Date: 20000323 Docket: S.H. 1201-50342 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: MICHAEL STUART CLARKE and LAVERNA RUTH CLARKE RESPONDENT HEARD BEFORE: The Honourable Justice Walter R. E. Goodfellow in the Supreme Court of Nova Scotia on March 20th, 21st, 22nd, 2000 DECISION: March 22nd, 2000 (orally) WRITTEN RELEASE OF ORAL: March 23rd, 2000 COUNSEL: Helen L. Foote, Solicitor for the Petitioner Mrs. Laverna Clarke Personally/Respondent GOODFELLOW, J.: (Orally) [1] Michael Stuart Clarke, now 44, and Laverna Ruth Clarke, now 41, were married August the 30th,m 1980 and separated approximately 14 years later, March the 1st, 1995 at which time Mrs. Clarke was 37 and Mr. Clarke 39. [2] The Petition for Divorce was issued January the 5th, 1996 and it has taken over years to bring the matter to trial and over years since their separation. There have been number of Interim Applications and Interim Orders. [3] am satisfied that all jurisdictional requirements have been met and that there has been permanent breakdown of the marriage and therefore, Divorce Judgment will be issued forthwith. Ms. Foote, as the only counsel involved, is left with the responsibility of preparing the Corollary Relief Judgment. CUSTODY ACCESS [4] The parties have two children, Matthew Norman Ronald Clarke, born August the 2nd, 1983, now 16, and Mitchell Harris Clarke, born September the 28th, 1991, now 8. The parties entered into Partial Agreement and Minutes of Settlement signed the 15th of March, 2000 and it provides for joint care and custody arrangement for the children with their primary residence being with their mother and fixing her with the responsibility for their day to day care. The parties spell out in considerable detail their hopes and expectations with respect to the joint care and custody arrangement and then proceed to set out the access provisions. The Partial Agreement and Minutes of Settlement will be annexed to and incorporated into the Corollary Relief Judgment when issued. LEGISLATION DIVORCE ACT 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 (c) 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; (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. Priority to child support 15.3 (1) Where court is considering an application for child support order and an application for spousal support order, the court shall give priority to child support in determining the applications. MATRIMONIAL PROPERTY ACT [5] The parties were unable to accumulate any assets of consequence throughout their cohabitation and under the Partial Agreement and Minutes of Settlement they divided what was available. It is my understanding that the parties entered bankruptcy in 1986. The parties acknowledged that there is no real property and that they have effected satisfactory division of the personal property. Their Agreement in this regard will be matter of record by virtue of its incorporation in the Corollary Relief Judgment. EDUCATION, TRAINING, EMPLOYMENT BACKGROUND (A) Michael Stuart Clarke [6] Mr. Clarke gained grade 12 and proceeded to enrol in Saint Mary’s University in year Bachelor of Science and Geology Program. He graduated in 1979 and when his relationship began with Mrs. Clarke, he recognized career in Geology was not likely to be compatible with marriage and returned to University initially to seek M.B.A. Degree and soon changed that to Bachelor of Commerce Degree. Married in 1980 he struggled with the Bachelor of Commence Program for years and then entered the work force in 1982 with Atlantic Micro, remaining with them for about months and then with company called Micro Tech where he was the Educational Sales Rep for Nova Scotia and after years promoted to Educational Sales Manager. In 1985 he changed employment again, this time with Data Master but again in the computer field. This employment necessitated move to Saint John, New Brunswick and it turned out not to be positive employment experience and lasted only slightly more than one year. Mr. Clarke then started private consultation arrangement with firm which lasted for about months and then he took position at Acadia University as an System Analyst providing training where he remained for about one year. He then joined Future World in New Minas as the Manager for years and then with company called Epson Canada which was primarily dealing with printers and he stayed with them for about one year before entering an Independent Peer Partnership which lasted in the range of months and then he entered employment with Dalhousie University for approximately year. His next employment was with Compatible Computers in Dartmouth for years, then he attempted to work as consultant and set up his own group, Phoenix Consultancy, but the work was sporadic and it was, in his words, “feast or famine” and mostly “famine”. [7] He recognized it was necessary to increase his credentials and he was able through Unemployment Insurance to take training for five week course at St. Francis Xavier University in 1993 and in 1994 received diploma. In September, 1994 he commenced employment at the Akerley Campus part-time teaching computer systems and he would fill in. He remained in this field until he departed for Bahrain. He had difficulty while working in Community College making ends meet. There was union requirement of years before you could reach certain level of remuneration and almost simultaneous with the determination to go to Bahrain he was terminated. [8] Mr. Clarke’s contract with Daleel is dated April the 4th, 