McNeill v. Livingstone

McNeill v. Livingstone Court Supreme Court Date 2019-03-12 Citation 2019 NSSC 80 Docket Sydney No. 107649 Judge/Registrar/Adjudicator Gregan, Robert M. (Honourable Justice) Document Type Decision Decision Content SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: McNeill v. Livingstone, 2019 NSSC 80 Date: 2019-03-12 Docket: Sydney No. 107649 Registry: Sydney Between: GAIL MCNEILL Applicant v. EDWINA “MICHELLE” LIVINGSTONE Respondent Library Heading Judge: The Honourable Justice Robert M. Gregan Heard: September 12, 13, November 16 & 28, 2018 in Sydney, NS Written Decision: March 12, 2019 Issues: Division of Property and Debts Unjust Enrichment Spousal Support Summary: The parties were in a common law relationship for almost 10 years. Prior to entering into the relationship, the applicant had acquired real property. Upon cohabitation, the respondent was added a joint tenant and the property refinanced. The parties also acquired a second residential property together as joint tenants, and also financed that property together. Both parties sought an unequal division and both advanced claims of unjust enrichment. The applicant also sought spousal support on an indefinite basis pursuant to the Parenting and Support Act. The applicant opposed both the applicant’s entitlement to spousal support, as well duration. Result: The competing claims of unequal division and unjust enrichment were dismissed. The court held that the presumption of equal division by way of joint tenancy had not been rebutted. The court ordered that party would retain a real property. The court ordered that spousal support to the applicant would continue in the amount of $1,223 per month for a total duration of 39 months, when the applicant turns 60 years of age and be eligible for CPP benefits. This approach recognized the principles set out in the Parenting and Support Act and case authorities, as well as the roles of the parties in the relationship and the needs and abilities of the parties. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET. SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: McNeill v. Livingstone, 2019 NSSC 80 Date: 2019-03-12 Docket: Sydney No. 107649 Registry: Sydney Between: GAIL MCNEILL Applicant v. EDWINA “MICHELLE” LIVINGSTONE Respondent Judge: The Honourable Justice Robert Gregan Heard: September 12, 13, November 16 & 28, 2018 in Sydney, NS Written Release: March 12, 2019 Counsel: Damien Barry for Gail McNeill Wayne MacMillan for Edwina “Michelle” Livingstone Perry By the Court: Introduction [1] Gail McNeill and Edwina “Michelle” Livingstone have been in a long-term relationship for 9 years. [2] Although described as tumultuous by a number of witnesses, the court notes it was a long-term common law relationship. [3] Despite difficulties, both parties committed to a long-term relationship and to use the vernacular ,“went all in”, putting real property in both names. In addition to real property, many of the assets such as motor vehicles were acquired together and were financed/refinanced in both names. [4] In short, it is clearly a situation where this couple intermingled finances and affairs to the point that it was extremely difficult to discern what was contributed by each party. [5] The parties throughout the relationship continued to acquire things such as two real properties (Eastbay and Loch Lomond), and also all of the “bells and whistles” to enjoy their lifestyle. This included such things as a travel trailer, kayaks, all-terrain vehicles, and new motor vehicles being purchased on a regular basis. [6] The court also finds that the parties were clearly living beyond their means, and refinancing until no further credit could be extended. When that stopped, they entered into a consumer proposal. [7] Seemingly, the parties spent without much thought as to how their finances would be dealt with in the event of separation. [8] Tensions in their relationship came to a head on October 26, 2017, when Ms. McNeill left the relationship. To say that emotions were running high at the time would be an understatement. [9] During that highly emotional time, the parties each began a campaign of making unilateral decisions about ownership of property. It started with Ms. McNeill draining the Credit Union account. In November, both parties, on separate occasions, attended a storage facility they shared and cleared out most of the items. [10] Damage to various items occurred at the storage facility following their visits. [11] On October 26, 2017, shortly after draining the parties’ bank account, Ms. McNeill unwisely decided to attend with her son the Loch Lomond property to take the travel trailer owned by the parties. The trailer was affixed to the property with a deck. The decision to do so was done on very little notice to Ms. Livingstone. It was also a spur