Davis v. Davis, 2022 NSSC 212

SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: Davis v. Davis , 2022 NSSC 212 Date: 20220726 Docket: SKD-120735 No. 1204-007203 Registry: Kentville Between: Joanne Davis Petitioner v. Donald Davis Respondent Judge: The Honourable Justice Lloyd I. Berliner Heard: December 9, 2021, December 16, 2021, in Kentville, Nova Scotia Final Oral Submissions: February 24, 2022 Written Release: July 26, 2022 Counsel: Kay L. Rhodenizer for the Petitioner Meaghan C.

Johnston for the Respondent By the Court: INTRODUCTION [ 1 ] The parties were married on May 19, 2001. [ 2 ] The parties differed on their date of separation (May 28, 2020 or June 3, 2020). [ 3 ] The parties have two children; B.D. who is 19, and E.D. who is 17. [ 4 ] Ms. Davis filed a Petition for Divorce on January 11, 2021. Mr. Davis filed an Answer on February 10, 2021. Ms. Davis filed a Notice of Motion February 25, 2021, which was subsequently amended following a conference before Justice Keith. An interim hearing was scheduled for May 2021. That hearing never took place.

The matter was before the Court for a case conference on July 27, 2021. At that time, both Counsel confirmed that the documents previously filed had been stale-dated and a number of disclosure issues remained. Both parties wanted an interim hearing on the issue of child support and spousal support. Instead of setting an interim hearing, the court provided dates for the divorce trial. [ 5 ] A three-day divorce trial took place in person in Kentville on December 9, 16, and 21, 2021. [ 6 ] There were thirty-two Exhibits entered into evidence which include the following: (

a) Ms. Davis’ case: i. Five Affidavits of Ms. Davis ii. Three Statements or Updated Statements of Income iii. Three Statements or Updated Statements of Expenses iv. Three Statements or Updated Statements of Property v. Two Statements of Special or Extraordinary Expenses vi. Two Trial Exhibit Books

(

b) Mr. Davis’ case: vii. Three Affidavits of Mr. Davis viii. Two Statements or Updated Statements of Income ix. Two Statements or Updated Statements of Expenses x. Two Statements or Updated Statements of Property xi. Two Statements of Special or Extraordinary Expenses xii. Affidavit of Ms. Acton xiii. Various other documents and records [ 7 ] Post-trial written submissions were received by the Court; from Ms. Davis on January 27, 2022 and a reply submission on February 23, 2022. Mr. Davis’ submissions were received on February 16, 2022. Counsel also appeared for final oral submissions on February 24, 2022. ISSUES (

a) Divorce (

b) Date of Separation (

c) Parenting/Decision-Making (

d) Classification and Value/Division of Assets and Debts: i. Matrimonial Home ii. Mr. Davis’ Canadian Forces Pension iii. RRSPs iv. RESPs v. Inherited Items Received by Mr. Davis vi. Expenses Incurred Post Separation vii. Inherited Cottage viii. Household Contents and Items ix. Vehicles x. 2020 Tax Returns xi. Bank Accounts xii. Cash Balance in Mr. Davis’ Possession xiii. Interest on Cash Balance (

e) Treatment of Mr. Davis’

Section 45 Disability Award (

f) Child Support: xiv. Mr. Davis’ Income xv. Ms. Davis’ Income xvi. Prospective Child Support xvii. Retroactive Child Support xviii.

Section 7 Expenses (

g) Spousal Support: xix. Prospective spousal support xx. Retroactive spousal support (

h) Insurance (Medical and Life) [ 8 ] I have reviewed and considered all of the evidence presented. I have followed the guidance and wisdom of the Ontario Court of Appeal

in K.K. v. M.M., 2022 ONCA 72 and have not referenced every piece of evidence in this Decision. At paragraph 23 of the K.K. v. M.M. (supra.) Decision, the Court states: …One of the purposes behind the requirement to give reasons is to identify the issues to be resolved and to distill the evidence down to the facts that are relevant to those issues: see generally, R. v. Sheppard, 2002 SCC 26 , [2002] 1 S.C.R. 869. The wholescale repetition of all the evidence heard does not fulfill that purpose. It does not help the parties who may be unable to understand the central basis for the decision reached.

It does not help counsel in terms of their ability to understand and identify possible grounds of appeal. Finally, it does not help this court which must, among other things, then determine if extraneous facts influenced the trial judge’s analysis. DIVORCE [ 9 ] I am satisfied there is no possibility of reconciliation between the parties. I am satisfied that all jurisdictional requirements have been met based on the breakdown of the marriage caused by a separation in excess of one year as set out in the Divorce Act section 8(1) (2)(a). Accordingly, I grant the Divorce.

DATE OF SEPARATION [ 10 ] Throughout the proceedings, the parties differed on the date of separation. Mr. Davis was consistent in his position that the parties separated on May 28, 2020 (the day that Mr. Davis informed Ms. Davis about his relationship with his new partner). Ms. Davis was consistent in her position that the parties’ date of separation was June 3, 2020 (the date when Mr. Davis physically left the home). Ms. Davis is now prepared to use May 28, 2020 as the separation date. I am satisfied that the date of separation was May 28, 2020.

PARENTING/DECISION-MAKING [ 11 ] B.D. graduated from high school in June 2021 and is taking a “gap year” working part-time before going to university. Since the date of separation, B.D. has resided with Ms. Davis in the matrimonial home. Should B.D. attend post-secondary education, both parties believe he would likely rent an apartment or live in residence for the school year commencing September 2022. [ 12 ] E.D. plans to attend post-secondary education, however, the details surrounding this were unknown at the time of the trial.

There were a number of possibilities described which included her attending; Kingstec College (Kentville), The University of Prince Edward Island (UPEI), or joining the Canadian Armed Forces (CAF) for training in Quebec. Since the date of separation, E.D. has resided with Ms. Davis in the matrimonial home. [ 13 ] Both parties agree that the children are of an age where they can determine where they are going to reside, and any order with respect to parenting time with E.D. should be made in consultation with her. I agree.

Therefore, the order will provide that any decision in respect to E.D. shall be made with and in consultation of E.D. This would include, but is not limited to, consulting her about where she wishes to live and the time she wishes to spend with each parent. [ 14 ] The parties also agree to joint decision-making for both children in consultation with each child. This is consistent with the Interim Consent Order of November 2, 2021. In that Order, a comprehensive parenting plan was put in place. The parties agree that the terms of the Interim Consent Order should be incorporated into the Corollary Relief Order.

The Corollary Relief Order will contain the following parenting provisions: Decision-Making (

a) Pursuant to section 16(1) (2) of the Divorce Act , the parties shall make joint decisions about any item of significance that would affect either of the children, in consult with one another, and agree in advance of those decisions. The exception to this is if there is a time sensitive medical emergency. In case of such an emergency, the parent supervising the child at the time may make emergency medical decisions if the other parent can not be contacted. (

b) Both parties shall have access to the children’s health and school records by requesting them directly from the third parties who create these records, except for information about either child’s mental health counselling. This will not be released to either parent unless the counsellors confirm that releasing it would not be detrimental to the children’s counselling progress/privacy concerns. (

c) The Petitioner shall have primary care of the children and the children will have parenting time with the Respondent including overnights in accordance with the children’s wishes. The children shall decide the dates and times of these visits, and both parents will encourage E.D. to have her parenting time with a parent when they are working less and for example but not limited to this, during the alternate weeks when the Petitioner’s regular work

schedule involves less shifts. (

d) In 2022, the parties will equally share parenting time during the Thanksgiving long weekend and the time between Christmas Eve and Boxing Day. As both parents are on vacation during the Christmas school break, they will encourage E.D. to spend equal amounts of time with each parent. (

e) Neither parent shall speak negatively about the other parent in front of the children and shall exert their best efforts to encourage a positive relationship including feelings of love and affection between the children and the other parent. CLASSIFICATION AND VALUE/DIVISION OF ASSETS AND DEBTS: Matrimonial Home Appraisal [ 15 ] The matrimonial home is located in Greenwood, Kings County, Nova Scotia. Since separation, Ms. Davis has lived in the home with the children. [ 16 ] Ms. Davis wishes to remain in the home until E.D. graduates high school. Ms. Davis then wants the house sold on the open market.

