IN THE SUPREME COURT OF NOVA SCOTIA Citation: Bishop v. Bishop, 2005 NSSC 220 Date: 20050808 Docket: 1204-003658 Registry: Kentville Between: Harry R. Bishop v. Paulette L. Bishop Respondent Judge: The Honourable Justice Arthur J. LeBlanc Heard: March 14, 2005, in Kentville, Nova Scotia Final Written Submissions: April 18, 2005 Counsel: Harry R. Bishop, self for the petitioner Stephen A. Mattson, Q.C., for the respondent By the Court: [1] Harry Bishop and Paulette Bishop met in 1990 and began cohabiting the same year. They were married on May 17, 1991 and separated on June 29, 2003. They have not resumed cohabitation. Both parties were previously married. There are no children of the marriage. [2] am satisfied that the parties have lived separate and apart for more than one year and that there is no possibility of reconciliation. All other jurisdictional requirements have been met. Therefore grant divorce under s. 8(2)(a) of the Divorce Act. [3] Ms. Bishop is receiving $1,600.00 in monthly spousal support pursuant to an order of Justice Stewart issued July 13, 2004. No additional interim orders have been issued. [4] The issues are the division of matrimonial assets and liabilities, whether Ms. Bishop is entitled to spousal support, and, if so, in what quantum. EVIDENCE Evidence of the parties [5] Mr. Bishop, the petitioner, is corporal in the Canadian Armed Forces. He has been member since 1977 and was in the second year of three year contract at the time of trial. He is stationed at Greenwood as an Airborne Electronic Sensor Operator aboard Aurora aircraft. Ms. Bishop, the respondent, is high school graduate. She was 48 years of age at the time of trial. When the parties met and began cohabiting, she was cleaner at CFB Greenwood. Before that she had worked at nursing home and hospital and as general worker at motels. The parties met in early 1990 and started to cohabit later the same year. Mr. Bishop said they began cohabiting in May, but accept Ms. Bishop’s statement that it was actually February 1990 when they moved in together. They lived in the vicinity of the base in rented premises. In 2000 they bought house in Middleton, which they sold in 2003. [6] The parties agree that initially they had happy relationship, which deteriorated due to Mr. Bishop’s consumption of alcohol and (according to Mr. Bishop) Ms. Bishop’s abuse of drugs. Mr. Bishop said he was not aware of her dependency on narcotics when they married. Mr. Bishop stated that Ms. Bishop demanded that he buy drugs for her. He claimed that they were spending upwards of $600.00 each month on narcotics near the end of their cohabitation. Mr. Bishop said he did not want Ms. Bishop’s drug habit to become public issue because it might have negative impact on his career. Consequently, he purchased marijuana for her. Ms. Bishop denied that she had strong addiction to narcotics, although she did some drugs, as she said Mr. Bishop did, but not excessively, as he claimed. She stated that she can no longer afford as much marijuana, although she has smoked marijuana and handmade cigarettes since the separation. [7] Mr. Bishop said he did not consume drugs as there was zero tolerance drug policy for members of the flight team. Ms. Bishop said substantial amount of Mr. Bishop’s income was directed to the purchase of alcohol. Mr. Bishop acknowledged that shortly after they started to cohabit, he became addicted to alcohol for several years until he got his consumption under control. He admitted that this addiction was serious enough to require medical treatment, and that on occasion he would drink to the point that he became unconscious. He agreed that he attempted suicide, resulting in his hospitalization. He claimed that this was caused not by his drinking (as Ms. Bishop stated), but because he was dissatisfied with the safety of the aircraft. He was subsequently diagnosed with depression and was grounded from flying for two years. [8] Ms. Bishop’s employment terminated shortly after the parties began cohabiting due to change in contractor. She received employment insurance for period and returned to work part-time as cleaner at the credit union. Ms. Bishop testified that shortly after the start of cohabitation, Mr. Bishop told her that he did not want her to work as cleaner, as it would not look good with his being member of the flight team. She claimed that he told her on one occasion that if she continued to work as cleaner, he would leave her. Therefore, she said, she decided not to work as cleaner, despite the resulting financial difficulties. Mr. Bishop claimed he never told her not to return to work but to do so once work became available. He said he was prepared to support her until she obtained alternate employment. [9] Laura Elena Beck is sister of Ms. Bishop. She testified that Mr. Bishop told Ms. Bishop, in her presence, that once they married Ms. Bishop would not have to work. She could not recall specifically if anyone else was present or the circumstances, but she said she was certain that Mr. Bishop made the statement. [10] Ms. Bishop stated that she is unable to return to work because of health problems, including irritable bowel syndrome, depression, obsessive compulsive disorder, sore back, and osteoporosis. She said she was diagnosed with obsessive compulsive disorder in 1992. Around the same time, there were marital problems due to Mr. Bishop’s drinking. Ms. Bishop agreed that this caused arguments, which resulted in her being depressed. Due to depression, she ceased doing house work, which duties were assumed by Mr. Bishop. She denied that “doing marijuana” prevented her from taking on gainful employment or homemaking. She reported her medical problems including loss of sleep, lack of eating and frequent crying episodes to Dr. Yafai, her doctor, shortly after the separation. She reported that she had suicidal ideation. Ms. Bishop claimed that she is unable to do any of the employment she previously performed. She also claimed that she has fractured vertebrae. She also said she would be unable to do heavy lifting. She could not lift patients or trays in nursing home to which are requirements for personal care worker. She said she also has difficulty with concentration and poor memory. [11] Over time, as Ms. Bishop became depressed and gradually lost interest in maintaining the home, Mr. Bishop took