CANADA PROVINCE OF NOVA SCOTIA 1201‑44336 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: JOHN GIL ROLAND DUROCHER and DOROTHY MARIE DUROCHER DECISION HEARD BEFORE: The Honourable Mr. Justice Walter R.E. Goodfellow PLACE HEARD: Halifax, Nova Scotia DATES HEARD: September 11 and 12, 1991 DECISION DATE: September 25, 1991 COUNSEL: Ronald W. Burton for the Petitioner Kevin Coady for the Respondent CANADA PROVINCE OF NOVA SCOTIA 1201‑44336 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: JOHN GIL ROLAND DUROCHER and DOROTHY MARIE DUROCHER Respondent HEARD: at Halifax, Nova Scotia, before the Honourable Mr. Justice Walter R.E. Goodfellow, Supreme Court of Nova Scotia, Trial Division, on September 11, 12, 1991. DECISION: September 25, 1991 COUNSEL: Ronald W. Burton for the Petitioner Kevin Coady for the Respondent portion of the schedule on pages 2‑3, and under the heading "Life Insurance (Mrs. Durocher)", was not included in the decision, and is as follows: Husband Wife Life Insurance (Mrs. Durocher) Life Insurance (cash surrender value) $1,500.00 Life Insurance (Accumulated Dividends) 2,055.68 -and- the heading "Life Insurance (Mr. Durocher)" was not included in the decision and should follow immediately after the amount "$2,055.68" Halifax, Nova Scotia October 15, 1991 1991 S.H. No. 7744 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: CANADIAN IMPERIAL BANK OF COMMERCE, body corporate and EDWINA SIMON and ALEX G. SIMON Defendants DECISION OF TIDMAN, J. 1990 1201‑44336 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: JOHN GIL ROLAND DUROCHER and DOROTHY MARIE DUROCHER Respondent DECISION OF GOODFELLOW, J. CANADA PROVINCE OF NOVA SCOTIA 1201‑44336 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: JOHN GIL ROLAND DUROCHER and DOROTHY MARIE DUROCHER Respondent HEARD BEFORE: The Honourable Mr. Justice Walter R.E. Goodfellow PLACE HEARD: Halifax, Nova Scotia DATES HEARD: September 11 and 12, 1991 DECISION DATE: September 25, 1991 COUNSEL: Ronald W. Burton for the Petitioner Kevin Coady for the Respondent CANADA PROVINCE OF NOVA SCOTIA 1201‑44336 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: JOHN GIL ROLAND DUROCHER and DOROTHY MARIE DUROCHER Respondent Goodfellow, J.: divorce and matrimonial property hearing was held on September 11 and 12, 1991. At the conclusion of the hearing and oral argument, divorce judgment was granted based on my finding that there was no possibility of reconciliation with permanent breakdown of the marriage as evidenced by the parties having been living separate and apart for at least one year prior to the date of the hearing. The parties were married the 29th of December, 1960 and separated the 2nd of August, 1989. There were two children of the marriage and both daughters are adults, have left home, and are married. The parties executed separation agreement dated the 3rd day of August, 1989. The petitioner seeks incorporation of the terms of this agreement in the corollary relief judgment and the respondent seeks to retain the property division in the separation agreement with the agreement to be set aside in respect to the maintenance agreed upon with an increase from $600 per month to $1,200. As was indicated by Mr. Justice Hallet in Ryan v. Ryan (1981), 43 N.S.R.(2d) 423 the starting point in family matter is to appreciate the position of the parties under the Matrimonial Property Act before proceeding with the matter of maintenance. Such course is essential where there are allegations of duress, undue influence, and unconscionability. The result of the division will normally, as it does here, shed light on these questions. Mr. Durocher advances the following as the division of assets as of the date of the agreement. Matrimonial Assets Husband Wife Matrimonial home (net equity) NIL $65,000.00 Furniture, Appliances and other Household Effects 1,000.00 $14,800.00 Cash 150.00 1,150.00 Life Insurance (Mrs. Durocher) Husband Wife Life Insurance (Approximate Cash Surrender Value Accumulated Dividends) 1,200.00 Motor vehicle $1,100.00 Pension $44,686.00 Debts Joint Account, Bank Loan, Overdraft Visa Card on this Account ($6,200.00) Credit Cards ($5,000.00) TOTAL $40,836.00 $80,605.68 Mrs. Durocher disputes the valuations placed upon the furniture, cash, motor vehicle and debts assumed by Mr. Durocher. During the course of the trial she acknowledged that there existed Registered Retirement Savings Plan in her name which she deregistered after the separation and also some Canada Savings Bonds which were cashed in and the proceeds turned over to her after the separation. The parties have agreed that the additional benefit to Mrs. Durocher for these two items, after‑tax, is in the amount of $1,600. In addition, Mrs. Durocher claims that an indebtedness to her mother in the amount of $9,000 should be taken into account in the division of matrimonial assets and liabilities. No appraisals were submitted with respect to the furniture, appliances and other household effects as the parties had hoped, and to some extent expected to reach agreement. They only realized no agreement was possible when it was too late to obtain appraisals in time for the trial. This requires the court to grapple with the value of such. However before doing so want to set out the terms of the separation agreement that bear on these questions. The issues are (1) whether the separation agreement should be set aside whole or in part under section 29 of the Matrimonial Property Act of Nova Scotia or (2) in dealing with maintenance under the Divorce Act should the agreement be set aside based upon the position of Mrs. Durocher that it was entered into by her under duress or undue influence of her husband or alternatively that the maintenance award is of such low amount that it is unconscionable to bind her to such provision. The separation agreement is dated the 3rd day of August, 1989 and contains fairly standard recitals. The first paragraph provides the parties shall live separate and apart without interference, etc. of the other and paragraphs to 12, inclusive, are as follows: "3. The Husband and the Wife covenant and agree that: (a) The Husband will be solely responsible for repayment of the overdraft and loan (approximately $5,000.00) at the CIBC in Lower Sackville. (b) The Wife will be solely responsible for the repayment of all other debts (approximately $5,000.00) including the charge accounts at the Bay, Sears and Eatons. 4. The husband and the wife covenant and agree that the wife is presently not working and has physical disability related to arthritis. 5. The husband and the wife covenant and agree that the wife shall not make any claim against the husband's Employee Pension Benefits. 6. The husband shall pay to the wife, wife maintenance of $600.00 per month commencing on the 1st day of September 1989 and continuing on the 1st day of each and every month thereafter. When the husband reaches age 65 or upon the retirement of the husband, whichever first occurs, the wife maintenance payable to the wife shall be reduced to the amount of $400.00 per month. 7. Either spouse and/or his or her personal representative may make any payment or payments to the other spouse not provided for herein on an ex gratia basis but neither the act of nor the offering of any such payment or payments shall be construed so as to oblige the spouse or his or her personal representative to continue same, nor shall the fact or the offer thereof be pleaded, tendered or given in evidence or raised by way of estoppel in any legal proceedings between the parties. 