Between the date of separation and mid-September 2021, Mr. Davis wanted the house listed for sale and sold. [ 17 ] Mr. Davis changed his position after the September 13, 2021 pre-hearing conference. Mr. Davis indicated that he wanted to purchase Ms. Davis’ interest in the matrimonial home. Ms. Davis’ Counsel responded by email dated October 17, 2021 (Exhibit 18): Regarding Mr. Davis buying Ms. Davis out of the house, she does not agree with this.

She believes given the current COVID seller’s market that it is in the parties’ mutual best interests to list the home for sale with the hope of attracting multiple offers and obtaining the best possible price. If Mr. Davis wants to buy her out, then he will need to produce a market appraisal (not a realtor opinion) of the house value and present this option to the Court at trial. I reserve the right to produce this email on the issue of costs. [ 18 ] On November 18, 2021, Ms. Davis received a comparative market evaluation done by a local realtor, Tiffany Balcolm of Royal LePage. [ 19 ] Mr.

Davis’ change in position was addressed at a pre-trial conference on November 22, 2021, approximately two and a half weeks prior to the start of the trial. Mr. Davis advised that he arranged for an appraiser to conduct an appraisal on the matrimonial home and was seeking leave of the Court to allow the report to be admitted into evidence. Ms. Davis consented to the report being admitted into evidence on two conditions: (

a) Mr. Davis would facilitate any appraiser attending the home; and (

b) Ms. Davis would have an opportunity to introduce a comparative opinion and/or formal appraisal of the matrimonial home if she did not agree to the appraised amount. [ 20 ] I granted leave to Mr. Davis to file an appraisal primarily based on Ms. Davis’ consent, and subject to the conditions outlined above. [ 21 ] On December 7, 2021 (two days before the trial was to start) a further pre-trial conference was held. At that time, I was informed that the appraisal had still not been received. Ms.

Davis was no longer consenting to the filing of the report since she no longer had an opportunity to obtain a comparative opinion and/or formal appraisal. [ 22 ] Mr. Davis’ Counsel confirmed that the appraisal was done but could not confirm when it would be ready for release, filed with the Court, and a copy provided to Ms. Davis’ Counsel. I determined that there would be no additional appraisals admitted into evidence for the trial. The Court extended the time to permit Mr. Davis to file the report; he had not met that deadline. To allow the report at this stage would prejudice Ms. Davis. Ms.

Davis’ Position [ 23 ] Ms. Davis wants the matrimonial home listed for sale and sold on the open market after E.D. graduated high school in June 2022. She asks that any closing date on the sale of the property be no earlier than July 4, 2022. Mr. Davis’ Position [ 24 ] In his post-trial written submissions and oral submissions, Mr. Davis, once again, requests the Court Order the matrimonial home be appraised. He wants to purchase Ms. Davis’ interest. He says remaining in the home will provide the children with consistency and stability. [ 25 ] I am not prepared to grant Mr.

Davis’ request to obtain an appraisal on the matrimonial home so that he can purchase Ms. Davis’ interest. I decline this for the following reasons: (

a) Ms. Davis does not agree to the proposal. She wants the property listed for sale on the open market with a Real Estate Agent to maximize the sale price; (

b) It is recognized that a sale through a Real Estate Agent is likely to maximize the sale price (see Roach v. McNeil, 2014 NSSC 112 at para. 64 ); (

c) It is not appropriate to now order an appraisal on the subject property to determine its value. The evidence in this trial was concluded on December 21, 2021. To now admit (fresh) evidence could result in the necessity to hear further evidence in the form of a rebuttal report from Ms. Davis. Mr. Davis had the opportunity to file a report prior to the commencement of the trial. He did not do so. To allow him to do that after the fact is not appropriate; (

d) There is no current appraisal of the property and therefore insufficient evidence for which to calculate the value of the property and Ms. Davis’ interest; (

e) By Mr. Davis retaining the matrimonial home, it may provide consistency and stability for the children as they embark on their post- secondary studies (although it is not known where they may be studying), there is no certainty to that; and (

f) The children are 19 and 17 respectively; the consistency being proposed is not the same as if the children were significantly younger. [ 26 ] I order that the matrimonial home located in Greenwood, Kings County, Nova Scotia, shall be listed for sale on the following conditions: (

a) The parties shall cooperate completely with each other with respect to the listing and sale of the parties’ matrimonial home located in Greenwood, Kings County, Nova Scotia (hereinafter "the property") to provide for its orderly and early sale at fair market value. (

b) The parties shall have seven days from the time this Decision is released to agree on the following: i. Their choice of Listing Agent for the property; ii. The listing price of the property;

iii. The rate of sales commission that will apply to the sale; and iv. The closing date shall be no earlier than July 31, 2022. (

c) In the absence of agreement within the time limit referred to above as to any of those matters identified in paragraph (b), either Party has the right to apply to the Court for direction regarding disputed issues. The application to the Court can be by telephone conference that either party can request. (

d) The Court reserves jurisdiction pursuant to

section 15 of the Matrimonial Property Act and otherwise to decide those issues and any other matters arising from the administration of the sale of the property that was at any time within that Court’s jurisdiction and the Court’s decision shall bind the parties. (

e) Both parties shall execute whatever documents are needed to give effect to the ruling contemplated by paragraph (

d) above or any other ruling made by the Court. (

f) It shall be a term of the Listing Agreement that all offers or counteroffers to purchase the Property must be open for acceptance for a minimum of 48 hours commencing at an hour of a business day. (

g) Any reasonable offer or counteroffer to purchase must be accepted by both parties by executing the offer or counteroffer within the time during which it is open for acceptance. (

h) Any reasonable counteroffer proposed by one party must be endorsed in writing by the other party within the time frame that allows for that counter offer to be presented in a reasonable time for its possible acceptance. (

i) In the event of a dispute as to the acceptance of an offer or counteroffer or the making of a counteroffer by the parties, either party may apply to the Court for a ruling and the Court’s jurisdiction to so rule is hereby reserved, and its ruling shall bind the parties. (

j) For the Closing of the Sale pursuant to an Agreement of Sale that results from the process referred to herein, each party shall execute all documents that are reasonably necessary to close the transaction. The net proceeds, being the sale price less all encumbrances necessary to remove valid objections to title, all reasonable closing costs, legal fees and selling costs plus or minus any recognized closing adjustments (plus HST or other taxes that may be applicable) shall be divided equally. (

k) Both parties are entitled to copies of all documents and an accounting of this transaction and neither party shall have any greater entitlement than the other to copies of documents or to an accounting. Mr. Davis’ Canadian Forces Pension [ 27 ] Mr. Davis was in the Canadian Armed Forces from September 25, 1989 until August 14, 2011 (he served for a total of 263 months). [ 28 ] Following his retirement from the regular service, he became a non-commissioned member of the Canadian Forces. Mr. Davis receives a gross annual pension income of $23,416.20. [ 29 ] Mr.

Davis was in a common-law relationship for nine years prior to marrying Ms. Davis. Mr. Davis stated that he separated in 2000 and at the time, transferred approximately $29,0000.00 of his RRSPs to his common-law partner to prevent his pension from being divided. Specifically, at paragraph 49 of Mr. Davis’ Affidavit dated November 10, 2021 (Exhibit 22), he states as follows: I separated from my previous common-law partner in 2000. I transferred approximately $29,000.00 in an RRSP so my pension would not have to be divided when we separated.

I am trying to obtain a copy of our agreement, but I do not have a copy in my possession. My ex-partner has indicated she will send me a copy if she can find hers. I have also contacted the court in Manitoba to try and obtain a copy. [ 30 ] At trial, a copy of the Separation Agreement was entered into evidence (Exhibit 25). A review of the Separation Agreement shows that Mr. Davis did not transfer RRSPs to his former partner. Instead, he waived any claim to RRSPs that were in her name.

In particular, paragraph 11 reads as follows: The parties agree that upon the signing of this Agreement, the 1996 Plymouth Van, all RRSPs in Wendy’s name which are in client #3853967 with the Toronto Dominion Asset Management Inc. in the approximate amount of $28,000.00 and all furniture, furnishing and appliances in her possession, shall become her sole and exclusive property, and Don waives all claims he has thereto.

In addition, immediately upon the signing of this Agreement, Don shall pay Wendy the sum of $500.00, being one-half of the present day value of his bond (acquired by payroll deduction) that will mature at the end of October, 2000. [ 31 ] Paragraph 15 of the Separation Agreement provides: The parties acknowledge that Don has accumulated pension credits through his employment with the Department of National Defence for the period of the common law relationship of the parties hereto.

