Godin v. Godin, 2013 NSSC 316

SUPREME COURT OF NOVA SCOTIA (Family Division) Citation: Godin v. Godin, 2013 NSSC 316 Date: 20131004 Docket: 1201-065295 Registry: Halifax Between: Cindy Mae Godin Petitioner and Marc Kenneth Godin Respondent LIBRARY HEADING Judge: The Honourable Associate Chief Justice Lawrence I. O ’ Neil Hearing: April 2, 3, 4 and 5, 2013, in Halifax, Nova Scotia Issues: 1. Credibility. 2. What is the ongoing child support obligation of the parties? What is the obligation, if any, of the parties to pay retroactive child support? 3. Is Ms. Godin entitled to spousal support?

If so, what is the quantum of spousal support payable? When should it begin? Terminate? 4. What are the matrimonial assets and liabilities of the parties? Should unequal division of the parties' matrimonial assets/debts be ordered? 5. Are costs payable by either party?

Summary: The parties have three (3) teenage children. By order of a Nova Scotia Court, the father was granted sole custody. However, the Court found the mother encouraged all three to join her in British Columbia contrary to the Court order. The father initially sought their return to Nova Scotia. The British Columbia Court declined jurisdiction to deal with the custody issue. This Court did deal with the parties ’ divorce, division of property and debts, child support arrears and the mother ’ s claim for spousal support. The issue of a change in custody and ongoing child support was deferred by this Court and will be addressed as part

of a motion to transfer to a British Columbia Court as provided by s.16 of the Divorce Act. The Court found entitlement to spousal support but no quantum was required to be paid. The Court found the father was entitled to anunequal division of matrimonial assets. The father’s pension was divided equally. The parties divorce issued. The mother’s motion to have the custody hearing transferred to British Columbia is scheduled for a hearing on October 30, 2013 inHalifax.

Keywords: fraud; unequal division; spousal support; arrears; child support; credibility Legislation: Maintenance and Custody Act, R.S.N.S. 1989, c.160 Divorce Act, RSC 1985, c 3 (2nd Supp) Family Relations Act , R.S.B.C. 1996, C. 128 Pension Benefits Division Act (S.C. 1992, c. 46, Sch. II) Matrimonial Property Act, R.S.N.S. 1989 c. 275 Cases Considered: Godin v. Godin, 2010 NSSC 365 Godin v. Godin, 2012 NSCA 54 Clarke v. Clarke (SCC), 1990, 2 S.C.R. 795 D.B.S. v. S.R.G., 2006 SCC 37 Kerr v. Baranow, 2011 SCC 10 Bracklow v. Bracklow, (SCC), [1999] S.C.J. No. 14 Moge v. Moge, (SCC), [1992] S.C.J. No. 107

THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET. IN THE SUPREME COURT OF NOVA SCOTIA Citation: Godin v. Godin, 2013 NSSC 316 Date: 20131024 Docket: 1201-065295 Registry: Halifax Between: Cindy Mae Godin Petitioner and Marc Kenneth Godin Respondent Judge: Associate Chief Justice Lawrence I. O ’ Neil Heard: April 2, 3, 4 and 5, 2013, in Halifax, Nova Scotia (Final written submissions received April 25, 2013) Counsel: Donna D. Franey, Counsel for the Petitioner

LouAnn Chiasson, Q.C., Counsel for the Respondent By the Court : Index: Introductionpara. 1 Family Historypara. 7 Litigation History - MCA Proceedings para. 19 - Divorce Proceedingspara. 23 Issuespara. 29 Credibilitypara. 30 Children's move to British Columbiapara. 42 Child Supportpara. 46 - the youngest childpara. 47 - the middle childpara. 54 - the oldest childpara. 57 Retroactive Child Support claimed by Ms. Godinpara. 60 Conclusion: Child Supportpara. 70 Spousal Supportpara. 73 - retroactivepara. 85 - ongoing spousal supportpara. 91 Barrie Homepara. 98 Dartmouth Homepara. 103 Personal Property/Liabilities - furniturepara. 114 - vehiclespara. 117 - debtspara. 122 Pensionpara. 123

Summarypara. 131 Costspara. 133 Introduction [ 1 ] The mother resides in British Columbia and the father in Halifax. They have three (3) children. The matter was scheduled before me to address inter alia issues of custody, access, child support, spousal support and property division as part of a final hearing of

the parties' divorce. All three of the parties' children reside in British Columbia. [ 2 ] By agreement a Divorce Order issued in May 2013. Corollary relief matters remain to be addressed. [ 3 ] At the commencement of the hearing counsel advised the Court that they were agreeable to delaying the hearing related to custody and access of the children until completion of a parental capacity assessment already ordered in British Columbia. The report is to have a psychological component. Mr. Godin recognizes that given the ages of the children, any hearing on the custody issue only pertains to the youngest child who turned fourteen

(14) March 28. The middle child turned eighteen (18) on September 7th and the oldest is now nineteen (19). [ 4 ] Pursuant to R.59.42(1)(

c) and 4.20(3-4) the Court may sever its consideration of the issues. [ 5 ] The Court agreed to hear evidence on the financial issues as requested and to delay consideration of the parenting issue. [ 6 ] The matter proceeded April 2, 3 and 4, 2013. Oral summation occurred April 5, 2013. Written submissions followed. The final written submission was received April 25, 2013 on behalf of Ms. Godin. The only witnesses to testify were the parties. Family History [ 7 ] The parties met in March of 1993 while they lived in the Halifax region. Mr. Godin was and continues to be a member of the Canadian military.

He joined on October 7, 1987. [ 8 ] The parties' relationship resulted in their first son being born on December 13, 1993. In April 1994 they began to cohabit. They married February 14, 1995. [ 9 ] A second son was born September 7, 1995 and a daughter was born March 28, 1999. The first child has Asperger's syndrome. The second child is autistic. Two children from Ms. Godin's previous marriage also lived with the family. The parties' biological children will be referred to herein as the youngest, middle and oldest in an effort to protect their identity. [ 10 ] In 2000 the family moved to British Columbia.

In 2003 they moved to a military base near Barrie to better access services for the middle child. [ 11 ] In early 2007 Mr. Godin agreed to return to Nova Scotia believing Ms. Godin was terminally ill with cancer. Although their romantic relationship was at an end at that time, Mr. Godin testified he was agreeable to returning to Nova Scotia for Ms. Godin in response to what he believed was her dying request. It was later learned that Ms. Godin did not have cancer. Mr. Godin believes Ms. Godin made up the reports of her illness and imminent death. [ 12 ] The parties separated in 2007.

He says they separated on April 8. She says it was August 8. Mr. Godin was the victim of a number of property offences in 2007. [ 13 ] The first hearing to deal with interim custody and access to the parties' three children was held October 17, 2007 in Nova Scotia. A final hearing was held in June and September 2010, also in Nova Scotia. Mr. Godin was awarded primary care of all three children in 2007 and sole custody in 2010. [ 14 ] In May of 2011, Ms. Godin moved to Prince Rupert, British Columbia to join Bruce MacDonald, a person she became

acquainted with "online". Subsequently, all three children relocated at separate times to British Columbia in contravention of the 2010 order. (For reasons that follow, I conclude the relocation of the children was planned by Ms. Godin.) [ 15 ] The oldest child unilaterally moved to British Columbia after high school graduation in June of 2011 and the middle child moved in September 2011, a day after his sixteenth birthday. [ 16 ] The youngest child moved on May 31, 2012 at the age of thirteen (13).