8. The parties confirm that they own the Matrimonial Home at Lower Sackville with an approximate equity of $60,000.00 and that the husband shall convey his interest therein to the wife. (a) The parties confirm that the husband's gross salary is approximately $48,000.00 per year and that the wife is in receipt of disability pension of approximately $400.00 per month. 9. The husband and the wife covenant and agree that their [sic] is rented apartment in the Matrimonial Home with present rent of approximately $400.00 per month. 10. The husband and the wife agree that the husband uses Company provided automobile and that the wife shall have the only family automobile, 1982 Pheonix, transferred to her. 11. The parties hereto agree that they have each received fair and equitable share of the household furniture acquired during marriage. 12. The husband and the wife covenant and agree to retain their existing insurance policies with the existing Beneficiaries. There are number of standard paragraphs in the agreement dealing with what remedies are available in the event either party charges credit to the other, indemnification in such event, etc.. The only other paragraphs that are of relevance to the determinations required are as follows: "15. The parties agree that they will not change their existing Wills which make provision for each other and the adult children of the marriage. 20. Unless otherwise expressely [sic] provided herein, this Agreement and every covenant, provision and term herein contained shall enure to the benefit of and be binding upon the husband and wife and each of them and their respective heirs, executors, administrators and assigns. 21. The parties agree that the terms of this Agreement are full and final discharge of all claims and demands of every nature and kind whatsoever which either one of them has or hereafter can, shall or may have against the other of them, as provided under the terms of the Divorce Act of Canada, the Matrimonial Propery Act, and the Family Maintenance Act of Nova Scotia and any other statute, law or claim under common law or equity, excepting always any claim arising under this Agreement. 22. Each party to this Agreement hereby confirms that the foregoing has been entered into without undue influence or fraud or coercion or misrepresentation whatsoever and that each has had for the other the benefit of full and fair disclosure of material facts and has read the herein Agreement in its entirety and with full knowledge of the contents thereof and does hereto affix his or her signature voluntarily. Both parties acknowledge having been given the opportunity to obtain independent legal advice, without influence or involvement of the other, and by executing these presents confirm that this clause may constitute a full answer and complete defence to any claim of undue influence, coercion or lack of opportunity for independent advice. 23. The Husband and the Wife covenant and agree that this Agreement is not subject to review." Matrimonial Home The parties in paragraph of their agreement indicate the approximate equity in the former matrimonial home to be in the amount of $60,000 and for the purposes of this action they agree that it is $65,000. The difficulty is that they have confirmed to the court that in determining the equity no provision was made for taking into account the almost inevitable costs of disposition. Costs of disposition have been dealt with in Clancey v. Clancey (1990), 1990 CanLII 2602 (NS SC), 99 N.S.R.(2d) 147 paragraphs 19 and 20, and also Gomez‑Morales v. Gomez‑Morales (1991), 1990 CanLII 2349 (NS CA), 100 N.S.R.(2d) 137 in paragraphs 41 and 46. Mrs. Durocher's statement of property puts value on the matrimonial home of $95,000 and the estimated balance on the mortgage as of the date of separation is $28,257.01. The date of valuation for this case has to be the date of separation and some allowance must be made for the almost inevitable real estate commission and legal fees. have fixed the equity at the time of separation at $61,000. Mrs. Durocher's solicitor suggests in argument that should place valuation of $1,000 on Mr. Durocher's share of the contents and $4,000 on Mrs. Durocher's share of the contents. Mr. Durocher wishes me to place valuation of $14,800 on Mrs. Durocher share of the contents but it is clear on an examination of the list he tendered in evidence that he used different basis for valuing different assets. The proper valuation is their realistic value which generally means their value at auction after reasonable notice. Mr. Durocher valued number of items such as china (wedgewood), silver, crystal and Royal Dalton figurines, etc. at their replacement cost and in that regard he is in substantial error. On the other hand Mrs. Durocher values these at such limited amounts that one would be tempted to purchase them from her at her figures sight unseen. do not propose going through each item in their lists nor should they object if fail to do so. When parties are not able to agree on value of such things as furniture and contents they can expect to be left with but the best estimate of judge through fair measure of ball parking and questimate. Recognizing the major error on the part of Mr. Durocher find that the value of the furniture and effects retained by Mrs. Durocher is $6,000 and the value of furniture and effects retained by Mr. Durocher is $1,000. have placed no value on Mrs. Durocher's jewelry nor have placed any value on the additional items retained by Mr. Durocher namely, two sets of golf clubs, one record collection, one guitar, an adult movie collection and tools. Under the Matrimonial Property Act of Nova Scotia there are matrimonial assets and exempt assets and all of these items come under the exempt category pursuant to section 4(1)(d) "reasonable personal effects of one spouse". Cash With respect to the figures on cash am going to delete all reference to these figures in my final determination on the division. Mr. Durocher had responsibility to attend to the accounts outstanding until the maintenance commenced the 1st of September. He left the premises on the 12th of August, 1989 and there was confusing evidence with respect to the additional funds he provided. The $155 Mrs. Durocher received should be treated as going to continuing accounts such as heat, electricity, water, etc. for the running of the matrimonial home and although it is clear that Mr. Durocher provided some funds to his daughters, think it is appropriate to wash out any credit for cash to cover the bills that accept Mrs. Durocher paid, some of which, such as the electrical account, would be for period prior to the one month period from the date of the separation agreement to the date of the first maintenance payment. Life Insurance With respect to life insurance we have the specific figures in evidence. Exhibit at TAB shows the 1990 balance at $2,375.80 as of April 5, 1990 with the previous balance April 5, 1989 of. $2,055.68. fix the balance outstanding as of the date of separation at $2,100. With respect to Mr. Durocher's insurance policy found at Exhibit 1, TAB 8, net value as of March 20, 1991 of $1,469.01 and would fix its value as of the date of separation at $1,300. Motor Vehicle