Kerr v. Kerr

Kerr v. Kerr Court Supreme Court Date 2005-11-29 Citation 2005 NSSC 342 Docket SYD-035510 Judge/Registrar/Adjudicator Tidman, Gordon A. (Honourable Justice) (SC) Document Type Decision Relations Library Sheet - Kerr v. Kerr - 2005 NSSC 342 - 2005-11-29 - Library Sheet Decision Content IN THE SUPREME COURT OF NOVA SCOTIA Citation: Kerr v. Kerr, 2005 NSSC 342 Date: 20051129 Docket: SYD-035510 Registry: Yarmouth Between: Robert James Kerr Petitioner v. Deborah Mae Kerr Respondent Judge: The Honourable Justice Gordon A. Tidman Heard: November 22 and 23, 2005, Comeauville, Nova Scotia Decision: November 29, 2005 (Orally) Written Decision: May 23, 2006 Counsel: Andrew S. Nickerson, for the Petitioner Patricia L. Reardon, for the Respondent Tidman, J.: [1] The Petitioner husband, Robert James Kerr seeks a divorce on the grounds of separation for a period in excess of one year. [2] The Respondent wife, Deborah Mae Kerr counterclaims for spousal support and relief from the terms of a Separation Agreement in which she relinquished her right to claim spousal support. [3] The basic undisputed circumstances are as follows. The husband was born September 10th, 1960. The wife was born December 11th, 1963. The parties were married August 23rd, 1980. The husband was then 19 years of age and the wife 16 years. [4] The couple have two children, Robert, born January the 3rd, 1985 and Miranda, born July the 8th, 1988. Robert is no longer a child of the marriage as defined in the Divorce Act. Miranda, now age 17, is attending school and lives with and is supported by the husband. [5] After 18 years of marriage, the parties separated on September the 1st, 1998 and have lived separate and apart since that time. On January the 10th, 2001, the parties entered into a Separation Agreement under the terms of which the wife relinquished her right to claim spousal support. On November the 24th, 2004, the wife in response to the husband’s Petition for Divorce, claimed by way of answer and counter petition, spousal support. The husband is now 45 years of age and the wife 42 years of age. [6] I deal now with the circumstances of the marriage and separation. The parties married very young, the wife being only 16 years and having completed schooling only to grade eight. The couple was married for approximately five years before having children. The wife during that period, had limited employment measured in weeks. According to the husband’s evidence, which was not contradicted, after the marriage he along with the wife’s parents, encouraged her to return to school, but she did not do so. [7] Cohabitation ceased after 18 years, during which the husband was the financial bread winner and the wife assumed the role of full time homemaker. [8] Following the marriage, the husband took training and became a qualified electrician. He worked for an electrical contracting company, but because of poor pay with that company, he took part time janitorial work and later letter carrying and sorting work with Canada Post. He also took additional work shovelling snow and mowing lawns. He also did small house repairs through a partnership arrangement with a friend. After many years of attempting to gain full time employment with Canada Post, he obtained permanent status as a letter carrier in 1987, and also continued with his janitorial work at the local post office. [9] Immediately following the marriage, the parties lived with the wife’s parents, the husband’s parents, and then back with the wife’s parents. Subsequently, they acquired a mobile home where they lived with the children until 1990 when the husband’s mother conveyed her home property to them. That property remained the matrimonial home until the parties separated in 1998. Although the couple did not enjoy a lavish lifestyle during the marriage, the husband was a good provider and from the time of the children’s birth, took an active role in raising and caring for them. [10] In 1981, the husband had a sexual affair with another woman and says through guilt, he confessed that affair to his wife. He says that his wife was upset and in return she had affairs with other men. Subsequent to that, the parties had an open marriage sexually, both participating in group sexual encounters. The husband says he constantly encouraged the wife to improve herself. [11] During the marriage, the wife had three different jobs as hotel maid, kitchen worker, and at a local fish plant. For various reasons, she lost those jobs after a few weeks. For a few months during the marriage, the wife also worked for a domestic cleaning business operated by the husband and his partner. She was paid by the business and for the most part those funds and the husband’s profits from that business were used for family purposes. The husband says the wife stopped working because of customer complaints about her work. [12] The parties separated in September, 1998. At the time of separation, the children remained in the matrimonial home with the wife and the husband paid either guideline child support or the household bills in lieu of child support. After the separation, the son Robert and then the daughter Miranda, left the matrimonial home to live with the husband. Miranda continues to live with the husband. After leaving school Robert went to the husband’s brother’s home in Alberta, where the husband had arranged a job for him. Robert later quit the job in Alberta and returned to the husband’s home. Robert did not obtain employment in the local area, and was told by the husband if he refused to work and contribute to the