Sheila Rhyno v. Burton Rhyno, 2023 NSSC 348

Supreme Court of Nova Scotia (FAMILY DIVISION) Citation: Sheila Rhyno v. Burton Rhyno , 2023 NSSC 348 Date: 20231103 Docket: SFH No. 1201-074013 Registry: Halifax Between: Sheila Rhyno Petitioner v. Burton Rhyno Respondent Library Heading Judge: The Honourable Justice Ingersoll Heard: January 19, and May 29, 2023, in Halifax, Nova Scotia Written Decision: November 3, 2023

Summary: Petitioner’s request for an unequal division of property was denied. The parties’ assets were valued and divided equally. The parties agreed to orders dividing the Respondent’s military pension and with respect to the sale of the matrimonial home. The Petitioner was awarded spousal support on a compensatory and non-compensatory basis on a historic and prospective indefinite term basis.

Key Words: Spousal support, compensatory support, non-compensatory support, spousal support advisory guidelines, matrimonial property, equal division, valuation, occupation of the matrimonial home, sale of the matrimonial home, divorce, corollary relief. Legislation: Divorce Act , R.S.C. 1985 (2 nd Supp.), c. 3 Matrimonial Property Act , R.S.N.S. 1989, c. 275 THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET. SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: Sheila Rhyno v.

Burton Rhyno , 2023 NSSC 348 Date: 20231103 Docket: SFH No. 1201-074013 Registry: Halifax Between: Sheila Rhyno Petitioner v. Burton Rhyno Respondent

Judge: The Honourable Justice Ingersoll Heard: January 19, and May 29, 2023, in Halifax, Nova Scotia Written Submissions: Ms. Hounsell-Gray KC, July 7, 2023 Ms. McCarthy, July 28, 2023 Written Release: November 3, 2023 Counsel: Ms. Hounsell-Gray KC, counsel for the Petitioner Laura McCarthy, counsel for the Respondent By the Court: 1 Introduction [ 1 ] Sheila Rhyno and Burton Rhyno separated after almost 48 years of marriage. During their marriage Mr. Rhyno served in the military while Ms. Rhyno assumed primary responsibility for raising their children and running the household.

Now in their late 60s, their two principal assets are their home and Mr. Rhyno’s military pension. They have agreed to split the pension and I have, with the parties’ consent, ordered their home be listed for sale. These agreements leave the following issues for me to resolve: 1. Should the divorce be granted? 2. What are the matrimonial assets subject to division? 3. Is Ms. Rhyno entitled to an unequal division of matrimonial assets or to a division of non-matrimonial assets? 4. Is Ms. Rhyno entitled to prospective spousal support and if so in what amount and for what duration? 5. Is Ms.

Rhyno entitled to historic spousal support and if so in what amount? 6. Has Mr. Rhyno breached the Intimate Images and Cyber-protection Act thereby entitling Ms. Rhyno to compensation and if so in what amount? [ 2 ] I will now address each of these issues. 2 Should the Divorce be Granted? [ 3 ] The parties were married in Nova Scotia on April 20, 1974, and separated on September 10, 2021 (the Separation Date). The Petition for Divorce was filed on March 10, 2022, and served on April 4, 2022. An Answer was filed on April 12, 2023, and served on May 12, 2022.

The Petition, the Answer, the Affidavit and acknowledgement of service and the long form marriage certificate were tendered as exhibits. [ 4 ] The parties have not reconciled, and I am satisfied that there is no possibility of reconciliation. The parties have both lived in Nova Scotia continuously since 1991. I am satisfied that the jurisdictional requirements for the granting of a divorce have been met, and there is proof of permanent marriage breakdown.

There is no bar to divorce such as collusion, condonation, or connivance. [ 5 ] I grant the divorce. 3 What are the matrimonial assets subject to division? [ 6 ] All assets owned by the parties are presumed to be matrimonial assets regardless of ownership and are to be divided in equal shares under

Section 12 of the Matrimonial Property Act R.S.N.S. 1989, c. 275, s. 1 (hereafter the MPA). [ 7 ] Ms. Rhyno seeks an unequal division of matrimonial assets. [ 8 ]

Section 13 of the MPA permits me to divide matrimonial assets unequally or make a division of property that is not a matrimonial asset, provided I am satisfied an equal division of matrimonial assets would be unfair or unconscionable considering the factors set out in

Section 13. ( Wolfson v Wolfson , 2023 NSCA 57 ). Prior to considering whether to grant any relief pursuant to

Section 13 of the MPA I must first equally divide the matrimonial assets and then consider if that equal division is unfair or unconscionable. 3.1 Matters Resolved by Agreement

[ 9 ] The parties agree that a Separation Agreement which they signed on November 17, 2021, is not binding. [ 10 ] The parties agreed and orders dated March 2, 2023, were issued mandating: 1. A division of Mr. Rhyno’s military pension. 2. The listing of the matrimonial for sale. 3. That the proceeds from the sale of the matrimonial home be held in trust following the sale. 4. Mr. Rhyno to obtain a valuation of the musical instruments, the 2013 Polaris side by side, the cargo trailer and the motorcycles. 5. Ms.

Rhyno to obtain valuations for both vehicles in her possession. [ 11 ] With these orders granted, there remain to be resolved the sale and determination of the net sale proceeds of the matrimonial home, the value of the parties’ RRSPs, TSFAs, vehicles, household furnishings, musical instruments, and the line of credit. 3.1.1 Matrimonial Home [ 12 ] I ordered that the matrimonial home be listed for sale and that the sale proceeds be held in trust. [ 13 ] Real Estate Agent Santiago Salgueiro testified on May 29, 2023, that he had met separately with the parties and was prepared to act as listing agent for the matrimonial home.

He had attended at the matrimonial home three times and advised as to steps required to prepare the home for listing and to maximize its market value which he thought was in the range of $460,000 to $470,000. These steps included cleaning, decluttering, addressing the smell of smoke in the home, some drywall repair, and the addition of flooring transition strips. Mr. Salgueiro testified that the repairs he identified were small enough that he did not think that they would have a huge effect on market value if completed.

He testified that cleaning and decluttering were the most important steps to be taken to maximize value. He testified that the state of the home in terms of cleaning and decluttering had improved on each of his visits to the home. He testified that the property was ready for listing for sale if the parties could agree to do so. [ 14 ] Mr. Salgueiro testified that his first visit to the home was on March 10, 2023, with Ms. Rhyno. Mr. Salgueiro testified that he attended at the home at the scheduled time of 10:00 a.m. but was not able to gain access to the home until 12:00 p.m.

The RCMP were called that day to facilitate Ms. Rhyno’s attendance at the home. [ 15 ] Mr. Salgueiro testified that Mr. Rhyno had signed the listing agreement, but Ms. Rhyno had not. At trial Ms. Rhyno objected to setting a listing date for the property as she felt the property needed to be decluttered more before being listed as she wished to maximize value in the home. [ 16 ] In her post hearing submission of July 7, 2023, Ms. Rhyno submitted the matrimonial home must be immediately listed for sale and sold. She submitted that Mr.

Rhyno must vacate the property immediately and that she be made solely responsible for the sale. She also seeks to have the Line of Credit paid in full to complete the sale of the matrimonial home and that the full amount of that payment be deducted from Mr. Rhyno’s share of the net sale proceeds. [ 17 ] In his post hearing submission of July 28, 2023, Mr. Rhyno asks that I set a date by which Ms. Rhyno must remove her personal items from the matrimonial home.