1998. It required him to be in London for training for week period during which his remuneration would be $2,500.00 U.S. and then he proceeded to Bahrain around the 15th of June, 1998 when salary post-training went to $5,000.00 U.S. per month and after month period it reached $6,000.00 per month U.S. The contract was for period of years and on visit to Canada, he received telephone call confirming that the company, Daleel, had serious cashflow problem and that the contract was at an end. At this point, he faced the dilemma that if he obtained any employment in Canada, he would have to pay Canadian income tax on the income he had for the one year period in Bahrain. He sought out employment and received contract from Documentum, Pleasanton, California July the 29th, 1999 where he is presently is employed. His salary is $6,250.00 U.S. per month and he is eligible for 10 per cent annual bonus. In addition, he may receive stock options. He presently qualifies for 500 shares at $14.50 per share. With the existing volatile market in technology shares, the present market value is $90.00 per share. All funds are in United States dollars. Mr. Clarke is entitled to exercise the stock option in August, 2000. (B) Laverna Ruth Clarke [9] Mrs. Clarke graduated from grade 12 in 1976 and attended Dalhousie University, 1976-77 and 1977-78. It was necessary for her to take year off work due to lack of financial capacity and while working at the Mariner Hotel as receptionist, she met Mr. Clarke. She returned part-time to Dalhousie in 1979-80 and they were married in the summer of 1980. [10] Mrs. Clarke obtained approximately 11.5 credits out of the necessary 15 for degree, however, her evidence that accept is that with the passage of time, the credit standing has probably been lost so that if she were to return to seek degree, it is quite probable that she would have to start all over again. [11] The first year of her marriage she had no employment and then in 1981-82, 1982-83 she had part-time employment with the Bank of Nova Scotia which ended in 1983 at which time she was employed at the Bank of Nova Scotia, Hollis Street Branch. She was without employment for years and in 1988 she was able to work terms at the Junior High School in Canning. During this period, the School Board paid for credit from Teacher’s College and she managed to obtain another university credit. She was employed in 1988-89 and 1989-90 and earned approximately $8,000.00 each year. Mrs. Clarke then drew U.I.C. for period of time and had for about months s.25 U.I.. However, she was off work in 1990 for approximately year and drew U.I.C. for period of time. After the birth of their son, Mitchell, in 1991she stayed home for about weeks and returned to term contract of approximately months. She was home another full year until 1992 when she became volunteer and was subsequently hired on contract. Her employment in September of 1993 was at approximately $25,000.00 per annum and then for 1994 approximately $29,000.00 per annum. Her Income Tax Return is indicated for 1996 to be $43,000.00 per annum, however, this included approximately $8,000.00 in either advances or accumulative vacation pay she had received the previous year and an additional $5,000.00 advances that has since crystalized in Judgment against her. She continued employment until April 1997 and has had absolutely no employment since April, 1997, period rapidly approaching years. INCOME HISTORY (A) Michael Stuart Clarke [12] have already traced Mr. Clarke’s employment and education/training record from the time of his graduation with Bsc. in 1979 and entry into this marriage on 1980. The court does not have specifics of his income for the early years of the marriage but obviously it was not of steady regular basis. Income Tax information has been provided from 1994 on as follows: 1994 $6,158.00 1995 $32,207.00 1996 $32,777.00 1997 $36,974.00 1998 $13,256.07 [13] The income he had in 1998 is from the Nova Scotia Community College and he has not yet filed his return. He expects refund. This represents his only taxable income in 1998 because he proceeded under his contract with Daleel to London/Bahrain and his non-taxable income for the balance of 1998 amounted to $36,500.00 U.S. funds. After $36,500.00 U.S. funds are converted at the rate of 1.4 to Canadian funds, is $51,100.00 for total 1998 income in Canadian funds of $64,356.07, bearing in mind that the $51,100.00 is non-taxable. [14] In 1999 he had his employment at the rate of $6,000.00 U.S. per month in Bahrain, to and inclusive July, 1999, approximately $40,500.00 U.S. non-taxable converted to Canadian funds equals $56,700.00. He had his interview with his present employer, Documentum, and the job offer of July 29th, 1999. His employment commenced approximately August 15th and his income under his contract would be basic, from August 15th to December 31st, 1999 inclusive, $6,250.00 U.S. per month times 4.5, $28,125.00. In addition, his 1999 W-2 earning summary lists bonus of $927.00. It appears that the bonus is paid in arrears and that the additional bonus shown on his February 15th, 2000 pay slip of $1,900.75 relates to 1999 giving him total bonus income of $2,827.75 which combined with his basic gives 1999 employment/bonus income totalling $30,952.75 plus the $40,500.00. Mr. Clarke also received moving allowance and Documentum wished him to net $5,000.00 to cover his moving expenses and therefore he received transfer/tax bonus grossed up to $8,643.04. This was one time payment meant to