The oldest child travelled to Nova Scotia on May 30 and returned to Vancouver and then on to Prince Rupert on May 31 with the youngest child. The involvement of the British Columbia police; the British Columbia child protection officials and the Prince Rupert courts followed immediately thereafter. [ 17 ] In response to the relocation of the youngest child, on June 1, 2012 Mr. Godin obtained an order from the Supreme Court of Nova Scotia requiring that the youngest child be detained and returned to his care. Mr. Godin travelled to Prince Rupert to take custody of her.

The Prince Rupert RCMP acted and delivered her to Mr. Godin on June 5, 2012. She refused to accompany Mr. Godin to the aircraft. The local child protection officials became involved after concerns were expressed about the child hurting herself. The child protection authorities concluded a voluntary care agreement with Mr. Godin. Mr. Godin signed the agreement and the child was placed in foster care in Prince Rupert. Court proceedings in Prince Rupert followed. Due to concerns about the mental health of this child the British Columbia Justices stayed the Nova Scotia orders.

However, the Justices declined jurisdiction over the issue of custody of the youngest child and directed that reports on the family be prepared and that the parties return to the Nova Scotia courts to address the issue of custody. (See the decision of Justice Greyell reproduced at tab 18 of Exhibit 15). [ 18 ] The child continued to be in foster care until October, 2012 when she began to reside with the older of her two brothers who also lived in Prince Rupert. She continues to be cared for by him.

As stated this court agreed to defer the custody and access issue until a report on the parents could be completed by a British Columbia psychologist/psychiatrist. That is near completion, if not complete, at the time of delivering this decision. The Court recently received a motion to transfer the custody issue to British Columbia. That motion is scheduled to be considered by me on October 30, 2013. Litigation History - MCA Proceedings [ 19 ] In 2007, Justice Gass considered Ms. Godin's application pursuant to the Maintenance and Custody Act , R.S.N.S. 1989, c.160, hereinafter referred to as ' MCA '.

Justice Gass made an order granting interim custody of and primary care of the three children to Mr. Godin. The order issued in October 2007. Ms. Godin was granted access. [ 20 ] By final order dated November 1, 2010, sole custody of the children was granted to Mr. Godin by Justice Lynch. As a result of the 2010 order, Ms. Godin was not permitted to have overnight access with the children until she completed a psychiatric assessment and the results of the same were considered. The November 2010 order of Justice Lynch was appealed by Ms. Godin.

However, the appeal was abandoned. [ 21 ] Notwithstanding Justice Lynch's order, the oldest child continued to live with Ms. Godin from November 2010 to March 2011. [ 22 ] Subsequently, Ms. Godin was found in contempt of the November 2010 order because the children did not return to Mr. Godin after a visit with Ms. Godin. That finding was overturned by the Nova Scotia Court of Appeal. The respective trial and appeal decisions are reported as Godin v. Godin , 2010 NSSC 365 and Godin v. Godin , 2012 NSCA 54 ; reproduced at tabs 36 and 37 of Volume 2 of Exhibit 16. - Divorce Proceedings [ 23 ] Ms.

Godin filed a Petition for Divorce in Nova Scotia on April 29, 2011. An answer was filed June 3, 2011.

[ 24 ] As stated, in May 2011, Ms. Godin relocated to British Columbia to join Bruce MacDonald, a man she became acquainted with 'online'. Over the following eighteen (18) months all of the children found themselves in British Columbia as well. The circumstances that resulted in the relocation of the children give rise to serious accusations of misconduct by Ms. Godin. Mr. Godin's view is that Ms.

Godin manipulated the children and sought their assistance in having them removed from Nova Scotia, contrary to the Nova Scotia order. [ 25 ] After his youngest child refused to return from Prince Rupert with him on June 5, 2012 Mr. Godin returned to Nova Scotia and made an emergency application as part of the Divorce proceeding. His application was filed July 5, 2012 in Halifax and heard July 27, 2012. Justice Beaton of this court denied Ms. Godin's application to adjourn the matter and issued an order confirming custody of the youngest child with Mr. Godin and directing that Ms.

Godin not have contact with the child. [ 26 ] Ms. Godin also initiated litigation in British Columbia in 2012 to resolve issues of custody, access and child support under Provincial legislation. She filed an emergency application considered in the British Columbia Supreme Court on September 12, 2012, pursuant to the Family Relations Act , R.S.B.C. 1996, c. 128. Copies of the relevant documents from the British Columbia Supreme Court file are reproduced at tabs 38 - 45, Volume 2 of Exhibit 16. [ 27 ] The British Columbia court directed that the issue of custody and access be returned to Nova Scotia.

However, a child's wishes report to determine the wishes of the youngest child was ordered by the Supreme Court of British Columbia on September 7, 2012. The report was received in March 2013. [ 28 ] As referenced earlier, on September 7, 2012 the Nova Scotia order was stayed by Justice Punnett of the British Columbia Supreme Court following an ex parte hearing. [ 29 ] Issues: 1. Credibility. 2. What is the ongoing child support obligation of the parties? What is the obligation, if any, of the parties to pay retroactive child support? 3. Is Ms. Godin entitled to spousal support?

If so, what is the quantum of spousal support payable? When should it begin? Terminate? 4. What are the matrimonial assets and liabilities of the parties? Should unequal division of the parties' matrimonial assets/debts be ordered? 5. Are costs payable by either party? Credibility [ 30 ] The credibility of witnesses is always relevant. Rarely, however, is the Court confronted with the litany of untruths and manufactured evidence as is the case here when the testimony of Ms.

Godin is examined. [ 31 ] Her description of the preparation for and travel to Vancouver from Prince Rupert, in late May 2012 with the older son is a glaring example. She professed to know nothing of her son's plan to travel to Nova Scotia from Prince Rupert the afternoon of May 30

for the sole purpose of meeting the youngest child in Halifax and then returning with her to Vancouver. She would have the Court believe that she was surprised to see her youngest daughter the next day, when the daughter appeared with her son at the Vancouver airport. [ 32 ] She testified that she had travelled to Vancouver to see an eye doctor but later admitted she did not have an appointment. She then described the purported visit to the medical office as a drop in. She then said she dropped in after the children returned from Halifax but did not see anyone.

She could not offer the name of anyone she expected to see. [ 33 ] Ms. Godin prepared an affidavit dated July, 2012, apparently in anticipation of the July 27, 2012 emergency hearing before Justice Beaton in Halifax. The affidavit was not filed however. It appears at tab 3, Volume 1 of Exhibit 15. At paragraph 3 she swears the following: 3. That Prince Rupert is a small community without any large retail stores, and extremely limited shopping. Residents often fly into Vancouver for medical appointments and shopping.

When [the youngest child] arrived in British Columbia on May 31st I was already in Vancouver for a medical appointment and I was to meet [the oldest child] at the airport and accompany him to the recruiting center in New Westminister. Which I did. [The oldest child] was not alone but had [the youngest child] with him. We had an appointment to keep at recruiting so we all traveled to the recruiting office. I had told [the youngest child] she would have to call her father from there. However on arrival at the recruiting center the RCMP contacted me, at which point I gave the phone to [the youngest child]. Mr.

Godin was aware of her location within 30 minutes of her arrival. [ 34 ] Ms. Godin testified that her son travelled to Vancouver with her from Prince Rupert. It is difficult to understand why she would need to meet him at the airport, unless it was upon his return from Halifax. Yet she says she did not know of his plan to go to Halifax. [ 35 ] She explained that her son was travelling to Vancouver to meet a Canadian Forces recruiting officer. She said she visited the recruiting office with him after he returned from Nova Scotia.