of the moment decision with no consideration of the trailer’s road worthiness or readiness for travel. It was a travel trailer in name only at that time. [12] Ms. Livingstone’s reaction to Ms. McNeill removing the trailer resulted in a 911 call and police investigation. Similarly, the actions of the parties at the storage facility also required police intervention. [13] After investigations of both incidents, some charges were laid and some investigations were concluded without charges. [14] In keeping with their consistent approach of being unable to agree on anything, the parties now come before this court contesting (1) division of property and debts; and (2) spousal support. Court History [15] An interim order was granted on December 20, 2017, and issued on February 8, 2018, on this matter. [16] The court ordered spousal support in the amount of $1,223 per month. In keeping with the direction from the Court of Appeal in Richards v. Richards, 2012 NSCA 7, I placed emphasis on the factors of need of Ms. McNeill and ability of Ms. Livingstone to pay, as opposed to focusing on the strength or the compensatory nature of Ms. McNeill’s claim. [17] A hearing was held on this matter on September 12, 13, November 16 and 28, 2018. [18] A number of witnesses testified. Some of these witnesses testified as to the animosity between the parties. The evidence was not overly helpful or of assistance because while it was not disputed that there was friction between the parties, it was also not seriously contested that the parties were in a long-term relationship. [19] I have also considered the evidence of the parties themselves. This required the court to make findings of credibility. [20] Guidance in assessing credibility can be found in the case of Baker-Warren v. Denault, 2009 NSSC 59. [21] Justice Forgeron’s decision in Baker-Warren v. Denault, supra, was provided by counsel. Such factors, when looking at the civil burden, also require the court to look at making findings of credibility and, in order to do that in this case, I must make findings of credibility with respect to the evidence of both parties, as well as findings of credibility for other witnesses who testified on these issues. [22] In the case of Baker-Warren v. Denault, supra, after citing McDougall, Justice Forgeron said as follows: [15] The court must assess the impact of inconsistencies on questions of credibility and reliability which relate to the core issues. It is not necessary for a judge to deal with every inconsistency, but rather a judge must address in a general way the arguments advanced by the parties… [23] Justice Forgeron in Baker-Warren v. Denault, supra, relying on Novak Estates, formulated the following factors to be considered: [19] … b) Did the witness have an interest in the outcome or was he/she personally connected to either party; c) Did the witness have a motive to deceive; d) Did the witness have the ability to observe the factual matters about which he/she testified; … f) Is the testimony in harmony with the preponderance of probabilities which a practical and informed person would find reasonable given the particular place and conditions: Faryna v. Chorney [1952] 2 D.L.R 354; g) Was there an internal consistency and logical flow to the evidence; h) Was the evidence provided in a candid and straight forward manner, or was the witness evasive, strategic, hesitant, or biased; and i) Where appropriate, was the witness capable of making an admission against interest, or was the witness self-serving?. [24] The appropriate test as indicated in F.H. v. MacDougall, 2008 SCC 53, is that the burden must be met on the balance of probabilities based on clear, cogent and convincing evidence. [25] I will now review the evidence of each of the parties. Both parties had issues with respect to credibility. Ms. Livingstone [26] Ms. Livingstone’s evidence at the final hearing differed substantially from her evidence provided at the interim hearing. Ms. Livingstone gave little to no explanation for the change or reasons why her evidence differed even when confronted with the transcript of the evidence. Her explanation was that it was the result of poor advice given by her prior legal counsel. I do not accept this explanation. [27] Another area problematic for Ms. Livingstone was the fact that she made a complaint to the police commission regarding the conduct of the investigation into the storage lockers, alleging that the police officer involved in the investigation had an apprehension of bias because the officer was allegedly friends with Ms. McNeill. The complaint was dismissed as being without foundation. In the court’s view, this explanation along with the one provided asserting incorrect information from her lawyer, shows a history of unsupported claims. [28] I have also reviewed the 911 call from Ms. Livingstone