The parties agree that Wendy hereby waives all rights she has to the division of those pension credits and will sign all documents necessary for that purpose. [ 32 ] Mr. Davis believes that to divide his premarital contributions to his pension, would be inherently unfair and relies upon

section 13 of the Matrimonial Property Act to seek an unequal division of his pension. The Law re: Unequal Division [ 33 ] A party seeking an unequal division of assets must first demonstrate that an equal division of matrimonial property would be unfair and

unconscionable. Paragraph 13 of the Matrimonial Property Act reads: Factors considered on division 13 Upon an application pursuant to

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

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

b) the amount of the debts and liabilities of each spouse and the circumstances in which they were incurred; (

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

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

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

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

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

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

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

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

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

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

m) all taxation consequences of the division of matrimonial assets. R.S., c. 275, s. 13; revision corrected. [34] In Wolfson v Wolfson, 2021 NSSC 260, Forgeron, J. provides a detailed analysis of the Court’s limited jurisdiction for unequal divisionof matrimonial assets at paragraphs 261 and 262 as follows: [261]

Section 13 of the MPA provides the court with the limited jurisdiction to award an unequal division if an equal division of thematrimonial assets would be unfair or unconscionable. The Law Reform Commission of Nova Scotia, in its 2017 Final Report on Division ofFamily Property, summarized the high threshold that must be met to support a successful s. 13 claim, at pages 200 to 201: Among Canadian jurisdictions, the standard of unfairness is at the lower end of the spectrum for an unequal division. The standard ofunconscionability tends toward the higher end.

For instance, in Ontario the unconscionability standard significantly limits judicial discretion inordering an unequal division. Nova Scotia courts have taken a fairly constrained view of their discretion under

section 13. In Morash v. Morash, Bateman J.A. warned thatwhen deciding an unequal division claim: “the issue of fairness is not at large, allowing a judge to pick the outcome that he prefers fromamong various alternative dispositions, all of which may be arguably fair.” …. Despite the fact that the plain wording of

section 13 provides for an unequal division of matrimonial assets where an equal division would be“unfair or unconscionable,”, the cases have tended to favour the higher standard of unconscionability, rather than mere unfairness. [262] In Cunningham v Cunningham, 2017 NSSC 244, as aff’d at 2018 NSCA 63, this court reviewed general principles that apply to aclaim for unequal division at para 27. The legal principles identified are as follows: • The Matrimonial Property Act must be given a liberal

interpretation in keeping with its remedial purpose: Clarke v. Clarke, (SCC), [1990] S.C.J. No. 97 (S.C.C.). • The Matrimonial Property Act affords significant rights to spouses. Asset division is not based on a strict economic analysis as oftenoccurs in unjust enrichment claims. To the contrary, the Matrimonial Property Act recognizes the intrinsic value of noneconomiccontributions and views marriage as a partnership. In Young v.

Young, supra, at para 15, Bateman, J.A. confirmed that the “predominantconcept under the Act is the recognition of marriage as a partnership with each party contributing in different ways”. Marriage is neither abusiness nor an economic enterprise. • All real and personal property acquired by either spouse is presumed to be a matrimonial asset, unless falling within certain narrowexceptions, and is subject to a presumptive equal division: Morash v.

Morash, 2004 NSCA 20, para 16, per Bateman, J.A. • Section 4(1) of the Matrimonial Property Act confirms that pre-marriage assets are captured within the definition of matrimonial assets;“… the mere fact of prior acquisition does not remove the asset from prima facie equal division:” Young v. Young, supra, para 20, perBateman J.A.

• The burden of establishing entitlement rests upon the spouse who seeks an unequal division. • An unequal division is only permitted where “there is convincing evidence that an equal division would be unfair or unconscionable”:Young v. Young, supra, para 15, per Bateman, J.A.; or where there is “strong evidence showing that in all the circumstances an equal divisionwould be unfair or unconscionable on a broad view of all relevant factors:” Harwood v.

Thomas (1981), (NS CA), 45N.S.R. (2d) 414 (A.D.) at para 7, per MacKeigan, C.J.N.S. • Although the word “unfair” and “unconscionable” do not have “a precise meaning”, they nonetheless evoke “ethical considerations andnot merely legal ones:” Young v. Young, supra, para 18, per Bateman, J.A. • Unconscionable has been held to mean "unreasonable", "unscrupulous", "excessive" and "extortionate" and when “coupled with therequirement that "strong evidence" must be produced to support an unequal division, the burden upon the party requesting an unequal divisionof matrimonial assets is somewhat onerous:” Jenkins v.

Jenkins (1991), (NS SC), 107 N.S.R. (2d) 18 (T.D.), at para 10, perRichard, J. • The question to be asked is “whether equality would be clearly unfair – not whether on a precise balancing of credits and debits offactors largely imponderable some unequal division of assets could be justified:” Harwood v. Thomas, supra, para 7, per MacKeigan, C.J.N.S. • Courts are instructed to examine all the circumstances, and not to simply weigh the respective material contributions of the parties,except in unusual circumstances: Young v.

Young, supra, paras 15 and 19, per Bateman, J.A. • When focusing on a claim grounded in s.13 (

e) of the Matrimonial Property Act, the court must examine relevant factors including “thetiming of the contribution”, “the parties’ use of the asset”, “the length of the marriage”, “the significance of the asset relative to the entire poolof matrimonial assets”; and “the age and stage of the parties at separation:” Young v. Young, supra, para 20, per Bateman J.A. • When focusing on claims grounded in s. 13 (

d) of the Matrimonial Property Act, the length of cohabitation is a reference to short term,not long term unions: Briggs v. Briggs (1984), (NS SC), 64 N.S.R. (2d) 40 (N.S. T.D.) as affirmed at (1984), (NS CA), 65 N.S.R. (2d) 126 (N.S. C.A.) and Donald v. Donald (1991), (NS CA), 103 N.S.R. (2d) 322 (N.S. C.A.)per Chipman, J.A. • The determination of whether an equal division will produce an unfair or unconscionable result is a fact-based decision, as shown in thedivergent results reported in the various cases relied upon by counsel, which I reviewed. Mr. Davis’ Position [35] Mr.

Davis argues that after 22 years of service in the Canadian Armed Forces, it is significant that he contributed to his pension for 12years prior to his marriage and cohabitation with Ms. Davis. He was married to Ms. Davis for 46.77% of his active service and with hisprevious partner for 39.55% of his active service. [36] Mr. Davis relies on the decisions of Bishop v. Bishop, 2005 NSSC 220 and MacLean v. Cox, 2017 NSSC 309 as examples of where anunequal division of a parties’ pension was ordered. [37] In Bishop v. Bishop (supra.), Leblanc, J. divided Mr.

Bishop’s premarital pension contributions unequally, awarding Ms. Bishop 35% ofthe total value of the pension. In arriving at his decision, Leblanc, J. found that Mr. Bishop had previously made a $20,000.00 cash payment tohis first wife in order to avoid a division of that pension. Mr. Bishop argued that the premarital contributions of service ought to be excludedfrom the division of assets in his second marriage. In his decision, Leblanc, J. applied the

section 13 argument and ordered an unequal divisionof the husband’s pension. [38] In MacLean v. Cox (supra.), Jollimore, J. states: 47 Regardless of these deficiencies in the evidence, it is clear that Ms. MacLean contributed to her pension for almost 17 years before theparties began to cohabit. She contributed to her pension for almost twice as long as the parties cohabited and there was no diversion of familyincome to finance these contributions. These facts are relevant to an unequal division of a pension: Connolly v. Connolly, NSCA; and HRB v.

PLB 2005 NSSC 220. 48 The date and manner of the acquisition of Ms. MacLean’s pension is the basis for an unequal division of assets. Ms. Davis’ Position [39] Ms. Davis seeks a division of Mr. Davis’ entire pension earned before and during the marriage and says that the pension ispresumptively equally divisible. [40] Ms. Davis cites as an authority, the decision in S.S. v. D. S., 2013 NSSC 384, paragraph 112: A central aspect of Ms. S.'s claim for an unequal division relates to her teacher’s pension. Her starting point is that her pension should not bedivided, or should be divided unequally.

These alternatives both amount to an unequal division of the matrimonial assets. Pension entitlementsearned before and during the marriage are presumptively divisible. Mr. S. initially requested an equal division of Ms. S.'s pension from thebeginning of cohabitation (2000) until June 2007. He did not initially request a division of the entire pension, including amounts earned priorto marriage. The court referred the parties to Morash v.