over the maintenance of the home, including such tasks as cleaning, laundry and the outside chores. He claimed that Ms. Bishop is capable of returning to some form of employment, either as cleaner or working in senior citizens or nursing home complex. He suggested that Ms. Bishop has been attending clubs and bars and that there is no substance to her claim that she is depressed or physically unable to perform any employment. He claimed that her medical condition did not prevent her from performing household duties, which she has performed since their separation. Mr. Bishop claimed that she is unwilling to work and that she does not want to assume her responsibilities. He said she did nothing productive in the latter years of their marriage. [12] Mr. Bishop said Ms. Bishop withdrew approximately $1,700.00 from their joint bank account within weeks following their separation. He denied consenting to this withdrawal. He agreed that at the time she had no other source of money except for small amount of change. He said he knew Ms. Bishop needed social assistance shortly after they separated. For his own part, Mr. Bishop withdrew about $8,400.00 from his RRSP, leaving balance of $400.00, within month or two after the separation. He maintained that another $4,000.00 was withdrawn shortly before the separation which was applied to matrimonial debts. [13] Mr. Bishop agreed that during the marriage the parties received significant amounts of money from Mabel Sabean, Ms. Bishop’s mother. She originally advanced $13,000.00 to consolidate some debts and to pay off loan taken out by Mr. Bishop to pay settlement to his first wife. He and Ms. Bishop received additional amounts for down payment on house and to purchase furnace for the matrimonial home. He said all the advances were to both himself and Ms. Bishop. He also stated that in 1993 Mrs. Sabean gave Ms. Bishop 1993 Sunbird automobile as gift, which was used by both parties. Mr. Bishop said the final advance from Mrs. Sabean, of $6,000.00, was subject to an IOU, which he claimed was means by which Mrs. Sabean would shield herself from more demands for money. He stated that the IOU required him to pay her the amount that both parties agreed was owing. There is no evidence to substantiate what amount was intended to be included in the IOU. Mr. Bishop did not repay any of the amounts advanced by Ms. Sabean. He maintained that the money advanced by Mrs. Sabean was, for the most part, applied to matrimonial debts. total of about $23,000.00 was received. [14] Ms. Bishop said she had borrowed significant amounts of money from her mother during the time the parties cohabited. She claimed that these were loans made to Mr. Bishop to cover existing loans or to make capital purchases, such as home or furnace. She said some of these advances were loans made specifically to him rather than to both of them, and others were gifts made by her mother to them as couple. She acknowledged that neither of them signed any documents obligating them to repay the money except the IOU signed by Mr. Bishop at about the time he received the $6,000.00 from Mrs. Sabean. [15] Mr. Bishop earns $4,782.05 per month, about $57,300.00 annually. He is paid bi-weekly. He receives special allowance, which he said is included in his salary. Mr. Bishop is presently under three-year contract and said he may be released from the Armed Forces early because of his inability to perform his tasks. Mr. Bishop did not provide any documentation or evidence to support this claim. He has established common law relationship with Ms. Elaine Snow and her two children live with them. The oldest boy is paying $25.00 per month towards his accommodation. Ms. Snow receives $300.00 per month in child support. She was unemployed at the time of trial. [16] Mr. Bishop’s pension has value of $140,239.00 for the period of cohabitation. His pension entitlement was established at $384,556.18 for the period February 10, 1977 to June 29, 2003, his entire period of service with the Armed Forces to the date of separation. [17] Mr. Bishop said the monthly expenses shown in his statement of financial information reflect the costs of Ms. Snow and her two children. He stated that some of his living expenses have risen since he began living with Ms. Snow and her children. He said it was more expensive to live in barracks than living in an apartment and claimed that his heating bill has gone up. Although his statement of financial information includes motor vehicle costs, he agreed that he is using Ms. Snow’s vehicle. He said he had to buy furniture because Ms. Bishop retained all of the parties’ furniture. His evidence was that his statement of financial information reflects approximately $650.00 more in expenses that he is actually spending. [18] In reviewing her expenses, Ms. Bishop stated that she needs motor vehicle to access the hospital and her physician. Her motor vehicle needs significant repairs and is expensive to operate. As such, she said, expenditures of $400.00 per month for vehicle repairs, maintenance and gas are necessary. She requires special diet for irritable bowel syndrome. She takes prescription drugs, some of which are provided by her family physician as samples. Her drug expenses are covered under Mr. Bishop’s drug plan but this will cease once the divorce is granted. have reviewed Ms. Bishop’s monthly budget and other than the car expenses and yard expenses, they are reasonable. The transportation expenses will have to be reduced and she is not responsible for yard expenses. Evidence of Dr. Yafai [19] Dr. Yafai is general practitioner and member of the Nova Scotia Medical Society. He has been Ms. Bishop’s physician for more than 10 years. He has treated her for multiple conditions, including irritable bowel syndrome, severe depression and obsessive compulsive disorder. He said Ms. Bishop is also suffering from bone density issue, which he believes is caused, in part, by lack of proper diet. [20] Dr. Yafai claims that he first diagnosed Mrs. Bishop with depression and anxiety in 1995, and later with obsessive-compulsive disorder. Dr. Yafai stated that Ms. Bishop’s depressive state has worsened since the separation. He made the following diagnosis relating to her complaint of depression and anxiety: (a) Crying (b) Sleep deprived; (c) Appetite loss; (d) Memory loss. [21] Dr. Yafai