When pressed, she testified that there was no appointment and he in fact, did not see anyone. She attempted to explain this difference away. [ 36 ] I am satisfied on a balance of probabilities, that the visit to the recruiting office did not happen and there was no plan for it to happen. I am also satisfied there was no appointment or visit to the eye clinic. [ 37 ] To lie under oath is a serious offence. It is conduct that calls all of the evidence of this witness into doubt. The Court must consider all her evidence very carefully. Her evidence must be treated with care.

It is acknowledged, however, that the Court may accept all, part or none of her evidence. [ 38 ] Ms. Godin is guilty of even more egregious conduct and dishonesty. I am satisfied on a balance of probabilities, that she pretended to be ill beginning in January 2007. I accept Mr. Godin's evidence as to what he was told by her, when he was told and what he did as a consequence of his belief that Ms. Godin was terminally ill. [ 39 ] The description of her charade visited upon Mr.

Godin and the children beginning in early 2007 and involving her pretending to have cancer and to be receiving cancer treatment is indicative of a dishonest person and perhaps more correctly, a very unhealthy person. It is difficult to imagine that self interest alone would account for her having engaged in this elaborate scheme of deception. Given the obvious impact this lie would have on the children, this was an elaborate and sustained act of cruelty visited upon them. [ 40 ] We now know that she did not have cancer in 2007. I am satisfied on a balance of probabilities that the evidence of Mr.

Godin being paragraphs 21- 36 of his affidavit filed March 14, 2013 (see Tab 17, Volume 1 of Exhibit 15) is a true representation of the relevant events surrounding Ms. Godin's conduct around this issue. I reproduce these paragraphs because, by doing so, the context in which Mr. Godin made decisions is more clearly captured:

21. In mid to late January of 2007, Cindy told me, our children and extended family that she had multiple cancers, including brain, breast, and intestinal cancers. Her allegation that she had cancer has been detailed and examined in previous court proceedings. Cindy asked that I request a posting to Shearwater, as she was terminally ill, and having difficulties facing her past, and her cancer, and needed to explore her feelings for her ex-husband Matt. 22. I began to see a counsellor for myself to deal with Cindy's cancer, and her confessions of her lack of feelings for me.

I wanted Cindy to attend counselling as well but she refused. 23. The children and I were devastated by the news of Cindy's "cancer". Particularly, [step-daughter], the oldest child, understood the implications of a terminal diagnosis and was distraught. 24. Cindy shaved her head and took a picture with our youngest daughter [youngest child] which she sent to [step-daughter] on her cell phone. [Step-daughter] was very upset and forwarded the picture to me. 25. As a result of Cindy's request, I did ask for a posting back to Nova Scotia and it was accepted.

We were scheduled to move back to Nova Scotia in the summer of 2007. 26. I continued counselling, as I was torn between, Cindy's betrayal, and her dying. I valued my family structure, and knowing the kids time with their mother was limited with her terminal illness. I chose to respect her wishes over my anger and hurt, for the benefit of the children. 27. In the spring of 2007, Cindy advised me that she needed money to pay for private surgery to remove her cancerous tumours. She told me that she did not want to wait for the surgery in Ontario (which would be covered under the provincial health plan).

She further advised me that while they were removing the tumours, they could also do tummy tuck surgery for her. 28. Cindy also began to take medication that she purchased over the internet. The medication was related to the treatment of cancer. It was in the experimental stage and was being tested on animals. Cindy ordered this medication over the internet and took the medication using the dosage consistent with a large breed dog. I was extremely concerned about Cindy's actions, but did not want to interfere for fear of reprisal from her. 29.

Cindy also advised that she was undergoing chemotherapy and radiation treatments for her cancer. 30. I wanted to do everything possible to help her with her "cancer" treatments and so gave her all the money from my income tax refund ($5,500) and she booked her surgery in Nova Scotia. Cindy was away from Ontario and in Nova Scotia from April 8th until June 6th, 2007. 31. When she returned on June 6th, she was with Matt Heckbert. Mr.

Heckbert filed an affidavit in a previous proceeding filed May 17, 2010 which confirmed that he and Cindy had been intimate as soon as her recommended recovery time had elapsed (in mid 2007). 32. Cindy advised me that despite the surgery in May 2007 that she was terminally ill with brain cancer. 33. Despite all the difficulties, our family continued to struggle forward and we planned our move back to Nova Scotia for the summer of 2007. 34. On transit to our new home in Nova Scotia, Cindy was charged with assaulting me on July 27th, and a Bail Recognizance Order was issued for a period of one year.

We separated for a final time thereafter.

35. In July 2007, I was being promoted, I was posted, our house in Ontario was sold, a house in Nova Scotia was bought. My wife was having an affair, and terminally ill. I did not know how to make it stop. I believed that Cindy was going to die, and I was preparing myself for the grief, and picking up the pieces and moving on, with the kids. 36. Cindy, however, has not had cancer.

Despite her clean bill of health, confirmed in a letter from her hospital in Ontario, she hid the letter and continued to let the children and I think that she was terminally ill until I found the letter hidden in her drawer. [ 41 ] The Court ordered assessments may explain Ms. Godin's conduct and report on the state of her mental health. Children's Move to British Columbia [ 42 ] Ms.

Godin confirmed on cross examination that at the time she moved to British Columbia in May 2011, she and the oldest child had already discussed his move to Prince Rupert which was planned to follow his high school graduation in June 2011. [ 43 ] I am satisfied that prior to moving, she also purchased the airline ticket for the middle child who flew to British Columbia one day after turning 16 in September 2011. The ticket was also purchased in April 2011 when this child was in the care of his mother. Neither child had the resources to purchase these tickets or to make these arrangements without help. Ms.

Godin was motivated to relocate these children; had decided to not comply with the then current custody and child support order and she had the care of the children when the tickets were purchased. [ 44 ] Similarly, the youngest child's move on May 31, 2012 to British Columbia was managed by Ms. Godin. She used her oldest child as the escort for the youngest child. [ 45 ] Ms. Godin did all of the foregoing in the face of a Court order requiring the children to live with Mr. Godin.

Child Support [ 46 ] By order dated November 1, 2010, Justice Lynch, following a final hearing in June and September 2010, ordered inter alia (1) sole custody of the children to Mr. Godin; (2) that Ms. Godin undergo a psychiatric assessment; (3) that Ms. Godin not have overnight access with the three children; (4) that she pay child support of $385 per month; and (5) that no retroactive child support be payable by either party. - the youngest child [ 47 ] Until late May 2012, the youngest child lived with Mr. Godin. She was in Mr.

Godin's primary care pursuant to the interim order of Justice Gass following a hearing on October 17, 2007. Justice Gass did not order child support payable by Ms. Godin (Tab 24, Exhibit 16). [ 48 ] On May 31, 2012 the youngest child travelled to British Columbia from Halifax. Initially she lived with a foster family. However, since October 2012, she has lived with the older of her two brothers in Prince Rupert, pursuant to a Court order. [ 49 ] An order to locate and detain this child issued by this Court on June 1, 2012. The attempted enforcement of this order when Mr.

Godin travelled to British Columbia was unsuccessful on June 5, 2012. [ 50 ] Efforts by Mr. Godin to have her returned to Nova Scotia over the summer of 2012 were unsuccessful because of concerns

raised by the child protection authorities in Prince Rupert that a health care plan must first be put in place in Halifax to address the child's mental health issues. This was not possible, notwithstanding Mr. Godin's efforts to arrange the plan through the IWK hospital in Halifax. [ 51 ] Mr. Godin seeks child support for the period following this child's departure from Nova Scotia because Ms. Godin was subject to an order to pay child support and was party to the plan to remove the child from Nova Scotia. [ 52 ] I am not prepared to order child support for this child to be payable by Ms.