Morash, 2004 NSCA 20, which confirms that pension entitlements earned before andduring the marriage are matrimonial assets, even if division of the pre-marriage portion is not contemplated by the relevant pensionlegislation, in this case the Teachers Pension Act, S.N.S. 1998, c. 26. On the basis of Morash, Mr. S. now seeks an equal divisionencompassing the amounts accumulated before and during the marriage. [41] In support of including the pre-marriage contributions in the division, Ms. Davis relies on the decisions of Verdun v. Dorrance, 2006NSSC 305, and Pilotte v. Pilotte, 2013 NSSC 24.

[ 42 ] In Verdun v. Dorrance (supra.), the Court categorized the parties’ 14-year relationship as a “second medium-length marriage” and ordered the pre-cohabitation pension to be divided equally. [ 43 ] In Pilotte v. Pilotte (supra.) MacDonald, J. ordered that the premarital portion of a pension be equally divided where the husband had nine years of military service before he met his spouse, and the parties were married for 16 years. In that case, before ordering the premarital portion of the pension to be shared, MacDonald, J. summarized the law with respect to

section 13 of the Matrimonial Property Act and focused specifically on the relevant subsections of

section 13 (d) – the length of time that the spouses cohabitated during their marriage; and

section 13 (e) – the date and manner of acquisition of the assets. [ 44 ] In Pilotte v. Pilotte (supra.), MacDonald, J. summarized as follows: [19] There appears to be a growing body of decisions suggesting it is generally considered "unfair and unconscionable" to equally divide premarital asset value in a short relationship. Similarly it is generally considered not to be “unfair and unconscionable” to equally divide premarital asset value in a lengthy relationship. The exact reason why this should be so is not often discussed. As a result it is difficult to understand how factors (

d) and (

e) should be applied in marriages greater than 5 years but less than 20.

Within that range considerations that appear to influence the outcome are: - whether children were born of the relationship; - the age of the parties at separation; - whether the owner of the asset that has a premarital value was previously married and shared some portion of that asset with a former spouse; - whether the spouse seeking an equal division of premarital value has substantial non- matrimonial assets or will retain substantial matrimonial assets; - whether the spouse seeking an equal division of premarital value was a stay at home spouse who became financially dependent upon the other spouse. - whether the premarital value of the asset was directly or indirectly maintained or increased by the spouse requesting equal division; for example, the premarital value of a matrimonial home may be enhanced as a result of the labour of a stay at home spouse. [ 45 ] I have considered the evidence, submissions of Counsel, statutory regime, and case authorities.

I do not find that an equal division of Mr. Davis’ pension – including the premarital contributions – would be unfair or unconscionable for the following reasons: (

a) As noted in S.S. v. D.S. (supra.), pension entitlements earned before and during marriage are presumptively divisible. (

b) Mr. Davis mischaracterizes the marriage as being a short duration. The duration of the marriage was 20 years and during that time, their children were born. (

c) At the date of separation, Mr. Davis and Ms. Davis were 49 and 54, respectively. Mr. Davis was already in receipt of his pension. (

d) Although Mr. Davis appeared to waive a claim to a division of his former partner’s RRSPs in exchange for a waiver of his pension, there is no evidence to determine the value of the remaining assets. (

e) I distinguish the MacLean v. Cox (supra.), decision. In that case, Ms. MacLean contributed to her pension for almost 17 years before the parties began to cohabit and her pension contributions were almost twice as long as the parties cohabitated. That is not the case here. The parties were together for just under 47% of Mr. Davis’ active service. (

f) I distinguish the Bishop v. Bishop (supra.) decision. In that case, as Leblanc, J. noted, Mr. Bishop made a payment of $20,000.00 to avoid a division of that pension. That is not the case here. The evidence does not support that finding. Mr. Davis did not transfer funds to his former common-law partner. Instead, he waived a claim to dividing his partner’s RRSPs. I am not satisfied or convinced that any waiver of claim to Mr. Davis’ pension benefits was of significant consideration in the settlement as there are too many unknowns including the value of the other assets and debts. [ 46 ] Mr.

Davis bears the burden of proof to establish that an equal division would be unfair or unconscionable. Mr. Davis has not met that burden. Simply looking at the value and the number of years contributed to his pension while the parties were together, does not meet that stringent test. I order that Mr. Davis’ entire Canadian Armed Forces pension be divided in accordance with the Pension Benefits Division Act, SC 1992, c 46, Sch II , which in part states as follows: 8

(1) A division of pension benefits shall be effected by (

a) subject to subsection (4), transferring an amount representing fifty per cent of the value of the pension benefits that have accrued to the member of the pension plan during the period subject to division, as determined in accordance with the regulations, to the spouse, former spouse or former common-law partner, if that pension plan is a retirement compensation arrangement, or, in any other case, to (

i) a pension plan selected by the spouse, former spouse or former common-law partner that is registered under the Income Tax Act, if that pension plan so permits,

(ii) a retirement savings plan or fund for the spouse, former spouse or former common-law partner that is of the prescribed kind, or (iii) a financial institution authorized to sell immediate or deferred life annuities of the prescribed kind, for the purchase from that financial institution of such an annuity for the spouse, former spouse or former common-law partner; and (

b) adjusting, in accordance with the regulations, the pension benefits that have accrued to the member of the pension plan under that pension plan, notwithstanding the provisions of that pension plan or the Act under which it is established or by which it is provided. Determination of period subject to division

(2) For the purposes of subsection (1) but subject to subsection (3), the period subject to division is (

a) the period specified by the court order or agreement as the period during which the member of the pension plan and the spouse, former spouse or former common-law partner cohabited; or (

b) where the court order or agreement does not specify a period as described in paragraph (a), such period as may be determined by the Minister, on the basis of evidence submitted by either of the interested parties or by both, as being the period during which the member of the pension plan and the spouse, former spouse or former common-law partner cohabited. Idem

(3) For the purposes of subsection (1), where the application is based on a court order and the order provides that pension benefits that have accrued to the member of the pension plan during a period specified in the order are to be divided, the period specified in the order is the period subject to division. … Further Divisions Precluded 9 Where a division of pension benefits that have accrued to a member of a pension plan during any period is effected under

section 8, no further divisions may be made under that

section in respect of that period. [ 47 ] Counsel for Ms. Davis raised a logistical issue regarding the pension division. Specifically, Ms. Davis received correspondence from Public Works and from Service Canada dated June 30, 2021 (Exhibit 13), in response to a request to obtain an estimated value of Mr. Davis’ pension in the event the entire pension was shared. The letter reads in part as follows: Your PBDA pension division was calculated based on the following dates; Service Dates: September 25, 1989 to August 14, 2011. Cohabitation Dates: May 19, 2001 to June 3, 2020.

Please note: Under the Pension Benefit Division Act the maximum transferable amount (MTA) is 50% of the cohabitation period and not a member’s entire pension. If Ms. Joanne Davis did not cohabitate with Mr.

Donald Alexander Davis during his enrollment into the Canadian Forces on September 25, 1989, she would have no entitlement to his pension for that time. … [ 48 ] Based on the apparent conflict between the statement in the letter and section 8(3) of the Pension Benefit Division Act , I will retain jurisdiction to assist the parties should there be any issues or concerns with respect to the administrator’s refusal to comply with the division order. [ 49 ] The Pension Division Order shall state as follows:

(

a) The pension administrator shall forthwith equally divide all pension benefit credits – including but not limiting the generality of the foregoing; all the pension benefit credits earned through employee contributions, through employer contributions, indexing, life expectancy and interest, to be divided between Mr. Davis and Ms. Davis from Mr. Davis’ service date (September 25, 1989 until the date of separation: May 28, 2020). (

b) Mr. Davis shall be the trustee for Ms. Davis with respect to the 50% of the premarital pension accumulation to which she is entitled. (

c) If the pension administrator is unable or unwilling to implement these terms, Mr. Davis will be the trustee for Ms. Davis in the fullest extent required to provide Ms. Davis with the benefits and rights contemplated by this decision. (

d) In the event of a dispute between the parties or with the pension plan administrator, with respect to the

interpretation or implementation of this Order, the parties or pension plan administrator may apply to the Court for directions respecting the dispute. The Court retains jurisdiction to provide directions to resolve the dispute. (

e) Each party shall have access to information, communication and documentation respecting the pension until such time that the pension division is affected. RRSPs [ 50 ] Ms. Davis’ RRSP account (26xxxxx79) statements show RRSP values as follows: • June 30, 2020 - $32,479.38 • December 31, 2020 - $37,469.80 • March 31, 2021 - $39,325.16 • October 21, 2021 - $44,094.89 [ 51 ] Ms. Davis indicates that she did not make any contributions or withdrawals from her RRSPs since separation. [ 52 ] Mr. Davis’ RRSP account (39xxxxx36) is with the CIBC.

