MacGillivray v. Hanna

MacGillivray v. Hanna Court Court of Appeal Date 1996-02-14 Citation 1996 NSCA 32 Docket CA 119514 Judge/Registrar/Adjudicator Bateman, Nancy J. (Honourable Justice) (CA); Flinn, Edward J. (Honourable Justice); Pugsley, Ronald N. (Honourable Justice) Document Type Decision Decision Content C.A. No. 119514 NOVA SCOTIA COURT OF APPEAL Cite as: MacGillivray v. Hanna, 1996 NSCA 32 Pugsley, Bateman and Flinn, JJ.A. BETWEEN: GLORIA M. (HANNA) MACGILLIVRAY ) Theresa Marie Forgeron ) for the Appellant Appellant ) ) - and - ) ) Michael Kuna ) for the Respondent JOHN HANNA ) ) Respondent ) Appeal Heard: ) January 19, 1996 ) ) ) Judgment Delivered: ) February 14, 1996 ) ) ) ) ) ) ) ) THE COURT: Appeal allowed per reasons for judgment of Bateman, J.A.; Pugsley and Flinn, JJ.A. concurring. BATEMAN, J.A.: This is an appeal from a decision on corollary relief and matrimonial property, ancillary to a divorce. BACKGROUND: The parties were married on September 3, 1960 in Glace Bay, Nova Scotia. The appellant wife had just graduated as a registered nurse. The respondent husband was a professional hockey player with the NHL. The appellant left her employment and travelled with the respondent, moving throughout the United States and Canada as his hockey career demanded. They had three children. The family typically moved four times each year. On the death of their daughter, they adopted their grandson, John Michael, born December 30, 1979. Their other two children are now adults. This was a traditional marriage in that Ms. MacGillivray performed the duties commonly associated with a mother and homemaker. The respondent suffered a serious leg injury in 1973 that ended his professional hockey career. He coached various hockey teams over the next five or six years until he was injured in a motor vehicle/pedestrian accident that prevented him from continuing to coach. In 1979 the family returned permanently to Sydney, Nova Scotia. The appellant took a refresher course and obtained certification to re-enter the nursing profession. She could find only casual employment at a local hospital. Since 1989, she has been unable to find other than half time nursing employment, save for two years when she obtained a temporary full time nursing position. She has little job security due to her lack of seniority. The respondent receives pensions and has income from some promotional work on television. The parties jointly owned some rental properties. By consent, the respondent retained these rental units after the divorce. The respondent has custody of John Michael, by agreement. The appellant has reasonable access. The respondent is a party, along with certain other former professional hockey players, to litigation in Ontario concerning their NHL pension entitlement. If successful, that litigation, would result in an increase in the pension payable to the respondent. There was agreement, before trial, on several points. The issues before the court were: the classification and amount of certain debts; the classification of and entitlement to the monies, if any, flowing from the Ontario pension litigation; the rights, as between the parties, to past rental income; the entitlement, as between the parties, to periodic pension payments received by the respondent after separation but before trial; the appropriate quantum, if any, of child support and spousal support. The divorce was heard on January 6 and 27 and May 25 and 26, 1993. The trial judge rendered his decision on June 11, 1993. The wife appealed. The appeal was heard on May 10, 1994 and a decision delivered that same day, remitting certain matters to the trial judge. The parties agreed to proceed on the remitted issues by written submissions, which were filed in October of 1994. The trial judge requested further particulars. Additional written submissions were provided between April and June of 1995. On July 26, 1995, the trial judge rendered a Supplementary Decision which decision is the subject of this appeal. GROUNDS OF APPEAL Ms. Forgeron, counsel for the appellant, states the following issues: 1. Did the learned trial judge err in fact and in law in failing to include all the pension income as a matrimonial asset; 2. Did the learned trial judge err in fact and in law in granting an unequal division of the pensions; 3. Did the learned trial judge err in fact and in law in failing to award spousal support; 4. Did the learned trial judge err in fact and in law in his calculation of the monies due and owing to the appellant; and 5. Did the learned trial judge err in fact and in law in making findings on issues which counsel had not placed before the court. ANALYSIS (a) The Pension Issue: The trial judge wrote in his first decision, delivered on June 11, 1993: DIVIDING THE ASSETS AND DEBTS: I find that an equal division of the matrimonial assets and joint debts is appropriate in this case. . . . Therefore Mr. Hanna shall pay to Mrs. Hanna the sum of $24,371.04. I am ordering that $15,000 of this amount shall be payable forthwith with the balance payable as I shall later direct. CHILD AND SPOUSAL SUPPORT: I am going to order that Mr. Hanna pay nominal spousal support to Mrs. Hanna and Mrs. Hanna to pay nominal child support to Mr. Hanna. The latter may be somewhat illusory because I am going to permit Mr. Hanna