household, he must leave. Shortly thereafter, Robert left the husband’s home to live with the wife where he continues to reside and remains unemployed. [13] The couple has health problems. The husband from 1982, suffered with problems of the small bowel, which resulted in an ileostomy in 1999. Those difficulties do not seem to have unduly hampered the husband in continuing gainful employment. [14] In 1998, the wife was diagnosed with fibroymyalgia and continues to suffer from that ailment. On behalf of the wife, expert evidence was adduced from Doctor Lionel d’Entremont, the wife’s family doctor, and Janice Belliveau, a psychologist who treated the wife for depression and pain. Dr. d’Entremont described the wife’s condition, the cause of which is unknown, as a soft tissue ailment affecting the whole of her body where physical movements can be painful. Doctor d’Entremont gave evidence of his own treatment and other modalities of treatment undergone by the wife. Those modalities included physiotherapy, psycho therapy, massage therapy and hypnosis. He prescribed pain medication and antidepressants. The wife continues to take medication for her condition. Doctor d’Entremont’s opinion, is that the wife cannot work at the present time. The wife has also been diagnosed as having type two diabetes, which she controls with diet. [15] Ms. Bellieveau first saw the wife in September of 1998. She provided treatment to the wife, who complained of stress and anxiety, and feelings of rejection and abandonment, resulting from marital separation. Ms. Belliveau says that after assessment, she provided treatment by way of cognitive behavioural therapy and hypnosis. She says she closed the wife’s file in November, 1998, after being advised by the wife that she wished no further appointments. The wife continued to see Ms. Belliveau regarding problems being then encountered by Miranda. After March, 2000, Ms. Belliveau again focussed on the wife’s problems until April 18th, 2000, when the wife indicated to her that things were improving and she wished no more appointments. Ms. Belliveau says the wife was re-referred to her again, and saw her on March 8th, 2002, when the wife complained of poor sleep, fatigue, suicidal thoughts and increasing symptoms of fibromyalgia. Ms. Belliveau counselled her with stress management techniques until April, 2002, when the wife failed to keep her appointments. Ms. Belliveau says she resumed treatment in February, 2003 for complaints of chronic illness and symptoms of depression. She saw the wife again on November 6th, 2003 for continued treatment, but closed the wife’s file on November 27th 2003, when the wife failed to appear for an appointment. [16] Ms. Belliveau says that the wife has a history of limitations due to fibromyalgia, but does have capabilities. She describes the wife as clean and neatly dressed in appearance and she reported the wife as having a good memory and normal thought processes with good insights and average intelligence. Separation Agreement [17] After separating on September the 1st, 1998, the parties entered into a Separation Agreement dated January 10th, 2001. Under the terms of the agreement the couple’s assets were divided and the wife relinquished her right to claim spousal support. They also agreed to joint custody of the children, with day to day care with the wife. The husband agreed to pay child maintenance. [18] The assets then owned by the parties consisted of the home given to them by the husband’s mother, which was appraised at forty-five thousand dollars ($45,000.00), household goods and furniture valued at ten thousand dollars ($10,000.00), and an unvalued motor vehicle. The parties had no other assets, of which I’m aware, excepting the husband’s Canada Pension entitlements, which the parties agreed to divide at source. The motor vehicle was transferred to the wife. [19] At the time of separation, the parties had matrimonial debt, and it appears that each incurred some debt following the separation. As agreed under the terms of the Separation Agreement, the husband conveyed his interest in the home to the wife. The wife in turn, obtained a mortgage on the home, in the amount of twenty-two thousand five hundred dollars ($22,500.00) , with the husband as guarantor. Out of those proceeds, debts of approximately nineteen thousand dollars ($19,000.00) were paid, together with legal fees and the husband was paid twenty-seven hundred and fifty-eight forty ($2,758.40) toward his share of the matrimonial assets. [20] For the remainder of his share of the assets in the amount of ten thousand three hundred and seventeen sixty-one ($10,317.61), the husband received a second mortgage on the home. Under the terms of the second mortgage, the principal is to be paid to the husband without interest on the sale of the home by the wife. Under the mortgage terms, the property is to be sold only when the wife wishes to do so. The wife’s evidence is that she loves the home and intends to live there for the rest of her life. [21] In essence, out of the couple’s assets, the wife received a net value of approximately thirty-two thousand five hundred dollars ($32,500.00), and the husband received twenty-seven hundred and fifty dollars ($2,75 0.00), since he is not entitled to the proceeds of the second mortgage until the wife wishes to sell. Under the agreement’s terms the wife relinquished her right to claim spousal support to which clause the wife submits she should not be bound. [22] The Separation Agreement was negotiated over a period of months preceding its execution. At that