The values of his RRSP are as follows (Exhibit 21): • March 31, 2020 - $26,587.39 • October 29, 2021 $29,696.75 [ 53 ] Mr. Davis indicates he did not make any contributions or withdrawals from his RRSP since separation. [ 54 ] The parties agree to divide their RRSPs equally and on the date of division for the RRSPs. Each party shall sign all documents necessary to complete a tax-free spousal rollover as permitted by the Canada Revenue Agency.

Within ten days from the date this Decision is released, each party shall provide to the other (through Counsel) a statement confirming the balance of their respective RRSP values along with written confirmation that there have been no withdrawals from their respective RRSP accounts since the last time the information was exchanged. [ 55 ] Counsel for Ms.

Davis asks the Court to retain jurisdiction in case Counsel disagree to the form of wording for the RRSPs transfer, or if the parties are unable to agree on any post-separation contributions or withdrawals. [ 56 ] The process of equalizing RRSPs is straightforward. It should not result in disagreement. Nevertheless, in the event there is a disagreement, then I will retain jurisdiction to assist the parties/Counsel to complete this task. The Court shall also retain jurisdiction to hear from the parties on costs should it be necessary for me to further address this issue.

RESPs [ 57 ] During the marriage, the parties accumulated a balance in a RESP account for the children. As of September 15, 2020, the parties’ finances and bank accounts were still comingled and, in effect, both parties were making contributions to the RESP account. The balance in the RESP account as of September 16, 2020, was $44,842.28 (Exhibit 17). [ 58 ] The balance in the RESP account as of October 31, 2021 was $48,205.56 (Exhibit 21). [ 59 ] Mr. Davis continued to contribute to the RESP in the amount of $200.00 per month. This was not challenged by Ms. Davis. Mr.

Davis should be provided with a credit for his post-separation contributions to the children’s RESP from October 2020 (after the joint bank accounts were closed) until such time as he stopped making contributions. [ 60 ] The Court does not have evidence of any growth or loss due to market conditions in the RESP account. The fairest way to divide the RESP account is to “back out” Mr.

Davis’ post-separation contributions from the period of October 2020 until the last statement date of October 31, 2021 (12 months x $200.00 = $2,400.00). [ 61 ] The balance of $45,805.56 ($48,205.56 - $2,400.00) is the amount that was accumulated during the marriage and available for the children to use for post-secondary education. These RESP funds shall be used for the cost of the children’s education before either party is asked to contribute to the children’s post-secondary education costs.

Any amount remaining in the RESP after the children have completed their post-secondary education shall be divided equally between the parties. This amount will not include any post-separation contributions made by either party to the RESP. [ 62 ] It is abundantly clear that the parties are unable to agree on basic or inconsequential matters, let alone important decisions involving finances for the children’s education. One party will be required to oversee the RESP. Ms. Davis has not raised this in any of her submissions. Mr. Davis has done so – in his post-trial Brief.

I find that it is appropriate for one party to control and oversee the RESP, and I agree that Mr. Davis should manage the RESP.

[63] The RESP account shall be held in trust for the children of the marriage. Ms. Davis is entitled to annual disclosure of any activity in theRESP by July 1st of each year. Although solely managed by Mr. Davis, Ms. Davis reserves the right to make any Court application to seek anaccounting and an adjustment to the amounts of the RESP monies spent each year for the period. Inherited Items Received by Mr. Davis [64] Both parties acknowledge that Mr. Davis inherited items from his father. The items are as follows: (

a) Boat and related trailer (b) 2005 Honda ATV four-wheeler with snow plow (

c) Tools [65] In MacLean v. MacLean, 2019 NSSC 322, Chiasson, J. provides a helpful

summary of the legal principles involving division ofmatrimonial property and inherited property: [8] The legislative starting point in matrimonial property division is s. 12 of the Matrimonial Property Act, RSNS 1989, c.275 (as amended).

Section 12 permits an equal division of matrimonial assets notwithstanding the ownership of the assets. This istempered by s. 13 of the MPA which states that the court may order an unequal division if “the division of matrimonial assets in equalshares would be unfair or unconscionable.” [9] Section 4(1) of the Matrimonial Property Act, supra, states: 4

(1) In this Act, "matrimonial assets" means the matrimonial home or homes and all other real and personal property acquired byeither 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 towhich they are used for the benefit of both spouses or their children… [10] Property division involves the categorization of assets as matrimonial or non-matrimonial (exempt assets, business assets). The categorization of an asset in this way dictates whether the asset is subject to division (or not) as between the spouses.

The case lawinterpreting s. 4(1) has introduced the concept of the categorization of an asset as matrimonial (and presumptively divisible) with thecaveat that a portion of the asset may not be divisible as it falls within the category of an exception under s 4(1). [11] In this way, part of an asset may be matrimonial and part of an asset may fall within an exemption. Assets claimed asexemptions under s. 4(1) are much easier to define when the gift or inheritance is kept in a separate asset (bank account, investment,etc).

The situation becomes far more problematic when a party requests the court to bifurcate the characterization of one asset- partof it subject to division and part of it exempt from division. Such cases call for a great degree of scrutiny and require significantevidence to show that such a division may be made with some degree of precision based on the evidence before the court. [12] The cases determining whether an asset (or a portion thereof) is exempt pursuant to s. 4(1) center on whether the asset hasbeen used for the benefit of the family. Counsel for Mr.

MacLean relies on Rafuse v Rafuse, 2015 NSSC 374 (N.S.S.C.). As stated byMacAdam J. in Rafuse, supra, at paragraph 20: “Although otherwise exempt assets and funds that are withdrawn may lose their exempt character by virtue of being used for familypurposes, this does not affect the exemption accorded to the remainder of the fund.” [13] Implicit in these comments is the fact that an asset may have a portion considered matrimonial and the balance of the assetconsidered exempt.

The exemption is limited by the words “except to the extent to which they are used for the benefit of bothspouses.” This phrase was considered by Cromwell J.A. (as he then was) in Fisher v Fisher, 2001 NSCA 18 (N.S. C.A.): “51 It is not possible or desirable to set out any hard and fast rules for determining the extent of use of an asset for the benefit of bothspouses or the children.

The fundamental issue, to use an expression that appears in some of the cases, is the extent to which the assethas gone into “the matrimonial pot” : see Rossiter-Forrest v Forrest (1994), (NS SC), 129 N.S.R. (2d) 130 (N.S.S.C.)and Stoodley v Stoodley (1997), (NS SC), 172 N.S.R. (2d) 101 (N.S.S.C.). This determination must be made havingregard to the nature of the asset and what use, in the normal course of life, would constitute integration of an asset of that nature intothe life of the family.

Factors such as the degree to which the asset was kept and treated separately from matrimonial assets, theamount and nature of its use by, or on behalf of, the spouses or the children and the contribution of family resources to maintain orenhance the asset may be factors which will be helpful to consider in making this determination. This, of course, is not an exhaustivelist.” [14] The concept of the “use” of the inheritance monies was expanded on by Campbell J. in Kennedy-Dowell v Dowell, 2002 NSSF13, 203 NSR (2d) 130 (N.S.S.C.).

At paragraph 52 he stated: “Gifts, inheritances and trusts can only be “used” in one of three ways: 1. Consumed, as for example for living expenses or travel, etc.: 2. Substituted for other assets, such as purchasing a home or a vehicle; or 3. Preserved; as for example when inherited investments are preserved to produce income.

When an inherited utility such as a cottageis preserved it is capable of being used for its utilitarian purpose.” [15] Further at para. 54, Campbell J. states: “… The use of some or all of the income from such a fund is an event that can benefit the entire family and one which the drafters of

the legislation must have taken into account when attempting to exempt these types of assets from division…” [16] In the Rafuse case, Mr. Rafuse provided the court with detailed calculations related to the inheritance monies invested and was not challenged on the evidence. In the present case, the court has not been provided with a detailed accounting of the High Interest Account. Rather, I note that as of April 30, 2012, prior to the inclusion of inheritance monies, the balance in the account was $95,765.15.

