SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: Oliver v. Oliver , 2022 NSSC 131 Date: 20220512 Docket: SKD-119159 1204-007147 Registry: Kentville Between: Susan Pearl Oliver Petitioner v. Eugene Carroll Oliver Respondent Judge: The Honourable Justice Jean M.

Dewolfe Heard: January 24 th , 2022, January 25 th , 2022, February 8 th , 2022, February 9 th , 2022 and March 18 th , 2022, in Kentville, Nova Scotia Written Release: May 12, 2022 Counsel: Lynn Connors, Q.C. for the Petitioner, Susan Oliver Hugh Robichaud for the Respondent, Eugene Oliver By the Court: BACKGROUND [ 1 ] Susan and Eugene Oliver married on March 25, 1983. They have two children who are now adults. [ 2 ] Eugene Oliver (“Mr. Oliver”) is a fisherman. In 1989 he incorporated Ryash Enterprises Limited (“Ryash”). He is the sole shareholder of Ryash.

The parties’ son, Ryan Oliver (“Ryan”), works with his father and intends to take over the business. [ 3 ] Susan Oliver (“Ms. Oliver”) was primarily a stay-at-home mother. She worked part-time at a bank for a number of years. She also assisted with the fishing business, although the extent of her contribution is at issue. [ 4 ] Ms. Oliver left the matrimonial home on July 10, 2020. Ms. Oliver filed a Petition for Divorce on August 4, 2020 citing January 9, 2020 as the date of separation. She was unable to serve Mr. Oliver. The Court made an Order for Substituted Service on January 2, 2021. Mr.

Oliver filed an Answer on May 15, 2021 in which he cites July 10, 2020 as the date of separation. Interim Motion – June 2021 [ 5 ] On November 19, 2020, Ms. Oliver applied for interim retroactive and prospective spousal support. She initially sought costs to allow her to obtain appraisals, a business valuation, and income calculations for Mr. Oliver, but later sought costs to compensate her for the funds she had spent to have these reports prepared. [ 6 ] Mr. Oliver retained Ms. Heidi Foshay Kimball in January 2021 and sought an adjournment of the interim hearing.

The interim motion, which was set for March 30, 2021, was adjourned to June 4, 2021 and was eventually heard on June 29, 2021 and June 30, 2021. [ 7 ] In an oral decision rendered July 26, 2021, Justice Keith deemed Mr. Oliver’s income to be $91,000 per year. He ordered $3,194 a month interim spousal support, commencing July 1, 2021, using the “higher” end of the SSAG range. [ 8 ] Justice Keith declined to order retroactive spousal support on the interim motion; he also declined to order costs for the expert reports which Ms.

Oliver had prepared, leaving both issues in the discretion of the trial judge. [ 9 ] Justice Keith ordered $4,000 costs on the interim motion payable to Ms. Oliver, noting that she was successful on the key issue of prospective interim spousal support.

Hearing - January 24 th and 25 th , 2022, February 8 th and 9 th , 2022 and March 18 th , 2022 [ 10 ] The matter was heard by Microsoft Teams with the consent of the parties. [ 11 ] Mr. Oliver had retained new counsel, Mr. Robichaud in September 2021. ISSUES: I. Divorce and Change of Name II. Date of Separation III. Classification and Value of Various Assets 1. Real Property a. Matrimonial Home/Quonset Hut b. Cottage c. Gifted Land i. Hillsburn Property ii. Shore Road Property d. Other Land: Springhill Property and Lequille Property 2. Vehicles and Recreational Vehicles 3. Bank Accounts and Investments a.

Susan Oliver’s US $ Scotiabank Account (Account #***562 86) b. Susan Oliver’s Other Bank Accounts c. Susan Oliver’s CIBC Tax Free Savings Account # 691-**572 d. Eugene Oliver’s CIBC TFSA #691-**574 e. Eugene Oliver’s CIBC “PP” Investment Account, 267- **582 f. Ryash Enterprises Limited’s CIBC “PP” Investment Account, 267- 01587 g. Eugene Oliver’s RBC Personal Account # 5**8361 h. Eugene Oliver’s Scotiabank Personal Account # 0**2082 4. Other a. Life Insurance b. Household contents 5. Susan Oliver’s Post-Separation Debts 6. $25,000 “Cash” IV. S. 18 Contribution to Ryash V.

S. 13 Unequal Division of Matrimonial Assets/Division of other assets VI. Bank Drafts VII. Retroactive Spousal Support VIII. Prospective Spousal Support IX. Costs X. Payment

Summary

XI. Security XII. Orders

Schedule “A” I. DIVORCE AND NAME CHANGE [ 12 ] Both parties acknowledge that they have lived separate and apart for more than one year. [ 13 ] The Court is satisfied that all jurisdictional elements have been proven and grants the divorce on the grounds of a one-year separation as set out in the Divorce Act S.8(1)(2)(a). [ 14 ] The Petitioner, Susan Pearl Oliver was born in Annapolis Royal, Nova Scotia on May 7, 1959. Her name before marriage was Susan Pearl Longmire and is now changed back to Susan Pearl Longmire. II. DATE OF SEPARATION [ 15 ] Ms.

Oliver’s petition cited January 9, 2020 as the date of separation. Ms. Oliver stated that the marriage “ended” in January 2020; however, in paragraph 2 of her Supplemental Affidavit sworn December 17, 2021, (Exhibit 5, Tab 5), she states that Mr. Oliver assaulted her in January 2020, which led to their separation in July 2020. Ms. Oliver left the matrimonial home on July 10, 2020. [ 16 ] Mr. Oliver’s Answer cites July 10, 2020 as the date of separation.

His only reference to a prior separation date is found in his affidavit dated June 14, 2021 (Exhibit 15, Tab 7, paragraph 13), in which he indicates that in May 2020, he did not know Ms. Oliver was planning to leave him. [ 17 ] Given the fact that the parties resided together in the matrimonial home until July 10, 2020, and the lack of evidence to support an earlier separation date, the Court accepts July 10, 2020 as the date of separation. III. CLASSIFICATION OF ASSETS [ 18 ] The parties disagree as to the nature and/or value of a number of assets. [ 19 ] Mr.

Oliver seeks to exclude a number of assets as “business assets”. [ 20 ] Ms. Oliver seeks to exclude a number of assets as “gift/inherited” assets. [ 21 ] S. 4(1) (

a) of the Matrimonial Property Act , R.S.N.S. c. 275 (“the MPA”) defines “matrimonial assets” as follows: 4

(1) In this Act, "matrimonial assets" means the matrimonial home or homes and all other real and personal property acquired by either or both spouses before or during their marriage, with the exception of (

a) gifts, inheritances, trusts or settlements received by one spouse from a person other than the other spouse except to the extent to which they are used for the benefit of both spouses or their children; [ 22 ] “Business assets” are defined in s. 2(

a) of the MPA as follows: (a) "business assets" means real or personal property primarily used or held for or in connection with a commercial, business, investment or other income-producing or profit-producing purpose, but does not include money in an account with a chartered bank, savings office, loan company, credit union, trust company or similar institution where the account is ordinarily used for shelter or transportation or for household, educational, recreational, social or aesthetic purposes; [ 23 ] Even though an asset may have been paid for or owned by a business, it can be a matrimonial asset depending on its use: Pothier v.

Pothier, 2017 NSSC 230 , para. 58 . [ 24 ] The burden of proof is on the party seeking to exclude an asset. [ 25 ] In Pothier , supra , at para 24 , Warner, J. cited with approval the following helpful synopsis with respect to classification of business assets: Pursuant to case law, assets which are denied the presumptive business asset exemption and deemed matrimonial, include, but are not limited to: assets that are not generating an income or profit in an entrepreneurial sense; savings, or investment not working in an entrepreneurial manner; assets used for family purposes; assets acquired by diversion of family monies; assets (i.e. land) held in the hope of gain; assets that are not “working assets”;

assets not working in a commercial, business or investment way for the production of income; and, assets being held or built up for retirement. [26] In a recent decision, Pirie v. Pirie, 2020 NSSC 206, Jesudason, J. succinctly summarized the case law with respect to businessassets: [38] The MPA came into force in 1980. Since then, courts have sometimes struggled as to where to draw the line when distinguishingbetween matrimonial assets (presumptively divisible) and business assets (presumptively exempt from division). The following generalprinciples, however, have emerged: 1.