Godin for the period after May 30, 2012. Mr. Godin did not have primary care of the child and was not bearing the costs associated with having primary care. [ 53 ] Mr. Godin was prepared to travel to Prince Rupert to return the child over the summer of 2012 had the child been able to return with him. He did travel to British Columbia in early October 2012 and appeared before Justice Punnett on October 12, 2012. - the middle child [ 54 ] The middle child left Nova Scotia on September 8, 2011. His ticket was purchased on April 30, 2011 while Ms. Godin was still in Nova Scotia.

He turned sixteen (16) the day before he left. It is common ground that the timing of his departure was not a coincidence. He believed, correctly it appears, that after a child reaches the age of 16 the RCMP will not enforce a custody order. [ 55 ] Once in Prince Rupert this child began living with Ms. Godin and Bruce MacDonald. He continues to live with them. [ 56 ] No child support is payable by Ms.

Godin for the period following the middle child's departure from Nova Scotia. - the oldest child [ 57 ] As referenced supra , at all material times while living in Nova Scotia after October, 2007, the oldest child was subject to an order to reside with his father. Ms. Godin was subject to an order to pay child support to Mr. Godin for this period. In 2007, Justice Gass ordered his primary care to be with Mr. Godin. In the fall of 2010, Justice Lynch ordered that he be in the sole care of Mr. Godin.

This child turned 18 in December 2011. [ 58 ] This child finished high school in June 2011 and relocated immediately to Prince Rupert, B.C. to join his mother who had relocated from Halifax months earlier. For all but the period March 2011 to June 2011, this child lived with his mother in Nova Scotia prior to her move to British Columbia. [ 59 ] He has lived independently in British Columbia since moving there in July 2011. I am unclear if he has ever lived with his mother in Prince Rupert. Retroactive Child Support claimed by Ms. Godin [ 60 ] Ms. Godin seeks retroactive child support as follows: (

a) November 2010 - March 2011: for the oldest child whom she says lived with her in Nova Scotia for this period; (

b) September 2011 - today: for the middle child whom she says has lived with her in Prince Rupert for this period;

[61] In her statement of contact information filed April 29, 2011 with her Petition for Divorce, Ms. Godin declared the oldest childto be independent. Given he was not a child of the marriage as defined by s.2(1) of the Divorce Act, the Court has no jurisdiction to orderchild support to be paid by Mr. Godin to Ms. Godin for the care of this child (see Exhibit 15, volume 2 at tab 2 and S.R.G. [2006] S.C.C.37 at paragraph 88). [62] The Supreme Court in D.B.S. v.

S.R.G., 2006 SCC 37 , 2006 S.C.C. 37 addressed the issue of whether a court canmake an order for retroactive child support and in what circumstances it is appropriate to do so. Three situations were described: 1. Awarding retroactive support where there has already been a court order for child support to be paid. (para. 61 - 74) 2. Awarding retroactive support where there has been a previous agreement between the parents. (para. 75 - 79) 3.

Awarding retroactive support where there has not already been a court order or history of payment of child support. (para. 80 - 85) [63] Justice Bastarache then reviewed factors that could curtail the power of judges to make retroactive awards in specificcircumstances. These are: 1. Status of the child. (para. 86 - 90) 2. Federal jurisdiction for original orders. (para. 91 - 99) 3. Reasonable excuse for why support was not sought earlier. (para. 100 - 104) 4. Conduct of the payor parent. (para. 105 - 109) 5. Circumstances of the child. (para. 110 - 113) 6.

Hardship occasioned by a retroactive award. (para. 114 - 116) [64] He also commented on how the amount of a retroactive child support order is to be determined (para. 117) including the dateof retroactivity and the amount or quantum. [65] Justice Bastarache summarized the governing principles as follows: 131. Child support has long been recognized as a crucial obligation that parents owe to their children. Based on this strong foundation,contemporary statutory schemes and jurisprudence have confirmed the legal responsibility of parents to support their children in a waythat is commensurate to their income.

Combined with an evolving child support paradigm that moves away from a need based 132. In the context of retroactive support, this means that a parent will not have fulfilled his/her obligation to his/her children if (s)hedoes not increase child support payments when his/her income increased significantly. Thus, previous enunciations of the payor parent'sobligations may cease to apply as the circumstances that underlay them continue to change.

Once parents are in front of a court withjurisdiction over their dispute, that court will generally have the power to order a retroactive award that enforces the unfulfilledobligations that have accrued over time.

133. In determining whether to make a retroactive award, a court will need to look at all the relevant [page 288] circumstances of thecase in front of it. The payor parent's interest in certainty must be balanced with the need for fairness and for flexibility. In doing so, acourt should consider whether the recipient parent has supplied a reasonable excuse for his/her delay, the conduct of the payor parent,the circumstances of the child, and the hardship the retroactive award might entail. 134.

Once a court decides to make a retroactive award, it should generally make the award retroactive to the date when effective noticewas given to the payor parent. But where the payor parent engaged in blameworthy conduct, the date when circumstances changedmaterially will be the presumptive start date of the award. It will then remain for the court to determine the quantum of the retroactiveaward consistent with the statutory scheme under which it is operating. 135.

The question of retroactive child support awards is a challenging one because it only arises when at least one parent has paidinsufficient attention to the payments his/her child was owed. Courts must strive to resolve such situations in the fairest way possible,with utmost sensitivity to the situation at hand. But there is unfortunately little that can be done to remedy the fact that the child inquestion did not receive the support payments (s)he was due at the time when (s)he was entitled to them.

Thus, while retroactive childsupport awards should be available to help correct these situations when they occur, the true responsibility of parents is to ensure that thesituation never reaches a point when a retroactive award is needed. [66] The situation before the court is not identical to any of the four fact situations considered by Justice Bastarache.

Nevertheless,the principles enunciated and matters he directed courts to consider are a helpful guide when considering whether to order retroactivechild support. [67] The award of a retroactive maintenance award is a discretionary remedy. (Roscoe, J.A. in Conrad v. Rafuse, 2002 NSCA 60,para. 17-20). Judicial discretion was described by Justice Bateman in MacIsaac v. MacIsaac, 1996 NSCA 128 , [1996] N.S.J.No. 185 (N.S.C.A.) at para. 19 and 20. Discretionary decision making within the judicial context confers an authority to decide"according to the rules of reason and justice, not according to private opinion".

There is a burden on Mr. Godin to persuade the court thata retroactive award should not be made to the date of the filing of the application. [68] Ms. Godin first sought child support when she filed her Petition for Divorce on April 29, 2011. This was coincidental with herrelocation to British Columbia. The middle child arrived four months later. [69] No order for the payment of child support to Ms. Godin is made. Any care of the middle child by her since the order of JusticeGass in 2008 is contrary to a Court order. As elaborated upon elsewhere in this decision, Ms.

Godin has persistently undermined theparenting regime put in place by Justice Gass and then Justice Lynch. To order retroactive child support payable would be contrary topublic policy, particularly given that any such award would not confer a benefit on the children or improve their living circumstances. Itwould also be a hardship for Mr. Godin. - Conclusion: Child Support [70] I agree with Mr. Godin's counsel that Ms. Godin's child support obligation which remains outstanding is $2,486.53, calculatedas follows, reflecting an income of $18,960: - owing 8 x $385 - November 2010 to June 2011 = $3,080.00

representing child support for 3 children 3 x $308.06 - July 2011 to September 2011 = $ 924.18 representing child support for middle and youngest child 9 x $165.82 - October 2011 to June 2012 = $1,492.38 representing child support for youngest child $5,496.56 less amount paid - paid Nova Scotia MEP 2012 $1,483.72 British Columbia MEP 2012 $1,415.61 British Columbia MEP 2013 $ 110.70 $3,010.03 [ 71 ] In the spring of 2011, Ms. Godin quit her job and moved to Prince Rupert. Her annualized income is determined to be $18,960 based upon earnings when she quit her job.