He seeks to have the home immediately placed on the market for sale and that he be permitted to remain in the home pending sale. [ 18 ] My March 2, 2023, order directed that the matrimonial home be listed for sale and Mr. Rhyno vacate the home by April 29, 2023. He did not vacate the matrimonial as directed in the order and the home was not listed for sale by the last day of the trial on May 29, 2023. Mr.

Rhyno’s July 28, 2023, request that the matrimonial home be placed on the market raises the inference that the home had not, by then, been listed for sale. [ 19 ] My March 2, 2023, order that the matrimonial home be listed for sale and sold remains in place. [ 20 ] If the matrimonial home has been sold, or if not yet sold, when it is sold, I direct that the Line of Credit associated with the matrimonial home be paid out of the sale proceeds and that the real estate commission and legal fees associated with the sale be deducted from the sale proceeds.

The remaining funds (the net sale proceeds) will be held in escrow by the parties’ real estate lawyer and distributed as directed in this decision. [ 21 ] If Mr. Rhyno is still occupying the matrimonial home, he is to vacate the home on the earlier of December 1, 2023, or five days prior to the closing date for the sale of the matrimonial home. When Mr. Rhyno vacates the matrimonial home, he is to leave the home empty and free of personal belongings or items other than Ms. Rhyno’s remaining items. All appliances and fixtures must remain in the home. Mr.

Rhyno is ordered to leave the home in a clean condition ready for closing. [ 22 ] If the matrimonial home has not been listed for sale, I order the parties to immediately list the matrimonial home for sale. If the parties are unable to agree on the terms of the listing agreement, I grant Ms. Rhyno the authority to list the matrimonial home for sale. Mr.

Rhyno is directed to make the matrimonial home available for showings as requested by the listing agent and to ensure that the home is maintained in a clean uncluttered condition at each showing. [ 23 ] If the parties are unable to agree on the acceptance of an offer by a prospective purchaser, I grant Ms. Rhyno the right to accept an offer to purchase the matrimonial home and take all steps necessary and execute all necessary closing documents including but not limited to the deed transferring title to the matrimonial home.

[24] If upon Mr. Rhyno vacating the matrimonial home, it is not cleaned to Ms. Rhyno’s satisfaction her lawyer must advise Mr.Rhyno’s lawyer of the cleaning deficiencies and give him 48 hours to clean the matrimonial home. If he refuses or fails to clean thematrimonial home as requested, Ms. Rhyno may have the home cleaned professionally. The reasonable cleaning costs incurred by Ms.Rhyno will be deducted from Mr. Rhyno’s share of the net sale proceeds. Mr. Rhyno has had the benefit of living in the matrimonialhome since the Separation Date.

The benefit of that occupation justifies the requirement that he leave the home in a clean condition andthat he bear the burden of any required cleaning costs. [25] Ms. Rhyno is to remove her remaining items from the matrimonial home within one week of this decision if Mr. Rhyno hasalready vacated the matrimonial home. If Mr. Rhyno is still in the matrimonial home, Ms.

Rhyno will remove her remaining itemswithin 48 hours of the day he ceases occupying and vacates the matrimonial home. [26] If either party requires further judicial direction regarding the orders set out in this decision or regarding the condition of oraccess to the matrimonial home, they may file a motion clearly setting out the relieve sought and the basis for that relief which motion Iwill hear on short notice.

I reserve jurisdiction to address matters regarding the condition, listing, sale, or occupation of the matrimonialhome. 3.1.2 RRSP and TSFAs [27] The parties agree that their RRSPs and TSFAs are matrimonial assets but do not agree on the proper valuation date andconsequently do not agree on their value for the purposes of equalization. [28] Ms. Rhyno says that the parties’ TSFA were equalized at separation and should be excluded from the asset valuation chart. Mr.Rhyno does not agree that the parties’ TSFA have been equalized and should not be further divided. [29] Ms.

Rhyno submits that her RRSP values of $122,281.65 and TSFA value of $21,025.20 as of May 7, 2022 (the date of hersworn Statement of Property) should be used. [30] Mr. Rhyno agrees with Ms. Rhyno’s RRSPs valuation of $122,281.65 but says that her TSFA should be valued at $41,574.55which was its 2019 value. Mr. Rhyno says that in her September 7, 2022, affidavit Ms. Rhyno deposed that her TSFA had a value of$21,025.20 and that evidence at trial established that as of May 29, 2023, it had a value of $15,053.55. Mr. Rhyno says that the 2019value should be accepted as the separation date value because Ms.

Rhyno withdrew $26,621.21 from her TSFA following separation. [31] Ms. Rhyno was cross examined regarding her TSFA. Ms. Rhyno’s uncontested evidence was that she managed the parties’funds prior to separation. Ms. Rhyno denied withdrawing $20,000 from her TSFA prior to May 12, 2022 (the date she swore herStatement of Property). She testified that when she and Mr. Rhyno separated, she took half of the TSFA and Mr. Rhyno took his half. [32] I do not have any evidence regarding the balances of parties’ TSFA’s as of the Separation Date. Mr.

Rhyno alleges that Mr.Rhyno has withdrawn funds from her TSFA since separation which Ms. Rhyno denies. Mr. Rhyno has not advanced any evidence byway of bank records to support his TSFA withdrawal position. Ms. Rhyno says that at separation the parties spilt the TSFA evenly. Ms.Rhyno’s May, 12, 2022 TSFA valuation is just over half of the 2019 TSFA value. Based on the lack of evidence of post separationTSFA withdrawals and given Ms. Rhyno’s explanation of the 2022 TSFA account balance, I find that the TSFA value on Ms.

Rhyno’sMay 12, 2022, Statement of Property is the best evidence of the TSFA account value as of the Separation Date. [33] In Simmons v. Simmons, (NSSF), Justice D. Campbell outlined the general principles for determining thedate for valuing assets. The Court of Appeal has endorsed these principles in Moore v. Moore, 2003 NSCA 116 at paragraph 24, and inMorash v. Morash, 2004 NSCA 20 at paragraph 21. Based on those principles, I find that Mr. Rhyno’s RRSP and TSFA valuationsclosest to the Separation Date (which are 2022 valuations) should be used and as a result I find that Mr.

Rhyno’s RRSPs were valued at$122,281.65 and her TSFA at $21,025.20 for the purposes of matrimonial property division. [34] Mr. Rhyno’s April 11, 2022, sworn Statement of Property states that his RRSP, as of February 2022, had a value of $28,493and that his TSFA, as of February 2022, had a value of $15,761. These amounts are not challenged by Ms. Rhyno. I accept Mr.

Rhyno’sRRSP value of $28,493 and his TSFA value of $15,761for the purposes of matrimonial asset equalization. [35] The parties agree that for the purposes of matrimonial property equalization that the RRSPs should be reduced by 30% toreflect their after-tax values. I will adopt that agreed upon approach. 3.1.3 Vehicles [36] The parties agree that their Sonata, Miata, Vespa, Ford 2018 truck, and the motorcycles are matrimonial assets and must bevalued and distributed among them. The parties agree Ms. Rhyno should retain possession of Sonata, Miata, and Vespa and Mr.

