1992 S.H. No. 1201‑46187 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: BARRY NEIL MOSHER ‑and- VICTORIA ALEXANDRA MOSHER HEARD: At Halifax, Nova Scotia, before The Honourable Justice F. B. William Kelly, September 28, 29, 30, 1993 DECISION: October 8, 1993 WRITTEN RELEASE OF ORAL DECISION: December 2, 1993 COUNSEL: Douglas C. Campbell, Solicitor for the Petitioner B. Lynn Reierson, Solicitor for the Respondent Kelly, J. (Orally) The major item in dispute between the parties in this divorce hearing is the amount of spousal and child support. The respondent, Ms. Mosher, is also seeking unequal division of the matrimonial assets and compensatory support or a lump sum award. On the matter of the petition for divorce; am satisfied that the ground has been proven and grant the petition for divorce. am further satisfied that there is no possibility of reconciliation. Mr. and Ms. Mosher have resolved most of the matters relating to the divorce and have signed Partial Minutes of Settlement, the relevant terms of which will incorporate into the Corollary Relief Order. These include provisions that Ms. Mosher will have custody of the three children of the marriage and Mr. Mosher will have reasonable scheduled access as outlined in the Minutes. The parties have agreed on the valuation and the physical division of the matrimonial assets and debts and agree that the physical division represents an unequal division in favour of Ms. Mosher to the extent of $16,868. Mr. Mosher agrees that if this difference is to be paid, that such payment can be deferred, and he is seeking an order specifying the terms and conditions of that deferral, including an interest rate or return on investment. Ms. Mosher seeks an unequal division or claim for compensatory support. Mr. Mosher has agreed to maintain life insurance at least at its present level and, in any event, sufficient to produce capital sum large enough to produce an income stream equal to the support payments ordered. Ms. Mosher also seeks some amount of funds to defray costs of tuition and retraining to allow her to take nine‑month tourism course to provide her with the skills she feels she needs to develop future career. Generally, to date, her limited work experience has been at unskilled minimum wage jobs to supplement the family income. BACKGROUND The parties met at the start of their university education and not long thereafter the respondent became pregnant and they began period of cohabitation. After approximately three years, in June of 1980, they married and had resided together until their separation in January of 1991. Their first child was born in February of 1979 and their other two children were born in December of 1980 and September of 1985. Mr. Mosher was an active athlete and intended career in physical education and Ms. Mosher planned an education and teaching career in home economics. Because of the economic realities and other pressures of their lives together and their childrearing responsibilities, they both had to abandon their career plans and enter the work force as untrained persons at low income jobs. MARRIAGE ROLES Both Mr. and Ms. Mosher are hardworking individuals who have made significant contributions to their family unit. They started their lives together when they were both about 20 years of age and they are now in their mid 30's. In the summer of 1979 they moved from their apartment residence to mobile home they had purchased in Elmsdale,. Nova Scotia, with downpayment based on $5,000 inheritance received by Ms. Mosher. Over the following few years they bought four‑unit building and pair of flats and, when they moved into new residence in the fall of 1981, they were renting six units, including the mobile home. Obviously, all of these developments reflect the initiative and dedication of the two parties to creating successful marriage economic unit. Mr. Mosher was the initiator of many of these decisions, and he spent much of his spare time in the early years dealing with the financial aspects of these units and with their maintenance. Ms. Mosher's role was to care for the home and the children and to contribute economically when she could. It is clear that at that time, and for the rest of their marriage, Mr. Mosher controlled and directed all things financial in all aspects of their marriage and other financial relationships. Mr. Mosher worked first at Sears and eventually at independent door‑to‑door sales. Ms. Mosher worked at part‑time retail sales until her second .child was born in December of 1980. She then concentrated on homemaking and childrearing duties for the next several years. From 1979 to 1983 Mr. Mosher sold windows and doors and also some insurance. He successfully took six‑month correspondence course on Canadian securities while still working and became employed as stockbroker in 1983. Although he has changed employers in the intervening years, his last change being in 1988, he continues in that occupation. Ms. Mosher worked pan‑time from 1983 to 1985 at low‑paying retail sales job two nights and one day week. This work ceased because of the birth of her third child. All her earnings went into the family bank account. She has performed most of the household work, including regular additional laundry work caused by the medical