Meisner v. Meisner, 2012 NSSC 241

SUPREME COURT OF NOVA SCOTIA Citation: Meisner v. Meisner, 2012 NSSC 241 Date: 20120626 Docket: ST 1207-001717(071179) Registry: Truro Between: Heather May Meisner Petitioner/Applicant v. Larry Wayne Meisner Respondent DECISION Judge: The Honourable Justice J. E. Scanlan Heard: January 17, 2011, May 16 & May 23, 2012, in Truro, Nova Scotia Counsel: Dianne Paquet, Solicitor for the Petitioner Lloyd Berliner, Solicitor for the Respondent By the Court : [ 1 ] Heather and Larry Meisner were married on the 3 rd day of September, 1971. They separated on or about the end of August, 1998. At the time of the divorce, Mr.

Meisner was in receipt of a pension income of $1,690.00 per month. The pension was not divisible at the time. Mr. Meisner suggests that he agreed to instead provide spousal support equal to one half of the pension amount ($845.00). The amount of the monthly pension payments was impacted by the fact Mr. Meisner started to draw on the pension at the time of the divorce trial. There is no dispute in the evidence that the pension payments are now reduced to $556.00 per month. At or about the same time the pension was reduced Mr. Meisner reduced his maintenance payments to one half that amount, or $278.00.

In the interim the pension has now been divided and Ms. Meisner now receives the sum of $278.00 per month directly from the pension provider. [ 2 ] The issue of spousal support has been a hotly contested issue since the date of the reduction of the pension payments. More precisely the issue is whether Mr. Meisner should now be required to pay spousal support in addition to the amounts Ms. Meisner receives from the pension fund.

[ 3 ] The hearing on this matter has continued for a period in excess of one year. There were many factors leading to this delay, none of which were really in the control of the parties. By the time of the final hearing, Ms. Meisner was represented by a litigation guardian. That process of appointment of a litigation guardian and the circumstances giving rise to the need for a litigation guardian were one of the main contributing factors in the delay in the proceeding. [ 4 ] The parties entered into a Divorce Settlement Agreement dated April 14, 2000.

The issue of spousal support is not clearly put to rest pursuant to the terms of that agreement. The relevant terms were eventually incorporated into the Corollary Relief Order. Mr. Meisner was of the belief that his obligation to pay spousal support was fulfilled by him first agreeing to pay an amount equal to one-half of the pension to Ms. Meisner. Further, that once the pension was divided he thought his obligation to pay spousal support ended. In addition, Mr. Meisner argues that Ms.

Meisner was aware of the fact that the early draw on the pension would impact the amount payable under the terms of the plan once Mr. Meisner attained the age of 65. This was when he reduced the spousal support to one-half of what he was receiving in pension. [ 5 ] The Court had a great deal of difficulty in understanding the submission of Ms. Meisner ’ s counsel that the payment of spousal support, instead of dividing the pension in 2000 was only an attempt by Mr. Meisner to reduce his income tax bill. Mr. Meisner says he would have divided the pension earlier if the plan would have permitted.

Had he lost one-half of the pension at the time of separation, I fail to see how his tax bill would be more than it was when he paid spousal support in the same amount. Either way his income tax reduction would have been the same. [ 6 ] Mr. Meisner further stated that, so far as he understood, the parties divided all matrimonial assets at the time of separation. This included a clause that provided for the division of the pension. Although he retained the matrimonial home and the business located on the lots, Mr. Meisner says he was also left with a bill of about $70,000.00.

He expressed dismay at the possibility of having to now give a further portion of the property over to Ms. Meisner in the form of additional spousal support . [ 7 ] During the trial counsel for Ms. Meisner expended substantial amounts of time in attempting to discredit Mr. Meisner. She suggested forcefully that he was still earning money in the form of income from the business which he had sold to his son several years ago. She suggested that Mr.

Meisner attempted to mislead the Court as to the extent of his income and assets and even how much his current spouse may get to deliver things to the Halifax area from time to time. I am convinced this effort to discredit Mr. Meisner was a waste. I am satisfied Mr. Meisner was as complete and forthright as he could be. At no time did I sense that he was attempting to mislead the Court. There were many aspects of his financial situation that he did not understand. He left issues of taxation and accounting to the professionals who did his taxes and accounting.

He was forthright in terms of admitting the limits of his knowledge. I am also satisfied there were no substantial sums of income or assets which Mr. Meisner has, and which were not disclosed to the Court. [ 8 ] Mr. Meisner has a grade seven education which he stretched by saying he went into grade eight. He did not complete grade eight. Any education thereafter was limited to training in his trades. Most of his education was in the school of hard knocks and on the job training as he worked in the sprinkler/pipefitting industry.

Even when he did trades exams he did them with a group of others trying to get their papers, in hotel rooms, with open books. Those tests were more collaborations than exams. At no time did I perceive Mr. Meisner to understate his income or education. This in spite of a tenacious assault by counsel on his credibility. [ 9 ] In spite of having a limited education Mr. Meisner started, what became a reasonably successful sprinkler business. It has flourished even more so since it was taken over by Mr. Meisner ’ s son.