Rhynowill keep the Ford F-150 truck and the motorcycles. Ms. Rhyno also includes in her equalization chart a four-wheeler and a trailer. Theparties do not agree that the F-150 truck loan is a matrimonial debt. [37] Although ordered to do so, Mr. Rhyno did not tender an appraisal of the three motorcycles, the 2013 Polaris side by side, or thecargo trailer in his possession. Ms. Rhyno did not tender an appraisal of the vehicles in her possession but did tender some documentsregarding values of comparable vehicles.

Neither party called a witness to speak to the value of any of these vehicles. [38] I will value each of these assets in turn. (

a) Sonata – Ms. Rhyno’s Sonata is a 2013. The evidence does not indicate the mileage on the vehicle. She estimated the valueof the Sonata at $10,000 in her sworn Statement of Property. Ms. Rhyno tendered two sale listings for 2013 Sonatas. These two listings were $7,500 and $8,109 for 2013 Sonatas.

Mr. Rhyno proposes that I value the Sonata by averaging these two quotes. I agree with approach. In the absence of any evidence from Mr. Rhyno as to value for the Sonata I will average the two listings tendered by Ms. Rhyno at $7,804.50. (

b) Miata – Ms. Rhyno’s Miata is a 2004. The evidence does not indicate the mileage on her vehicle. She estimated the value of the Miata at $11, 000 in her sworn Statement of Property. Ms. Rhyno tendered two sale listings for 2004 Miatas on Facebook Marketplace. These two listings were $15,000 (listing for a 2004 Miata with 65,000 kilometers) and $9,000 (but absent any details regarding the Miata’s mileage). Mr. Rhyno proposes that I value the Miata by averaging these two quotes. I agree with that approach. In the absence of any evidence from Mr. Rhyno as to value for the Miata I will average the two listings tendered by Ms. Rhyno at $12,000. (

c) Vespa – Mr. Rhyno purchased the Vespa in 2019 for $3,044.05. She tendered an extract from the “Blue Book” published on February 13, 2013, which indicates a “Retail Clean” value of the Vespa at $1, 400. Ms. Rhyno’s evidence was that the dealership she spoke with told her the Vespa might be worth $1,100 with repairs. Ms. Rhyno has not had access to the Vespa as it stored at the Matrimonial Home. I find that she was limited in her ability to complete a proper valuation of the Vespa. I find that the Vespa should be valued using the “Blue Book” of $1,400 value which value I note is accepted by Mr. Rhyno. I assign that value to the Vespa. (

d) Ford F-150 2018 XLT truck – the truck is in Mr. Rhyno’s possession. He tendered a document which he obtained from Fairly & Stevens in Dartmouth that summarized prices for eleven 2018 Ford F-150 XLTs. The document indicates that the average price was $35,612 and notes “Our Price” as being “$35,000”. The second page of the exhibit contains a handwritten number $30,000. Ms. Rhyno submitted a document that she obtained from Ford which indicates an Average Market Price for the vehicle at $35,834.

As neither party called a witness to speak to the value of the truck, I am left to determine the price based on the documents before me. The parties have each tendered documents that value the truck in the $35,000 range. As I do not have a satisfactory explanation as to what the handwritten note of $30,000 means I will value the truck at $35,000 for the purposes of equalization of matrimonial assets. The Ford F-150 XLT has a loan of $28,132.09. Ms. Rhyno says that the truck loan should be Mr.

Rhyno’s responsibility but does not provide any authority for allocating what appears to be a matrimonial debt exclusively to one party. I consider the truck loan to be a matrimonial debt for the purposes of matrimonial asset equalization. (

e) Motorcycles – Mr. Rhyno has three motorcycles in his possession: a 1992 Sportster Motorcycle, a 1998 Dyna Motorcycle and a 2006 Road King, his sworn Statement of Property indicates values of $2,000, $3,000, and $5,000, respectively. Mr. Rhyno was ordered to have motorcycles appraised; notwithstanding this order he offered no evidence regarding the market value of these motorcycles. Mr. Rhyno was in the better position to secure appraisals of these vehicles or tender valuation information. He tendered no evidence (other than his Sworn Statement of Property) regarding the value of these motorcycles. Ms.

Rhyno’s Sworn Statement of Property indicates values of $5,000, $8,000, and $12,000, respectively. (f) 1992 Sportster – Ms. Rhyno testified that she attended the Harley Dealership and advised them that the 1992 Sportster was not currently “running” and that she was advised that the motorcycle had a value of $5,000. Mr. Rhyno tendered a document which she believed was from “Blue Book” which indicated a value of $4,100 for a 1992 Sportster in good condition and $2,500 for one in fair condition. Ms. Rhyno testified that the body of the 1992 Sportster is good and that if Mr.

Rhyno installed a carburetor, it would be good. Ms. Rhyno also tendered what appears to be pages from an internet search which indicates values for 1992 Sportster at $1,520 for good and $750 for fair. These latter figures are of little assistance to me as they are not explained and, in any event, fall well below the value Mr. Rhyno assigned to the 1991 Sportster in his Statement of Property. Mr. Rhyno offered no evidence regarding the condition of the 1992 Sportster.

Based on the evidence before me, I fix the value of the 1992 Sportster at $3,300 which is the midway point between the $4,100 good condition value and the $2,500 fair condition value given the fact that the motorcycle requires some repair before being operational. (g) 1998 Dyna Motorcycle - Ms. Rhyno tendered a document from Harley Davidson indicating a retail rough value (because the motorcycle was not “running”) of $3,800. Mr. Rhyno offered no evidence regarding the condition of the 1998 Dyna Motorcycle or its value.

Based on the evidence before me I fix the value of the 1998 Dyna Motorcycle at $3,800. (h) 2006 Road King - Ms. Rhyno tendered a document form Harley Davidson indicating a retail average value of $7,200. Mr. Rhyno offered no evidence regarding the condition of the 2006 Road King or its value. Based on the evidence before me I fix the value of the 2006 Road King at $7,200. (

i) Four-Wheeler – Mr. Rhyno has a 2013 Polaris Razer Side by Side (also referred to as the four-wheeler) in his possession. Mr. Rhyno’s sworn Statement of Property dated April 11, 2022, states that the four-wheeler is worth $6,000; Ms. Rhyno’s sworn statement of property stipulates a value of $10,000 for this vehicle. She offered evidence that the four-wheeler has a value of $11,000 based on her conversation with the Polaris Dealer. Ms.

Rhyno tendered a listing price from Facebook Marketplace indicating a value of $16,650 for a RZR S 800 Cherry Red Sport with upgraded Fox suspension with mileage of 2,257 kilometers. On cross examination Ms. Rhyno admitted that she did not know the milage on the four-wheeler in Mr. Rhyno’s possession, that it was not cherry red in colour, that she thought the four-wheeler was an 800 series not a 750 series and that she did not know that the four-wheeler had engine trouble. Mr. Rhyno offered no evidence regarding the condition or price of the four-wheeler. Mr. Rhyno says that the four-wheeler is worth $6,000.

Given the document submitted by Ms. Rhyno and discounting the price set out therein to take into account the fact that the Marketplace listing is not in respect of the same vehicle I fix the value of the four-wheeler at $10,000.

(

j) Cargo Trailer - Mr. Rhyno has the Cargo Trailer in his possession. Mr. Rhyno’s sworn Statement of Property states that the Cargo Trailer is worth $3,000; Ms. Rhyno’s sworn statement of property stipulates a value of $5,000 for the Cargo Trailer. Ms. Rhyno testified that she and Mr. Rhyno paid $6,500 for the Cargo Trailer and she was told that the Cargo Trailer had a value of $4,500. As I have no other evidence as to the value of the trailer, I fix its value at $4,500 for the purposes of matrimonial asset equalization. 3.1.3.1 Musical Instruments [ 39 ] Mr.

