L.P. v. S.P., 2022 NSSC 197

Supreme Court of Nova Scotia (FAMILY DIVISION) Citation: L.P. v. S.P. , 2022 NSSC 197 Date: 20220921 Docket: Halifax No. 1201-072047 Registry: Halifax Between: L.P. Petitioner v. S.P. Respondent Library Heading Judge: The Honourable Justice Samuel Moreau Heard: January 24, 25 and 26, 2022 in Halifax, Nova Scotia Written Decision: September 21, 2022 Subject: Divorce, parenting, prospective child support, retroactive child support, settlement conference, matrimonial assets, and debts.

Summary: The Court was asked to determine the following salient issues: the appropriate quantum of prospective child support, the appropriate quantum of retroactive child support, whether an agreement reached at the conclusion of a judicial settlement conference (and placed on the Court record) be upheld and the disposition of matrimonial assets and debts. Issues:

(1) Divorce.

(2) Appropriate terminology with respect to parenting.

(3) Prospective child support.

(4) Retroactive child support.

(5) Whether the agreement reached during a settlement conference be upheld.

(6) Matrimonial assets and debts. Result: The divorce is ordered; the parties are granted joint custody of the child with a shared parenting arrangement; the Respondent shall pay child support to the Petitioner in the full guideline amount; the Petitioner is awarded retroactive child support; the agreement reached during settlement conference is upheld, including the disposition of matrimonial assets and debts, THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET. SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: L.P. v. S.P. , 2022 NSSC 197 Date: 20220721 Docket: Halifax No. 1201-072047 Registry: Halifax Between:

L.P. Petitioner v. S.P. Respondent Judge: The Honourable Justice Samuel Moreau Heard: January 24, 25 and 26, 2022 in Halifax, Nova Scotia Written Release to the Parties: July 21, 2022 Counsel: Sarah Harris for the Applicant Kerri-Ann Robson for the Respondent By the Court: Introduction and Background [ 1 ] This matter commenced with the Petition for Divorce filed by L.P. on July 15, 2019.

S.P. filed an Answer to the Petition on July 31, 2019. [ 2 ] There is one child of the marriage, O. born in 2006. [ 3 ] For ease of reference, I shall refer to L.P. as the “Petitioner” and S.P. as the “Respondent” throughout this decision. [ 4 ] The parties were married on July 17, 1999 and separated on September 5, 2018. [ 5 ] Both are members of the Canadian Armed Forces and continue to be so employed. [ 6 ] The trial commenced on January 24, 2022 and concluded on January 26, 2022.

It was originally scheduled for in court appearances, however due to the resurgence of the Covid 19 pandemic and resultant Court policies, Counsel and all witnesses appeared via video conference by consent. I am satisfied the proceeding met the requirements of Civil Procedure Rule 56. [ 7 ] In addition to the parties, the Court heard evidence from J.P. and D.D. By consent both J.P. and D.D. were qualified as experts in the area of residential home appraisals.

Both parties were cross examined by opposing counsel. [ 8 ] During the January 13, 2022, pre-trial conference, Counsel confirmed the parties had reached agreement on the issues of division of their employee pensions and RRSPs. Each party shall retain their respective employee pension and RRSPs. Issues 1. The granting of a divorce; 2. A determination as to the appropriate language regarding parenting; 3. The appropriate quantum of prospective child support; 4. The appropriate quantum of retroactive child support; 5.

Whether the agreement reached during the settlement conference held on January 23 rd , 2020, should be upheld; and 6. Matrimonial assets and debts. Divorce [ 9 ] I find the jurisdictional requirements to grant a Divorce Order have been established and no bars to the issuance of the Order exist. I therefore authorize the issuance of a Divorce Order pursuant to the Divorce Act R.S.C. 1985, c 3 (2 nd Supp .).

Parenting Arrangements [ 10 ] An examination of the parenting history pertaining to O. is helpful in determining the appropriate terminology regarding parenting arrangements, consistent with the present circumstances. [ 11 ] The parties separated in September, 2018, while the Petitioner was deployed overseas. The Petitioner returned from her deployment in January, 2019. Subsequent to the Petitioner’s return it is unrefuted O.’s history of care is as follows:

• January, 2019 – primarily with the Respondent. • February and March, 2019 – primarily with the Petitioner. • April to June, 2019 – 50/50. • July and August, 2019 – O. with extended family in Newfoundland. • September, 2019 to August, 2020 – primarily with the Petitioner. • September, 2020 to January, 2021 – 50/50. • February to July, 2021 – primarily with the Petitioner. • August, 2021 – O. with extended family in Newfoundland. • September, 2021 to present – 50/50. [ 12 ] It is also unrefuted the parties considered and acceded to O.’s wishes regarding her care arrangements.

This flexible approach demonstrated by both parents places O.’s interests at the forefront. [ 13 ] Given the factual particulars and in O.’s best interests, I conclude the appropriate terminology going forward is that the parties have joint custody with a shared parenting arrangement. The specific

schedule of parenting including transition times shall take into account O.’s wishes,

schedule and medical needs. Prospective Child Support [ 14 ] The Petitioner requests that the Respondent pay child support in the full guideline amount. The Respondent argues that as per the current shared parenting arrangement, child support should be based on a set-off calculation. [ 15 ] As the parties have had a shared parenting arrangement since September, 2021, it is essential to consider

section 9 of the Federal Child Support Guidelines.