That company services and install ’ s industrial sprinkler systems for many of the largest industrial operations in Nova Scotia. [ 10 ] If there was any aspect of this proceeding that bothered the Court on the issue of credibility it arose as a result of an affidavit filed by Ms. Meisner early in the proceedings. After reading that affidavit I was left with the distinct understanding that Ms. Meisner was destitute. I was concerned that she was barely able to afford nutritional food and left with no choice but to live in a substandard apartment with few amenities.

It was not long after reading that affidavit and feeling Ms. Meisner was indeed in a desperate situation, the Court learned Ms. Meisner had bank accounts or investments worth hundreds of thousands of dollars. This was at the same time she suggested that she could only afford canned fruit, not fresh fruit.

[ 11 ] Seldom have I felt so mislead by affidavit materials put forth by one party in proceedings such as this. Clearly when Ms. Meisner suggested she was in a desperate financial situation, it was nowhere near as desperate as she would have the Court believe. It is equally disconcerting if counsel were aware of the extent of that investment reserve when the affidavit was drafted and the asset position was not immediately disclosed to the Court.

If counsel were aware of the reserves and investments were as extensive as they turned out to be, then counsel had a duty not to plead desperate circumstances as were set out in the affidavit submitted to the Court in that early affidavit. Counsel would, of course, never want to be involved in misleading the Court intentionally. In this case it is not clear to me what counsel knew and when. I give counsel the benefit of any doubt. [ 12 ] The issue of Ms. Meisner ’ s capital assets is clearly relevant in a case where she is asking Mr. Meisner to now pay spousal support out of his capital assets. Mr.

Meisner ’ s income stream would not support ongoing payment of spousal support. [ 13 ] The spousal support paid by Mr. Meisner to date has been paid pursuant to the terms of a Corollary Relief Judgment dated May 12, 2000. That order incorporated the terms of a Divorce Settlement Agreement dated April 14, 2000. Counsel involved in negotiating and preparing the Divorce Settlement Agreement are the same counsel now representing the parties. That agreement noted Mr. Meisner ’ s income at the time to be approximately $20,000.00 per annum. The agreement had a provision that required Mr.

Meisner to provide his former wife with a copy of his Income Tax Return on an annual basis. There was no similar obligation on the wife. Mr. Meisner did not provide the tax returns as required. Some of his Income Tax Returns are not now available for many of the years between 2001 and the present. [ 14 ] Mr. Meisner did continue to receive some income and indirect benefits from the company he sold to his son. There were limitations in his pension that were intended to prevent him from continuing to work in the trade. Working in the trade after retirement would have jeopardized the ability of Mr. Meisner and Mrs.

Meisner to receive the pension benefit. Clearly Mr. Meisner did give some advice to his son early on, especially on larger jobs. That involvement has essentially ended as Mr. Meisner ’ s son has gained more experience in the trade and business. [ 15 ] Ms. Meisner did not apply for a change in the spousal support until after the pension was reduced in 2010. More specifically, she applied in July, 2010 for a variation. [ 16 ] The Divorce Settlement Agreement noted the husband was retired and in receipt of pension income in the amount of $1,690.00 per month. Mr.

Meisner testified that at the time the pension could not have been divided at source but he paid an amount equivalent to one-half to his wife in the form of spousal support. He further testified that both parties understood that there would be a substantial reduction in the pension benefits at a later date resulting from the fact that it was accessed so early. As noted, the reduction came in 2010 when the benefits went from $1,690.00 per month to $556.00 per month. Mr. Meisner then reduced his payment to Ms. Meisner to $278.00 per month. [ 17 ] Counsel for Ms. Meisner complained that Ms.

Meisner applied for a division of the pension in 2010 and that Mr. Meisner interfered with that division. Mr. Meisner explained that he asked the pension provider not to effect the division when first requested by Ms. Meisner because he had provided a number of post-dated cheques to Ms. Meisner. He did not want to have the cheques cashed and also have the pension diverted to Ms. Meisner. I accept that explanation.

The appropriateness of the termination of spousal support is the issue the Court is now addressing. [ 18 ] The Divorce Settlement Agreement leaves a lot of unanswered questions in terms of the issue of spousal support and variation thereof. Clearly the parties were aware of the fact Mr. Meisner was still earning some income. It did not specify what would occur if he did continue to earn more or less income. Nor did it make provision for what would occur should Ms. Meisner earn an income. Ms.

Meisner has not worked since the date of separation but she has earned relatively substantial investment income over the years following the divorce. [ 19 ] The Divorce Settlement Agreement did contemplate the possibility that Mr. Meisner may return to work and causing his pension to be eliminated. It specifically provided that should that occur the spousal support would be an amount:

...equal to the sum she was receiving per month prior to the termination of the husband’s monthly pension benefit. [ 20 ] Clearly at the time spousal support was tied to the amount of the pension benefit and not the income of the husband. [ 21 ] There is one clause in the Divorce Settlement Agreement which is extremely confusing: Paragraph 3(e): If the parties effect a division of the husband’s pension, it is acknowledged that the wife may seek to claim for spousal support in addition to her share of the pension, and the parties agree to first attempt to negotiate a settlement of the quantum payable prior to either person commencing a Court application. [ 22 ] I read that as nothing more than an agreement to negotiate in the hopes of reaching an agreement.

