Sampson v Sampson, 2023 NSSC 107

SUPREME COURT OF Nova Scotia Citation: Sampson v Sampson , 2023 NSSC 107 Date: 20230329 Docket: SFH No 1201-071332 Registry: Halifax Between: Cheryl Sampson Petitioner v.

Arthur Sampson Respondent Judge: The Honourable Justice Theresa M Forgeron Heard: February 14, 15, and 16; May 6; and August 24, 2022, in Halifax, Nova Scotia Written Submissions: Decision: September 8 and 23; and October 3, 2022 March 29, 2023 Counsel: Petitioner, Cheryl Sampson, Self-Represented Morgan Hicks, for the Respondent, Arthur Sampson By the Court: Introduction [ 1 ] Cheryl and Arthur Sampson are separated spouses whose children are no longer dependent. Unfortunately, the parties did not resolve most of the issues arising from their separation.

I thus must determine three matters - the validity of a kitchen table separation agreement; the valuation and division of assets and debts; and spousal support. [ 2 ] What are the parties’ views on these matters? [ 3 ] First, Ms. Sampson states that the kitchen table agreement is not valid because Mr. Sampson effectively coerced her into signing it, and the agreement is unduly harsh and unconscionable. She also notes that disclosure was lacking and that she did not have independent legal advice. [ 4 ] For his part, Mr. Sampson denies the allegations of coercion, harshness, and unconscionability.

Instead, he states that the agreement represents a more than fair division of the equity in the matrimonial home at the time of separation. He also notes that he relied on the agreement when he transferred the equalization payment to Ms. Sampson. He states that the agreement must be respected. [ 5 ] Second, both parties seek a division of the assets acquired before separation, including the corporate assets. They disagree about whether certain vehicles were purchased after separation. They disagree about the value of some assets, and the balance and division of some of the debt.

They also disagree about who was responsible for the large, cash withdrawals from the business account. Each blames the other. [ 6 ] Third, Ms. Sampson seeks spousal support. She states that she proved both compensatory and non-compensatory grounds. She states that she is financially dependent on Mr. Sampson. In addition, Ms. Sampson seeks support based on an equal division of the income which is produced by Mr. Sampson’s new business venture. She further believes that Mr. Sampson is underreporting income. [ 7 ] In contrast, Mr. Sampson disputes entitlement, noting both parties worked during their relationship.

He states that Ms. Sampson has significant bookkeeping and administrative experience. As a result, he submits that income should be imputed to her. He says Ms. Sampson did not prove that she is unable to work because of poor health. Further, Mr. Sampson denies hiding income. He states that he reports all earned income to Canada Revenue Agency. [ 8 ] In the alternative, if the court finds entitlement, Mr. Sampson suggests a monthly support payment of about $1,100. Issues

[ 9 ] In this decision, I will decide six issues: • Should the kitchen table agreement be vacated? • What are the assets and debts of the parties? • What is the appropriate division of the assets and debts? • Is Ms. Sampson entitled to spousal support? • What are the incomes of the parties? • What is the appropriate spousal support order? Background Information [ 10 ] Before analyzing these questions, I will review background information to provide context. Pre-separation Relationship [ 11 ] Mr. and Ms. Sampson had a 20-year relationship. They began to cohabit in 1997 and married in August 2006.

They had a blended family. Each had two sons from previous marriages. In addition, they had one child together, a daughter born in 2000. [ 12 ] During the marriage, Ms. Sampson was primarily responsible for the care of the children and home while Mr. Sampson was the primary wage earner. Mr. Sampson was successful and earned a good living from working in the concrete finishing industry. The parties enjoyed a comfortable lifestyle. [ 13 ] Initially, Mr. Sampson was self-employed through his sole proprietorship, Artcrete. For her part, in 2001, Ms.

Sampson registered Artcrete Concrete Products International to sell chemical products that Mr. Sampson created, and which would be produced by Bebbington Industries. During this time, Ms. Sampson did some of the bookwork and made deliveries for Mr. Sampson’s business, although she was not paid for her work. [ 14 ] Mr. Sampson’s business was not operated correctly. He used the same bank account for both personal and business purposes. In addition, he did not make necessary remittances as required of an operating business. To address the issue, Mr. Sampson made an assignment in bankruptcy. This was Mr.

Sampson’s second assignment. [ 15 ] In 2014, a new business, Artcrete Concrete Products Ltd, was incorporated, with Ms. Sampson designated as the sole owner. The new business also took over the distribution and sale of the chemical line. Mr. Sampson and his sons were employees of the company. Ms. Sampson was responsible for bookkeeping and administrative functions. She also hired an accountant to ensure compliance with government regulations. The accountant also prepared Financial Statements and provided the parties with accounting advice. The new business was successful.

Separation and Kitchen Table Agreement [ 16 ] The parties’ marriage was troubled. Separation occurred in July 2017, although the parties continued to live and work together until November 2018. The separation was one of high tension and conflict. [ 17 ] On September 4, 2018, Ms. Sampson filed for divorce. On September 21, 2018, Mr. Sampson filed an Answer. [ 18 ] In early October 2018, ACP closed. Each party blamed the other for its demise. The business had considerable debt. After the business closed, Mr. Sampson continued to work installing concrete finishes as a self-employed person.

He also collected EI. [ 19 ] On November 14, 2018, Ms. Sampson filed a motion for interim child and spousal support. [ 20 ] On November 22, 2018, Mr. Sampson presented Ms. Sampson with a one-page agreement that he drafted. Both parties signed the agreement before a witness. No lawyers attested that they provided either party with independent legal advice. The agreement generally focused on the matrimonial home, stipulating Ms. Sampson would sign over her interest upon receipt of $60,000. [ 21 ] In late November 2018, Ms. Sampson and the parties’ daughter moved out of the home to an apartment. Mr.

