Davis v Harrison, 2023 NSCA 74

Judges: Justice Anne S. Derrick; Chief Justice Michael J. Wood and Justice Joel E. Fichaud concurring
Subject Matter: Matrimonial property; Pension division; s. 13 MPA; Costs; Fresh Evidence
Summary:

The parties were married for 20 years. The contested issues at trial included the division of the appellant's Canadian Armed Forces pension. He had been receiving the pension since his retirement in 2011. At trial, Mr. Davis sought to retain his pension undivided, and argued by unequal division pursuant to s. 13 of the Matrimonial Property Act. The trial judge ordered an equal division of the entire pension, to be divided in accordance with the federal Pension Benefits Division Act. The trial judge also ordered costs payable to Ms. Harrison of $36,000.

Mr. Davis appealed and sought to introduce fresh evidence in support of his argument that s. 9 of PBDA prohibited division of his Armed Forces pension. He also sought to introduce fresh evidence in support of his appeal of the costs award.

Mr. Davis argued that the maximum transferrable amount of his pension would be fifty percent of the pension accrued during the parties' cohabitation. He also argued that, in any event, s. 9 of the PBDA precluded a further division of his pension as it had been previously divided. To that effect, he wished to introduce fresh evidence before the Court of Appeal that his pension had already been divided when he separated from a former common law partner in 2000. With respect to costs, Mr. Davis argued that the award in favour of Ms. Harrison was unfair and that each party should bear their own costs. He filed letters containing previous settlement offers as fresh evidence.

The Court of Appeal found that the fresh evidence on the pension division issue was not admissible. It did not satisfy the requirements of due diligence and credibility, established in the Supreme Court decision of Palmer v The Queen. The appellant could have had his former common law partner testify at trial. Additionally, this evidence would not have affected the trial judge's decision on the pension division. The Court found that the trial judge had considered the previous division of assets in dismissing the appellant's s. 13 application. Section 9 of the PBDA does prohibit further division of a pension where there was a previous division. However, there was nothing before the trial judge to indicate that the pension had already been divided.

The Court of Appeal upheld the trial judge's determination that Ms. Harrison should receive an equal share of the pension under s. 8 of the PBDA. The trial judge had cited the following reasons as to why an equal division of Mr. Davis' pension was neither unfair nor unconscionable:

  • The case law had established that pension entitlements earned before and during marriage are presumptively divisible.
  • The marriage to Ms. Harrison was not of short duration as Mr. Davis maintained. Rather, they were married for 20 years during which time their children were born.
  • On separation, Mr. Davis and Ms. Harrison were 49 and 54 respectively. Mr. Davis was already in receipt of his pension.
  • Although the evidence introduced at trial included an apparent waiver by Mr. Davis of a claim to his former common law partner's RRSP's in exchange for retaining his pension, there was no evidence to determine the value of the remaining assets.
  • The case law relied upon by Mr. Davis was distinguishable on the facts. Notably, the parties in this instance were together for just under 47 percent of Mr. Davis' active service; this was not a situation where the party receiving the pension had accrued the vast majority of their benefits outside of cohabitation. Additionally, Mr. Davis did not transfer funds to his common law partner. Rather, he had waived a claim to her RRSP's. This waiver was not a significant contribution to their separation settlement as there were too many unknowns, including the value of other assets and debts.

The Court of Appeal also held that the appellant had not raised the arguments around the PBDA at trial and that they could not be raised for the first time on appeal. While the court allowed leave to appeal costs, it found that the trial judge's costs award was reasonable and fair.

Hillier v Hillier, 2023 NSSC 316

Judge: Justice Aleta Cromwell
Subject Matter: Spousal Support; Variation; Early Retirement
Summary:

The parties divorced in 2016. Under the terms of their Corollary Relief Order, Ms. Hillier had paid monthly spousal support of $4,000. Because Ms. Hillier's income was variable, she also made a "top-up" payment, calculated at the end of every year. Ms. Hillier retired in December 2022, at the age of 57, after providing notice to Mr. Hillier. She sought to terminate spousal support. In the alternative, she sought to vary the spousal support provisions of the CRO to reduce her spousal support obligations and add a termination date.

Ms. Hillier bore the burden of demonstrating that her retirement qualified as a material change in circumstances. She gave evidence that she was burned out by the demands of her career following the global pandemic, and that during their marriage the couple had planned to retire at the age of 55. She argued that the onset of the pandemic, which had exacerbated the demands of her employment, qualified as a material change in the circumstances. Mr. Hillier's argued that Ms. Hillier's decision to retire early was not made in good faith, but rather was a means to avoid continued monthly spousal support payments. His evidence was that the parties had agreed to retire in their late fifties or at the age of 60.