to keep receiving his pension income without contribution to Mrs. Hanna for a period of five years from this decision. In effect therefore Mrs. Hanna will be foregoing her entitlement to one half of Mr. Hanna's pension income during that five year period in lieu of paying child support to Mr. Hanna. I think this is fair in the circumstances. If it is too generous in Mr. Hanna's favour, this in part compensates for the fact that I did not assess what Mrs. Hanna might have paid in child support during the three years since separation when I calculated the appropriate division of assets and that is in the previous section. It seems to me that the greatest adverse economic disadvantage flowing from the marriage and its breakdown for Mrs. Hanna relates to her lack of seniority and therefore economic security. Economic security in two respects (a) she is in jeopardy of losing her job at any time, and (b) her inability to adequately prepare for her retirement. On the other hand Mr. Hanna is guaranteed his pensions for life and, as he increases his equity in the rental properties, he has a financial base which should ensure him a comfortable retirement. It is clearly not fair that, after 30 years of marriage, Mr. Hanna should enjoy the prospect of such security but Mrs. Hanna should not. How to compensate Mrs. Hanna for this apparent inequity does not seem to lend itself to precise mathematical calculation. At the end of five years, Mr. Hanna will no longer have to support John Michael. There was evidence that John Michael will likely not go on to university. Mr. Hanna will therefore not have to help finance a university education. I am therefore going to order Mr. Hanna to pay one half of his gross pension income to Mrs. Hanna commencing on the 5th anniversary of this decision and continue to do so every month form then on. I am dividing the gross amount of the pensions in accordance with the reasoning of Chipman J. in Yaschuk v. Logan . . . Further, I am satisfied that an additional amount should be paid to help correct the imbalance noted earlier in their retirement prospects. At the same time, I want to spread the payments over a number of years so that Mr. Hanna can make appropriate adjustments in his debt servicing requirements. . . I therefore order Mr. Hanna to pay to Mrs. Hanna an additional $10,000. This combined with the outstanding payment leaves a total balance of $19,371.04. This amount shall be paid in instalments as follows . . .(emphasis added) On the first appeal, which decision is reported as Hanna v. Hanna (1994), 4 R.F.L. (4th) 148, Clarke, C.J.N.S., for the Court, said, in part, at p. 148: This appeal concerns the division of matrimonial property and pensions together with child and spousal support which were issues dealt with by the trial judge in his decision dated June 3, 1993 and his corollary relief judgment dated December 17, 1993. The appellant appeals from certain of the trial judge's conclusions. The parties were married in 1960, separated in 1990 and divorced in 1993. There is one dependent child, aged 13, of whom the respondent has custody and to whom the appellant has generous access. The parties sought and the trial judge undertook to provide an equal division of assets. The parties reached a remarkable degree of agreement on the values to be assigned to all items including land, premises, vehicles, furniture, other items of tangible personal property and the matrimonial debts. . . . In our opinion the appeal should be allowed. In circumstances where the parties and the trial judge all sought to achieve an equal division, inequality resulted in three respects. 1. The equalization payment of $24,371.04 to which the trial judge ruled the appellant was entitled should be secured by an interest bearing mortgage. The lands upon which such security should be attached and the rate of interest to which the mortgage should be subject are yet to be determined. We rely on the decision of this Court in Nolet v. Nolet (1985), 68 N.S.R. (2d) 370. 2. In an effort to correct "imbalances" by the award to the appellant of a lump sum of $10,000.00, the trial judge mixed the division of the respondent's pension income with child and spousal support. Based on Clarke v. Clarke, [1990] 2 S.C.R. 795 and Yaschuk v. Logan (1992), 110 N.S.R. (2d) 279, the gross pension income of the respondent should be divided as at the date of the separation of the parties with such adjustments thereto as the evidence warrants. The pension benefit is to be included as a matrimonial asset. (See Chipman J.A. in Yaschuk at p. 285, paras. 