Rhyno’s sworn Statement of Property identifies Musical Instruments under the Household item category but does not specify the number or nature of those instruments. A value of $1,000 is given as of February 2022 for the unspecified instruments. All instruments are in Mr. Rhyno’s possession. Ms. Rhyno’s sworn Statement of Property also identifies without breakdown that Mr. Rhyno has instruments in his possession and that their value is $12,000 to $15,000. [ 40 ] Mr. Rhyno was ordered to secure a valuation for his instruments. He did not do so. [ 41 ] Ms.

Rhyno tendered a screen shot of an Instagram account owned by 57gibsonlespaulsd which she thought was Mr. Rhyno’s account. She says the room depicted in the photograph in the screenshot was her old sewing room as she recognized the wallpaper in the photo. The photo shows five guitars. Mr. Rhyno denied that this is an account he operates. [ 42 ] Ms. Rhyno testified that Mr. Rhyno owned at least six guitars as of the Separation Date. Ms. Rhyno was cross examined as to what instruments Mr. Rhyno had prior to separation. Notwithstanding this line of questioning Mr.

Rhyno himself never advised the court which musical instruments he owned as of the Separation Date. [ 43 ] Ms. Rhyno tendered a page taken from what she thought was an Instagram account. The account is entitled “taz_ and_chevy” which Ms. Rhyno understood to be another account owned by Mr. Rhyno. This photo on the page is of her rec room and depicts several guitars and a keyboard. The page is dated October 13, 2019. She tendered two more pages from the same account from October and December of 2019 which pages each depict one guitar. [ 44 ] Ms.

Rhyno tendered several Instagram pages from dates after the Separation Date which pages identify guitars and a drum kit with cymbals. Ms. Rhyno tendered a price sheet from Long & McQuade identifying a range of prices for cymbals. She admitted that she did not know exactly what cymbals were in Mr. Rhyno’s possession. Mr. Rhyno tendered photos depicting drum kits with cymbals, additional drums, a keyboard, an amp, and guitars. He did not offer any evidence that any of those instruments were purchased after the Separation Date. [ 45 ] I am satisfied that Mr.

Rhyno owned at least six guitars, a keyboard, and a drum kit as of the Separation Date. Mr. Rhyno offered no evidence as to the number of instruments he owned at separation or the value of those instruments notwithstanding an indication that he would do that during the first part of the trial. All the musical instruments were in Mr. Rhyno’s possession. Mr. Rhyno should have identified and provided objective evidence regarding the value of the instruments. As noted by Justice Boudreau in Robinson v. Robinson , [1992] N.S.J.

No. 63 it is not the function of the court be “become appraisers of household contents, item by item, which would undoubtedly result in an unnecessary and inefficient use of court time.” That said I must exercise my discretion and determine what I consider to be a fair value for the instruments which are in Mr. Rhyno’s possession. [ 46 ] I am not satisfied that Mr. Rhyno’s value of $1,000 is a fair valuation of the instruments he held as of the Separation Date. Conversely, I am not satisfied that Mr. Rhyno’s valuation of the instruments at between $12,000 and $15,000 is accurate.

I will select the midway point between Mr. Rhyno’s valuation and Ms. Rhyno’s lowest estimate and value the instruments held as of the Separation Date at $6,500 for the purposes of matrimonial asset equalization. 3.1.4 Household Furnishings [ 47 ] I have no evidence regarding the value of the contents of the matrimonial home other than the musical instruments. Ms. Rhyno left the matrimonial home and its contents when the parties separated. After the trial commenced Ms. Rhyno attempted to return and retrieve items in the home which she wished to retain.

The visits to the home were acrimonious with allegations of improper conduct occurring while Ms. Rhyno was at the home. As a result of the allegations against Ms. Rhyno, with my approval, Ms. Rhyno engaged a lawyer not involved in this case to accompany her on April 28, 2023, on a court facilitated attendance at the home to enable Ms. Rhyno to remove items she wished to keep in her possession. The lawyer’s mandate was to observe and report to the court as to her observations of the state of the home and the conduct of Mr. and Mrs. Rhyno.

The lawyer, Jennifer Reid prepared a report in respect of her observations that day and testified at trial. I accept Mr. Reid’s report and her testimony as an accurate account and depiction of the state of the matrimonial home and the conduct of the parties on April 28, 2023. The police attended on that occasion as well, this time called by Mr. Rhyno. [ 48 ] Mr. Rhyno was not present in the home April 28, 2023, but was in his vehicle parked on the road in front of the home. Ms. Reid testified that Mr. Rhyno yelled at Ms.

Rhyno because of one of the persons she had brought with her to help her move her items from the home. That person elected to not enter the home and assist Ms. Rhyno. Ms. Reid testified that after yelling at Ms. Rhyno, Mr. Rhyno drove off and then parked his vehicle “nose to nose” with Ms. Rhyno’s moving van. Ms. Reid testified that Mr. Rhyno was in and out of his vehicle walking around on the street and took photos of the moving van. At the conclusion of her attendance at the property, Ms. Reid testified that she walked past Mr. Rhyno and that he then approached her after she was seated in her vehicle. Ms.

Reid testified that she advised Mr. Rhyno that Ms. Rhyno was not taking all her items from the home that day at which point he became escalated causing Ms. Reid to roll up her window and drive away as she felt intimidated. [ 49 ] Ms. Reid testified that a woman with Mr. Rhyno on April 28, 2023, was loud and volatile and yelled at Ms. Rhyno and her friend. Ms. Reid testified that the woman was quicker to escalate than Mr. Rhyno. Ms. Reid testified that when Ms. Rhyno opened a trailer on the property both Mr. Rhyno and the woman yelled at Ms. Rhyno and the woman started to approach Ms.

Rhyno by walking up the driveway toward Ms. Rhyno.

[ 50 ] The photographs taken by Ms. Reid show the home including the garage to be cluttered and disorganized. [ 51 ] On April 28, 2023. Ms. Rhyno removed several of the items she wished to retain which items were documented in Ms. Reid’s report. Ms. Rhyno marked and left the following items in the home: a china cabinet, chairs and dining room table, a brown dresser with clear handles and the Vespa. The parties agreed that Ms. Rhyno can at some point retrieve these items. [ 52 ] The rental vehicle that Ms.

Rhyno took to the property on April 28, 2023, was not large enough to remove all the items she wishes to remove from the property that day. [ 53 ] Ms. Rhyno marked several items as disputed as the parties could not agree on which of them should retain those items all of which were identified in Ms. Reid’s report of May 3, 2023, which was provided to both parties. In an affidavit sworn on May 11, 2023, Mr. Rhyno deposed that Ms. Rhyno could have the disputed items except for the mirror (from a dresser), the downstairs freezer and three paintings which he intended to give to the parties’ children.

The disputed items which Mr. Rhyno could keep were the photo of the Tudor house, the photo of a house on a river, a candle from Germany, a dresser, matching tall boy and two nightstands. The parties agreed that Ms. Rhyno can at some point retrieve these items. [ 54 ] Mr. Rhyno attached photos to his May 11, 2023, affidavit depicting what he deposed was the home’s readiness for listing for sale. I find that the photos attached to Mr.