With respect to the motor vehicle there is evidence that Mrs. Durocher sold the motor vehicle for $100 but turned down prior offer of $200 for the motor vehicle. In the circumstances cannot agree with the $1,100 valuation placed on it by Mr. Durocher, however, also feel Mrs. Durocher ought to have explored utilizing the vehicle as trade in. Doing the best can give it valuation at the time of separation of $300. Pension By agreement the pension particulars from 3M Canada were admitted in evidence and are at Exhibit 1, TABS and 6. The parties have agreed to value the pension on its capitalized value as of August 3, 1989 of $44,686. Mrs. Durocher cannot object to this valuation because normally the capitalized value is the highest dollar figure you can give to the present value of postponed pension. Mr. Durocher's pension appears to be non‑contributory and also that he may not have any entitlement until he reaches age 55. RRSP and Canada Savings Bond The parties agree that Mrs. Durocher received, after separation, after‑tax benefit from these two items of $1,600. Debts The parties in paragraph of their separation agreement acknowledge that they each took responsibility for approximately $5,000 indebtedness. The evidence supports conclusion that this is reasonably accurate and find that each party assumed $5,000 of matrimonial indebtedness at the time of separation. have already addressed the additional $1,000 indebtedness incurred by Mrs. Durocher for household accounts under the heading of cash. Family Debts The parties, during their marriage, received financial assistance from Mrs. Durocher's mother, Mrs. Lovett, and as is shown by Exhibit 4, on one occasion the parties borrowed funds to pay off balance then outstanding to Mrs. Lovett of $1,200. The indebtedness of the $1,200 was source of friction between the parties because it related to the acquistion by Mrs. Durocher of motor vehicle entirely on her own without consultation with Mr. Durocher. He had assumed the indebtedness was retired and was very much shocked when his wife advised him at the time of her uncle's death that there was still $1,200 owing to Mrs. Lovett. Mrs. Durocher gives evidence that, in her view, at the time of separation there is indebtedness to her mother of $9,000 incurred over period of time. It is not unusual for the parents of parties to divorce to have provided financial and other assistance throughout the marriage, often with measure of understanding that if and when the parties are able to pay it back that they could or should do so. Rarely do you find any written contract clearly establishing an enforceable loan and what constitutes an enforceable loan is question of fact in each case. There is an onus upon one who wishes to establish that financial assistance from parent should be treated as matrimonial indebtedness. Generally speaking, in the absence of anything in writing or clear evidence of intent by the parent to enforce repayment, such only raises moral obligation of repayment. In this case have difficulty concluding how the $9,000 figure was reached. It is clear that all of this arrangement was one between daughter and mother. Mrs. Durocher clearly indicates that she wants to repay her mother but acknowledges the high improbability of that occurring unless she comes into funds by way of selling her home. Even then have grave reservations that Mrs. Lovett would seek or retain any payment of the assistance she provided to the family through her daughter. In addition, the indebtedness, if it is enforceable, may well be entirely or in part statute barred from collection. make no finding that affects what, if any, rights Mrs. Lovett has to claim and seek recovery of this indebtedness but merely find that it is not an indebtedness that should take into account in determining the division of matrimonial assets and liabilities at the time of separation. In my view its recovery is so unlikely that to take it into account would likely mean windfall to Mrs. Durocher. Summary Husband Wife Matrimonial Home $61,000 Motor vehicle 300 Contents 1,000 6,000 RRSP CSB 1,600 Pension $44,686 Husband Wife Life Insurance 1,300 2,100 $46,986 $71,000 Less Debts 5,000 5,000 TOTAL $41,986 $66,000 38.89% 61.11% It should be noted that Mrs. Durocher receives assets in being and Mr. Durocher's main asset is the pension which he may or may not some day receive. In any event, Mrs. Durocher has received substantial unequal division of the matrimonial assets in her favour. MATRIMONIAL PROPERTY ACT Mrs. Durocher seeks an order setting aside the separation agreement so as to increase the maintenance provision and at the same time retain the asset division in her favor. The Matrimonial Property Act of Nova Scotia recognizes marriage contracts and separation agreements. It also provides jurisdiction to disregard any provision of marriage contract or separation agreement where, in the opinion of the court, it is in the best interest of child to do so (section 26). In addition, section 29 of the Matrimonial Property Act provides: "Harsh or Fraudulent Contract or Agreement 29. Upon an application by party to 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. 1980, c. 9, s. 29." An action under the Matrimonial Property Act is separate action. It may be, as is the case here, combined with divorce petition in one proceeding. This represents joinder of actions as permitted under Civil Procedure Rule 57.04 and it does not confer or transfer any jurisdiction one from the other. The asset division achieved by Mrs. Durocher under the separation agreement is far from being unconscionable, unduly harsh or fraudulent. It is an extremely fair and indeed an unequal division in her favor. If the court were to set aside the separation agreement it would find that there are no factors that have been established under section 13 of the Matrimonial Property Act to warrant other than an equal division of matrimonial assets. Section 29 of the Matrimonial Property Act cannot be utilized to vary maintenance provision, jurisdiction for which lies soley under the Divorce Act of Canada. Chief Justice Glube in Fanning (Christian) v. Fanning (1990), 1989 CanLII 1482 (NS SC), 24 R.F.L.(3rd) 135 granted variation of specific provision in separation agreement that permitted the husband to retain the matrimonial home with an equal division of the net proceeds if it were to be sold in the future. Chief Justice Glube concluded that such provision provided no certainty of distribution, and Mrs. Fanning's wait for her share could extend into infinity. The Chief Justice used section 29 and found such arrangement to be "unconscionable" or "unduly harsh" and proceeded to vary the clause of the agreement to provide date certain for division. Chief Justice Glube declined any change in the maintenance provisions and indicated any such change had to be based on the requirements of the Divorce Act of Canada as interpreted by the Supreme Court of Canada in trilogy of cases. Pelech v. Pelech, 1987 CanLII 57 (SCC), [1987] S.C.R. 801, R.F.L.(3d) 225, Richardson v. Richardson, 1987 CanLII 58 (SCC), [1987] S.C.R. 857, R.F.L.(3rd) 304 and Caron v. Caron, 1987 CanLII 59 (SCC), [1987] S.C.R. 892 and R.F.L.(3d) 274. POSITION OF SEPARATION AGREEMENT The philosophy of the trilogy of cases decided by the Supreme Court of Canada is that people should be encouraged to take responsibility for their own lives and their own decisions. The approach of the court has been to respect agreements. The statements of law that readily adopt are DiTullio v. DiTullio (1974), 1974 CanLII 581 (ON SC), 46 D.L.R.