit Union Limited transaction history. Mr. Cole testified that Codi handed the transaction history to him. He saw her hand-write the number under the heading "Account Number". He also saw her mark the arrow, on the second page, pointing to the $3500 deposit. The number inserted in handwriting under the heading "Account Number" was confirmed, by Ms.

Luckman, as being the same number as account number for the account she held jointly with Codi, except that the last two digits, being “01”, missing. [ 76 ] I find that Mr. Cole did sell zippy for $4000 and deposit $3500 of that amount into Codi's account. Mr. Cole did not establish that anything increased Zippy's value after the date of separation. Therefore, I attribute $4000 to Zippy's value. Monty [ 77 ] The letter from Donna Fraser, dated October 3, 2007, confirms that Monty was given to Mr.

Cole to allow it to have a quality of life, with the understanding that, if the horse was sold, an agreed upon percentage of the sale price would be paid to them. They were sponsoring the horse financially under one of their businesses. They retained the ownership and registration papers for the horse. Ms. Luckman agreed that Monty had not been enjoying his life because he was used too much as a show horse. Mr. Cole indicated that he and Codi now have the registration papers for Monty. He indicated that Ms. Fraser was scared of Monty. [ 78 ] Mr. Cole assigns no value to Monty. Ms.

Luckman indicates that he is worth $5000. There is a possibility that someone might come along and see something in Monty causing them to offer a significant purchase price. However, in my view, a horse that was given to someone to provide the horse a quality of life, more likely than not, has little or no value. I assign $300 to the value of that horse. Pontiac [ 79 ] Ms. Luckman retained possession of the horse Pontiac, which was the horse that she rode during the relationship. Pontiac was euthanized in February of 2011. Mr. Cole stated that, when he and Ms. Luckman split up, Pontiac was not sound.

That would appear to indicate that Pontiac was of little or no value. However, in the document entitled “Statement of Property of Patti Luckman”, attached to Mr. Cole's affidavit of January 10, 2011, a value of $1000 is attributed to Pontiac. Ms. Luckman, in her statement of property sworn September 4, 2007, assigns a value of zero dollars to Pontiac. I accept that Pontiac was of no market value. Household Items and Vehicles Retained by Mr. Cole [ 80 ] The evidence of the parties listed and valued the household items and vehicles retained by Mr. Cole as follows. [ 81 ] Ms.

Luckman, in her statement of property, included a pressure washer amongst the household items retained by Mr. Cole. Mr. Cole, included that amongst the business assets retained by him. There was no evidence as to what use was made of the pressure washer, from which I could determine whether it was a matrimonial asset, or a business asset. Since it has not been established that it is a

business asset, I must treat it as being a matrimonial asset pursuant to

section 4 of the Matrimonial Property Act . [ 82 ] Ms. Luckman included, in her statement of property, a chain saw as a household item retained by Mr. Cole. However, from the evidence I heard, the purpose of the chain saw was to earn income. Therefore, in my view, it is a business asset. [ 83 ] Ms. Luckman agrees that she retained most of the contents of the matrimonial home. She left only; the living room furniture; a computer desk; a loveseat; and the contents of the children's bedrooms. [ 84 ] The documents in Exhibit 4 included a letter from Wayne Trimper dated March 25, 2011, stating the following. Ms.

Luckman asked him to go into the matrimonial home to observe its condition on her last day there. Almost all of the furniture that had previously been in the house had been removed. The particular items he noted having been removed included: the kitchen table and chairs; the stove, refrigerator and freezer; the television and stand; the bed from the master bedroom; and, the computer. The only items he noted as having been left there included: the odd dish (otherwise the cupboards were empty); a really old Chesterfield; a computer desk; a bureau in the master bedroom; and, the contents of the children's bedrooms.

He also noted that the sink was piled high with frozen meat. He was informed by Ms. Luckman that he could have as much of it as he wanted. However, he did not take any. His letter stated that this was in the summer of 2006. However, Ms. Luckman testified that it was in 2007, not 2006. [ 85 ] Mr. Cole testified that Susan Judge brought a television, Chesterfield, chair, footstool, towels and washcloths. He had to purchase a bed, refrigerator, stove, and all of the other things that Ms. Luckman took, but Ms. Judge did not bring. [ 86 ] The following is a table listing the items and vehicles retained by Mr.

Cole I find to be matrimonial assets and the valuation of those items. There was little or no evidence to assist me in determining a fair valuation. Therefore, I had to base my valuation on my finding that, generally, Ms. Luckman was less credible and reliable than Mr. Cole, and, tended to exaggerate or minimize values to her benefit more than Mr. Cole, while bearing in mind that the assets were older and used. Items Retained by Mr. Cole Mr. Cole’s Valuation Ms.