Rhyno’s affidavit which show a tidy kitchen and living room were taken prior to April 28, 2023, at which time those rooms were heavily cluttered and disorganized. [ 55 ] The parties appeared before me by way of an emergency appearance on August 3, 2023, requested by Ms. Rhyno as she asserted that Mr. Rhyno had placed all her items outside the matrimonial home in the lawn. Mr. Rhyno denied that he had placed Ms. Rhyno’s items on the lawn. I accepted his evidence. At that appearance I granted Ms. Rhyno the right to attend the matrimonial home between August 3 and August 11, 2023 (with 24 prior hours notice to Mr.

Rhyno) to retrieve her items. Mr. Rhyno was ordered to not be within 500 feet of the home when Ms. Rhyno attended there to pick up her items. [ 56 ] Counsel for Ms. Rhyno wrote to the court on September 11, 2023, advising that the parties had agreed that Mr. Rhyno’s belongings could remain in the home for staging purposes. [ 57 ] I have given direction as to when Ms. Rhyno must remove her personal items from the home. I direct Mr. Rhyno to leave Ms.

Rhyno’s items in the home if it has not yet sold and to return them if they were removed. [ 58 ] If the home has been sold and the items are no longer available for retrieval by Ms. Rhyno, I will permit her to make submissions regarding the value of any item that she could not retrieve or have returned to her. Ms. Rhyno must make such submissions within ten days of this decision. Mr. Rhyno will have ten days from the date of Ms. Rhyno’s submission to respond with his view as to the value of the items and whether any relief should be granted in respect of those items. [ 59 ] I understand that Ms.

Rhyno agrees that Mr. Rhyno may keep any items in the matrimonial home not mentioned herein. I understand Mr. Rhyno is not seeking to value or equalize any items Ms. Rhyno removed from the matrimonial home. For these reasons I will not include household items on the matrimonial asset chart for the purposes of identifying the required equalization payment. 3.1.5 Line of Credit [ 60 ] Mr. Rhyno’s sworn Statement of Property dated April 11, 2022, states that the Line of Credit had a balance of $23,813.39 as of April 2022 (and a previous balance of $18,500 as of February 2022). [ 61 ] Mr.

Rhyno submits that the line of credit debt of $23,813.39 is a matrimonial debt. Mr. Rhyno says that he was unable to get a print out of the balance of the Line of Credit as of the Separation Date because the account was frozen. [ 62 ] Ms. Rhyno’s sworn Statement of Property dated May 12, 2022, states that the Line of Credit had a $5,000 balance at separation. At trial, Ms. Rhyno tendered evidence to show that the Line of Credit did not have a balance as of the Separation Date and that any balance thereafter are in respect of funds withdrawn by Mr. Rhyno after the separation. Ms.

Rhyno says that as of the Separation Date the Line of Credit did not have a balance and therefore is Mr. Rhyno’s responsibility. [ 63 ] Mr. Rhyno did not tender any evidence to quantify the balance of the Line of Credit as of the Separation Date or to challenge Ms. Rhyno’s assertion that the Line of Credit did not have a balance at separation. I find that the Line of Credit had no balance at Separation Date and that the debt will be excluded for the purposes of matrimonial asset equalization. [ 64 ] Mr. Rhyno missed payments on the Line of Credit which resulted in Scotiabank debiting Mr.

Rhyno’s account $133.03 commencing in September 2022. The evidence establishes that by December of 2022 that Mr. Rhyno was paying the interest on the Line of Credit. I order Mr. Rhyno to repay to Ms. Rhyno any funds which the bank withdrew from her account or otherwise paid by her in respect of the Line of Credit after the Separation Date. Ms. Rhyno will have ten days from the date of this decision to advise the court as to number and aggregate amount of withdrawals from her account to keep the Line of Credit current. These amounts, once confirmed, will be deducted from Mr.

Rhyno’s share of the net sale proceeds from the sale of the matrimonial home and added to Mr. Rhyno’s share. 3.2 Conclusion Regarding Matrimonial Assets. [ 65 ] The matrimonial assets are identified and value on the chart attached hereto as

Schedule A. Ms. Rhyno must pay Mr. Rhyno an equalization payment of $25,021.26 to equalize the matrimonial assets excluding the matrimonial home. [ 66 ] With respect to the matrimonial home the parties are to equally share in the net sale proceeds of the sale of the Matrimonial Home subject to the adjustments set out in this decision. With respect to the Line of Credit I direct that Ms. Rhyno’s one half share of the

net sale proceeds from the sale be increased by an amount equal to the payment tendered to pay out the Line of Credit and Mr. Rhyno’sone half share of the net sale proceeds from the sale be reduced by an amount equal to the payment tendered to pay out the Line ofCredit. 4 Is the Division of Matrimonial Assets in Equal SharesUnfair or Unconscionable? [67] Ms. Rhyno submits that an equal division of matrimonial assets would be unfair or unconscionable and seeks an unequaldivision of matrimonial assets. Ms. Rhyno justifies an unequal division based on the assets each of them will have or will retain. She hasnot identified a specific

Section 13 factor as supporting her position that an equal division of matrimonial assets is unfair andunconscionable. [68] Mr. Rhyno submitted that I should grant an equal division of assets and that an equal division of matrimonial assets was neitherunfair nor unconscionable. [69]

Section 13 of the MPA gives me the discretion to divide matrimonial assets unequally or to divide non-matrimonial assets if Iam satisfied that an equal division of matrimonial assets would be unfair or unconscionable, having regard to the 13 specific factors setout in

Section 13. [70] In Wolfson, supra, Justice Van den Eynden held that the purpose of an award pursuant to

Section 13 is not to redistributewealth but rather to arrive at an amount to overcome the unfairness or unconscionability resulting from the property division or in otherwords to “bring the division into a range of what would be fair and conscionable and no further” (paragraphs 92 and 112) [71] At paragraph 93 Justice Van den Eynden stated: A s. 13 claim must be grounded in the evidence and relate to one or more of the enumerated grounds.

This Court has said that a claim forunequal division must be proven by "strong evidence" that demonstrates, on a broad view of all relevant factors, that equal divisionwould be unfair or unconscionable. (See Donald v. Donald, (1991) (NS SC), 103 N.S.R. (2d) 322 (C.A.) at para.20, 81 D.L.R. (4th) 48 and Volcko v. Volcko, 2015 NSCA 11 at para. 49). Only when that determination is made will departure from thenorm of equal division be permitted. (See Young v. Young, 2003 NSCA 63 at para. 15). [72] In Calder v Calder, 2022 NSSC 146 Justice MacKeigan considered a claim for relief under

Section 13 of the MPA. Atparagraph 87 Justice MacKeigan cited, inter alia, the follows legal principles that apply to a claim for unequal division identified byJustice Forgeron at paragraph 27 in Cunningham v. Cunningham, 2017 NSSC 244, (affirmed at 2018 NSCA 63): […] * 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 equaldivision would be unfair or unconscionable on a broad view of all relevant factors:" Harwood v. Thomas (1981), (NSCA), 45 N.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 unequaldivision of matrimonial assets is somewhat onerous:" Jenkins v.

Jenkins (1991), (NS SC), 107 N.S.R. (2d) 18 (T.D.),at para 10, per Richard, 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 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), (NSCA), 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 inthe divergent results reported in the various cases relied upon by counsel, which I reviewed. [73] Ms.