problems of two of the children. These problems create additional needs which cause some expense and are time‑consuming for their mother as custodial parent. Although Mr. Mosher has attended some activities of the children, particularly sports events, Ms. Mosher has been the parent principally responsible for their participation in the extensive activities of all three children. She advises the court that they wish to become involved in even more activities and that they are restricted in this by the funds that are presently available to her. In 1990 the parties, along with Mr. Mosher's mother, decided to purchase and operate coffee‑and‑donut type franchise called 'Treats'. Although the shareholdings are somewhat different, the parties have agreed that Mr. Mosher's mother has 25% interest and that the remaining 75% is divided between the parties. Mr. Mosher's mother works full‑time and Ms. Mosher works approximately one‑half day five days week, each with certain management responsibilities. Mr. Mosher's responsibility is to control the finances of the operation and to be responsible for the bookkeeping. Ms. Mosher is paid $6.50 an hour for approximately 20 hours week and does some. emergency replacement shifts if necessary. Her regular work hours occur when the children are in school. During non‑school hours the children also earn some spending money working at 'Treats'. The court was advised that the oldest daughter has saved about $200 from summer employment. The parties have decided to sell the 'Treats' franchise, paying off the business loan and dividing any remaining capital. The business, after operating for about two years, is not yet profitable venture. Mr. Mosher feels it is necessary that Ms. Mosher continue working at the franchise until it is sold and then to commence her retraining. Ms. Mosher is willing to continue her present employment until her course commences in January of 1994. After that date, she feels she can continue her management functions, but not her usual 20‑hour week because of her study and childrearing requirements. Ms. Mosher asks that the 'Treats' bank loan collateral mortgage be removed from the matrimonial residence that she will continue to occupy with the children. Mr. Mosher states he does not have the optional security to do this, and further that he has indemnified Ms. Mosher in this regard, in any event, by virtue of clause (6) of the Partial Minutes of Settlement. do not feel that have the jurisdiction to order the wife to work more than she has agreed to do in the Partial Minutes of Settlement, nor do find that have the jurisdiction to force the husband to find optional security to satisfy the bank on the 'Treats' loan. In summary, the role of Ms. Mosher in the marriage has been to be the primary caregiver for the children, to perform the major part of the homemaking chores, and to supplement the family finances by employment. In addition, Ms. Mosher has turned over some $15,000 in inheritance and other personal funds that she received during the marriage to the common marriage fund. Mr. Mosher was responsible for earning most of the salary income in the marriage and he has been concerned and interested parent for the children. He has been responsible for the control and administration of all the marriage funds. At the time of the separation Ms. Mosher did not have credit card nor personal credit record established. THE PROPERTY AND FINANCIAL CIRCUMSTANCES OF THE PARTIES For the past year Ms. Mosher has been paid support based on an interim consent order requiring spousal and child support of $2,500 month. Mr. Mosher has been paying some expenses, such as the mortgage, directly and paying the balance of the funds to Ms. Mosher. The parties have agreed that they can adjust these payments to the date of new order for support. In addition, Ms. Mosher has earned $700‑$800 month from her 'Treats' employment. Mr. Mosher notes that Ms. Mosher is not claiming the child tax benefit, although she does include it in her budget as income. Although did not have clear evidence on the income level where the Child Tax Credit is not available, it does appear that Ms. Mosher will not be entitled to it if she receives support award in the range she claims is needed by herself and her children. In her financial statement, she projects deficit in the amount of $6,000 per month. Ms. Mosher and the children remain in the matrimonial home, which carries mortgage of approximately $99,000 on value estimated at $134,000. As noted above, there also is collateral mortgage for the 'Treats' loan on this property in excess of the remaining equity. In addition to the furniture in the residence, Ms. Mosher's only other major asset is 1986 station wagon, which she states is in an unreliable condition and which incurs substantial maintenance costs. She has no pension entitlements from employment nor any R.R.S.P. investment or long‑term savings. She has not acquired any significant assets since the separation. At the time of the separation Mr. Mosher did not have any significant assets other than 1990 Mazda Miata vehicle valued at $13,500. Since the separation he has acquired modest residence, sailboat, recreational lot of land, $26,000 in R.R.S.P.s and $5,000 in stocks. His financial statement reports that the value of these additional assets, less loans for their purchase, is $51,500. Mr. Mosher has been able to finance these purchases because of dramatic increases in his income over the past few years. As an indication of this increase and the fluctuations of his income generally, his annual report of income is as follows: 1987 $125,000. 