J. IN THE SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Bemister v. Bemister, 2004 NSSF 15 Date: 20040407 Docket: 1201-57829 SFHD-25827 Registry: Halifax Between: Derrick Crosby Bemister v. Christine Norma Bemister Respondent Judge: The Honourable Assoc. Chief Justice Robert F. Ferguson Heard: February 17 25, 2004, in Halifax, Nova Scotia Written Decision: April 8, 2004 Counsel: Daniel Weir, for the Applicant Steven G. Zatzman, for the Respondent By the Court: [1] Derrick and Christine Bemister were married on November 29, 1991, and separated on June 1, 2001. They entered into Separation Agreement on August 29, 2001. Mr. Bemister petitioned for divorce on June 30, 2003. Ms. Bemister filed an Answer on September 24, 2003. [2] have heard the evidence as to the possibility of reconciliation and determined there is no such possibility. am satisfied all matters of jurisdiction have been fulfilled. The requirements of the Divorce Act have been complied with in all respects and the grounds for divorce as alleged has been proved. The Divorce Judgment shall be granted on the grounds set forth in s. 8(2)(a) of the Divorce Act in that there has been breakdown of the marriage and the spouses have lived separate and apart for more than year immediately preceding the determination of the divorce proceeding and have lived separate and apart since the commencement of the proceeding. ISSUES [3] The issues are:1) Spousal support;2) Ms. Bemister’s allegation that Mr. Bemister has failed to comply with the Separation Agreement requiring him to provide her with an automobile. RELEVANT LEGISLATION [4] The Divorce Act: “Spousal Support Order 15.2 (1) court of competent jurisdiction may, on application by either or both spouses, make an order requiring spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse. (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. 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 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 reasonable period of time.” SPOUSAL SUPPORT [5] Paragraph of the Separation Agreement states: “7. SPOUSAL SUPPORT (a) The husband shall pay to the wife for Spousal Support the Sum of $1,000.00 per month commencing on the 15th day of October, 2001, and on the 15th day of each and every month thereafter. (b) It is agreed between the parties that maintenance shall be reviewable by the parties and is subject to variation based on the needs and means, capacity, economic circumstances of the parties. The parties agree that the support and maintenance may be reviewed between them personally or through their respective Solicitors to settle what, if any, variation should be made. Failing an agreement between them, the parties seeking variation of the maintenance may apply to Court of competent jurisdiction to have the level of maintenance determined. (c) Spousal support shall be discontinued in the event of the following: (i) death of wife; (ii) the wife becomes economically self-sufficient; (iii) the wife cohabits for more than three months or remarries.” [6] In this instance, the issue is whether Mr. Bemister, in accordance with the Divorce Act, should be required to pay support to Ms. Bemister. The issue is not the enforcement of the spousal support provision in the parties’ Separation Agreement. Nevertheless, much of the evidence and submissions focussed on this Agreement. This is, obviously, because the existence of an agreement requiring spousal support is factor the Court must take into account when considering the awarding of spousal support. [7] Mr. Bemister submits, in spite of the wording of the Agreement, he and Ms. Bemister had agreed that such payment would be for only one year. According to Mr. Bemister, the payment of spousal support arose when Ms. Bemister made an effort to purchase her own home. Although she had received one-half of the proceeds of the sale of the matrimonial home and was employed as waitress, her banker informed her she required more monthly income to acquire the mortgage she needed to purchase her perspective home. Further, according to Mr. Bemister, that required increase of monthly income would need to be in the vicinity of $1,000.00 and be from secure source and available to her for more than one year. It was under these conditions and to help Ms. Bemister to acquire home that Mr. Bemister indicates he agreed to the specific wording of paragraph of the Separation Agreement. [8] Ms. Bemister acknowledges that her banker did indicate to her that she needed additional monthly income in the vicinity of $1,000.00 to require the desired financing. She further admits she discussed her financial predicament with Mr. Bemister. She disagrees, however, there were discussions or agreement that such support would be only for one year’s duration. She stresses the agreement clearly indicates the support is for an indefinite period; further, that the agreement should be considered as total package and she specifically refers to her releasing any claim that she had on her husband’s business ventures. [9] The obligation to pay spousal support as outlined in the Agreement is clearly reviewable by the parties. [10] Ms. Bemister submits she has established an entitlement to spousal support; that such entitlement was acknowledged by Mr. Bemister when he signed the Agreement to pay her $1,000.00 month indefinitely; further, her financial situation clearly demonstrates her need for such support to continue. [11] Mr. Bemister does not acknowledge Ms. Bemister’s entitlement to spousal support and submits further that, if she was so entitled, that time has passed. He asserts she came to the marriage virtually bankrupt and left the marriage with substantial assets. During the course of the ten-year marriage, Ms. Bemister primarily remained at home. Mr. Bemister asserts that was her choice. He acknowledges there were benefits to him because of this decision. However, he suggests her remaining at home was primarily to raise the two young children she brought to the relationship and not to advance his career and business opportunities. He suggests she is able to earn more income by working longer hours than is currently the situation. He finally submits his financial situation is such that he cannot continue to provide such support. [12] Ms. Bemister is currently employed as waitress. Her employment prior to marriage provided her with relatively the same income. She admits, since separation, there may have been more hours available to her than she actually worked. She mentioned some medical problems but there was no evidence to substantiate them or indicate how they would prevent her from working full time. [13] Mr. Bemister testified as to the financial down turn of his business. His father testified as to the numerous occasions he advanced money to Mr. Bemister during the course of the marriage. [14] I