LeClerc v. LeClerc, 2012 NSSC 321

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: LeClerc v. LeClerc, 2012 NSSC 321 Date: 20120911 Docket: 1206-006153 Registry: Halifax Between: Pamela Leone LeClerc (Aspden) Applicant and Joseph “Marc” Daniel LeClerc Respondent LIBRARY HEADING Judge: The Honourable Associate Chief Justice Lawrence I. O’Neil Issues: 1. Whether arrears of child and or spousal support exist and are payable by Mr. LeClerc. 2. Whether there should be an unequal division of the parties' matrimonial assets. 3. The appropriate disposition of certain identified assets. 4. Duration of spousal Support.

Summary: The parties separated after a 20 year marriage. The Applicant wife sought arrears of spousal and child support. Both parties sought unequal division of the matrimonial assets based on alleged wasting of assets by the other. The Court found no arrears owing, after concluding that the Applicant, even after the parties’ separated, had access to large sums of cash and both parties poorly managed funds to the detriment of the family. The Respondent paid more than required by both the child and spousal support guidelines when unemployed and after his salary decrease.

He also made payments to third parties that were not reflected in the records of the Maintenance Enforcement Office. The Respondent husband had exceeded his child and spousal support obligations. The Court directed the disposition of certain identified assets. The Court concluded that the Wife had wasted certain matrimonial property and ordered her to pay the husband $10,000 as a consequence. This amount was described as modest in the context of the parties’ financial history.

Keywords: Arrears; unequal division Legislation: Divorce Act, S.C. 1985 c.3 (2nd Supp.) Matrimonial Property Act, R.S.N.S. 1989, c.275 Maintenance and Custody Act , R.S.N.S. 1989, c.160

THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET. SUPREME COURT OF NOVA SCOTIA Citation: LeClerc v. LeClerc, 2012 NSSC 321 Date: 20120911 Docket: 1206-006153 Registry: Sydney Between: Pamela Leone LeClerc (Aspden) Applicant and Joseph “ Marc ” Daniel LeClerc Respondent Judge: Associate Chief Justice Lawrence I. O ’ Neil Date of Hearing: January 25, 26 and 27, March 11 and 12, 2012 Counsel: Pamela L.

LeClerc (Aspden), Self Represented Joseph “ Marc ” LeClerc, Self Represented By the Court : History of relationship para. 1 History of litigation para. 4 Assets, earnings and mortgages para. 15 Resolved Issues - partial consent order dated January 2012 para. 17

-divorce/ name change para. 19 Unresolved Issues Issue One : Arrears of Child and Spousal Support para. 20 -Mr. LeClerc ’ s unemployment and reduced earnings after April 2010 para. 25 -third party payments: payment of mortgage, etc. para. 31 -direct deposits of employment earnings to a joint account para. 35 -Ms.

Aspden ’ s employment para. 38 -change in children ’ s residence para. 41 -recalculation para. 45 Issue Two: Unequal division of assets para. 47 -Canada Revenue Agency refund para. 50 -sale of investment property para. 62 -Investor ’ s Edge RRSP para. 66 Issue Three: Disposition of certain assets -Sunlife RRSP para. 75 -ArcelorMittal pension (Exhibit #2) para. 76 -the motorcycle para. 77 -the AT Vehicle para. 78 -the travel trailer para. 79 -the family dog para. 80 -undeveloped lot para. 81 -personal property in their respective homes para. 82 Issue Four : duration of spousal support para. 84 Conclusion ******** History of Relationship [ 1 ] Mr.

LeClerc is a native of St. Jacques, New Brunswick and Ms. Aspden is a native of Elgin County, Ontario. They have two sons, born in 1989 and 1991 and a daughter born in 1992. [ 2 ] The parties were married August 15, 1987 in Tillsonburg, Ontario. Both acknowledge there were serious problems in the relationship throughout 2008. Exhibit #28 is communication between the parties evidencing efforts to conclude a separation agreement in the fall of 2008. They have accepted January 1, 2009 as their date of separation. [ 3 ] The couple moved to Cape Breton in 1998. Mr.

LeClerc was employed in the auto manufacturing sector. In July 2007 his employment in Sydney ended and he accepted similar employment in Southern Ontario. At the time of the parties ’ separation, he had achieved a level of expertise in his area of work and was earning a salary in excess of $150,000. His Ontario employment ended in April 2010. He next gained employment in Alberta, commencing May 2, 2011. His salary since May 2, 2011 has been $110,000; with the

possibility of a bonus up to $20,000. Ms. Aspden was not frequently employed outside the home. She accepted primary responsibility for raising the couples ’ s three children when they were young. All children are now living independently for the purposes of this action. History of Litigation [ 4 ] Legal proceedings were commenced October 9, 2009 by Ms. Aspden. She proceeded under the Maintenance and Custody Act , R.S.N.S. 1989, c.160 and the Matrimonial Property Act , R.S.N.S. 1989, c.275.