Luckman's Valuation Value Assigned by Court Honda car $1000 $3000 $1200 Tundra Skidoo $1000 $1500 $1000 Arctic Cat Snowmobile $300 $400 $300 Camper $800 to $1000 $1500 to $2000 $1100 Dune Buggy $1500 $2500 $1500 Lawnmower $200 $300 $200 Boat and Motor (With Trailer) $1000 $2000 $1000 Camp $400 $800 $500 Household Items (Furnishings) $350 to $500 $5500 (Broken down in the statement of property as: couch, chair and end tables - $500; dresser, TV and VCR - $300; and, bed - $200, with no individual breakdown for the remaining amount.) $500 Whipper-snipper $150 No valuation provided $150 Pressure Washer No valuation provided $300 $200 Lumber No valuation provided $1000 $400 Spare Motor for Dune Buggy No valuation provided $1000 $200 Spare frame for Dune Buggy No valuation provided $500 $100 Total: $8,350 Household items and Vehicles Retained by Ms.

Luckman [ 87 ] Ms. Luckman provided a total valuation of the items retained by her. However, she did not provide valuations of all the

individual items. [ 88 ] Mr. Cole provided evidence that he paid $500 for the antique ice chest. That is the value that I have assigned to it. In relation to the dishes , silverware and glassware, I have taken into account Ms. Luckman’s evidence that they only had cheap items in those categories and Mr. Cole’s evidence that he put the approximate amount it cost him to replace the items by shopping at yard sales. [ 89 ] Otherwise, I have generally taken an approach to valuation that is similar to the approach I took in relation to the items and vehicles retained by Mr. Cole. However, the values provided by Mr.

Cole for the kayak, washer, dryer, refrigerator, stove, and, mattress with frame, seemed overly excessive for used items. Therefore, I have deducted more from his estimate of the value of those items than I would have using solely the general approach I took in relation to the household items and vehicles retained by him. [ 90 ] The following is a table listing the items and vehicles retained by Ms. Luckman I find to be matrimonial assets and the valuation of those items. Items Retained by Ms. Luckman Mr. Cole's Valuation Ms.

Luckman's Valuation Value Assigned by Court Mazda 626 Car $1800 $1500 $1650 Kayak $800 $500 $600 Antique Ice Chest $500 No valuation provided $500 Camping Equipment $400 No valuation provided $350 Gardening Tools and Hoses $350 No valuation provided $300 Christmas Lights and Decorations $300 No valuation provided $250 Computer and Accessories $500 No valuation provided $500 Washer and Dryer $2000 $750 $1000 Refrigerator and Stove $1500 $750 $1000 TV and DVD Player $500 $300 $400 Freezer $250 $150 $200 Queen Size Mattresses and Frame $1200 No valuation provided $900 Vacuum Cleaner $350 No valuation provided $250 Antique Dining Set with Four Chairs $700 No valuation provided $600 Barbecue $300 No valuation provided $150 Kitchen Appliances $500 No valuation provided $450 Dishes, Silverware and Glassware $500 No valuation provided $400 Pots, Pans and Bakeware $450 No valuation provided $400 Towels, Linens and Blankets $300 No valuation provided $200 Bureau $200 No valuation provided $200 Household Decorations and Pictures $500 No valuation provided $350 Total: $10,650 (

a) Matrimonial Debts Trimper Excavating Invoice

[ 91 ] At page 9 of Exhibit 4 there is an invoice from Ian H. Trimper Excavating Ltd. totaling $1501.71 for gravel sold to Mr. Cole. The invoice is dated October 31, 2007. That is after Ms. Luckman moved out of the matrimonial home, and Mr. Cole moved back in. Mr. Cole’s evidence was that the driveway repairs were effected while Ms. Luckman was still living at the matrimonial home. There was no evidence: regarding why the invoice was only prepared some three months after Ms. Luckman moved out of the matrimonial home; nor, in relation to Trimper Excavating’s usual practice regarding preparation of invoices.

However, having found Mr. Cole to be the more credible and reliable witness, I accept his evidence that the gravel was supplied prior to Mr. Cole moving back into the matrimonial home. Therefore, it was an expense incurred to maintain the matrimonial property before it was sold. As such, in my view, it is a matrimonial debt for which each party is equally responsible. That debt was paid by Mr. Cole. Home Hardware Credit Card [ 92 ] Mr. Cole paid off a $450 Home Hardware credit card debt. [ 93 ] I accept his evidence that he did not use the credit card; and, that it must be for something Ms. Luckman purchased.

There was no evidence of what was purchased. However, Mr. Cole has accepted it as a matrimonial debt, as opposed to a personal debt of Ms. Luckman. Given the parties’ practice of handing over all of the income to Ms. Luckman to manage, that appears to be a reasonable approach. Firewood [ 94 ] Mr. Cole did not know how many cords of wood they were left owing $800 for. However, I accept his evidence that he had to pay a firewood debt in the amount of $800 in relation to firewood obtained while the parties were still together. Joint Bank Account Overdraft [ 95 ] Mr.