reported that Ms. Bishop has suffered weight loss and pain in her joints. He thought that she has poor prognosis for recovery, and thinks her condition is chronic. He said the irritable bowel syndrome is the main problem. It causes Ms. Bishop to have severe abdominal cramps, which are crippling. He said Ms. Bishop’s irritable bowel is severe and difficult to treat. He stated that stress can exacerbate this condition. strict dietary program consisting of high fibre is helpful. Dr Yafai was unaware of Ms. Bishop’s marijuana use during the marriage. [22] Dr. Yafai supports Ms. Bishop’s application for Canada Pension Plan disability benefits, claiming that she cannot do even part-time work. He agrees that many of her symptoms relating to depression and anxiety are self reported and said he did not do any objective testing. He agreed that with an appropriate diet, Ms. Bishop’s irritable bowel syndrome may improve, but said it would take five or six months with monitoring to see any positive results. He was unwilling to speculate, because Ms. Bishop had this condition prior to her separation and there has been no improvement since. He had not referred Mrs. Bishop to dietician. [23] Ms. Bishop submitted number of reports, containing opinions, prepared by various medical professionals which declined to consider because the authors did not testify at the hearing. consider them to be hearsay. Mrs. Bishop did not establish basis for their admissibility other than that it was costly to have the various experts attend the trial. am satisfied, however, that Dr. Yafai could rely on such opinions as basis for the treatment he offered Ms. Bishop. Other Witnesses [24] Andrew Sabean is cousin of Ms. Bishop. He has known Mr. Bishop for 12 years. He said he saw Ms. Bishop do housecleaning and was present when she was socializing. He had seen her using narcotics. [25] Cathy Robar has been friend of Ms. Bishop for 30 years and has known Mr. Bishop for about 12 years. She helped Ms. Bishop move to new apartment after the separation and had visited her since then. She said she had seen her clean the house and cook meals. She has been with Ms. Bishop at the Tophat Bar and the Kingston Legion several times since the separation. She said Ms. Bishop’s eating habits were very poor. She had not observed her using narcotics. [26] Jackie Sabean is related to Ms. Bishop and has known Mr. Bishop for about 13 years. He said he saw Ms. Bishop once since the separation, at the Legion. He said he had seen Ms. Bishop use narcotics but not Mr. Bishop. [27] Betty Swinamer is cousin and friend of Ms. Bishop. Ms. Bishop lived with her between October and December 2004. She said she did receive any money from Ms. Bishop. She did not observe Ms. Bishop or Mr. Bishop using narcotics. Since Ms. Bishop has been on her own, Ms. Swinamer said she did not observe her doing any housecleaning. She said Ms Bishop appears to be very stressed and has lost great deal of weight since the separation. They have gone out together socializing couple of times each week. [28] Charles Phinney stated that he and Ms. Bishop are friends. They attend the same church. He was not certain whether they met at dance. He said he observed her using marijuana at her home. [29] Laura Elena Beck, Ms. Bishop’s sister, said she did not know whether Ms. Bishop goes to clubs, but said she has gone to the Legion. MATRIMONIAL ASSETS [30] The net proceeds from the disposition of the matrimonial home in Middleton, $7,936.00, are being held in trust, less $188.33 for garbage removal and related expenses incurred by Mr. Bishop and paid from the trust funds. Ms. Bishop retained the furnishings and the motor vehicle, which has value of $1,200.00. do not have valuation for the furnishings. understand from the evidence that they are typical furnishings and appliances, to which impute value of $2,500.00. [31] Mr. Bishop stated that he withdrew the largest portion of the RRSP and applied it to matrimonial debts. He claimed that of the RRSP value of approximately $12,700.00, he withdrew about $4,000.00 before the separation and $8,255.00 after it, leaving balance of around $400.00. He said he is indebted to the Government of Canada for about $5,000.00 in income taxes resulting from these withdrawals. Mr. Bishop reduced the value of the RRSP matrimonial asset without allocating any of this amount to Ms. Bishop. [32] The $1,700.00 taken by Ms. Bishop from the joint account after the parties separated represents an expenditure for car repairs. have excluded this amount and the $4,000.00 withdrawn from the RRSP, as both amounts were applied to matrimonial debts. [33] The debts owing by the parties are the following: On Separation February 5, 2005 Visa $27,482.59 $28,103.09 Sears Canada 1,600.00 1,693.88 Credit Union 4,946.00 5,000.00 [34] These are matrimonial debts. They were incurred during the cohabitation. Mr. Bishop has attempted to maintain his financial position and to prevent the creditors from taking any precipitous action. He said he does not want to make an assignment in bankruptcy as he does not want to lose his employment. He has made arrangements with the Bank of Nova Scotia to delay the payment of an outstanding loan until the case is settled. Since the separation Mr. Bishop has paid interest on debts to the Royal Bank, Visa, Sears and the Credit Union. He has not paid any of the principal. He has arranged for the creditors to hold off taking any legal proceedings until matters are resolved. He agreed that on previous occasions he had stated that he was intending to file for bankruptcy. However, at trial, he said taking such step would negatively impact his position. [35] Ms. Bishop, who is joint obligant, claims she would be named in any legal proceedings to respond to the claims, particularly if Mr. Bishop files for bankruptcy. Ms. Bishop was not asked how she would deal with such an eventuality nor did she state whether she too would file for bankruptcy. [36] It is appropriate to hold Mr. Bishop responsible for the payment of the matrimonial debts. He has ability to earn income in the future. He claims that an assignment in bankruptcy might impact his career, and he therefore needs to pay these debts. direct that the funds held in the trust account be paid rateably to the three creditors and ask Mr. Mattson to contact the law firm to effect such payments. Should Mr. Bishop fail to pay all of the debts, and should Ms. Bishop be required to pay any of the debts, she would be entitled to apply for an increase in any spousal support order. [37] As to the IOU signed by Mr. Bishop in favour of Mrs. Sabean, dated May 2, 2000, although it purports to obligate Mr. Bishop to pay all amounts due and owing to Mrs Sabean, find that it is unenforceable because it is missing important terms. The IOU provided that Mr. Bishop promises to pay back to Mrs. Sabean “the amount agreed upon by both parties, that is owing”. As some of the key terms to make this binding obligation are missing, find there is no legal obligation. The IOU does not make Mr. Bishop liable, apart from any moral obligation he might voluntarily assume. refer to Walker v. Walker (1990), 92 N.S.R.