(3d) 66. "It is now well established that since the enactment of the Divorce Act, the authority of the Courts to deal with maintenance of wife, upon the granting of decree nisi although specifically provided for in written separation agreement, is beyond question, although the Courts are reluctant to do so. It has been repeatedly held that when separation agreement provides for maintenance, the Court should not amend such provision or lightly go behind the terms of that agreement unless the party requesting the amendment discharges the onus cast upon him to satisfy the Court that there exists on the evidence clear and compelling reasons and circumstances to justify the amendment." and from Dal Santo v. Dal Santo (1975), 21 R.F.L. 117 at page 120. "It is of great importance not only to the parties but to the community as whole that contracts of this kind should not be lightly disturbed. Lawyers must be able to advise their clients in respect of their future rights and obligations with some degree of certainty. Clients must be able to rely on these agreements and know with some degree of assurance that once separation agreement is executed their affairs have been settled on permanent basis. The courts must encourage parties to settle their differences without recourse to litigation. The modern approach in family law is to mediate and conciliate so as to enable the parties to make fresh start in life on secure basis. If separation agreements can be varied at will, it will become much more difficult to persuade the parties to enter such agreements." Our own Appeal Court in Silverman v. Silverman (1987), 1987 CanLII 132 (NS CA), R.F.L.(3d) 292 stated per Jones, J.A. approval of the above passage in Dal Santo, supra and went on to say at page 302‑303: "It seems to me that the provisions of the Matrimonial Property Act and the Divorce Act are compatible. The object of the provisions is to encourage matrimonial settlements. That policy cannot be carried out unless the courts are prepared to enforce such agreements provided separation agreements are consistent with that policy in providing adequate maintenance for the spouse and children having regard to all of the circumstances of the parties. The onus of proof of showing that the agreement is not in the best interests of the child is upon the party contesting the agreement. In the present case the agreement provided for all outstanding issues between the parties. The maintenance provisions cannot be separated from the overall settlement provisions of the agreement." Settlement is the only way to go in family law. The failure to reach settlement or the encouragement of parties to ignore settlements reached generally results in an enormous cost to the parties and this case is no exception. The cost is not to be measured in dollars and assets alone, although they are of great importance. The emotional cost can have serious adverse impact on the individuals and their relationships to others particularly their children. The costs to be paid warrants every reasonable effort to reach settlement and the courts must continue to take the approach of encouraging settlements and not lightly setting aside settlements that have been reached. INDEPENDENT LEGAL ADVICE There is no requirement In the Matrimonial Property Act of Nova Scotia that party have independent legal advice. In fact there is no reference to independent legal advice in our statute. In other jurisdictions, such as New Brunswick, you will find specific statutory provision which opens the door to reviewing domestic contract if the court finds that party did not have separate independent legal advice. The provisions of the New Brunswick Act read: "40. Subject to subsection 38(1) and section 41, where there is conflict between provision of this Act and domestic contract the domestic contract prevails. 41. The Court may disregard any provision of domestic contract ... (b) if the spouse who challenges the provision entered into the domestic contract without receiving legal advice from person independent of any legal advisor of the other spouse; where the Court is of the opinion that to apply the provision would be inequitable in all the circumstances of the case." Chief Justice Glube in Fanninq, supra dealt with the factual situation where there was no independent legal advice and concluded at page 145: "I find that in spite of the lack of "independent" legal advice the parties were fully aware of what had been negotiated between them and that the lack of such legal advice is not basis on which to overturn the whole of the agreement. The agreement "is not unconscionable in the substantive law sense, it should be respected" (Pelech, supra). It is not uncommon for one party to be less than eager for separation and this is often followed by reluctance, if not refusal, by that party to seek independent legal advice. Other situations develop where party does not wish to see lawyer for any number of reasons. No one has enough imagination to develop an exhaustive list of why some people do not wish to attend upon lawyer, but frequently there is concern for costs or reluctance to bear one's soul or viewing of one's attendance at lawyer's office as finality to be avoided o: the viewing of attendance at lawyer's office as an admission of failure in the marriage, etc., etc., etc.. The existence or absence of independent legal advice is to be weighed in each factual situation. It is still possible to determine the state of the individual even though independent legal advice was secured an( to determine at the time of signing the person was very much lacking in comprehension as occurred in Crouse v. Crouse (1989), 88 N.S.R.(2d) 199. The determination of whether person has an opportunity for independent legal advice and has exercised that opportunity is separate question from whether or not that person chose to conduct herself/himself in accordance with such advice. Mr. Durocher's evidence is that the marriage was going downhill in 1988 and in June of 1989 he was to attend convention. In his view it was not pleasure trip and he refused to take Mrs. Durocher. On his return he states that his belongings were moved out of the marital bedroom to the daughter's empty room and he treated this as banishment. It was around this time that he received call from the bank indicating that the overdraft they had maintained for years was now approaching $5,000 and that the bank was trying to get through to him but he had not responded to the calls and messages to his wife. Mr. Durocher indicates he went to the bank and closed out the account and told his wife he could not live that way. This was done the week before the separation agreement was signed and his evidence is that separation agreement was contemplated during the discussions that took place for several days prior to Mrs. Durocher signing the agreement on the 3rd of August. Mr. Durocher indicates that he offered his wife $400 month plus the property deal and that they reached agreement at the $600 level. When he gives this evidence he is in essence saying that negotiations in fact took place in the discussions leading up to the separation agreement and am inclined to accept his version and not