Sampson remained in the family home and paid the mortgage and all associated bills. [ 22 ] Over the next several months, Mr. Sampson paid Ms. Sampson $60,000 based on the terms of the kitchen table agreement, although Mr. Sampson deducted $1,300 from that amount to pay for the daughter’s car repairs. Ms. Sampson personally received $58,700 as an equalization payment. Interim Hearing and Nonpayment of Support [ 23 ] After she left the home, Ms. Sampson carried on with her motion for interim support. The child support issue resolved by consent. Spousal support was contested.

An interim hearing was held in April and May 2019. The parties were self-represented. On May 16, 2019, I rendered an oral decision, which was published on June 19, 2019, as the written decision, Sampson v Sampson , 2019 NSSC 169 . In my decision, I awarded Ms. Sampson $1,800 per month in prospective spousal support and a retroactive, non-taxable lump sum payment of $5,000. [ 24 ] On May 15, 2019, Mr. Sampson incorporated Artcrete Finishing Limited and transferred 30% of the shares to his son, who provided neither money nor assets for the acquisition.

[ 25 ] On June 27, 2019, Mr. Sampson paid Ms. Sampson the last instalment of the equalization transfer. Ms. Sampson also executed a deed to the matrimonial home. Mr. Sampson refused to provide Ms. Sampson with the money unless she signed an acknowledgement and deed. Because Ms. Sampson desperately needed the money, she signed both documents. [ 26 ] Although he paid the equalization transfer, Mr. Sampson refused to pay the ordered spousal support. The Maintenance Enforcement Program eventually took enforcement action, including issuing a garnishment, and later seizing his licence and passport.

To circumvent the garnishment, Mr. Sampson had his company pay him in cash rather than by bank deposit. Additionally, he arranged for his bank to take cash for his monthly mortgage payments. In this way, his mortgage payments wouldn’t be seized. [ 27 ] After Mr. Sampson lost his licence in the fall of 2020, he contacted MEP to reach a settlement. On November 6, 2020, MEP received a $15,000 lump sum payment from Mr. Sampson. In November 2020, MEP agreed to withdraw its enforcement actions, provided Mr.

Sampson paid his monthly support and an additional $50 per month towards the outstanding arrears in excess of $15,000. Commencing with the December 9th payment, Mr. Sampson has paid the required amount. Divorce Hearing and Credibility [ 28 ] The divorce trial was heard on February 14, 15, and 16; May 6; and August 24, 2022. Mr. Sampson was represented while Ms. Sampson was not. The parties, Arthur Sampson Jr, and Cory Sampson testified.

Submissions were provided in pre-trial briefs and post- trial submissions, the last of which was received on October 3, 2022. [ 29 ] During the course of the hearing, 42 exhibits were entered, many of them containing voluminous materials. While counsel for Mr. Sampson was organized and focused, Ms. Sampson was not. [ 30 ] Further, the parties often provided contradictory evidence. Each argued that the other’s evidence was not trustworthy. In reaching my decision, I made credibility findings by applying the law set out in Baker-Warren v Denault , 2009 NSSC 59 , as approved in Gill v Hurst , 2011 NSCA 100 .

In addition, I made inferences in keeping with Jacques Home Town Dry Cleaners v Nova Scotia (Attorney General) , 2013 NSCA 4 . In so doing, I was permitted to accept all, some, or none of the evidence of the parties and witnesses. [ 31 ] I find both parties suffered from credibility and reliability issues. On occasion, recollection problems arose because of the passage of time. Regrettably, at other times, false and misleading evidence was intentionally communicated. Where appropriate, I will indicate my credibility conclusions as I proceed with the analysis portion of my decision.

Analysis [ 32 ] Should the kitchen table agreement be vacated? Terms of the Kitchen Table Agreement [ 33 ] Before discussing the parties’ positions, it is helpful to review the pivotal terms of the one-page, kitchen table agreement: • Mr. Sampson was allowed “to reside” in the matrimonial home and was to “assume responsibility for the house and property”, including the monthly mortgage payment “until he can assume a mortgage of his own for said property.” • Mr. Sampson was to pay Ms. Sampson “$60,000 the equivalent of her equitable share” in the matrimonial home and Ms.

Sampson would “allow him to take ownership”. The $60,000 was to be paid out within a yea r, “at which time the Deed is to be transferred”. • Both parties “agreed and have divided all household contents and will keep personal vehicles, motorcycles, jewelry, and personal property”. There is a skeletal listing of the household contents each is to retain. • The parties acknowledged that independent legal advice was provided and confirmed that the divorce could proceed on an uncontested basis. Positio ns of the Parties [ 34 ] Ms. Sampson states that the kitchen table agreement is not valid and should be set aside.

She says Mr. Sampson harassed and coerced her into signing the agreement when she was experiencing significant health problems and was financially reliant on him. She states that she did not have independent legal advice. [ 35 ] Mr. Sampson disagrees. He denies coercion. He denies harassment. He says the evidence failed to support the allegations. He says the medical and counselling information is simply self-reporting by Ms. Sampson. Further, from his perspective, the evidence proves that it was Ms. Sampson, and not he, who was the instigator of any family violence that did occur. [ 36 ] In addition, Mr.