The burden of proving that an asset is not matrimonial by reason of being a business asset is on the party making that assertion:Volcko, v. Volcko, 2015 NSCA 11, para. 23 (leave to appeal to SCC refused, [2015] S.C.C.A. No. 141); Cashin, 2010 NSCA 51, para 8; 2. The hallmark of business assets is that they have, as their primary purpose, the generation of income in an entrepreneurial sense:Clarke v. Clarke, (SCC), [1990] 2 S.C.R. 795 at p. 814; Volcko, para. 25; 3.

Generally, the only assets that should be classified as business assets are ones that are purposely held or used for the production ofincome or profit. It isn’t enough to say that some gain or benefit may accrue in the future from the asset. Rather, it must be said that theasset is being worked in a commercial, business or investment way for the production of income or profit: Lawrence v. Lawrence,(1981), (NS CA), 47 N.S.R. (2d) 100, [1981] N.S.J. No. 12 (A.D.), para. 24; 4.

A business asset is generally one which is used for relatively immediate gain as opposed to one that is merely held for the purpose offuture security or as a “nest egg” or security for retirement: Hebb v. Hebb, (1991), (NS CA), 103 N.S.R. (2d) 147,1991 CarswellNS 49 (A.D.), para. 17; 5. The parties’ intention is very significant as to whether an asset is a matrimonial or business asset: Hebb, para. 17; 6.

While intention is very significant, one can also consider whether an asset is working or being worked in an entrepreneurial way.Two important indicators of entrepreneurial activity are risk and management activity. There is a distinction between assets that are static(i.e. involve little financial risk and insignificant management) versus those that are financially risky to own, and require attention andmanagement to ensure profitability: J.W.L. v. C.B.M, 2008 NSSC 215, para. 17; and 7.

Generally, an asset is more likely to be considered a business asset if it wasn’t acquired from funds diverted from family uses(Tibbets v. Tibbets, (1992), 1992 NSCA 17 , 119 N.S.R. (2d) 26 (A.D.)), wasn’t primarily intended to be used for the parties’retirement (Hebb), or was an asset held for income as opposed to capital gain (Best v. Best, (1991), (NS CA), 102N.S.R. (2d) 61). 1. Real Property a.

Matrimonial Home/Quonset Hut [27] The matrimonial home and adjacent lot is located at Parker Mountain Road, Parkers Cove, N.S., and identified as PID05309703 and PID 05134762 (both PIDs referred to as the “Matrimonial Home”). [28] The Matrimonial Home is held jointly. It was appraised on July 27, 2021 by Carol Wetmore, CRA, as having a value of$325,000 in total. Ms. Wetmore’s appraisal included a Quonset hut outbuilding on the property. [29] Mr. Oliver testified that the Quonset hut was purchased by Ryash and it is therefore a “business asset”.

As a result, he seeks todeduct $75,000 from the value of the matrimonial home. [30] Ms. Oliver testified that although some Ryash equipment was stored in the Quonset hut, eg. rope and gear, it was mainly usedto store other assets such as a personal tractor, Mr. Oliver’s Mustang vehicle, a speed boat, and snowmobiles. [31] Ryash owned “property and equipment” with a fluctuating but fairly consistent value for the years 2016 to 2021 (Duffettreport, Exhibit 2, page 15). There is no evidence that this entry includes the Quonset hut. There is also no independent evidence as to thevalue of the Quonset hut.

[32] This building is on jointly owned property adjacent to the matrimonial home. As such, the presumption is that the building isjointly owned: Bennett v. Bennett, (NS CA). There is no evidence that this building was “primarily” used inconnection with a business purpose. Mr. Oliver did not address the use of the building in his evidence, but merely said it was paid for bythe business. [33] The Court accepts Ms. Oliver’s uncontroverted evidence that the Quonset hut was mainly used to store family assets.

Therefore,it is not excluded as a business asset and no deduction from the value of the Matrimonial Home is appropriate. [34] The Court finds that the entire value of the Matrimonial Home ($325,000) is a matrimonial asset. [35] Mr. Oliver testified that he does not wish to retain the home at that value. [36] The home is to be sold. In order to facilitate the sale in a fair and cooperative manner, as of June 30, 2022, Ms. Oliver shall bethe sole owner of the Matrimonial Home (PID 05309703 and PID 05134762).

She shall be entitled to list the Matrimonial Home with anagent of her choice and accept any offers at or above $325,000, and convey the matrimonial home without Mr. Oliver’s cooperation orsignature. Mr. Oliver shall vacate the property by June 30, 2022, and shall be responsible for the removal of all of the contents of thehome and outbuildings, failing which Ms. Oliver may do so at Mr. Oliver’s expense. [37] If the home has been damaged since it was appraised, Mr.

Oliver shall be solely responsible for those costs, as well as for allcosts involved in removing him and/or his belongings from the property if necessary, including Ms. Oliver’s legal fees in that regard. Mr.Oliver shall be responsible for taxes and oil adjustments to June 30, 2022. [38] The net proceeds of sale will be divided equally between the parties. b. Cottage – 280 Main Street, Lawrencetown, N.S. [39] Mr. Oliver seeks to retain the cottage, located at 280 Main Street, Lawrencetown, N.S., identified as PID 05206800 and PID05309992 (both PIDs referred to as the “Cottage”). Ms.

Oliver seeks its sale to facilitate her payment on account of the division of assets [40] The Cottage was appraised by Carol Wetmore at a value of $110,000. [41] From Mr. Oliver’s evidence, he appears to only be willing to pay Ms. Oliver from a rollover of his RRSPs. He has notprovided proof of any intention or ability to borrow or otherwise finance Ms. Oliver’s asset share. Therefore, the Cottage represents animportant source of funds. [42] Unless otherwise agreed, the Cottage will be sold and the net proceeds divided equally between the parties. If Mr. Oliver failsto cooperate, Ms.

Oliver shall have sole authority to list and sell the Cottage for an amount of at least $110,000. c. Gifted Land [43] Mr. Oliver and Ms. Oliver both claim that certain lands in their sole respective names are gifts which should be excluded frommatrimonial property division. Mr. Oliver disputes the exclusion of Ms. Oliver’s Hillsburn Property. i. Hillsburn Property [44] In 2006, Ms. Oliver received a parcel of land (55 acres) from her father situated in West Hillsburn, Annapolis County, N.S.identified as PID 05290747 (“Hillsburn Property”). The Hillsburn Property, which is held solely in Ms.

Oliver’s name, was not appraisedand is not developed. It is assessed for tax purposes at $3,600. At trial, Mr. Oliver estimated the land’s value at $100,000 withoutfoundation. [45] Ms. Oliver’s evidence is that she received the Hillsburn Property from her father shortly before his death as an advance on herinheritance. To her knowledge it has not been used by Mr. Oliver or the children since that time. [46] Mr. Oliver testified that 3-4 years ago he had cut a few trees by the road near the Hillsburn Property. He agreed that this wasprobably not even on Ms.

Oliver’s land, but rather on the road right-of-way. [47] Ryan testified that he had hunted on the Hillsburn Property and built a hunting blind on it. He had also “dulsed” on the beach ofthe Hillsburn Property, accessing it from the Bay of Fundy by boat. He admitted he did not have or need his Mother’s permission toengage in either activity because “anyone” can use the beach/brook for dulsing and the property for hunting.

He also testified he had setup hunting blinds on his grandfather’s property next door to the Hillsburn Property, and had hunted on property which his father anduncle own jointly. [48] The Hillsburn Property was clearly a gift from someone other than Mr. Oliver. There is no evidence of use by the parties or thefamily, beyond minimal usage in the nature of public usage for hunting and dulsing without Ms. Oliver’s knowledge or consent.Therefore, the Court finds that the Hillsburn Property is not a matrimonial asset. ii.

Shore Road Property [49] The property located at Shore Road, Parkers Cove, Annapolis County, N.S., identified as PID 05130927 (“Shore RoadProperty”), was a gift from Mr. Oliver’s parents to Mr. Oliver and his brother Clayton Oliver in 2009. It is undeveloped and has not beenappraised. The tax assessed value is $4,500. Ms. Oliver accepts that this parcel of land is not a matrimonial asset. d. Small parcels of land – Springhill Property and Lequille Property [50] The parties jointly own one parcel of undeveloped land located on Virginia Road, West Springhill, N.S., identified as PID

05274758 (“Springhill Property”). Mr. Oliver owns one parcel of undeveloped land located at No. 8 Highway, Lequille, Annapolis County, N.S., identified as PID 05106513 (“Lequille Property”). [ 51 ] The parties agree that the Springhill Property and the Lequille Property are matrimonial assets and will be sold, with the net proceeds divided equally between the parties. [ 52 ] These properties shall be listed for sale forthwith by Ms. Oliver with an Agent of her choice at a recommended sale price in her discretion. Mr. Oliver’s signature shall not be required to list or convey the properties. 2.