Cole indicated, in the statement of property attached to his affidavit of January 10, 2011, that he paid the joint bank account overdraft in the amount of $1365. However, transaction 18, in the account transaction record, at tab three of Exhibit 5, shows that the amount paid was $1359.94. I accept the amount shown in the transaction record. In my view, that is a matrimonial debt, and both parties are responsible to share it equally.

Mortgage [ 96 ] The $27,747.32 owing on the mortgage for the matrimonial home, and surrounding lands and buildings, was deducted from the value of the property to determine the amount owing to Ms. Luckman in July of 2007, when she was paid 1/2 of the net value of the property. Mr. Cole took over responsibility for that debt. [ 97 ] The property was purchased in February of 1990. Only $18,000 is attributed to the land today. There is no evidence as to what the purchase price for the land was in 1990.

However, in my view it would, more likely than not, be no more than the $18,000 at which it has now been valued for the purposes of this proceeding. Mr. Cole valued the farm buildings at $10,000. However, they were constructed by Mr. Cole, using materials he scrounged for free. Therefore, none of the mortgage debt could have been incurred for the construction of the farm buildings. Further, in my view, from 1990 to 2007, most or all of the purchase price of the land would have been paid. Therefore, I attribute the entire mortgage debt owing to the matrimonial property. Total Matrimonial Debt

[ 98 ] I have not included Zachary's student loan as a matrimonial debt, even though that was listed as a debt in Mr. Cole's Statement of Property sworn May 15, 1997. In my view, that is Zachary's debt, not a matrimonial debt. There was no evidence of other matrimonial debt remaining outstanding. Therefore, the total matrimonial debt was $31,858.97, and was all assumed by Mr. Cole. (

b) Net Matrimonial Assets [ 99 ] I find that the net matrimonial assets retained by each party are as indicated in the following table. Mr. Cole Ms.

Luckman Assets Retained Matrimonial Home $122,000 Payment on Transfer of Matrimonial Home $61,126 Crew Cab Truck $2000 Money Transferred from the Joint Bank Accounts to Her Personal Account $4534 Pension $22,000 Pension $200 Insurance Policy Cash Surrender Value $5059 Insurance Policy Cash Surrender Value $3193 Matrimonial Portion of the Saddles, Bridles and Accessories $900 Saddle, Bridle and Reins $1400 Horses Zippy and Monty $4300 Horse Pontiac $0 Household Items and Other Vehicles $8350 Household Items and Vehicles $10,650 Dividends $22 Total Value of Retained Assets $164,631 $81,103 Less Debts Assumed Overdraft Payment $1360 Trimper Excavating Invoice $1502 Home Hardware Credit Card $450 Firewood Bill $800 Mortgage $27,747 Total Debts Assumed $31,859 Less Credit for Equalization Payment Made against Value of Matrimonial Home $61,127 Net Matrimonial Assets Retained $71,645 $81,103 3.

THE APPROPRIATE DIVISION OF BUSINESS ASSETS AND DEBTS (

a) Business Assets Farmland and Buildings

[ 100 ] The value of the farmland and buildings has been determined to be $28,000. They have been retained by Mr. Cole. Tractor [ 101 ] The Credit Union Loan Application notes the value of the 2002 New Holland tractor as being $20,000. However, that was simply a figure selected quickly by the parties and the bank manager during the completion of the loan application. The tractor appraisal, prepared by Gene Elliott, gives a trade premium value for that tractor of $11,826, at the point where it had 600 hours on it.

Such an appraisal, is more reliable than the number picked out of the air while filling out a loan application. However, the appraisal was conducted at a time when there was some diminishment in value of the tractor from the time of separation. The appraisal is not dated. Ms. Luckman's evidence was that, when the tractor was removed from the farm, it had just over 200 hours on it. Further, while it was on the farm, it was stored inside. After it was removed from the farm, it was left outside, thus diminishing its value. Mr.

Cole testified that the appraisal was probably done in 2007, at the point where he had to obtain values for the purposes of the divorce proceedings. Therefore, the diminishment in value would likely not have been extensive. Ms. Luckman values the tractor and chains at $18,000. I attribute $15,000 to the value of the tractor at time of separation. There no evidence on which I could determine a separate value for the chains. I have subsumed the value of the chains in the value of the tractor. Other Vehicles 1960 1 1/2 Ton Pickup [ 102 ] Ms.