1988 53,600. 1989 68,850. 1990 36,450. 1991 109,200. 1992 123,750. 1993 (first months) 191,600. would note that Mr. Mosher's report of income includes some rental income and capital gains, but the most significant income‑producing factor is the commissions earned from stock sales. His actual 1993 commission for the nine‑month period is $211,600, but he estimates expenses of $20,000. This estimate is disputed by Ms. Mosher. In the absence of more specific evidence of actual expenses, tend to agree that this expense estimate is high. Mr. Mosher's evidence is that he has no guarantee of any fixed income and notes that commissions are paid based on value level of overall commissions earned for his employer company. In other words, they will pay the broker higher percentage share of the commissions he earns for the company if the total of the commission he earns for the company over fixed period is above certain level. The opposite is true if such earned commissions are in an amount less than level fixed by the employer. This system is referred to by Mr. Mosher as "commission grid". Thus, if broker earns sales for his company in the highest range, he will earn considerably higher percentage of the total commissions he has engendered than if his total commissions earned falls into the lower bracket. This, he states, adds to the range of fluctuation of his income as broker. As well, it is obvious that market forces outside broker's personal efforts can substantially affect his or her earned commissions. Among the factors which Mr. Mosher says affected his commission income during the period listed above are the following: 1. That in the period following 1987, commissions were reduced because of investor concern arising from the October 1987 "stock crash". Mr. Mosher indicated many previous stock investors deserted the stock market as unstable. 2. In 1988 he personally experienced $60,000 in trading losses and an additional $12,000 in interest carrying charges. 3. In 1989 he had trading losses and interest charges of $15,000. His commission income that year was $66,000. Also in 1989 he changed employment and, due to the efforts of his former employer, many of his clients did not move with him. He received 'signing bonus' of $30,000, partially to compensate him for lost commission due to his transfer of brokerage firms. Mr. Mosher's evidence was that this move required him to gradually rebuild his "asset base" with the resulting interim loss in commission income. 4. In 1990 his trading loss and interest carrying charges were $15,000. 5. In 1991 he had commission income of $77,000 and capital gain of $35,600. 6. In 1992 he participated in the privatization of the Nova Scotia Power Commission, which he described as the largest stock issue in Canadian history. He estimated his involvement earned him $30,000 over few weeks. 7. In 1993 almost an equal amount was earned by the sell‑off of Nova Scotia Power Corporation shares with clients taking profits because of an unusual or special feature of that stock ownership. Also in 1993 he directed clients to purchase shares in particular company, whose share value eventually quadrupled. At one point his clients owned 10% of the issued shares and on one block sale he sold 200,000 shares at $8 per share. Mr. Mosher stated he had never played such an impact role in the market before and believed it would not be routine occurrence. His evidence was that this contributed $65,000 to $70,000 to his commission income in that period. The thrust of Mr. Mosher's submission was that his income is so volatile that within short period of time his income could be also dramatically reduced. Counsel for Ms. Mosher has noted that, to the extent that past income is relevant in determining spousal support, adjustments should be made to the past income to reflect current purchasing power of those past amounts. For example, she notes that the 1987 income of $125,000 has present purchasing power of $153,272. find this to be relevant consideration in the determination of support. SUPPORT SPOUSAL, CHILD AND COMPENSATORY Counsel have brought to my attention many authorities which are relevant in determining the law applicable to spousal support. However, all of these authorities must now be read in the reflection of Moge v. Moge (1992), 1992 CanLII 25 (SCC), 43 R.F.L. (3d) 345 (S.C.C.). In Moge, L'Heureux‑Dube, J.A. speaking for the majority, emphasized that husband's obligation to support his wife was dependant on factors set out in the Divorce Act, R.S.C. 1985, c. and not upon the trilogy cases Pelech v. Pelech, 1987 CanLII 57 (SCC), [1987] S.C.R. 801, Richardson v. Richardson, 1987 CanLII 58 (SCC), [1987] S.C.R. 857 and Caron v. Caron, 1987 CanLII 59 (SCC), [1987] S.C.R. 892 which advanced principles which should be restricted to consensual situations. In Moge the court found that the "needs and means" test is not the exclusive basis for determining spousal support under the 1985 Divorce