Section 9 provides: Shared parenting time 9 If each spouse exercises not less than 40% of parenting time with a child over the course of a year, the amount of the child support order must be determined by taking into account (

a) the amounts set out in the applicable tables for each of the spouses; (

b) the increased costs of shared parenting time arrangements; and (

c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought. [ 16 ] In G.(C.N.) v. R. (S.M.), 2007 BCSC, Justice Prowse of the British Columbia Supreme Court, as she then was, offers a constructive review of the principles set out by the Supreme Court of Canada in Contino v. Leonelli-Contino, 2005 SCC 63 : [20] In Contino v.

Leonelli-Contino , 2005 SCC 63 , the Supreme Court of Canada set out the various factors the court is to consider when determining the amount of support to be paid in a shared custody situation under s.9 . [21] The objective of the Guidelines underlies this analysis - namely, that a fair standard of living be provided for the children and that there be a fair contribution from both parents. To achieve this objective in shared custody situations, the language of s.9 “warrants emphasis on flexibility and fairness” (para. 39).

It requires “the acknowledgement of the overall situation of the parents (conditions and means) and the needs of the children. The weight of each factor under s.9 will vary according to the particular facts of each case” (para. 39). [22] Specifically, under s.9 (a), the court is required “to take into account the financial situations of both parents (instead of the sole income of the spouse against whom the order is sought, as in s.3)” (para. 40).

The calculation of this set-off amount is the starting point, not the end of the inquiry. [23] This set-off amount “does not take into account actual spending patterns as they relate to variable costs or the fact that fixed costs of the recipient parent are not reduced by the increased spending of the payor parent” (para 48).

The Guideline amounts “are an estimate of the amount that is notionally being paid by the non-custodial parent; where both parents are making an effective contribution, it is therefore necessary to verify how their actual contribution compares to the Table amount that is provided for each of them when considered payor parents” (para. 50).

To do this analysis, full consideration must be given to the last two factors under s.9 . [24] At para. 51, the Supreme Court of Canada provided that “[t]he court retains the discretion to modify the set-off amount where, considering the financial realities of the parents, it would lead to a significant variation in the standard of living experienced by the children as they move from one household to another”. [25] Under s.9(b), the court is to consider all of the payor parent’s costs (including housing, food, and any other expense of the child). This

section recognizes that the “ total cost of raising children in a shared custody situation may be greater that in situations where there is sole custody” (para. 52). Under this section, the court will “generally be called upon to examine the budgets and actual expenditures of both parents in addressing the needs of the children and to determine whether shared custody has in effect resulted in increased costs globally. Increased costs would normally result from duplication resulting from the fact that the child is effectively being

given two homes” (para. 52). Furthermore, the court must consider what are the additional costs incurred by the payor parent. Specifically, the court must consider “the budgets and actual child care expenses of each parent. These expenses will be apportionedbetween the parents in accordance with their respective incomes” (para. 53). [26] As far as s.9(

c) is concerned, factors such as the ability of each parent to bear the increased costs of shared custody (whichentails consideration of assets, liabilities, income levels, and income disparities) and the standard of living for the children in eachhousehold must be considered. [17] According to their current annual incomes (Petitioner, $94,644.00 - $810.77 per month, Respondent, $103,212.70 - $877.66per month) the Respondent would be required to pay child support to the Petitioner in the monthly amount of $66.89 based on a set-offcalculation. [18] Opposing counsel cross examined the respective parties on their spending patterns and specifically in relation to O..

I amsatisfied both parents provide for O.’s daily necessities when caring for her. [19] The Respondent maintains the shared arrangement has resulted in increased expenses to him because of the location of hisresidence. The Respondent resides in Elmsdale, and the Petitioner in Middle Sackville. O.’s school and extracurricular activities arelocated/take place within the Sackville/Halifax Regional Municipality area. The approximate distance when driving between Elmsdaleand Sackville/Halifax Regional Municipality is 44 km. [20] The Respondent has re-partnered. He has cohabitated with C.M., since February 1, 2019.

They share the cost of householdexpenses such as the mortgage, property tax, fire insurance, and food on an equal (50/50) basis. [21] C.M. is employed as a “Seminar Planner” for Jazz earning an annual income in the vicinity of $50,000.00. C.M. has twochildren from a prior relationship whom she cares for based on a shared (week about) parenting arrangement. The Respondent attestedduring cross examination that C.M. and himself purchased a cottage costing $40,000. They each contributed $20,000 towards thepurchase. The Respondent says C.M. provided her portion and his was borrowed from a friend.

He testified that the intention is C.M. andhimself each own one-half of the cottage. He further testified he had not/is not currently repaying this debt. He indicated that the expense($500) stated in Court Exhibit 4, Tab 3, Line 34, (The Respondent’s Statement of Expenses sworn July 29, 2019) is for the cottage’smonthly upkeep. To be frank I have great difficulty in accepting the Respondent’s evidence with respect to the monthly amount claimedfor the cottage’s upkeep/expenses. I note I am without no other or corroborating evidence on that issue.