conclude Ms. Bemister was entitled to spousal support at separation and that such entitlement continues. Her financial “means” and “needs” require such support. Mr. Bemister made an agreement to provide such support and I do not find the evidence supports a conclusion it was agreed to be only for one year. While I agree with Mr. Bemister that Ms. Bemister has not established any disadvantages arising from the marriage, I find there were disadvantages related to its breakdown. Ms. Bemister’s lifestyle deteriorated as a result of the marriage ending and to a more significant extent than that of Mr. Bemister. [15] Given Mr. Bemister is self-employed, his ability to pay support is somewhat unclear. His personal and company financial statements indicate he is currently struggling financially. However, find his financial situation has not worsened since he made the commitment to pay $1,000.00 per month. [16] Having disagreed with Mr. Bemister with respect to his view that spousal support should not continue, find it necessary to address what perceive to be Ms. Bemister’s belief that such support should continue indefinitely. Her age, the length of the marriage and the matrimonial property provisions related to their separation do not support such conclusion. [17] Section 15.2(3) of the Divorce Act gives the Court latitude in making an order for spousal support. I order that Ms. Bemister is entitled to spousal support retroactive to the date Mr. Bemister ceased paying the $1,000.00 per month; that such payment shall continue for a period of fifteen months from April, 2004, at which time the support payment shall terminate, unless, prior to this termination date, Ms. Bennett commences an application which results in her showing cause why spousal support should continue. further order that the conditions agreed to by the parties in paragraph 7(c) of the Separation Agreement continue in force. PROVISION OF AN AUTOMOBILE [18] Paragraph 11 of the Separation Agreement states: VEHICLES The husband covenants and agrees that the wife’s 1994 Suburban Motor Vehicle shall be replaced by the husband on or before December 31, 2001, with mid-sized motor vehicle of equal value free and clear and registered in the wife’s name. The wife shall have the aforesaid motor vehicle for her own exclusive use and ownership free and clear from any claim by the husband. The wife shall be solely responsible for all expenses associated with this motor vehicle, including but not limited to insurance, maintenance and repairs.” [19] The parties acknowledge that the Suburban motor vehicle mentioned in the Agreement was 1992 and not 1994. Mr. Bemister acknowledges that he did not provide Ms. Bemister by December 31, 2001, with “mid-sized motor vehicle of equal value free and clear and registered in the wife’s name.” [20] At separation, Ms. Bemister had, primarily for her personal use, 1992 Suburban. It was owned by Mr. Bemister’s company. That vehicle was replaced by 1993 GMC Jimmy. Mr. Bemister testified he sold the Suburban (with 300,000 kms.) for $4,500.00 and purchased the Jimmy (with 180,000 kms.) for $5,600.00 which remained registered in the name of his company. Ms. Bemister had exclusive use of this vehicle and drove it for about year an half. Around June, 2003, she approached Mr. Bemister informing him that the Jimmy had “broken down” and she had to purchase another vehicle. Mr. Bemister repaired the vehicle at his garage and had the ownership transferred to Mr. Bemister. He delivered the vehicle to her and she refused to accept it. Ms. Bemister testified she had always made Mr. Bemister aware she wished smaller, more economical vehicle in her name and that Mr. Bemister basically forced her to accept the Jimmy. Mr. Bemister indicated he had initially shown her an Oldsmobile Cutlass which she found unacceptable. He further noted the Jimmy was smaller car than the Suburban and four-wheel drive which was the type of vehicle she was used to driving. [21] Ms. Bemister requests the Court order Mr. Bemister, at this time, to comply with paragraph 11 of the Separation Agreement and purchase her an automobile. [22] Mr. Bemister submits Ms. Bemister was quite accepting of the arrangement which provided her with the exclusive use of the Jimmy. Further, he notes, by having the car in the company’s name, he provided the insurance coverage for the period of time it was available to her which was contrary to the agreement. On being informed it had broken down, he had it towed to his garage and repaired. He put the vehicle in her name and returned it to her in working condition. [23] conclude Mr. Bemister provided Ms. Bemister with the exclusive use of an automobile which could arguably be called mid-sized and of marginally more value than her previous vehicle; that for the time the vehicle was in her care, he paid for he insurance. It is worthy of note that Ms. Bemister testified that, during the time she drove the Jimmy, she and Mr. Bemister had attempted several reconciliations. She stated that possibly one reason she was given the Jimmy was to enhance the possibility of reconciliation. take from that recognition by Ms. Bemister that Mr. Bemister was possibly providing more vehicle than required in the Agreement and that she was accepting of it. Given what transpired up to the vehicle’s breakdown, I find that, on Mr. Bemister’s returning the Jimmy to Ms. Bemister in running order with an up-to-date safety sticker, Mr. Bemister will have substantially complied with his obligation pursuant to paragraph 11 of the Separation Agreement. [24] would request that counsel for Mr. Bemister prepare the order.
The parties were married for 10 years. Contrary to the wording of their separation agreement, the husband argued that they had agreed that spousal support would only be payable for one year as the wife needed extra income from a secure source in order to obtain a mortgage on a new home. Also at issue was the husband's obligation to provide the wife with an automobile pursuant to the separation agreement. Spousal support to continue at the rate set out in the separation agreement for a period of fifteen months from the date of the decision at which time all support shall terminate, unless, prior to the termination date, the wife commences an application which results in her showing cause why spousal support should continue; the husband has complied with his obligations with respect to the provision of an automobile. The wife's financial means and needs required support, the husband had made an agreement to provide such support and the evidence did not support a conclusion that it was agreed to be for only one year. Although the wife did not establish any disadvantage from the marriage, there were disadvantages relating to its breakdown and her lifestyle deteriorated as result of the marriage ending.