cover moving expenses. am satisfied moving expenses were incurred, although suspect he may have been able to pocket some funds, as have no documentation or specifics before me as to the actual amount he expended on moving personal effects etcetera from Bahrain to California. do note that the 1999 bonus portion of $1,975.00 is taxable in the year of receipt, 2000, and therefore should not be included in his 1999 income. [15] Converted to Canadian funds, his 1999 income is approximately $97,372.80. (B) Laverna Ruth Clarke [16] have already traced in her employment record the evidence with respect to her income and will comment on her income capacity and failure to obtain any employment income for almost three years in my summary of “circumstances”. Bray-Long v. Long, S.H. 1201-52449, 13th of January, 2000. The best advice Mrs. Clarke could have received in 1977 at the termination of her grant employment was to immediately seek out and start employment in whatever area and at whatever level was then available. DIVORCE AGREEMENT [17] The parties, as previously noted, separated March the 1st, 1995 and both expended limited resources on legal fees. One of the major difficulties in bringing resolution to their problems has been an unrealistic assessment by both of them of the financial resources available. The parties have not had any lengthy period of financial stability throughout their entire 14 years of cohabitation or since. [18] When Mr. Clarke indicated his imminent departure for Bahrain, the parties, without benefit of counsel, negotiated “Final Settlement” which was crystalized by both of them attending at the office of the Prothonotary of the Supreme Court on or about May the 13th, 1998 and filing what was labelled detailed Affidavit sworn by Mrs. Clarke, called Divorce Agreement. Each of them acknowledged the Agreement and it contains the usual provisions with respect to being full and final settlement. The provisions agreed upon with respect to child support will be dealt with separately and specifically under that heading. The approach of the court has been one of respect for agreements. Durocher v. Durocher (1992), 1991 CanLII 4237 (NS SC), 106 N.S.R. (2d) 215. [19] There is no legal requirement of party having independent legal advice. When the parties fail to direct their attention to significant feature, the court may address such omission, Durocher, above. Similarly, if there has been extreme emotional turmoil so that one can conclude reasonable person in the absence of such turmoil would have addressed specific concern, then in such an extreme case an Agreement is open to variation by the court. The court, even where it adopts such necessary course, will do so only to limited extent appropriate and intrude as little as possible on the clear intent the parties have exhibited in their Agreement and here they clearly wanted to finalize all matters, including spousal support. [20] The Agreement did not address the level of child support in accordance with the Federal Child Support Guidelines in effect, nor did it provide a limited capacity or practical retraining by Mrs. Clarke to facilitate employment. Quite possibly, s.15(3) of the Divorce Act would have been invoked, as the resources were not yet available to provide limited retraining assistance to Mrs. Clarke. Additionally, provisions such as reimbursement of Mrs. Clarke’s costs were undoubtedly predicated on Mr. Clarke’s belief that he was going to have years of high non-taxable income. [21] I conclude therefore this is an exceptional situation that requires some adjustment with respect to the Agreement reached by the parties and filed May the 13th, 1998. It must be acknowledged that if the Agreement contained level of child support consistent with the Federal Child Support Guidelines and had been in form acceptable to the Prothonotary Office, then quite probably the Divorce Judgment would have been granted as of that date and the Corollary Relief Judgment to which both parties agreed would also have been issued as of that date. There would not be any jurisdiction remaining open for the court to make limited realistic adjustment to their Agreement. CHILD SUPPORT [22] The Agreement filed May the 13th, 1998 provided for the then current child support payments of $850.00 per month as set out in the Interim Order of July, 1998 to continue with this amount to be increased to $1,100.00 per month as of July, 1998 until April, 2000. This was apparently an attempt to generally coincide with the father’s employment in Bahrain. The Agreement did provide if there was disruption in the father’s income, it would be adjusted to comply with the Federal Child Support Guidelines and after April, 2000, the child support payments were to revert to the formal level of $850.00 per month and again, to be adjusted in the event of any disruption or financial hardship for the husband. [23] There are other provisions which have some reservations the parties fully understood the terminology they were using but in any event, the Agreement required Mr. Clarke to repay back payments of child support in the amount of $6,600.00 to be paid in 17 monthly instalments of $388.00 per month, commencing in August, 1998. There is further balancing payment of $4,500.00 in 17 payments of $265.00 per month starting in July, 1998 and ending in April, 2000 which are not under the heading “child support” but under the heading “real property” and of course the parties had no real property so in essence find it is an increased contribution