E.J. Gunn IN THE SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Boucher v. Boucher, 2006 NSSC 88 Date: 20060328 Docket: 1211-000053 Registry: Halifax Between: Charles Benjamin Boucher v. Christine Delores MacLellan Boucher Respondent Judge: The Honourable Justice Moira C. Legere Sers Heard: February 1, 2006, in Halifax, Nova Scotia Final Written Submissions: February 8, 2006 Respondent February 10, 2006 Applicant Counsel: M. Louise Campbell, for the Applicant J. Walter Thompson, Q.C., for the Respondent By the Court: [1] This application to terminate spousal support was commenced on the 22nd day of September, 2005. [2] The parties were married in Halifax on the 21st day of November, 1980, and began living separate and apart on August 3, 1993. They entered into Minutes of Settlement in February, 1996. This agreement was incorporated into the Corollary Relief Judgment and the Divorce Judgment pronounced the 24th day of April, 1996. [3] The parties had four children, Gillian, born May 6, 1981; Sheena, born October 31, 1982; Logan, born October 31, 1985; and Tessa, born April 8, 1987. The children remained with their mother in her custody at the date of separation. They are now 24, 23, 20 and 18 years old respectively. [4] Prior to the Minutes of Settlement there was consent order out of the Family Court wherein Dr. Boucher was to pay $6,000 per month. The Minutes of Settlement required the father to pay the mother the sum of $15,000 to settle all outstanding maintenance arrears accumulated to December 1, 1995. [5] Commencing December, 1995 until July, 1996, the father paid to the mother for her support and the support of the children the sum of $2,000 every two weeks. In July, 1996, the combined support increased to $2,500 every two weeks. [6] The Minutes of Settlement allocated responsibility for the Revenue Canada debt in the amount of $9,000 to the mother and any other debt then in her name. The father took responsibility for $69,500 in matrimonial debt and any other debt in his name. [7] There has been no variation of this order by court order since the Corollary Relief Judgment dated the 24th day of April, 1996. [8] The standard variation clause is contained in the Separation Agreement and refers to s. 17 of the Divorce Act. [9] Both parties were represented for the purposes of entering into the Minutes of Settlement. [10] The changes that have occurred since then are considerable: (1) (a) In June, 1999, Gillian graduated from high school. She went to Scotland for one-half year to pursue her education. The father provided financial support directly to her. Her father noted her tuition was “exceptionally high”. She started working in Edinburgh, once she left university. [11] The Applicant continued to pay the full child and spousal support to the Respondent, notwithstanding Gillian was in Scotland and he was assisting her directly. [12] For the period September, 1999 to and including June, 2000, while in school in Scotland, the cheques and deposits provided by Dr. Boucher totalled $11,181.44. In addition, in 2001 he paid her airfare to and from Scotland, repairs to her fiddle in the amount of $800, and in April, 2002, assisted to purchase her airline ticket back to Nova Scotia. He has continued to provide assistance to his oldest daughter, assisting her in her travel costs back to Scotland in September, 2002. (2) (a) In August, 1999, Sheena moved in with her father in Port Hood. At the time, she was attending grade 11 and continued to live with her father until graduation; (b) Sheena commenced massage therapy program, stopped and eventually returned to it. As result, it took her three years to complete the full program. In September, 2001, she attended Northumberland College in Halifax for this massage therapy course and left the program in 2002. She moved to New York, worked as nanny, returned to Nova Scotia in December, 2002. She returned to the massage therapy program in January, 2003 and graduated with her diploma in June, 2004. She worked in Halifax until August, 2005 and then left to live in Ireland. From August, 2001 to and including August 5, 2005, he contributed $43,430.97 to his daughter's course and living arrangements. These payments included her rent, food, utilities, phone, transportation, spending money and tuition. (3) (a) Logan graduated from high school in June, 2004. Logan took year off school to work and decide on an appropriate career. During that period of time he lived, for the most part, with the father and his spouse, Karen Boucher, in Port Hood; (b) He is currently enrolled in two-year program in environmental studies at community college in Vancouver. His transportation costs have been provided by the father, and the father has contributed $11,129.04 to January 18 with another $645 for the end of January. Exhibit 4, Tab also suggests total of 21,430.76 has been paid to support Logan in his education, the cost of an apartment, food, utilities, tuition and books while he is completing this program; The