Act. Although Moge dealt with variation application and s. 17 of the Act was applied, the same four factors recited in s. 17 are repeated in s. 15 and should be applied in like manner when dealing with claim for spousal support. These factors are listed in s. 15(7) as follows: (7) An order made under this section 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 the obligation apportioned between the spouses pursuant to subsection (8); (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. The other subsections of s. 15 relevant to this application are as follows: (2) court of competent jurisdiction may, on application by either or both spouses, make an order requiring one 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 (a) the other spouse; (b) any or all children of the marriage; or (c) the other spouse and any or all children of the marriage. ...................... (4) The court may make an order under this section for definite or indefinite period or until the happening of specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just. (5) In making an order under this section, the court shall take into consideration the condition, means, needs and other circumstances of each spouse and of any child of the marriage for whom support is sought, including (a) the length of time the spouses cohabitated; (b) the functions performed by the spouse during cohabitation; and (c) any order, agreement or arrangement relating to support of the spouse or child. In Moge, at p. 275‑277, L'Heureux‑Dube, J.A. approves of the authorities who argue that judicial emphasis in spousal support should shift from the narrow emphasis on 'needs' and 'capacity to pay', particularly in situations where one of the spouses has some means, either an asset base or income potential. These authorities stress that the four objectives four objectives of s. 15(7) and 17(7) can be interdependent and that no single one of them should be unduly emphasized. Although economic self‑sufficiency should be sought by former spouses where practicable, it should not be considered the dominant factor. In Moge Madame L'Heureux‑Dube discussed the intention of Parliament in enacting s. 15(7) and s. 17(7) of the Act and at p. 380‑381 stated: It would be perverse in the extreme to assume that Parliament's intention in enacting the Act was to financially penalize women in this country. And, while it would undeniably be simplistic to identify the deemed self‑sufficiency model of spousal support as the sole cause of the female decline into poverty, based on the review of the jurisprudence and statistical data set out in these reasons, it is clear that the model has disenfranchised many women in the courtroom and countless others who may simply have decided not to request support in anticipation of their remote chances of success. The theory, therefore, at minimum, is contributing to the problem. am in agreement with Professor Bailey, at p. 633, that: 'The test is being applied to create clean break between the spouses before the conditions of self‑sufficiency for the dependent partner have been met, and will undoubtedly cause an increase in the widespread poverty (at least relative poverty) of women and children of failed unions' (Emphasis added.) In the result, am respectfully of the view that the support model of self‑sufficiency which Mr. Moge urges the court to apply, cannot be supported as matter of statutory interpretation, considering, in particular, the diversity of objectives set out in the Act. She subsequently reviewed the extensive academic literature on the general subject, much of which urged change from most past approaches to spousal support, and she referred to comments of Judge Abella (as she then was) at pp. 382‑383 of Moge: The law should have two primary objects. First, it should adopt philosophy of interspousal maintenance that does not tend to compel sexually‑determined mode in which marriage functions are divided, leaving it to the market place of social custom as to how individuals will arrange their marriages in future. Second, it should ensure, as far as it is able, that the economic disadvantages of caring for children rather than working for wages are removed. ... division of functions between marriage partners, where one is wage‑earner and the other remains at home will almost invariably create an economic need in one spouse during marriage. The spouse who stops working in order to care for children and manage household usually requires financial provision from the other. On divorce, the law should ascertain the extent to which the withdrawal from the labour force by the dependent spouse during the marriage (including the loss of skills, seniority, work experience, continuity and so on) has adversely affected that spouse's ability to maintain himself or herself. The need upon which the right to maintenance is based therefore follows from the loss incurred by the maintained spouse in contributing to the marriage partnership. If the functions of financial provision, household management and child care are divided in any particular way between husband and wife, the law should characterize this as an arrangement between the spouses for accomplishing shared requirements of the marriage partnership according to their preferences, cultural