She raised the following issues: (1) custody; (2) spousal maintenance; (3) exclusive occupation of the matrimonial home; (4) division of marital property; (5) medical coverage; and (6) life insurance. [ 5 ] An Interim Consent Order was granted March 30, 2010 (issued April 15, 2010) when the parties appeared in a Sydney Court. The order was pursuant to the Maintenance and Custody Act , supra and the Matrimonial Property Act , supra . [ 6 ] The order required Mr. LeClerc to pay child support of $1,385 per month and spousal support of $3,850 per month (to reflect Mr.

LeClerc ’ s agreed upon obligation to pay certain expenses of the matrimonial home, $850 was added to the spousal support payment of $3,000). Mr. LeClerc ’ s 2009 income of $167,693 was used by the parties to determine his child and spousal support obligations. [ 7 ] At that time Mr. LeClerc further agreed to maintain life insurance with Ms. Aspden as the irrevocable beneficiary. [ 8 ] The 2010 order further required Mr. LeClerc to pay their son Eric ’ s post secondary education expenses. [ 9 ] An amended order was issued May 5, 2011 to correct the spelling of Mr.

LeClerc ’ s name, in the style of cause shown on the order dated March 2010. [ 10 ] On August 10, 2009, Mr. LeClerc had initiated a Divorce proceeding in Woodstock, Ontario. He discontinued that proceeding with Ms. Aspden ’ s agreement on December 13, 2010. The parties agreed to proceed with the Divorce in Nova Scotia. A Petition for Divorce was filed by Ms. Aspden in Sydney on February 21, 2011. [ 11 ] In June 2011, Mr. LeClerc sought a reduction in his child support to reflect his reduced income and he communicated with the Court to achieve this.

He subsequently filed an application on September 16, 2011 to accomplish a change in his child and spousal support obligation. Ms. Aspden filed a notice of motion on August 5, 2011. [ 12 ] Conciliation meetings were held with the parties in 2011. [ 13 ] On October 12, 2011 the parties were first before me but no evidence was presented. However, that day the parties agreed that Mr. LeClerc no longer had a child support obligation and an order amending the 2010 order was made. The parties were directed to make additional disclosure to each other. Other terms of the 2010 Interim Consent Order were continued.

The matter was rescheduled to January 25, 26 and 27, 2012 for evidence to be presented. [ 14 ] The matter proceeded to a hearing as a Divorce hearing before me commencing January 25, 2012. The hearing continued January 26 & 27 and was completed on March 11 &12, 2012. Assets, Earnings and Mortgages [ 15 ] Throughout this hearing, the parties were self represented. Notwithstanding their best efforts; they omitted formal proof of

many documents they wanted the court to consider and which they were clearly relying upon in support of their respective cases. At the conclusion of the trial they both agreed that whatever documents each had filed, since the commencement of the proceedings, could be considered by the court. This explains why some documents referenced in this decision are identified by an exhibit number and other documents are referenced by a filing date. [ 16 ] The evidence establishes that the parties had the following assets, liabilities and revenue sources from time to time commencing in late 2008.

I have not included their bank account balances nor their credit card accounts. The parties ’ evidence on these accounts was difficult to clearly understand. I have noted the expected disposition of the asset where applicable. Real Estate 1. Matrimonial home - jointly held - to be assumed by Mr. LeClerc 2. Undeveloped lot - jointly held - to be sold. 3. Rental property, i.e. ‘the flip’ - sold September 2008. Vehicles 1. Motorcycle - to be retained by Ms. Aspden - credit of $4,000 to Mr. LeClerc. 2. ATV - to be sold. 3. Travel trailer - 1989 Mallard - sold Animals 1. Dog- to remain with Ontario family Furniture 1.

In matrimonial home-to be retained by Ms.Aspden. 2. In Woodstock, Ontario apartment and now Calgary-to be retained by Mr. LeClerc 2008 Cash Infusions 1. CRA refund October 2008 - $70,423.50 2. Sale of rental property September 2008 - $15,000 ‘profit’. RRSPs/Pension 1. ArcelorMittal pension - to be divided equally. 2. Dofasco/Sunlife RRSP - to be divided equally. 3. Investor’s Edge RRSP - liquidated by Mr. LeClerc in January 2010. Earnings 1. Mr. LeClerc employed to April 2010 with ArcelorMittal Tubular Products, Woodstock; April 2010 - May 2011 unemployed; May 2, 2011 - present, employed in Calgary. 2. Ms. Aspden

Mortgages 1. Scotiabank mortgage: Matrimonial Home - $319,735.34 - January 1, 2009. Resolved Issues -partial consent order dated January 2012 [ 17 ] Prior to the commencement of the hearing on January 25, 2012, the parties reached further agreement on a number of issues. Their agreement is incorporated in an order dated and issued January 26, 2012.

At that time, the parties agreed upon (1) the quantum of ongoing spousal support; (2) possession and ownership of the matrimonial home; (3) that no child support was payable by either party and the parties agreed (4) that “ the collection of child and spousal support arrears, if any, would be suspended until further order of this Court ” . [ 18 ] Clauses 1-12 of the order of January 26, 2012 read as follows: MATRIMONIAL PROPERTY: 1. Marc LeClerc shall be granted exclusive possession of the matrimonial home located at 36 Bardmoor Crescent, Sydney, Nova Scotia effective March 1st, 2012. 2.