father has attached as an exhibit summary of expenses paid by him for Logan to fly to B.C., to cover portion of his tuition, and to provide damage deposit and rent etc.. This summary has not been challenged. (4) (a) The youngest child, Tessa, graduated from high school in June, 2005. She enrolled in hair design college in Halifax and her expenses are being paid for by her father directly. This is 10-month program to be completed in June, 2006; (b) The father has provided summary sheet listing the expenses paid by him for Tessa as of October 4, 2005. They total $5,580.76 and include tuition, damage deposit, September's rent, bus pass, groceries, full tuition, October's rent and bus pass and other items necessary for her maintenance. [13] Dr. Boucher has provided extensive records supporting these payments and these records have not been challenged by the Respondent. Oral Agreement [14] As result of the two older children leaving the mother's home, the parties entered into an oral agreement that the biweekly payments would be reduced to $2,000. There was no financial contribution by the mother to the children in the father's care. [15] This agreement was recognized by Maintenance Enforcement and by the parties. It is evidenced by their conduct, their reliance on the terms of the agreement, and the return of the original cheques in the amount of $2,500. The father paid by way of post-dated cheques directly to the mother and the mother destroyed any cheques she received from Maintenance Enforcement in the previous $2,500 amount. Maintenance Enforcement was also given instructions to return what cheques they had. [16] The Maintenance Enforcement records are current up to January 14, 2006. They show consistent payment of $2,000 every two weeks from July, 2003 to July, 2004. Thereafter, there are consistent payments of $1,836 through Maintenance Enforcement and the balance up to $2,000 to GMAC for the Respondent’s car loan. Maintenance Enforcement show payments of $2,500 biweekly November and December and one for January. [17] The $2,000 maintenance cheques were cashed. This arrangement continued until June, 2003. Maintenance Enforcement returned the post dated cheques to Dr. Boucher, including the January 9th and June 26th post dated cheques reflecting the acceptance of the agreement of the parties. [18] The Applicant testified he had no difficulty in the past and has no difficulty continuing in future to pay the costs of his children's post secondary education. He wishes to do so directly and provides information to confirm that they do not have any difficulty dealing with their father directly to obtain support. The Respondent does not contest this method of providing child support for the children. There is no need for the court’s intervention at this stage between the father and his children. [19] Therefore in 1999, in addition to spousal and child support as mandated, the record shows that Dr. Boucher paid for his daughter in Scotland approximately $6,981 for the period of time between September and December with balance of $4,200 between January and June, 2001. [20] The additional payments documented in 2001 for Gillian include expenses such as airfare to Scotland, $800 for repairs to fiddle. Dr. Boucher paid $10,857 of the total $43,000 for the massage therapy course. [21] In 2002, he would have paid the regular maintenance payments plus $10,857, plus airfare back and forth to Scotland for the oldest child. [22] In 2003, he paid the $52,000 in child and spousal support, plus $10,857 towards the ongoing massage therapy course and the cost of living. [23] In 2004, again he paid approximately $10,857, plus the $52,000. [24] 2005 is the final year for the massage therapy course. It is also the first year for Logan and the 10-month course for Tessa. The total payments in excess of the child and spousal support payments as mandated by court order, would equal $32,786, approximately. [25] In consideration of an attempt to get some kind of approximation at what percentage of his net professional income went to child support and spousal support between 2000 and 2005, one has to consider the excess payments over and above the mandatory child support payments. [26] While the Applicant may receive the benefit of the tuition credits for some of the children, many of the expenses that he is paying towards rent and food are not expenses for which he can claim deduction and thus, the additional amounts can only be compared to the $52,000 child and spousal support figure which is deductible on his income tax return, if one adjusts for tax implications to Dr. Boucher. [27] Finally, in reflecting on the total financial picture, it ought to be noted that Dr. Boucher, while married, entered into two business ventures, neither of which was successful; resulting in two bankruptcies. There is no information that these businesses were entered into without the consent of Ms. Boucher. These parents and spouses come away from this relationship with few, if