1993 S.H. No. 1201‑47359 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: DELPHINA LEAR and DAVID MICHAEL LEAR DECISION HEARD: at Halifax, Nova Scotia before The Honourable Justice Gordon A. Tidman on November and 9, 1994 DECISION: December 6, 1994 COUNSEL: Delphina Lear, the Petitioner, representing herself Jeremy Gay, Counsel for the Respondent TIDMAN, J. The petitioner seeks a divorce from the respondent as well as maintenance for herself and the five‑year old daughter of the marriage. The respondent does not oppose the divorce, nor does he deny his responsibility to provide financial support for his daughter. He contests the quantum of maintenance for the child as well as the entitlement of maintenance to the wife and, if entitled, the quantum and period of time during which she is entitled to receive maintenance. The marriage has been proven, and am satisfied that the marriage relationship has irretrievably broken down and the parties have lived separate and apart for period in excess of one year. would, therefore, grant the divorce on the grounds as alleged in the Petition. CIRCUMSTANCES OF THE PARTIES The petitioner is 30 years of age, and the respondent 55 years of age. The child, Kelly, is years of age. She resides with the petitioner who has been the principal caregiver to the child since birth. At present she attends grade primary. The respondent does not seek custody of the child but asks for reasonable access upon reasonable notice. The parties met in St. John's, Newfoundland, in September, 1983. After 10‑day courtship the parties entered into common‑law relationship which continued until they married on October 28, 1989. Their daughter, Kelly, was born May 23, 1989. They separated in June, 1993. When the parties met, the respondent worked on an oil rig, as he continued to do at various locations around the world for most of the marital years. The respondent was born in England where he completed grammar school, equivalent to Canadian high school. He has worked in the oil drilling business for most of his working life in which he worked his way up to his present position of superintendent of an oil drilling rig in Nigeria for the American company Sante Fe International. His present income is $7,707.00 (Canadian) monthly or $92,500.00 annually. As apparently is usual in the offshore oil drilling business, the respondent works long hours daily for 28 straight days during which he is confined to the oil rig and then has 28 days off. Normally, the number of days off is 24 with days used as travel time from Nigeria to his present home in Halifax where the petitioner also resides. Sante Fe pays his airfare to and from Halifax. The petitioner completed grade 9. When the parties met, the petitioner was 19 and the respondent 44 years of age. The petitioner, at that time, was managing bar in St. John's, Newfoundland, and earning minimum wage plus tips. She now works for daycare centre with net take‑home pay of $801.00 monthly. She also receives child tax credit of $102.50 and GST rebate of $33.00 monthly for total income of $936.50 monthly or $11,250.00 annually. Since the separation the husband has paid maintenance to the wife starting at $1,800.00 monthly, reduced to $1,500.00 monthly and further reduced to $1,200.00 since the parties entered into Minutes of Settlement in June, 1994. By the Agreement the respondent is obliged to maintain life insurance and an education fund for Kelly while she is child of the marriage. The annual premiums for both total $156.50. The Minutes of Settlement did not settle the issue of maintenance. MATRIMONIAL ASSETS Asset division is not in issue since the parties entered into an agreement dated June 10, 1994, settling that issue. Under the terms of the agreement, each party received home and motor vehicle. Cash‑on‑hand was divided, the amount of which is not significant enough to provide support income to the parties. The husband's home is valued at $120,000.00 and carries two mortgages totalling $84,000.00. Total mortgage payments are $1,485.00 monthly and the amortization period is years. The wife's home was purchased recently for $68,000.00 and carries mortgage of $49,000.00. The monthly mortgage payments are $380.00 amortized over 25 years. The husband retains an investment savings plan with Santa Fe International worth approximately $27,000.00. The husband has no other savings, he is not Canadian resident and, according to uncontradicted evidence, is not entitled to pension benefits from any government or other agency, including Sante Fe, on retirement or for his retired years. Because of the rigorous physical demands of the respondent's job, Sante Fe's compulsory retirement age for that position is 62 years unless the company unilaterally decides to extend that time period. The husband contributes the sum of $904.00 monthly to retirement investment plan to which Sante Fe contributes an equal amount. The respondent seeks to have the Separation Agreement and Minutes of Settlement incorporated into Corollary Relief Judgment so far as the jurisdiction of the court permits, and will so order. CIRCUMSTANCES OF THE MARRIAGE AND EARLIER RELATIONSHIP OF THE PARTIES The respondent has been married several times before and has five children. He has no legal financial responsibility to any of his former wives or to the children of his earlier marriages. During the first four years of the parties' relationship, the husband worked in various places in the Middle East and Brazil. The petitioner accompanied the respondent to those countries. During that time she did not work outside the home and describes those years as the happiest of her life. In 1987 the husband terminated his employment with Sante Fe to return to Newfoundland with the petitioner. He drew out funds invested in the company's investment savings plan and used those funds for business venture in St. John's, which was unsuccessful. He returned to Sante Fe in November, 1989, after the birth of his daughter. After returning to St. John's the respondent started and, apparently, provided the funds for satellite cable television business. The wife was the sole owner of the shares of the operating company and ran the company with the respondent's assistance. The company also employed the petitioner's mother, brother and step‑father. Apparently, differences of opinion in the operation of the business between the respondent and his in‑laws contributed to the failure of that business. In 1988 the petitioner, with the respondent's encouragement, took 33‑hour word processing course at the Cabot Institute in St. John's. In 1990 she took bookkeeping and accounting correspondence course, again with the encouragement and financial support of the respondent. She successfully passed the bookkeeping portion of the course but not the accounting portion. The wife also took computer course at the Dartmouth Career College in 1991/92, again with the encouragement of the respondent, at cost of $4,500.00. In the husband's words, he was not getting any younger and wanted his wife to have useful skills to provide support for herself when he died. The husband also provided the wife with capital she used in real estate investments in the