Vehicles [ 53 ] In her Statement of Property (Exhibit 5, Tab 9), Ms. Oliver lists a number of vehicles which she believes are “matrimonial” in nature. Mr. Oliver considers several of the vehicles to be “business” assets. [ 54 ] An Insurance Certificate dated May 31, 2020 lists seven vehicles which were owned by “Eugene Oliver; Susan Oliver; Ryash Enterprises Limited”: • 2014 VW Passat in possession of Ms. Oliver, which is agreed to be matrimonial. Ms. Oliver estimates the value of this vehicle as of October 2021 at $7,350. Mr. Oliver agrees with this value. • 2005 Ford Mustang in Mr.

Oliver’s possession which is agreed to be matrimonial. Ms. Oliver estimates the value at $11,981. Mr. Oliver agrees with this value. • 2015 Sanibel Trailer purchased new in 2015 for approximately $75,000 plus HST. Mr. Oliver estimates it is worth $25,000. Ms. Oliver estimates it is worth $46,000. The parties have agreed to sell this asset. It is held in Mr. Oliver’s name but is a matrimonial asset. The vast discrepancy between the parties’ respective estimated values for the Sanibel travel trailer is concerning. The Court orders that this asset is hereby transferred to Ms.

Oliver’s ownership for the purposes of sale. Upon sale, the proceeds will be divided equally after all transfer costs, repair costs and advertising/sale costs are deducted, including legal fees. Mr. Oliver shall forthwith physically transfer the Sanibel trailer to Ms. Oliver. His signature shall not be required to legally effect the transfer or sale. • 2019 Kawasaki 4 x 4. Mr. Oliver testified that he gave this to Ryan post separation. Ms. Oliver estimated the value to be $14,500; Mr. Oliver did not contest this value.

Gifts post separation do not change the nature of an asset which was a matrimonial asset as of the date of separation. • 3 Trucks: 2019 Ford F250 4WD (“2019 F250”) 2019 Ford F150 4WD (“2019 F150”) 2008 Sierra 1500 4WD (“2008 Sierra”) [ 55 ] Mr. Oliver did not provide evidence as to Ryash’s ownership of any specific vehicles (eg. certificates of registrations). Mr. Oliver bears the burden of providing evidence to permit the exclusion of these vehicles from the division of matrimonial assets. [ 56 ] In Mr. Duffett’s report (Exhibit 2,

Schedule 4, page 19), he breaks out “vehicles” from other property and equipment, and identifies the value for “vehicles” at $7,592. No individual vehicles are identified. [ 57 ] The CCA

schedule for Ryash for the fiscal year ending July 30, 2021 identifies a “2013 Ford”; “2015 F-Series Ford Truck”; and a “2019 Ford truck” as the Company’s motor vehicles (2021 Corporate Tax Return, Exhibit 7). [ 58 ] The Court accepts Mr. Oliver’s evidence that the 2019 F250 is a business vehicle owned by Ryash, and used primarily for business purposes. It is a big, uncomfortable vehicle which is used for hauling gear, etc. [ 59 ] The Court does not accept the exclusion of the 2019 F150 truck as there is no evidence that it was primarily used for business purposes. Mr.

Oliver testified that he gave this vehicle to Ryan after separation. This is irrelevant to the classification of the asset. The Court finds this vehicle to be a matrimonial asset. [ 60 ] Mr. Oliver’s evidence was that he regularly drives the 2008 Sierra for both business and personal use. He did not address the extent to which this vehicle is used for business purposes. Therefore, the Court finds the 2008 Sierra to be a matrimonial asset. [ 61 ] Ms. Oliver’s estimates of truck values were based on “black book” values and/or advertised sales. Mr.

Oliver has not had the vehicles appraised, despite having ample opportunity to do so. He did not even provide estimates of value. The Court therefore accepts the values proposed by Ms. Oliver. [ 62 ]

Summary of findings re Vehicles: Vehicle Classification Possession or Registered Owner Value/Disposition 2014 VW Passat Matrimonial Ms. Oliver $7,350 2005 Ford Mustang Matrimonial Mr. Oliver $11,981 2015 Sanibel Trailer Matrimonial Mr. Oliver Disputed - To be Sold 2019 Kawasaki 4 x4 Matrimonial Mr. Oliver (** at separation) $14,500 2019 F250 Ford Business Ryash Excluded

2019 F150 Ford Matrimonial Mr. Oliver (** atseparation) $43,500 2008 GMC Sierra Matrimonial Mr. Oliver $3,760 Other Recreational Vehicles – Equipment [63] Ms. Oliver alleges that Mr. Oliver retained a 2012 snowmobile and trailer, a tractor with a backhoe, a forklift, snowblower andwood splitter attachments, and a “Boston Whaler”. No appraisals or estimates as to the values of these respective assets were provided.Therefore, the only option is for the Court to order that Mr. Oliver appraise these items and pay Ms. Oliver half of their value, by June30, 2022; failing which, he is to pay Ms.

Oliver $5,000 on June 30, 2022. 3. Bank Accounts/Investments a. Ms. Oliver’s US $ Scotiabank Bank (Account #***562 86) [64] Ms. Oliver’s uncontroverted evidence is that the funds in this account were received from her father’s estate. She used some ofthe funds to pay for family holidays to the United States. The remaining funds are inherited and have not been used for family purposes.Therefore, pursuant to s. 4(1)(

a) of the MPA (above) they are not matrimonial assets. b. Ms. Oliver’s Bank Accounts: Scotiabank Power Chequing Account (Account #***925 89); Royal Bank of Canada PDA (Account#***5549); Scotiabank Money Master Account (Account #***704 29); RBC Personal Savings Account (Account # ***4284) [65] Ms. Oliver identifies these accounts as “inherited or post-separation”. This was not challenged by Mr. Oliver and they aretherefore excluded from division. [66] Passive income earning assets are to be valued at the time of trial or disposal: Simmons v. Simmons, (NSSF). c. Ms.

Oliver’s CIBC Tax Free Savings Account # 691-**572 (“Ms. Oliver’s CIBC TFSA”) [67] At the time of separation, Ms. Oliver had approximately $26,095.61 in her CIBC TFSA account (balance as of April 30, 2020as noted on Ms. Oliver’s Amended Statement of Property dated July 25, 2020). Ms. Oliver’s CIBC TFSA increased in value to$33,035.09 by March 31, 2021 (Exhibit 5, Tab 16, page 373 ). [68] Since separation, Ms. Oliver has had to use these funds to live on and fund her litigation. However, they were a matrimonialasset at the time of separation and must be included. d. Mr.

Oliver’s CIBC Tax Free Savings Account # 691-**574 (“Mr. Oliver’s CIBC TFSA”) [69] On June 30, 2020, Mr. Oliver’s CIBC TFSA had a balance of $106,767.84 (Exhibit 17, Tab 2, Page 4). [70] This increased to $124,765.76 by February 26, 2021 (Exhibit 17, Tab 2, Page 13). [71] Statements at Exhibit 17, Tab 3, Pages 24-27 show a declining balance in Mr. Oliver’s CIBC TFSA: • March 31, 2021 - $96,267.01 • April 30, 2021 - $42,587.00 • May 31, 2021, $22,501.55 • June 30, 2021, $2,446.62 [72] Mr.

Oliver’s CIBC TFSA statement for the period July 1 to July 31, 2021, shows a balance of $2,455.53 on July 30, 2021 and$125,000 in withdrawals for the 2021 year to date (Exhibit 17, Tab 2, page 14). [73] Mr. Oliver testified that he withdrew $125,000 from his CIBC TFSA to assist Ryash with boat repairs. His counsel took theposition that this TFSA was collapsed prior to separation. However, clearly the TFSA existed as of July 10, 2020 and the funds werewithdrawn approximately one year later.

The TFSA grew from the date of separation without further deposits. $125,000 was withdrawnbetween March 2021 and June 30, 2021, leaving $2,466.62 in the TFSA on June 30, 2021 for a total value of $127,466.62. [74] The Court finds that Mr. Oliver’s CIBC TFSA was a matrimonial asset with a value of approximately $127,466 when most of itwas withdrawn by Mr. Oliver in 2021. e. Mr. Oliver’s Personal CIBC Investment Account# 267- **582 (“Mr. Oliver’s PP Account”) [75] Ms. Oliver seeks to have the August 2019 value of Mr. Oliver’s PP Account included as matrimonial asset ($93,367.90). [76] Mr.