the version of Mrs. Durocher that would indicate no discussions or negotiations whatsoever took place. Mrs. Durocher was asked with respect to the August 3rd date of signing of the separation agreement whether conversations about her husband leaving took place days before. She did indicate "yes, there was some". Mrs. Durocher says she cannot remember much of the weekend and she is not sure whether it was Monday or Friday that she "might have" called the mortgage man. am satisfied that she did call the mortgage man and in all probability it was on the Friday evening. She subsequently said that she thought this whole thing on the weekend, and her husband's problem, was related to the mortgage, the pressure of the mortgage, and the need to have lower payments. She said that it would ease matters and appease him to get it reduced and so she called Tom Copeland of the mortgage company. It is interesting and significant that she did not just tell Tom Copeland there was financial matter bothering everybody and she said clearly "I said to him my husband is planning on leaving". She went on to discuss with Mr. Copeland how far the mortgage should be reduced and believes he may have mentioned the figure $285 at that time. She received the advice of Mr. Copeland to get the property in her name and when she hung up she turned to her husband and told him that the bank manager said "to put it in my own name". Mrs. Durocher is certainly not lacking in independent action because on Monday she went in to see the bank manager and when the bank manager indicated to her that there had not been any change in the account she persisted and had them check to confirm that in fact there had been change in the account. Mrs. Durocher does agree that she telephoned the lawyer, Mr. Hines of the firm of Farwell Hines, on Tuesday to get the house deed in her name. She stated she called Mr. Hines because she had dealt with Mr. Hines on the mortgage and it is the only name that she knew. Mrs. Durocher indicates that when she attended at the office of Farwell Hines for her 3:00 appointment she was taken there by Mr. Durocher and she claims that she could see Mr. Durocher through the glass in the doors of Mr. Farwell's office. She says she told the lawyer she had lot of misgivings and that the lawyer told her "you do not have to sign it". Mr. David Farwell is member of the Bar of the Province of Nova Scotia and had been practicing, at that time, for 18 years. His practice is mainly in the field of real estate, wills, incorporations and collections. As rule his firm does not practice family law but sometimes is confronted with family law problems. When his firm has family law problem he usually refers the matter to solicitors who specialize in family law. He testified that many times they were asked to give independent legal advice and in family law, on occasions, his firm was asked to give independent advice. While members of his firm are not family law experts, family law is not foreign to them. Mr. Farwell testified that Mr. Burton, the solicitor for Mr. Durocher, telephoned him to inquire if he would give Mrs. Durocher independent legal advice. It is to be remembered that Mrs. Durocher made the appointment herself. What Mr. Farwell is referring to is the letter sending the separation agreement to him. Mr. Farwell received Exhibit 8, letter from Mr. Burton, which contained three copies of the separation agreement and apparently was delivered the 2nd of August, 1989. The letter anticipated Mrs. Durocher executing the agreement after which Mr. Durocher would sign the deed conveying his interest in the matrimonial home to Mrs. Durocher as her property. Mr. Farwell reviewed the separation agreement fully with Mrs. Durocher. Mr. Durocher's evidence is that his wife spent approximately one half hour alone with Mr. Farwell. Mr. Farwell cannot recall the tenure of his conference with Mrs. Durocher and Mrs. Durocher signed it in Mr. Farwell's presence. Mrs. Durocher's signing was witnessed by secretary in Mr. Farwell's office and similarly the secretary witnessed Mrs. Durocher's signature on the deed from both Mr. and Mrs. Durocher to Mrs. Durocher. Mr. Farwell took his secretary's affidavit of execution on the deed and also took the spousal affidavit of both Mr. and Mrs. Durocher. It would appear from Exhibit 7, the statement of account, that he prepared the deed, deed transfer tax and affidavits, and arranged the registration of Mrs. Durocher's deed. Mr. Farwell billed Mrs. Durocher for the independent legal advice (Exhibit 1, TAB 2) and this bill was paid by Mr. Durocher August 21, 1989. The bill for the deed, etc., was not, according to Mr. Durocher, paid by him. Mr. Farwell was asked if at the time of Mrs. Durocher signing the separation agreement if anything stands out, if anything was untoward and he answered "no, reviewed the agreement with my main concern that she understood it and that she had not been coerced or was under any threat". Mr. Farwell had never had any dealings with either Mr. or Mrs. Durocher before and had never met them before. He remembers their faces and recalls at the time Mrs. Durocher signed the deed that Mr. Durocher may have been in the reception area, but not in his office. Both Mr. and Mrs. Durocher gave evidence that Mrs. Durocher refused to sign the separation agreement and Mr. Durocher entered Mr. Farwell's office on request, at which time his exasperation was displayed and he said words to the effect "now we play hardball". The response from Mrs. Durocher was to the effect "I want the house" and she proceeded to execute the agreement as indicated above. She then proceeded to execute the deed. In addition to the foregoing there is the background of previous separation between the parties at which time they executed separation agreement. I find as a fact that Mrs. Durocher selected the firm of Farwell & Hines and that she did receive separate independent legal advice. REVIEW OF CASES SUBMITTED BY THE RESPONDENT Meunier v. Meunier (1988), 84 N.S.R.(2d) 86 Mr. Justice Davison accepted plea of non est factum and declared deed and separation agreement void. In that case the wife was held to have grade five level of education. There were two teenage children of the marriage. Mr. Justice Davison found the circumstances surrounding the execution of the separation agreement and deed to be bizarre. Early in the marriage the parties agreed verbally that if they ever separated the matrimonial home would be conveyed to their children and along the way this may have changed to be conveyed to the son. Mr. Meunier after the separation engaged lawyer whom he discharged shortly prior to trial. The lawyer's account described the preparation of the deed from Mr. and Mrs. Meunier to their son. The first draft separation agreement provided the house to their son. Mrs. Meunier was asked by her husband to attend at his brother‑in‑law's home to sign the deed and agreement and she thought what she was doing confirmed their verbal agreement. When she subsequently received her copy of the agreement from her husband's lawyer the second page was missing and when it was finally received paragraph dealing with the matrimonial home was entirely different than the one tendered in evidence by the husband as being the one she executed at his brother‑in laws. She received no consideration for conveying all her interest in the matrimonial home to her husband. In Maclntyre v. Maclntyre (1988), 80 N.S.R.