Marc LeClerc will assume all the expenses associated with the matrimonial home effective March 1st, 2012. 3. Marc LeClerc will keep the following items from the matrimonial home in his possession:

(1) Pool Table;

(2) Hot Tub:

(3) Dining Room table and chairs; and

(4) Stereo Equipment, all which will remain in the home. 4. Pamela LeClerc (Aspden) will receive the amount of $30,000.00 from Marc LeClerc in exchange for releasing her interest in the matrimonial home. This is a credit to be applied in her favour when a full accounting of debts and assets is concluded. 5. Both Marc LeClerc and Pamela LeClerc (Aspden) are to cooperate over the next six months to effect the transfer of title for the matrimonial home to Marc LeClerc. SPOUSAL SUPPORT: 6. Effective March 1st, 2012, Marc LeClerc will pay spousal support in the amount of $3000.00 per month to Pamela LeClerc (Aspden).

This support shall be paid in two instalments of $1500.00 each payable on the 15th and 30th of every month. And in the month of February, payments are to be made on the 1st and 28th of that month. 7. All spousal support payments must be made payable to Pamela Aspden. 8. Commencing on April 1st, 2012, the payments must be sent by Marc LeClerc to the Office of the Director of Maintenance Enforcement, P.O. Box 803, Halifax, Nova Scotia, B3J 2V2, while the order is filed for enforcement with the Director. 9.

A court officer must send the current designated addresses of the parties, and a copy of this order, to the Office of the Director of

Maintenance Enforcement in accordance with

section 9 of the Maintenance Enforcement Act. 10. Marc LeClerc must advise the Office of the Director of Maintenance Enforcement of a change in location, address, and place of employment, including the commencement or cessation of employment, within ten (10) days of the date of the change, under section 42 (2) of the Maintenance Enforcement Act. CHILD SUPPORT: 11. There shall be no child support payable by either party to the other. RETROACTIVE CHILD SUPPORT: 12.

Effective as of the date of this Order, the collection of child and spousal support arrears if any, is suspended until further order of this Court. - divorce/name change [ 19 ] The Petition for Divorce was filed February 21, 2011 (Exhibit #1). The parties agree that a Divorce Order should issue. I am satisfied that the Court has jurisdiction to issue the Divorce Order and the grounds for doing so exist. There has been a breakdown of their marriage and no prospect for reconciliation. Ms.

Aspden was resident in Nova Scotia for more than a year prior to 2012 and the parties have lived separate and apart since January 1, 2009. No bars to the issuance of a Divorce Order exist. A Divorce Order will issue and Ms. LeClerc ’ s surname will be changed to Aspden, her birth surname. Unresolved Issue s 1. Whether arrears of child and or spousal support exist and are payable by Mr. LeClerc. 2. Whether there should be an unequal division of the parties ’ matrimonial assets. 3. The appropriate disposition of certain identified assets. 4.

Duration of spousal Support Issue One: Arrears of Child and Spousal Support [ 20 ] Mr. LeClerc argues that the regular due amount for child and spousal support should be reduced to reflect: 1. His period of unemployment. 2. Ms. Aspden’s employment earnings.

3. His payments to third parties. 4. Ms. Aspden’s failure to pay the expenses of the home as ordered after March 2010. 5. The children’s circumstances during this period. 6. Her having appropriated the entire CRA refund and profit from the sale of the rental property. There is no claim for spousal or child support arrears arising before April 1, 2010. The claim relates to the obligations assumed by the parties after their interim consent order dated March 30, 2010. Ms.

Aspden relies on the records of the Maintenance Enforcement Program ‘ MEP ’ in support of her claim. [ 21 ] Exhibit #14 is a record of spousal and child support payments as prepared by the Maintenance Enforcement office. The ‘ MEP ’ record of Mr. LeClerc ’ s payments of support is based on voluntary reporting by Ms. Aspden of the support she says she received, since support payments were made to her directly.

For the entire period April 25, 2010 to January 25, 2012 the record of payments shows a total regular due amount of $107,302.80 and a received amount of $72,904.91 and a balance (arrears) of $34,455.48. [ 22 ] Mr. LeClerc was first directed to pay spousal support by a consent order dated March 30, 2010. The order referenced Mr. LeClerc ’ s income of $167,693 in 2009. As far as Mr. LeClerc was aware at the time; Ms. Aspden was without an income. Mr. LeClerc was ordered to pay $1,389 per month as child support for the child Alixandra, who lived with Ms. Aspden.

He was also required to pay interim spousal support of $3,850; of which $850 was to cover certain operating expenses for the home. This yielded a total monthly obligation of $5,235. [ 23 ] The March 30, 2010 order required Ms. Aspden to assume full responsibility for the payment of the mortgage, taxes and utility expenses associated with the matrimonial home, “ up until the end of the month that she vacates the residence ” . By further order dated January 26, 2012 Mr.