(2d) 127 and Webb v. Webb [1994] N.S.J. 543. Mr. Bishop’s Pension [38] Mr. Bishop’s pension was not divided with his first spouse. According to his evidence, rather than divide the pension he made cash payment of $20,000.00. Mr Bishop did not provide the Court with documentation to confirm this arrangement, but accept his evidence on this point. [39] In Morash v. Morash (2004), 2004 NSCA 20 (CanLII), 221 N.S.R. (2d) 115 (C.A.), Bateman J.A. stated that under the Matrimonial Property Act pension of one spouse is matrimonial asset. Absent an application for unequal division under s. 13, pension entitlements should therefore be divided equally. Section 4, of course, defines “matrimonial assets” to include “all ... real and personal property acquired by either or both spouses before of during the marriage”, with certain exceptions. The burden is upon Mr. Bishop to establish that it would be unfair or unconscionable to divide the pension equally, pursuant to s. 13, which provides, in part: Factors Considered on Division 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: (a) the unreasonable impoverishment by either spouse of the matrimonial assets; (b) the amount of the debts and liabilities of each spouse and the circumstances in which they were incurred; ... (d) the length of time that the spouses have cohabited with each other during their marriage; (e) the date and manner of acquisition of the assets; ... (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; (j) whether the value of the assets substantially appreciated during the marriage; ... (l) 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; (m) all taxation consequences of the division of matrimonial assets.... [40] Davison J. considered the circumstances for unequal division in Prince v. Prince (1995) 144 N.S.R. (2d) (S.C.) (affirmed (1997) 1997 CanLII 1209 (NS CA), 163 N.S.R. (2d) 28 (C.A.)), where he referred to Hardwood v. Thomas (1981), 45 N.S.R. (2d) 414 (S.C.A.D.): ¶43 The leading case in the province dealing with this section is Hardwood v. Thomas ... where MacKeigan, C.J.N.S. stated at 417: Equal division of the matrimonial assets, an entitlement proclaimed by the preamble to the Act and prescribed by s. 12 should normally be refused only where the spouse claiming larger share produces strong evidence showing that in all the circumstances equal division would be clearly unfair and unconscionable on broad view of all relevant factors. That initial decision is whether, broadly speaking, equality would be clearly unfair not whether on precise balancing of credits and debits of factors largely imponderable some unequal division of assets could be justified. Only when the judge in his discretion concludes that equal division would be unfair is he called upon to determine exactly what unequal division might be made. The legislation encourages equality. The Hardwood case recognizes this in establishing the test. It refers to the necessity of "strong evidence" that an equal division would be "clearly unfair and unconscionable". [41] In Morash, supra, Bateman J.A. stated: ¶23 The presumed equal division of matrimonial assets recognizes marriage as partnership with each spouse contributing in different ways. measuring of the respective contributions of the parties to the acquisition of the matrimonial assets, save in unusual circumstances, is to be avoided. Matrimonial assets may be divided other than equally, only where there is convincing evidence that an equal division would be unfair or unconscionable. [Young v. Young (2003), 2003 NSCA 63 (CanLII), 216 N.S.R. (2d) 94 (C.A.)]. In applying s. 13, the question is not whether an unequal division would be fair or fairer, but whether the usual equal division dictated by the Matrimonial Property Act, would be unfair or unconscionable. "... [t]he issue of fairness is not at large, allowing judge to pick the outcome that he prefers from among various alternative dispositions, all of which may be arguably fair." (S.B.M. v. N.M. (2003), 2003 BCCA 300 (CanLII), 14 B.C.L.R. (4th) 90; [2003] B.C.J. No. 1142, (Q.L.)(C.A.) per Donald, J.A. at para 23). Absent factual context supporting unequal division, the court is not free to exclude from division assets acquired by one party prior to marriage.... ¶33 Since the decision of the Supreme Court of Canada in [Clarke v. Clarke, 1990 CanLII 86 (SCC), [1990] S.C.R. 795] ... this Court has consistently held that pension credits earned before and during the marriage (subject to valuation date issues) are matrimonial asset and subject to equal division, but for the operation of s. 13 of the Matrimonial Property Act.... Accordingly, Ms. Morash is entitled to an equal share of the pension credits earned prior to the marriage. [42] Justice Bateman determined that there was no basis for an unequal division. The husband had made four years of contributions prior to cohabitation. In Morash, however, there was no distinct application under s.13. [43] Mr. Bishop refers to several cases where pension contributions made prior to cohabitation were subject to unequal division. considered this issue in Falkenham v. Falkenham (2003), 2003 NSSC 163 (CanLII), 215 N.S.R. (2d) 247. The parties had been married in 1984 and divorced in 2003, and had two children. The wife had not worked great deal outside the matrimonial home after the birth of the children. The husband’s pension contributions extended six years before the parties’ cohabitation. included all of the pre-cohabitation contributions as matrimonial assets. [44] In Connolly v. Connolly (1999), 1999 CanLII 1172 (NS CA), 172 N.S.R. (2d) 382 (C.A.) the wife received half the value of the pension benefits earned during cohabitation. The husband had contributed to the pension for 33 years, 16 of which were prior to cohabitation and seven after separation. During the marriage, the wife cashed her pension and applied the proceeds to the purchase of the matrimonial home. The trial judge excluded pre–marital pension contributions because the wife had been burden on the marriage due to her alcoholism. Dismissing the appeal, Roscoe, J.A. stated: 15 After reviewing the three cases referred to above, [Dort v. Dort (1994), 1994 CanLII 4316 (NS SC), 130 N.S.R. (2d) 108; Adie v. Adie (1994), 1994 CanLII 4290 (NS SC), 134 N.S.R. (2d) 60; and Frost v. Frost (1996), 1996 CanLII 5392 (NS SC), 154 N.S.R. (2d) 341] there does appear to be trend emerging in the treatment of pre‑marriage pension contributions in certain types of cases, perhaps reflected in the significance given to certain factors, noted by Justice Stewart in Dort: ... It is not "short" marriage but it is important to note at what point in their lives they chose to marry. It was second marriage for the wife and also for the husband, who has adult children from his first marriage of seventeen years. They were mature when they married. No children were born of the parties ... 16 These three cases share several features with the case under appeal. In all these instances, the marriages were second marriages for both spouses. The marriages and/or periods of cohabitation were of short to medium length, five years in Frost, ten years in Dort and this case, and 15 years in Adie. In none of these cases were there any children born to the parties during the relationship. In Dort and Adie the entire pension contributions were made prior to cohabitation, and in Frost all but six months were pre‑marriage contributions. In Dort, Adie and Frost the trial judges relied, either partially or entirely, on the date and manner of acquisition of the asset, (s. 13(e)), as the rationale for an unequal division and awarding 100 percent of the pension to the contributor. That is perfectly consistent with the decision under appeal where 100 percent of the pre‑cohabitation contributions were not shared with the other spouse. 17 As noted in Adie, supra, at page 64, another consideration for this disposition of the pension asset, in some of the cases, is that the portion of the pension not divided with the present spouse was not accumulated by the diversion of family income: ... The result is that it was acquired exclusively by him before he had even met his present wife, and it was acquired by him without any contribution by the present Mrs. Adie whatsoever. She did not have relationship with Mr. Adie during the contributing phase of several years so as to be able to point to reduction in availability of income resulting in standard of living during the contributing years which reduction was in essence being set aside for future security enjoyment. 18 After considering these cases, it does not appear that the result in this case is inconsistent with other recent cases of similar circumstances, or that it was an error in law or in fact for the trial judge here to rely on s. 13 (d) and (e) in dealing with the pension division issue on the facts of this marriage. [45] In Urquhart v. Urquhart (1998), 1998 CanLII 5667 (NS SC), 169 N.S.R. (2d) 134 (S.C.) the parties cohabitated for seven years. The wife took substantially greater assets into the marriage than did the husband: her net worth had been in excess of $300,000.00, while Mr. Urquhart had negative net worth. As to pension division, Goodfellow J. stated that it would be unfair and unconscionable to award either spouse an interest in that portion of the investments earned exclusively by the party before the entry into the relatively short marriage (para. 27). [46] am satisfied that an unequal division of the pension is justified. Mr. Bishop contributed to the pension for 13 years prior to the parties cohabiting, and for similar length of time during cohabitation. This was medium-length marriage, second marriage for both parties, and there were no children. The circumstances here are unlike those in Morash, supra, Falkenham, supra and Rutherford v. Rutherford (2004), 2004 NSSC 148 (CanLII), 225 N.S.R. (2d) 293 (S.C.), where the parties had cohabited for most of the period while the pension entitlement was being earned, except for four to six years. In this case half the pension contribution period pre-dated cohabitation. This is not to say that in all cases where there is lengthy pre-cohabitation contribution period there will be an unequal division. But in the circumstances am satisfied that an equal division of this asset would be unfair or unconscionable. Ms. Bishop is not entitled to half of the pension, but to lesser share, whose determination requires consideration of the factors set out in s. 13. [47] The conduct of both parties unreasonably impoverished the matrimonial assets. Ms. Bishop smoked marijuana in significant quantities and Mr. Bishop was addicted to alcohol for an extended period. Resorting to s. 13(a) as justification for an unequal division would be inappropriate because it would place the blame entirely on Ms. Bishop for the impoverishment. This factor applies equally to Mr. and Mrs. Bishop and does not assist Mr. Bishop. [48] As to the date and manner of acquisition of the pension (s. 13(e)), significant portion of the contributions was made prior to cohabitation, which find commenced in February 1990. acknowledge that significant growth or increase in the pension entitlement occurred during the period of cohabitation. have no accounting of the value of the pension as of the date the parties commenced cohabitation. [49] Ms. Bishop did not leave her employment to take care of any children. Nor did she leave her employment to advance Mr. Bishop’s career; while conclude that he did ask her not to work as cleaner at the base, this does not mean he did not want her to work at all. With respect to s. 13(I), find that initially, Ms. Bishop contributed to the welfare of the family by taking care of the property and home. However, the evidence established that Mr. Bishop did most of the work in the home during the latter part of the marriage on account of Ms. Bishop’s