25 and 26) 3. Once the division of pension income is settled, then child and spousal support falls into a separate category requiring a consideration and application of the factors set forth in the Divorce Act, R.S. 1985 Chap. 3 (2d supp.) and 1986, Chap. 4. The manner in which the corollary relief is presently structured does not provide a delineation between the division of pension income and child and spousal support. All three cannot be blended in a single calculation as the trial judge has done. An appropriate apportionment is necessary. In its present form it also has the practical effect of rendering an application for variation difficult and uncertain. While recognizing that the trial judge was endeavouring to develop a package which would settle the outstanding issues between the parties, it is deficient in achieving the intended results particularly in respect of those noted above. In our opinion the appeal should be allowed and the matter returned to the trial judge who, upon application of the parties, is best able to effect the necessary corrections. We so order, without costs on this appeal to either party. (emphasis added) These are the directions under which the matter was remitted to the trial judge. The Court of Appeal recognized that the parties both sought equal division of the assets and that the trial judge had attempted to achieve that end. The trial judge states in his Supplemental Decision of July 26, 1995, however: PENSIONS: The Court of Appeal ruled that "the gross pension income of the respondent should be divided as at the date of separation of the parties with such adjustments thereto as the evidence warrants. [emphasis by Trial Judge] The pension benefit is to be included as a matrimonial asset". Note that the Court of Appeal decision does not analyse the pension income stream to determine whether any portion of the pension income is comprised of monies from disability pensions. Indeed, that issue was not before the Court of Appeal and thus there was no need for them to comment upon it. Mrs. Hanna's counsel argues that counsel had agreed to divide the total pension income stream, and that it is not now open to me to interfere with that agreement. I do not believe there was any such agreement. On page 4 of the trial transcript, Ms. Forgeron is quoted as follows: And the other agreements, I believe, will be with respect to the exact value of the pensions that he is receiving, and they are outlined on page 7 and 8 of my pre-trial brief. Mr. Kuna immediately replies: "$2,054.04 is the total we agree to the total." [emphasis by trial judge] It is clear from the above quotation that there was no agreement to equally divide the pension income. Even if there were, the Court of Appeal directed me to divide the gross pension income "with such adjustments thereto as the evidence warrants". Counsel were alerted to the fact that I would be examining this issue and were given the opportunity to make appropriate submissions. I also gave the parties the opportunity to have a further hearing, but on June 6, 1995 Ms. Forgeron advised my office that her client could not afford another hearing. Similarly, Mr. Kuna did not wish to have a further hearing. Extensive written submissions were received most recently on June 9, 1995. At trial, the evidence disclosed that Mr. Hanna's total monthly pension income was $2,054.04. Of that, $1,171.75 comes by way of United States Social Security and $501.91 by way of the Canada Pension Plan. Both of these payments were due to the fact that Mr. Hanna is disabled. Mr. Hanna was a professional hockey player but had to prematurely discontinue that career as a result of a leg injury. The disability pensions total $1,683.76 per month. When that amount is subtracted from his total pension income, the true pension income is $370.28 per month. This is a situation where the custodial parent is disabled and therefore precluded from realistic participation in the job market. On the other hand, Mrs. Hanna is an able bodied professional who, for the last number of years, has been earning in the vicinity of $40,000.00 per year. In that situation it would be unjust to make a straight division of the total pension income stream. I find therefore that Mrs. Hanna is entitled to only 1/2 of the non-disability pensions or 1/2 of $370.28 per month. . . . I recognized that Mrs. Hanna suffered certain economic disadvantages flowing from her role in the marriage and its breakdown. However she has been able to make some provision for her retirement. For that reason I will order that she receive 1/3 of Mr. Hanna's total pension income when he turns 65. Mr. Hanna is now 60 years of age, his date of birth being April 5, 1935. (additional emphasis by this court) Mr. Kuna, counsel for the respondent, acknowledges that there was agreement before trial that the total pension income would be divided equally. The only pension issue before the court was the appellant's entitlement to any enhancement of the NHL pension resulting from the Ontario litigation. The respondent's total pension income from all sources, excluding any possible enhancements, was agreed to be approximately $22,407.00 annually. That the parties had such an agreement is confirmed upon a review of the transcript. At p. 61 of the Appeal Book: THE COURT: Okay let's just assume for the moment that the evidence may establish at some point that he is at least a potential beneficiary. Your argument is going to be, as already noted, that Mrs. Hanna is not entitled to any of it. MR. KUNA: No if anything comes through, we liken it to a windfall to which she is not entitled, that is essentially our position. THE COURT: My understanding of the law, subject to argument from you, is that the burden of proving that that is an exception and would rely on your, you're the one who says, you know, assuming it's established, he's a potential beneficiary, your position would then be yes, that she is not entitled to any of that. It seems to me that the burden of proof is on you to establish that that award is an