Oliver, using a separation date of July 2020, takes the position that this asset did not exist at the time of separation. [77] The Court has determined that the date of separation is July 10, 2020. [78] On January 10, 2020, $109,600 was held in Mr. Oliver’s PP Account.

[ 79 ] On February 28, 2020, Mr. Oliver transferred $21,480 from his PP Account to his CIBC TFSA and contributed $8,900 to his CIBC RRSP. In April 2020, Mr. Oliver also contributed $3,884.65 to his CIBC RRSP. These amounts are therefore otherwise accounted for in the division of matrimonial assets. [ 80 ] On March 6, 2020, Mr. Oliver wrote himself a $75,000 cheque from his PP Account (Exhibit 17, Tab 5, page 33), which was deposited into his RBC personal account # 5**8351 (Exhibit 18). [ 81 ] Mr. Oliver withdrew $40,000 cash in February 2020 and March 2020 from this RBC personal account.

There is no evidence as to how Mr. Oliver used these funds. As this occurred pre-separation, these funds are not matrimonial assets. [ 82 ] On June 25, 2020, very shortly before separation, Mr. Oliver wrote a cheque for $30,000 on this RBC personal account, payable to Ryash Enterprises Limited.

This appears to have been deposited to Ryash’s Scotiabank account # 60103 0**126 (Exhibit 18 and Exhibit 17, Tab 8, page 64). [ 83 ] The balance of the RBC Personal Account on July 6, 2020 ($30,350) is included in the matrimonial division. [ 84 ] The Court must therefore determine if the $30,000 withdrawn on June 25, 2020 and deposited into Ryash’s Scotiabank business account should be considered a matrimonial or a business asset. [ 85 ] Mr. Oliver’s evidence is that he had to inject personal funds into Ryash to fund electrical repairs to the boat. There is no evidence that Mr.

Oliver had ever used personal investments for Ryash expenses in the recent past. Mr. Duffett’s testimony was that Ryash was, and is, well capitalized. Ryash’s financial statements for the year ending July 30, 2019 show $90,866 “cash” and no debt except for a small truck loan. As such, the $30,000 provided by Mr.

Oliver to Ryash does not appear to be a necessary capital infusion. [ 86 ] Also, a review of Ryash’s financial statements for 2019, 2020 and 2021 shows similar levels of “repairs-motor vessels” for all years. [ 87 ] The Court finds that the $30,000 funds provided to Ryash on June 25, 2020 very shortly before separation were not “working in an entrepreneurial manner”, and were acquired by “diversion of family monies”. The $30,000 is therefore a matrimonial asset. [ 88 ] On his 2020 personal income tax return, Mr.

Oliver reported a taxable capital gain of $21,542, (50% of the actual capital gain), presumably as a result of cashing in his personal PP Account. In her submissions, Counsel for Ms. Oliver incorrectly deducted the full amount of the taxable capital gains from the full value of Mr. Oliver’s PP Account. Only a portion of that account’s proceeds is included in the division of assets. While there may be some capital gains tax accruing as a result of Mr.

Oliver’s actions with regards to his PP Account in 2020, the Court has not been provided with calculations as to that amount, and therefore it has not made any such deduction. f. Ryash Enterprises Limited’s CIBC Business Investment Account, 267- **587 (“Ryash PP Account”) [ 89 ] On December 31, 2019, the Ryash PP Account had a balance of $109,789.68, comprised of $97,320.42 in Equities and $12,469.26 in “cash and equivalents”. [ 90 ] By January 31, 2020, the value of the account was $117,650.64. [ 91 ] On February 10, 2020, Mr.

Oliver issued a cheque in the amount of $117,360 from the Ryash PP Account to Ryash Enterprises Ltd. with the notation “Account Liquidation” (Exhibit 17, Tab 5, page 32). $117, 360 was deposited to Ryash’s Scotiabank account # 60103 0**126 on February 10, 2020 (Exhibit 17, Tab 8, page 60]. [ 92 ] The Ryash PP account and Ryash Scotiabank account balances are included in the Financial Statements of Ryash, and are considered in Mr. Duffett’s Business Valuation of Ryash. Ms. Oliver has not disputed Mr. Oliver’s position that this account and its proceeds were business assets. g. Mr.

Oliver’s RBC Personal Account # 5**8351 [ 93 ] Mr. Oliver had $30,350 in this account at the time of separation (Exhibit 18, page 12). This is a matrimonial asset. h. Mr. Oliver’s Scotiabank Personal Account #60103 0**20 82 [ 94 ] Mr. Oliver had $24,831 in this account at the date of separation (Exhibit 17, Tab 6, page 40). This is a matrimonial asset. 4. Other Assets a. Life Insurance [ 95 ] Mr. Oliver has a whole life insurance policy with a cash surrender value of $157,286. The parties accept that tax consequences on the cashing in of this policy would net $78,140 after tax. This is a matrimonial asset. b.

Household Contents [ 96 ] Ms. Oliver alleges that Mr. Oliver retained most of the household consents. However, no appraisals were conducted, and no estimated values were presented by either party. Ms. Oliver presented invoices and receipts for over $11,000 worth of living room furniture purchased in 2013. She testified that Mr. Oliver prevented her from removing any significant amount of household contents. The Court accepts her evidence which accords with the photos taken by Carol Wetmore when she appraised the matrimonial home.

They show a fully furnished house including what appears to be the living room furniture purchased in 2013. [ 97 ] The Court estimates a nominal value of $5,000 as an equalization payment on account of the contents retained by Mr. Oliver in

excess of the items removed by Ms. Oliver. 5. Ms. Oliver’s debts post-separation [ 98 ] Ms. Oliver incurred significant debt and cashed in investments to live on after separation and to fund litigation. She seeks to deduct the balance of two lines of credit from the division of matrimonial property. [ 99 ] These debts are not matrimonial debts. Ms. Oliver can be compensated by the Court’s award of retroactive spousal support, and may seek further compensation in the form of costs. 6. $25,000 “Cash” [ 100 ] In his May 28, 2021 affidavit, Mr. Oliver alleged that Ashley Oliver and/or Ms.

Oliver took $25,000 cash from the basement of the matrimonial home on July 10, 2020. [ 101 ] This allegation was not included in Mr. Oliver’s initial affidavit on the interim spousal support motion. It was also not disclosed in Mr. Oliver’s Statement of Property. [ 102 ] Ms. Oliver denies taking any cash from the matrimonial home. Ashley Oliver, the parties’ daughter, helped her mother move out of the matrimonial home on July 10, 2020. Ashley Oliver denies removing any cash from the home and was not aware that her Mother removed any cash. Ms. Oliver testified that Mr.

Oliver’s office was usually locked. [ 103 ] Ms. Oliver testified that Mr. Oliver called her repeatedly asking her to return $20,000 after she moved out. Then, the following week, he advised her that he had gone through his notes, and he had actually redeposited the cash in the Bank in $5000 increments. Ashley Oliver also testified that her Father told her he had remembered what he had done with the money. [ 104 ] The Court accepts Ms. Oliver and Ashley Oliver’s evidence that no cash was removed from the matrimonial home on July 10, 2020. The Court does not accept Mr.

Oliver’s self-serving testimony in this regard. The Court notes that Mr. Oliver changed his story as to the amount allegedly removed by Ms. Oliver, and that he did not disclose the allegation initially. [ 105 ] Mr. Oliver’s bank records, as well as his testimony, confirm his practice of withdrawing significant cash from various accounts and moving it between accounts. Mr. Oliver had hidden cash in the home in the past to protect himself from potential creditors. Ms. Oliver testified that she had helped him remove cash from banks in 2019 when he was concerned that accounts might be frozen.

In answering questions regarding withdrawals and deposits of cash from/to various accounts Mr. Oliver was unclear as to amounts. Therefore it is reasonable to conclude that Mr. Oliver had forgotten that he had redeposited the money. [ 106 ] The Court finds that Ms. Oliver did not remove or have access to $25,000 cash from the matrimonial home. IV. CONTRIBUTION TO RYASH – S. 18 MPA [ 107 ] Mr. Oliver is a fisherman. He started fishing with his father at the age of nine or ten. He is the sole shareholder of Ryash. Ryash owns a wooden boat, fishing licenses and scallop quota, which are “business assets”. [ 108 ] Ms.