LeClerc was to take vacant possession March 1, 2012 and to then assume “ all the expenses associated with the matrimonial home ” . [ 24 ] A number of assumptions underlying this order changed. -Mr. LeClerc ’ s unemployment and reduced earnings after April 2010 [ 25 ] Mr. LeClerc ’ s Ontario employment ended April 7, 2010. He did regain employment effective May 2, 2011 but it was at a lower income level. Since May 2, 2011 he has been employed in Alberta, earning approximately $110,000 with the possibility of a maximum bonus of $20,000. [ 26 ] Mr.

LeClerc received six months of severance after leaving ArcelorMittal Tubular Products on April 7, 2010. The severance agreement was filed with Mr. LeClerc ’ s Statement of Income on November 23, 2010. It provided for Mr. LeClerc ’ s salary of $153,700 to be continued for six months, commencing April 7, 2010. [ 27 ] Mr. LeClerc ’ s severance had the effect of continuing his income to October 7, 2010. Thereafter; for the seven month period October 7, 2010 to May 2, 2011, Mr.

LeClerc ’ s only income was derived from employment insurance and his spousal and child support obligation was subject to revision downward but this is not reflected in the ‘ MEP ’ record. His employment insurance income was capped at $457 per week (see the affidavit of Mr. LeClerc filed September 16, 2011). It is unclear if this is the net or gross amount of his benefits. For purposes of this analysis I will treat his income as $600 per week gross. [ 28 ] In December 2010, Mr. LeClerc thought he had achieved a settlement of all issues (see Exhibit # 28 and Mr. LeClerc ’ s affidavit

filed September 16, 2011 at para. 42). Ms. Aspden rejects that conclusion. I am satisfied that the “ agreement ” reached was tentative and not binding. However, its existence helps explain why Mr. LeClerc delayed returning to Court to have his obligations to pay support varied downward. This is relevant to a consideration of whether Mr. LeClerc sat on his right to have the obligation revised by further court order. Had he sat on his rights; his request to have the spousal and child support obligation reassessed downward would be weakened. [ 29 ] To October 2011 ‘ MEP ’ continued to show Mr.

LeClerc ’ s obligation to pay spousal and child support as directed by the March 2010 order. In October 2011 the child support obligation was deleted. Effective October 1 , 2011 the due amount is reduced to $1,804.61 every two weeks from $2,448.84.

This resulted from a consent variation order eliminating the requirement to pay child support. [ 30 ] Instead of a support “ amount due ” of $1,804.61 every two weeks as ordered in March 2010, for the seven month period October 7, 2010 - May 2, 2011, the support should have been less, reflecting calculations using his employment insurance income and the spousal support guidelines. -third party payments: payment of mortgage etc. [ 31 ] Beginning in October 2011 Ms. Aspden no longer met her obligation to pay the mortgage and certain expenses associated with the matrimonial home.

This was contrary to the parties ’ consent order of March 10, 2010. Although the March 2010 order required Mr. LeClerc to pay $850 per month to Ms. Aspden as a contribution to the costs of the former matrimonial home; she was to pay all additional costs. Ms. Aspden continued to live in the home. Mr. LeClerc was required to make the payments directly and he did. Nevertheless the ‘ MEP ’ record shows he did not make this $850 payment to Ms. Aspden. For the period October 2011 to January 2012 Mr. LeClerc should not be assessed $850 per month as a missed contribution to the household expenses.

At a minimum, the record must delete this charge. [ 32 ] In response to Ms Aspden ’ s nonpayment of certain household expenses as ordered ; commencing in October 2011, Mr. LeClerc reduced his direct payment to Ms.Aspden to $548.30 every two weeks. As discussed infra he explains his decision on the basis that Ms. Aspden discontinued paying the mortgage at this time and he was required to make the payment. He considered his assumption of that responsibility as support for her, although paid to a third party. [ 33 ] In addition to paying the said $850 per month to third parties, Mr.

LeClerc was required to expend additional hundreds of dollars each month to preserve his credit and the home. He now wants recognition of these payments as part of his spousal support obligation. The actual monthly mortgage and insurance obligation was approximately $2,000 (see Ms. Aspden ’ s statement of expenses filed December 5, 2011). The January 2012 order required Mr. LeClerc to make these payments only after March 1, 2012. [ 34 ] These third party payments are appropriately characterized as support for the purpose of this analysis. These payments were in excess of Mr.

LeClerc ’ s requirement to provide support and they have the effect of increasing the quantum paid by Mr. LeClerc over this five month period by at least another $10,000 (5 x $2,000/mth. less the $3,400 already deducted from the ‘ MEP ’ total ). He did not receive any tax benefit for these payments. -direct deposit of employment earnings to a joint account [ 35 ] For part of the post separation period, and near the end of the parties ’ relationship when Mr. LeClerc was living in Ontario, Mr. LeClerc's entire earnings were being deposited into the parties ’ joint account. Both parties had access to these funds.