(2d) 358 his Honor Judge Butler of the Nova Scotia Family Court set aside separation agreement on the basis that it was unconscionable and improvident. His Honor Judge Butler found that the husband took advantage of his wife. She was unemployed and was to receive lump sum of $750 after ten year marriage. The wife was not represented by lawyer and it was obvious that she did not fully understand, if at all, what she was signing. She was at that time under doctor's care and took medication when she went to sign the agreement and was shaking and unable to control herself. Judge Butler found that the husband did not act in scrupulous and considerate manner respecting the rights of his wife and that Mr. Maclntyre made representations which she believed meant there was distinct possibility she might go to jail. She in fact pleaded with her husband not to report certain matters with respect to her income tax and in these circumstances Judge Butler had no difficulty in setting aside the separation agreement and ordering more appropriate maintenance of $300 per month. Graham v. Graham (1988), 83 N.S.R.(2d) 164. This is decision of the Nova Scotia Supreme Court Appeal Division in which Chief Justice Clarke, in giving the decision allowing the appeal, set aside kitchen table agreement. The husband had informed the wife that the assets of the marriage totalled $48,200 and since there were seven in the family she would be entitled to about one‑seventh, which he considered to be $8,000. He excluded land at Young's Cove and also mobile home, matrimonial asset, which he had recently acquired prior to the separation. He scribbled out an agreement to be final settlment for $8,000 and she was to bother him for nothing else. He then took his wife to his lawyer's office to sign the formal document incorporating the terms of the kitchen table agreement. On the same day she signed two deeds to real property conveying away her interest. The appeal was granted on other grounds as the trial judge had found the separation agreement to be "not enforceable" and this conclusion was concurred in by the Appeal Court. Crouse v. Crouse (1989), 88 N.S.R.(2d) 199. The wife gave evidence that she was basket case when the agreement was negotiated. Her husband was former RCMP officer who the trial judge found was good performer on the stand but just that, performer. The trial judge accepted the evidence of the wife that her thinking was dominated by her concerns with respect to access to her child. Such concern was induced in her mind by her husband's insistence to her that she would not likely be able to see her child as had previously been provided for her if she did not sign the minutes of settlement. Mrs. Crouse did sign the agreement in the presence of lawyer. Her lawyer had been just admitted to the Bar and he testified that Mrs. Crouse was quite confused most of the time and he found it difficult to get instructions and said Mrs. Crouse was constantly in tears. His evidence was that her emotional state was dominated by the fact that the interim custody hearing was coming up and she had concern for the extent of her contact with her son. Mr. Justice Hallett found that her state of mind was induced by the husband's insistence and persuasive dominance that he would succeed in court against her on the custody issue because she had left the home and that the husband had weakened her to the point where he was able to dictate the terms of the separation agreement, and he did just that. Currie v. Currie (1987), 75 N.S.R.(2d) 439. Macdonald, J.A. at page 446, paragraph 24: "In the present case Judge Ryan who heard and observed the parties came to the conclusion that the agreement was unconscionable. He also described it as being foolhardy, unequal and improvident. After considerable and anxious thought have concluded that Judge Ryan's decision to set aside the separation agreement should not be disturbed. This in my opinion is one of those very rare cases where it is right and just to set aside separation agreement." Each of these cases stand on their factual situation. RELIEF SOUGHT Mrs. Durocher seeks continuation of the separation agreement with substantial increase in the maintenance agreed upon. Her solicitor recognizes the need to overcome the onus in law that arises once you have entered into written agreement. Mrs. Durocher seeks to have the agreement set aside based on "duress", "undue influence" or that the maintenance provision is "unconscionable". Mr. Durocher seeks incorporation of the separation agreement in the corollary judgment and no other terms. have already indicated that if the agreement is set aside the factual situation would require an equal division of the matrimonial assets with the probable consequence that Mrs. Durocher's home would have to be sold. On an equal division basis the substantial allowance for the pension value would be removed from the husband's asset column and replaced by an order under the Pension Benefits Act. This would result in substantial payment by Mrs. Durocher not only to deal with the unequal division as it presently exists but also to cover the substantial increase in the unequal division if the pension were treated under the Pension Benefits Act. There is no indication of any capacity by Mrs. Durocher to raise such an amount making it almost certain that she would lose her home. will not recite at great length evidence advanced by Mrs. Durocher in support of her claim of "duress", "undue influence" and "unconscionable". Mrs. Durocher says theirs was traditional marriage with her husband as the head of the household. Mr. Durocher would not concede that it was traditional marriage although he does in the agreement acknowledge her entitlement to maintenance and that it will likely be payable for the rest of her life. Mr. Durocher does not wish to cede the point because of the added dimension of ill health for many years suffered by Mrs. Durocher requiring greater effort in domestic and child rearing areas by Mr. Durocher. Nevertheless, conclude that this marriage was traditional marriage in the basic sense that the wife was the homemaker and the husband the provider. Mrs. Durocher conceded that her husband was good provider. She says she was dominated physically, emotionally and financially by her husband which should result in the separation agreement being set aside. Although traditional marriage, Mrs. Durocher was not without her own independence. She has been active throughout the marriage in the Catholic's Women's League, and although she says he allowed her to go to church would not draw the conclusion that her church activities required the approval or consent of her husband. Mrs. Durocher worked outside the home in her chosen profession of nursing as C.N.A. until her health precluded continuation. Mrs. Durocher lead an active life outside the home in her church and community. She has been Brown Owl, head of brownie pack, taken sewing courses, quilting course, and for three years she took evening courses such as biology. She has taken decorator's course and has been active in the Liberal Association and the Sacred Heart Society. These outside activities tend to mitigate against the suggestion of sheltered, dominated life. Mrs. Durocher admits that her husband's pay cheque went into the joint bank account and she was in charge of the