during the October incident at the Loch Lomond property. In her evidence, Ms. Livingstone gave the impression that she was fearful of Ms. McNeill and called 911 for that reason. However, after listening to the 911 call, it is clear that the reaction and comments of Ms. Livingstone were made by someone who was not in fear, but rather someone who was angry at Ms. McNeill attending and damaging the property, as well as attempting to take the trailer. [29] I also accept from the evidence, that much of Ms. McNeill’s property was damaged in the storage locker which was jointly held by the parties. Much of the damage was to Ms. McNeill’s daughter’s property. It is clear from the evidence that only two persons having access to the storage locker were the parties themselves. Ms. McNeill had a key and Ms. Livingstone had a key. [30] Therefore, there are two conclusions. The first being that Ms. McNeill damaged the property of her daughter herself. This would require the court to make an illogical inference that Ms. McNeill did so for the purpose of framing Ms. Livingstone. The second alternative is that Ms. Livingstone or someone under her charge (given that there was evidence of other persons attending with Ms. Livingstone on one occasion), damaged Ms. McNeill’s property . I find on the balance of probabilities, that it was Ms. Livingstone who damaged Ms. McNeill’s daughter’s property. I do not accept the evidence of Ms. Livingstone where she says she did not damage Ms. McNeill’s daughter’s property. It is not logical that the damage was caused by Ms. McNeill. [31] Further evidence of the damage having been caused by Ms. Livingstone on a balance of probabilities was the fact that Ms. Livingstone refused to cooperate with the investigation into the storage facility and instead made a complaint about the police officer investigating that issue. Ms. McNeill [32] Ms. McNeill’s evidence was also not without difficulties. [33] Ms. McNeill for instance, unilaterally decided to withdraw monies from the parties’ bank account, which was a sizable amount. [34] Ms. McNeill made the decision to retrieve the travel trailer and in doing so, acted extremely irresponsibly. [35] Also, while I accept evidence that Ms. McNeill is on long-term disability, she provided no evidence of a permanent disability from work or medical evidence for this court of any disability. [36] In addition, Ms. McNeill was vague in her answers and responses to attendance at legal offices, or her vehicle being parked in the vicinity of legal offices where she had previously done work for cash. Division of Property [37] I will deal with the division of property first, as the courts have consistently said that the ideal approach is to deal with division of property before making a determination on issues of either entitlement or quantum of spousal support. [38] Here, as stated in my introductory remarks, there was an intermingling of properties and finances. The parties jointly pooled money together to cover day to day bills, as well as the purchasing of assets. [39] I do accept there were periods where Ms. McNeill contributed less, for example when on leave because of her daughter’s illness. Also, I accept that during this period, there were greater contributions to the paying of bills, including the mortgage, by Ms. Livingstone. [40] However, it is not clear as to (1) the amount of those contributions during the period of time; (2) whether or not they should give rise to an unequal division of property, and (3) the duration of time during which Ms. Livingstone made contributions that were unequal in nature. [41] Furthermore, any imbalance or increase in contributions made by Ms. Livingstone during the time that Ms. McNeill’s daughter was ill were offset by the equity Ms. McNeill brought into the home at Eastbay. This is because I find from the evidence that Ms. McNeill had purchased the property at Eastbay and although there was an existing mortgage, there clearly was equity in the home prior to her and Ms. Livingstone living common law. Also, I also accept from the evidence that a substantial contribution was made by Ms. McNeill towards the purchase of the home in Loch Lomond through the use of money she received from her sister’s inheritance in the amount of approximately $22,000. [42] The starting point or presumption for division of property is an equal division of property. [43] As pointed out by counsel, this presumption cannot be because of the Matrimonial Property Act. That is because the parties lived common law and were never married, and therefore, the MPA does not apply. [44] Rather the presumption of equal division arises out of the fact that the parties are (1) owners of the properties in Eastbay and Loch Lomond in joint tenancy; and (2) both properties were refinanced and both parties were jointly responsible for the