Sampson notes that Ms. Sampson saw two lawyers during the time the agreement was signed and thus had independent legal advice. He says the agreement was signed voluntarily. From his perspective, the agreement originated as a cost saving measure. The parties signed the agreement to avoid excessive legal bills. Mr. Sampson states that Ms. Sampson signed willingly and left the home happy because of the quantum of the equalization payment. [ 37 ] Finally, Mr. Sampson submits that the agreement was fair because he paid Ms. Sampson more than what an equal division would require. Discussion of the Law [ 38 ]

Section 29 of the Matrimonial Property Act, R S, c 275 provides the court with the discretion to vary an agreement that is unconscionable, unduly harsh, or fraudulent:

29 Upon an application by a party to a marriage contract or separation agreement, the court may, where it is satisfied that any term of the contract or agreement is unconscionable, unduly harsh on one party or fraudulent, make an order varying the terms of the contract or agreement as the court sees fit. [ 39 ] To determine the validity of the kitchen table agreement, I reviewed the law presented by the parties: Miglin v Miglin , 2003 SCC 24 ; Rick v Brandsema, 2009 SCC 10 ; and Ryan v Ryan , 2018 NSSC 289 which refers to Baker v Baker , 2012 NSCA 24 . [ 40 ] In Miglin v Miglin , the majority of the Supreme Court of Canada adopted a two-stage test for determining whether to override the spousal support provisions of a separation agreement.

The Nova Scotia Court of Appeal considered the first stage of the Miglin test in Baker v. Baker . [ 41 ] At the first stage of the Miglin test, “the court first examines the circumstances that led to the separation agreement to determine whether oppression, pressure of vulnerabilities tainted the integrity of the negotiation”: Baker v Baker , at para 24 .

As noted in para 24, this examination is subject to three important qualifiers: • Evidence of power imbalance indicative of unconscionability in the commercial context is not required. • The court must not presume the presence of a power imbalance. • The mere presence of vulnerabilities will not justify the court’s intervention as the degree of professional assistance may overcome any imbalance. [ 42 ] The court in Baker v Baker summarized the two components of the first stage of the Miglin test as follows: [24] … Justices Bastarache and Arbour summarized the first component of stage one: 83 Where vulnerabilities are not present, or are effectively compensated by the presence of counsel or other professionals or both, or have not been taken advantage of, the court should consider the agreement as a genuine mutual desire to finalize the terms of the parties’ separation and as indicative of their substantive intentions.

Accordingly, the court should be loathe to interfere. In contrast, where the power imbalance did vitiate the bargaining process, the agreement should not be read as expressing the parties’ notion of equitable sharing in their circumstances and the agreement will merit little weight. …. [25] Where the agreement survives this circumstantial analysis, the court, in the second component of stage one, determines whether the agreement substantially complies with the objectives of the Divorce Act , “thereby reflecting an equitable sharing of the economic consequences of marriage and its breakdown” (para 84).

Justices Bastarache and Arbour said that “[O]nly a significant departure” from those objectives will warrant the court’s intervention (para 84) and that “a court should be loathe to interfere with a pre-existing agreement unless it is convinced that the agreement does not comply substantially with the overall objectives of the Divorce Act ” (para 46). [ 43 ] In Rick v Brandsema , the Supreme Court of Canada applied stage one of the Miglin test to a separation agreement for the division of matrimonial assets.

The court summarized the Miglin approach as follows: [44] Where, therefore, “there were any circumstances of oppression, pressure, or other vulnerabilities”, and if one party’s exploitation of such vulnerabilities during the negotiation process resulted in a separation agreement that deviated substantially from the legislation, the Court in Miglin concluded that the agreement need not be enforced (paras. 81-83). [45] Notably, the Court also stressed the importance of respecting the “parties’ right to decide for themselves what constitutes for them, in the circumstances of their marriage, mutually acceptable equitable sharing” (para. 73).

Parties should generally be free to decide for themselves what bargain they are prepared to make. And it is true that most separating spouses appear to determine their agreements without judicial participation … [ 44 ] The court emphasized, however, that the contractual autonomy contemplated in Miglin “depends on the integrity of the bargaining process”, and that “[i]nformational asymmetry compromises a spouse’s ability” to negotiate an acceptable bargain: para 46. The court recognized that family law negotiations often occur in a unique and difficult context.

As a result, special care must be taken to ensure that assets are divided “through negotiations that are free from informational and psychological exploitation”: para 1. The court held that “a duty to make full and honest disclosure of all relevant financial information is required to protect the integrity of the result of negotiations undertaken in these uniquely vulnerable circumstances”: para 47. Circumstantial Analysis [ 45 ] Did Ms. Sampson prove that oppression, pressure, or vulnerabilities tainted the integrity of the negotiation process? I find that she did, for the following reasons: • Ms.

Sampson was a vulnerable party who was susceptible to pressure. She was recovering from lung cancer and an operation. She and Mr. Sampson were living in the same home. Living arrangements were fueled with conflict, tension, and anger, even though no actual physical threat was made. For example, Mr. Sampson brought his girlfriends to the home, including to Ms. Sampson’s bedroom , when she was away. At one point, Mr. Sampson disconnected the cable, internet, and phones. Ms. Sampson was financially dependent on Mr. Sampson. The business had just closed in October. Ms. Sampson had neither job nor income. Ms.

Sampson was deeply concerned about the parties’ daughter, who was still a dependent. The daughter had a history of serious emotional and mental health issues. Living conditions were toxic. Ms. Sampson needed money so she and her daughter could escape from the matrimonial home.

• Full and honest disclosure was lacking. Mr. Sampson did not file a sworn Statement of Property until after the agreement was signed. There was no appraisal of the matrimonial home. No statement as to the value of the assets or the balances of the debt was appended to the separation agreement. • Ms. Sampson did not have independent legal advice. She had paid a retainer to Boyne Clarke on July 9, 2018. An invoice from her Boyne Clarke lawyer shows communication between July 9 and October 5, 2018 – prior to the agreement being drafted. Further, later in October 2018, Ms.