This is the income level for purposes of determining her child support obligation over the years, 2011 - 2012. [ 72 ] Given the circumstances of the children no ongoing child support will be payable by either party. This issue can be addressed as part of the hearing on custody of the children. Spousal Support [ 73 ] The principles governing spousal support are well known. [ 74 ] The issue of spousal support has two potential aspects: entitlement and quantum if entitlement is established. [ 75 ]

Section 15.2 (4) (a) (c), (5) & (6) (a) (

d) of the Divorce Act , supra , requires the court to consider the condition, means and circumstances of each spouse and provides that a spousal support order should address four statutory objectives:

15.2(1) Spousal support order A court of competent jurisdiction may, on application by either or both spouses, make an order requiringa spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinksreasonable for the support of the other spouse

(4) Factors In making and order under subsection (1) or an interim order under subsection (2), the court shall take into consideration thecondition, means, needs and other circumstances of each spouse including: (

a) the length of time the spouses cohabited (

b) the functions performed by each spouse during cohabitation; and (

c) any order, agreement or arrangement relating to support of either spouse . . . . .

(6) Objectives of spousal support order An order made under subsection (1) or an interim order under subsection (2) that provides forthe support of a spouse should: (

a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (

b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above anobligation for the support of any child of the marriage; (

c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (

d) in so far as practicable, promote the economic self sufficiency of each spouse within a reasonable period of time. [76] The words of Justice McLaughlin in Bracklow (SCC), [1999] S.C.J. No. 14 at paras. 30 - 31 are on point:

(30) The mutual obligation theory of marriage and divorce, by contrast, posits marriage as a union that creates interdependencies thatcannot be easily unravelled. These interdependencies in turn create expectations and obligations that the law recognizes and enforces ...

(31) The mutual obligation view of marriage also serves certain policy ends and social values. First, it recognizes the reality that whenpeople cohabit over a period of time in a family relationship, their affairs may become intermingled and impossible to disentangle neatly.When this happens, it is not unfair to ask the partners to continue to support each other (although perhaps not indefinitely).

Second, itrecognizes the artificiality of assuming that all separating couples can move cleanly from the mutual support status of marriage to theabsolute independence status of single life, indicating the potential necessity to continue support, even after the marital "break". Finally,it places the primary burden of support for a needy partner who cannot attain post marital self sufficiency on the partners to therelationship, rather than on the state, recognizing the potential injustice of foisting a helpless former partner onto the public assistancerolls. [77] Justice L'Heureux Dube in Moge v.

Moge, (SCC), [1992] S.C.J. No. 107 directed that spousal support muststrive to achieve some equitable sharing upon the dissolution of the marriage. At paragraph 73, she stated: The doctrine of equitable sharing of the economic consequences of marriage or marriage breakdown upon its dissolution which, in myview, the Act promotes, seeks to recognize and account for both the economic disadvantages incurred by the spouse who makes such

sacrifices and the economic advantages conferred upon the other spouse [ 78 ] Nevertheless, in the words of Justice McLachlin in Bracklow : 21. When a marriage breaks down, however, the situation changes. The presumption of mutual support that existed during the marriage no longer applies. Such a presumption would be incompatible with the diverse post marital scenarios that may arise in modern society and the liberty many claim to start their lives anew after marriage breakdown.

This is reflected in the Divorce Act and the provincial support statutes, which require the court to determine issues of support by reference to a variety of objectives and factors. [ 79 ] I am satisfied that entitlement to spousal support has been established. Spousal support does not arise solely by virtue of or as a product of cohabitation and economic disparity between separating partners. [ 80 ] The January 2008 order of Justice Gass (flowing from the hearing before her on October 17, 2007 provided (tab 24, Volume 2 of Exhibit 16): 6.

Marc Godin shall not pay spousal maintenance to Cindy Godin at this time as he has primary care of the children and is responsible for paying significant matrimonial debt. Marc Godin shall continue to make the car payments on the 2007 Ford in the possession of Cindy Godin. [ 81 ] In her final decision dated November 1, 2010, Justice Lynch ordered as follows (tab 27, Volume 2 of Exhibit 16): 14. There is no direction of the Court for either party to pay spousal support at this time.

Future entitlement and any quantum may be addressed at a time in the future after the matrimonial assets and debts have been divided. 15. There shall be no retroactive spousal maintenance ordered. [ 82 ] This is a divorce hearing. Justices Gass and Lynch had applications pursuant to the ' MCA ' before them. [ 83 ] The applicable principles for determining entitlement to spousal support and quantum are essentially the same. [ 84 ] I am satisfied that there is a non compensatory basis for spousal support. The parties had a medium length relationship of thirteen years.

They began cohabitation in April 1994 and separated April 8, 2007. - retroactive [ 85 ] Justice Cromwell in Kerr v. Baranow , 2011 SCC 10 discussed, when retroactive spousal support is appropriate and the considerations relevant to that determination. At paragraph 207 - 212 he stated: [207] While D.B.S. was concerned with child as opposed to spousal support, I agree with the Court of Appeal that similar considerations to those set out in the context of child support are also relevant to deciding the suitability of a “retroactive” award of spousal support.

Specifically, these factors are the needs of the recipient, the conduct of the payor, the reason for the delay in seeking support and any hardship the retroactive award may occasion on the payor spouse. However, in spousal support cases, these factors must be considered and weighed in light of the different legal principles and objectives that underpin spousal as compared with child support. I will mention some of those differences briefly, although certainly not exhaustively.

[208] Spousal support has a different legal foundation than child support. A parent-child relationship is a fiduciary relationship ofpresumed dependency and the obligation of both parents to support the child arises at birth. In that sense, the entitlement to child supportis “automatic” and both parents must put their child’s interests ahead of their own in negotiating and litigating child support.

Childsupport is the right of the child, not of the parent seeking support on the child’s behalf, and the basic amount of child support under theDivorce Act, R.S.C. 1985, c. 3 (2nd Supp.), (as well as many provincial child support statutes) now depends on the income of the payorand not on a highly discretionary balancing of means and needs. These aspects of child support reduce somewhat the strength ofconcerns about lack of notice and lack of diligence in seeking child support. With respect to notice, the payor parent is or should beaware of the obligation to provide support commensurate with his or her income.

As for delay, the right to support is the child’s andtherefore it is the child’s, not the other parent’s position that is prejudiced by lack of diligence on the part of the parent seeking childsupport: see D.B.S., at paras. 36-39, 47-48, 59, 80 and 100-104. In contrast, there is no presumptive entitlement to spousal support and,unlike child support, the spouse is in general not under any legal obligation to look out for the separated spouse’s legal interests. Thus,concerns about notice, delay and misconduct generally carry more weight in relation to claims for spousal support: see, e.g., M.

L.Gordon, “Blame Over: Retroactive Child and Spousal Support in the Post-Guideline Era” (2004-2005), 23 C.F.L.Q. 243, at pp. 281 and291-92. [209] Where, as here, the payor’s complaint is that support could have been sought earlier, but was not, there are two underlyinginterests at stake. The first relates to the certainty of the payor’s legal obligations; the possibility of an order that reaches back into thepast makes it more difficult to plan one’s affairs and a sizeable “retroactive” award for which the payor did not plan may imposefinancial hardship.