Rhyno bears the burden of establishing that the equal division of matrimonial assets is unfair and unconscionable. If shesatisfies that burden, she must then demonstrate what division would bring the division into a range that would be fair and conscionable.Ms. Rhyno submits that I should not require Ms. Rhyno to pay her suggested equalization payment to Mr. Rhyno of $32,826.00.

[ 74 ] Ms. Rhyno says that the lack of valuation for the instruments creates the need for an unequal division. Ms. Rhyno does not link this position to a specific

Section 13 factor. As I have assigned a value to the instruments, I am not satisfied that the instruments support a finding that an equal division of matrimonial assets is unfair or unconscionable. I am not satisfied that an equal division of assets is for any other reason unfair or unconscionable when the facts before me are considered bearing in mind the factors identified in

Section 13 . I will not order an unequal division of matrimonial assets. 5 Spousal Support 5.1 Is Ms. Rhyno Entitled to Spousal Support? [ 75 ] Ms. Rhyno seeks indefinite spousal support of $2,000 per month on a compensatory and non-compensatory basis. [ 76 ] Ms. Rhyno submits that she is entitled to compensatory spousal support because of contribution to the marriage or for sacrifices made or hardships suffered. She seeks non-compensatory spousal support because of the income difference between herself and Mr. Rhyno after his pension is divided. [ 77 ] Mr.

Rhyno says that he should not be responsible for spousal support as Mr. Rhyno is capable of being self sufficient. [ 78 ] In making an order for spousal support, I must consider each spouse’s condition, means needs and other circumstances including the length of the spouse’s cohabitation, each spouse’s functions during cohabitation and any order, agreement, or arrangements about either spouses support. Divorce Act Subsection 15.2 (41). [ 79 ] The objectives of an order for spousal support are set out in Subsections 15.2 (6) of the Divorce Act : Objectives of spousal support order

(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should o (

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

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; o (

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

d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. [ 80 ] Is Ms. Rhyno Entitled to Compensatory Spousal Support? [ 81 ] Justice Fichaud in MacDonald v MacDonald , 2017 NSCA 34 , confirmed that assuming primary responsibilities for child rearing and its corresponding negative effect on that parent’s career trajectory can constitute a basis for compensatory spousal support.

At paragraph 20 Justice Fichaud said: In Moge , Justice L'Heureux-Dubé repeatedly said, and cited authority saying that spousal support may compensate the primary care- giving spouse for a resulting retardation of career advancement. For instance: The most significant economic consequence of marriage or marriage breakdown, however, usually arises from the birth of children. This generally requires that the wife cut back on her paid labour force participation in order to care for the children, an arrangement which jeopardizes her ability to ensure her own income security and independent economic well-being.

In such situations, spousal support may be a way to compensate such economic disadvantage. [pp. 867-68] [ 82 ] Justice Jesudason in Gates v Gates , 2016 NSSC 49 considered the circumstances in which an order for compensatory spousal support would be appropriate: Examples of circumstances that may lead to an award of compensatory support could include, but are not limited to, where a spouse's education, career development or earning potential have been impeded as a result of the marriage, or the spouse has contributed financially either directly or indirectly to assist the other spouse in his or her education or career development (Shurson v.

Shurson, 2008 NSSC 264 , para. 13 ); Often, the most significant economic consequence of marriage or marital breakdown arises from the birth of children. Traditionally, this would often result in the wife cutting back on participating in the workforce in order to care for the children potentially jeopardizing her ability to ensure her own income security and independent economic well-being.

In such situations, compensatory support may be a way to compensate for such economic disadvantage ( Moge, at para. 80); and When considering entitlement to compensatory support, great disparities in the standard of living that would be experienced by spouses in the absence of support are often a revealing indication of the economic disadvantages inherent in the role assumed by one party. A marriage should be regarded as a joint endeavour, the longer the relationship endures, the closer the economic union, the greater will be

the presumptive claim to equal standards of living upon its dissolution ( Moge, para. 84). [ 83 ] I find that Mr. Rhyno proved entitlement to compensatory spousal support on an indefinite basis for the following reasons: 1. The parties had their first child when Ms. Rhyno was fifteen years old; they married when she was seventeen. 2. The parties were married for almost 48 years. 3. Given her young age when the parties married Ms. Rhyno did not have a work history prior to marriage. 4. Ms. Rhyno was primarily responsible for the care of the home and for the children of the marriage when the children were young.

Ms. Rhyno did not work outside the home when her children were young. 5. Ms. Rhyno became a mother, wife and homemaker as a teenager and did not graduate from high school. 6. Mr. Rhyno was the primary wage earner during the marriage and his career took priority. Mr. Rhyno’s work took the parties to Germany, Prince Edward Island and Nova Scotia. 7. Ms. Rhyno took clerical jobs once the children started school, she worked at H&R Block when the children were teenagers and later at IMP for 9 years until she was diagnosed with cancer and stopped working. [ 84 ] Is Ms.

Rhyno Entitled to Non-Compensatory Spousal Support? [ 85 ] Justice L'Heureux-Dubé described the rationale underlying spousal support in Moge v Moge , [1992] 3 SCR 81 at paragraph 84 : 84 Although the doctrine of spousal support which focuses on equitable sharing does not guarantee to either party the standard of living enjoyed during the marriage, this standard is far from irrelevant to support entitlement.

Furthermore, great disparities in the standard of living that would be experienced by spouses in the absence of support are often a revealing indication of the economic disadvantages inherent in the role assumed by one party. As marriage should be regarded as a joint endeavour, the longer the relationship endures, the closer the economic union, the greater will be the presumptive claim to equal standards of living upon its dissolution. (citations omitted) [ 86 ] Justice Cromwell in Fisher v.

Fisher 2001 NSCA 18 confirmed at paragraph 86 that after a long marriage a spouse who was absent from the workforce because of child care responsibilities and who has demonstrated need and a disparity of income as compared to their former spouse has a strong entitlement to spousal support: I take this to be a strong indication from the Supreme Court of Canada that, while all relevant circumstances must of course be considered, in long term marriages in which the party seeking support has not been in the workforce as a result of assuming domestic and child care responsibilities, demonstrated need and a significant disparity in standards of living between the former spouses are strong indicators that a support order is required to address the financial consequences of the breakdown of the marriage.

To similar effect see, for example, Roberts v. Shotton, supra at [paragraph] 48. [ 87 ] I find that Mr. Rhyno proved entitlement to spousal support on a non-compensatory basis on an indefinite basis for the following reasons: 1. Again, the parties were married for almost 48 years. 2. Ms. Rhyno was not employed when the marriage ended (September 10, 2021). She stopped working outside the home in 2016 because of her cancer diagnosis, surgery, treatment, and recovery. She has not been employed since. 3. Mr. Rhyno’s 2020 income (the last full year of the marriage) was at least four times greater than Ms.

Rhyno’s $16,285.59 income. 4. While working at IMP, Ms. Rhyno sustained a permanent injury to her thumbs which resulted in a workers compensation award of $55 per month for the rest of her life. 5. Ms. Rhyno’s uncontradicted evidence was that she is unable to re-enter the workforce because of the workplace injury and the fact that she has been recovering from cancer. 6. Notwithstanding the fact that Mr.

Rhyno had not worked since 2016 the parties continued to live well, to maintain a large home, to own three motor vehicles, four motorcycles, a side by side and a cargo trailer and to purchase guitars, drum kits and keyboards. 7. After the breakdown of the marriage Ms. Rhyno could not maintain the lifestyle that she enjoyed during the marriage. 8. Ms. Rhyno’s income was insufficient to support her much moderated lifestyle, Mr.