time, both parties were represented by counsel. Mr. Pierre Muise represented the wife during the negotiation and execution of the agreement. His evidence is that he first met with the wife on September 13th, 2000 and represented her until the execution of the agreement on January 10th, 2001. A draft Separation Agreement was prepared by the husband’s counsel and delivered to Mr. Muise for consideration by the wife. Mr. Muise, who appeared to the Court to be a careful, conscientious and thoughtful counsel, discussed the terms of the draft agreement with the wife and advised her against relinquishing her right to claim spousal support. He informed her that in his opinion, because of her disability, she would be entitled to spousal support. On January 10th, 2001, the wife signed an acknowledgement, that despite being informed by Mr. Muise, that in his opinion she was entitled to spousal support she chose to sign the Separation Agreement as drafted. [23] The Separation Agreement signed the same day includes the following provisions: 5. The husband and wife agree that they will not now, or at any time in the future, seek any maintenance from the other. The husband and wife are aware and acknowledge that they may suffer or enjoy drastic changes in income, assets and debts caused by changes in the cost of living, health, employment or otherwise. Nevertheless, the husband and wife agree that no maintenance shall be payable regardless of any change in circumstances, whether foreseeable or not, and whether within or outside of the wife’s or husband’s control. . . . . 27. The husband and wife each acknowledge that each has had independent legal advice, understands their respective rights and obligations under this agreement, and is signing this Separation Agreement voluntarily. . . . . 29. Each party has sufficient knowledge of the financial affairs of the other, such that neither spouse requires the other to prepare a comprehensive statement setting out his or her financial affairs. [24] The agreement is signed by both parties and attached to the agreement is an affidavit signed by Deborah Mae Kerr which provides that: I am aware of the provisions of the Matrimonial Property Act for the Province of Nova Scotia, and I fully understand and have been separately advised of the rights I acquire thereunder; that the attached Separation Agreement executed by me, is a substitution for any rights I may have or acquire pursuant to the Matrimonial Property Act, and I release any and all rights I have or may acquire, pursuant to the Act, and that I am executing this Separation Agreement freely and voluntarily without any compulsion on the part of the other. [25] The wife does not disagree with the evidence of Mr. Muise, but says that Mr. Muise should have been more insistent that she not sign the agreement giving up her claim to spousal support. She says she signed the agreement because she wanted to retain the home for she and the children. She says otherwise the home would have been sold and the net proceeds shared equally with her husband. She says that she understood the terms of the agreement but didn’t agree with them. She says she was under compulsion to sign the agreement, but did not explain the source of that compulsion. She says that the husband and I quote from her evidence “was not threatening or anything like that.” [26] The present circumstances of the parties are as follows. Evidence adduced at trial was extremely limited, as to the present financial circumstances of the parties. The only evidence adduced indicates that the husband in 2004, earned approximately forty-seven thousand dollars ($47,000.00) as an employee of Canada Post and an additional amount of approximately six thousand dollars ($6,000.00) for playing gigs with his band. Although the evidence indicates that the husband now lives with another partner, there is no evidence of either his total household income or expenses or of his present capital assets. [27] The wife’s financial information is limited to the following set out in paragraph 28 of an affidavit of the wife submitted by Ms. Reardon and dated November 18th, 2005. That paragraph provides as follows: On my income of seven hundred and twenty-nine dollars ($729.00), I pay three hundred dollars and four cents ($300.04) on my mortgage, including property taxes, one hundred and fifty dollars ($150.00) on power, and sixty-three dollars and eighty-four cents ($63.84) on telephone, and approximately one hundred and two dollars ($102.00) on basic medical needs and toilet paper. That leaves me approximately two hundred and fifteen dollars and twelve cents ($215.12) to cover my other expenses. Gary Thibault, who resides at my home in addition to myself and my son, cuts the firewood, tends to maintenance needs of the house and provides his own food. This is considered to be the equivalent of one hundred dollars ($100.00) per month and this is permitted by Social Services, because of her need to have someone else in the house in case I fall, or I have some other medical problem. [28] I think “her” refers to Deborah Kerr. There is no evidence of any debts of the wife, or that the outstanding mortgage on the home is in arrears. Issues [29] The issues thus are: 1) is the husband entitled to a Divorce Decree; 2) is the wife entitled to spousal support and if so the quantum of such support. [30] Issue #1. I would grant the husband’s Petition for a Divorce Decree on the grounds that the parties have lived separate and apart for a period in excess of one year. [31] Issue # 2. This issue of the effect of a