Sampson connected with another lawyer at Brookshire Law. In an email chain dated October 24 to 26, 2018, Ms. Sampson discussed getting money to pay the $7,500 retainer. Ms. Sampson needed money to pay the legal retainer. I am satisfied that Ms. Sampson did not review the kitchen table agreement with a lawyer. The acknowledgement of independent legal advice is simply inaccurate. Further, it is doubtful that any lawyer would have recommended signing the agreement given its deficiencies, as I will discuss under the next stage of the analysis. [ 46 ] In reaching my decision, I recognize that Ms.

Sampson was no shrinking violet. She did not stand silently by as tensions increased. She too lashed out. However, just because Ms. Sampson was not silent does not lessen her vulnerability. The home situation was one of high conflict, even if both parties played a role in its creation. The circumstances produced extreme vulnerability and a palpable power imbalance. This vulnerability was not mitigated by any independent legal advice which could have brought home the full implications of the agreement.

Substantial Compliance with Matrimonial Property Act [ 47 ] Does the agreement substantially comply with the provisions of the Matrimonial Property Act in light of the parties 20-year relationship? Ms. Sampson proved that it did not, for the following reasons: • There was no provision for the division of the substantial debt, which was, for the most part, held in Ms. Sampson’s name or the name of her company. Ms. Sampson is liable for the large CRA debt because she is the director of the company. • There was no provision for the sale of the home if Mr.

Sampson, twice bankrupt, was unable to payout the mortgage held in Ms. Sampson’s name. In such circumstances, the bank would continue to hold Ms. Sampson liable for the mortgage, while Mr. Sampson would be able to solely occupy the home. Further, Ms. Sampson’s ability to secure other credit would be compromised as long as she was named on the mortgage. • A subsequent appraisal of the matrimonial home confirmed that $60,000 did not represent an equal division of that asset. The tax assessment is not an accurate statement of the value of the matrimonial home in November 2018 . • At the time, Mr.

Sampson believed that the agreement also acted as a shield against Ms. Sampson’s spousal support claim and all other claims. • After receiving the $60,000 payout, Ms. Sampson signed the acknowledgement and deed because she was in desperate need of money. She did not sign these documents because she considered the kitchen table agreement to be an enforceable document. Ms. Sampson had no income, was facing mounting debt, and was trying to survive.

Further, she was not receiving any support payments. [ 48 ] I also note that the kitchen table agreement did not state that it was a final agreement or that either party was barred from making any further claims against the specified assets or any other assets. Such clauses are typically found in final separation agreements as these provisions underscore the intention of finality. The home-made agreement is scant on details about pivotal points and contains glaring omissions. Any ambiguity is subject to the contra proferentum rule. If there is an ambiguity, the preferred

interpretation is the one that does not favor the interests of the party who drafted the agreement. Because Mr. Sampson drafted the agreement, any ambiguity would favour Ms. Sampson.

Summary [ 49 ] I find that the one-page, kitchen table agreement should be vacated because Ms. Sampson proved both components of the stage one test. First, she proved that pressure and vulnerabilities tainted the negotiation process. In particular, financial disclosure was lacking; independent legal advice was absent; and vulnerabilities, pressure, and power imbalance arose from Ms. Sampson’s personal health and financial circumstances, and the toxic and high conflict home environment. Second, Ms.

Sampson proved that the kitchen table agreement did not substantially comply with the objectives of the Matrimonial Property Act. The agreement unfairly favoured Mr. Sampson. For example, there was no provision for the division of the substantial debts. There was no provision for the sale of the home should Mr. Sampson be unable to refinance the mortgage – a distinct likelihood given that he had previously filed two assignments in bankruptcy. [ 50 ] Based on the totality of the circumstances, Ms.

Sampson proved that the kitchen table agreement was unconscionable or unduly harsh, as stated in s. 29 of the Matrimonial Property Act . As a result, the kitchen table agreement is set aside, subject to Mr. Sampson being able to retain the home and receiving credit for the $60,000 payment made as part of the equalization transfer. [ 51 ] What are the assets and debts of the parties? [ 52 ] At this time, I will provide my findings about the parties’ assets and debt. In so doing, I note that I adopted the parties’ approach when dividing Ms. Sampson’s shares in ACP. When addressing the value and division of Ms.

Sampson’s shares, the parties simply valued and divided its assets and debts. As no other options were presented, I accepted that approach. Assets to be Divided [ 53 ] I will now address the value of the assets to be divided. Matrimonial Home

[ 54 ] The matrimonial home was appraised in February 2021 at $415,000. From this amount, disposition costs of $24,863 are deducted for commission, legal fees, and GST. Further, the mortgage balance of $223,949 is deducted. I used the November 2018 date and not the current balance in the unique circumstances of this case because Mr. Sampson already arranged the $60,000 payout. Thus, the equity in the matrimonial home for division purposes is $166,188. Household Contents [ 55 ] These were divided. Cube Vans [ 56 ] Mr. Sampson concedes that the two vans are valued at $5,000 each . Kawasaki Motorcycle [ 57 ] Ms.

Sampson states that the motorcycle owned by Mr. Sampson is worth $10,000; Mr. Sampson says $4,000. No appraisal was obtained. I set the value at $7,000. Kawasaki Vulcan [ 58 ] The parties value this asset at $4,000 . Snowblower [ 59 ] Ms. Sampson states that the snowblower is valued at $2,000; Mr. Sampson says $550. No appraisal was obtained. I set the value at $1,275 . Lawn Tractor [ 60 ] Ms. Sampson states that the lawn tractor is valued at $2,500; Mr. Sampson says $500. No appraisal was obtained.