as part consideration for Mrs. Clarke’s waiver of spousal maintenance entitlement. [24] In addition, Mr. Clarke agreed to repay legal costs of $5,200.00 in 24 monthly instalments of $216.00 per month, commencing August, 1998 which is in the same category, namely partial consideration for her waiver. [25] Subject to checking the mathematics further, have adopted the figures advanced by Mr. Clarke’s solicitor as to what is outstanding. It is agreed that the 17 monthly payments of $388.00 per month that commenced in August, 1998 have been satisfied as of December, 1999. There is one $265.00 payment outstanding and four $216.00 payments outstanding and together these total $1,130.00. According to the schedule of payments to March, 2000, the arrears of child support quickly on the math of their Agreement is $4,356.25 leaving total outstanding of payments under their Agreement of $5,485.25. The Divorce Act requires priority be given to support of children and also to simplify the Corollary Relief Judgement to avoid any question of tax consequences, will direct this amount, $5,485.25 be payable by Mr. Clarke to Mrs. Clarke as arrears of child support subject to the further adjustment by application retroactively the Federal Child Support Guidelines. have concluded that Mr. Clarke has had capacity to pay greater than the agreed $850.00 per month child support increase to $1,100.00 per month and that consistent with the intention of their Agreement, there should be retroactive adjustment based upon Mr. Clarke’s income capacity since July, 1998. conclude for two months he ought to have paid $1,250.00, shortfall of $800.00 and then for twelve months, shortfall of $150.00 per month, an additional $1,800.00 per month and then further seven months shortfall of $309.00 per month, the sum of $2,163.00. Together they total an additional $4,763.00 retroactive child support. Mrs. Clarke wishes me to go back and assess what she considers is arrears of child support from the date of separation. am not satisfied that arrears, other than those that have already addressed, have been established in the evidence. [26] fix Mr. Clarke’s income for the purposes of child support at basic of $6,250.00 per month and bonus feature of $625.00 per month, total of $6,875.00 U.S. funds. have reflected on the fact that Mr. Clarke’s employer pays what appears to be approximately $6,000.00 year for medical and other benefits separate from the post tax deductions for long term disabilities, etcetera, paid for directly by Mr. Clarke. The company’s portion appear on his statements as FL-EX credits. The end result is that he pays an additional approximately 38 per cent of $6,000.00 in U.S. income tax for benefits that are substantially provided in Canada through general taxation, indirect taxation and consumption taxation. The question arises whether or not for purposes of fixing his income for the Federal Child Support Guidelines to be adjusted for all or part of the direct income tax obligation incurred on the $6,000.00 taxable benefit. On balance, have concluded the evidence advanced in this case does not warrant any adjustment. Accordingly, his income is fixed at $6,875.00 U.S. per month, an annualized rate of $82,500.00, converted to Canadian dollars at the present currency rate of 1.4 equals $115,500.00 which calls for payments effective the 1st of April, 2000 at the monthly rate for two children of $1,409.00 per month. The Order may be drafted to provide for payments that coincide with his pay periods. [27] The evidence discloses cost of close to $500.00 U.S. per annum for the transfer of American funds to Canadian funds to Canada by draft. It is my strongest recommendation that Mrs. Clark open up U.S. funds bank account in Canada and advise Mr. Clarke of the particulars of that account. Mr. Clarke should explore with his employer the possibility of direct deduction in U.S. funds from his pay at the appropriate level on his pay periods payable direct to Mrs. Clarke’s U.S. account in Halifax. If this is not possible, then he should organize post-dated cheques in U.S. funds that she could deposit to her account in timely fashion. There will obviously be some discrepancies of minor nature in relation to conversion from U.S. to Canadian funds and the obligation of Mr. Clarke is to make, if necessary, any appropriate adjustment to comply with this Order which is in Canadian funds. [28] Mr. Clarke indicates that if Mrs. Clarke executes Release of Claim to Exemption form 8332, he can obtain some additional tax benefit with respect to the children without prejudice to Mrs. Clarke and on that basis urge her to accommodate Mr. Clarke. The parties must do everything humanly possible to increase the limited resources available as in the final analysis, such will be directly or indirectly beneficial to the children. ACCESS COMMUNICATION [29] The partial Minutes of Settlement provide that Mr. Clarke will pay and maintain an Internet account for his children which will permit communication between the father and the children and the children with their father. When the children in the exercise of their access are with their father, they shall be permitted reasonable telephone communication with their mother at their father’s expense. MEDICAL /DENTAL [30] Mr. Clarke in the course of his evidence acknowledged that he has taken out plans through employment to provide coverage for the children and the Corollary Relief Judgment shall contain provision to the effect he shall maintain such coverage while it