The second concerns placing proper incentives on the applicant to proceed with his or her claims promptly (seeD.B.S., at paras. 100-103). [210] Neither of these concerns carries much weight in this case. The order was made effective the date on which the proceedingsseeking relief had been commenced, and there was no interim order for some different amount. Commencement of proceedingsprovided clear notice to the payor that support was being claimed and permitted some planning for the eventuality that it was ordered. There is thus little concern about certainty of the payor’s obligations. Ms.

Kerr diligently pursued her claim to trial and that being thecase, there is little need to provide further incentives for her or others in her position to proceed with more diligence. [211] In D.B.S., Bastarache J. referred to the date of effective notice as the “general rule” and “default option” for the choice of effectivedate of the order (paras. 118 and 121; see also para. 125). The date of the initiation of proceedings for spousal support has beendescribed by the Ontario Court of Appeal as the “usual commencement date”, absent a reason not to make the order effective as of thatdate: MacKinnon v.

MacKinnon (ON CA), (2005), 75 O.R. (3d) 175, at para. 24. While in my view, the decision toorder support for a period before the date of the order should be the product of the exercise of judicial discretion in light of the particularcircumstances, the fact that the order is sought effective from the commencement of proceedings will often be a significant factor in howthe relevant considerations are weighed.

It is important to note that, in D.B.S., all four litigants were requesting that child supportpayments reach back to a period in time preceding their respective applications; such is not the case here. [212] Other relevant considerations noted in D.B.S. include the conduct of the payor, the circumstances of the child (or in the case ofspousal support, the spouse seeking support), and any hardship occasioned by the award. The focus of concern about conduct must be onconduct broadly relevant to the support obligation, for example, concealing assets or failing to make appropriate disclosure: D.B.S., atpara. 106.

Consideration of the circumstances of the spouse seeking support, by analogy to the D.B.S. analysis, will relate to the needs ofthe spouse both at the time the support should have been paid and at present. The comments of Bastarache J. at para. 113 of D.B.S. maybe easily adapted to the situation of the spouse seeking support: “A [spouse] who underwent hardship in the past may be compensatedfor this unfortunate circumstance through a retroactive award.

On the other hand, the argument for retroactive [spousal] support will beless convincing where the [spouse] already enjoyed all the advantages (s)he would have received [from that support]”. As for hardship,there is the risk that a retroactive award will not be fashioned having regard to what the payor can currently afford and may disrupt thepayor’s ability to manage his or her finances.

However, it is also critical to note that this Court in D.B.S. emphasized the need forflexibility and a holistic view of each matter on its own merits; the same flexibility is appropriate when dealing with “retroactive”spousal support. [86] Ms. Godin claims spousal support retroactive to August 8, 2007, the day she claims she separated from Mr. Godin. [87] Justice Lynch ruled that no spousal support would be payable to the date of her decision in December 2010. That order was notappealed. [88] Ms. Godin quit her employment shortly after being ordered to pay child support in 2010. She left Mr.

Godin to reunite withMr. Hectbert. She then embarked upon a chaotic lifestyle that resulted in Mr. Godin carrying all responsibility for the children and the

marital debt. Finally in May 2011 she left for Prince Rupert in pursuit of a relationship with Mr. MacDonald. She has lived with him since that time. She has not disclosed to the court's satisfaction what her financial circumstances have been since that time. [ 89 ] I am satisfied that this is not an appropriate case to order retroactive spousal support. Given the high level of family indebtedness Mr. Godin has been forced to service and the enormous costs that he has been forced to bear as a result of the ongoing misconduct of Ms.

Godin, it would, in my view, be unconscionable to order him to pay retroactive spousal support. He does not have the means to pay retroactive spousal support and Ms. Godin has not fully disclosed her current or past circumstances. Any award of spousal support will therefore take effect on a date following release of this decision. [ 90 ] To be clear, my decision to not order retroactive spousal support is not based on Ms. Godin's misconduct. It is based in part on the enormous financial consequences for Mr.

Godin as a result of that conduct; the additional fact that he alone has been forced to service the parties' debts since separation and Ms. Godin ’ s failure to disclose evidence of her financial circumstances. - ongoing spousal support [ 91 ] I am satisfied that Ms. Godin's current income should be set at $35 - $40,000. This conclusion reflects her hourly rate of $20 - $25.00 per hour for thirty-five (35) - forty (40) hours per week. [ 92 ] Ms.

Godin testified that she was hopeful of achieving near full time hours as a pharmacy technician over the coming years and gaining certification shortly thereafter. [ 93 ] Mr. Godin's income is approximately $73,000. [ 94 ] Quantifying Ms. Godin's level of spousal support is challenging. Ms. Godin is seeking spousal support of $468 per month (see pre-hearing brief on behalf of Ms. Godin). [ 95 ] Ms. Godin's involvement in the business affairs of Mr. Bruce MacDonald was not satisfactorily explained by her. Nor was his support of her satisfactorily explained. Mr.

MacDonald described himself as her partner when he appeared before the British Columbia court in October 2012 (see a copy of his affidavit at tab 4 of Exhibit 1). [ 96 ] Ms. Godin purported to be financially independent of him, notwithstanding that they cohabit. However, she does not equally share their living costs. She is not independent of him. [ 97 ] Her relationship with Mr. MacDonald does not disentitle her to spousal support. It is, however, a factor for the Court to consider when assessing her condition, means and circumstances.

Exhibit 18 (her resume Linkedin) discloses that she sometimes refers to herself as Cindy Godin MacDonald. No ongoing spousal support is ordered. She has not disclosed the full extent of her financial resources, including income. Barrie Home [ 98 ] The sale of the Barrie Home closed on July 31, 2007. Approximately $90,000 was realized from the sale of this home. The parties agree the Barrie home was a matrimonial asset and the equity presumptively equally divisible between the parties.

I am satisfied on a balance of probabilities that of the equity remaining after the payment of disposition costs, only $43,600 is presumptively divisible. This amount was the down payment on the Dartmouth home purchased in the names of both parties on July 30, 2007 (Exhibit 12). The remaining equity was used to retire joint matrimonial debt as testified to by Mr. Godin. [ 99 ] The parties agree that subject to other considerations Ms. Godin is presumptively entitled to half of the equity realized from the sale of the Barrie home, i.e. half of $43,600 = $21,800.

[ 100 ] Ms. Godin argues that since this amount was invested in the Dartmouth home she is entitled to this amount plus any appreciation in the value of the Dartmouth home. If this amount is not her investment in the Dartmouth home then, at a minimum, she argues she is entitled to $21,800 reflecting her interest in the Barrie property. [ 101 ] Mr. Godin makes two arguments in response. Mr. Godin argues that the equity in the Barrie home should be unequally divided because Ms. Godin unreasonably impoverished the matrimonial assets (s.13(a)); the level of debts and liabilities Mr.