I have not been provided withany financial information (in document form) pertaining to C.M. The available evidence with respect to her economic circumstance(

s) isas derived from the Respondent’s cross-examination. [22] The evidence confirms the only other person residing within the Petitioner’s home is O. [23] As articulated by Justice Bastarache in Contino v. Leonelli-Contino, supra, I may use my discretion to depart from the set-offcalculation considering the economic realities of each parent in concert with the best interests of the child. [24] At paragraph 69 of Contino Justice Bastarache states: 68

Section 9(

c) vests the court a broad discretion for conducting an analysis of the resources and needs of both theparents and the children. As mentioned earlier, this suggests that the Table amounts used in the simple set-off are not presumptivelyapplicable and that the assumptions they hold must be verified against the facts, since all three factors must be applied. Here again, itwill be important to keep in mind the objectives of the Guidelines mentioned earlier, requiring a fair standard of support for the child andfair contributions from both parents.

The court will be especially concerned here with the standard of living of the child in eachhousehold and the ability of each parent to absorb the costs required to maintain the appropriate standard of living in the circumstances. [25] Subsequent jurisprudence affirms

section 9(

c) of the guidelines vests me with “a broad discretion for conducting an analysis ofthe resources and needs of both parents and the children” and mandates I consider the child’s standard of living in each household and thedivergent standards of living between the two households to ensure a fair outcome “in light of the conditions, means, needs and othercircumstances of each spouse and child for whom support is sought.” Foss v. Foss, 2011 NSSC 115, Muise v. Fox 2011 NSSC 258,Gotlinger v. Runge, 2018 SKQB 343 , 2018 SKQB343, G.(C.N.) v.

R. (S.M.), supra. [26] Considering the means, needs and circumstances of the parties and the child, a monthly child support obligation based on a set-off calculation is not fair and reasonable in this case. The financial realities of these parents necessitate this conclusion. The Respondentbenefits from his partner’s income. I am satisfied the evidence shows an economic disparity between the two households.

The resultingeffect is that O.’s standard of living within the Respondent’s household is significantly different to that available in the Petitioner’shousehold. [27] The driving distance between the parents’ residences and/or the Respondent’s residence and O.’s school and extracurricularactivities does not warrant a reduction in his child support obligation.

As per Court Exhibit 4, Tab 2, the Respondent’s work site is withinthe Halifax Regional Municipality and as noted he has the benefit of sharing his household expenses with his partner. [28] I find the Respondent is obligated to pay prospective child support to the Petitioner in the full guideline amount. The Petitionerindicated that if awarded child support in the full guideline amount, she would assume sole responsibility for any special or extraordinaryexpenses pertaining to O.

Retroactive Child Support [29] The Respondent acknowledges his responsibility to provide support for O. since the parties separated, but argues the quantumowed should be based on a set-off calculation as per his position with respect to the issue of prospective child support. [30] By his calculations he owes the Petitioner $15,304.94 in retroactive child support (calculated to January, 2022). He requests

that this amount be off set against any equalization payment owing to him by the Petitioner. The Petitioner counters that the quantum of retroactive child support owed should be based on the full guideline amount. By her calculations the Respondent owes $26,842.11 (also calculated to January, 2022). [ 31 ] Given the Respondent’s acknowledgement of his retroactive child support obligation it is not necessary to carry out an analysis as set out by the Supreme Court of Canada in D.B.S. v. S.R.G., 2006 SCC 37 and Colucci v. Colucci, 2021 SCC 24 .

The salient issue here is whether computation of the quantum owed by the Respondent be based on the full guideline amount or a set-off calculation. [ 32 ] As established by the evidence the Respondent and his partner began cohabitating on February 1, 2019. The parties agree that calculation of the retroactive child support obligation commence in April, 2019.

I am satisfied the Respondent should pay retroactive child support to the Petitioner calculated as per the full guideline amount from April, 2019 to the present. [ 33 ] As noted, during the identified retroactive phase(s), O. was in the care of either parent at various junctures. I accept both parents provided for her day to day needs when caring for her. I have not been provided with any evidence to suggest and/or establish that the standard of living within the Respondent’s household during the identified period(

s) was equal to or inferior to that of the Petitioner’s. As illustrated the evidence demonstrates otherwise.

As such I do not consider it necessary to determine/calculate the exact periods (numerically) O. spent in the care of each parent. [ 34 ] I find the Respondent is obligated to pay retroactive child support to the Petitioner as follows: - April, 2019 to December, 2019, inclusive, based on an annual income of $95,535, monthly guideline amount of $817.07, total = $7,353.63 - January, 2020 to December, 2020, inclusive, based on an annual income of $94,813, monthly guideline amount of $812.02, total = $9,744.24 - January, 2021 to January 31 st , 2022, inclusive, based on an annual income of $103,212.70, monthly guideline amount of $877.66, total = $11,409.58 - Total amount owing = $28,507.45 The Settlement Conference [ 35 ] On January 23, 2020, the parties appeared before Justice Legere-Sers for a settlement conference.