Other monies were deposited into the account from undetermined sources. [ 66 ] The burden of proving that an asset is not matrimonial by reason of exception falls upon the spouse making that assertion ( Cashin v. Cashin, 2010 NSCA 51 , para. 8 ). [ 67 ] Section 4(1) of the Matrimonial Property Act qualifies an exception of an inheritance from division when an asset “has been used for the benefit of both spouses or their children”. Boat and Trailer [ 68 ] Mr. Davis received his father’s 1994 Bayliner boat as an inheritance. His father died on November 16, 2017. [ 69 ] Ms.

Davis says that in 2018 and 2019, the boat and trailer were kept in their yard at the family home; they had gone boating to Aylesford Lake; the boat was taken to an Amherst location to her brother’s cottage, and the trailer would have been required to transport the boat to the water each time. [ 70 ] Mr. Davis says that the boat was transferred for the Amherst trip for the boating season in 2018 and 2019; Ms.

Davis was on the boat no more than two or three times in two years; the children enjoyed the boat; he was on the boat with the children three to four times each year; and he purchased a sea biscuit – for behind the boat – at Costco in 2018 for between $200.00 to $300.00. [ 71 ] Mr. Davis made a point in saying that Ms. Davis did not go on the boat at the time the boat was taken to her brother’s cottage. [ 72 ] Based on the evidence before me, I do not find that Mr. Davis has discharged the burden of proof establishing an exemption under s. 4(1) of the Matrimonial Property Act .

Not only did the parties enjoy the use of the boat and the corresponding trailer, but the children did as well. I find that the boat and trailer is matrimonial property and subject to division. [ 73 ] Mr. Davis requests that he be permitted to keep the boat and trailer as it belonged to his father and has sentimental value. Ms. Davis acknowledges that sentimental value may be a reason for Mr. Davis to retain the boat, provided he accounts for its value, but argues that Mr. Davis did not get a proper appraisal as of the date of separation for the boat and trailer, and therefore, a sale can not be avoided. Ms.

Davis asks the Court to Order the sale of the boat and trailer. [ 74 ] I am not prepared to Order the sale of the boat and trailer. I am prepared to allow Mr. Davis to retain the boat and trailer and account for its value. The value of the Boat and Trailer [ 75 ] Neither party provided appraisals for the boat and trailer. Both parties indicate that the boat had an insured value of $3,000.00. The insured value is the only objective information that gives any sense of value, and therefore, for the purposes of division, I place the value of the boat at $3,000.00. [ 76 ] Mr.

Davis provided a Kijiji advertisement for a 2005, 19-foot boat trailer. The value placed in the advertisement was $500.00. Mr. Davis states that his trailer was over 25 years old and was not inspected. He believes that his 1994 trailer would be valued at less than the Kijiji advertisement and is not sellable until it has been inspected. [ 77 ] Ms. Davis provided a Kijiji advertisement for a trailer listed at $2,200.00 (or best offer). The advertisement does not state the trailer’s age, but says it has new tires, bearings, springs and L.E.D. submergible lights.

The description of that trailer is far different than Mr. Davis’ trailer. [ 78 ] The Court is left placing a value on an item with very little evidence. What evidence I do have leads me to conclude that the value of the 25-year-old trailer is closer to $500.00 than the amount of $2,200.00 suggested by Ms. Davis. I set the value of the trailer at $500.00. ATV and Snow Plow [ 79 ] Ms. Davis says that the family all went on trail rides behind their home on the four-wheeler. Ms. Davis acknowledges that Mr. Davis and the children did it more frequently than she did. Ms.

Davis also says that the four-wheeler was used to plow snow and it was used more frequently for snow removal than the snow blower that was at the home. [ 80 ] Mr. Davis says the ATV has a plow on it, and to the best of his knowledge, Ms. Davis was never on the four-wheeler. Mr. Davis says that it has been used very little since his father passed away. [ 81 ] What little evidence I do have confirms that the ATV and snow plow were used by Mr. Davis and the children. Mr. Davis has not discharged the burden of proof to exempt this asset from the division of matrimonial property.

I find that the ATV and snow plow is matrimonial property and subject to division. Value of the ATV and Snow Plow [ 82 ] Mr. Davis values the 2005 Honda ATV with plow at the amount of $2,500.00. This value is based on a Kijiji advertisement that was submitted into evidence for a 2004 Honda ATV with plow. [ 83 ] Ms. Davis says the value of the ATV with the snow plow is $6,000.00 “subject to appraisal”. No appraisal was provided to her Counsel. [ 84 ] Ms. Davis says that the Kijiji advertisement relied on by Mr. Davis was for a different year and model, nor was the odometer reading provided.

[ 85 ] The Court is left with various values, none of them satisfactory to accurately determine the value of the ATV and snow plow at the time of separation. I set a value of $4,500.00 for the ATV and snow plow which is the approximate difference between the parties’ estimates. [ 86 ] Mr. Davis will retain the ATV and snow plow and account for its value. Tools [ 87 ] Mr. Davis received several tools from his father as an inheritance. He says he did not use these tools for the upkeep of the family home since he had most of his own tools.

He does say that since his father passed away, he rarely used the chop saw, skill saw and reciprocal saw that he received from his father. [ 88 ] Ms. Davis provides a list of the items she says Mr. Davis received from his father as gifts when he was alive or after his death (Exhibit 13). These items are as follows: (

a) Chop saw (

b) Chainsaw (

c) Pressure washer (

d) Snowblower (

e) DeWalt Skill Saw (

f) Reciprocating Saw (

g) Air Compressor (

h) Refinished trunk - wedding gift [ 89 ] I do not have any evidence showing which items in this list were inherited by Mr. Davis or were given to him as gifts. The only tools that Mr. Davis inherited, which are in the evidence, are the chop saw, skill saw and reciprocal saw. [ 90 ] Based on the limited evidence that has been presented, I am satisfied that the chop saw, skill saw and reciprocal saw are inherited items from Mr. Davis’ father and are exempt from division. Expenses Incurred Post-Separation [ 91 ] Mr.

Davis says that post-separation, he incurred expenses related to the boat for repairs, general upkeep, transportation, parts, and storage. [ 92 ] The total amount is $1,731.38 and these costs should be taken into consideration. I interpret that to mean these costs should be shared between the parties. [ 93 ] Ms. Davis argues that any post-separation costs for the boat and trailer (for which Mr. Davis has enjoyed the use of) is irrelevant to determine separation date value. [ 94 ] Ms. Davis also raises concerns about the undocumented costs and references inconsistencies in Mr. Davis’ evidence. For instance, in Mr.

Davis’ Affidavit (Exhibit 22) he says the repair costs were $2,167.38 however, the receipts presented total $1,281.69. [ 95 ] I have reviewed the invoices and records attached to Mr. Davis’ Affidavit (Exhibit 22) and note they do not add up to the amount claimed. One invoice purport to be a claim when, in fact, it is a refund for $40.26. [ 96 ] I am not prepared to Order the post-separation expenses be shared between the parties. Any post-separation expenses related to the boat and trailer shall be Mr. Davis’ responsibility. Inherited Cottage Background [ 97 ] Donald James “Jim” Davis (Mr.

Davis’ late father) died in November of 2017. Mr. Davis was named the Executor in his Will. [ 98 ] Mr. Davis along with his sister, Denise Acton, were the beneficiaries. Mr. Davis received his father’s cottage and land located at Five Islands, Colchester County, Nova Scotia and other items. Denise Acton received her father’s home and land located in Rodney, Nova Scotia, and other items. [ 99 ] Shortly after his father’s death, Mr.

Davis and Denise Acton entered into an oral agreement that they would sell the two inherited properties and equally share the proceeds of the sale of each property. [ 100 ] On August 29, 2018, Mr. Davis placed Ms. Davis’ name on the Deed to the cottage (Exhibit 5). In 2019, Mr. Davis intended to sell the cottage for $99,900.00, and later reduced it to $89,900.00. It did not sell. [ 101 ] In October 2019, Ms. Acton sold the property in Rodney she inherited from her father. As a result of their oral agreement, she gave Mr. Davis $38,307.87.