Rhyno’s lifestyle, on the other hand, was not greatly disadvantaged by the breakdown of the marriage as he remained in the matrimonial home and continued to receive his various pension incomes. 5.2 What Amount of Prospective Spousal Support is Appropriate? [ 88 ] I will determine the amount of spousal support to which Ms.

Rhyno is entitled by focusing on the factors and objectives set out in the Divorce Act using the Spousal Support Advisory Guidelines as a comparative tool ( Strecko v Strecko , 2014 NSCA 66 , para 49 and MacDonald v MacDonald , 2017 NSCA 34 , para 31 and Sampson v Sampson , 2023 NSSC 107 , para 111 ) in setting the appropriate

quantum of support I have given considerable weight to the following facts: 1. The parties had a lengthy marriage. 2. Ms. Rhyno is now 67 years old. 3. Ms. Rhyno stopped working in 2016 because of a cancer diagnosis. She was not working when the marriage ended, and I find that it is not reasonable to expect Ms. Rhyno to re-enter the workforce. 4. Mr. Rhyno was the primary wage earner, his career was the family priority, and he was able to engage in that career considering Ms. Rhyno’s assumption of child care and home management responsibilities. 5. Ms. Rhyno is unable to meet the expenses associated with her modest lifestyle. [ 89 ] Ms. Rhyno tendered her 2022 Income Tax Return

Summary. Mr. Rhyno paid her $12,600 in spousal support that year ($1,050 per month). Her annual income totalled $22,220.73 (OAS ($766.67 per month), CPP (280.92 per month), Workers Compensation ($58.58 per month) and Net Federal Supplements ($745.50 per month). Prior to the parties’ separation Mr. Rhyno split his pension income with Ms. Rhyno. She lost that source of income upon separation. [ 90 ] Ms. Rhyno’s May 12, 2022, Statement of Expenses indicates that her monthly expenses are $2,958 with a monthly deficit of $1,648,62. The 2022 $1050 monthly spousal support paid to her by Mr.

Rhyno reduced but did not eliminate that monthly deficit. [ 91 ] I find that Ms. Rhyno’s monthly budget is reasonable. It was not challenged by Mr. Rhyno. I find that she is unable to meet her monthly expenses. [ 92 ] Mr. Rhyno did not disclose his tax return. As a result, I cannot determine his gross OAS, CPP, DND Pension or his Veterans’ Affairs Lost Wages income replacement. According to his April 2022 Statement of Income his monthly income is $4,774 which is grossed up to $5,556.18.

While this amount includes a gross up of the tax-free amounts: his grossed-up monthly income may be higher than $5,556.18. [ 93 ] Mr. Rhyno’s (pre gross up) $4,774 monthly income is comprised of OAS of $642, CCP of $597, DND Pension of $863, VA - Grounds Maintenance (paid twice a year) $427 (not subject to taxation), Pain and Suffering $1,058 (not subject to taxation) and Lost Wages of $1,187. The Grounds Maintenance and Pain and Suffering payments are paid on a tax-free basis. [ 94 ] Mr.

Rhyno’s 2022 Statement of Expenses discloses a monthly surplus of revenue over expenses with monthly expenses of $3,373, debt payments of $400 (which includes the Line of Credit) and source deductions of $652.20. [ 95 ] Mr. Rhyno’s DND pension and CPP will be shared equally with Ms. Rhyno. If I halve his DND pension income and his CPP income and add back the CPP pension which he will receive from Ms. Rhyno’s CPP I find that Ms. Rhyno’s annual income is approximately $31,732 ($2,644.33 per month) while Mr. Rhyno’s annual income is approximately $58,690 ($4,890.83 per month).

After adjusting for the Pension and CPP divisions, Mr. Rhyno’s monthly income exceeds Ms. Rhyno’s monthly income by $2,246.50. [ 96 ] Based on these adjusted income calculations, the Spousal Support Advisory Guidelines indicate spousal support at the low end of the range at $842 and $892 at the mid range but does not offer a high range as the parties net disposable incomes are equivalent with support of $892. Ms. Rhyno’s monthly deficits is currently $1,648,62. Her monthly deficit will be approximately $1,058.62 after she shares her CPP with Mr. Rhyno and receives half of his DND Pension and his CPP.

Spousal support at the mid range will not eliminate Ms. Rhyno’s monthly deficit but will achieve a high degree of uniformity between their two incomes. [ 97 ] I order Mr. Rhyno to pay Ms. Rhyno monthly spousal support of $892 commencing as of November 1, 2023, and continuing indefinitely thereafter on the first day of each month. 6 Is Ms. Rhyno Entitled to Historic Spousal Support? [ 98 ] Ms. Rhyno experienced a significant reduction in her lifestyle and in her monthly income (due to the loss of pension sharing) upon separation. The separation had little negative affect on Mr.

Rhyno’s lifestyle or income; he continued to live in the matrimonial home and receive all his pension and regular income. Ms. Rhyno filed a Petition for Divorce within six months of the Separation Date seeking, among other things, spousal support. I find that Ms. Rhyno is entitled to receive spousal support from Mr. Rhyno since the date of separation. [ 99 ] I do not have any 2021 income information for Mr. Rhyno but have no reason to believe that his 2021 income differed greatly from his 2022 income. I find that Mr. Rhyno should have paid Ms.

Rhyno spousal support of $1,507 per month which is the mid-range of Spousal Support from September to December of 2021 (4 months at $1,507 per month is a gross payment of $6,028). Mr. Rhyno’s net monthly spousal support cost is $1,092 and Ms. Rhyno’ net monthly benefit is $1,284. I order Mr. Rhyno to pay the average of his monthly spousal support cost and Ms. Rhyno’s benefit for a net lump sum payment of $4,752. [ 100 ] In 2022, Mr. Rhyno paid $12,600 ($1050 per month) in spousal support. Mr. Rhyno did not tender his 2022 tax return, so I do not know if he claimed that amount against his income. I find that Mr.

Rhyno should have paid spousal support to Mr. Rhyno in 2022 at the mid range of the spousal support guidelines for a monthly payment of $1,505 or $18,060 annually. As Mr. Rhyno paid $12,600 in spousal support in 2022, he underpaid by $5,460. The net benefit of mid-range spousal support for Mr. Rhyno is approximately 85% of the gross payment. The net cost to Mr. Rhyno is approximately 72% of the gross payment. I order Mr. Rhyno to pay the average for his net spousal support cost and Mr. Rhyno’s net spousal support benefit for a total lump sum amount of $4,286.10. [ 101 ] I find that Ms.

Rhyno was entitled to spousal support to date in 2023 from January 1 to October 31. I do not have any evidence

that Mr. Rhyno continued to pay Ms. Rhyno spousal support to Ms. Rhyno in 2023. If he did, he is entitled to credit for those payments. [ 102 ] As noted, Mr. Rhyno did not produce his 2022 Income Tax Return or Notice of Assessment. He swore his Statement of Income on April 11, 2022. As I was not advised that Mr. Rhyno experienced a change of income in 2023, I will calculate his 2023 spousal support obligation on the same basis as his 2022 spousal support obligation. Ms. Rhyno was entitled to spousal support in the amount of $1,505. The net cost of that support to Mr.