beliefs, religious imperatives, or similar motivating factors. spouse who does one of these things should be seen as freeing the other spouse to perform the remaining functions." (Emphasis added.) (Law Reform Commission of Canada, at pp. 22‑25) The Supreme Court majority in Moge thus directs the approach that should be taken in spousal support situations where spouse has made substantial non‑economic contribution to the marriage and suffers an economic disadvantage on marriage break‑up. At pp. 383‑384, L'Heureux‑Dube, J.A., observed: Women have tended to suffer economic disadvantages and hardships from marriage or its breakdown because of the traditional division of labour within that institution. Historically, or at least in recent history, the contributions made by women to the marital partnership were non‑monetary and came in the form of work at home, such as taking care of the household, raising children, and so on. Today, though more and more women are working outside the home, such employment continues to play secondary role and sacrifices continue to be made for the sake of domestic considerations. These sacrifices often impair the ability of the partner who makes them (usually the wife) to maximize her earning potential because she may tend to forgo educational and career advancement opportunities. These same sacrifices may also enhance the earning potential of the other spouse (usually the husband), who, because his wife is tending to such matters, is free to pursue economic goals. This eventually may result in inequities. Both counsel have referred me to other authorities, many of which have been helpful. Many of these deal with support situations where the husband had high level of income and principles relating to the level of support were discussed. These include Linton v. Linton (1990), 1990 CanLII 2597 (ON CA), 30 R.F.L (3d) (Ont. CA), Carmichael v. Carmichael (1993), 1992 CanLII 2496 (NS CA), 115 N.S.R. (2d) 45 (N.S.S.C.,A.D.), and Heinenann v. Heinenann (1989), 91 N.S.R. (2d) 36 (N.S.S.C.,A.D.). In Heinenann the Appeal Division of the Nova Scotia Supreme Court (as it then was) reviewed the disparate case law on the subject of appropriate principles to apply in spousal support situations. The court presaged Moge by adopting theory of support based on compensating loss attributable to the roles adopted by the spouses in the marriage. Hart, J.A., speaking for the court, engaged in an exhaustive review of the often conflicting cases and principles relating to spousal support. He discussed the changing roles of spouses in marriage and noted that spousal support should not necessarily be used to equalize the standard of living of the parties. He recognized that it would be unlikely in many situations for the dependent spouse, often the wife, to have the skills or opportunity to enter the work force at level she would have gained but for leaving the work force and altering her career curve. At p. 273 he stated as follows: As mentioned earlier, not all marriages are or will be of this modern kind and there will be those of the traditional type in which one partner, usually the wife, sacrifices her personal economic advancement for that of her husband and both parties choose that she should devote herself to the raising of the children and the advancement of the family unit. If this type of marriage lasts for long period of time, the cases referred to above recognize that the economic disadvantages incurred by the wife should be redressed upon dissolution of the marriage. If, as direct result of the marriage, she is left with no or limited marketable employment skills, the courts seem to think that she is entitled to reasonable standard of living to the extent to which her spouse is able to pay. It seems to me that this standard should approximate that which she would have been able to meet had she chosen to follow her own career goals rather than the marriage, but should not be wholly unrelated to that which she enjoyed prior to the dissolution of the marriage. It is in situations such as this that trial judge has to utilize great ingenuity in determining the reasonable standard of living to which the wife is entitled and in deciding what factors should be included in reaching this conclusion. If the wife is able to earn some income but as result of lengthy marriage is unable to earn enough to meet her needs for reasonable standard of living then, in my opinion, the husband is responsible to supplement her income to the extent necessary to meet that standard. The most difficult cases will arise when the dependent spouse is still of an age when self‑sufficiency to reasonable standard of living could be maintained by acquiring or reacquiring skills or training acceptable to the employment market. Here the judge will have to strike balance between the position of temporal limit on maintenance to encourage the acquisition of self‑sufficiency and the allowance of unlimited maintenance to cover the shortfall in the spouse's employability. It will be up to the judge to determine the practicability of obtaining economic self‑sufficiency under s. 15 of the Divorce Act and whether time limitation should be used to encourage that status." Although it may be argued that some of the principles of support espoused in Heinenann are