Both were represented by legal Counsel (the same lawyers who represented the parties throughout this trial). Subsequent to off the record discussions the parties reached terms of an agreement. On the same date Counsel for the Respondent read the terms of the agreement into the Court record. [ 36 ] A transcript of the January 23, 2020, proceeding is found at Court Exhibit 4, Tab 6 exhibit A. The parties consent and agree that the said transcript is true and accurate.

To summarize the parties agreed that: - The Petitioner would retain the matrimonial home; - The matrimonial home would be valued at $333,000 for the purpose of any equalization payment; - The disposition costs in relation to the matrimonial home would be $20,147.50; - The 2015 Nissan Murano vehicle was leased therefore it did not possess a trade in value; - The 2006 CRV vehicle would be valued at $1000, and the Petitioner would retain those proceeds; - The Respondent would retain the 2005 Dodge Ram, 2006 Terralander ATV, 2008 Sea doo Speedster with trailer and 2003 Valkyrie motorcycle.

Those items would be made accessible to the Petitioner for the purpose of securing appraisals; - The mortgage in the amount of $283,387.77, joint MasterCard in the amount of $3,314.42 and Visa (in the Petitioner’s name) in the amount of $1,225 would be divided equally between the parties; - The Respondent would retain the winter scene painting from the matrimonial home and the Petitioner would retain the remaining household furnishings; - A gold coin and a ring (from the paternal great-grandmother) if located, would be held for O. until she reaches the age of majority; - The parties agreed as to value of their employment pensions (the Petitioner’s : $473,012, the Respondent’s : $509,470); - The parties agreed that the Petitioner’s RRSPs held a value of $38,000 at the date of separation. [ 37 ] On January 23, 2020, Counsel for the Respondent also indicated on the record that the parties did not reach agreement as to a line of credit held solely in the Respondent’s name.

Counsel for the Respondent went on to say that within three weeks (of January 23, 2020) Counsel for the Petitioner would be provided with additional information regarding the line of credit. [ 38 ] Counsel for the Respondent stated: “Once the appraisals and the discussion on the line of credit take place, it’s anticipated that counsel be able to sort out what, if any, equalization payment is owing.” [ 39 ] During the settlement conference the parties were unable to reach agreement with respect to parenting arrangements. The

Petitioner sought primary care and the Respondent a shared parenting arrangement. They agreed O. would be referred for counselling and that neither would interfere with the other’s parenting time. [ 40 ] The parties agreed to return for a follow up/continuation of the settlement conference, which was scheduled for March 24, 2020, before Justice Legere-Sers. The follow up/continuation settlement conference did not take place due to the outbreak of the Covid 19 pandemic. [ 41 ] Subsequently the real estate market in Nova Scotia surged resulting in the matrimonial home value rising sharply.

The parties eventually returned before Justice Legere-Sers (on March 30, 2021) for settlement conference, however were unable to achieve resolution. [ 42 ] The Petitioner argues that the agreement placed on record on January 23, 2020, should be upheld.

The Respondent’s position is that the agreement was conditional due to the need for further disclosure (valuation of the items previously mentioned and classification of the line of credit) and a return in the settlement conference format to finalize the agreement. [ 43 ] Civil Procedure Rule 10.04 states as follows: Enforcement of settlement agreement or arbitration award 10.04

(1) A party who alleges that, after a proceeding was started, the parties reached agreement for settlement of the proceeding or of a claim in the proceeding may make a motion for an order giving effect to the agreement.

(2) The judge who hears the motion may do any of the following: (

a) declare that an agreement was, or was not, made and is, or is not, enforceable; (

b) declare the terms of an agreement; (

c) grant an order enforcing an agreement according to its terms; (

d) order a trial under Rule 4 - Action or a hearing under Rule 5 - Application and give directions about the issues to be determined.

(3) A motion under this Rule 10.04 in which it is alleged that an agreement was made in the presence of a settlement conference judge must be heard by the settlement conference judge, unless the judge directs otherwise.

(4) The settlement conference judge may take into account the judge’s own knowledge of what took place at the conference, as well as the evidence presented by the parties. [ 44 ] I agree with Counsel for the Respondent’s submission that the question as to enforcement of the agreement reached on January 23, 2020, is to be determined by this Court as trier of fact. [ 45 ] Upon contemplating whether the agreement reached on January 23, 2020, should be disregarded or upheld, it is necessary I consider the following: (

a) was there a mutual and valid agreement between the parties? and if so, (

b) was the agreement conditional? [ 46 ] In her pre-trial written submissions, Counsel for the Respondent indicates that “in order to determine whether there was an enforceable agreement” (a binding contract) “the law requires that the parties have a meeting of the minds”, which means “there must be a mutual agreement by the parties on the same subject matter”. Counsel goes on to state “the outward expression of this meeting of the minds is offer and acceptance”. [ 47 ] I am satisfied there was a mutual and valid agreement between the parties.