Separation Agreement containing a no spousal support clause on a subsequent application for spousal support was extensively canvassed and decided in Miglin v. Miglin [2003], 1 S.C.R. 303. [32] Prior to Miglin, the same issue was dealt with by the Supreme Court of Canada in the so called Pelech trilogy, a trio of domestic cases known as Pelech, Richardson, and Caron, all decided together in 1987. Pelech favoured a clean break philosophy whereby a spousal support agreement could be overturned only by an intervening material change in circumstances of the parties and coincidentally tying need to consequences of the marriage and its breakdown. [33] Since the Pelech triology, the 1992 Supreme Court of Canada in Moge v. Moge, expanded the basis for spousal support and in 1999 in Bracklow v. Bracklow, established the non-compensatory model of spousal support. These two cases led to a full reconsideration of the effect of non spousal support agreements in Miglin. [34] The test established in Miglin is succinctly summarized in the following head note, [ [2003] Ontario Carswell, 1374] and I quote: The appropriate approach, therefore, to the court’s exercise of discretion on an initial application for spousal support inconsistent with a pre-existing agreement, was to have two stages. In the first stage, the court must look to the circumstances in which the agreement was negotiated, to determine whether there was any reason to discount it. The court must also determine whether or not at the time of creation of the agreement, there was substantial compliance with the general objectives of the Act. At the second stage, the court must assess the extent to which enforcement of the agreement still reflected the original intention of the parties and the extent to which it was still in substantial compliance with the objectives of the Act, given the vicissitudes of life in the parties’ post-divorce period. Where a comprehensive agreement has been unimpeachably negotiated and was in substantial compliance with the objectives of the Act, this court should give it considerable weight. It was only where the current circumstances represented a significant departure from the range of reasonable outcomes anticipated by the parties, in a manner that put them at odds with the objectives of the Act, that the court should give the agreement little weight. [35] Succinctly put but difficult in its application, Miglin allows the trial Court wider discretion, without the fetters of the Pelech trilogy. I consider first, the circumstances in which the agreement was negotiated. [36] Both parties were represented by counsel. The wife’s counsel informed her she may be entitled to spousal support and advised against signing the proposed agreement. Notwithstanding that advice, the wife signed the agreement, expressly giving up her right to claim spousal support. [37] This circumstance was squarely considered by the Supreme Court of Canada in Hartshorne v. Hartshorne, [2004], 1 N.S.C.R. 550. In paragraph 61, Mr. Justice Bastarache, writing for the court majority, had this to say: The respondent was advised that the agreement was ‘grossly unfair’ and that a court would ‘easily find’ the provision relating to interest in the matrimonial home to be unfair and would redistribute the property on a more equitable basis. Despite this advice, or because of it, as expressed by counsel for the respondent during the hearing before our court, the respondent signed the agreement. The respondent cannot now rely on her lawyer’s opinion to support her allegation that because she thought the agreement was unfair from its inception, for all intents and purposes, she never intended to live up to her end of the bargain. It is trite that a party should never be allowed to avoid his or her contractual obligations on the basis that he or she believed, from the moment of its formation, that the contract was void or unenforceable. [38] The agreement clearly states that the agreement is a full and final marital settlement of the couple’s affairs notwithstanding that they may have health problems in the future. [39] There is no credible evidence that either party was in a position of superior power either during the marriage or at the time of signing the Separation Agreement. Nor is there credible evidence that either party was particularly vulnerable either during or after cohabitation. Ms. Reardon seems to suggest to the Court that the husband exercised a “Svengali like” influence over the wife even to the extent that he forced her into an open sexual marital relationship. I find that both parties willingly engaged in the conduct described. Otherwise, the husband appears to have been a model husband and father who worked hard to provide for his family and took an active hands on role in raising and caring for the children from infancy. [40] There is no evidence that the husband abused the wife, either verbally or physically, or otherwise exerted improper influences over her which might lead one to believe the wife’s signing was not voluntary. Although there is evidence to suggest that at the time of negotiating the Separation Agreement, the wife was anxious and depressed which may have affected her ability to concentrate the wife had, prior to the agreement negotiating period, cancelled appointments with her psychologist Ms. Belliveau, and advised Ms. Belliveau that she was better. It was Ms. Belliveau’s opinion that the main source of the wife’s anxiety and depression was the death of the wife’s mother and the breakup of the marriage. However, at the time of the execution