local area. The wife was also interested in acquiring career training and skills but had difficulty in learning, no doubt because of her limited formal education. The wife says she is interested in bettering herself and continues to look and prepare for other more gainful employment. The petitioner, who acted for herself during the trial, is, from my limited view of her, an innately intelligent and ambitious person. am confident that she will continue her efforts to obtain more gainful employment and will do all in her power to provide good home and healthy environment for her daughter. MAINTENANCE FOR WIFE AND DAUGHTER The following sections of the Divorce Act are applicable: 15(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 the support of (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 cohabited; (b) the functions performed by the spouse during cohabitation; and (c) any order, agreement or arrangement relating to support of the spouse or child. (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) is so far as practicable, promote the economic self‑sufficiency of each spouse within reasonable period of time. (8) An order made under this section that provides for the support of child of the marriage should (a) recognize that the spouses have joint financial obligation to maintain the child; and (b) apportion that obligation between the spouses according to their relative abilities to contribute to the performance of the obligation. The wife seeks maintenance for herself and her daughter in the amount of $1,500.00 monthly for an indefinite period. The husband submits that the wife is able to support herself and that he should be obliged to support only his daughter. He submits further that, if the court awards spousal maintenance, the combined maintenance should not exceed $1,200.00 and cease in June, 1995, and then continue only for the child at the rate of $600.00 monthly. In Moge v. Moge, 1992 CanLII 25 (SCC), [1992] S.C.R. 813 the Supreme Court discussed the manner in which courts should consider the factors set out in section 15(7) in relation to spousal support. The court stated that all four factors should be considered. Mr. Gay, on behalf of the husband, relies on section 15(7)(d) in submitting that, if maintenance is awarded to the wife, the court should promote the economic self‑sufficiency of the wife within reasonable time by ordering maintenance for limited period of time. Section 15(7)(b) directs that the court should apportion any financial consequences arising from the care of the child over and above the joint obligation of the spouses to provide financially for the child as set out in section 15(8). Mr. Gay has, for the guidance of the court, provided copies of the decisions of Kelly, J. and R. MacDonald, J. in Mosher v. Mosher (1994), 1993 CanLII 4474 (NS SC), 126 N.S.R. (2d) 367 and Rice v. Rice (1992), 113 N.S.R. (2d) 444. In Mosher the court declined to place time limit on an award of spousal maintenance and also declined to apportion between the spouse and children the total amount of maintenance awarded. In Rice the court awarded monthly maintenance to the wife to terminate in years. The circumstances set out in Rice, however, are quite different than those in the case at bar; most notably, the Rices had no children. Mr. Gay points out that when the wife met the husband she had only grade formal education and was working as bar manager at minimum wage plus tips. He submits that the marriage did not impair her career development and that, indeed, the husband encouraged her to further her education and training and provided funds with which to do so. accept that submission and also the sincerity of the husband's comment that he wished to assist his wife in becoming self‑sufficient for the time when, due to their age difference, he could no longer provide the present standard of living for her. However, based on the need of the wife and the ability to pay of the husband, the wife is entitled to maintenance. It is difficult, with any degree of accuracy, to apportion between the wife and child an amount of monetary maintenance. As the wife submits, she and her daughter are single economic unit. As well, as pointed out in both Moge and Mosher, the court should recognize the numerous financial consequences to a custodial parent not reflected in the direct cost of supporting a child. The wife states that she will attempt to improve her earning ability, and believe she will. support deadline should not be placed upon her when she has the direct responsibility of raising child and when the availability of more gainful employment within the foreseeable future is, at best, uncertain. have examined the budgets of both parties. Based on monetary maintenance of $1,200.00 paid by the husband, the husband's budget shows monthly surplus of $573.50, after providing for monthly investment savings plan payment of $904.50, and the wife's budget shows monthly deficit of $210.00. The wife seeks maintenance at the same rate she is now receiving. The wife, in arriving at the amount of her monthly deficit, did not take into consideration the amount of tax payable by her on support payments. Mr. Gay agreed to provide the court with income tax calculations, which he did, and for which thank him. On monthly basis maintenance of $1,500.00 in the hands of the wife would attract income tax of $266.00. This would leave net maintenance to the wife for her and the child in the amount of $1,234.00 monthly, roughly the amount upon which she has based her budget and which she seeks from the husband. Under all of the circumstances, I will award the wife for the support of herself and the child, Kelly, the sum of $1,500.00 monthly. Since both parties have agreed to bear their own costs, will make no award of costs. In summary, order: 1) that the parties are divorced; 2) that the Agreement and Minutes of Settlement entered into by the parties and dated June 10, 1994, be incorporated into and form part of the Divorce Judgment insofar as the jurisdiction of the court permits; 3) that the respondent pay to the petitioner the sum of $1,500.00 monthly beginning December 1, 1994, for the support and maintenance of the petitioner and child of the marriage; 4) that the petitioner have custody of the child, Kelly, with access to the respondent at the following times: (a) every Monday and Wednesday from 2:00 p.m. 5:00 p.m.; (b) from 5:00 p.m. every Saturday to 12:00 noon Sunday. The respondent shall give reasonable notice to the petitioner when he does not intend to exercise his access rights; 5) that there will be no order as to costs.
The petitioner sought a divorce and maintenance for herself and the couple's five-year old child. The wife was working and earned a modest income; the husband a substantial one. Allowing the application, that although the wife upgraded her education during the marriage with encouragement and financial support from the husband, she was entitled to maintenance for an indefinite period. The court reviewed the means and needs of the parties and awarded spousal in addition to child maintenance. The court recognized the indirect financial consequences to a custodial parent in raising children.