is available through his present or in the future alternate employment. The parties should work out advantageous procedure to follow which would be for the mother, if at all possible, to file direct claims. The mother has limited resources and every effort should be made to adopt timely reimbursement to her for expenditures in this regard. Mrs. Clarke should not embark on any major dental expenditures without checking with the father and ascertaining the extent of coverage and determination of how the portion not covered is to be addressed. Mr. Clarke should, if it is available, provide Mrs. Clarke with whatever booklet or information is available on the plan and any information bulletins that show any alteration to the plan. LIFE INSURANCE [31] Mr. Clarke indicates that he has $150,000.00 worth of life insurance available through employment which provides 80 per cent coverage for his children and 20 per cent for Ms. Jessup, whom he describes as his common-law spouse. The entire amount available through his employment to the extent of $150,000.00 should be designated with his children as beneficiaries and their mother as trustee. The retention of life insurance should be requirement in the event it is available through any subsequent alternate employment. The children should remain beneficiaries so long as each child remains child as defined in the Divorce Act. Should Mr. Clarke wish to confer term insurance or any other benefit upon Ms. Jessup, he is certainly free to do so after meeting the priority of providing for his children. Mr. Clarke will obtain confirmation in writing of compliance with this direction and provide the same to Mrs. Clarke within 60 days and thereafter annually on or before the 1st of June in each year, commencing the year 2001. ACCESS COSTS [32] Mr. Clarke’s budget estimates $4,800.00 U.S. airplane costs plus additional costs of $83.00 per month for holidays with his sons. His budget also outlines indebtedness which to some extent is related to previous access costs and it therefore represents some duplication. Access costs, as agreed between the parties, are entirely and solely the responsibility of Mr. Clarke. He should not incur expenses of this nature unless he has satisfied all arrears and all financial obligations for the children as required by the Corollary Relief Judgment. In other words, he must keep himself current with respect to child support. His use of credit card for access and other expenses is entirely his personal choice, however, it is very clear that these parties have never had any financial stability in part because they far too readily accessed credit based on future expectations of capacity that have never been realized and they would be wise to cease utilization of credit for short term relief. Doing so in the long run imperils the ability to provide properly for the children. [33] In the course of her evidence and filed material, Mrs. Clarke acknowledged that she has incurred substantial indebtedness since separation, including $500.00 to Eaton’s, $6,000.00 to Revenue Canada, $2,800.00 to AVCO, $3,200.00 arrears of rent, $5,200.00 Judgment reference advance of salary. These total $17,700.00 and there are other outstanding debts for telephone bill, power bill, and her Statement of Financial Information includes debt payments to Visa and Canadian Tire. Undoubtedly, some of these creditors are hovering to attach any spousal entitlement due to Mrs. Clarke. This fact is not deterrent or limitation to her entitlement but does present practical problem of providing her with relief. Mrs. Clarke is adamant that she does not wish to enter bankruptcy again and that is entirely her decision and the decision that might be taken by one or more of her creditors. [34] Mrs. Clarke has tended to her own personal needs since 1997 from child support payments, the Child Tax Credit and by incurring debt. She has failed to make any reasonable effort to provide otherwise for herself and has attempted to live at totally unrealistic level that was not sustainable during their cohabitation and is certainly not now sustainable, nor is there any obligation on the part of Mr. Clarke to provide reasonable support in all the “circumstances” that would address her indebtedness and perceived entitled lifestyle. The best she can do is take whatever employment is available and to develop hopefully reasonable level of self support. [35] There are two other bills that should be noted. The first with respect to the telephone bill, there is disagreement between Mr. and Mrs. Clarke as to what responsibility he assumed for the telephone account. accept his evidence that he did not give Mrs. Clarke license to utilize it for every purpose, however, he did indicate he would reimburse her for calls facilitating communication with the children and for reasonable emergency calls and fix the amount payable by Mr. Clarke at $200.00 to be paid within 60 days directly to the telephone company. [36] Mr. Clarke, in his evidence, indicated that he would be filing his 1998 Canadian Income Tax Return and he has limited taxable income. He had $1,797.90 tax deducted and in all probability he is entitled to that by way of refund. Whatever refund is available to him is to be frozen by the Corollary Relief Judgment and when payable, paid to Mrs. Clarke against the arrears of child support. Mrs. Clarke will probably have yet further indebtedness to Revenue Canada for 1998 because Mr. Clarke had at that time the Interim Order which pre-dated May the 1st, 1997 and