This amount was deposited into the parties’ joint CIBC account on October 11, 2019 (Exhibit 19). Ms. Davis’ Position [ 102 ] Ms. Davis claims a 50% interest in the cottage for the following reasons:

(

a) Her 50% interest in the cottage was a gift from Mr. Davis when he placed her on the Deed in August of 2018. This removed any chance for arguing that it is exempt inherited property. (b) Section 21(1) (

a) of the Matrimonial Property Act provides prima facie proof that she has a one-half beneficial interest in the property. It provides as follows: …the fact that property is placed or taken in the name of spouses as joint tenants is prima facie proof that each spouse is intended to have on a severance of the joint tenancy a one-half beneficial interest in the property… (

c) Cottage finances were blended into the family finances and the money was not managed as one would manage a separate asset by setting up a separate bank account and keeping rent and expenses separate. (

d) Family money was used for repairs and expenses for the cottage. (

e) There was minimal opportunity to use the cottage for family purposes. The cottage was not winterized. The parties spent one day at the cottage in the summer of 2018; the cottage was rented on a short-term rental period in the summer of 2018; rented again in July 2019 onward, with the tenant being evicted from the cottage in October of 2019. There was no little opportunity for family use of the cottage. Mr. Davis’ Position [ 103 ] Mr. Davis asks the Court to find that the cottage is excluded as a matrimonial asset, referencing paragraph 4(1) (

a) of the Matrimonial Property Act (inherited property), or alternatively, is seeking an unequal division of the asset pursuant to

section 13 of the Matrimonial Property Act . [ 104 ] In support of his position, Mr. Davis relies on the following: (

a) Originally Mr. Davis thought he may want to sell the cottage but upon reflection, he changed his mind. He grew up there and has memories there with his father – the cottage has significant sentimental value to him. (

b) Although Mr. Davis acknowledges placing Ms. Davis on title of the cottage property, he did so for estate planning purposes. (

c) Mr. Davis disputes that family money was used to pay for cottage utilities and upkeep. (

d) Ms. Davis could have used the property at the time but chose not to. Therefore, hers and the children’s use of the cottage would be considered insignificant, at best. It should be considered exempt inherited property. (

e) Mr. Davis and Ms. Acton’s oral agreement to share the two properties. (

f) The limited time the cottage was actually owned by Mr. Davis. Decision Regarding the Cottage [ 105 ] Once Mr. Davis placed Ms. Davis’ name on the Deed to the cottage on August 29, 2018, Mr. Davis gifted Ms. Davis a share of the cottage. Therefore, the cottage presumptively became a matrimonial asset. This conclusion is supported by operation of section 21(1) (

a) of the Matrimonial Property Act . [ 106 ] Mr. Davis intended to have Ms. Davis receive half of the interest in the property. His own evidence placing Ms. Davis on title was done for estate planning purposes. Had he not wanted Ms. Davis to have a share in the property, he could have organized his affairs differently, thereby keeping the cottage separate and not providing Ms. Davis with any interest in the property. He could have deeded the property to himself and provided for title to pass to his sister in his Will or alternatively, could have deeded the property to himself and his sister and joint tenants.

Instead, he named Ms. Davis. [ 107 ] Upon a review of the evidence, the analysis of the bank accounts and rents (Exhibit 19), I find there was a blending of the cottage rent and expenses into the family finances, consistent with continuing to treat the cottage as a matrimonial asset. [ 108 ] I am not persuaded that the oral agreement between Mr. Davis and Ms. Acton is relevant for the purposes of determining this issue. [ 109 ] Mr. Davis has not discharged the burden of proof seeking to divide the cottage property unequally pursuant to

section 13 of the Matrimonial Property Act . I do not find that an equal division would be unfair or unconscionable in light of all the evidence and my findings. Nor has Mr. Davis discharged the burden of establishing the cottage, or a part of it, should be considered inherited property and exempt from division. The evidence establishes that the asset has gone into the “matrimonial pot” and was not kept separate from the other marital assets. Therefore, Ms. Davis is entitled to a 50% interest in the cottage.

Value of the Cottage [ 110 ] The parties agree that the 2021 comparative market analysis prepared by Lacey Fisher of RE/MAX County Line Realty Limited (Exhibit 27) confirms the current value of the cottage. The value is in the range of $129,000.00-$149,900.00. Ms. Fisher was not called as a witness to explain the value range. Based on my Decision regarding disposition costs and capital gains, I set the value of the cottage and corresponding land at $129,000.00. [ 111 ] Mr. Davis ask the court to credit him with post-separation repair costs he says he paid for. These repairs are: (

a) Lifting cottage and updated plumbing for a cost of approximately $5,500.00 (Exhibit 22). Mr. Davis was asked to provide invoices and receipts for this work. Mr. Davis then said he paid $3,680.00 to lift the cottage and provided an invoice dated August 17, 2020 from Lone Wolf Construction (Exhibit 22).

(

b) Other receipts, totaling $110.92. [ 112 ] Upon hearing the testimony and reviewing the evidence, I am not prepared to credit Mr. Davis with these costs. The receipt from Lone Wolf Construction is not marked “paid”. Mr. Davis testified that he is acquainted with the owner, Jason Roberts. The other receipts totaling $110.92 were made out to either cash or paid with cash at Home Depot. I am left with doubt whether the receipts or invoices to prove those costs were incurred and/or relate to the cottage property. Capital Gains [ 113 ] Mr. Davis say that he has no intention to sell the cottage.

He wants to keep the cottage in the family. Ms. Davis believes there will be a capital gains tax owing by her when she transfers her interest in the cottage to Mr. Davis. Ms. Davis’ Position [ 114 ] Ms. Davis says that it is difficult to calculate any capital gains tax based on the adjusted value of the asset, without knowing whether Canada Revenue Agency will accept the value placed on the cottage by the Court. [ 115 ] The capital gains would be triggered in the 2022 tax year, with payments to be made in 2023. [ 116 ] Ms.

Davis says there are many moving parts in this process, too many of which are unknown, and is seeking the Court to retain jurisdiction to deal with any issues that arise with respect to Ms. Davis’ potential tax liability on the transfer of her interest in the cottage property. [ 117 ] Ms. Davis is also prepared to waive any claim to the lump sum amount of $38,307.87 that Mr. Davis received from Ms.

Acton (and placed in the parties’ joint bank account) provided she receives the equivalent of half the value of the cottage, free from any capital gains she might otherwise have to pay for transferring her interest to Mr. Davis or any other notional disposition costs he may have (real estate commission, legal costs to sell the property, etc.) in the future. [ 118 ] Mr. Davis indicates he has no plans to sell the cottage property nor has he produced evidence of any disposition costs or expenditures with respect to potential capital gains tax. [ 119 ] Counsel for Ms.

Davis, in her post-conference submissions, refers to the decision of Mohajeriko v. Gandomi, 2009 BCSC 393 . In that case, the husband, who retained a family business operating on a mixed use residential/commercial property known as the Kings Way property, argued that the value of the property should be reduced for capital gains tax. Accounting evidence was submitted calculating the tax implications. In declining to grant the deduction, Mackenzie, J. said as follows: [122] There was utterly no evidence that the defendant had any intention of selling the Kingsway property now, or later.

In fact, there was ample evidence at trial of the defendant’s commitment to Orient, and to his work there as the most important aspect of his life. Any notion of capital gains tax is, at best, speculative in this case. To suggest that Orient will at least be sold on the defendant’s death is also speculative because he could just as easily leave it to his son, Hady. [ 120 ] In Mohajeriko v.

Gandomi (supra.) the Court cited, with approval, the Supreme Court of Canada decision of Rick v Brandsema, 2009 SCC 10 , [2009] 1 SCR 295 as authority for the Court’s discretion to refuse to deduct a contingent tax. [ 121 ] In Rick v Brandsema (supra.) both parties produced expert evidence on the disputed deduction for the contingent tax liability. The trial judge did not make any deduction. The Supreme Court of Canada addressed this issue and upheld the trial level decision.

Justice Abella stated: [56] Both the deduction made by the husband in his initial valuation of Brandy Farms Inc. and the one presented by his expert witness at trial reflected the high tax consequences of an immediate sale, a sale which was not contemplated at the time. In fact, the husband tendered no evidence as to the likelihood or date of an eventual sale.

While it is true that at some point capital gains tax may become payable, in the absence of evidence from the husband of an imminent or eventual sale so as to justify any deduction, the trial judge’s decision not to make a deduction was completely supportable. [ 122 ] In Wolfson v. Wolfson (supra.), Justice Forgeron also had opportunity to comment on the appropriateness of calculating capital gains tax and disposition costs. Mr. Davis’ Position [ 123 ] Mr. Davis did not address these issues in his post-trial submissions or oral submissions.