I set the value at $1,500. 1974 Corvette and 2006 Mustang [ 61 ] I am satisfied these vehicles were purchased after the July 2017 separation and are therefore not included as matrimonial assets. Unauthorized ACP Bank Withdrawal [ 62 ] Each party blames the other for significant unauthorized withdrawals from ACP’s bank account. Of the amount claimed, I find that the sum of $24,133.81 represents the unauthorized withdrawals. I do not consider the cheques of $5,000 and $2,500 to be unauthorized. The $5,000 cheque, exhibit 27, was used to pay a business debt to Ocean Concrete. The $2,500 cheque was payable to Ms.

Sampson’s lawyer and was reported to the company accountant, who would have properly assigned it as taxable income to Ms. Sampson. [ 63 ] In contrast, I find the cash withdrawals do not represent withdrawals for business purposes. I find that the sum of $24,133.81 was removed by Mr. Sampson for non-business purposes. In reaching this conclusion, I note as follows: • Ms. Sampson was being treated for lung cancer, which included surgery, during the summer of 2018. As a result, Mr. Sampson was handling more of the business finances. The unauthorized expenditures were made from June to August 2018. • Mr.

Sampson’s salary was being used to pay the mortgage and all monthly bills, with the exception of groceries and credit card debt which Ms. Sampson paid. Mr. Sampson had very little money left over from his salary. • Mr. Sampson purchased a 1974 Corvette and a 2006 Mustang, together with parts to repair the Corvette. Around this time, he also paid expenses associated with his relationship with his girlfriend and had also retained a lawyer. Mr. Sampson was able to pay for these additional expenses because he had removed the money from ACP’s bank account. • Mr.

Sampson has a history of using business accounts for personal expenses, of not reporting cash, and of evading MEP garnishments by arranging to be paid in cash and having the bank accept his mortgage payments in cash. Candor is not Mr. Sampson’s strong suit. ACP Bank Balance [ 64 ] The closing bank balance was $2,193 . Chemical Line and Equipment [ 65 ] Mr. Sampson states that the chemical line has a value of $10,000. Ms. Sampson states that there is no value, as the company is out of business. Mr. Sampson values the tools and equipment at $200, while Ms. Sampson values them at $34,000.

There is no evidence as to value. I determine the equipment kept by Mr. Sampson equals the value of the chemical line retained by Ms. Sampson. Neither will be added to the equalization table. East Chester Property [ 66 ] The parties agree that this property is not matrimonial because Ms. Sampson was a joint owner with one of the children to assist with the purchase. Ms. Sampson is no longer an owner of the property.

Debts to be Divided [ 67 ] I will now address the debts, other than the mortgage, that will be divided. The personal debt will be valued as of separation. The corporate debt as of dissolution, because the parties each benefitted from the money earned from the business and both generally appear to acknowledge this approach. Capital One Judgment [ 68 ] The Capital One account was held in Ms. Sampson’s name. Ms. Sampson was unable to pay her bills because Mr. Sampson did not pay support despite the court order. A judgment of $3,816 is registered against the property, which Mr.

Sampson will be required to pay if he is to refinance to retain the home. The balance at separation was $1,815. This debt increased because Ms. Sampson was unable to make payments due to Mr. Sampson’s refusal to pay support. The separation balance will be used for division purposes, despite the balances increasing because of interest charges, and even though Mr. Sampson is responsible for its payment. BM Credit Card [ 69 ] The separation balance on Ms. Sampson’s card was $5,704. Home Trust Visa [ 70 ] The separation balance on Ms. Sampson’s card was $5,440.

Home Depot Credit Card [ 71 ] The separation balance on Ms. Sampson’s card was $511. PC Financial Credit Card [ 72 ] The separation balance on Ms. Sampson’s card was $352. ACP HST Owing [ 73 ] $26,046 is outstanding. ACP Corporate Taxes [ 74 ] There was a minor dispute about the amount of this account. I accept that $1,365 is outstanding, as indicated in the Notice of Collection found in one of the many papers located in tab D of exhibit 18. Bluenose Accounting [ 75 ] $2,300 is outstanding. ACP Credit Card [ 76 ] $8,244 is outstanding. Ocean Contractors [ 77 ] Mr.

Sampson says he paid off $21,628 of ACP’s account with Ocean Contractors. Ms. Sampson disagrees and says that it was a debt incurred by Mr. Sampson for his own business. [ 78 ] Tab D of exhibit 8, contains an email from Ocean Contractors confirming the balance of $14,477.60 as of October 26, 2018.

This is the balance that will be stipulated for division purposes. [ 79 ] What is the appropriate division of the assets and debts? [ 80 ] The following represents an equal division of the assets and debts of the parties: Asset Value Husband Wife Matrimonial Home $166,188 $166,188 Two cube vans $10,000 $10,000 Motorcycle $7,000 $7,000 Vulcan Motorcycle $4,000 $4,000 Snowblower $1,275 $1,275 Lawn Tractor $1,500 $1,500 ACP Withdrawals $24,134 $24,134 Bank Balance $2,193 $2,193 Total $216,290 $210,097 $6,193 Debt Balance Husband Wife

Capital One $1,815 $1,815 BMO Credit Card $5,704 $5,704Home Trust Visa $5,440 $5,440Home Depot $511 $511PC Financial $352 $352ACP HST $26,046 $26,046ACP Taxes $1,365 $1,365Bluenose Accounting $2,300 $2,300Appraisal Cost $460 $460ACP Credit Card $8,244 $8,244Ocean Contractors $14,478 $14,478 Total $66,715 $16,293 $50,422 Equity Husband $210,097 - $16,293 = $193,804 Wife $6,193 - $50,422 = ($44,229) Equalization Payment Husband’s Equity $193,804 - Wife’s Equity (44,229) = $238,033 /2 = $119,016.50 - $60,000 =$59,016.50. [81] Mr. Sampson owes Ms. Sampson $59,017 as an equalization payment.