any, assets and very little by way of retirement plans. [28] In addition to the support payments over and above the court ordered payments, Dr. Boucher has also provided to the Respondent additional financial support. In September, 2000, the Respondent requested that he co-sign for the purchase of leased vehicle for her, in order to assist her to obtain financing for the vehicle. She was to pay the monthly payments of $326. [29] In September, 2002, her account was in arrears. GMAC contacted the Applicant and required him to pay the monthly payments. He deducted these payments made from her maintenance. [30] At the expiry of the lease agreement of December, 2003, GMAC contacted Dr. Boucher to pay, in addition, $8,000 worth of excess kilometres and repairs, relating to the Respondent’s use of her car, which the Respondent refused to pay. Dr. Boucher has made arrangements for monthly payments to GMAC in the amount of $163.92 and has deducted that from the Respondent's ongoing support payments. [31] The Applicant has submitted letter from GMAC dated April 5, 2004 indicating that the arrangements established with their office to pay $163.92 have been accepted. They warn him, however, that one missed payment would bring the full balance due. [32] The Applicant has been unable to negotiate with the Respondent for reduction in the current combination child and spousal support. He attempted to seek reduction of $500 every two weeks, when his third child, Logan, graduated from high school in June, 2004 and moved in with him. [33] At the time the request was made, Gillian, Sheena and Logan were not residing with the Respondent. The Respondent was receiving $2,000 biweekly, in addition to which she was not contributing to the costs of these children. [34] The Applicant provided written notice to the Respondent in August, 2003, that when the children of the marriage were no longer dependent he would seek change in the support. He encouraged her to develop strategy for employment and self sufficiency. Dr. Boucher's Financial Situation: Current earnings [35] Dr. Boucher prepared statement on October 19, 2005 showing net professional income of $294,735 or $24,561 per month before tax. Given his circumstances and his obligations, his monthly expenditures are not excessive. They include the secondary school expense for his children. His 2004 income tax return shows line 150 income of $296,567. He paid $52,000 in spousal and child support in the 2004 year. [36] His income for 2005 appears to be similar. He ceased paying support to the Respondent in the month of August, 2005. His wages were garnished as result of enforcement action requested by the Respondent. [37] In 2005, as in some previous years, he would have paid additionally at least $10,000 directly to Sheena’s for her course and living expenses and at least 10,629 for Logan, as well as $5,580 for Tessa. Historical earnings [38] The Applicant has provided the history of his earnings from 2000 to 2005. The Applicant was born November 28th, 1949. He commenced his practice in the Margaree area for two years when he met the Respondent. He was 30 when he married. He is currently 56 years old. [39] Subsequent to the separation, the Applicant continued his practice in Margaree. The Respondent moved with the children to Antigonish and commenced taking some courses in Antigonish. She did not complete these courses. year after this move she moved back to Broad Cove with the children. [40] In 1994, the Respondent told the Applicant that if he continued to live in the Margaree area in close proximity to herself that she would move again with the children. [41] After discussions between the two, the Applicant agreed, wanting his children to remain close to their friends and school. He gave up his practice in Margaree of approximately 2,500 patients and moved to commence practice in the Strait Richmond area. [42] am satisfied that this move was initiated at the request of the Respondent and that the Applicant willingly complied for the betterment of the children. This move was mutually beneficial and, while causing him to begin again, also met with his expectation to reduce his workload. [43] Dr. Boucher experienced reduction in his income to accommodate this move. The maintenance was reduced to $2,000 every two weeks commencing December, 1995, continuing every second week thereafter until July, 1996 to accommodate the anticipated reduction in his income. They agreed, however, that in July, 1996, the maintenance would be increased to $2,500 every two weeks, and the agreement to settle all outstanding arrears which accrued until December 1, 1995 resulted in $15,000 lump sum payment by Dr. Boucher to the Respondent, which was incorporated into the Corollary Relief Judgment and payable on or before January 5, 1996. [44] The Applicant worked in the Strait Richmond Hospital from 1994 to 1998. Save for few exceptions, he continued to pay the support as originally ordered under the Corollary Relief Judgment. He