finances. Sometime prior to the separation it was Mrs. Durocher that organized the accelerated payment program on the mortgage. Mrs. Durocher was asked "who made the decisions in the household?" and she responded that "usually we made them together lot if it regarded the children, the daughters and things we made them together". She went on to say "often he instructed me to do things". The latter part, from my observation, was an after thought and assess that they did in fact make lot of decisions after joint consultation. While the marriage was in many respects traditional one in the sense of primary duties and functions, the husband working outside the home and the wife working inside the home, there was not the level of domination that is being suggested and there was far more consultation and mutuality in their lives than perhaps even Mrs. Durocher recognized. When asked to give examples of domination she used an example some years ago she wanted to go skating and her husband had some objection, but it is interesting enough to note that she went ahead skating. When pressed for examples she said that when she had her 21st birthday her husband was away and she went to bar. When her husband came home he did not like it and had fit. do not think her examples were of much weight in supporting her allegations of domination by her husband throughout the marriage. Her allegation of physical violence and fear of physical violence was not substantiated by the evidence. Not only do find her evidence on the claims of "undue influence", "duress" and "unconscionability" limited, but the evidence she did give was clearly magnified. With respect to her allegation of alcohol abuse by Mr. Durocher she was frequent attender at Alanon and at AA meetings and had received directions and assistance on this subject from her social worker and family therapist Stella Girard. Mrs. Durocher did admit in cross examination and agree with her when she said "I have problem with alcohol, it bothers me, it does not bother him". While think Mr. Durocher's evidence of his frequency and quantity of consumption of alcohol is somewhat minimized by him, nevertheless the real problem was that Mrs. Durocher has fixation about alcohol. When she described his relationship with alcohol as "scary" find this to be gross exaggeration of the situation. Mrs. Durocher is progressing in the treatment and counselling she receives from Stella Girard and Dr. Curtis for her multiple personality disorder which was finally diagnosed. Mrs. Durocher originally went to Stella Girard for family counselling arising out of an argument over furniture and she continued to see Stella Girard with the focus having shifted to her emotional difficulties arising out of having been sexually abused as child. Stella Girard sought the assistance of Dr. John Curtis, psychiatrist with sub‑speciality of multiple personality disorder. Dr. Curtis saw Mrs. Durocher once prior to the separation and his two medical reports are on record. He has found that Mrs. Durocher has at least six personalities. In his second report of August 31, 1991 Dr. Curtis states "by no means do wish to imply that she is unable to advise legal counsel or that in any way she will misunderstand what she is told under ordinary circumstances". He went on to say that it is one of the basic findings in people with multiple personality disorder that they have suffered severe sexual abuse as child. Dr. Curtis indicated that Mrs. Durocher, subsequent to the first session he had with her, admitted to him that she had lied through her teeth. This apparently can be one of the many stages in multiple personality disorder. Neither Stella Girard nor Dr. John Curtis had any professional contact with Mr. Durocher nor did they contact or consult with the psychiatrist upon whom Mr. Durocher was attending Dr. Malaviarachchi. I find that Mrs. Durocher has failed by a fairly wide margin to establish on a balance of probabilities that "undue influence" or "duress" existed at the time she signed the separation agreement. also find that taking the separation agreement in its totality that it is not "unconscionable". Although not necessary to my finding that the agreement stands, it may be helpful to the parties to comment on Canada Pension Plan Security and their finances. CANADA PENSION PLAN SECURITY Mrs. Durocher will continue to have the security of her income producing home in which her equity will build with every mortgage payment. Her home will, in the normal course of events, likely provide her with considerable security in later years. This, coupled with her entitlement to continued maintenance, her index Canada Pension Plan Disability Benefits and her London Life Insurance payment, addresses her need for security. Security is or can be component of maintenance and both lawyers and judges have tended to overlook this factor. The 1985 Divorce Act for the first time specifically, by statute, included in the objectives for maintenance the need for the court to consider the economic disadvantage of marriage breakdown and this should have brought about greater emphasis on the security component of reasonable maintenance. Research and the statistics that are available disclose beyond question the the majority of female spouses in traditional marriages suffer serious economic disadvantage, if not impoverishment, after divorce. The words of Galligan, J. in the 1971 case of Moynes v. Moynes and DeJong, R.F.L. Vol. 245 are exclusive of the reference to conduct of the parties valid today. Galligan, J. said at page 247: "It is my opinion that the wife is entitled, taking into account her owns [sic] means and ability to work and her husband's means and ability to work and the conduct of the parties, to an amount which would enable her, within reason, to live in reasonable comfort and security. feel that, if possible in the circumstances of the case, an allowance for maintenance should enable the petitioner to attempt to make some sort of reasonable arrangements for her future security. Support for this view is found in the judgment of Scott L.J. in Acworth v. Acworth, [1943] P. 21, [1942] All E.R. 704," The parties standing under the Canada Pension Act is an important consideration for courts to take into account in dealing with cases where the capacity exists to address the need for security. In the absence of provincial legislation authorizing waiver of the division of Canada Pension Plan credits each party is entitled to an equal sharing of such credits from the date of marriage to the date of separation. Attempts to avoid this social safeguard for divorced and separated spouses in agreements and minutes of settlements are, in my opinion, void. Counsel would assist considerably if they could provide the actual specifics of Canada Pension Plan division of credits, and while there is to be. an equal sharing there are cases such as this that require careful examination of where one party's disability pension fits into the scheme of division. Quite probably Mrs. Durocher will find that her entitlement to an equal division will have some adjustment for the period of her credits that she received her disability entitlement. In addition it appears that Mr. Durocher's pension entitlement will be reduced by his Canada Pension Plan entitlement. The statement from his company seems to indicate deduction from his pension could be to an amount