now altered by Moge, the above comment regarding the function of trial judge has not been substantially altered. The change, if any, may be greater recognition in Moge of the numerous financial consequences to custodial parent not reflected in the direct costs of supporting child, and greater emphasis on the negative financial consequences to the parent who leaves career path for the sake of the family unit. Included in the consideration would be such factors as missed promotions, loss of seniority, and lack of access to fringe benefits. It is clear from Moge that the application of spousal support principles, as enunciated in the Divorce Act, do not guarantee pension or certain standard of living to spouse on marriage break‑up. The trial judge is left with exercising her or his discretion to determine the effect of the marriage in impairing or improving each spouse's future economic prospects and attempting to achieve an equitable sharing of the economic consequences of the marriage breakdown. In exercising its discretion, the court will consider the specific circumstances of the case before the court, including the asset base of each party, their abilities, their education and training, their capacity to enter the work force, their present prospects in the work force, their continuing childcare responsibilities, and generally their roles in the marriage and how those roles have affected the above factors as outlined in Moge. In applying the above considerations and s. 15(7) generally to the case before me, make the following findings of fact: 1. Ms. Mosher has spent most of her adult years in the relationship and has totally subsumed her career aspirations to her role in caring for the home and childraising. 2. She has contributed all of the economic resources she received during the course of the relationship to the family economic unit. 3. Ms. Mosher's attempts at self‑sufficiency will be further affected over the medium‑term future by her childcare obligations. 4. When she has reached an age that these responsibilities will be so lessened that she can devote most of her efforts at developing career in any way equivalent to her original career intentions, she will be considerably restricted by her age and her time left in the work force. 5. Ms. Mosher is entitled to reasonable retraining opportunities. 6. Ms. Mosher does not have, and has little likelihood of developing on the basis of her own resources, any significant security provisions for her ..irement years. 7. Mr. Mosher has, through his own considerable efforts, and with the substantial assistance of Ms. Mosher by virtue of her marriage role, developed highly successful career path which will likely continue into the foreseeable future. 8. Mr. Mosher's income will continue to fluctuate depending in part on factors outside his control. However, for the foreseeable future, pattern of earning at very high level can be anticipated. 9. Neither of the parties have built up considerable asset base and Ms. Mosher will have an ongoing need to maintain or replace her present asset base, to the benefit of both herself and the children. This principally refers to the need for maintenance on the residence, replacement of the motor vehicle, and the establishment of some form of savings for these and other unexpected purposes. As consequence of these findings and applying the spousal support principles outlined in Moge, have no difficulty concluding that Ms. Mosher's withdrawal from the work force, except for low‑wage, unskilled jobs, has significantly adversely affected her ability to maintain herself. Even with the retraining proposed, which only qualifies her for low‑wage employment, there will be need for continual spousal support in some measure, depending on her future career development. As well, Ms. Mosher's future childcare responsibilities will continue to affect her career development for several years. It is not disputed that the children are entitled to child support and Mr. Mosher acknowledges willingness to pay reasonable support for his children. Counsel for Mr. Mosher submits that the interim joint spousal and child support of $2,500 accomplished this end as it was an agreed amount based on the low‑income years just prior to the break‑up. He also submits that these funds' have allowed Ms. Mosher and the children to substantially continue their pre‑separation lifestyle. Counsel for Ms. Mosher argues that the children are entitled to enjoy lifestyle that reflects their father's substantial increase in disposable income. She also argues that the older children have moved into the more expensive teen years since the break‑up, noting that one has grown five inches and another eight inches in that period, thus incurring the consequential costs of such physical changes. To Mr. Mosher's credit, he agreed in cross‑examination that his children should share in his increased income, but he continues to reject that Ms. Mosher should do so. Ms. Mosher has filed with her financial information "children's budget" which is intended to reflect the added costs of childcare. Her total for present expenses in this category is $1,570 and her proposed budget for these expenses is $3,070. Although most of these proposed expenses are not unrealistic, would note that she assigns