therefore, the Child Support Guidelines Income Tax change probably did not take place until May the 13th, 1998 when the parties altered the level of child support. simply point out possible difficulty in this regard and also acknowledge that Mrs. Clarke felt Revenue Canada might waive something in the vicinity of $1,800.00 arrears of interest. In any event, there is no capacity through Mrs. Clarke’s limited entitlement to retraining assistance or child support for addressing any of her indebtedness. MRS. CLARKE UNIVERSITY [37] Mrs. Clarke had unrealistic expectations of the marriage. She stated she wanted home, children, dog, etcetera, and those were never achievable throughout cohabitation, as the parties never had any degree of financial stability, nor did they accumulate any assets. Mr. Clarke entered the marriage with his university degree but did attend attempting to upgrade, however, in the totality of circumstances, she has neither the entitlement nor are the resources available for her to return to University and obtain B.A. and Bachelor of Education Degree. She was entitled to 50 per cent of their assets at the time of separation and 50 per cent of nothing unfortunately remains nothing and she is left with an unaddressed need for some retraining assistance geared for employment. THIRD PARTY [38] Both Mr. and Mrs. Clarke are entitled to enter into whatever personal relations they wish but in so doing they must recognize the priority is in relation to their children. Mr. Clarke, who is not yet on his feet financially, has obligations arising out of the Corollary Relief Judgment that will be issued and he must recognize the priority of meeting those obligations. His capacity will likely be diminished because the evidence seems to indicate that Ms. Jessup has no major income capacity or assets and simply restate that any obligations he assumes in carrying forth his intention to cohabit and remarry will not provide any excuse or justification for non-compliance of his priority obligations to his children. SPOUSAL SUPPORT [39] adopt the approach contained in Bray-Long v. Long, above, setting out the detailed examination of the Divorce Act and spousal entitlement and proceed to review in the broadest sense the “circumstances”. 1. The parties were young students on the entry into marriage. Neither had any financial resources. Mrs. Clarke, prior to entry into the marriage, found it necessary to take year off and work as receptionist in order to financially return part-time to university and Mr. Clarke who already had his Bsc. degree attempted to pursue additional university education without success. 2. Section 15.2(4)(a). The parties cohabited for 14.5 years which is fairly lengthy period of time, although they were both relatively young at the time of separation. 3. Mrs. Clarke, at the time of separation was 37 and she is now 41. Mr. Clarke was 39 at the time of separation and is now 44. 4. Work Record As set out in detail the employment record and educational background of both parties and in summary, Mrs. Clarke spent several years out of the workforce. find her absence from the workforce did not occur as direct agreement between the parties. It did occur in part due to the moves required by Mr. Clarke to seek remunerative employment. Neither Mr. Clarke nor Mrs. Clarke brought any assets into the marriage and while Mr. Clarke was employed at numerous jobs throughout cohabitation, they were not ones that produced any financial stability for the marriage. Mrs. Clarke’s absences from employment eliminated any real financial contribution by her to their marriage for lengthy periods. 5. By 1986, the parties had financially achieved debts and little else. Mrs. Clarke made reference to her student loans and infer that Mr. Clarke also had student loans and that all of their then indebtedness was wiped out by their bankruptcy. 6. Section 15.2(4)(b) of the Divorce Act. While Mr. Clarke did assist with some housework, cooking, etcetera, and he did in the latter stages of their cohabitation participate to some extent in the parenting of the children. Nevertheless, the majority of the child rearing functions were performed throughout cohabitation by Mrs. Clarke. While Mrs. Clarke’s child rearing was contribution to the family, it had negative effect on their financial stability, as they simply could not survive on Mr. Clarke’s unstable limited income. 7. Section 15.2(4)(c). have already reviewed in some detail the final settlement of their Divorce Agreement and concluded that limited departure to address the practical retraining for possible employment was overlooked and that it is appropriate to intrude on their intended final settlement to that limited degree. 8. Neither party materially benefited from the years of cohabitation with the very limited exception that Mr. Clarke did to some extent improve his computer related skills. It must be acknowledged that he also made advances in his computer level of skills post separation and probably to much greater degree during that latter period. 9. Mr. Clarke’s employment record was unstable in part due to “personality clashes”, “power struggles”, etcetera. 10. While it is true Mrs. Clarke had some employment in the $30,000.00 range, there is measure of artificiality to employment that is achieved not necessarily in the open marketplace but through volunteer work and relying on grants from Government. This is not to demean Mrs. Clarke, who find to be an intelligent capable person, but unfortunately with respect to employment, she has set her sights, initially at least, far too high. 11. Not only did Mrs. Clarke fail to make any reasonable effort to seek realistic employment from 1997 to date, she did not even take advantage of the computer provided some time ago by the father to their children. She advises the court she has no computer skills or typing whatsoever. 