believed that during the initial period, the Respondent was actually taking in more income as result of his child and spousal support payments than he was retaining himself. do not have his income tax statements from that year to verify his assertion. [45] The history of the children leaving their mother’s care and either moving in with their father or being supported by their father has been discussed and his financial contribution proven. [46] The Respondent was less certain about her contributions. She believes that she contributed $1,000 to set her daughter up in an apartment in Halifax when she first commenced her course. She provided little accurate financial disclosure. She has no serious contest with the Applicant's financial documentation. [47] The Applicant ceased paying support in August, 2005. The Respondent took action with Maintenance Enforcement. She requested enforcement of the amount in the original order and she received $10,000 in November and December, 2005. She also received directly $2,000. She has not verified by her records or memory what she received in August 2005. [48] Her calculation of arrears under the old order is not reliable. There are gaps in her records and her memory is mostly speculative recall not supported by documentation. She admits she has not been good bookkeeper. She denies the existence of voluntary agreement in the original reduction of support payments from $2,500 every two weeks to $2,000 every two weeks. The documentation and her conduct disprove her allegation that she had no part in this agreement. [49] Once this garnishee was in place, the parties reached an interim understanding that if the Respondent were to receive the garnished amount she would have to pay directly to the children that which was required to sustain them in their post secondary pursuits. [50] The Respondent was born on September 12, 1952. She attended high school in Inverness and went to Sydney where she completed medical secretarial course. She lived in Halifax for approximately 10 years working at the Grace Maternity Hospital and the Nova Scotia Rehabilitation Centre and assisted health professionals with their research. She attended St. Mary's University and Dalhousie University to take some courses training her to work in medical libraries and complete data analysis. [51] The Respondent was 28 when she married the Applicant and was working as librarian at the Nova Scotia Rehabilitation Hospital in Halifax. They met in 1980 and she advised him that she was pregnant within two weeks of their meeting. They married in November, 1980. She is currently 52 years old. [52] have no record of her earnings pre marriage for the 10 years she worked. have the income tax summary for the Respondent from 2000 to 2002. She was bankrupt in 2000, declared income of $48,000 in 2001 and $46,000 in 2002. She declared support payments of $43,388 in 2003 paying tax on that in the amount of 10,541 (she is in arrears of taxes). She declared support income of $38,244 for 2004. Her current income statement shows income of $3,978, as she does not declare the payment to GMAC for her car as earnings. [53] The Respondent left Halifax and moved to the Inverness area. She did not work outside of the home once they were married. Up to separation, this was almost 13 years occupied with raising the children. She was 40 years old when they separated. The Respondent was 46 when the first two children left home and 51 and 52 when the last two children left home. [54] Neither she nor Mr. Boucher had any children from prior relationships when they entered into this marriage. When they married in November, 1980, the Respondent moved from Halifax to Inverness County and occupied herself with care of the four children while Dr. Boucher continued his practice in Margaree Forks. She acknowledges she did her husband's bookkeeping. [55] She moved away from Inverness taking the children with her in 1994. She returned to Inverness and the parties were divorced by Divorce Decree in 1996. [56] Neither she nor he have savings, pre separation RRSP's or equity in the home. [57] She and the four children lived in large, old home previously used as rectory. She was charged $300 month rent. The cost of fuel for heat and propane is enormous. She testified she pays approximately 8-$9,000 year on propane and furnace oil. Nonetheless, she continues to reside in this rectory, even after the four children have left. [58] Since the separation and divorce, in spite of her educational background, she has not pursued seriously, if at all, any educational retraining or furthered her education in her field of expertise. Since the children have become independent, she occupies herself with volunteer work in the community. She confirmed she has made little to no effort to find serious employment, does not believe there is employment in Inverness, and prior to this hearing was not prepared to leave the area. She indicated in her testimony she may visit her family outside of Nova Scotia