over $1,000 to the children's housing expense, figure almost equal to the mortgage charge on the matrimonial residence where they now reside and which she intends to retain. In all, am satisfied that the children are now living relatively modest lifestyle and that they are vibrant, active and intelligent children whose lives would be enriched by an improved lifestyle. have unchallenged evidence that there are number of activities in which they wish to participate where their mother's available resources restrict participation. Section 11 of the Divorce Act authorizes the court to make support orders "having regard to the conduct of the parties and the condition, means and other circumstances of each of them." The section provides authority for support orders to pay the maintenance of the other spouse, the children, or sum for their combined maintenance. Section 15(8) of the Act provides that both parents have joint responsibility to provide for their children. Here, the major part of Ms. Mosher's contribution will be her personal efforts and Mr. Mosher's principal contribution will be financial. The children must therefore rely substantially on their father for most of their financial needs. Mr. Mosher is seeking division in the support payments so that portion will be designated for Ms. Mosher and portion for the children. find such division at this stage of Ms. Mosher's earning capacity to be artificial and unrealistic. She and the children are an integrated economic unit with only the more obvious child expenses of clothing, entertainment and education easily separated. The youngest child is now eight years of age and the oldest is 14. As the children are considered candidates for post‑secondary education, it is unlikely that this economic unit will change for several years. It seems to me to be therefore appropriate to award single payment of support incorporating spousal and child maintenance. In determining an adequate sum for this award, the principal factors are the earnings of the parties and their reasonable proposed expenses. have already reviewed incomes and noted the particular difficulty of weighing the factor of Mr. Mosher's fluctuating income. At trial his counsel had proposed formula for maintenance which adjusted support payments to reflect fluctuations in both their incomes. Counsel for Ms. Mosher rejected the specific proposal as inadequate and wrong in its principal details. If an appropriate formula could have been agreed upon, cannot help but believe it would have been the most adequate resolution. However, must deal with the reality of Mr. Mosher's significant income variations as major factor in determining the support payments. reject that it would be equitable for support payments to be based on his nine‑month 1993 income of $211,000, less expenses. This is too clearly an exceptional amount based on his historic income pattern. However, his income in recent years since the separation has shown marked trend upward and it is appropriate that his children and his wife should share in the benefits of this increase. have reviewed at length the expense budget of both parties and for the most part they are both reasonable. Evidence discloses that both parties had made some minor bona fide errors in their estimates. The principal adjustment have considered to Ms. Mosher's proposed expenses are repayment amounts on the $25,300 loans for her legal expenses. These amount to $312 month. These are valid and existing obligations, but her costs are at least partially claimable as part of this action. therefore feel that the amount assigned for their payment is an inappropriate expense. note as well that she proposes savings at level of $100 month, and find that this is not sufficient, particularly for purposes of her long‑term security. Mr. Mosher's expense budget includes approximately $1,200 month for R.R.S.P. and stock purchases and $1,000 month for loans, loans which principally were taken out for luxury items purchased since the separation. As noted above, he has developed equity from purchasing these assets since the separation. His expenses total, not including these loans and excluding tax, less than $3,000 month. After considering all of these factors, I am satisfied that an appropriate spousal and child support amount would be $4,500 per month. Because Ms. Mosher will not be able to work to any significant extent during her nine‑month training period and still adequatelyperform her home and childcare duties, a further $500 per month will be payable as additional support during that period. EQUALIZATION CONSIDERATIONS This is situation where Mr. Mosher has maximized his earning potential during the course of the marriage while Ms. Mosher has significantly restricted her career development by accepting primary responsibility for the homemaking and childcare duties. By virtue of the agreed custody arrangement, this economic limitation will continue. In all, this has and will continue to affect her capacity to provide for her future security. In Legere v. Legere, (N.S.S.C.,T.D.), December 22, 1992, (unreported) (1201‑45096), at page Davison, J. noted that equalization can be achieved by more than property division under the Matrimonial Property Act. His stated authority was Moge and refer to the words of