Luckman testified that she used the 1960 GMC 1 1/2 ton pickup, including for traveling to and from work. That was not disputed by Mr. Cole. However, there was no evidence of any other matrimonial use of the truck. Mr. Cole’s affidavit evidence listed it as a business asset. Given that it was a 1 1/2 ton truck, more likely than not, it was a vehicle used in the farming business. In my view it was a business asset which Ms. Luckman had used to travel to her work. The receipt at page 11, of Exhibit 4, indicates that Mr. Cole received $800 for it. Mr.

Cole indicated that the truck was broken, such that you could not haul loads with it anymore. In addition, he found it too expensive to insure. He acknowledged that the 1960 GMC 1 ton truck noted on the Credit Union Loan Application as having a value of $1800 was the same truck. However, that value was ascribed to it at a time when they could still "get it on the road". I took that to mean that it was still feasible to obtain all the necessary registrations, inspections, permits and insurance required to drive it on a public road. Ms.

Luckman testified that, at time of separation, she had received an offer of $1000 for it. She had wanted to retain it herself. In my view, the time of separation is the appropriate valuation time for an asset, such as this type of vehicle, which is most likely to decrease in value with use by one of the parties. Therefore, the party retaining possession, should be the party bearing the loss associated with any decrease in value. I assess the value of the 1960 GMC pickup, at time of separation, as being $1000. Lincoln Town Car [ 103 ] The Lincoln town car was used by Mr. Cole as his shoeing car.

Therefore, it is a business asset, not a matrimonial asset. In his Statement of Property, sworn May 15, 2007, Mr. Cole valued it at $500. In his updated Statement of Property, he valued it at $0 because it was not running. For the same reasons noted in relation to the crew cab truck and the 1960 GMC, the relevant valuation is the one closest to the time of separation. Ms. Luckman valued it at $1500. For the same reasons noted in relation to the crewcab truck, I accept Mr. Cole’s valuation of $500. Horses [ 104 ] Mr. Cole listed Woody, Hank, Pony and Stitch as part of his business.

In addition to training horses for other people, he also raised horses for sale. He has only listed four horses as part of the business. It makes sense that he would have at least four horses as part of the business. I accept his evidence that these four horses were business assets. Stitch [ 105 ] Mr. Cole was of the view that the horse Stitch was of no value because it was lame as a result of degenerating hock disease. Ms. Luckman indicated that Mr. Cole removed Stitch from the farm in or about January 2007. According to her, at that point, Stitch was not lame. She is of the view that Mr.

Cole should bear any loss of value that would have occurred after he removed Stitch. Exhibit 4 contains an Avon Animal Hospital invoice referencing Dr. Paul Johnston’s diagnosis of lameness in Stitch. Dr. Johnston's opinion was admitted by consent. However, Ms. Luckman correctly pointed out that the reference to an examination for lameness of 1.5 years duration, would have been information obtained from Mr. Cole, not part of the Dr. Johnston's diagnosis. The date of the invoice was March 27, 2008. If Stitch had been lame 1.5 years, he would have been lame before he was removed from the farm. [ 106 ] Mr.

Cole testified that he had determined that Stitch was lame at a trot. He had noted the hitch, shortness of stride, ears back and

kicking. In his training to become a certified farrier they had taught him what to look for. He had also learned it beforehand as a horse rider. [ 107 ] Ms. Luckman valued Stitch at $2500. Mr. Cole indicated that Stitch is of no monetary value. [ 108 ] I accept that Mr. Cole was able to detect the lameness in Stitch. I also accept his evidence that Stitch was lame prior to separation; and, that he is of no monetary value. Other Three Business Horses [ 109 ] Mr. Cole valued Woody at $3000, Hank at $1000, and Pony at $400. Ms. Luckman valued Woody at $4000, Hank at $2500, and provided no valuation for Pony.

However, she provided a valuation for a horse by the name of May, at $1500. That may be the same horse Mr. Cole referred to as Pony. No meaningful information was provided in relation to these horses to help the assess the reasonableness of the valuations given by each party. In my view, Mr. Cole’s approximately 40 years’ experience as a horse trainer would make him better placed to determine the value of the horses in question. In addition, I have found him to be more credible than Ms. Luckman. However, Mr. Cole testified that he sold Woody for $4000.

He did not establish that anything increased Woody's value after the date of separation. Therefore, I determine the value of these three business horses to be $5400. Horse Mats [ 110 ] A letter dated March 23, 2007, from Paula Hicks, indicated that she gave Mr. Cole approximately 16 horse mats, four or five years prior, because he helped her with a problem horse. Ms. Luckman indicated they were worth approximately $80 apiece. Mr. Cole indicated that they were seconds and could be purchased new for $20 a piece. After they were used, in my view, they would be worth less.