Godin has been forced to assume and the circumstances in which they were incurred (s.13(b)) and the needs of a child who has not reached the age of majority (s.13(h)). For ease of reference, I reproduce the text of s.13 of the ‘ MPA ’ : Factors considered on division 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; (

c) a marriage contract or separation agreement between the spouses; (

d) the length of time that the spouses have cohabited with each other during their marriage; (

e) the date and manner of acquisition of the assets; (

f) the effect of the assumption by one spouse of any housekeeping, child care or other domestic responsibilities for the family on the ability of the other spouse to acquire, manage, maintain, operate or improve a business asset; (

g) the contribution by one spouse to the education or career potential of the other spouse; (

h) the needs of a child who has not attained the age of majority; (

i) the contribution made by each spouse to the marriage and to the welfare of the family, including any contribution made as a homemaker or parent; (

j) whether the value of the assets substantially appreciated during the marriage; (

k) the proceeds of an insurance policy, or an award of damages in tort, intended to represent compensation for physical injuries or the cost of future maintenance of the injured spouse; (

l) the value to either spouse of any pension or other benefit which, by reason of the termination of the marriage relationship, that party will lose the chance of acquiring;

(

m) all taxation consequences of the division of matrimonial assets. R.S., c. 275, s. 13; revision corrected. [ 102 ] He argues as a consequence, that her financial interest in the Barrie property should not be viewed as an investment in the Dartmouth property, entitling her to a one half interest in it or any interest at all. Dartmouth Home [ 103 ] A number of outstanding questions relate to the Dartmouth home purchased in 2007: a. Is the Dartmouth home a "matrimonial asset"? If it is a "matrimonial asset" what is the valuation date? b. Is the equity in the Dartmouth home presumptively divisible? c.

What is the significance of Ms. Godin's name on the legal title to the Dartmouth home? [ 104 ] Mr. Godin purchased a home in Dartmouth in 2007. The legal title is registered in the name of both parties. I must decide the interest of both parties in this property. Mr. Godin has occupied the property since it was purchased on July 30, 2007. Ms. Godin has never lived in the property. The children lived there with Mr. Godin for periods of varying duration. [ 105 ] As stated, Ms.

Godin argues that she is presumptively entitled to a one half interest in this property pursuant to the Matrimonial Property Act , R.S.N.S., 1989, c. 275 (the " MPA "). Mr. Godin argues that for this to be correct Ms. Godin must first establish that the house is a "matrimonial home" as defined by s. 3(1) of the " MPA ".

The relevant sections of the " MPA " are s.3(1) and s. 12 : 3(1) In this Act, "matrimonial home" means the dwelling and real property occupied by a person and that persons spouse as their family residence and in which either or both of them have a property interest other than a leasehold interest. . . . . . 12(1) Where (

a) a petition for divorce is filed; (

b) an application is filed for a declaration of nullity; (

c) the spouses have been living separate and apart and there is no reasonable prospect of the resumption of cohabitation; or (

d) one of the spouses has died, either spouse is entitled to apply to the court to have the matrimonial assets divided in equal shares, notwithstanding the ownership of these assets, and the court may order such a division.

I am satisfied the Dartmouth home was never a matrimonial home. [ 106 ] Herein, the significance of the property being registered in both names must be assessed. The Court has authority to determine ownership of property and is not bound by the records of the land registry office when doing so. [ 107 ]

Section 15 of the “ MPA ” provides: 15. On an application for the division of matrimonial assets, the court may order (

a) that the title to any specified property granted by the court to a spouse be transferred to or held in trust for that spouse for such period, or absolutely, as the court may decide; (

b) the partition or sale of any property; (

c) that payment be made out of the proceeds of a sale ordered under clause (

b) to one or both spouses, and the amount thereof; (

d) that any property forming part of the share of either or both spouses be transferred to or held in trust for a child to whom a spouse must provide support; (

e) that either or both spouses give such security, including a charge on property, that the court orders, for the performance of any order made under this Section; (

f) that one spouse pay to the other spouse such amount as is set out in the order for the purpose of providing for the division of the property; and make such other orders and directions as are ancillary thereto. [ 108 ]

Section 16 further provides: Determination of question between spouses 16

(1) Either spouse may apply to the court for the determination of any question between the spouses as to (

a) the ownership or right to possession of any particular property; (

b) whether property is a matrimonial asset or a business asset, except where an application has been made and not determined or an order has been made respecting the property under this Act. Powers of court under subsection (1)

(2) Where an application is made under subsection (1), the court may (

a) make a declaration as to the ownership or right of possession in the property; (

b) make a declaration as to whether the property is a matrimonial asset or a business asset; (

c) where the property has been disposed of, order that a spouse pay compensation for the interest of the other spouse; (

d) order that the property be partitioned or sold; (

e) order that either or both spouses give such security, including a charge on property, that the court orders, for the performance of any order under this Section, and may make such other orders and directions as are ancillary thereto. [ 109 ] Ms. Godin manipulated and deceived Mr. Godin and her family and friends beginning in January 2007 by telling them she had cancer and was terminally ill. Mr. Godin relocated to Nova Scotia to accommodate Ms. Godin's purported dying wishes. I am satisfied that Ms. Godin reunited with her former husband once in Nova Scotia in 2007 and lived with him. I am satisfied that Mr.

Godin only learned of her hoax in late August or early September 2007. He then filed an application for custody of his children. [ 110 ] I am satisfied that April 8, 2007 is the date of separation of the parties. On April 7, 2007 Ms. Godin left Barrie, Ontario and took up residence in Nova Scotia. I am satisfied that she was cohabitating with her former husband, Mr. Hectbert prior to the purchase of the Dartmouth home. [ 111 ] Ms. Godin's name on the title to this property was not meant to convey part ownership of the property to her. At the time this was done she was expected to die in the short term.

Arrangements made by Mr. Godin to purchase this home reflected Ms. Godin's fraud upon him. For the reasons argued by Mr. Godin supra at paragraph 101, it would be unfair and unconscionable to divide the equity in the Dartmouth home equally or to recognize any interest of Ms. Godin in the equity attributable to the sale of the Barrie home. [ 112 ] I order unequal division of this equity in Mr. Godin ’ s favour with Mr. Godin receiving all the equity in the Dartmouth home and for further clarity, sole ownership of funds derived from the sale of the Barrie home. [ 113 ] In

summary, Ms. Godin has no interest in the Dartmouth home. It was never a matrimonial home. The ' MPA ' permits the Court to declare ownership of property. I conclude Mr. Godin is the sole owner of the Dartmouth home notwithstanding the names on the title. Personal Property/Liabilities - furniture [ 114 ] The court is unable to determine the value of the furniture retained by either party. Both parties supplied their estimates. Ms. Godin estimated the value of the personal property (furniture) at tens of thousands of dollars. Ms. Godin valued it at mere thousands. [ 115 ] The court is being invited to pick a number out of the air. It is not prepared to do so.

[ 116 ] The court directs that furniture in the possession of each party will remain so. - vehicles [ 117 ] Regrettable the parties vehicles were damaged by a vandal(

s) shortly after Mr. Godin was given primary care of the children. I accept the circumstances of that vandalism as summarized by Mr. Godin in his affidavit filed March 14,2013 (see tab 17, Volume 1 of Exhibit 15). Paragraphs 66-72 are as follows: 66. On January 24 of 2008, while I was out to dinner with [step daughter], [oldest child], [middle child] and [youngest child], my 1992 Mazda protege suffered two flat tires in the parking lot of the restaurant. 67. [Step-daughter] left NS for Katimavik on the following day.

Overnight on Friday, the 25th of Jan, all eight tires on the two vehicles were slashed in the driveway of my home. Police investigated and were unable to determine who was responsible. 68. On Sunday Feb 3, 2008 when leaving the driveway to go to church, the kids and I discovered the front of the house had been vandalised; "PEDOPHILE" had been painted across the front. RCMP were unable to determine who was responsible. 69. Cindy has admitted to having [oldest child] attend the residence that I was living in to remove my personal computer.