debt associated with both properties. [45] I therefore prefer the approach of Associate Chief Justice O’Neil in Richardson v. Underwood, 2018 NSSC 258. [46] There, as here, the parties lived in a common law relationship and were joint owners of two properties. Both parties made claims of unequal division, as well as relief under the Partition Act. [47] After making findings of credibility and reliability, and reviewing the case authorities, ACJ O”Neil determined that both parties were entitled to an equal interest in both properties, and that the presumption of equal division was not rebutted. [48] ACJ O’Neil stated that the remedies of equalization of payments, release of one or both properties, and accounting for debt, may be necessary [see paragraph 27]. [49] In reaching his conclusions, ACJ O’Neil relied upon Soubliere v. MacDonald, 2011 NSSC 98. [50] ACJ O’Neil also referred to Peters v. Reginato, 2016 NSSC 345, and the comments of Forgeron, J, at paragraphs 141 – 142. [51] From these case authorities, the following principles can be distilled: • When parties acquire property by taking title jointly, a presumption of equal interest exists [paragraph 14 of Soubliere, supra]. • When a court is unable with precision to determine the input of each party over the totality of the relationship and there was an approximate equal mutual benefit conferred on each party, fairness and equitable principles support an equal division [paragraph 142 of Peters, supra]. [52] ACJ O’Neil in Richardson, supra, also referenced the K.A.R. v. P.J.T., 2018 NSSC 4, case that was relied upon by Ms. Livingstone’s counsel in the instant case. [53] At paragraph 20, ACJ O”Neil said that: [20] In K.A.R., the Court ordered an 80:20 split of the value in the home. Critical to the conclusion that a balancing of the equities effected a rebuttal of the presumption of equal sharing was the fact the applicant made a mortgage payment of $75,775 six months prior to the parties’ separation. Some of these funds were from a personal injury settlement following a motor vehicle accident and a retroactive Canada Pension Plan benefit received by one party, the applicant. [54] For the reasons I have already stated, here unlike in K.A.R., I find that it is not possible, given the intermingling of finances and contributions, to determine that one party has contributed more than the other. [55] Neither party has satisfied me on a balance of probabilities that the presumption of equal division should be disturbed. Unjust Enrichment [56] In addition to reliance on contributions, both parties have pled a claim of unjust enrichment. [57] The test for unjust enrichment is well known. To establish such a claim, a party must prove; (1) that the opposing party received a benefit; (2) that the advancing party has suffered a loss; and (3) there is no reason in law for the opposing party to retain the benefit conferred by the advancing party. Eastbay Property [58] There is no question that Ms. McNeill received a benefit from Ms. Livingstone by her contributions during those periods when Ms. McNeill was on leave. As stated however, this is offset by contributions made by Ms. McNeill prior to cohabitation. While the property had an existing mortgage, there is also no question there was some prior equity in the home. [59] Ms. Livingstone did not suffer a loss as a result of the conferring the benefits she provided. This is because, while I have found that Ms. Livingstone signed onto increased debt by way of refinancing of the property, and, I also found for a period of time Ms. Livingstone made payments without contributions by Ms. McNeill, for reasons I will explain, Ms. Livingstone also received reciprocal benefits from Ms. McNeill regarding the Loch Lomond property. [60] For reasons that I have provided regarding joint tenancy, and my analysis of the Loch Lomond property below, however, there is a reason in law for each party retaining the benefits they received in relation to each of the individual properties. Loch Lomond Property [61] At the beginning of the proceeding, Ms. Livingstone’s position was that she wished to retain the Loch Lomond property. [62] This is in keeping with the argument by Ms. McNeill that the Loch Lomond property was purchased because it was Ms. Livingstone’s dream to own a waterfront property and that Ms. McNeill was not “keen” on making that purchase. [63] Nonetheless, the purchase went ahead. [64] Ms. Livingstone through her counsel, now argues that the Loch Lomond property should be sold and unequally divided and that Ms. McNeill would be unjustly enriched if an equal division took place. [65] I disagree for a number of reasons. • I accept that Ms. McNeill contributed $22,000 from her inheritance from her sister towards the purchase of the Loch Lomond property. I also accept that this was a material