I, therefore, attribute $200 to the value of the horse mats. Chainsaw [ 111 ] The note from Brian Foster indicates that Mr. Cole paid him $150 for a 353 “Husky” chainsaw. That would have been purchased after separation. Ms. Luckman valued it at $900, based on what she purported, at least at one point, to be the amount taken from the account by Mr. Cole to purchase it. I accept the receipt as legitimate, and value the chainsaw at $150. Hay [ 112 ] Mr. Cole’s affidavit evidence was that, at the end of the 2006 hay season , they had 48 wrapped round bales and 1000 square bales.

They began using some of the hay themselves in August. Ms. Luckman sold 20 round bales during the winter of 2007, keeping the $900 she received for herself. He used 20 round bales to feed horses he had taken off the farm. When Ms. Luckman moved out of the farm, in July of 2007, there were 8 wrapped round bales remaining on the farm. However, on cross-examination, he indicated that he did not know whether there was any haylage left when he moved back on the farm. I understood the reference to haylage to be the same as the reference to wrapped round bales. That is an apparent inconsistency.

However, it did not appear to be disputed that there were 8 round bales left on the farm when Mr. Cole returned to it in July of 2007. I accept that those 8 round bales did remain. Mr. Cole’s evidence was also that the square bales produced were used to feed the horses that stayed on the farm, as well as Ms. Luckman's new colt. When she left in July, Ms. Luckman took 100 square bales with her, leaving only 30 on the farm. The round bales sold for $45 each, and the square bales sold for $3.50 each. That left Mr. Cole with hay having a resale value $470, and Ms.

Luckman with hay having a resale value of $350. [ 113 ] Ms. Luckman suggested that Mr. Cole used some of the hay to feed Susan Judge’s horses. Mr. Cole testified that he did not feed any of that hay to her horses. He said that Ms. Judge bought hay from David Bent for her horses. Ms. Luckman questioned Mr. Cole in detail about how much he believed it took to feed a horse and how many horses he was feeding. Mr. Cole gave direct and forthright answers to questions. He concluded by saying that the hay they went through that winter was normal and that they do not skimp on feed, so their animals look good. [ 114 ] Ms.

Luckman’s evidence confirmed: the amount of hay harvested; and, that she removed 100 square bales when she left the farm. She also indicated that the remainder of the square bales were used to feed the horses on the farm, with the exception of some that Mr. Cole had fed horses he had removed from the farm. That was inconsistent with her evidence that Mr. Cole removed all of the square bales. However, I infer that she meant that Mr. Cole had removed all but 100 of the square bales, being 900 square bales with a total value of $3150.

Since the square bales were being used to feed the horses on the farm, including Ms. Luckman's horses and the horses used by Codi, Mr. Cole could not have removed 900 bales and left Ms. Luckman with 100 bales to take with her when she left.

[ 115 ] I accept Mr. Cole’s evidence in relation to the square bales. [ 116 ] There was no evidence that Mr. Cole had directly observed Ms. Luckman selling 20 round bales during the winter of 2007. However, it is agreed that only 48 round bales remained after the 2006 haying season . I accept Mr. Cole’s evidence that he removed 20 round bales to feed the horses he had taken off of the farm. I also accept his evidence that only eight round bales remained when he returned. Ms. Luckman confirmed that she and Codi used square bales to feed the horses that remained on the farm. Therefore, it was reasonable for Mr.

Cole to infer that Ms. Luckman sold or traded the remaining 20 round bales. It is possible that they were stolen. However, most likely, they were sold or traded. [ 117 ] Consequently, I accept that, a large part of the hay that the parties were left with after the 2006 hay season, was used to feed the horses that remained on the farm, and Mr. Cole's business horses. The remainder was divided between Mr. Cole and Ms. Luckman, with Mr. Cole receiving $470 worth, and Ms. Luckman receiving $350 worth.

I will treat those amounts as the value of business assets retained by each spouse. [ 118 ] In my view, the hay used by Mr. Cole remained in the farming business because it was used to feed the horses he was keeping. Similarly, I will not consider the hay used to feed Codi and Ms. Luckman's horses as a business asset taken by Ms. Luckman for her personal use. The practice had been to feed the family’s horses with hay harvested as part of the farming business. The hay in question was harvested while the parties were still together.

Therefore, in my view, it was appropriate that it continue to be used as it had been in the past. However, in converting 20 round bales to $900, and keeping that money for her personal use, in my view, Ms. Luckman retained $900 from the farming business. Other Business Assets [ 119 ] Ms. Luckman listed all of the assets as matrimonial assets because she saw the farm and farrier operations as being a joint family venture. However, in my view, it is most appropriate to separate them and determine what, if any, interest or compensation, Ms.

Luckman may be entitled to. [ 120 ] The following is a table of other business assets referred to and valued by one or both of the parties, along with the value assigned by the Court. The Court’s approach to valuation was the same as that used in relation to the matrimonial assets. Item Mr. Cole’s Valuation Ms.