Oliver seeks a 50% interest in Ryash on account of her contributions to the business. Mr. Oliver argues that Ms. Oliver was paid for her contributions to Ryash. He is not prepared to provide her with any share of the business. Law [ 109 ] In Pirie , supra, Jesudason summarizes s. 18 claims (at para. 47-48): [47]

Section 18 of the MPA allows me to award an amount to be paid as compensation or a share of the interest in a business asset where the claiming spouse “has contributed work, money or money worth in respect of the acquisition, management, maintenance, ( sic ) operation or improvement of a business asset of the other spouse”. [48]

Section 18 of the MPA deals with direct contributions to a business asset. Indirect contributions shouldn’t be considered under this

section but can be considered under s. 13 of the MPA: Young v. Young, 2003 NSCA 63 and Ryan v. Ryan, 2010 NSCA 2 . Evidence Harold Duffett [ 110 ] Ms. Oliver hired Harold Duffett, MBA, CPA, CA, CBV to value Ryash. He was qualified as an expert in the field of financial and quantitative analysis with a speciality in business valuation. Mr. Duffett prepared a “Calculation” opinion as to the “en bloc” fair market value of the Ryash business as of April 28, 2021. This was updated as of July 31, 2021. Mr. Duffett valued Ryash at between $1,672,000 and $1,848,000. Counsel for Ms.

Oliver proposes that the Court use the mid-point of this range, i.e. $1,760,000 . Counsel for Mr. Oliver has not objected to this amount. [ 111 ] Mr. Duffett noted that Ryash had (at the end of July 2021) “lots” of working capital, i.e. $223,000. He noted as well that except for a truck loan ($9,654) the Company had no debt. [ 112 ] Mr. Duffett testified that with intergenerational transfers of fishing businesses a certain amount is usually paid from a child to

fund the parents’ retirement, although this is rarely full market value. Eugene Oliver – Ryan Oliver [ 113 ] Mr. Oliver claims that it is his intention to “leave” Ryash to Ryan. Attached to his January 5, 2022 affidavit, Mr. Oliver provided the Court with a hand written document signed by Mr. Oliver and Ryan which purported to be an Agreement to transfer Ryash to Ryan to “eventually own or and purchase”. The document is dated “Dec. 2019”, “Jan. 01/20” and “Jan.26/20” in three separate spots, and speaks of the transfer happening when Mr. Oliver dies. No consideration is paid and the signatures are not witnessed.

There is no purchase price identified. [ 114 ] Neither Mr. Oliver nor Ryan could provide details as to the agreement. Ryan testified that he believes he will get the business for free. Neither Ryan nor Mr. Oliver believes that Ms. Oliver is entitled to any share of the business. [ 115 ] Mr. Oliver testified that his parents assisted him in getting started in the fishery. He wants to do the same for his son. [ 116 ] Mr. Oliver denied that Ms.

Oliver had signing authority for Ryash at the Bank, or that Ryash had a “ledger”. [ 117 ] Ryan testified that he has fished with his father since he left school as a teenager. Six years ago, he became the captain of the Ryash vessel, “Ryan Royale”. Susan Oliver [ 118 ] Ms. Oliver testified that after finishing high school, she attended but did not complete her course at a business college. She then worked for several years as a dental assistant and medical assistant without any formal training. She left her employment when she became pregnant with Ryan and became a stay at home parent.

Ryan was diagnosed with ADHD at age 3, and this necessitated many medical and educational appointments, for which Ms. Oliver was solely responsible. In addition, their daughter Ashley was heavily involved in extracurricular activities, for which Ms. Oliver was also solely responsible. [ 119 ] Ms. Oliver also worked as a part time teller at the Bank of Nova Scotia for 11-12 years. [ 120 ] Ms. Oliver testified that early in their marriage, Mr. Oliver bought a boat and scallop license with assistance from the Fisheries Loan Board and his parents. He also brought a groundfish license with his parents’ assistance.

When he built the Ryan Royale in 1984, his parents had a half interest. [ 121 ] Ms. Oliver related that she and Mr. Oliver paid out his parents’ interest in the boat and the fishing license over time. They paid $2,500 a month to Mr. Oliver’s mother and $1,500 a month to his father over a number of years. [ 122 ] In 1989, Ryash was incorporated. By 1996 the parties had paid off their home and Mr. Oliver’s parents. [ 123 ] Mr. Oliver’s mother kept the books for the “Ryan Royale” initially, and gradually Ms. Oliver took over that responsibility. [ 124 ] Ms.

Oliver also assisted her parents with bookkeeping in relation to her father’s fishing business. [ 125 ] Ms. Oliver described her duties for Ryash as follows: • When Mr. Oliver came in from fishing, he calculated what was owed to the crew, the boat, and the captain. Ms. Oliver would calculate deductions for each crew member. • Ms. Oliver prepared the cheques to pay the crew, and to pay suppliers and government remittances.

She then tallied what was left in the business bank account. • From the boat’s share of the settlement cheque, she would pay for fuel, groceries for the boat, maintenance, and equipment. • She prepared all records of employment. [ 126 ] Ms. Oliver was able to provide details as to all these duties. She described paying some bills in person, some by mail, and some at the Bank. [ 127 ] Ms. Oliver received calls and passed on messages while Mr. Oliver was at sea. She dealt with the Company’s accountant and answered questions about the books. While Mr.

Oliver was at sea, she sometimes moved vehicles from the wharf from which they departed to the wharf at which they would land. [ 128 ] Ms. Oliver received $1,000 a month from Ryash for her work for a number of years. Mr. Oliver received a captain’s share and a crew share. All of their respective pay was deposited into their joint account. [ 129 ] In approximately 2008, Ms. Oliver stopped performing most of the accounting functions and was taken off the Ryash payroll. She indicated this was as a result of a disagreement with Mr. Oliver. Most of the bookkeeping work then transferred to the company accountant.

However, she still took deposits to the Bank, moved vehicles, took messages, and mailed letters and bills. She continued to prepare records of employment. [ 130 ] Ms. Oliver testified that she had signing authority for Ryash. She provided evidence that she had signing authority for Ryash at Scotiabank in 2008. Mr. Oliver did not provide evidence that she was ever removed as having signing authority.

[ 131 ] Ms. Oliver also provided evidence that she was a Director of Ryash in 2009 (Exhibit 12, Tab A to January 17, 2022 Affidavit ). No evidence was provided to show that this had ever changed. Ashley Oliver [ 132 ] Ashley Oliver is the 33-year-old daughter of the parties. She provided three affidavits, testified and was cross-examined. [ 133 ] Ashley Oliver recalled that her Mom took care of her and her brother during the week and that her father was often gone fishing except on weekends.

In particular, she remembers spending her summers at the family cottage with her Mom and brother, and her Dad would join them Friday nights until Saturday. [ 134 ] Ashley Oliver recalled her mother taking a big black ledger, a white chequebook, and a green payroll book with her when they went to the cottage. [ 135 ] She also recalled that her mother performed the following duties: • Her mother prepared cheques for the crew at the cottage, and they would be left in the garage at the matrimonial home for the crew to pick up. • When her Dad came home from fishing, she remembers her Mom preparing cheques for the crew members. • She often accompanied her Mom when she went to the bank to make deposits and to the accountant’s office and to run other errands. • Her Mom would move vehicles around “the French shore” as needed for Mr.

Oliver. Krista Kennedy [ 136 ] Krista Kennedy is Ms. Oliver’s cousin. She worked at Scotiabank, Annapolis Royal between 1986 and 2012 as a teller, account clerk and business teller. She dealt with Ms. Oliver on Ryash business starting approximately 30 years ago before Ms. Oliver started working at the Branch with her. She recalled Ms. Oliver coming into the Branch when the boat “settled” after a fishing trip. She would deposit the settlement cheque, pay Ryash bills (West Nova, VISA, phone) and remittances (Receiver General and Workers Compensation) and deposit wage cheques into their joint account. Ms.

Oliver handwrote these cheques; Ms. Kennedy knew Ms. Oliver’s handwriting. Settlements sometimes occurred more than once per month. [ 137 ] Ms. Kennedy said she talked Ms. Oliver into applying to work at the Bank in 2001 or 2002. When Ms. Oliver worked at Scotiabank, Ms. Kennedy recalled Ms. Oliver doing Ryash business at the counter outside her work hours (usually lunch hour). She believes Ms. Oliver signed some cheques as did Mr. Oliver, but she definitely recalls that Ms. Oliver had written them out. She testified that Ms. Oliver had signing authority for Ryash. She also recalled Ms.