The monthly deposit of Mr. LeClerc's earnings into the joint account continued until March 31, 2009. The deposits were bi-weekly in the amount of $3,731.66. I am satisfied that Ms. Aspden accessed these funds and applied them to her expenses. These funds were support for her. Although this fact is not relevant to whether arrears have accumulated after the March 2010 order, it is relevant to assessing the disposition of the “ CRA ’ refund and profit from the sale of the parties ’ rental property.

This later issue is discussed infra in the context of each party ’ s request for unequal division of their matrimonial assets. [ 36 ]

Schedule ‘ F ’ to Exhibit #4 is a partial account history for the parties ’ former joint account with President ’ s Choice. It records the following deposits of Mr. LeClerc ’ s pay after October 1, 2008: $3,731.66 on October 2, 2008; October 16, 2008; October 30, 2008; January 8, 2009; January 22, 2009; February 5, 2009; February 19, 2009; March 5, 2009 and March 19, 2009. The account was closed in

April 2009. The records for November and December 2008 were not in the document provided. [ 37 ] The record also shows deposits to this account on November 19, 2008; November 27, 2008; December 11, 2008 in the amounts of $2,000; $29,000 and $6,000 respectively. - Ms. Aspden ’ s employment [ 38 ] In her Statement of Income, filed May 27, 2011, Ms. Aspden declares support payments of $44,224.22 and gross business income of $10,110.00 on the accompanying T1 General for 2010. She provided child care services and in 2011 worked for CBBC Phoenix Society. With her Statement of Income filed December 5, 2011, Ms.

Aspden filed her Notice of Assessment for 2010. Ms. Aspden gained employment and had 2010 income of $80,960; including spousal support . [ 39 ] With her Statement of Income filed on December 5, 2011, Ms. Aspden attached confirmation of her eligibility for employment insurance and she attached a statement projecting her income in 2011 to be $35,931.78. [ 40 ] The evidence establishes that Ms.Aspden had employment income in 2010 and 2011. This fact was not considered in the assessment of Ms.Aspden ’ s quantum of spousal support.

At the time of the hearing in 2012 she was again unemployed - change in children ’ s residence [ 41 ] Effective July 2011, Alixandra discontinued living with her mother and I find Mr. LeClerc ’ s child support obligation for her terminated at that time; not in October 2011. She now lives with Mr. LeClerc and he is supporting her. No financial obligation to her support is made by Ms. Aspden, nor is one sought by Mr. LeClerc. [ 42 ] The parties ’ son Eric moved to Ontario in the summer of 2009 and he began living with his father on July 1, 2009. Mr.

Aspden expended thousands of dollars supporting Eric when Eric lived in Ontario ; attended University there. He continues to support Eric while he attends University in Nova Scotia. [ 43 ] Another son Gus finished post secondary education in 2009. [ 44 ] In her T1 Generals for 2009 and 2010 filed with her statement of income on May 27, 2011, only Alixandra is claimed as an eligible dependant by Ms. Aspden. At their October 22, 2011 pre-trial they agreed there were no longer children of the marriage. An order terminating child support therefore issued at that time. I have now concluded that Mr.

LeClerc ’ s obligation to pay child support for Alixandra ended July 1, 2011 not October 1, 2011. -recalculation [ 45 ] Mr. LeClerc asked for a reassessment of his child and spousal support obligation to reflect six changes in circumstances . In chronological order they are

(1) Ms.Aspden ’ s having access to lump sums derived from the sale of the rental property and the CRA refund

(2) Ms. Aspden ’ s employment (3) his unemployment (4) his reduced income once he regained employment (5) the elimination of child support (6) the ‘ MEP ’ assessment of $850 per month as unpaid by him after September 2011 and his assumption of all costs associated with the former matrimonial home after September 2011. [ 46 ] His argument is that, taken together, these factors result in a significant reduction in the “ amount due ” from him as child and spousal support. I find that the ‘ MEP ’ record over states the due amount by approximately $40,000. No arrears are therefore owing.

This estimate is arrived at as follows:

(1) The recalculation of child and spousal support was done on a month to month basis. I concluded this approach was fairer because of the need to take into account Ms. Aspden having converted all of the profit from the sale of the rental property and the ‘CRA’ refund to herself. Mr. LeClerc is correct when he asserts that some of these funds were his. An accounting is impossible on the evidence and given the disorganized and erratic lifestyle both of these parties were living during the period 2008 - 2012. A month to month accounting offers some relief to Mr.

LeClerc from the onerous financial obligations outlined in the March 2010 order but not varied in a timely way. Both parties are responsible in differing degrees, for the careless management of their financial affairs including the ‘CRA’ refund and the profit from the sale of the rental property.

(2) I am satisfied that Ms.Aspden’s earnings were not known to Mr. LeClerc during the term of the March 2010 order and although her earnings were modest they would have resulted in some reduction in the spousal support obligation. Her income should have been known and considered when the spousal support guidelines were used as a guide to determine the spousal support obligation during Mr. LeClerc’s period of unemployment and his subsequent period of reduced earnings following his resumption of employment. Mr. LeClerc’s obligation would have been less as a result.