The Court noted that there is no rule that one must work until the age of 65; each circumstance will be different. The Court found that the parties could not have contemplated the onset of the global pandemic at the time of the CRO, and found Ms. Hillier's evidence regarding the impact of the pandemic compelling. The decision to retire was therefore made in good faith and was reasonable in all the circumstances. Ms. Hillier's retirement was voluntary but not early. The Court accepted Ms. Hillier's voluntary retirement as a material change in circumstances.

Ms. Hillier acknowledged that it would be unrealistic to expect Mr. Hillier to regain employment, given his own age and illness. The Court found that Mr. Hillier's entitlement to spousal support was non-compensatory. The Court reduced the amount of monthly spousal support to $1,000 to place the parties in positions of approximately similar income, and set a termination date for spousal support in April 2025. This would allow Mr. Hillier a period to adjust to the decrease in spousal support and the eventual termination of spousal support.

Richards v Mader, 2023 NSSC 260

Judge: Justice Samuel C. Moreau
Subject Matter: Spousal Support; Variation; Retirement; Expert Evidence
Summary:

The parties were divorced in 2014 following a trial for which the sole issue was spousal support. At trial, Mr. Richards was ordered to pay spousal support in the amount of $1,000 per month. Mr. Richards continued to work. Conversely, Ms. Mader had not held employment since leaving the family business before the parties' divorce. She had completed additional studies and had made a few attempts to gain employment in high-level health administrative positions, without success.

Mr. Richards filed an application seeking termination of his spousal support obligation. He was 76 years old and stated his desire to retire. Ms. Mader sought a continuation of the spousal support obligation at the same level or higher. She argued that he earned more income than disclosed.

The Court found that there was a material change in circumstances since the issuing of the Corollary Relief Order. The parties had remarried, Ms. Mader was eligible to receive Canada Pension Plan and Old Age Security benefits, and Ms. Mader was not attempting to achieve self-sufficiency.

Both parties retained experts to determine Mr. Richards' income for support. Ms. Mader's expert had previously worked for her in a professional capacity, and continued to provide accounting services to her and her husband. The Court questioned the expert's ability to maintain objectivity, and found that Ms. Mader had not discharged the burden of proving that her expert report was sufficiently reliable.

The Court considered the economic ramifications of Ms. Mader's remarriage. It found that she enjoyed an upper middle-class lifestyle. It was reasonable to conclude that she was in a more favourable financial position than at the time the CRO was made. The Court was satisfied that Ms. Mader's standard of living and lifestyle was comparable to that of Mr. Richards.

The Court also considered the issue of self-sufficiency, applying the following principles:

  • Self sufficiency is to be considered within the context of the standard of living enjoyed by the parties during the marriage.
  • Self sufficiency is a factor to be considered in the overall analysis, not a duty on the recipient spouse.
  • Spousal support payments are not meant to be a "blank cheque".
  • A recipient spouse's lack of effort to explore self-sufficiency negatively impacts their entitlement to spousal support on a compensatory basis.

The Court found that Ms. Mader had not made reasonable attempts to pursue realistic employment opportunities. Consequently, it found that Mr. Richards should not be required to maintain his spousal support obligations at the same level. Additionally, it found that Ms. Mader had not experienced any economic disadvantage from the dissolution of her marriage to Mr. Richards. Ms. Mader's entitlement to spousal support on a compensatory basis had diminished to the extent where the only factor left to consider was the length of their marriage.

The Court was not prepared to terminate Mr. Richard's spousal support obligation altogether, but reduced it to a nominal amount for a period of four years, after which it would be terminated unless varied by another material change in circumstances.

DD v MP, 2023 NSSC 310

Judge: Justice Lorne J. MacDowell
Subject Matter: Costs
Summary:

The issue at trial had been the parties' competing parenting plans with respect to their child. The father had alleged that the child had been sexually abused by a third party and that, as a result, they were not safe in the mother's care. The hearing had taken place over two days. Justice MacDowell found that the father had not proven this abuse on the evidence and granted primary care and final decision making to the mother.

The Court awarded $2,500, inclusive of disbursements, to the Nova Scotia Legal Aid Commission on behalf of the mother. This was a departure from the application of the tariffs. In its justification, the Court highlighted the following factors:

  • The mother was entirely successful in her application.
  • Considerable Court time was devoted to the father's allegation of sexual abuse. The father had not been successful in proving this allegation which had clearly complicated the hearing.
  • The mother was represented by Nova Scotia Legal Aid and had not provided any breakdown of legal fees or disbursements. Neither party had made additional submissions on costs.

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