after the Divorce. [59] She has taken in sewing but it has not been practical course of employment. While she has done some personal care work for elderly and infirm, she does not wish to pursue this by increasing her credentials and doing more extensive personal care work, as she does not think this is suited to her. She believes that there is no appropriate work for her in Broad Cove. [60] She expects the Applicant to continue to support her unabated and without termination, while paying all expenses related to the children’s education. She believes she is entitled to this support. Absent in her testimony and her conduct is any insight or appreciation that she has responsibility to pursue employment or retraining to assist in her own support. [61] She fell behind in her income tax; was forced into bankruptcy second time; and was subsequently in difficulty with Revenue Canada who eventually served Dr. Boucher with third party demand to garnishee the support payments. This garnishee was withdrawn. She believes she owes them in the vicinity of $29,672, most of which his penalty for non payment of tax. [62] Ms. Boucher believes she has lived hand-to-mouth for 11 years. She acknowledges she has no credit. She spends $450 per month on medications. She confirmed that she sold many of her possessions to obtain money to fly to Scotland to visit her daughter on one occasion and had three yard sales to get money to live. [63] In August, 2005, after her children Logan and Tessa left for school, Dr. Boucher ceased payment maintenance. At that point, without his support and job, she had no income. She sought enforcement through Maintenance Enforcement. [64] In October, 2005, Maintenance Enforcement began to collect on her behalf, under the old Corollary Relief Judgment. Dr. Boucher sent letter to the Respondent’s counsel advising that the Respondent would have to pay one-half of the expenses associated with Logan and Tessa, pending the outcome of this hearing, if the children’s expenses were to be current. They have abided by this arrangement pending this decision. [65] At 53 years old, the Respondent believes that she has only one option and that is to continue to receive spousal support. She worked at raising children and has not worked outside the home since she married. She believes she has no marketable skills and no ability to find employment in Cape Breton. [66] She acknowledges that it is time that she left the rectory and found other accommodation. [67] She has received $10,000 as an advance from friend in order to purchase car. [68] She has provided no documentation to support her calculation of arrears. Despite her agreement of taking reduced amount of money by way of $2,000 biweekly, she has included that calculation in her arrears back to 1999. [69] It is my finding that the agreement to reduce the monthly child and spousal support was done with the consent of both parties. This agreement was accepted by Maintenance Enforcement. [70] She has used her bank statements, which are not complete, to calculate actual payments made. [71] Because of the nature of the evidence, the exhibits, and her clear admission that her information is based on memory and some account records, prefer the evidence of Dr. Boucher with respect to the accounting as it relates to the actual payments made, verified by documentation. [72] The Respondent acknowledges full payments, in accordance with their agreement in 2001 and 2002. [73] For the 2003 year, Ms. Boucher claims support payments received in the amount of $43,388. Dr. Boucher claims on income tax returns, payments of $52,000. His cheques verified $51,758, except for $200 transfer to Sheena Boucher on February 18, 2003. This $200 to Sheena took place by direct transfer in February, 2003 when Ms. Boucher received the full maintenance payment pursuant to their agreement. Therefore, Dr. Boucher is either missing cheque or the accounting reflects total payments of $51,754; $42 of which must relate to bank charges, leaving balance owing of $200. [74] Cross-referencing that with the Applicant's Affidavit 4, Tab 2, he claims expenses for Sheena's education of $43,430. [75] The difference in the accounting comes when GMAC began to require Dr. Boucher to pay the lease payment of $328. Thus, in 2003, from January to July, all payments reflect $2,000 directly to Ms. Boucher. In August, the cheques begin to reflect payment directly to Ms. Boucher, minus the direct payments to GMAC. [76] Her 2004 T-1 General shows spousal support payments of $38,144 for the 2004 year. Dr. Boucher shows payments of $52,000 on his tax return for the 2004 year. [77] In reviewing the Applicant's Affidavit 3, at Tab 5, the actual payments provided by way of post-dated cheques show total of $50,164. However, review of the Respondent's bank statements indicates there was transfer deposit on July 8, 2004 for $1,836, making up the $52,000 for that year. [78] Her Affidavit shows that she is uncertain as to what the arrears might be for