contribution. • I do not accept that there was an expectation of repayment. • There is nothing in writing between the parties – no texts, no emails, nothing to support a claim of repayment. • In the absence of such evidence, I conclude that it was in keeping with my finding that both parties intended to pool resources, just as Ms. Livingstone had used her DVA lump sum amounts to purchase properties. • I reject however the assertion that Ms. Livingstone contributed $23,000 towards the Loch Lomond property. I accept the evidence provided by Mr. Power, a representative of Sampson Motors, that the $23,000 was the same figure used to purchase the Volkswagen vehicle. Therefore, I find on a balance of probabilities, that the monies were not used for Loch Lomond, but instead used to purchase a vehicle. • The $22,000 which was contributed by Ms. McNeill is in my view, a substantial contribution that would equate to an equal division of the Loch Lomond property • I fail to see how it can be stated that Ms. McNeill could be said to have suffered a loss from this contribution. While it was Ms. Livingstone who wished to purchase the Loch Lomond property, and who had the benefit of living at the Loch Lomond property since separation, Ms. McNeill also had the benefit of living at the Eastbay property. In addition, Ms. McNeill also had the benefit of contributions made by Ms. Livingstone while Ms. McNeill had no income coming into the household. These benefits would therefore offset each other. • In many instances, claims for unjust enrichment that come before this court, involve matters where there is only one matrimonial home or real property. This often proves problematic in terms of arriving at a percentage, but more importantly assessing the appropriate remedy (ie sale vs buyout). • In addition, it results in other difficulties such as valuation and results in additional costs and uncertainty, such as market values. Division [66] Here, because there are two properties, in my view, the appropriate approach is that each party retain a property. [67] Given the history and preferences for the properties this makes sense as well. [68] Ms. McNeill had purchased the property in Eastbay prior to their relationship. Ms. Livingstone was the driving force behind the decision to purchase Loch Lomond. [69] In addition, from a practical perspective, it is the most fair and expeditious and cost effective way for equal division to occur. [70] This approach also offers a clean break for the parties. Each can be responsible for the corresponding debt and determine whether they wished to and/or any position to financially retain the property. [71] This approach also allows for the court to weigh the equity in each home and ensure a fair and less complex way of dividing property and debt. [72] To do so I must consider the value of each of the properties. Here, both parties have filed competing appraisals. Competing Appraisals [73] Ms. McNeill relies upon the appraisals completed by Mr. Black [Exhibit10 - Loch Lomond and Exhibit 11 - Eastbay] . [74] Ms. Livingstone says that the appraisals of Mr. Wambolt is the most reliable [Exhibit 12 – Eastbay and Exhibit 13 – Loch Lomond]. [75] After considering and reviewing both expert reports, I find that the assessments completed by Mr. Black are more reliable. I find this is the case because: • Mr. Black’s reports were more detailed, whereas Mr. Wambolt’s were vague. • Mr. Black’s practices and procedures were more in keeping with uniform appraisal practices. • Mr. Black employed the direct comparison approach and provided detailed and concrete examples of the comparable homes used for his analysis. • In contrast Mr. Wambolt’s report contained vague information as to the location of the properties used for comparison and therefore, little to no detail of the comparable property. • Therefore, I find Mr. Wambolt’s reports should be given less weight. [76] Using the reports of Mr. Black, I therefore accept that the appraised value of the Eastbay property is $190,000. [77] I find the appraised value of Loch Lomond property is $199,500. [78] The net value of the properties, less mortgage, commission of 5%, legal fees, and HST is as follows: • Eastbay property - $55,151 • Loch Lomond property - $77,460.32 [79] This leaves a difference of $22,309.32 in favor of Ms. Livingstone. [80] This amount is the approximate amount of the TD Bank loan on the travel trailer owned jointly by the parties. [81] I say approximately, because in Exhibit 6, Ms. Livingstone’s Statement of Property, she lists the travel trailer as having a TD loan of $29,000. [82] Conversely, Ms. McNeill in her Statement of Property (Exhibit 18), lists the amount owing on the travel trailer as $22,000. [83] In any event, to offset the discrepancy in equity, I will order that Ms. Livingstone be responsible for the $22,000 