Luckman's Valuation Value Assigned by Court Stock Trailer $2000 $2000 $2000 Horse Treadmill $500 $1500 $600 Tractor Accessories $2450 $2000 (for accessories which included tedder, rake, disc harrow, and plow) she also gave the following valuations for items that can also be classified as tractor accessories: $1500 for a tractor snowblower $3000 for a Bush hog $300 for a spike for the tractor $3000 Lean to $300 $500 $300 Hay Wagon No valuation provided $600 $600 Hay Elevator No valuation provided $200 $200 Electric Fencer No valuation provided $150 $100 Road Grader No valuation provided $1000 $500 Electric Welder No valuation provided $500 $250 Fencing No valuation provided $200 $100 Steel Gates No valuation provided $300 $150 Canvas and Tarps No valuation provided $300 $100 Assorted Sheet-Metal No valuation provided $500 $200 Farrier Equipment $2000 No valuation provided $2000

Total: $10,100 [ 121 ] I highlight that this table values only the equipment used in the farrier business. It does not assign a value to the farrier business itself. Ms. Luckman questionned Mr. Cole about a conversation he had with Dwayne Caldwell in which a figure of $60,000 was discussed as being the value of Mr. Cole's client list and having Mr. Cole travel with the purchaser for a year. Mr. Cole responded that they were just talking, and he asked Mr. Caldwell how much he thought it would be worth. He testified that he has never thought about placing a value on his farrier business.

There was no evidence regarding whether Mr. Caldwell had any expertise in the valuation of the farrier businesses; and, he did not testify. Thus, there was no evidence upon which I could assign any value to the farrier business, apart from the equipment used in it. (

b) Business Debts [ 122 ] Ms. Luckman questioned Mr. Cole about the business debts listed in the appendix to his affidavit of January 10, 2011. He agreed with her suggestion that he was saying those were incurred while they were together. When questioned about when Charles Lewis had done the custom hay work, he answered that it was before he returned to the farm. [ 123 ] Ms. Luckman gave evidence that it was their practice to always pay the haying contractors first. Mr. Cole agreed with her suggestion that it was the practice to take money from the hay sales to pay the haying contractors right away.

When questioned about whether he was saying that the hay contractors were not paid for 2006, he said he really did not know. However, on redirect, he testified that he prepared his statement property based on amounts owing as of October, 2006; and, that the custom hay work had been completed before October 2006. [ 124 ] The amount of debt attributed to haying contractors is $2631. That is approximately 35% of the amount shown in his 2006 statement of farming activities, in line 9798, for custom or contract work, and machinery rental.

It is approximately 77% of the same entry in his 2007 statement of farming activities. Given that the debt in question is a smaller percentage of the 2006 custom or contract work, it would appear more likely that the business debts shown for hay contract work would have been incurred in 2006. [ 125 ] Although it had been the practice to pay off those debts first, Ms. Luckman was the one taking care of the payment of bills during that period of time. Mr. Cole left it to her to handle. He would only have become aware of unpaid bills after-the-fact. However, he would know what work they related to.

During the fall of 2006, Ms. Luckman handled the accounts differently than she had before. For instance, she transferred significant amounts into her own personal account. Consequently, it would not be unreasonable to conclude that she also handled the payment of haying contractor work differently than she had before hand. [ 126 ] Ms. Luckman, having had the opportunity to do so, did not testify that she had paid all of the haying contractors for 2006. She only testified that it was their practice to do so the first thing after they received the haying income. [ 127 ] I, therefore, accept Mr.

Cole’s evidence that he was left with an unpaid debt in the amount of $2631 owing to haying contractors, for work done prior to October, 2006. [ 128 ] Mr. Cole's statement of property sworn May 15, 2007, indicates that the outstanding tractor loan, at that time, was in the amount of $18,000. That is the closest valuation in time to the date of separation. I accepted it is the amount owing at separation. [ 129 ] I also accept Mr.

Cole’s evidence that, at time of separation, he was left with business debts for fertilizer, totaling $1250, $1000 of which related to fertilizer for the hay field, and the remaining $250 which was owing to Cavendish Farms. [ 130 ] Similarly, I accept his evidence that he was left with a $600 bill for straw bedding. Although the parties used wood shavings when they were available, at times they had to purchase straw bedding. (

c) Net Business Assets [ 131 ] The following is a table showing business assets retained by each party, deducting the business debts Mr. Cole was left with, and showing the net amount of business assets. Business Assets Retained by Mr. Cole Farmland and Buildings $28,000 Tractor (With Chains) $15,000 1960 GMC 1 1/2 ton Pickup $1000 Lincoln Town Car for Shoeing $500 Business Horses $5400 Horse Mats $200