Rhyno would have been $1,090 per month and the net benefit to Ms. Rhyno would have been $1,293 per month. If Mr. Rhyno did not make any spousal support payments to Ms. Rhyno in 2023, I order him to pay the average of his cost and Ms. Rhyno’s benefit of as a lump sum in the amount of $11.915 in respect of the spousal support he should have paid between January 1, 2023, and October 31, 2023. If Mr. Rhyno did make any spousal support payments to Ms. Rhyno in 2023, I order that the lump sum of $12,995 be reduced by the aggregate amount of spousal support paid by Mr.

Rhyno in 2023. [ 103 ] All lump sum spousal support payments ordered herein are to be paid to Ms. Rhyno out of the net proceeds of the sale of the Matrimonial Home. Mr. Rhyno’s share of the net proceeds will be reduced by the amounts of lump sum spousal support ordered herein and Ms. Rhyno’s share of the net proceeds will be increased by that same amount. 7 Has Mr. Rhyno Breached the Intimate Images and Cyber- protection Act Thereby Entitling Ms. Rhyno to Compensation and if so in What Amount? [ 104 ] In her written post trial submission, Ms.

Rhyno submits that her claim under the Intimate Images and Cyber-protection Act have been proven and that damages must be ordered. She seeks $40,000 in general damages, $20,000 in aggravated damages and $15,000 in punitive damages. [ 105 ] Mr. Rhyno denies violating the Intimate Images and Cyber-protection Act. [ 106 ] I decline jurisdiction to consider Ms. Rhyno’s claim under the Intimate Images and Cyber-protection Act because relief under that Act is not sought in the Petition and proper notice of such relief has not been provided to Mr.

Rhyno as I will now explain. [ 107 ] The Petition for Divorce seeks relief under the Divorce Act , the Matrimonial Property Act , the Pension Benefits Act , the Pension Benefit Division Act, and the Change of Name Act . No relief is sought under the Intimate Images and Cyber-protection Act . [ 108 ] The trial of this proceeding commenced in January of 2023 and was adjourned with consent of the parties. No issues regarding cyber-bulling were raised prior to or during the first day of trial in January of 2023. [ 109 ] Ms.

Rhyno tendered an Affidavit sworn on May 8, 2023, to which she appended as Exhibit “A” Facebook postings she attributed to Mr. Rhyno. Ms. Rhyno also attached to her May 8, 2023, affidavit an email written by her lawyer to Mr. Rhyno’s lawyer dated April 30, 2023, which email stated, in part, “Please tell Mr. Rhyno to stop posting on Facebook about Ms. Rhyno or their home. She is considering filing an action under the Cyber Images legislation.” [ 110 ] Ms.

Rhyno’s May 8, 2023, Affidavit does not state that she is seeking relief under the Intimate Images and Cyber-protection Act or seeking to amend the Petition to include that relief. [ 111 ] The trial resumed on May 29, 2023. Mr. Rhyno did not seek to amend and did not amend her Petition prior to the trial resuming to seek relief under the Intimate Images and Cyber-protection Act . [ 112 ] Under cross examination on May 29, 2023, Mr. Rhyno admitted that he made the Facebook postings attached to Ms. Rhyno’s May 8, 2023, Affidavit. The evidence does not establish that Mr.

Rhyno knew, prior to his cross examination on May 29, 2023, that relief was being sought under the Intimate Images and Cyber-protection Act within this divorce proceeding. Such notice ought to have been given. ( See Bellefontaine v. Slawter, 2012 NSCA 48 and J.E.N. v. M.J.S.N., 2017 NSSC 314 ) Conclusion [ 113 ] I order : 1. The divorce is granted. 2. The matrimonial home is to be sold and the net sale proceeds from the sale of the matrimonial home held in escrow. The net sale proceeds shall be evenly divided and then adjusted as follows: a. Deduct from Mr.

Rhyno’s one half share of those proceeds the following amounts and add those amounts to Ms. Rhyno’s share of the net sale proceeds: i. The amount of the sale proceeds, if any, which were used to pay off the Line of Credit. ii. $4,752 in respect of historic spousal support for 2021. iii. $4,286.10 in respect of historic spousal support for 2022. iv. $11,915 in respect of historic spousal support for 2023 to October 31, 2023, less any spousal support paid in 2023 prior to October 31, 2023. (Mr. Rhyno will have ten days from the date of this decision to

confirm in writing if he made any 2023 spousal support payments to Ms. Rhyno. Ms. Rhyno will have then days from the date of that submission to advise if she is contesting Mr. Rhyno’s calculation of 2023 spousal support payments and the basis of her objection.) v. Any amounts deducted by Scotiabank from Mr. Rhyno’s account in respect of the Line of Credit used by Mr. Rhyno following the Separation Date. (Ms. Rhyno will have ten days from the date of this decision to confirm in writing the amounts which she says were withdrawn from her account and applied to the Line of Credit. Mr.

Rhyno will have then days from the date of that submission to advise if he is contesting Ms. Rhyno’s calculation of back account withdrawals and the basis of his objection.) vi. The reasonable cleaning costs incurred by Ms. Rhyno, if any, in respect of the matrimonial home as directed herein. vii. Any amount I allow with respect to Ms. Rhyno’s items left in the matrimonial home which she could not be retrieve. b. Deduct from Ms. Rhyno’s one half share of those proceeds the following amount and add those amounts to Mr. Rhyno’s share of the net sale proceeds: i. $25,021.06 representing Ms.

Rhyno’s required equalization payment to Mr. Rhyno based on the asset division set out in the chart at

Schedule A. 3. Absent further direction from the court the net sale proceeds shall not be released to the parties until all the net sale proceeds adjustments required by this decision and summarized in paragraph 2 have been finalized and agreed by the parties or approved by the court. 4. Mr. Rhyno must pay Ms. Rhyno spousal support of $892 per month commencing on November 1, 2023, and continuing indefinitely thereafter on the first day of each month. [ 114 ] If either party seeks costs, and the parties cannot agree, the parties shall file their cost submissions within one month of this decision. Daniel Ingersoll, J.

Schedule “A” (No Spousal RRSP Roll Over) Asset Comments Mr. Rhyno Ms.

Rhyno Total Spousal RRSP (5574) $97,457.10 reduced by 30% 0 $68,219.98 $68,219.98 RRSP (5351) $24,828.55 reduced by 30% 0 $17,377.19 $17,377.19 RRSP (3715) $28,493.99 reduced by 30% $19,945.10 0 $19,945.10 TFSA (7344) 0 $21,025.20 $21,025.20 TFSA (3747) $15,671.35 0 $15,671.35 Ford 2018 $35,000.00 0 $35,000.00 Miata 0 $12,000 $12,000.00 Sonata 0 $7,804.50 $7,804.50 Vespa 0 $1,400.00 $1,400.00 Instruments $6,500 0 $6,500.00 1992 Sportster $3,300 0 $3,300.00 1998 Dyna Motorcycle $3,800 0 $3,800.00 2006 Road King $7,200 0 $7,200.00 2013 Razer Side by Side $10,000 0 $10,000.00 Cargo trailer $4,500 0 $4,500.00 Asset subtotal $105,916.45 $127,826.87 $233,743.32 Debts Ford Loan $28,132.09 $28,132.09 Net Assets $77,784.36 $127,826.87 $205,611.23 Equalization Payment from Ms.

Rhyno to Mr. Rhyno $25,021.26 ($25,021.26)

Total Net Assets After Equalization (excluding net sale proceeds from the sale of the Matrimonial Home) $102,805.62 $102,805.62