The equalization transfer must be paid by June 15,2023, together with all maintenance arrears. It is not acceptable that Ms. Sampson will have to wait in excess of 18 years to collectoutstanding maintenance arrears.[i] The executed deed will continue to be held in trust pending Ms. Sampson’s receipt of theequalization payment; release from both the mortgage encumbering the home and liability for the registered judgment; and confirmationthat all maintenance arrears were paid. In the event that Mr. Sampson is unable to complete these requirements, the matrimonial homewill be sold to accomplish the division.

The court retains jurisdiction to determine all issues arising in the event the matrimonial homemust be sold. [82] Did Ms. Sampson prove she is entitled to spousal support? Position of Ms. Sampson [83] Ms. Sampson states that she is entitled to spousal support because of the role she assumed during the marriage, the financialsacrifices she made by staying at home to care for the home and family, and the significant disparity between her income and Mr.Sampson’s income. Finally, Ms. Sampson states that she can’t work because of her health. Position of Mr. Sampson [84] Mr.

Sampson denies entitlement for four reasons: • Ms. Sampson is qualified for full-time employment. She was employed before their relationship and also during the marriage. Shewas the owner of the concrete finishing business at the time of separation. She can earn $30,000 as she continues to control the sale ofthe chemical line. • Ms. Sampson acquired certifications during the marriage, such as the construction safety supervisor. • Ms. Sampson was not a traditional housewife who was exclusively in charge of the home and family. He helped too. • Ms. Sampson was not financially dependent on him during the marriage.

She earned her own income. She can continue to do so.From Mr. Sampson’s perspective, Ms. Sampson has no desire to work. Her failure to do so is not related to her health. Decision [85]

Section 15 of the Divorce Act provides me with the jurisdiction to award spousal support. Ms. Sampson bears the burden ofproof. In Bracklow v Bracklow, (SCC), [1999] 1 SCR 420, the Supreme Court of Canada confirmed that entitlement isgrounded in one, or more, of the following three principles: • Compensatory support to address economic advantages and disadvantages flowing from the marriage, or the roles adopted duringthe marriage.

• Non-compensatory support to address the disparity between the needs and means of the parties and arising from the marriage breakdown. • Contractual support, either express or implied. [ 86 ] The factors I must consider are stated in s. 15.2(4) of the Divorce Act : 15.2(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including: (

a) the length of time the spouses cohabited. (

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

c) any order, agreement or arrangement relating to support of either spouse. [ 87 ] The objectives to be considered are set out in s. 15.2(6) of the Divorce Act : 15.2(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should (

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

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

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

d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. [ 88 ] I find that Ms. Sampson proved entitlement to spousal support for the following reasons: • The parties lived together for about 20 years. • Ms. Sampson was primarily responsible for the care of the home and the children of the blended family. Ms. Sampson ’s employment was secondary to the needs of the family. Ms. Sampson only assumed a greater role in the business when the children needed less care. Ms.

Sampson lost an economic advantage because of the role she assumed during the relationship. • Mr. Sampson was the primary wage earner during the relationship. Even when the company was placed in Ms. Sampson’s name, the business was essentially operated by Mr. Sampson. It was a concrete finishing business – a continuation of the same business he had started about 30 years previously. The business was based on his skills and contacts. Although Ms. Sampson performed bookkeeping and administrative tasks, it was Mr. Sampson who found customers, completed the services, and had most of the business connections. • Mr.

Sampson provided the family with a comfortable lifestyle. Mr. Sampson was able to successfully focus on his career because of the roles assumed during the relationship. • At the end of their 20-year relationship, Mr. Sampson has a greater income earning ability than does Ms. Sampson. There is a significant disparity in the parties’ incomes and lifestyles. Ms. Sampson’s post-separation financial position is most challenging. In contrast, Mr. Sampson’s lifestyle was not significantly impacted by the separation. [ 89 ] In

summary, I find that Ms. Sampson has proven entitlement on both a compensatory and non-compensatory basis. [ 90 ] What are the incomes of the parties? [ 91 ] Each party urges me to impute income to the other. In contrast, each party says that I should not impute income to them. Position of Ms. Sampson [ 92 ] Ms. Sampson submits that Mr. Sampson earns an annual income of about $120,000. Her submissions are based on the following points: • Mr. Sampson’s new business is a continuation of their prior business. It does the same work. It has the same employees. Mr.

Sampson should, at a minimum, be earning as much as the family business was before, which was about $100,000, net of expenses. Further, Ms. Sampson states that she should be entitled to half of the net profits. • Mr. Sampson structures his business to minimize and hide his income, so that he doesn’t have to pay her support. Before the interim hearing, Mr. Sampson said that he would rather go to jail than pay her support. She said that Mr. Sampson followed through with his threat by failing to pay spousal support until his license was suspended. Mr.

Sampson did not voluntarily pay support until November 2020 after MEP enforcement processes caught up with him. • Mr. Sampson continues to structure his affairs to avoid paying spousal support. Ms. Sampson gave three examples: Mr. Sampson included his son as a shareholder to prevent enforcement against the company; Mr. Sampson pays for personal expenses through the company; and Mr. Sampson does not report all of his cash jobs as income. • Mr. Sampson should be collecting rent from his son who, in conjunction with his family, lives with Mr. Sampson.

[93] On the other hand, Ms. Sampson states that income should not be imputed to her, although she acknowledged receiving CERBbenefits in 2020. She states that she cannot work because of her health, noting that her doctors have assisted her with her CPP disabilityapplication. She is hoping to soon receive a positive response to her application. Position of Mr. Sampson [94] In his post-trial submissions, Mr. Sampson states his income for support purposes is $65,435.