owing on the loan for the travel trailer. [84] This issue is subject to review and proof of amount owing on the travel trailer as of the date of separation. Within 90 days of this decision, the parties will provide proof of the amount owing on the travel trailer as of the date of separation. [85] The travel trailer is to be sold and the proceeds divided equally less the following amounts: • $3,200 estimates for repairs at Loch Lomond property. • $868.25 for towing of the travel trailer. • $500 for damage to the shed at Loch Lomond. • Total of $4,568.75. [86] Ms. Livingstone is to be given credit for those amounts from the sale of the proceeds of the trailer and the remaining amount divided equally. [87] Ms. McNeill shall be entitled to keep the RRSP’s in her name. I do so because the RRPS’s are in her name alone and the remaining amounts were not used or contributed as a joint family venture and the MPA does not apply. [88] Similarly, the Yamaha Rhino ATV in Ms. Livingstone’s name, as well as the kayaks, will remain in her possession. This offsets items that were taken by Ms. McNeill, such as lawn equipment, etc. Although the value of these items were not clearly ascertained, it is clear that there were a number of items that were taken from the Loch Lomond property by Ms. McNeill, which Ms. Livingstone does not have, and using rough justice, this will be offset by the value of the Rhino and kayaks. [89] Each party shall be responsible for all debts in their names, except for the Gillis Hardware account if that account still has money owing. This is the responsibility of Ms. Livingstone given my findings that she shall be entitled to as part of the property division, to retain the Loch Lomond property. [90] In addition, the debt of the $3,500 Mastercard expense will be the responsibility of Ms. McNeill. [91] All other property, including bank accounts, has been divided to the mutual satisfaction of the parties, other than the items I have specified. [92] The parties will also attempt to have each other’s names removed from their motor vehicles. In the event they cannot do so, there shall be an indemnity clause on each vehicle and in the event of default, they will indemnify the other party and if not able to do so, will be subject to review. [93] Similarly, each party shall have 6 months to refinance the mortgages with respect to each property, and have the other party’s name removed. In the event either party is unable to refinance, the property is to be sold the mortgage paid out, and the other party shall provide proof of payout of the mortgage. [94] In the event the property is sold, and the mortgage paid off, any remaining equity shall be retained by the party owning the property and as well, each party shall be responsible for any shortfalls owing on the mortgage. [95] Each party will, upon receipt of this decision, within 30 days, execute Quit Claim deeds to the respective properties. Spousal Support [96] I turn now to deal with the issue of spousal support. Ms. McNeill [97] Ms. McNeill says that because the relationship was 9 years and 9 months, a long-term relationship, that spousal support should be awarded on an indefinite basis. [98] Ms. McNeill further points to the fact that she is on long-term disability is a factor, and coupled with her age (56), that at the time of separation, should lead the court to conclude that she will not be capable of returning to the work force and should therefore receive spousal support on an indefinite basis. [99] Ms. McNeill also points out that she had to deplete her RRSP’s because of lack of income and therefore spousal support is necessary. [100] Ms. McNeill stresses therefore both need and ability to pay noting the discrepancies in monthly incomes of the parties. In doing so, it would appear that Ms. McNeill relies on non-compensatory factors as a basis for spousal support as opposed to a compensatory claim. [101] Ms. McNeill says the grossed up amount for both parties should include the $5,900 received by Ms. Livingstone as an allowance. Ms. Livingstone [102] Ms. Livingstone says that the $5,900 allowance she receives should not be included as income, as the monies are designated for specific items (landscaping and snow removal). [103] Sections 18 and 19 of the Federal Child Support Guidelines provide assistance. The appropriate test is whether or not the monies received are taxable or not, and available for income. [104] Once it was established that the income has been received, the burden is upon the person receiving the monies on a balance of probabilities to satisfy the court that the income is not available. Here, no such evidence was provided by Ms. Livingstone. [105] I therefore am of the view that the monies should be considered as part of Ms. Livingstone’s income. [106] Ms. Livingstone also argues that at the time of the