of the Separation Agreement, the wife’s mother had been deceased for over two years and the parties had been separated for the same period of time. [41] Miglin also provides that the agreement should substantially comply with the general objectives of the Divorce Act. Section 15.2 of the Act sets out the objectives of spousal support. Section 15.2(a) provides, and I quote: ... recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown. [42] In this case, both parties were very young at the time of the marriage. The wife was only 16 years and had completed only grade eight in school. The husband was only three years older. Neither at that time by way of education was well equipped for their future. I am not satisfied from the evidence that the wife because of the marriage, missed opportunities for self improvement. The evidence that I accept is that following the marriage the husband and the wife’s parents particularly in the five year period before the children were born advised and encouraged the wife to continue her education, but she was unwilling to do so. [43] Subsection (b) of the Act provides: ... that the Court should apportion any financial consequences arising from the care of any child, over and above the obligation of supporting the child. [44] The husband conscientiously discharged his financial obligations toward the care of the children when they were in the care of the wife, and later had physical custody of the children during their dependent years. That situation continues with Miranda. [45] Paragraph (c) provides that the Court should: ... relieve any economic hardship of the spouses, arising from the marriage breakdown. [46] Since the Act’s inception that clause has provided judges with much difficulty in interpretation. While the wife in this case alleges debilitation from mental depression caused by the marriage breakdown she also alleges other factors unrelated to the marriage or its breakdown contributed to her alleged depression. [47] I am not convinced that the marriage breakdown caused her any more mental stress or anguish than that suffered by most spouses as a result of a breakup of the marriage relationship. [48] Paragraph (d) provides ... in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. [49] In this case, since separation in 1998, the wife has made no apparent efforts toward self sufficiency and has rather relied on Social Assistance, in addition to her husband’s support contribution and the assistance of her live-in border. Notwithstanding the family doctor’s opinion, that the wife is unable to work because of her fibromyalgia, there is no satisfactory evidence of any attempt to either secure some type of employment, or undergo some type of work hardening program to prepare the wife for possible future employment. [50] Notwithstanding the wife’s poor financial situation, it would be unfair to consider those Divorce Act spousal support factors in isolation of the provisions of the Matrimonial Property Act. Under the provisions of that act, the parties would have presumptively shared equally the matrimonial assets and debts. In this case, there was an unequal division in favour of the wife. The wife stated at the time of execution of the Separation Agreement and at trial, that she wanted the matrimonial home for herself and the children and that was very important to her. The husband acceded to that request and in effect, gained personally only approximately twenty-eight hundred dollars ($2,800.00) from the matrimonial assets, while the wife retained her motor vehicle, the home and contents with a total net value of thirty-two thousand five hundred dollars ($32,500.00). The husband also made it possible for the wife to retain the home by guaranteeing payment of the mortgage, which he continues to do. The wife has had exclusive possession of the matrimonial home and contents for the past almost seven years, and continues to live there, with the assistance of a border. [51] It would be very difficult for the Court to now impose another bargain on the parties that would be fair to both now that for almost seven years the wife has enjoyed the benefits of the bargain she willingly made. [52] The second stage of the Miglin test also requires the Court to assess the extent to which enforcement of the agreement still reflects the original intent of the parties and is still in substantial compliance with the objectives of the Divorce Act and provides that only where current circumstances represent a significant departure from the range of reasonable outcomes anticipated by the parties in a manner that puts them at odds with the objectives of the Act should the Court give the agreement little weight. [53] In this case, both parties during negotiations over a period of months, and at the time of execution of the agreement, were represented by competent counsel. There is no evidence that relevant information was unfairly withheld by either party, or that either party was unfairly misled by the other as to all the relevant circumstances. The agreement was executed in good faith on a level playing field. In my view, the agreement was and is still in substantial compliance with the Divorce Act. I see no reason why the parties are not entitled to rely on the terms of the settlement. [54] I find the provision of the separation agreement in dispute to be binding on the parties and under the circumstances outlined, the wife is entitled to neither compensatory or non-compensatory spousal support. [55] The husband does not seek costs, therefore, I would not award costs to either party. J.