the 2004 year, claiming that she was entitled to receive $65,000. have already concluded that the parties entered into an agreement and advised Maintenance Enforcement of their agreement. They varied their agreement outside of the court process by their words, their conduct, and their subsequent actions. The amount due under their varied agreement would be $52,000 and that is, in fact, what his records show he paid. [79] The cheques to Maintenance Enforcement were adjusted to reflect his third-party payment to cover the lease agreement that she was obliged to pay. [80] For the 2005 year, again, she claims an amount owing of $65,000 while, in fact, it should reflect $52,000. She believes she received 40-$41,500. She is unclear as to which figure to rely on. Dr. Boucher acknowledges payments with receipts of $35,148. He does not have summary sheet similar to that which is provided for 2004 in his Affidavit 3, Tab 7. In addition, with the garnishee in place, it is difficult to determine the total amount paid. [81] She testified that she received no money in September and October, 2005. Maintenance Enforcement garnished Dr. Boucher's wages at the end of October and she received $10,000 in November and December. She also received directly from Dr. Boucher $2,000 in November for total of $12,000. In January, 2006, she has received $2,500 from Maintenance Enforcement. [82] If calculate from the Maintenance Enforcement statement, commencing January 5th, he paid 16 payments of $1,836 for total of $29,376; five payments garnisheed at $2,500 for total of $12,500; and if he paid for her lease, the damages and the extra kilometres, $327.64 per month for period of 26 months commencing April 16, 2004, concluding in or about May, 2006, it would equal an additional $3,931.68 (for 2005) for total of $45,807.68, according to their amended agreement, reflecting an underpayment of $6,188, subject to Dr. Boucher proving with Maintenance Enforcement other payments. [83] The calculation for the arrears, if any, in 2005 should consider all payments made to Ms. Boucher, including those made to GMAC on her behalf. The total owing for 2005 to December 31 should be $52,000. Employment and Self-sufficiency: [84] The parties have lived separate since 1994. The Respondent gave evidence she is not seriously pursuing any retraining or education to become employable. She criticized the Applicant for providing the children with computer in her home. She professed to be against computers as the children grew up and refuses to consider computer training as an option. [85] She is able to do personal care work but does not like this avenue of employment. She sews and favours interior design but thinks no one in her geographical area can afford her services. She testified she won literary award for her writing and sample of her writing for local paper was provided by the Applicant. She is articulate. [86] In this case, the parties have lived together for little under 13 years. Four children were born of this union. Certainly, during the early years, they demanded the bulk of the Respondent’s time and efforts. Later in their lives, after high school, they have spent more time in their father’s home and now all live outside the home. It is an error to suggest the mother has been the sole parent. Clearly, she was during their early years the primary parent. [87] Dr. Boucher has been and continues to be generous parent. He has historically provided for his children and supported their residence in familiar area, leaving his own practice to allow the children to remain in familiar environment. He continues to exhibit patience and generosity with his children supporting them through the sometimes rocky and interrupted road to independence. He has been generous to his former spouse outside the agreement. It does neither party nor the children any good to diminish or distort either parents' contribution historically. [88] Section 15.2 of the Divorce Act sets out the legislative framework for the assessment of spousal support. It reads as follows: “15.2 (1) court of competent jurisdiction may, on application by either or both spouses, make an order requiring spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse. (2) Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse, pending the determination of the application under subsection (1). (3) The court may make an order under subsection (1) or an interim order under subsection (2) for definite or indefinite period or until specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just. (4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including (a) the length of time the spouses cohabited; (b) The functions performed by each spouse during cohabitation; and (c) any order, agreement or arrangement relating to support of either spouse. (5) In making an order under subsection (1) or an interim order under subsection (2), the court shall not take into consideration any misconduct of spouse in relation to the