Following off the record discussions (with both parties represented by experienced counsel) an agreement was placed on the Court record. An examination of the verbatim account (consented and agreed to by both parties as true and accurate), evidenced at Court Exhibit 4, Tab 6, exhibit A confirms that the agreement placed on the Court record on January 23, 2020, is unambiguous. [ 48 ] The second query requires added deliberation. [ 49 ] Examination of the respective party’s behaviour in relation to the agreement subsequent to January 23, 2020, is helpful to my analysis here.

[50] The Respondent stopped contributing to any of the matrimonial home expenses in or about April, 2019. This did not changeafter the January 23, 2020, settlement conference. [51] The matrimonial home mortgage was to be renewed in September, 2020. At the time of renewal the Respondent refused to signthe documents in relation to same. The Petitioner says she managed to reach an agreement with the bank.

As a consequence her monthlymortgage payments later increased significantly. [52] In my view the position taken by the Respondent regarding the matrimonial home mortgage renewal is an important factor tobe considered. His actions demonstrated his belief that the issue of the matrimonial home was totally concluded and therefore no longer apart of his responsibility. [53] The Petitioner had an appraisal completed on the 2008 Sea doo Speedster (boat). The Petitioner says she attempted to obtainvalues for the Terralander ATV and motorcycle but was informed only the “blue book assessments” would be provided.

The Respondentsold the Dodge Ram in June, 2020, for $500. The Petitioner does not dispute that value. [54] With respect to the line of credit, the Respondent’s evidence (both affidavit and viva voce) lacked any substance which wouldenable me to form a conclusion as to the purpose(

s) of the expenditures from this account (with the exception of the ValkyrieMotorcycle). The unrefuted evidence of the Petitioner is that she believed the line of credit and a Canadian Tire MasterCard to be paidoff in full and closed as of September, 2015 (Court Exhibit 3, Tab 6, tab B). [55] It is clear the Petitioner had no knowledge of the use of funds derived from the line of credit subsequent to September, 2015.During cross examination the only expenditure the Respondent could specifically recall with respect to funds taken from the line ofcredit is the Valkyrie Motorcycle.

He “thinks” he used funds taken from the line of credit to pay off a Canadian Tire MasterCard. TheRespondent’s Statement of Property (Court Exhibit 4, Tab 4) makes no mention of a Canadian Tire MasterCard. The above referencedCourt Exhibit 3, Tab 6, tab B, indicates a payment in the amount of $3,408.89 to Canadian Tire MasterCard no xxxxx and as per thetendered correspondence dated September 24, 2015, same account was to be closed. [56] The only expenditure from funds derived from the line of credit of which there is sufficient evidence to substantiate is theValkyrie Motorcycle.

The evidence is clear regarding that item. I find there is insufficient evidence to conclude on a balance ofprobabilities that the remaining expenditures were used for matrimonial purposes. I find that the line of credit is not a matrimonial debtand therefore not divisible between the parties. As such the Valkyrie Motorcycle shall not be considered a matrimonial asset. [57] The Respondent argues the conditionality of the agreement reached on January 23, 2020, is with respect to further disclosure(valuation of the assets mentioned and classification of the line of credit) and a return to finalize the agreement.

I infer that finalization ofthe agreement regarding property division would have been an agreed upon equalization amount after receiving the asset values notavailable on January 23, 2020, and classification of the line of credit. [58] The question of whether the agreement was conditional is one of

interpretation, examining the language used (when putting theagreement on record) and the subsequent actions of the parties in relation to what was put on record. In Mitsui and Co. (Point Aconi)Ltd. V. Jones Power Co. Ltd. Et al., 2000 NSCA 95, Justice Cromwell, as he then was, enunciated the following precepts to beconsidered in determining whether a memorandum of understanding was meant to be binding: [67] An agreement is not incomplete simply because it calls for some further agreement between the parties (H. G.

Beale et al, Chitty on Contracts (28th ed.1999) at 2-119) or because it provides for the execution of a further formal document (G. H.Trietel, The Law of Contract, supra at 51 - 2). The question is whether the further agreement or documentation is a condition of thebargain, or whether it is simply an indication of the manner in which the contract already made will be implemented. This is a matter ofthe proper construction of the agreement: see Calvan Consolidated Oil & Gas Co. Ltd. v. Manning, (SCC), [1959]S.C.R. 253 at 261 citing with approval Von Hatzfeldt-Wildenburg v.

Alexander, [1912] 1 Ch. 284 at 288 - 9; see also G. H.Trietel, supra, at 52. This exercise of

interpretation must take account of the document as a whole as well as of the ‘genesis and aim ofthe transaction’ of which it forms part: see, for example, Hillas & Co. Ltd. v. Arcos Ltd. (1932), 43 Lloyd’s L. Rep. 359 (H.L.) per Lord Wright at 368 and I. N. Duncan Wallace, Hudson’s Building and Engineering Contracts (11th ed. 1995) at 114.

As noted earlier,where, as here, the parties intended to be bound, the courts will tend to favour a construction that the agreement is not conditional. [68] The submission that the MOU was conditional on future agreements and a change order, in my view, finds no support in thetext of the MOU. None of the traditional language (such as “subject to contract”, or “subject to the parties reaching further agreement” )was used to show the intent that the MOU was not to be binding pending the signing of further documentation.