depression. [50] have taken into account that Mr. Bishop benefited significantly from the payments received from Ms. Sabean, which no doubt reduced the amount of matrimonial debts, and that he is responsible for all of the matrimonial debts. [51] have already indicated the value of the pension for the period February 1990 to June 2003. This calculation fails to address the value of the pension between February 1977 to February 1990. Ms. Bishop will lose the benefit of future increases in the value of Mr. Bishop’s pension. [52] I award 35% of the pension entitlement to Ms. Bishop and 65% to Mr. Bishop, from February 1977 to the date of separation of June 29, 2003. [53] Ms. Bishop is 48 years of age (at the time of trial) and her expenses are in the range of $3,000.00 per month. There is an interim spousal support order of $1,600.00 per month. She seeks continuation of spousal support for an indefinite period, claiming she is unable to return to work on account of her medical problems. conclude that with professional psychiatric or psychological assistance, she could deal with her depression and anxiety issues, and that the obsessive-compulsive disorder, in itself, does not prevent her from returning to work. am satisfied, however, that the other major illnesses and disabilities, particularly irritable bowel syndrome, limit her ability to return to employment. find as fact that Ms. Bishop is unable to return to employment at this time. [54] While Mr. Bishop argued that many of her symptoms of depression and anxiety are self-reported, Dr. Yafai’s evidence was that cramps related to irritable bowel syndrome would prevent Ms. Bishop from maintaining regular work schedule. She also complains of sore back, which restricts her ability to lift, thus excluding her previous employment as cleaner or in nursing homes (where she would likely be required to lift patients). But for the irritable bowel syndrome, she could take up sedentary work. It is clear from Dr. Yafai’s evidence that any treatment would only be effective over an extended period of time. It is also clear from the doctor’s evidence that Ms. Bishop suffered from this illness for considerable time during the marriage, without any successful relief or cure. [55] The Divorce Act refers to the objectives and relevant considerations in making spousal support order at s. 15.2: Spousal support order 15.2 (1) court of competent jurisdiction may, on application by either or both spouses, make an order requiring spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse. Terms and conditions (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 ©) any order, agreement or arrangement relating to support of either spouse. Spousal misconduct (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. Objectives of spousal support order (6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of spouse should (a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; ©) 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. [56] As to the question of what, if any, entitlement to support exists, find the Supreme Court of Canada decision in Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] S.C.R. 420, helpful in this case. McLachlin J. (as she then was), writing for the Court, described the approach to be followed by trial judge in determining spousal support question. She referred to Moge v. Moge, 1992 CanLII 25 (SCC), [1992] S.C.R. 813: 35 Moge ... sets out the method to be followed in determining support dispute. The starting point is the objectives which the Divorce Act stipulates the support order should serve: (1) recognition of economic advantage or disadvantage arising from the marriage or its breakdown; (2) apportionment of the financial burden of child care; (3) relief of economic hardship arising from the breakdown of the marriage, and (4) promotion of the economic self‑sufficiency of the spouses: s. 15.2(6). No single objective is paramount; all must be borne in mind. The objectives reflect the diverse dynamics of the many unique marital relationships. 36 Against the background of these objectives the court must consider the factors set out in s. 15.2(4) of the Divorce Act. Generally, the court must look at the "condition, means, needs and other circumstances of each spouse". This balancing includes, but is not limited to, the length of cohabitation, the functions each spouse performed, and any order, agreement or arrangement relating to support. Depending on the circumstances, some factors may loom larger than others. In cases where the extent of the economic loss can be determined, compensatory factors may be paramount. On the other hand, "in cases where it is not possible to determine the extent of the economic loss of disadvantaged spouse the court will consider need and standard of living as the primary criteria together with the ability to pay of the other party": Ross v. Ross (1995), 1995 CanLII 6228 (NB CA), 168 N.B.R. (2d) 147 (C.A.), at p. 156, per Bastarache J.A. (as he then was). There is no hard and fast rule. The judge must look at all the factors in the light of the stipulated objectives of support, and exercise his or her discretion in manner that equitably alleviates the adverse consequences of the marriage breakdown. [57] In Bracklow, Justice McLachlin set out three conceptual grounds for entitlement to spousal support: compensatory, contractual and non-compensatory. She emphasized that compensation is not the only basis for support, pointing out that “by directing that the judge consider factors like need and ability to pay ... [the Divorce Act] left in place the possibility of non-compensatory, non-contractual support” (para. 18). She went on to discuss the “mutual obligation theory” which “postulates each of the parties to the marriage agreeing, as independent individuals, to marriage and all that it entails ‑‑ including the potential obligation of mutual support” (para. 30). The mutual obligation model was contrasted with the self-explanatory “clean-break” model (para. 27). She summarized: 43 In summary, nothing in the ... Divorce Act suggests that the only foundations for spousal support are compensatory. Indeed, find it difficult to confine the words of the statutes to this model. It is true that in 1986 the Divorce Act was amended to place greater emphasis on compensation. This represented shift away "to some degree" from the "means and needs" approach of the 1968 Act: Payne on Divorce ... at p. 267. But while the focus of the Act may have shifted or broadened, it retains the older idea that spouses may have an obligation to meet or contribute to the needs of their former partners where they have the capacity to pay, even in the absence of contractual or compensatory foundation for the obligation. Need alone may be enough. More broadly, the legislation can be seen as sensitive compromise of the two competing philosophies of marriage, marriage breakdown, and spousal support. [58] am particularly guided by the comment in Bracklow, citing Ross, that “where it is not possible to determine the extent of the economic loss of disadvantaged spouse the court will consider need and standard of living as the primary criteria together with the ability to pay of the other party” (para. 36). The evidence does not suggest contractual relationship between the parties. Neither does there appear to be compensatory basis for support. The parties had no children, and thus Ms. Bishop did not forgo advancement in order to be the primary caregiver. Generally, there is no evidence to establish that her standard of living was negatively affected by the marriage. Additionally, there is no evidence to establish whether her financial condition is better or worse than it was when the parties began cohabitation. [59] On the other hand, Ms. Bishop is not presently employable. She has applied for CPP disability benefits but had no response by the time of trial. She was working when she and Mr. Bishop met and began cohabiting. am satisfied that she stopped working as cleaner at the Base at his direction. For the rest of the marriage, she did not work outside the home, and contributed little to maintaining the home. In this she somewhat resembles the appellant wife in Bracklow. [60] It should be noted that the illness need not be causally related to the marriage. As Justice McLachlin said in Bracklow: 48 To permit the award of support to spouse disabled by illness is but to acknowledge the goal of equitably dealing with the economic consequences of marital breakdown that this Court in Moge, supra, recognized as lying at the heart of the Divorce Act. It also may well accord, in my belief, with society's sense of what is just. The Report of the Scottish Law Commission, Family Law: Report on Aliment and Financial Provision (1981), at pp. 111‑12, thoughtful analysis of the rationale and policy considerations of spousal support and illness, states: Financial provision on divorce is not simply matter of abstract principle. It is essential that any system should be acceptable to public opinion and it is clear from the comments we have received that many people would find it hard to accept system which cut off, say, an elderly or disabled spouse with no more than three‑year allowance after divorce, no matter how wealthy the other party might be. Divorce ends the marriage. Yet in some circumstances the law may require that healthy party continue to support disabled party, absent contractual or compensatory entitlement. Justice and considerations of fairness may demand no less. [61] In Bracklow the Court found basis for support based on the length of cohabitation (about seven years), the hardship imposed upon the appellant by the breakdown of the marriage, the appellant’s probable need and the respondent’s ability to pay. As in Bracklow, find that the breakdown of the marriage left Ms. Bishop in state of economic hardship, as contemplated by s. 15.2(6)(c) of the Divorce Act. After separation, her financial situation deteriorated. Initially she resorted to social assistance, until she was awarded interim support. On the other hand, Mr. Bishop has secure employment and it appears that he can remain at this employment until retirement age. He has entered relationship with Ms. Snow. The parties’ marriage was mid-length one, with period of cohabitation of about 13 years. [62] In the circumstances, am satisfied that Ms. Bishop is entitled to spousal support. The next question is the quantum and duration of support. In Bracklow, Justice McLachlin stated that the same considerations that inform the consideration of entitlement are to be considered on the issue of quantum (para. 50). Commenting on the parties’ proposed formulas, she said, at para. ... The quantum awarded, in the sense of both amount and duration, will vary with the circumstances and the practical and policy considerations affecting particular cases. Limited means of the supporting spouse may dictate reduction. So may obligations arising from new relationships in so far as they have an impact on means. Factors within the marriage itself may affect the quantum of non‑compensatory support obligation. For example, it may be difficult to make case for full obligation and expectation of mutual support in very short marriage. (Section 15.2(4)(a) of the Divorce Act requires the court to consider the length of time the parties cohabited.) Finally, subject to judicial discretion, the parties by contract or conduct may enhance, diminish or negate the obligation of mutual support. To repeat, it is not the act of saying "I do", but the marital relationship between the parties that may generate the obligation of non‑compensatory support pursuant to the Act. It follows that diverse aspects of that marital relationship may be relevant to the quantum of such support. As stated in Moge, "[a]t the end of the day ..., courts have an overriding discretion and the exercise of such discretion will depend on the particular facts of each case, having regard to the factors and objectives designated in the Act" (p. 866). [63] As to the consideration of need, she said, at para. ... It does not follow from the fact that need serves as the predicate for support that the quantum of the support must always equal the amount of the need. Nothing in ... the Divorce Act forecloses an order for support of portion of the claimant's need, whether viewed in terms of periodic amount or duration. Need is but one factor to be considered. This is consistent with the modern recognition, captured by the statutes, of the variety of marital relationships in modern society. spouse who becomes disabled toward the end of very short marriage may well be entitled to support by virtue of her need, but it may be unfair, under the circumstances, to order the full payment of that need by the supporting spouse for the indefinite future. [64] As to the effect of payor spouse, such as Mr. Bishop, entering into new relationship, she said: 56 Mr. Bracklow makes final policy argument. In an age of multiple marriages, he asserts, the law should permit closure on relationships so parties can move on. Why, he asks, should young person whose marriage lasts less than year be fixed with lifelong obligation of support? When can former spouse finally move on, knowing that he or she cannot be drawn back into the past by an unexpected application for support? 