He calculates this amount asfollows: • Annualizing his gross weekly pay of $1,060, plus his monthly CPP survivor’s benefit of $322; and • Adding the amortization expense of $5,870 to the PTCI, which allows him a notional dividend payment of $4,109, given that hisson owns 30% of the company; and • Adding back $2,384 to the PTCI for internet and telephone business expenses because of the personal component. [95] In addition, although Mr. Sampson recognizes that ACP could generate about $100,000 in net income, he says $30,000 of thiswas derived from chemical sales.

He says his business is not involved in chemical sales. [96] In addition, Mr. Sampson denies working in the underground economy. He says he reports all cash sales to CRA. He deniesany wrongdoing. Further, although Mr. Sampson agrees that some personal expenses are paid by the business, he states that hisaccountant ensures that such payments are properly designated as his income, and not as expenses to the company. [97] In contrast, Mr. Sampson submits that an income of $30,000 should be imputed to Ms. Sampson. From his perspective, she ismore than capable of working. In a text message to him, Ms.

Sampson confirmed that she had no intention of working because she wasgetting spousal support. This is unfair. [98] Mr. Sampson says that Ms. Sampson has options for self-sufficiency. First, she could earn an income from chemical sales ofabout $30,000. The email from Mr. Bebbington confirms that he is willing to work with Ms. Sampson and ship the product for her if heis paid by the client first. Mr. Sampson says that the sale of the chemicals would not require any physically or mentally demandingwork. Plus, from his perspective, Ms.

Sampson already has the business contacts and could easily transition back into sales. [99] Additionally, Mr. Sampson says that Ms. Sampson has other skills because of her bookkeeping and administrative workexperience. She is also a trained construction safety supervisor. Ms. Sampson must seek employment in the fields where she is trained orhas experience: Morris v Morris, 2005 NSSC 117. [100] Moreover, Mr. Sampson says the medical letters submitted by Ms. Sampson are deficient for two reasons. First, none are current.Second, the letters do not state that she is unable to work indefinitely. [101] In

summary, Mr. Sampson says that Ms. Sampson is healthy and capable of working. She registered a new sole proprietorship,East Coast Concrete Retarders, and has retained the chemical product from ACP, which she herself stated could generate at least $30,000per year. Decision [102] When determining the parties’ incomes, I am not restricted to that claimed for tax purposes. I have the discretionary authorityto impute income in appropriate circumstances. Further, when determining spousal support, the Divorce Act directs me to consider “thecondition, means, needs and other circumstances ...”.

Means has an expansive definition, as reviewed in Leskun v Leskun, 2006 SCC25: [29] There is no support in the case law or in logic for the proposition that the Chambers judge was wrong to take into account theappellant's capital assets acquired after the marital break-up. In Strang v. Strang, (SCC), [1992] 2 S.C.R. 112 (S.C.C.),the Court stated that the traditional understanding of the word "means" includes, "all pecuniary resources, capital assets, income fromemployment or earning capacity, and other sources from which the person receives gains or benefits" (p. 119). J. Payne and M.

Payneelaborate as follows: The word means includes all pecuniary resources, capital assets, income from employment or earning capacity, and any other sourcefrom which gains or benefits are received, together with, in certain circumstances, money that a person does not have in possession butthat is available to such person. (Canadian Family Law (2001), at p. 195). Income of Ms. Sampson [103] I set Ms. Sampson’s income at $12,000. At this time, I find that Ms. Sampson is not capable of full-time employment. I acceptMs. Sampson’s evidence.

With the assistance of her doctors, she has applied for CPP disability benefits. Ms. Sampson takes medicationfor her lungs (COPD), stomach, sleep, depression, PTSD, arthritis, and ADHD. She has chronic back pain with scoliosis. Some of thesymptoms experienced by Ms. Sampson were readily apparent during the trial. She was consistently disorganized, unfocused, restless,and had a short attention span. Ms.

Sampson’s ability to work is severely compromised, given her diagnosis and symptoms. [104] In reaching this conclusion, I am aware that the proffered medical information was dated and did not specifically address theemployment issue in as robust a manner as one would like. I am nonetheless satisfied that Ms. Sampson’s health severely limits heremployability. [105] I further find that Ms. Sampson will no longer earn an income from the sale of the chemical product. Ms. Sampson did not sellany chemical product in 2022. I find that she will not likely earn anything from this source in the future.

[ 106 ] In making my findings, I also weighed Ms. Sampson’s text message. Despite the text, I find that neither spite nor vengeance is the cause of Ms. Sampson’s lack of employment. Ms. Sampson is not working because she can’t. Ms. Sampson would have worked had she been able. Income of Mr. Sampson [ 107 ] I find that Mr. Sampson’s annual income is at least $75,000, for support purposes. Although I accept the income calculation of $65,435 provided by Mr. Sampson’s counsel, I would add about $10,000 more for the following reasons: • Mr. Sampson does earn money which is not reported.

He engaged in the cash economy in the past, with what I accept as documented proof during the fall of 2019, and he will do so in the future. • Mr. Sampson engages in barter, an exchange of work or services which has value. For example, Mr. Sampson said he bartered for a hot tub from a pool company, although he complained that he is still owed money. • Some of Mr. Sampson’s personal expenses are appropriately deducted as business expenses. These expenses, however, are neither taxed to the company nor to Mr. Sampson personally. A gross-up is thus appropriate. • Mr. Sampson is not credible. In his text, Mr.