12. As said earlier, Mrs. Clarke has for approximately three years looked after all of her own needs from child support, the Child Tax Credit and incurring indebtedness, course that ought not to have prevailed and which cannot continue. [40] Weighing carefully the foregoing, conclude that limited assistance is reasonable, necessary and appropriate. Mrs. Clarke’s entitlement is not one for any continuing spousal support. Although there is no direct evidence as to the financial requirement that is probably necessary for retraining, the parties do not wish any further delay and I have simply drawn upon experience in concluding that a lump sum non-taxable retraining allowance in the amount of $6,500.00 should be made available by Mr. Clarke for this purpose. [41] As has been stated on many occasions, most recently in Bray-Long v. Long, above, at p. 15: In interpreting the Divorce Act, we have the clear guidance of Justice McLachlin Moge v. Moge, 1992 CanLII 25 (SCC), [1992] S.C.R. 813; 145 N.R. 1; 81 Man.R. (2d) 161; 30 W.A.C. 161; {1993] W.W.R. 481; 99 D.L.R. (4th) 456; 43 R.F.L. (3d) 345, at p. 396 [R.F.L.]: It seems to me important to emphasize that this is, first and last, case of statutory interpretation. It is interesting and useful to consider how different theories of support yield different answers to the question of how support should be determined. However, in the end the judge must return to what Parliament has said on the subject. [42] In addition, we have Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 44 R.F.L. (4th) which will not incorporate at length but merely refer to Justice McLachlin at p. 26: It is not question of either one model or the other. It is rather matter of applying the relevant factors and striking the balance that best achieves justice in the particular case before the court. [43] Messier v. Delage, 1983 CanLII 31 (SCC), [1983] 35 R.F.L. (2d) 337 is no impediment to structuring the retraining allowance in the manner am about to propose. Messier v. Delage was based upon the 1968 Divorce Act and two major changes took place in the 1985 Divorce Act. First, the 1985 Act, for the very first time, s.15(5) makes it clear: In making an Order the court shall take into consideration the condition, means, needs and other circumstances of each spouse and of any child of the marriage and then set out, including three specific factors: (a) the length of time the spouses cohabited; (b) the functions performed by the spouse during cohabitation; and (c) any order, agreement or arrangement relating to support of the spouse or child. [44] This replaced the former s. 11 where the court, upon the granting of Decree Nisi may, if it thinks it fit and just to do so having regard to the conduct of the parties and the condition, means and other circumstances of each of them, proceed to make Spousal Support Order. [45] In addition, in the 1985 Act, for the very first time, objectives for an Order of Spousal Support were set out. [46] The second major statutory change brought about by the 1985 Act was in relation to the now existing s.15(4): Terms and conditions. The court may make an order under this section for definite or indefinite period or until the happening of specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just. [47] Contrast this with the former 1968 provision of 12(b): Impose such terms, conditions or restrictions as the court thinks fit and just. [48] For the first time, there is expressed statutory authority for definite spousal support term. [49] Interestingly, the Supreme Court of Canada in Bracklow made no mention of Messier v. Delage. [50] Surely, if definite term unrelated to any special event or self sufficiency can be ordered for sick spouse, one can be ordered for healthy spouse. [51] The training allowance of $6,500.00 shall be put in place by Mr. Clarke in the month of August, 2000. If necessary, he will have to arrange financing. It is anticipated, however, that he will likely have the opportunity to exercise the stock option and subject to the volatility of technical stocks and the specific stock in question, he should, by exercise of the option and disposal of the stock, secure sufficient capital gain that will permit setting aside $6,500.00 Canadian in trust for Mrs. Clarke. Mrs. Clarke is to explore whatever training she wishes, be it at community college, typing course, computer course, hospitality industry, care persons’ program such as in Dorey v. Dorey, 1998 CanLII 5944 (NS SC), [1999] 44 R.F.L. 383; (1998), 172 N.S.R. (2d) 75, etcetera, and provide Mr. Clarke with the specifics of her requirements for such retraining and payments out of the retraining fund shall be made directly to any school or agency providing such training in accordance with their requirements, plus whatever limited direct payment may be necessary to Mrs. Clarke for books and accessories. Mrs. Clarke will have until the 1st of September, 2001 to utilize this training allowance and what, if any, funds then remaining with any accrued interest as of the 1st of September, 2001 shall be turned over to her. Mrs. Clarke’s entitlement to spousal support will terminate immediately she has received