equal to the benefits he will receive from Canada Pension Plan. In any event, am simply trying to stress the need to address the requirement of security particularly in long traditional marriage and that the courts should be provided with the specifics of Canada Pension Plan pension entitlement for both parties. FINANCES Mr. Durocher's employment income has been as follows: 1987 $54,404.19 1988 $51,852.35 1989 $49,104,84 1990 $48,179.00 Mr. Durocher testified he was paid on base salary with an incentive plan. In the past the incentive plan could reach $10,000 to $12,000 per annum. Last year it was approximately $228 and this year to date it is $118. Traditionally the next two quarters of the year are bad. His statement of financial information indicates basic salary for 1991 of: 1991 $42,632.40 He anticipates sharp reduction in his gross volumn of sales starting this November. For the purpose of this action find his present income to be gross of $42,700. Mr. Durocher resides in rental accomodation having turned over the matrimonial home to his wife. His budget is not out of line other than his combined entertainment and holidays might be considered little high. He has included legal fees as budgetary item and while they are reality of divorce they are not an appropriate item to be taken into account in the determination of maintenance and they should not appear in the statement of financial information. Legal fees are not an ongoing maintenance item and the extent and terms upon which they are incurred and paid are to be treated as exclusively outside maintenance considerations. Mr. Durocher does not own home or motor vehicle and when you take out the mandatory deductions for income tax, C.P.P., U.I.C., dues, life insurance (required under the agreement) and the maintenance payments required he does not have great deal of excess capacity, however, he can handle the one omission from the separation agreement which will deal with later. Mrs. Durocher has limited resources. She has Canada Pension Plan disability (which is indexed), London Life payment, rental income and maintenance. C.P.P. Disability 390.00 London Life 50.00 Maintenance 600.00 Rental Income 400.00 TOTAL $1,440.00 The rental income is presently received from her mother and is not treated as income for tax purposes. Her statement of financial information shows slightly higher basic shelter costs than Mr. Durocher. He presently pays $550 rent which is contemplated to go to $600 per month. Mrs. Durocher pays mortgage $285, taxes $123, fire insurance $32, heat $145 (seems bit high) and repairs of $80 for total of $655. She is of course increasing her equity on limited but continuing basis with each mortgage payment. Mrs. Durocher indicates church donations of $240 per annum which is little higher than her 1990 return would indicate. Her entertainment expenses are $165 per month and she lists debt payment which ought to have been retired by now and in fact she acknowledges the Sears account has been retired. In addition she uses some credit for items that appear separately within the budget. Mrs. Durocher has since the separation agreement purchased motor vehicle which was reasonable for her to do, but it must be recognized that its financing and operation is relatively heavy. Her budget indicates an income tax payment of $150 per month and based upon her 1990 return this should be closer to $50 per month. Other than these comments and the addressing of the omission in the agreement for drug coverage, her budget is also modest, however, she needs the drug coverage and cannot handle such an expense on the total means available to her. OMISSIONS DRUGS The parties acknowledge the health of Mrs. Durocher in the separation agreement. Her health has improved dramatically since 1975 when she went from several years being almost bedridden, to wheelchair, to wearing full corset, to canes and is now able to get about without any aids or assistance. She still needs drugs that can run to $150 per month. There was an understanding between them at the time of signing the separation agreement that she would give Mr. Durocher the receipts and he would reimburse her fully as he was able to obtain recovery from his employment drug plan. It is highly probable Mrs. Durocher will not be covered when she is no longer spouse but divorced person. conclude (despite Mr. Durocher's comments to the contrary) that neither of them directed their attention to the cessation of drug coverage occurring in the future and had they done so some provision to continue coverage would had been recognized as essential. Both parties operated as if it was going to continue. When parties enter into an agreement it is almost inevitable that some matters will be overlooked and they would normally have to live with such omissions. Where however, as is the case here, the omission is of such magnitude it must be addressed. Mrs. Durocher has no capacity to pay for drugs herself and Mr. Durocher has such capacity. will sign an order requiring Mr. Durocher to be responsible for drugs commencing the granting of the divorce judgment for Mrs. Durocher on the basis that he will reimburse her for actual receipts to the extent of $1,800 each twelve month period, the first of which will commence immediately following the cessation of coverage under his employment plan. This payment will not be tax deductible to Mr. Durocher, however, this does not preclude the parties from getting together and working out provision that will provide at no cost to Mrs. Durocher to the extent of $1,800 by payment of maintenance amount that will net her such coverage and quite possibly provide saving by way of tax relief to Mr. Durocher. In addition, Mr. Durocher shall have the option of exploring coverage through the payment of premium provided that the same basic $1,800 maximum on tendering receipts coverage is available to Mrs. Durocher. SUMMARY The corollary relief judgment will go forward incorporating the terms of the separation agreement dated the 3rd of August, 1989 and a provision addressing the requirement of drug coverage for Mrs. Durocher. hope there will be no need to address the matter of costs, however, the parties are entitled to make representations on costs. If they choose to do so require such to be in writing no later than Wednesday the 2nd of October, 1991. J. HALIFAX, Nova Scotia September 25, 1991
In this divorce action the petitioner sought to have a separation agreement entered into by the parties incorporated into the corollary relief judgment. The respondent sought to have the separation agreement set aside on the grounds of duress, undue influence or unconscionsability. The couple had a traditional marriage. The petitioner earned $48,000 per year. The wife did not work outside the home and suffered from severe arthritis. For the petitioner and incorporating into the agreement an added provision addressing the respondent's need for drug coverage, that there was nothing unduly harsh about the agreement which would justify setting it aside. The evidence indicated that the respondent had received independent legal advice and she did not establish that she had been dominated by the petitioner to the extent that her signature would have been induced by undue influence or duress. The court determined that the respondent would be far worse off if the agreement was set aside and an equal division ordered.