She further admitted to taking all of the stored information from the computer and downloading it. The computer was for my use and was password protected. 70. There was also an incident wherein a nude photo of me was delivered in an envelope with a card to a Walmart employee. [Step daughter] advised that she had [youngest child] deliver the card and the envelope. The investigating officer, Cst. Mark Galloway, however, testified at the hearing in June 2010, that he did not believe that [step-daughter] had done these actions. Cindy has never admitted that she was involved with these incidents. 71.

There was another incident whereby a GPS was put into my vehicle to track my movements in the fall of 2009. Cindy again attempted to lay the blame for this incident on [youngest child] by stating that she had mistakenly left the GPS in my vehicle. 72. While in Nova Scotia Cindy attained kids birth certificates, health cards. She opened shared bank accounts with them. She got them library cards.

She made every attempt to appear on paper, to agencies, that she was their guardian. [ 118 ] I am satisfied that the vehicles had the values shown below at the time of the parties separation: 2007 Ford - equity $3,400 Comment: Mr. Godin was ordered to maintain the payments on this vehicle. He was unable to do so and the vehicle was repossessed. The vehicle was used by Ms. Godin. R.V. - equity $9,033 Comment: It's repossession resulted in a small deficiency. Ford F350 - little equity - 13 years old

Tires on this vehicle were slashed, it had no equity. [ 119 ] In conclusion, the vehicles became liabilities, in the context of the chaotic circumstances Mr. Godin was living, beginning in 2007. Ms. Godin's fraud upon Mr. Godin and his assumption of sole financial responsibility for the family debts and the children resulted in any equity in these vehicles disappearing. [ 120 ] It is not correct to say that because Ms. Godin did not possess the R.V. and the truck F350 Mr. Godin was benefiting from these assets.

He was left with the responsibility to preserve these assets until division of property could be achieved. That was a burden not a benefit for Mr. Godin. [ 121 ] In conclusion, as far as the vehicles 'owned' by the parties is concerned, ultimately there was no equity to divide. They became a liability and Mr. Godin had responsibility to pay for and manage them. Ms. Godin ’ s contribution would have been welcomed by Mr. Godin. - debts [ 122 ] I conclude that Ms. Godin did not cooperate to manage the parties joint debt following separation. I accept the evidence of Mr. Godin on this point. Mr.

Godin described the relevant circumstances as follows at paragraph 149-159 of his affidavit filed March 14, 2013: 149. Commencing in Dec 2009, I had requested (through legal counsel) that we be able to refinance the home so that I may continue to make debts payments, as well as the mortgage. Cindy refused. 150. As a result of the tires being slashed in the motor vehicles and the ages of the vehicles (and their state of repair) I was unable to afford to maintain the vehicles on the road. 151. I also made inquiries of Cindy (through legal counsel) requesting that the RV be sold.

It was a luxury item and an unnecessary liability. Cindy refused. 152. In early 2010, when mortgage payments exceeded 700 every two weeks, I briefly fell behind by two payments. The mortgage company sent letters warning of foreclosure. Cindy's only response was to query me as to where the children would be living so that she could maintain her access. 153. Through legal counsel, Cindy was advised that I was unable to keep up with all expenses without financial assistance from her, without re-financing the home to ease cash flow, to sell the RV, etc.

I requested through legal counsel any financial alternative or proposal from Cindy. Her only response was to refuse re-financing, refuse to sell the RV, and refuse to pay child support. 154. I was unable to keep up with all monthly obligations and by the spring of 2010 could not keep up on the motor vehicle and RV payments. Cindy refused to allow me to re-finance, refused to allow me to sell them and the 2007 Ford Focus motor vehicle was repossessed in early 2010. The RV was repossessed in the spring of 2010. 155. The financial drain of my separation has been devastating.

There have been a number of court proceedings and I have been unable to pay my bills as they fell due. I have extensive legal bills and unpaid debts in collections. I have paid several thousand in travels to British Columbia in an attempt to retrieve [youngest child]. 156. Cindy was ordered to pay child support in accordance with the child support guidelines by Justice Lynch in October 2010, in the amount of $385 per month. The Order was issued November 1, 2010, confirming the payment.

157. Cindy refused to pay child support. She posted a message on Facebook which is attached hereto as Exhibit "E". During crossexamination at the time of the contempt hearing Cindy confirmed that she had send the message attached as Exhibit "E". 158. Since our separation in 2007 and up to October 2010 Cindy did not pay any child support whatsoever. From the time of thedecision of Justice Lynch in October 2010 up to February 2013, Cindy was over $6,500 in arrears of child support.

I received no moneyfrom her to assist with our matrimonial debt and no assistance with disposing of assets in a financially reasonable manner or refinancingour debts. 159. Attached hereto as Exhibit "F" is a copy of my credit report from Equifax I received on March 12, 2013. It provides an update withrespect to current liabilities owing. Pension [123] The parties began to live together in April 1994 and married February 1995. [124] Mr. Godin joined the Canadian military in 1987 and is currently eligible to retire.

He proposes to continue to serve in themilitary. [125] He may only receive the benefit of his pension following retirement. [126] Pensions are matrimonial assets and as such, are presumptively equally divisible unless to do so would be unfair andunconscionable. Our Court of Appeal has held that even pension entitlements earned prior to cohabitation/marriage are equally divisible(Clarke v. Clarke (SCC), 1990, 2 S.C.R. 795). The Pension Benefits Division Act, 1992 S.C. 1992, c. 46, Sch.

IIprovides for the division of pensions from the date of cohabitation. [127] Pursuant to s.13 of the 'MPA', pensions may be divided unequally after considering factors identified in s.13, which factors resultin a conclusion that equal division would be unfair and unconscionable. [128] There are numerous examples of when pre marriage or pre cohabitation pension entitlement has been found to not be divisible. [129] Again, Mr. Godin argues that his pension should be unequally divided because Ms. Godin unreasonably impoverished thematrimonial assets (s.13(a)); the level of debts and liabilities Mr.

Godin has been forced to assume and the circumstances in which theywere incurred (s.13(b)) and the date and manner of acquisition of the pension (s.13(e)) and the needs of a child who had not reached theage of majority (s.13(h)). [130] I am not persuaded that the pension entitlement should not be equally divided. This asset was earned throughout the lifetime ofthis couple together. To the extent that Ms. Godin’s conduct and the other factors identified in s.13 of the ‘MPA’ weigh in favour of anunequal division, they are the basis of the unequal division of the home equity. The pension entitlement of Mr.

Godin earned until theparties separation on April 8, 2007 is therefore equally divisible, including that component earned in the pre-marriage period.

Summary [131] In

summary:

1. The parties were divorced following the commencement of this hearing by a Divorce Order issued April 16, 2013. 2. Ms. Godin owes child support to Mr. Godin in the amount of $5,496.56 - $3,010.03 = $2,486.53. 3. Mr. Godin does not owe retroactive child support to Ms. Godin. 4. The issue of ongoing child support is deferred pending adjudication of the parenting issue and as part of that adjudication. 5. No award of spousal support is made in favour of Ms. Godin. 6. Mr.

Godin is to receive an unequal division of the equity in the Barrie home and this will result in his receiving full entitlement to the equity that flowed from its sale. Ms. Godin has no interest in the Dartmouth home. 7. Mr. Godin’s pension earned to the day of the parties’ separation on April 8, 2007 is equally divisible. 8. The parties are to retain whatever personal property they currently possess. [ 132 ] I retain jurisdiction to address issues raised but not addressed in this decision should there be any. Costs [ 133 ] The issue of costs is reserved for separate written submissions by counsel.

If oral submissions are preferred as an alternative or to supplement written submissions, the court will

schedule the same. [ 134 ] In either case the parties are directed to file their written submissions on costs on or before November 29, 2013. ACJ