(3) For the period October 2011 - February 2012 I subtract the $850 per month for household expenses from the “amount due” under the March 2010 order because Mr. LeClerc was making the payments to creditors directly; this reduction in the “amount due” should apply to the five month period October 2011 to February 2012 inclusive; this reduction totals $4,250; For the seven month period October 7, 2010 - May 2, 2011 inclusive, I reduce the spousal support obligation from $3,000 per month to $700 because Mr.

LeClerc’s only income was employment insurance benefits of $30,000 on an annualized basis; the difference in the “amount due” is a deduction from the total “amount due” as shown on the ‘MEP’ record; for seven months this totals $16,100; For the seven month period October 7, 2010 - May 2, 2011 inclusive I reduce the child support obligation from $1,385 per month to $270 because Mr. LeClerc’s only income was employment insurance benefits of $30,000 on an annualized basis; the difference in the amount due is a deduction from the total “amount due” as shown on the ‘MEP’ record; for six months this totals $7,805;

(4) For the six month period May 2011 - June 2011 inclusive I reduce the child support obligation for Alixandra from $1,385 per month to $1,068 because Mr. LeClerc’s income was approximately $125,000; the difference in the child support component of the “amount due” is a deduction from the total amount due as shown on the ‘MEP’ record; for two months this totals $634;

(5) For the three month period July 2011 - September 2011 inclusive I reduce the child support obligation from $1,385 per month to zero because Alixandra was no longer a child of the marriage; the difference is a deduction from the total amount due as shown on the ‘MEP’ record; for these three months this totals $ 4,155;

(6) For the 5 month period October 7, 2011 - February 2012 inclusive I show a credit equal to the payment on household accounts and made to third parties by Mr. LeClerc ; Ms. Aspden had been ordered to pay all household expenses and Mr. LeClerc was required to contribute only $850 per month to meeting this expense; when she appeared in October 2011 Ms. Aspden estimated the monthly costs of remaining in the home as in excess of $3,000; the monthly mortgage and insurance payment related to the home approximate $2,000 per month; after deducting his obligation to pay $850, I conclude that Mr.

LeClerc should receive a minimum credit of $1,150 per month for the five month period; for a total credit of $5,750; Issue Two: Unequal division of assets [ 47 ] The parties agree in principle that their assets should be divided equally. However, each then points to cash received by the other as a reason he/she should receive extra compensation. I interpret this to be an argument for an unequal division of the marital property as provided by the Matrimonial Property Act , R.S.N.S. 1989, c.275.

Section 13(

a) and (

b) of that Act read: 13 Upon an application pursuant to

Section 12, the court may make a division of matrimonial assets that is not equal or may make a division of property that is not a matrimonial asset, where the court is satisfied that the division of matrimonial assets in equal shares would be unfair or unconscionable taking into account the following factors:

(

a) the unreasonable impoverishment by either spouse of the matrimonial assets; (

b) the amount of the debts and liabilities of each spouse and the circumstances in which they were incurred; [ 48 ] Ms. Aspden argues that Mr. LeClerc liquidated an RRSP after January 1, 2009, i.e. in January 2010 and she is now entitled to one half its value at the time of liquidation not separation. Ms. Aspden says the RRSP had a value of $70,000 in January 2009 but $102,000 in January 2010. She seeks $51,000 as her one half share. [ 49 ] Mr. LeClerc argues that Ms. Aspden received a $70,000 tax refund in November 2008 that belonged to him but she retained all of the funds for her use exclusively.

He also says Ms. Aspden retained and used for her benefit, all of the proceeds from the sale of the parties ’ rental property. - Canada Revenue Agency refund [ 50 ] Attached to Mr. LeClerc ’ s pre-hearing submission filed December 19, 2011 is Exhibit A-1. This document is also identified as Exhibit #8. This is a bankbook reconstruction report prepared by CIBC for the period January 1, 2008 to December 31, 2009. [ 51 ] The

summary shows the following inter alia : October 15, 2008 Deposit $70,423.50 October 15, 2008 Transfer $ 5,000.00 October 15, 2008 Transfer $ 5,000.00 October 15, 2008 Transfer $10,000.00 . . . . . October 24, 2008 Withdrawal $40,000.00 October 28, 2008 Transfer $ 1,000.00 October 28, 2008 Transfer $ 2,000.00 . . . . . [ 52 ] There are other transfers and withdrawals over the fall of 2008. They were made by Ms. Aspden. The $70,423.50 deposit is the tax refund flowing from a reassessment of Mr. LeClerc ’ s taxes paid years earlier (see Exhibit #9).

[ 53 ] Mr. LeClerc argues that Ms. Aspden received his tax refund cheque in October 2008, signed his name to it and spent it over the weeks before their separation and afterwards. Mr. LeClerc says he discovered Ms. Aspden had done this months later, in response to his questions to the CRA (see Exhibits #9 & #10). [ 54 ] In her pre-hearing submission filed December 5, 2011, Ms. Aspden says she used the funds with Mr. LeClerc ’ s agreement. Exhibit #18 is the savings account history for Ms. Aspden ’ s Scotia Bank money master account.