Sampson was clear that he did not intend to pay support. He followed through with his text threat. Interim support was ordered payable as of May 2019. Mr. Sampson did not make regular support payments until November 2020 when MEP suspended his license and passport. Further, Mr. Sampson manipulated his pay deposits and mortgage payments to avoid paying the MEP garnishment.

Summary [ 108 ] Mr. Sampson proved that income of $12,000 should be imputed to Ms. Sampson. Ms. Sampson proved that income of $75,000 should be imputed to Mr. Sampson. [ 109 ] What is the appropriate spousal support order? Positio ns of the Parties [ 110 ] Mr. Sampson proposed a monthly spousal support payment of $1,106, while Ms. Sampson suggests a monthly payment between $3,000 to $4,000. Each party provided a budget in support of their needs. Both parties referenced the Spousal Support Advisory Guidelines .

Decision [ 111 ] In Strecko v Strecko , 2014 NSCA 66 and MacDonald v MacDonald, 2017 NSCA 34 , the Court of Appeal held that although the SSAG’s are not law, they are nevertheless a useful tool for the calculation of spousal support. Therefore, my primary focus must be on the factors and objectives stated in the Divorce Act , and as previously reviewed, while using the SSAG’s as a useful comparative tool. [ 112 ] In setting the appropriate quantum of support, I note the following: • Although Ms. Sampson has a compensatory and non-compensatory claim, Ms.

Sampson was nevertheless employed in the later stages of the relationship. Ms. Sampson’s employment was, however, always secondary to her responsibilities to the home and family. • Mr. Sampson was the primary wage earner and was able to concentrate on the development of his business because of the roles adopted during the relationship. • Mr. Sampson has a legal responsibility to pay support to Ms. Sampson. This legal obligation exceeds any assistance he wishes to provide to his adult children. Mr. Sampson should be charging rent to offset shared expenses, not incurring debt. • Ms.

Sampson is operating on a frugal budget. Many of the debts she has been carrying originated in the relationship and were left as her responsibility because they were not addressed in the kitchen table agreement. The debt is crippling and continues to negatively impact Ms. Sampson’s ability to meet her own needs. [ 113 ] Ms. Sampson’s budget is reasonable. She reduced her rent to $1,075. Heat and electricity are $120. Telephone is $75. Internet/cable are $68. Food is $600. Household supplies are $50. She needs a new car as she drives a 2009 vehicle with excess milage. Her current vehicle related expenses are $615.

Hair and grooming are $40. Drugs, dental and glasses are $250. She isn’t able to spend money on clothing, gifts, vacations, or entertainment. She also must pay income tax and make monthly debt payments. [ 114 ] In comparison, Mr. Sampson’s shelter expenses and transportation expenses are higher than those budgeted by Ms. Sampson. Some of Mr.

Sampson’s expenses could be reduced if his son and family paid their share. [ 115 ] I also have reviewed the SSAG’s which produce an award between $1,575 (low range) to $1,838 (mid-range) and $2,100 (high range). [ 116 ] In all the circumstances, I order that spousal support will continue at a rate of $1,800 a month, payable in two equal monthly instalments on the 15 th and last day of each month. Given the years of marriage and the parties’ circumstances, I will not grant a time limited order. [ 117 ] Further, I am refusing Mr. Sampson’s retroactive request, even though Ms. Sampson collected CERB in 2020.

I refuse to grant retroactive relief to the interim order because of Mr. Sampson’s conduct. Mr. Sampson had the ability to pay the interim support order, but refused to do so until he had no other option in November 2020 – about 17 months after the interim order issued. During this time,

Mr. Sampson continued his pre-separation lifestyle. [ 118 ] Even more concerning, Mr. Sampson undertook evasive and inappropriate actions to avoid MEP’s garnishment. For example, Mr. Sampson arranged to be paid in cash rather than by the usual bank deposit. He also arranged to make his mortgage payments in cash so that his bank account, where his mortgage payments ordinarily were deposited, would not be subject to the garnishment. [ 119 ] In contrast, Ms. Sampson was destitute. She used credit cards to survive and racked up an immense amount of debt, all repayable at high interest rates.

She used much of her equalization payment to pay down debt. [ 120 ] I recognize that in 2020, Ms. Sampson received CERB benefits. Had Mr. Sampson not gone to such lengths to obstruct and frustrate a court order, I would have granted some relief. In the circumstances, I will not. Conclusion [ 121 ] The following relief is granted: • A divorce. • An order changing Ms. Sampson’s surname to Titus. • An order vacating the kitchen table separation agreement. • An order dividing the assets and debts as stated, including a further equalization payment of $59,017, payable by Mr. Sampson to Ms.

Sampson . • An order setting Ms. Sampson’s annual income at $12,000 and Mr. Sampson’s annual income at $75,000. • An order requiring Mr. Sampson to continue to pay $1,800 in spousal support. The outstanding maintenance arrears will be added to the equalization payment and paid out as part of Mr. Sampson’s refinancing. • Both parties must provide the other with their personal income tax returns and assessments. Mr. Sampson must also provide a copy of his corporate return and financial statements and assessments on June 1 of each year. Ms. Sampson must forthwith notify Mr.

Sampson if her CPP disability application is approved, including the amount she will be receiving. • A denial of Mr. Sampson’s application for retroactive relief. [ 122 ] Ms. Hicks is to prepare the divorce and corollary relief orders. Although there appears to be mixed success, either party may make costs submissions, especially if there was a settlement offer in keeping with the outcome of this decision. [ 123 ] I also wish to thank Ms. Hicks for her professional and organized advocacy in the face of a difficult file.

Forgeron, J. [i] The MEP Record of Payment notes that, as of May 5, 2022, $11,015.48 are the outstanding arrears. $11,015.48 / $50 = 220.31 months / 12 = 18.36 years.