marriage. (6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of spouse should (a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; (c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (d) in so far as practicable, promote the economic self-sufficiency of each spouse within reasonable period of time.” [89] After almost 13 years of cohabitation and since separation, the mother has continued to receive spousal and child support; initially in the amount of $6,000 per month, then in 1995, $4,000 per month; then in July, 1996, $5,000 per month and, when the first two left home, in the amount of $4,000 per month. [90] Other than the $1,000 she referred to, she did not bear the financial responsibility for the support of the first two children in their educational pursuits. Up until 2004 and 2005, the money she received supported her and the two teenage children until they left home. [91] The legislation must be looked at globally. The Respondent ignored her responsibility to move towards some sort of self sufficiency. She is intelligent, able, articulate, not disadvantaged by physical illness and has not been subject to the ordinary restraints of children for some considerable period of time. [92] What is the Respondent entitled to at this stage? [93] The parties cohabited for little less than 13 years between November, 1980 and August, 1993. They separated. The children were 12, 11, and 6, respectively. In 1999, the two oldest children were outside the mother's residence and being supported by the father. The remaining two children were 14 and 12 at that time. Logan left school in 2004 and Tessa in June, 2005. Both of these children were supported by their father to date and look forward to graduation in June, 2006 and June, 2007. [94] The mother was fully engaged in the employment market for 10 years prior to marriage. At least since 1999, the mother ought to have begun to invest some energy and effort into refresher courses, retraining, upgrading and otherwise plan how she intended to assist in her own support. By that time, she had been separated for six years. She was 46 at the time and both children were in high school. [95] Given her circumstances, her qualifications, her ability, her prior history of employment, the length of the marriage and age at separation, it is unrealistic to expect to be supported for life and not to have to contribute in some way to her own support. [96] Four children require considerable effort. Each parent has participated and the children are nearing self sufficiency and independence. Dr. Boucher worked 70 hours per week until he moved in 1994 to the Strait Richmond area. He proposed to carry on practice in two offices. Whether that has required extensive hours is unknown to me. However, he has financially supported his children through their various endeavours. He is 56. It is unrealistic to expect he can continue working without serous thought to restructuring his work to plan for retirement. Both parties must plan for their future. [97] While cohabiting for only 13 years, four children is relatively large family by today’s standards. The effort and the Respondent’s absence from the workforce during their early childhood is a significant factor. have considered all factors in the Divorce Act respecting spousal support and the submissions of counsel including reference to the Spousal Support Guidelines. [98] This is considered medium-term marriage. In this case, the higher income spouse is paying for the children directly to the children and paying spousal support directly to the Respondent. The Respondent has no children living with her and income only from spousal support. Thus, the payor is paying support in two different directions with obvious and differing tax consequences. [99] The formula suggested by the Spousal Support Guidelines reduces the payor spouse's income by the grossed up notional table amount and grossed up actual expenses. In this case, we have the actual historic and ongoing support being given by the father. In 2006, one child graduates and will need transitional support into the workplace. The third child will remain in university until June, 2007. To December, 2005, the Applicant testified this cost him in excess of $20,000. Another year, one can assume, he will spend 15-$20,000 as the child is in B.C.. That is at least $30,000 for the 2006 year, figure which must be grossed up and deducted from the payor’s income. [100] The third stage is to determine the adjusted gross income difference which is the same, given the Respondent has no independent income. The duration at maximum is 13 years. [101] Using current figures and projecting backward would have put the parties at the high end of the range of spousal support, if consideration of child support were not then in issue. Using the guidelines, we are already approaching the end of the 13-year period where, on the facts of this case, the Respondent should have been well within realizing some sort of independent living. She has not begun to