These comprehensive principles provide guidance to my analysis here. [59] I am satisfied the change in the Respondent’s position regarding the agreement reached during the January 23, 2020, settlementconference came about because of the surge in the Nova Scotia real estate market which resulted in an increased value of thematrimonial home. As per the evidence of J.P., the matrimonial home’s current market value is $513,000.

The Respondent seeksequalization of the matrimonial assets and debts using that figure and the matrimonial home’s mortgage balance as of December, 2021. [60] As established by the evidence, including but not limited to the unambiguous and unconditional language used by Counsel forthe Respondent when putting the agreement on record and the subsequent actions of the parties, I find the said agreement wasunconditional. There was a “meeting of the minds.” There was clear indication as to who would retain each individual asset. I amsatisfied the matter (with respect to the issue(

s) of division of matrimonial property and assets) would have concluded on January 23,2020, had the parties possessed values for the outstanding items and the necessary information regarding the line of credit. I am also

satisfied the follow up settlement conference was intended to merely confirm the mathematical calculations and formalize theequalization amount. My finding concerning the line of credit offers credence to my conclusions. I find the parties intended to be boundto the agreement put on record on January 23, 2020. I find that subsequent to January 23, 2020, the parties conducted themselves in amanner consistent with the terms of the agreement. There was “offer and acceptance”. [61] In Majaess v.

Majaess, 2004, NSCA 9, our Court of Appeal considered whether a Settlement Conference Judge erred ingranting the Corollary Relief Judgment reflecting the terms read into the record at the conclusion of a Settlement Conference. The Courtwas satisfied that the record reflected the agreement reached. Both parties were represented “throughout by very experienced counsel.”Below is a reproduction of the Court’s comments in paragraphs 15 to 18, inclusive: [15] As stated in Zimmerman v. Zimmerman, (1992) (SK QB), 104 Sask. R. 150 (Q.B.) at ¶ 12: . . .

The resulting agreement should be recognized and enforced by our courts. Otherwise the primary purpose of the pre-trial conferenceis lost. A cost-saving and time-saving procedure would then be reduced to a meaningless step in the litigation process. I adopt thereasoning of Estey, J., in Revelstoke Companies Ltd. v.

Moose Jaw et al., (1984) (SK QB), 1 W.W.R. 52; 28 Sask.R. 115, at page 60 W.W.R. at page 60: “Settlements of actions have been encouraged in our courts for a great many years and it appears to me that the courts should be hesitantin upsetting or rectifying minutes of settlement unless of course there be something in the nature of fraud, incapacity of a party, or theminutes of settlement are too vague to enforce or are obviously incomplete.” [16] There is no suggestion of fraud. Ms. Majaess was, prior to the settlement conference, familiar with the property she laterdecided she wanted to have appraised.

The record suggests there was compromise as to the value of this property at the settlementconference, with the settlement based on $190,000, a value between the appraisals subsequently obtained by the parties. The flood wasan act of God. Ms. Majaess knew of Mr. Majaess’s interest in the Lebanon property long before the settlement conference. [17] There is no suggestion either party was incapacitated. The terms agreed to are clear and complete. [18] As Mr. Cragg set out in his factum, Chapman v. Chapman, (1996) (NS SC), 155 N.S.R. (2d) 19 alsoendorses the importance of the court enforcing settlements.

Although Chapman was dealing with an agreement reached by negotiationbetween solicitors rather than a pre-trial conference before a judge, the principles stated in ¶ 12 are relevant to this appeal: Almost every single Justice of this court has, at one time, rendered a decision on the desirability of upholding agreements. Forexample Durocher v. Durocher (1991), (NS SC), 106 N.S.R. (2d) 215; 288 A.P.R. 215 (T.D.), where, afterreviewing a number of authorities, I stated at p. 225: “Settlement is the only way to go in family law.

The failure to reach settlement or the encouragement of parties to ignore settlementsreached generally results in an enormous cost to the parties and this case is no exception. The cost is not to be measured in dollars and assets alone, although they are of great importance. The emotional cost can have a seriousadverse impact on the individuals and their relationships to others particularly their children.

The costs to be paid warrants every reasonable effort to reach settlement and the courts must continue to take the approach ofencouraging settlements and not lightly setting aside settlements that have been reached.” [62] In Comeau v. Comeau, 2007 NSSC 8, Justice Coady heard an application to set aside an agreement reached during a JudicialSettlement Conference. Notwithstanding the distinguishing features, the common denominator in Comeau v.

Comeau, supra and thepresent case is a revision in a party’s position from that agreed to during a settlement conference because of an unforeseen or unexpectedchange in a financial component. [63] At paragraphs 23 to 25, inclusive, Justice Coady writes: [23] There are limited circumstances where a court will override a valid agreement. The court must conclude that the agreementwas obtained by duress, undue influence, was unconscionably or based on a fundamental mistake before setting aside an agreement. Ifind no evidence of duress or undue influence.