Oliver switching vehicles while Mr. Oliver was fishing between Meteghan and Weymouth. Donald Dexter [ 138 ] Donald Dexter was an accountant with Woodman Melanson, which was bought by Grant Thornton in 2005. He was the accountant for Ryash from the early 1990s to 2017. He indicated that until 2005, Ms. Oliver did most of the bookkeeping, which he would review. This lessened after the Company began to use Simply Accounting in the early 2000s. He testified that if questions came up, he would call Ms. Oliver, she would check with Mr. Oliver and call him back later with an answer. [ 139 ] Ms.

Oliver’s bookkeeping work involved preparing a journal with 25-30 columns, and reconciling cancelled cheques, bank statements, and settlements from fish plants. He would prepare HST returns quarterly from this information. He believes Ms. Oliver also reviewed payroll and created annual T4s. Michelle Francis-Jones [ 140 ] Michelle Francis-Jones is the small business and financial advisor at Scotiabank Digby. She worked at the Annapolis Royal branch from 2000-2015 as a teller and financial advisor. She knows Ms. Oliver through work as well as in her capacity as a representative of Ryash. She has waited on Ms.

Oliver as a teller and recalls her depositing cheques (mainly from fish buyers) to the Ryash corporate account and paying bills for Ryash at the counter. She recalled Ms. Oliver making vehicle, power bill, and visa payments, as well as Receiver General and Workers Compensation remittances. She recalled that Ms. Oliver wrote out the cheques by hand (she had perfect penmanship), she was well organized, and prepared prior to coming to the counter. Ms. Oliver did Ryash business outside her working hours when she worked at the Branch. [ 141 ] Ms. Francis- Jones’ recollection was that Ms.

Oliver had signing authority for Ryash. She recalled that Ms. Oliver’s involvement changed before Ms. Francis-Jones left the Annapolis Royal branch, and then Mr. Oliver then came in to do the banking. Case Law [ 142 ] In Marshall v. Marshall , 2008 NSSC 11 , Forgeron J. summarized the approaches to S. 18 taken in case law. She noted that claims had been denied where a spouse has been paid for his/her contribution, or where contributions have been minimal, although if a

spouse had been paid an insufficient amount for their work a further award could be made. [143] In Ryan v. Ryan, 2010 NSCA 2, the Court of Appeal confirmed that direct contributions such as bookkeeping are properlyconsidered under S. 18. [144] One of the earliest N.S. cases involving a fishing business is Robinson v. Robinson (1992), (NS SC), 111N.S.R. (2d) 301 (upheld in part by the Court of Appeal in (1993) 1993 NSCA 37 , 122 NSR (2d) 181). Ms. Robinson wasawarded 20% of Mr. Robinson’s fishing assets for her contribution of work, which was similar but less extensive than Ms.

Oliver’s, andfor a shorter period of time. Unlike Ms. Oliver, Ms. Robinson had signed a guarantee for the business and had not been paid. [145] In Bailey v. Bailey, (NS SC), the wife was entitled to a 30% share for duties performed apparently without pay,during a six year marriage. Those duties were more “hands on” than those carried out by Ms. Oliver. [146] In the recent case of Pirie, supra, Jesudason, J. awarded Ms. Pirie 40% of the proceeds of her husband’s dental practice on thebasis of s. 13 and s. 18. Ms.

Pirie had assumed risk (mortgaging matrimonial assets, giving personal guarantees, and releasing hershareholder interest in a holding company). He also considered the intent of the parties to use the proceeds for retirement. He noted thatawards for pledging matrimonial assets to finance a spouse’s business have generally been less than 15%: eg: Thomas v. Thomas, 2012NSSC 440 (7 %); Mood v. Mood, [1997] N.S.J. No. 531 (S.C.) (7.5%). [147] The Court has reviewed the evidence, legislation and case law, and the submissions of counsel with respect to Ms. Oliver’ssection 18 claim. [148] Ms.

Oliver has proven on the balance of probabilities that she contributed significant work, and moneys worth in respect of theacquisition, management, maintenance, operation or improvement of Ryash over a lengthy period of time. [149] The Court awards Ms. Oliver 20% of Ryash’s value ($352,000) for her contribution to the business pursuant to s. 18 (

a) and (

b) ofthe MPA, for the following reasons: • Ms. Oliver was involved in the initial purchase of Ryash and Mr. Oliver’s dealings with his parents. All Ryash assets wereaccumulated during the parties’ lengthy marriage. • Ms. Oliver presented as a well spoken, intelligent individual who had a detailed understanding of the Ryash business. Sheis better educated than Mr. Oliver. The Court is satisfied that she contributed significantly to the financial, operational and managementaspects of the business. • Mr. Dexter, Ms. Kennedy and Ms. Francis-Jones testified as to the quality and extent of Ms.

Oliver’s efforts on account ofRyash. Their testimony, as well as Ashley Oliver’s, supports Ms. Oliver’s evidence as to her contribution to the business. • I accept Ms. Oliver’s evidence that she took messages and assisted with payments, moving vehicles, and preparing ROEsfrom time to time for over 28 years. She was unpaid for at least the last 12 years. • I accept Ms. Oliver’s evidence, supported by that of Ashley Oliver, Donald Dexter, Krista Kennedy and Michelle Francis-Jones that Ms.

Oliver provided significant bookkeeping, banking and financial services to Ryash, including writing cheques, preparingand paying bills from 1989 to 2008. During this time she was paid $1000 a month. There is no evidence that her pay accorded with thehours or effort she expended, or the number of years she was paid. Her pay was immediately deposited into the parties’ joint account,along with Mr. Oliver’s pay. Therefore, the Court finds that her pay was more in the nature of income splitting as opposed to legitimatepay for services rendered. • Ms.

Oliver was a director of Ryash in 2009 (Exhibit 12, Tab A to January 17, 2022 Affidavit ). No evidence was presentedto show when this role started or if it ever changed. As such, Ms. Oliver was exposed to some degree of risk. • Ms. Oliver was also a signing officer for Ryash in 2009 (Exhibit 5, Tab 5, page 139). There is no evidence that thisauthority was revoked. Income Tax Consequences on Sale of Shares held in Ryash [150] In making its decision, the Court has considered possible tax consequences to Mr. Oliver and Mr. Oliver’s stated intention that heintends to leave Ryash to Ryan. [151] Mr.

Oliver or his estate may have a tax liability on the disposition of Ryash shares or assets. [152] In her submissions, Ms. Oliver’s counsel noted that the actual tax consequences as a result of the transfer/sale of Ryash areunknown as there are many variables. In a letter dated January 18, 2022, Mr. Duffett commented that potential income tax consequenceson a sale of the shares could vary depending on how the business was transferred, existence of capital gains exemptions and the pricepaid. This liability can be managed and planned in advance. [153] Mr.

Oliver did not present any evidence on the potential income tax costs on disposition. [154] The Court has therefore not made any deduction for these possible tax consequences from the Ryash value. V.

Section 13 Unequal Division of Matrimonial Assets /Division of Other Assets [155] Failing receipt of a 50% interest in the business based on s. 18 (contribution), Ms. Oliver seeks an unequal division of matrimonial

assets and/or a division of non-matrimonial assets pursuant to S. 13 of the MPA. [156] If Ms. Oliver was not entitled to a S. 18 division, the Court finds that merely dividing the matrimonial assets equally would beunfair and unconscionable, and pursuant to S. 13 of the MPA, she would be entitled to a 20% interest in Ryash on that basis. [157] S. 13 allows the Court to divide a business asset or unequally divide matrimonial assets when dividing the matrimonial assetsequally would be unfair or unconscionable: Harwood v. Thomas (1981), (NS CA), 45 N.S.R. (2d) 414. [158] The most significant relevant factors the Court has considered are as follows: s. 13 (

e) the date and manner of acquisition of the assets; s. 13 (

j) whether the value of the assets substantially appreciated during the marriage; [159] Ryash was acquired in its entirety during the parties’ marriage. It is the most valuable asset held by either party. [160] Ryash is a business worth $1,760,000 with virtually no debt. Obviously, Mr. Oliver has not maximized his income but instead haschosen to invest in the business. Funds have therefore been diverted from the family. For example, I note that Ryash purchased quotaannually from operating proceeds and this has not been financed by debt. s. 13 (

f) the effect of the assumption by one spouse of any housekeeping, child care or other domestic responsibilities for the family onthe ability of the other spouse to acquire, manage, maintain, operate or improve a business asset; s. 13 (

i) the contribution made by each spouse to the marriage and to the welfare of the family, including any contribution made as ahomemaker or parent; [161] The evidence of Ms. Oliver and Ashley Oliver is that Ms. Oliver was fully responsible for the home and childcare. The latterresponsibility was very onerous. Ryan was diagnosed with ADHD as a three-year-old. He struggled in school and behaviourally. He leftschool at age 16. He was involved with child protection and resided in group home settings as a teen. Ms. Oliver testified that she tookcare of 100% of Ryan’s many educational and health related appointments.