interim hearing, Ms. McNeill had no income when spousal support was awarded. Ms. Livingstone says that because immediately after the interim order, Ms. McNeill started receiving long-term disability benefits, and that Ms. Livingstone has in fact overpaid spousal support. [107] Ms. Livingstone provided, through her counsel, no figures as to the amount of overpayment. [108] While Ms. Livingstone disputes entitlement to spousal support, she says that if spousal support is granted, it should be in the range of $731 per month. [109] Ms. Livingstone says that $731 is a reasonable amount when looking at the needs of the parties. Analysis [110] Because the parties were not married, the applicable legislation in this matter are sections 4 and 5 of the Parenting and Support Act which states as follows: Factors considered 4 In determining whether to order a person to pay support to that person’s spouse and the amount of any support to be paid, the court shall consider (a) the division of function in their relationship; (b) the express or tacit agreement of the spouses that one will maintain the other; (c) the terms of a marriage contract or separation agreement between the spouses; (d) custodial and parenting arrangements made with respect to the children of the relationship; (e) the obligations of each spouse towards any children; (f) the physical or mental disability of either spouse; (g) the inability of a spouse to obtain gainful employment; (h) the contribution of a spouse to the education or career potential of the other; (i) the reasonable needs of the spouse with a right to support; (j) the reasonable needs of the spouse obliged to pay support; (k) the separate property of each spouse; (l) the ability to pay of the spouse who is obliged to pay support having regard to that spouse’s obligation to pay child support in accordance with the Guidelines; (m) the ability of the spouse with the right to support to contribute to the spouse’s own support. Supported spouse 5 A supported spouse has an obligation to assume responsibility for his or her own support unless, considering the ages of the spouses, the duration of the relationship, the nature of the needs of the supported spouse and the origin of those needs, it would be unreasonable to require the supported spouse to assume responsibility for his or her own support and it would be reasonable to require the other spouse to continue to bear this responsibility. [111] In addition, guidance is provided in a number of case authorities and the following principles can be distilled. [112] Under the case authorities as well of Bracklow v. Bracklow, [1999] 1 SCR 420 and Moge v. Moge, [1992] 3 SCR 813, the courts have determined the 3 categories of spousal support on the basis: • compensatory - which has been described as support to address • economical advantages and disadvantages flowing from the marriage and the role adopted during the marriage; • non-compensatory support which has been described as being to address the disparity between the needs and means of the parties and arising from the marriage breakdown; and • contractual spousal support obligation either expressed or implied (which does not apply here.) [113] I will now review compensatory and non-compensatory claims as it relates to this matter. [114] Here, from the submissions of counsel, Ms. McNeill has identified and appears to rely as stated previously, on non-compensatory factors as the basis for spousal support: • The length of the cohabitation • Needs of Ms. McNeill • Ability of Ms. Livingstone to pay • Disparity of income between the parties [115] Furthermore, while, Mr. Barry is correct that I did find that there was some compensatory element of spousal support at the interim hearing, the court was clear that the decision to order interim support focused on the needs and ability of the parties to pay, as is the correct approach as set out by our Court of Appeal in Richards v. Richards, 2012 NSCA 7. [116] Furthermore, at the interim hearing, the court based upon the limited evidence before it accepted, that there was some evidence of a compensatory claim. [117] That finding of a compensatory claim arose because the court accepted that Ms. McNeill played a role in Ms. Livingstone acquiring some DVA benefits. This was a point acknowledged by Ms. Livingstone. [118] The court now has the benefit of the evidence from a full hearing on this issue. I accept the evidence of Ms. Livingstone that while there was some assistance by Ms. McNeill with respect to DVA benefits, that role was somewhat limited. [119] I believe Ms. Livingstone’s evidence that it was Charlene MacDonald (not Ms. McNeill), who assisted Ms. Livingstone with the bulk of the work in applying and receiving DVA benefits. Much of this work was completed prior to Ms. McNeill and Ms. Livingstone cohabitating. Charlene MacDonald