57 Again the answer is that under the statutes, the desirability of freedom to move on to new relationships is merely one of several objectives that might guide the judge. Since all the objectives must be balanced, it often will not be possible to satisfy one absolutely. The respondent in effect seeks judicially created "statute of limitations" on marriage. The Court has no power to impose such limitation, nor should it. It would inject rigidity into the system that Parliament and the legislatures have rejected. Marriage, while it may not prove to be "till death do us part", is serious commitment not to be undertaken lightly. It involves the potential for lifelong obligation. There are no magical cut‑off dates. [65] The evidence discloses that, rather than being independent, one from the other, Mr. and Ms. Bishop established an interdependent relationship; however, after Ms. Bishop stopped working, and on account of her ill health, Mr. Bishop provided for both of them. [66] In determining quantum, have considered the length of the marriage, the relative financial positions of the parties, the relationship Mr. Bishop has formed (and the fact that his partner receives child support) and Ms. Bishop’s ongoing illnesses and inability to work. While Mr. Bishop’s new relationship does not relieve him of his obligation to Ms. Bishop, that is not to say that Ms. Bishop is entitled to lifelong support to cover her entire budget. [67] Mr. Bishop has limited means. He pays $1600.00 per month under the interim order. Ms. Bishop claims that certain of his claimed expenses such as the automobile costs are inflated or non-existent. While am satisfied that his income is as claimed, agree that the car expense should be reduced. Deducting $600.00 leaves his claimed expenses at $2112.00. His situation is improved by the $300.00 in child support received by Mrs. Snow, and the $25.00 from her son. Otherwise, it appears he is meeting all the expenses for the household. also note that he does not show an amount for debt repayment. Taken together, these factors cancel the reduction of the car expense. [68] have referred to the Advisory Spousal Support Guidelines, which suggest support of between $1188.00 and $1584.00 per month. There is no specific recommendation for the duration of such payments. In Bracklow, upon the matter being remitted to the trial judge, the appellant was awarded $400.00 per month She was also receiving $846.00 in disability pension. The respondent was earning $71,000.00 per year plus benefits. The trial judge superimposed the clean break model upon the social obligation model, given the new relationship established by the respondent (see (1999) 1999 CanLII 5311 (BC SC), 181 D.L.R. (4th) 522 (B.C.S.C.)). Similarly, in this case believe it is necessary to apply the social obligation model along with the clean break model, in order to achieve justice (see Bracklow (S.C.C.) at para. 32). [69] No amount that can award for spousal support will meet all of Ms. Bishop’s financial needs. emphasize that “[a] spousal support order is not designed to equalize the lifestyles of the former spouses” but nevertheless the applicant has “a need that is obvious” while the respondent’s “ability to meet that need is limited”: Miller v. Miller (2001), 2001 NSCA 31 (CanLII), 193 N.S.R. (2d) 371 (C.A.) at para. 34. [70] I direct Mr. Bishop to pay to Ms. Bishop $1,000 per month in spousal support, commencing August 31, 2005, for a period of 10 years, up to and including July 31, 2015. The spousal support order will be open to variation if Ms. Bishop obtains a CPP disability pension or if Mr. Bishop retires from the Armed Forces. Similarly, if Ms. Bishop becomes fit to work, Mr. Bishop will be entitled to seek a variation. Finally, if Mr. Bishop makes an assignment in bankruptcy or a proposal under the Bankruptcy and Insolvency Act, which has the effect of requiring Ms. Bishop to pay any of the matrimonial debts, she will be entitled to apply for a variation in spousal support to cover any amount she is required to pay. This provides Ms. Bishop with complete indemnity with respect to the matrimonial debts. Of course, either party may apply for variation of the support order should there be any other change in circumstances. [71] have decided not to award costs, with the exception that Mr. Bishop is directed to pay Dr. Yafai’s account for his attendance to testify as an expert witness. [72] request that Mr. Mattson, Q.C. prepare the Divorce Judgment and Corollary Relief Judgment.
The parties were married for twelve years; there were no children of the marriage. The husband was in the military; the wife was a cleaner on a military base when the parties met and she changed jobs at the husband's direction. She now stated that she was unable to return to work due to health problems, including irritable bowel syndrome, depression and obsessive compulsive disorder. Both parties accused the other of conduct which diminished matrimonial assets. The wife's mother had advanced the parties a considerable amount of money during the marriage, with the final advance being the subject of an IOU. The husband is to be responsible for the matrimonial debts, with the net proceeds from the sale of matrimonial home to be paid ratably to those creditors; the wife is to receive 35% of the husband's pension entitlement; husband to pay spousal support in the amount of $1,000 per month for a period of ten years with the order open to variation if the wife obtains a C.P.P. disability pension or becomes fit to work or if the husband retires from the military or makes a proposal or an assignment in bankruptcy which has the effect of requiring the wife to pay any of the matrimonial debts.