In addition, Ms. Oliver testified that she was 100%responsible for Ashley’s care which included her involvement in many extracurricular activities. [162] In addition, Ms. Oliver worked part time for approximately ten years, providing the family with income. [163] Ms. Oliver’s assumption of these roles freed up Mr. Oliver to fish and grow his business. This provided him with a valuablebenefit. [164] Ms. Oliver’s evidence is that Mr. Oliver’s contribution, while significant, was solely in relation to the business. When he was notfishing, he spent time hunting. [165] Mr. Oliver downplayed Ms.

Oliver’s contribution to the home. The Court found his evidence to be vague and self-serving. [166] Ryan’s evidence was that Ms. Oliver “came and went”. He was reluctant to acknowledge any contribution by Ms. Oliver to thehome. He presented as rude, immature and aggressive. His evidence lacked any credibility. s. 13 (

l) the value to either spouse of any pension or other benefit which, by reason of the termination of the marriage relationship, thatparty will lose the chance of acquiring; [167] A business asset may have a secondary purpose: L (J.W.) v. M. (C.B.), 2000 NSSC 215 para 190. In that case the first purposewas production of income, but there was also a secondary purpose, i.e. to provide retirement funds. [168] Ms. Oliver testified that in the 1980s and 1990s, she and Mr. Oliver made payments of $5000 per month to Mr. Oliver’s parentson account of contributions by them to the business. Mr.

Oliver also borrowed and repaid funds from the “loan board”. It is unreasonablenow for Mr. Oliver to suggest that Ryan receive the business for free without contribution to the retirement fund of his parents. [169] Mr. Oliver can go on managing the inshore portion of the business operation and receive an income from Ryash into the future.Ms. Oliver does not have this ability.

As such she is losing a valuable source of retirement revenue. [170] In Pothier, supra, Warner J. noted that if a spouse would receive spousal support as a result of business assets being retained bythe other spouse, this impacts the S. 13 claim: (para 130): [130] Logic dictates that an order granting an unequal division of matrimonial assets, based on the exempt business asset that producesthe income, should impact upon the issue of quantum of spousal support generated by the business, and vice versa. [171] Unlike in Pothier, Ms.

Oliver cannot count on ongoing spousal support to receive a benefit from the business. Mr. Oliver has paidno support voluntarily and has actively avoided his obligation since separation. His evidence is that Ms. Oliver, at 62 years of age, withno current job training or experience and medical issues can just go get a job. He has been uncooperative, withholding significantdisclosure until shortly before or during trial. Despite his agreement that $91,000 is a reasonable estimate of his income, he hasconsistently maintained that he intends to slow down and will be unable to pay support. [172] Counsel for Ms.

Oliver suggests that the Court consider the following S. 13 grounds: 13 (

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

13 (

g) the contribution by one spouse to the education or career potential of the other spouse; [ 173 ] While this is a lengthy marriage, s. 13(

d) is relevant primarily in cases of short marriages: Leigh v. Milne , 2010 NSCA 36 . [ 174 ] S. 13 (

g) is more relevant in situations where a spouse has contributed to the other spouse’s and potential and separates prior to reaping benefits. That is not the case with respect to Ryash.

Summary S. 13 [ 175 ] Ms. Oliver has proven that various S. 13 factors apply to her. However, this is not the full test for S. 13 entitlement. The Court must assess whether the equal division of matrimonial assets and the division of other assets including business assets would lead to an unfair or unconscionable result. [ 176 ] An equal division of matrimonial assets will provide each party with approximately $750,000 in assets, depending on the sale proceeds the Matrimonial Home, Cottage, Sanibel trailer, Springhill Property and Lequille Property. Ms.

Oliver will receive an additional $352,000 on account of her contribution to Ryash. Therefore, she should have assets worth approximately $1,100,000. [ 177 ] Mr. Oliver will retain a business worth over $1,400,000 (after payment to Ms. Oliver), as well as approximately $750,000 in matrimonial assets, and will therefore have assets totalling approximately $2,100,000.

He may realize less than that amount if he choses to gift assets to Ryan, and if he is liable for various tax consequences. [ 178 ] If the S. 18 payment is made, the Court is satisfied that an equal division of matrimonial assets would not be unfair or unconscionable, that a further division of business assets will not be necessary, and that failure to do so will not produce an unfair or unconscionable result. Division of Property [ 179 ] The Division of Property is summarized in the chart attached to this decision as

Schedule “A”. VI. Bank Drafts - $230,000.00 [ 180 ] In his evidence on February 9, 2022, Mr. Oliver testified that he was keeping various bank drafts in a “safe place”. He testified that these funds were to be used as a down payment on a new boat for the business. He admitted he had not signed a contract to have a new boat built, but said he had talked to the “loan board” and a builder. He provided no clear plan for financing the boat. [ 181 ] In his business valuation, Mr.

Duffett noted that Ryash’s wooden boat would need to be replaced within the next ten years. [ 182 ] Eight Bank drafts were delivered to the Court pursuant to a Preservation Order sought by Ms. Oliver’s lawyer and issued by the Court on March 21, 2022.

They are in the name of “Eugene Oliver” except for one which is in the name of “Eugene Oliver Ltd.”. [ 183 ] These Bank drafts total $230,000: • 3 x $50,000 payable to Eugene Oliver from the Ryash Scotiabank bank account • 4 x $8,000 and 2 x$20,000 payable to Eugene Oliver from the Ryash RBC bank account • 1 x $8,000 payable to “Eugene Oliver Ltd” from the Ryash RBC bank account (which may not be negotiable as apparently there is no such corporate entity). [ 184 ] It appears from Ryash bank records that the funds used to purchase these drafts were all removed from Ryash’s bank accounts in November 2021. [ 185 ] Counsel for Mr.

Oliver argues that these drafts are the property of Ryash as they have not yet been cashed. The Court takes judicial notice the Bank drafts are the equivalent of cash. Upon purchasing the drafts, the funds were withdrawn from Ryash’s accounts. Mr. Oliver could have cashed them at any time. Ryash could not get these drafts back unless Mr. Oliver personally chose to deposit them in a Ryash account. If the drafts were to be used for a boat purchase, it would not make sense to withdraw the funds in his personal name. [ 186 ] The Court notes that Mr.

Oliver has mixed personal and corporate funds extensively since separation. He has withdrawn significant funds and written numerous cheques on his behalf from the Ryash account. He has not left any funds in his personal accounts. [ 187 ] The Court finds that these funds (or at least $222,000) are therefore available to Mr. Oliver to satisfy his obligations to Ms. Oliver. VII. Retroactive Spousal Support [ 188 ] Mr. Oliver was found to have an annual income of $91,000 by Justice Keith in July 2021. [ 189 ] Ms. Oliver testified that she has been unable to work since the separation.

She stated that she has been seeing counsellors and doctors as a result of the trauma she experienced at the hands of Mr. Oliver. She received some CERB payments as a result of a T4 issued by Ryash but otherwise had no income between July 2020 and June 2021. [ 190 ] Mr. Oliver argues that Ms. Oliver should have been able to work full time. Ms. Oliver was 61 years old at the time of separation and had no current employment skills. She had not been employed outside the home/business in approximately ten years. It is not realistic or appropriate to impute income to Ms. Oliver during this period.

[ 191 ] Ms. Oliver’s need pre-July 2021 was the same or similar to her need at the time of the interim hearing. [ 192 ] Mr. Oliver has controlled all assets of the business and has drawn a significant income since separation. He has lived rent free in the matrimonial home and has had access to virtually all the matrimonial assets since separation. [ 193 ] Ms. Oliver made her application for interim spousal support on November 19, 2020; however the matter was delayed first due to Ms. Oliver’s inability to serve Mr. Oliver, and then at his request upon his retainer of counsel.

The interim hearing did not occur until the end of June 2021, almost a year after separation. Justice Keith’s decision was not made until July 26, 2021, the terms of which were incorporated into a written order issued September 2, 2021. [ 194 ] In the circumstances, the Court finds that it is appropriate to order retroactive spousal support from August 1, 2020 to and including June 1, 2021 at $3,194 per month ,(totalling $35,134). [ 195 ] This represents the upper range of the SSAGs as ordered by Keith , J. The same factors apply to my assessment: i.e. the long term marriage, Ms.