It records the deposit of $40,000 on October 24, 2008, the same day $40,000 was transferred from a CIBC account (President ’ s Choice). [ 55 ] Ms. Aspden testified that she put $40,000 into a personal account and used this money to cover living expenses in 2009, post separation. The remainder she says she used to pay family bills. Exhibit #4, a collection of bank statements was tendered to explain the spending. She also offered F to Exhibit #1 as an accounting of this money. The other funds were applied to family debts and to pay for cosmetic surgery. [ 56 ] I am satisfied that Ms.

Aspden expended these funds without the knowledge and consent of Mr. LeClerc. She managed the account. Notwithstanding her description of herself as financially strained during this period, she expended $8,500 on cosmetic surgery. [ 57 ] Ms. Aspden explains Mr. LeClerc ’ s inability to now recall on the basis that he has a memory problem; he was abusing alcohol, gambling and experiencing emotional problems during this period. She explained that their marriage was ending and both were under enormous stress. (Ms. Aspden first visited a lawyer in November 2008 to get advice on separating from Mr.

LeClerc.) He was working in Ontario at this time. [ 58 ] Mr. LeClerc wants his one half share of the ‘ CRA ’ refund to be reflected is an unequal division of other matrimonial assets. [ 59 ] Ms. Aspden testified that she paid off their son's car loan ($9,611.30); made a payment on the parties' CIBC VISA ($15,000); made a trip to Ontario ($4-5,000) in December 2008; and had elective surgery ($8,000) in December 2008. [ 60 ] Ms. Aspden was unsure if these expenditures were from the CRA refund or from another cash infusion in the fall of 2008.

The second cash infusion was from the sale of a second home the parties owned. [ 61 ] Mr. LeClerc was entitled to one half of the tax refund as he claims. He received none of it. I am satisfied that Ms. Aspden received, deposited and spent the entire tax refund. Mr. LeClerc was unaware the refund was received and continued to inquire of ‘ CRA ’ as to its status (see Exhibit #10). - sale of investment property [ 62 ] As observed, in the same period, Ms. Aspden received money from the sale of a home the parties had renovated as an investment. The property sale closed in September 2008.

The parties refer to this property as ‘ the flip ’ . [ 63 ] In her evidence, Ms. Aspden estimates they made a profit of $10 or $15,000 on ‘ the flip ’ . However, in her oral pre-trial submission, she estimated the profit as $20,000. I accept $15,000 as the profit. No records answering this question were offered. [ 64 ] In her oral evidence she said a transfer of $25,000 on October 1, 2008 to account 009630374628 (Scotiabank - money master - joint account) was not proceeds from the sale of the investment property.

[ 65 ] Ms. Aspden did not offer a satisfactory explanation of the expenditure of the profit from the sale of this investment property. - Investor ’ s Edge RRSP [ 66 ] The parties agree that the Investor ’ s Edge RRSP liquidated by Mr. LeClerc in January 2010 was a matrimonial asset owned equally by the parties. The transaction is shown on Mr. LeClerc ’ s tax returns for 2010 (see filing on September 16, 2011). Line 129 shows RRSP income of $106,618. (The amount after tax was withheld was $70,432.51). At the time of separation, it was valued at $74,284.97. I am satisfied that the funds received by Mr.

LeClerc as a result of liquidating this RRSP were used to pay matrimonial debts the parties shared an equal responsibility to pay. The evidence establishes that Mr. LeClerc was unable to pay the parties debts and these funds were required to meet that obligation. [ 67 ] Exhibit #30 is a Scotia Bank statement in the name of Mr. LeClerc for the period ending January 30, 2010.

It records the following inter alia : January 8, 2010 deposit - Investor’s Group $70,432.51 January 9, 2010 payment on RBC VISA $24,090.00 January 14, 2010 payment on CIBC VISA $25,000.00 January 14, 2010 payment to Dalhousie University $ 2,925.00 [ 68 ] The statement also records the deposit of Mr. LeClerc ’ s net salary as $3,382.86 on January 6 and January 21, 2010. [ 69 ] The CIBC credit card had a balance of $30,000. Ms. Aspden was principally responsible for the debt reaching this level. [ 70 ] I am satisfied that Mr. LeClerc was left with responsibility to pay this debt.

He did so with funds from the Investor ’ s Edge RRSP account. Additional funds from this source were used to pay educational expenses for the parties ’ son Eric. [ 71 ] Exhibit #31 is a CIBC Aerogold VISA statement for the period December 16, 2009 to January 15, 2010. It records a payment of $25,000 on the account, leaving a balance of $5,374.85. [ 72 ] For the reasons given, I am satisfied that the value of the Investor ’ s Edge RRSP was applied to the parties ’ joint matrimonial debt by Mr. LeCLerc. [ 73 ] In the fall of 2008 and into 2009, Ms.