Both parties had counsel and the agreement was reached with the assistance of JusticeMacDonald. While the agreement may not reflect an exact equal division, it is not unconscionable or the result of a fundamentalmistake. It is very clear to the court that both parties were aware of the debt and the need to resolve its status in order to arrive at an

overall property settlement. [24] If Ms. Comeau made a mistake, it was in relation to quantum of the buyout.

This is not a basis to set aside an otherwise valid agreement. [25] I find that an agreement on the division of property was concluded at the settlement conference and that no reason exists to set that agreement aside. [ 64 ] I have considered the public policy concern in relation to the integrity of Court processes versus the possible prejudice to the Respondent due to the unexpected rise in the value of the matrimonial home. [ 65 ] The surge in the real estate market resulting in the increased value of the matrimonial home was an unforeseen occurrence.

In an alternative scenario, if real estate values had plummeted resulting in a decreased value of the matrimonial home, I question whether either party would adopt a differing perspective in relation to the agreement reached during the settlement conference. [ 66 ] To preserve the integrity of the settlement conference as a very useful “cost-saving and time saving procedure” in particular and Court processes in general, it is incumbent upon Courts to ensure that valid agreements are upheld and adhered to. [ 67 ] Financial convenience and/or profitability are not factors sufficient to compel the setting aside of a mutual and valid agreement.

I make the following findings: - there is no evidence of procedural unfairness in relation to the agreement reached on January 23 rd , 2020; - the terms of the agreement were not unduly harsh or unconscionable in respect of either party; - during the entirety of the settlement conference (and after) both parties were represented by experienced legal counsel; - the agreement put on record on January 23 rd , 2020, was mutually agreed to, valid and unconditional; and - there is insufficient evidence to compel that the agreement be disregarded or not upheld.

Matrimonial Assets and Debts The matrimonial home [ 68 ] As per the agreement put on the Court record on January 23 rd , 2020, the matrimonial home shall be valued at $333,000 for the purpose of an equalization payment. The disposition costs shall be $20,147.50. 2006 CRV [ 69 ] The parties agreed this vehicle is valued at $1000. 2008 Sea doo Speedster (The Boat) [ 70 ] The Petitioner had an appraisal completed on the Sea doo. The appraised value is $11,714. The Respondent believes the Sea doo and trailer are worth $7,000. In my discretion the value of these items shall be set at $9,357.

Dodge Ram [ 71 ] As noted the Respondent sold this vehicle in June, 2020 for $500. The Petitioner does not dispute the sale price. 2006 Terralander ATV [ 72 ] In her Affidavit evidence (Court Exhibit 3, Tab 6) the Petitioner values the Terralander A.T.V. “in and around the $8000 range.” The Petitioner also states that similar A.T.V.’s were listed for sale in the $5000 range. During closing summations Counsel for the Petitioner indicated the value of the A.T.V. at $5000. In his Affidavit evidence (Court Exhibit 4, Tab 6) the Respondent values the Terralander at $3500.

In my discretion the value of the Terralander A.T.V. shall be set at $4250. Valkyrie Motorcycle [ 73 ] As per my finding in relation to the line of credit, the Valkyrie Motorcycle shall not be considered a matrimonial asset. The line of credit was found not to be a matrimonial debt. The Valkyrie Motorcycle was acquired by the Respondent with funds derived from the line of credit. Matrimonial debts [ 74 ] The following debts shall be equally divided between the parties: - the MasterCard credit card in the amount of $3314.42 - the Visa Credit card in the amount of $1225.

Income Tax Refund and Tax Free Savings Account (T.F.S.A.)

[ 75 ] The Respondent requests that a Canada Revenue Agency income tax refund for the 2018 tax year in the amount of $6,966 received by the Petitioner and monies held in a tax free savings account also by the Petitioner be classified as matrimonial assets and therefore subject to division.

The Petitioner says that neither item is indicated in nor forms part of the agreement reached on January 23 rd , 2020. [ 76 ] Even if I were to contemplate engendering these items as divisible assets (beyond or in addition to those agreed upon on January 23, 2020), there is insufficient evidence (documentary or otherwise) to make a finding in favour of the Respondent’s request with respect to the tax refund. [ 77 ] On cross examination the Petitioner testified that the T.F.S.A. was established as a savings account meant to fund family vacations.

She used $4000 from the account to take O. on a vacation trip to Mexico. The Petitioner felt the trip would be of benefit to O., as the child was experiencing difficulties related to the parties’ separation. Counsel for the Respondent values the account at $4000 to $4500. [ 78 ] If I were being asked to decide on the divisibility of this item in the absence of the January 23, 2020, agreement, I would have great difficulty in acceding to the Respondent’s position, primarily because of the manner in which the funds were utilized and obvious benefit(

s) to the child. [ 79 ] I find the Income Tax refund and T.F.S.A. funds shall not be considered as matrimonial assets for the purposes of division. Conclusion [ 80 ] Appendix A to this decision is an Equalization Chart setting out the equalization calculations regarding the matrimonial assets and debts. I find the Petitioner owes the Respondent the amount of $8,178.87 in equalizing the parties assets and debts. The Respondent owes the Petitioner the total amount of $28,507.45 in retroactive child support.