The noted paragraph is confusing in that other provisions in the agreement clearly tie the amount of, and entitlement to, spousal support to the amount of, and receipt of, the pension benefits. This is the one and only paragraph that speaks of spousal support in addition to the pension benefits. In view of the fact that a return to work may have interrupted the flow of pension benefits, it would have been important for Ms. Meisner to protect that income stream from any unilateral decision by Mr. Meisner to return to work.

If that were to occur, she may have, in the absence of paragraph 3(e), been left with a division of pension but no income stream. [ 23 ] It is clear the parties agreed the division of the pension was a trigger event to allow a review of spousal support. How much support was not made clear. I am satisfied the only reading possible, when considering that Divorce Settlement Agreement as a whole is that the Court may first treat the division of the pension as a change of circumstances as referenced in the Divorce Act .

Second, I consider the provisions of that Act in determining whether there should be a payment of spousal support in addition to the pension benefits Ms. Meisner now receives. [ 24 ] The parties were in a long term marriage of approximately 27 years. They have now been separated for 14 years. At the time of separation there appears to have been a division of property that, according to the terms of the Divorce Settlement Agreement, effected an equal division of property and assets. Mr. Meisner said that in fact Ms. Meisner obtained a larger share because he did not assert a claim for a substantial inheritance Ms.

Meisner had received. [ 25 ] Although Mr. Meisner may have continued to earn some income, Ms. Meisner did not advance a claim for increased spousal support until after the pension was divided. It is not clear that she would have been entitled to advance any claim for increase under the terms of the Agreement unless it resulted in the termination of the pension benefits. [ 26 ] Ms. Meisner did not work after the separation. It is doubtful that she would have been able to work due to her mental health problems that exist during and after the marriage. Mr.

Meisner did some work, and as noted, he did continue to accumulate some wealth in his holding company as a result of those efforts. Most of what Mr. Meisner now has appears to be the result of his work post separation together with him realizing on the value of the assets he retained at the time of separation. [ 27 ] Ms. Meisner ’ s asset position has been somewhat negatively impacted by an unexplained acquisition and then disposal of a home at a loss. It is difficult to track some of the proceeds of disposition in relation to that property for purposes of this decision.

For purposes of this decision I do not feel it necessary to track the Applicant ’ s monies since separation. Her living expenses now reflects a monthly rent as opposed to an amount required to run a home owned by her. It is not clear how much difference that will make in her monthly expenses. Having said that it would appear that for the most part she has lived a frugal life since separation. [ 28 ] Mr. Meisner does not appear to have lived beyond his means since the date of separation. In fact his asset position has improved somewhat since the separation, mainly as a result of his continued work and saving.

He is not, however, a wealthy individual. Mr. Meisner ’ s son has made the sprinkler company quite successful but that is a company the son acquired and it is operated independently by him. The only direct benefit the Respondent gets now, and which is of any consequence, is the $6,000.00 per annum rent the son pays for the use of the building on the Respondent ’ s land. It would appear that is a true business relationship. The land which the son ’ s company rents was part of what was awarded to the Respondent at the time of the divorce and division of property. Ms.

Meisner has already received her equal share of the property. I do not intend to reopen the division of matrimonial assets. [ 29 ] The parties are now both at an age where it would be expected that their respective earning capacity is curtailed. This has been so for an extended time for Ms. Meisner. Most of what the parties now have to live on will come from limited pension incomes and a draw down on those assets and savings. The pension income stream is less than what it might have been due to the joint decision to drawn down Mr. Meisner ’ s pension at an early date.

They both benefited earlier but both of them will now face the reality of reduced pension from 2011 forward. To a certain extent that will be offset, the Court assumes, from other pension income. That would include old age pension and Canada Pension. I note that Ms. Meisner will benefit from a division of Mr. Meisner ’ s Canada Pension as well. He will have a resulting reduction in his CPP benefit. In other words, the marriage and marriage breakdown will affect both parties indefinitely. Mr. Meisner ’ s retirement income will be substantially less due to what has been paid and will be paid to Ms.

Meisner. [ 30 ] What appears to have been a substantial division of assets in 2000 has left Ms. Meisner with a substantial reserve of capital to drawn upon. She will be able to supplement her benefits from other sources for many years without depleting those reserves. I do not accept that she is now reduced to living a life of poverty as espoused by her counsel.

I am concerned that there is an indication through the materials that as much as 10% of the capital reserves she did have were expended on legal fees in this application; perhaps even more. [ 31 ] I am satisfied that an appropriate disposition is that each of the parties now will be living off reduced retirement income that can be supplemented by drawing upon their respective capital reserves. I will not require Mr. Meisner to now deplete his capital reserves to pay Ms. Meisner ongoing spousal support. Spousal support is terminated as of the date of Mr.

Meisner ’ s last payment. [ 32 ] I will hear the parties on the issue of costs if they cannot agree. J. 06/26/12