Kennedy-Dowell v. Dowell

Kennedy-Dowell v. Dowell

The trust is excluded from division as a matrimonial asset because the corpus was not 'acquired' until after separation and the beneficiary's equitable interest had no realizable divisible value; distributions from the trust have been spent leaving nothing to divide. The matrimonial home is to be sold and encumbrances paid from proceeds; equalization calculations and offsets result in no net lump sum payable between the parties after accounting for mortgage payments advanced by the wife; spousal support is quantified at nil because the husband is deemed self-sufficient; child support is fully eliminated prospectively and retroactively by deviation for undue hardship based on high access...

Citation
2002 NSSF 13
Parties
Petitioner/applicant: Kristina Laura Kennedy-Dowell; Respondent: Edgar Douglas Dowell, Jr.
Court
Supreme Court of Nova Scotia
Jurisdiction
Canada
Judgment Date
14 March 2002
Procedural Posture
Divorce (family Division, Supreme Court of Nova Scotia) / Decision Following Trial and Written Submissions
Outcome
Divorce granted. Trust excluded from matrimonial assets and not divisible; matrimonial home ordered sold; no spousal support payable; child support set at nil by deviation for undue hardship; ancillary orders as below.
Legal Topics
Classification of Trust Assets, Interpretation of Matrimonial Property Act S.4 and S.13, Child Support Guidelines S.7 and S.10 Undue Hardship, Equalization, Sale of Matrimonial Home, Allocation of Debts, Occupational Rent, Life Insurance for Dependents
Source Language
English
Family Law Matrimonial Property Trusts Child Support Spousal Support Custody and Access Property Division Debts +8 more

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Parties

Kristina Laura Kennedy-Dowell

Petitioner/applicant

Edgar Douglas Dowell, Jr.

Respondent

Procedural Posture

Divorce (family Division, Supreme Court of Nova Scotia) / Decision Following Trial and Written Submissions

Legal Issues

  1. 1 Whether the trust funds are matrimonial assets divisible under the Matrimonial Property Act
  2. 2 Whether equitable interests in trust have realizable value for division
  3. 3 Whether distributions from the trust constitute use of the trust such that exemption is lost

Ratio Decidendi

The trust is excluded from division as a matrimonial asset because the corpus was not 'acquired' until after separation and the beneficiary's equitable interest had no realizable divisible value; distributions from the trust have been spent leaving nothing to divide. The matrimonial home is to be sold and encumbrances paid from proceeds; equalization calculations and offsets result in no net lump sum payable between the parties after accounting for mortgage payments advanced by the wife; spousal support is quantified at nil because the husband is deemed self-sufficient; child support is fully eliminated prospectively and retroactively by deviation for undue hardship based on high access...

Court Disposition

Divorce granted. Trust excluded from matrimonial assets and not divisible; matrimonial home ordered sold; no spousal support payable; child support set at nil by deviation for undue hardship; ancillary orders as below.

Orders

  • Divorce granted.
  • Trust funds held for petitioner and children are excluded from matrimonial property division; corpus not divided between spouses.