L'Heureux‑Dube at p. 43 of that decision: Equitable distribution can be achieved in many ways: by spousal and child support, by the division of property and assets, or by combination of property and support entitlements. But in many, if not most, cases the absence of accumulated assets may require that one spouse pay support to the other in order to effect an equitable distribution of resources. This is precisely the case here, as the parties are not wealthy; for the most part, all they appear to possess are their respective incomes. Fair distribution does not, however, mandate minute, detailed accounting of time, energy, and dollars spent in the day‑to‑day life of the spouses, nor may it effect full compensation for the economic losses in every case. Rather, it involves the development of parameters with which to assess the respective advantages and disadvantages of the spouses as result of their roles in the marriage, as the starting point in determining the degree of support to be awarded. This, in my view, is what the Act requires. On this matter, refer as well to MacNeil v. MacNeil (N.S.S.C.), June 25, 1993 (unreported). Unequal division of matrimonial property is permitted when the court finds that an equal share would be unfair or unconscionable considering the various factors listed in s. 13 of the Matrimonial Property Act. have no difficulty finding that this fact situation overcomes the presumption of equal division considering all those factors, more particularly s. 13(d)(e)(f)(g)(h)(I) and (1): 13 Upon an application pursuant to Section 12, the court may make division of matrimonial assets that is not equal or may make division of property that is not matrimonial asset, where the court is satisfied that the division of matrimonial assets in equal shares would be unfair or unconscionable taking into account the following factors: ... (d) the length of time that the spouses have cohabitated with each other during their marriage; (e) the date and manner of acquisition of the assets; (f) the effect of the assumption by one spouse of any housekeeping, child care or other domestic responsibilities for the family on the ability of the other spouse to acquire, manage, maintain, operate or improve business asset; (g) the contribution by one spouse to the education or career potential of the other spouse; (h) the needs of child who has not attained the age of majority; (i) the contribution made by each spouse to the marriage and to the welfare of the family, including any contribution made as homemaker or parent; .... (I) the value to either spouse of any pension or other benefit which, by reason of the termination of the marriage relationship, that party will lose the chance of acquiring. Ms. Mosher shall have the benefit of that unequal division of the matrimonial property to the extent of $16,868. However, do not feel this resolves the inequity of their respective economic situations. Pursuant to s. 15(a) of the Divorce Act lump sum and periodic sum may both be awarded. am satisfied that this is fact situation consistent with the support principles in Moge where equality can be met by the payment of lump sum to Ms. Mosher which will assist her in retraining and in providing some future security. Her needs in this respect are not totally resolved by the unequal division and support consequences that have made above. This support for Ms. Mosher is in part compensation for the inequality which occurred because she has not been earning seniority, promotions, accumulating pension, and achieving employee benefits available had she been an active member of the work force at her level of capacity. I find that this continued inequality can be reflected by a compensatory or lump sum award of $18,000, to be paid in three annual payments of $6,000, commencing on November 30, 1993. Taking into consideration all of the comments of counsel and the material that has been filed with me and my knowledge of the case, award costs to the respondent, who has been substantially successful, in the basic, scale category, on the basis of an amount involved of $150,000. J. Halifax, Nova Scotia
The parties lived together for 14 years and had three children, aged eight, 13 and 14. The petitioner always worked and eventually became a successful stockbroker. The respondent was employed part-time doing minimum wage jobs and was responsible for the household duties and raising their children. The petitioner's annual income was $50,000 at the time of separation, but escalated to $200,000 in 1992 and was prone to great fluctuation. The respondent was to have custody of the children. She sought spousal and child support and an unequal division of assets. Ordering support and an unequal division of assets. The court extensively reviewed the case of Moge v. Moge (1992), 43 R.F.L.(3d) 345 (S.C.C.) and found that marriage and child care responsibilities hinder a wife's role in the workplace. The court awarded $4500 per month as spousal and child support, plus an additional $500 while the wife retrained. The court considered this an appropriate case for an unequal division of matrimonial assets in the respondent's favour. Finding that the awards were still not sufficient to satisfy the respondent's needs, a lump sum award of $18,000 was ordered. On appeal.