Chainsaw $150 Hay $470 Total from Table of Other Business Assets $10,100 Business Portion of Saddles, Bridles and Accessories $900 Business Assets Retained by Ms. Luckman Value of Hay Sold or Traded $900 Hay $350 Total Business Assets $62,970 Business Debts Haying Contractor Debt $2631 Tractor Loan $18,000 Fertilizer Debt $1250 Straw Bedding Debt $600 Total Business Debts $22,481 NET BUSINESS ASSETS $40,489 (

d) Proportionate Sharing of Business Assets [ 132 ] Ms. Luckman argued that all of the assets should be treated as matrimonial assets, because she saw it as a family venture and all of the money went in and came out of the same pot. Therefore, in her notice motion, she only indicated that she was moving for an order "to settle the division of matrimonial assets". [ 133 ] Alternatively, she argued that she was an equal partner in the business. In her notice of motion, she referred to

section 18 of the Matrimonial Property Act , regarding awarding compensation, or a share of business interests as compensation, for a contribution to a business asset. [ 134 ] Considering the position taken by Ms. Luckman and that she was self-represented; and, given that she did refer to

section 18 of the Matrimonial Property Act , in my view the contents of the Notice of Motion provided sufficient notice to Mr. Cole to permit me to consider what, if any, entitlement to compensation or business assets Ms. Luckman may have. [ 135 ] S. 18 of the Matrimonial Property Act states: “Where one spouse has contributed work, money or moneys worth in respect of the acquisition, management, maintenance, operation or improvement of a business asset of the other spouse, the contributing spouse may apply to the court and the court shall by order (

a) direct the other spouse to pay such an amount on such terms and conditions as the court orders to compensate the contributing spouse therefor; or (

b) award a share of the interest of the other spouse in the business asset to the contributing spouse in accordance with the contribution, and the court shall determine and assess the contribution without regard to the relationship of husband and wife or the fact that the acts constituting the contribution are those of a reasonable spouse of that sex in the circumstances .” [ 136 ] S. 13 also provides for the division of business assets, or other non-matrimonial assets, “where the court is satisfied that the division of matrimonial assets in equal shares would be unfair or unconscionable taking into account” factors which include "the effect of the assumption by one spouse of any housekeeping, childcare other domestic responsibilities for the family on the ability of the other spouse to acquire, manage, maintain, operate or improve a business asset". [ 137 ] The Court in Ryan v.

Ryan , 2010 NSCA 2 , at paragraph 12 , stated: “ The final words in s. 18 indicate that the determination and assessment of the contribution to be made to the other spouse from a business under that

section is to be made ‘without regard to the relationship of husband and wife or the fact that the acts constituting the contribution are those of a reasonable spouse of that sex in the circumstance.’ These words, together with the fact that s. 13(

f) specifically provides that the effect of the assumption by one spouse of child care and household responsibilities for the family on the ability of the other spouse to manage, maintain, operate or improve a business asset is to be taken into account under s. 13 and that s. 13(

i) specifically provides that the respective contributions of each spouse to the marriage is to be taken into account under s. 13, satisfy me that the Legislature did not intend that such an assumption of responsibilities is also to be considered under s. 18 , under the guise of a contribution of ‘money's worth ... in respect of the management, maintenance, operation or improvement of a business asset of the other spouse’, as the judge did.” [ 138 ] At paragraph 15, the Court stated: “…[W]here applications for division of a business asset are made under both sections, indirect contributions to the asset (such as assumption of child care and responsibility for the household) are properly considered under s. 13(f), while direct contributions to the asset (such as bookkeeping) are properly considered under s. 18 .. .” [ 139 ] In the case at hand, neither party has submitted evidence or argument “that the division of matrimonial assets in equal shares would be unfair or unconscionable”.

Ms. Luckman's position is that her contribution to the farming and farrier businesses entitles her to a 50% share in those businesses, or compensation for that share. Therefore, I must determine what, if any, share of business assets or compensation, her contribution entitles her to. [ 140 ] In Fullerton v. Fullerton , 1988 CarswellNS 361 (S.C., T.D.) , the Court awarded the wife 25% of the farming business, under both

section 13 and

section 18 of the Matrimonial Property Act . Her contribution included: bookkeeping; banking; paying bills; assisting with the haying; feeding farmhands, and doing laundry and mending for them; tending the vegetable garden; helping to feed the cattle in the first two years; helping with the calving; tending chickens; processing chickens; selling eggs; and, doing general farm errands. After the third of their three children was born, she became increasingly disillusioned with her husband and the farming operation, and her contribution to the farming operation diminished.