address this. [102] Given the number of children, I am extending the guideline beyond the maximum suggested of 13 years but at a rate well within the ability of the Applicant. He has high-end costs for the next one and one-half years. Thereafter his children, in accordance to their current plans, will be mostly independent, unless post graduate work is considered. The father has shown no reluctance to assist them in their educational plans and transitional stages. [103] The current figures directed to finalize his obligation and assist the mother to retrain are within his means and ability to pay. The mother must develop a reasonable strategy immediately to ensure September enrollment is possible. [104] The mother has put forward no plan or strategy to assist herself or the court in determining what would support her efforts towards self sufficiency. She can decide to find work in an area with better employment prospects or immediately attend courses to upgrade, refresh or enhance her ability to support herself. Community colleges offer wide variety of course selection that provide realistic prospect of employment, if not in Cape Breton, elsewhere. [105] The option to retrain or reeducate herself must be built on her current strengths and historic employment such that she maximizes her potential. am not suggesting course that begins anew without the necessary foundation to put her in state of employability within two years. [106] To assist her in effecting this goal, the Applicant shall continue to pay $3,000 per month from January, 2006 to December, 2006. do not have any household maintenance figures for the Respondent once she moves from her current location. The $3,000 month will allow her to cover her basic reasonable living expenses and pay tuition at community college or other educational institution. The Respondent can supplement her income through employment. [107] In January, 2007 to December, 2007, the support will be reduced to $2,500 per month. If tuition is due in September, summer earnings can be put towards this tuition. During the summers, the Respondent should be able to find summer and supplementary work. [108] Thereafter, between January, 2008 to December, 2008 he shall pay $2,000 per month, to assist in a transition to the workplace completely. Support will cease at that point. [109] In the event the Respondent seeks to continue support, the onus shall be on her to show her efforts at retraining and employment and her continuing entitlement. [110] The father will continue his direct support of the children remaining dependant as they complete their current courses according to their current schedule. [111] The third party payments for her car shall, in accordance with the allowable tax law, be considered third party payments by way of support. [112] Arrears for 2003 and 2005, if any, shall be payable by September 1, 2006. [113] Counsel for the Applicant shall draft the order. Legere Sers, J. March 28, 2006 Halifax, Nova Scotia
The parties were married for thirteen years and had four children, who resided with the mother immediately following the divorce. The father paid one monthly sum ($6,000) comprised of both spousal and child support. Over a ten year period, all of the children had graduated from high school; two of the children had moved in with the father and he provided support directly to the other two children while they continued their education. After the first two children moved out of the mother's home, the parties orally agreed to reduce the child support payments. The parties were unable to negotiate a further reduction in the combined child and spousal support after the third child moved out of the mother's home. Since the parties' separation and divorce, the mother had not seriously pursued any educational retraining or furthered her education in her field of expertise; since the children had become independent, she occupied herself with volunteer work. The father now applied to terminate spousal support. The father shall continue to pay the sum of $3,000 per month as spousal support for one year; for the following year, the support will be reduced to $2,500 per month; in the following year, support shall be reduced to $2,000 per month, after which support will cease completely; the father shall continue his direct support of the children remaining dependant as they complete their current courses. Although the mother's effort in looking after four children and her absence from the workplace during the children's early years were significant factors, she had ignored her responsibility to move towards some sort of self sufficiency; given the number of children, the court extended the formula under the Spousal Support Guidelines beyond the maximum 13 year period; however, the mother must develop a reasonable strategy immediately to ensure that she either begins work in an area with better employment prospects or immediately attends courses to upgrade, refresh or enhance her ability to support herself.