the total benefit of the $6,500.00 retraining fund and in the event that Mr. Clarke reneges, satisfaction of her spousal entitlement will be subject to further direction of the court. [52] In summary, Mr. Clarke has agreed to certain obligations in relation to the children covering medical/dental coverage, life insurance, extra curricular activities, allowances and if possible, laser printer for their computer. Additionally, he owes arrears of child support totalling $10,248.25 and direct payment to the telephone company of $200.00. have already directed that any income tax rebate he is entitled to in Canada shall be frozen for credit to these arrears. In the meantime, commencing the month of April he shall pay $500.00 per month towards the arrears and in the month of August the outstanding balance of his obligation shall take priority from the sale proceeds of his stock option after setting aside what is reasonably required by way of capital gains tax and the trust fund for Mrs. Clarke’s retraining allowance. Hopefully, this will permit the retirement of all the obligations and leave only the ongoing continuing obligations relating to the children. J. Case No. Vol No. MICHAEL STUART CLARKE PETITIONER and LAVERNA RUTH CLARKE RESPONDENT Justice Walter R. E. Goodfellow Halifax, Nova Scotia File No. S.H. 1201-50342 LIBRARY HEADING DATES HEARD: March 20th, 21st, 22nd, 2000 DECISION: March 22nd, 2000 (Orally) WRITTEN RELEASE OF ORAL: March 23rd, 2000 SUBJECT: SPOUSAL ENTITLEMENT TERMS SUMMARY: Mr. Clarke, now 44, and Mrs. Clarke, now 41, married and cohabited for approximately 14 years. He was 39 at the time of separation and Mrs. Clarke was 37. Long history of relatively short terms of employment and several moves to take employment. Mrs. Clarke, grade 12, and some university courses but no practical skills or training. Remained at home for several years even before their first child. Two children now 16 and 8. Mr. Clarke entered contract to work in Bahrain. Parties under pressure and in rush entered detailed Separation Agreement and both attended at Prothonotary Office to file same May 13th, 1998. It was in the form of an Affidavit sworn by Mrs. Clarke and it did not provide quite the proper level of child support in accordance with the Federal Child Support Guidelines. It did provide waiver of spousal support entitlement. Concluded rare occasion that omission of any retraining assistance for Mrs. Clarke should be addressed. Calculated arrears under their Agreement and adjusted same for child support resulting in arrears of child support of $10,248.25. Mrs. Clarke for the past years made no reasonable efforts for employment, developed no skills of practical nature and attended to her needs from child support payments, Child Tax Credit and incurring debt probably in the magnitude in excess of $20,000.00. Parties had entered bankruptcy during course of marriage and no assets or savings or pension entitlement at the time of separation or acquired since. Both parties unrealistic financially. Mr. Clarke now has employment in Computer Industry in California earning Canadian $115,500.00. Child support based on Guideline $1,409.00 per month. Majority view in Messier v. Delage no longer valid due to statutory change s.15(4) of the Divorce Act and Bracklow. Ordered establishment of retraining fund in the amount of $6,500.00 with direct payments to institution or whatever retraining in hospitality industry, typing, computer, bookkeeping, teacher’s assistant, health care assistant, or whatever Mrs. Clarke may choose. Numerous additional provisions requiring life insurance, medical/dental coverage, etcetera. Limited spousal entitlement to terminate on completion of retraining allowance or transfer of balance of outstanding to Mrs. Clarke on 1st of September, 2001, whichever occurs first. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT’S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS COVER SHEET.
The parties were married for 14 years and separated in 1995, entering into a detailed Separation Agreement in 1998. The two children of the marriage are 16 and 8 years of age. There was a long history of relatively short terms of employment and several moves to take employment. The respondent had a grade 12 education and some university courses but no practical skills or training. For the past 3 years, the respondent had made no reasonable efforts for employment, developed no skills of a practical nature, and derived her income from child support payments and the Child Tax Credit and by incurring debt in excess of $20,000.00 The parties had entered bankruptcy during the course of the marriage and had no assets or savings or pension entitlement at the time of separation or acquired since. The petitioner now earned an annual salary of $115,500.00. The Agreement did not address the level of child support in accordance with the Federal Child Support Guidelines, nor did it provide for practical retaining by the Respondent to facilitate employment. This was an exceptional situation that required some adjustment to the Agreement reached by the parties. The court ordered the establishment of a retraining fund of $6,500.00 with direct payments to whatever institution the Respondent may choose. Limited spousal support was to terminate on the earlier of completion of the retraining allowance or transfer of the balance of the outstanding to the Respondent on September 1st, 2001. An adjustment was also made to account for arrears in child support and child support payments.