However, she handled most of the domestic responsibilities, including preserving, cooking, cleaning and caring for the children. [ 141 ] In Fullerton , the home the parties lived in was treated as being part of the farming operation. In the case at hand, it is agreed that the home the parties lived in, along with a reasonable amount of land around it, is a matrimonial asset. With great respect for the approach taken in Fullerton , in my view, the approach agreed upon by the Parties in the case at hand is the proper way to deal with a home on a farm property. [ 142 ] According to Ms.

Luckman’s affidavit sworn August 31, 2010, she and Mr. Cole shared the farm duties equally, for the most part. The farm income arose mainly from the sale of hay and the boarding and training of horses. She and their daughter, Codi, would help ride the horses. She indicated that when Mr.

Cole was traveling to exhibitions, she was left to take care of bringing in the hay. [ 143 ] In her affidavit sworn April 30, 2007, she also indicated that she would: take business calls; entertain clients; look after general business errands; help clients load hay onto their vehicles; load hay into the barn; feed horses; clean out stalls; and, turn horses out and in. [ 144 ] Her affidavit evidence was also that, in the beginning, Mr. Cole traveled to Newfoundland for farrier work, and would be gone for a week at a time.

In addition, she stated that he would be gone for work in the movie business and for other shoeing business. She did not specify where. I took it to be within Nova Scotia. Further, she indicated that he went on one occasion for a month to Mexico. During these times, she indicated that she took care of everything. [ 145 ] However, at trial, she testified that her

part in the farming operation was not as extensive as Mr. Cole’s. She also agreed that, out of concern for her own safety, she did not handle horses she did not feel comfortable with. She indicated she helped out more with the horse training as the children got older. Nevertheless, she indicated that she assisted him with the day-to-day operations and scheduling, and general farm duties. In addition, if anything went wrong while Mr. Cole was away, such as injury or escape, she would have to take care of those matters. [ 146 ] She further indicated that she assisted Mr.

Cole in his farrier work by holding horses, and passing nails and tools, while he was shoeing. [ 147 ] Ms. Luckman indicated that after Mr. Cole left, as part of their separation, and before he moved back into the matrimonial home, she and the children, for the most part, took care of the horses that were left on a farm. She indicated she maintained a calendar showing which days Mr. Cole assisted and which days he was not around. However, that calendar was not produced. [ 148 ] Ms. Luckman indicated that all of their bank accounts were joint. She took care of all the banking, accounting and bill paying. Mr.

Cole simply gave her his income, from every source, to deposit and manage. [ 149 ] Ms. Luckman submitted that: she was a partner in the family business; and, the business would not have developed as much without her contributions. She saw it as "their" business. [ 150 ] Mr. Cole’s evidence was that: he only went to Newfoundland once; and, has never been to Mexico. [ 151 ] Mr. Cole confirmed that he left the farm on October 15, 2006, and moved directly to a movie set where he worked for a month.

However, he returned to the farm on weekends and on other days, during the week, to care for the animals and cut and stack firewood for Ms. Luckman. After that month, he moved to his mother's home, which was about a 5 minute drive from the farm. At that point, he

took care of the animals daily. He indicated that, although Ms. Luckman objected to him being on the farm, she did not provide care for the animals herself. To make it easier for him to take care of the animals he removed four of the horses to another location in January 2007. One month later, he removed a further horse. That left three horses on the farm. Two belonged to Codi. The other belonged to Ms. Luckman. [ 152 ] Mr. Cole’s evidence was that Ms. Luckman did very little to help with the business and farm, other than to take care of the finances. She did look after the financial records.

According to him, that took one or two days per year, and he assisted. He acknowledged that she would occasionally assist the children with their chores. In addition, she would occasionally drive the truck or tractor while the hay was being loaded onto the wagon. Once the children got older, they did the driving. In addition, when he switched from making square bales to making round bales, he did not need as much help with the haying. At times, she would also check on the horses in the pasture. [ 153 ] Mr. Cole testified that he had wanted a farm all his life. There were times, during the summer, that Ms.

Luckman would take the children and go to the beach, telling him that he wanted the farm, not them. [ 154 ] Ms. Luckman testified that Mr. Cole had no income for the first year after completing his farrier course. She indicated that, at page 11 of the transcript of the discovery of Mr. Cole, he acknowledged that he traveled with another farrier for about one year without getting paid. In addition, she assisted with the household expenses when he was taking his farrier course at the Nova Scotia Agricultural College. [ 155 ] At the time, Ms. Luckman was working at Valley Drug Mart.

She worked there until about one week before Zachary's birth and returned to work shortly after his birth. She indicated that Mr. Cole asked her to quit working outside the home to assist him with establishing the business and the farm, and to raise a family. Mr. Cole disputed that, he indicated that he encouraged her to take a drafting job outside the home. After she refused two job offers, he bought her the equipment she needed to work from home. She did not do so. [ 156 ] I accept Mr. Cole's evidence that

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