Rather, his focus was on the exclusion of the $38,307.87 he received from his sister. Decision re: Capital Gains/Notional Disposition Costs [ 124 ] I have considered the evidence, submissions of Counsel, and the case authorities. I find that there is no evidence of any imminent or eventual sale of the cottage. To the contrary, Mr. Davis says that he and his sister do not wish to sell the cottage. There is no evidence of what any disposition costs would be or what any capital gains tax may be. It would not be reasonable to require Ms.

Davis to receive less than an equal share of the cottage property reducing the value by any disposition costs, or capital gains that Mr. Davis may have. [ 125 ] I follow the decision of Abella, J. in Rick v Brandsema (supra.) in not deducting capital gains tax that may become payable. In doing so, Ms. Davis agrees to waive any claim to the $38,308.87 received. The Order shall provide as follows to address any possible tax liability for Ms. Davis: (

a) The parties shall work promptly and cooperatively to find and engage an accountant with sufficient expertise in capital gains tax issues to determine Ms. Davis’ potential tax liability as a result of the transfer of title to Mr. Davis – if it will trigger a direct tax liability (an adjusted

cost-based calculation). (

b) This process should be done with the view of minimizing the accounting costs as much as possible, recognizing that it is important to getcompetent tax advice. Ms. Davis shall suggest two accountants and also provide information about their probable costs to Mr. Davis. Mr.Davis can select from those names or he may suggest an alternate if he provides similar information including their probable costs. (

c) If the parties are unable to agree on an accountant, the other party may bring the matter back to Court and the Court shall retainjurisdiction to address that issue. (

d) All costs associated with the advice as reflected in the previous paragraphs shall be shared equally between parties. (

e) In the event Ms. Davis can transfer her potential capital gains tax liability to Mr. Davis, she will promptly sign all documents to transferher title in the cottage to Mr. Davis. Upon completion, Ms. Davis shall provide an executed Deed to transfer title whether it be by either QuitClaim Deed or by Warranty Deed (based on tax advice). (

f) In the event the process to transfer the capital gains tax liability is denied by the CRA, Mr. Davis will pay Ms. Davis the costs assessed bythe CRA and indemnify her from costs associated with the assessment as a result of the transfer. These funds shall be paid by bank draft or bycertified check to pay her capital gains tax ten days prior to the filing of her 2022 Income Tax return. Ms. Davis shall be required to provideMr. Davis with a copy of her 2022 tax return in the form in which she intends to file it and include a final calculation of the portion of herIncome Tax – that is due to capital gains – no later than four weeks prior to when the amount is due. (

g) Ms. Davis shall sign the Deed transferring her interest to the cottage to Mr. Davis to be held in escrow by her Counsel until she has thefunds to pay her capital gains tax owed by Ms. Davis, as set out above, or where the parties have agreed on sufficient security to indemnifyMs. Davis from her capital gains tax liability. (

h) In the event that Mr. Davis decides to sell the cottage, any capital gains related to the sale in his line 150 income shall be deemed to benon-recurring and not factored into his income for the purposes of any support calculations. Household Contents and Items [126] Both parties presented proposals to divide the household contents and items. Ms. Davis wants to retain all of the contents in the familyhome until the home is sold. She then wants to keep some items and the balance will belong to Mr. Davis. Mr. Davis would have to accountfor the difference in values each is retaining. Ms.

Davis estimated the value of the contents and items in the home (Exhibit 13). [127] Mr. Davis provided a list (Exhibit 21). He values the items he is retaining at $4,740.00 and the contents that remained in thematrimonial home at $23,360.00. He is prepared to use the value of $20,000.00. [128] I note that a number of items on the list from Mr. Davis are likely to remain with the house upon sale. This would include the fridge,stove, dishwasher, and overhead microwave. [129] I indicated to Counsel during the trial that the lack of an appraisal on the value of the contents and household items is a problem.

Theparties are asking the Court to value items without providing any independent objective evidence. Mr. Davis estimates the value of the itemsremaining in the household significantly greater than what Ms. Davis suggests remains in the home. Likewise, the parties do not agree on thevalue of the items Mr. Davis has retained. Ms. Davis also says that she may not have listed all of the items Mr. Davis removed from the home(examples: car washing supplies and a set of new snow tires). [130] In MacLean v. Cox (supra.) Justice Jollimore commented on the difficulty judges have in valuing household contents: [10] Mr.

Cox cross-examined Ms. MacLean at length, having her acknowledge that he owned most of the household contents before theybegan to live together. [11] When they separated, Mr. Cox removed his personal items from the home. Other items remained in the home. Some of theseremaining items were thrown out because they were damaged or broken. Others were given to neighbours. Still others were sold with thehome. The items which weren’t thrown out, given away or sold with the home have been stored since mid-2015, either at Ms.

MacLean’shome or her mother’s home. [12] While I heard considerable evidence about when the contents were acquired, I heard no evidence about their value. Mr. Cox didn’tdispute that the items which were thrown out had no value. The value of the items which were sold with the house is reflected in the pricepaid for the house. [13] Some photographs of the household contents also pictured Mr. Cox’s sons as toddlers and youngsters. His sons are now aged 19 and23. This means that the furniture is at least 10 to 15 years old, and possibly older.

The household contents are secondhand furniture. [14] The absence of evidence about of the value of household contents is a problem that various judges have commented on in earliercases. [15] Judges are not appraisers and valuing household contents, item by item, is an “unnecessary and inefficient use of court time” accordingto Justice A. Boudreau in Robinson, (NS SC). [16] When provided with lists and photographs, it’s “impossible” to determine whether contents are divided equally, according to Justice D.Campbell in SLK v.

MMH, 2009 NSSC 319 at paragraph 19. [17] Where the parties said the contents were worth “little” or that their worth wasn’t known, Justice Dellapinna assigned no value tohousehold contents: Phillips-Curwin v. Curwin, 2008 NSSC 198 at paragraph 12. [18] I have no evidence about the value of the contents and I’m unable to value them. I will deal with their division later in my reasons.

[ 131 ] Jollimore, J. ordered Ms. MacLean to complete an inventory of all household contents that were stored at her and her husband’s home. Once prepared, she was to divide the inventory into two lists of equivalent value. The completed inventory and the two lists would then be sent to Mr. Cox by a particular date. Mr. Cox was then to email Ms. MacLean which of the two lists he wished to retain. Items on the other list would then be retained by Ms. MacLean. [ 132 ] Since neither Mr. Davis, nor Ms.

Davis provided any objective evidence of the value of the contents, I will follow Justice Jollimore’s solution. [ 133 ] Ms. Davis shall provide Mr. Davis with a complete inventory of the household contents which are in her possession and are to be subject to division. Items that will not be included in the list are those items belonging to the children, any of the items already divided, or those determined not to be subject to division (inherited items). [ 134 ] Since Ms. Davis says she is unaware of all the items Mr. Davis has taken from the home, I order that Mr.

Davis prepare the same list of items in his possession and provide a copy to Ms. Davis. [ 135 ] Both lists shall be completed within 30 days of receipt of this Decision. [ 136 ] Once the lists are prepared and exchanged, Ms. Davis is to divide the inventory into two lists she feels are of equivalent value. The complete inventory and the two lists must be sent to Mr. Davis within 10 days. Mr. Davis will then have 10 days from receiving the two lists from Ms. Davis to indicate which of the two lists he selects. Items on the other list will belong to Ms. Davis. [ 137 ] Once Mr. Davis communicates to Ms.

Davis which list he selects, the parties will have 30 days to retrieve the items on the list that they are retaining. Each party must allow adequate time to remove items from the other party’s respective locations. Any items that have not been removed by the deadline will belong to the other party and that party may do what they wish with the items. In this way no money or value will be exchanged. 2020 Tax Returns [ 138 ] In 2020, Ms. Davis received a tax refund of $12,315.21. Mr. Davis had a tax liability of $2,149.90.

The parties agree to share the refund and tax liability equally, prorated to reflect the period of cohabitation in 2020 (40.5%). [ 139 ] The parties agree the adjusted refund for division purposes is $3,576.21. That amount, prorated, is $1,448.36. An equal sharing of that amount would result in a payment from Ms. Davis to Mr. Davis of $724.18. [ 140 ] Mr. Davis’ tax liability for 2020 was $2,149.90. The parties agree to adjust the figure to $1,703.90. That amount prorated is $690.07. The balance owing to Mr. Davis is $345.03. [ 141 ] Ms. Davis is required to pay to Mr. Davis the total amount of $1,069.21.

Vehicles [ 142 ]

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