testified in these proceedings, and was not cross-examined on the issue of her role in assisting Ms. Livingstone in obtaining DVA benefits. Therefore, I do not accept Ms. McNeill’s assertions that her assistance justifies a compensatory claim for spousal support and any such claim based upon assistance with DVA benefits must fail. [120] I find also that many of the factors listed in section 4 of the PSA are not present in this case. In particular section 4: • (a) the division of function in their relationship; • (b) the express or tacit agreement of the spouses that one will maintain the other; • (c) the terms of a marriage contract or separation agreement between the spouses; • (d) custodial and parenting arrangements made with respect to the children of the relationship; • (e) the obligations of each spouse towards any children. [121] To put it another way, this is not a case where for instance, Ms. McNeill gave up employment or agreed to relocate at her expense for the benefit of Ms. Livingstone. [122] It is also not a case of Ms. McNeill and Ms. Livingstone agreeing that one of them would forego a career to raise children. [123] Although there was some evidence of Ms. McNeill being on leave to care for her terminally ill daughter, it is my understanding from the limited evidence led by the parties at trial, that Ms. McNeill’s daughter was no longer dependent at the time she was ill, and that the leave was required for a short period of time. [124] In addition, while Ms. McNeill provided evidence that she is currently on long-term disability, once again no medical evidence was provided to prove that she suffers from a permanent disability. In addition, I decline to accept that Ms. McNeill’s counsel’s assertions that age alone, in the absence of medical evidence, precludes or limits Ms. McNeill’s ability to earn income. [125] That being said, at present, I find Ms. McNeill continues to have a need for spousal support. [126] I also find that Ms. Livingstone has the ability to pay spousal support. [127] I conclude that given the discrepancy in incomes, that Ms. McNeill is entitled to spousal support on a non-compensatory basis. [128] Given my findings regarding the inability of Ms. McNeill to earn income at present, and in keeping with Ms. McNeill’s obligation to assume her own support pursuant to s. 5 of the PSA, I will order that spousal support be of a limited duration as opposed to on an indefinite basis. [129] Again, I make it clear that while Ms. McNeill is presently on long-term disability, the court has no evidence that the disability is permanent. This, combined with the fact that Ms. McNeill has had the ability to work on a contract basis, and working part-time setting her own hours, is such that she does have an obligation to become self-sustaining. [130] Under the Spousal Support Advisory Guidelines, the court has discretion to order spousal support in the range of .5 to 1 year for each year of cohabitation. An award of 39 months in my view is appropriate. I have done so because it reflects the roles of the parties and the factors already mentioned in sections 4 and 5 of the PSA. [131] I will therefore order spousal support continue in the amount of $1,223 per month for a period of 39 months. This will result in spousal support being payable until Ms. McNeill turns 60 years of age. [132] This will ensure that both parties obligations under section 5 of the PSA are met. This amount of spousal support coupled with the assets that have been accrued by each party as a result of the division of property, will allow sufficient time for Ms. McNeill to arrange her finances and become economically self-sufficient. At that time, Ms. McNeill will also have the benefit of receiving CPP. [133] The order also recognizes a fair contribution by Ms. Livingstone towards supporting Ms. McNeill in accordance with the factors set out in the PSA and the case authorities. [134] I have also set the quantum at the low range of the Spousal Support Advisory Guidelines. Courts are reminded that the default position should not be the mid-range of the Spousal Support Advisory Guidelines and courts should give reasons as to which medium of the range is used. I have ordered spousal support at the low range because: • Ms. Livingstone will be assuming greater debt for the travel trailer. • Although in receipt of a higher income than Ms. McNeill, Ms. Livingstone’s income is fixed being comprised of DVA benefits as opposed to employment income. [135] Spousal support shall be taxable in the hands of Ms. McNeill and deductible by Ms. Livingstone. [136] If the parties cannot agree on the issue of costs, they shall have 30 days from the date of this decision to make submissions. [137] I wish to thank counsel for their assistance on this matter and ask counsel for Ms. McNeill to draft the order. Gregan, J.