The equalization amount shall be subtracted from the retroactive child support amount owing. [ 81 ] Starting in approximately 2010, the parties began contributing $25.00 each per month towards an RESP for O. Post separation the Respondent continued to contribute to the RESP in the amount of $100 per month. It is unclear when the Respondent’s contributions stopped. He says they ended in November, 2020. During cross examination the Petitioner says the Respondent’s contributions ended in October, 2021. [ 82 ] The Respondent requests that he receive disclosure with respect to the RESP.

He also requests that his signature (in addition to the Petitioner’

s) be required for any withdrawals from the RESP. The Respondent acknowledges the funds contained in the RESP are meant for O.’s post-secondary educational expenses. The Petitioner indicated no opposition to the Respondent’s request to receive disclosure from the institution in charge of the RESP. [ 83 ] After careful review of the evidence in total, the applicable legislation, case law and the parties written and oral submissions, the following provisions shall form part of the Corollary Relief Order granted.

I find the said provisions are in the best interests of the child, O., and in keeping with my analysis of the facts in conjunction with the relevant legislation and case law: - The Petitioner and Respondent shall have joint custody of O. with a shared parenting arrangement. The specific

schedule of parenting time including transition times shall take into account O.’s wishes,

schedule and medical needs; - The parties shall have joint decision making authority; - Neither parent shall make derogatory comments about the other parent or permit another person to make derogatory comments about the other parent in the presence of O.; - The Petitioner shall have parenting time with O. on Mother’s day; - The Respondent shall have parenting time with O. on Father’s day; - The parties shall equally share Christmas holidays, Easter weekend and any other statutory holiday(s), taking into account O.’s wishes,

schedule and medical needs; - The Respondent shall pay prospective child support to the Petitioner based on an annual income of $103,212.70, in the guideline amount of $877.66 per month, commencing February 1 st , 2022, and continuing on the first day of each month thereafter; - The Respondent owes retroactive child support to the Petitioner in the total amount of $28,507.45 for the period April, 2019 to January 31 st , 2022, inclusive; - The Petitioner owes the Respondent the amount of $8,178.87 in an equalization payment; - The equalization amount shall be subtracted from the amount owing by the Respondent to the Petitioner with respect to retroactive child support.

In total, the Respondent owes the Petitioner the amount of $20,328.58 in retroactive child support; - If the Respondent is unable to pay the amount owing with respect to retroactive child support ($20.328.58) in a lump sum, he shall pay the Petitioner $250.00 per month, commencing February 1, 2022, until the amount owing is paid in full. - The Petitioner shall be responsible for the payment of any and all special or extraordinary expenses (s.7) pertaining to O.; - The Respondent’s child support payments shall be paid through the Maintenance Enforcement Program of Nova Scotia;

- The parties shall exchange complete copies of their respective income tax returns with all attachments and copies of their Notices of Assessments and/or Reassessments received from the Canada Revenue Agency on or before June 1 st of each year, commencing June 1 st , 2023; - The Petitioner shall retain the matrimonial home located at 103 Windwood Drive, Sackville, Nova Scotia (PID 41213323). The Petitioner shall have the Respondent released from the mortgage secured against the said matrimonial home within 45 days of the issuance of this Order.

The Petitioner shall bear sole responsibility with respect to any and all expenses associated with the said matrimonial home; - The parties shall retain their respective RRSPs in their sole interests; - The parties shall retain their respective employee pensions in their sole interests; - Within 45 days of the issuance of the Corollary Relief Order flowing from this decision the Petitioner shall register the Respondent’s name and necessary information with the institution in charge of the RESP such that the Respondent shall also receive any updates/statements provided in relation to the RESP.

The signature of both parties shall be required to withdraw monies from the RESP; - The Petitioner shall retain the remaining household furnishings; - The Respondent shall be provided with/shall retain the winter scene painting from the matrimonial home; - The gold ring from the Respondent’s great grandmother and gold coin (if located) shall be held in trust for O., until she reaches the age of majority. [ 84 ] Counsel for the Petitioner shall draft the Divorce Order and Corollary Relief Order. [ 85 ] The parties may file written submissions addressing costs subsequent to the issuing of the Divorce Order and Corollary Relief Order. ________________________________ Samuel C.

G. Moreau Appendix A DESCRIPTION -ASSETS L.P. S.P. Real estate Matrimonial home $333,000- $20,147.50 disposition costs $312,852.50 Motor Vehicles 2006 CRV $1,000 2005 Dodge Ram $500 2006 Terralander (ATV) $4250 2008 Sea doo Speedster with trailer $9357 TOTAL ASSETS $313,852.50 $14,107.00 DESCRIPTION-DEBTS L.P. S.P.

Mortgage $283,387.77 Joint MasterCard ($3,314.42) $1,657.21 $1,657.21 Visa in L’s name alone ($1,225) $612.50 $612.50 TOTAL DEBTS $285,657.48 $2,269.71 Net Assets $28,195.02 $11,837.29 Differential $16,357.73 Equalization Due $8,178.87 [$8,178.87] $8,178.87 Net worth after equalization $20,016.15 $20,016.15