Aspden was awash in cash derived from the CRA refund; the sale of the investment property and from Mr. LeClerc ’ s earnings which were being deposited into the couple ’ s joint account. She also continued to accrue significant credit card debts. [ 74 ] I am satisfied that Ms.Aspden should be liable to pay Mr. LeClerc $10,000 to reflect an unequal division of the matrimonial property in his favour. I view this as a modest amount given the extravagant spending of Ms. Aspden. I do so because she wasted certain matrimonial assets namely some of the profit from the sale of the rental property and the ‘ CRA ’ refund.

She did not account for these funds. I am further satisfied that Mr. LeClerc directed the proceeds from the liquidation of the Investor ’ s Edge RRSP to the payment of “ family ” debts, debts accrued by Ms. Aspden, who failed to restrain her spending.

Issue Three: Disposition of certain assets - SunLife RRSP [ 75 ] The parties agree to split this asset. Ms. Aspden says it has a present day value of $40,000. She wants a spousal rollover of only $15,000. That is ordered. - ArcelorMittal pension (Exhibit #2) [ 76 ] At the time of separation it had a value of $18,588. The parties agree that one half this amount is to be transferred to Ms. Aspden by way of a rollover or as agreed to between the parties in writing. - the motorcycle [ 77 ] The parties initially disagreed on the ownership and value of a Harley Davidson motorcycle. Mr.

LeClerc valued it at $8,000 and Ms. Aspden valued it at $4,000. To avoid the sale of the motorcycle, Ms. Aspden agreed to value it at $8,000 and to retain it. She accepts that Mr. LeClerc will get a credit of $4,000 as a consequence. - the AT Vehicle [ 78 ] The Court orders the sale of the all terrain vehicle and that the proceeds be divided equally between the parties. - the travel trailer [ 79 ] I do not have reliable evidence upon which to determine the timing of the sale of the parties ’ former travel trailer nor the proceeds from the sale. Ms.

Aspden sold it and retained the entire proceeds and does not offer any credit to Mr. LeClerc for having done so. He was entitled to share in whatever proceeds from its sale were generated. No order pertaining to this asset can be made, however. - the family dog [ 80 ] Ms. Aspden initially sought the return of the dog from Ontario to live with her. Mr. LeClerc argued that the dog should remain with his brother in Ontario. Near the end of the proceedings, the parties agreed that the dog should remain with Mr. LeClerc ’ s brother in Ontario on condition that Ms.

Aspden have access to the dog and secondly, that she be permitted to spend time with the dog in a park or another mutually agreeable site when Ms. Aspden is in Ontario. - undeveloped lot [ 81 ] The parties agree they own an equal interest in an undeveloped seven (7) acre parcel of land in Broughton, Cape Breton County, N.S. They agree the lot should be listed for sale and the proceeds shared equally. - personal property in their respective homes

[ 82 ] I am satisfied that each party should retain those items of personal property in their possession, including furniture and household and yard effects. This directive is subject to the specific directions pertaining to certain other personal property formerly owned by the parties jointly. [ 83 ] Given the evidence, it is impossible to conclude that one or the other party has retained more valuable personal property than the other. I am satisfied that Ms. Aspden has a better recollection of the specifics of how the property was acquired, when and at what price.

Consequently, when she testified that these items are of equal value, I am persuaded to that conclusion. Mr. LeClerc ’ s memory of the purchase of many of these items is unclear. This is understandable given the lead Ms. Aspden took in acquiring them and given Mr. LeClerc ’ s work responsibilities during the relevant period. Issue Four: Duration of spousal support [ 84 ] Effective March 1, 2012 Mr. LeClerc has been subject to a consent order to pay $3,000 per month as spousal support to Ms. Aspden. On a go forward basis the parties agreed that any bonus income earned by Mr.

LeClerc would not be considered by the parties and that the calculation of the quantum of spousal support agreed upon imputed income of $30,000 to Ms. Aspden. [ 85 ] The Court is asked by Mr. LeClerc to time limit Ms. Aspden ’ s spousal support. [ 86 ] It was the Court ’ s impression that Mr. LeClerc had conceded this point prior to the commencement of evidence. However, given that he has returned to it, I now state my conclusion after the hearing of the evidence. [ 87 ] Given the duration of the parties ’ marriage, the Court is not prepared to order a termination date for the spousal support as requested by Mr.

LeClerc. Mr. LeClerc ’ s obligation to pay Ms. Aspden $3,000 per month as ongoing spousal support will be indeterminate. [ 88 ] I reserve jurisdiction to hear the parties further on any of the matters addressed in this decision should there be obstacles to implementing my decision; previous orders or should there be outstanding issues. Conclusion 1. Mr. LeClerc does not have child or spousal support arrears to March 1, 2012. 2. There should be an unequal division of matrimonial assets in Mr. LeClerc ’ s favour in the amount of $10,000. 3.

Named assets shall be retained or sold as directed in paragraphs 18 and 71-85 herein. 4. Spousal support of $3,000 per month payable to Ms. Aspden is payable on an indeterminate basis.

ACJ