Oliver’s strong compensatory claim, Ms. Oliver’s limited income and “income earning capacity”, and Ms. Oliver’s age and needs. VIII. Prospective Spousal Support [ 196 ] Ms. Oliver seeks prospective spousal support if her claim for a 50% interest in Ryash is not successful. Ms. Oliver has been awarded a 20% interest in Ryash. Therefore the Court must address Ms. Oliver’s prospective spousal support claim. [ 197 ] The Court may order ongoing spousal support pursuant to s. 15.2(1) , (3) , (4) (5) and (6) of the Divorce Act . Spousal support order 15.2

(1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a 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 thinks reasonable for the support of the other spouse. … Terms and conditions

(3) The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just. Factors

(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, 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. Spousal misconduct

(5) In making an order under subsection (1) or an interim order under subsection (2), the court shall not take into consideration any misconduct of a spouse in relation to the marriage. Objectives of spousal support order

(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the 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 any obligation 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. [ 198 ] The parties were married for almost 37 years. Ms. Oliver performed the traditional roles of a wife and stay- at-home mother during those years, and sacrificed her career opportunities accordingly. She worked part time for 10-11 of those years. This was of

secondary priority to her family and business responsibilities, and her earnings were supplemental to the family. [199] Mr. Oliver was always the primary income earner and was able to build up a business asset of significant value in addition tovarious matrimonial assets. Ms. Oliver was primarily reliant on Mr. Oliver for her support throughout their lengthy marriage. [200] As identified by Justice L'Heureux-Dubé in Moge v. Moge, (SCC), S. 15.2 (6)(

a) and (

b) of the Divorce Act formthe basis of a “compensatory” approach to spousal support. S. 15.2(6)(

c) provides the basis for payment of spousal support based onneed. [201] The Court finds that given Ms. Oliver’s economic sacrifices during the marriage and the economic advantages conferred as aresult on Mr. Oliver, Ms. Oliver could be entitled to prospective spousal support on a compensatory basis. However, it does appear thatgiven the division of assets, Ms. Oliver will have significant liquid assets so as to allow her to support herself without furthercontribution by Mr.

Oliver. [202] The parties’ respective asset positions must be ascertained in order to determine their respective “means” pursuant to s. 15.2 (4) ofthe Divorce Act. As Keith, J. stated in his decision on interim spousal support, a Court cannot engage in “uneducated guess work”regarding rates of return on various assets. [203] If Ms. Oliver chooses to advance a claim for spousal support the Court is willing to address this issue. However, the Court willtake into consideration the division of assets. It may well be that Ms.

Oliver, while otherwise having an entitlement to spousal support,has exhausted that entitlement through the division of assets. The Court must be cautious in avoiding a scenario akin to “double dipping”.The Court will also consider the desirability of a “clean break”, given the animosity between the parties and the difficulties inherent inenforcement. IX. Costs [204] Ms. Oliver has been almost entirely successful on the issues regarding classification of assets and retroactive spousal support, andpartially successful on the issue of property division. [205] I award Ms. Oliver her full costs for preparation of Mr.

Duffett’s and Ms. Wetmore’s reports. She, in effect, paid to fulfill Mr.Oliver’s disclosure obligations as well as her own. I am aware that Mr. Oliver also paid for an expert report with respect to his income.That report (“the Jennings Report”) produced very similar results as Mr. Duffett’s report and was unnecessary. Mr. Oliver attempted toundermine his own expert at the interim hearing, and has not sought to be admit that report in the current hearing. Therefore, I have notconsidered the preparation of the Jennings Report as a mitigating factor in awarding Ms.

Oliver her costs. [206] Failing agreement, I will hear the parties on the issue of additional costs on the within matter. Counsel shall provide submissionsby July 15, 2022 (Ms. Oliver) and July 22, 2022 (Mr. Oliver). X. Payment

Summary [207] Ms. Oliver is owed as follows: 1. Matrimonial property equalization payment of $169,042; 2. s. 18 payment of $352,000; 3. Retroactive spousal support of $35,134; 4. 50% of the net proceeds of sale of the Matrimonial Home; 5. 50% of the net proceeds of sale of the Cottage; 6. 50% of the net proceeds of sale of the Sanibel trailer, Springhill Property and Lequille Property; and 7. 50% of the appraised value of the Recreational Vehicles or, in the alternative a payment of $5,000. [208] Amounts owed to Ms. Oliver by Mr. Oliver as result of the within decision of this Court shall be paid on or before June 30, 2022as follows: (

a) in cash; (

b) by spousal rollover of Mr. Oliver’s RRSP. Any rollover shall include a 30% discount for future tax liability; (

c) from the $222,000 bank drafts in Mr. Oliver’s name held by the Court; and/or (

d) from Mr. Oliver’s share of the net proceeds of sale of the Matrimonial Home, the Cottage, the Sanibel trailer, SpringhillProperty and Lequille Property. Mr. Oliver’s share of said proceeds shall be held in trust pending resolution of or the Court’s decision onprospective spousal support, costs and security. [209] Arrears of interim spousal support (approximately $33,000) shall be paid through the Nova Scotia Maintenance EnforcementProgram by June 30, 2022. XI. Security [210] If any funds owing to Ms. Oliver on account of the property division, retroactive spousal support, spousal support arrears, and

costs on the June 2021 interim motion are unpaid as of June 30, 2022, Ms. Oliver may have security for payment by way of a charge on the shares of Ryash. [ 211 ] Counsel may seek further direction and make submissions to the Court as to the logistics and format of such security if necessary. XI. Orders [ 212 ] The Court will sign a Divorce Order and a Corollary Relief Order giving effect to those matters on which a decision has been made. The Court adjourns and maintains its jurisdiction on the issues of prospective support, costs and security for payment. Dewolfe, J.

SCHEDULE A PROPERTY DIVISION -

SUMMARY Asset Susan Oliver Eugene Oliver Matrimonial Home: $325,000, less Real Estate Commission ($16,250), HST on Real Estate Fees ($2,437.50) and legal fees ($1,000) to be sold & net proceeds divided to be sold & net proceeds divided Hillsburn Property - not a matrimonial asset - retained by Ms. Oliver n/a n/a Shore Road Property - not a matrimonial asset - retained by Mr. Oliver n/a n/a Springhill Property and Lequille Property to be sold & net proceeds divided to be sold & net proceeds divided Cottage - ownership to Ms.

Oliver: $110,000, less Real Estate Commission @ 5% ($5,500), HST on RE Fees ($825) and legal fees ($1,000) to be sold & net proceeds divided to be sold & net proceeds divided 2014 VW Passat $7,350.00 2005 Ford Mustang $11,981.00 2019 Kawaski 4 x 4 $14,500.00 2019 F250 - Business Asset - excluded n/a n/a 2019 F150 Ford $43,500.00 2008 Sierra $3,760.00 Sanibel Trailer net proceeds of sale to be divided net proceeds of sale to be divided Recreational Vehicles: 2012 snowmobile and trailer, tractor with backhoe, forklift, snowblower, wood splitter attachments, "Boston Whaler" Mr.

Oliver to appraise and pay 50% of the appraised value to Ms. Oliver (or $5,000) Mr. Oliver to appraise and pay 50% of the appraised value to Ms. Oliver (or $5,000) US $ Bank Account - Not a matrimonial asset n/a n/a

Eugene Oliver TFSA # 691-**574 (value prior to withdrawals) $127,446.00 Susan Oliver TFSA # 691-**572 (March 31, 2021) $33,035.09 Ryash CIBC PP Account 01587 -Not Matrimonial n/a Eugene Oliver - CIBC PP Account 267- **582 ($30,000 remaining in Mr. Oliver's personal RBC Account June 2020 and transferred to Ryash June 2020) $30,000.00 Life Insurance - Cash Surrender Value less income tax $78,140.00 Household Contents $5,000.00 RRSPs Mr. Oliver 552-**504 $470,044.05 less 30% tax as agreed by parties $329,030.84 RRSPs - Ms.

Oliver -$457,242.40 less 30% tax as agreed by parties $320,069.68 Eugene Oliver RBC Bank Account #5**8351 - July 6, 2020 $30,350.00 Eugene Oliver Scotiabank Account # 0**2082 July 3, 2020 $24,831.00 Asset Total $360,454.77 $698,538.84 DEBT Ms. Oliver's post-separation debts - Not Matrimonial n/a n/a

SUMMARY Asset Total $360,454.77 $698,538.84 Debt Total $0.00 $0.00 Net Value After Division $360,454.77 $698,538.84 Payment Required for Equal Division $169,042.04 ($169,042.04) Final Balance After Division $529,496.81 $529,496.81