exception. MR. KUNA: No I beg to differ My Lord. We agree that she's entitled to half of 22407 or whatever it is. That's his pension. Clarke v. Clarke Supreme Court of Canada, we all know she's entitled to half of that. THE COURT: That's if, at the end of the day, I agree with you that that is a windfall for him, something that he became entitled to after the parties separated, but on the other hand, if I find that she became entitled to that, or he became entitled to that money before the separation. . . MR. KUNA: There is no money though. THE COURT: No we are talking potential. MR. KUNA: Yes, that is really the basis for our argument, that there is nothing before you. I don't feel I have the burden of proof regarding anything over and above 224...I feel my learned friend has the burden of proof over and above the 224 because as we stand here right now, there ain't no more over and above the 224 so how can you rule on something that is not here. (emphasis added) And at p. 272: Just very briefly on Mrs. Hanna's financial statement . . . THE COURT: Just before you leave the NHL, in your brief you likened the request for the division of the NHL pension to the lottery ticket. What if the lottery ticket had been purchased during the marriage. MR. KUNA: I don't feel it's subject to division, that is my humble opinion. THE COURT: If they bought a lottery ticket with their joint money, in the marriage, and then learned yesterday that it was worth $50,000 bucks, he'd get it all. MR. KUNA: May be if they both went in together and bought it jointly may be the other party would be no different than may be two friends splitting on a lottery ticket. I think there is more of a contractual obligation there. THE COURT: His entitlement, the reason his name is on that lawsuit is because he earned that entitlement during the marriage. MR. KUNA: By playing in the NHL. THE COURT: Yeah so isn't that the same as buying the ticket. MR. KUNA: No this is why I submit that you go with the 224 I think it is. That is the entitlement that was earned during the marriage, was 224. This is all new. . . MR. KUNA: Which he did yes, but he was eligible for x dollars turned out to be 224. The 224 is correct pursuant to the pension scheme at the time of his active career and shortly thereafter when he was discharged, almost like getting out of the army. The entitlement to any further money which may or may not arise, accrued many years later and that is where I draw the line and split the hair and say that has nothing to do with the accrual during the marriage because that is being paid by way of the 224. That is our submission on that. It would be different if he didn't get a cent since his retirement. He's got this pool of money in there, waiting to see how much you're going to get, but this 224 has been paid for many years now and it is not really the 224 that is in issue, I would submit that there was a contract with the Manufacturer's Life or whoever at the time and that is a correct amount the 224.04, the 224 regarding that contract which arose during. . . (emphasis added) It is clear from a review of the transcript and the trial submissions that both counsel conducted the trial on the basis that all of the pension income was a matrimonial asset to be equally divided (but for the question of enhancements as a result of the Ontario litigation). This agreement was endorsed by the trial judge when he attempted to effect equal division in his first decision. Counsel for the appellant submits that it was not, then, open to the trial judge to revisit the classification of the pensions in his Supplementary Decision, nor resile from his earlier decision that the pensions be divided equally, consistent with the agreement of the parties. It was the trial judge who raised the pension classification issue, when the matter was remitted back to him by the Court of Appeal. In a letter to counsel dated February 5, 1995, the trial judge wrote: The Court of Appeal decision in this case directed division of pension income "with such adjustments thereto as the evidence warrants." I would like to hear from you re the 1/8 portion of the NHL pension earned prior to the marriage. I would also like to hear from counsel respecting my ability to exclude the disability pensions from a division of matrimonial assets. See in this regard: Ledson v. Ledson (1990), 28 R.F.L. (3d) 299 N.S.S.C. (T.D.); MacDonnell v. MacDonnell (1991), 103 N.S.R. (2d) 435 (T.D.) and its consideration by Goodfellow, J. in Adie v. Adie (1994), R.F.L. (4th) 54 (N.S.S.C.); and Dort v. Dort (1994), 130 N.S.R. (2d) 108 (T.D.) and (1993), 126 N.S.R. (2d) 313 (C.A.).[emphasis by trial judge] The time for the trial judge to raise his concerns, if any, about the classification of the pensions as a matrimonial asset was at or, ideally, prior to that first trial, when he became aware of the parties' agreements. While a judge is not bound by the agreements of counsel, such should be paid great deference. Generally such agreements are reached in a context of give and take, resulting in a package deal. If a matter, which is the subject of agreement between the parties, is to be put in issue by the trial judge, then counsel should be given notice and afforded an opportunity to marshall the evidence on that point. The trial judge accepted the agreement of counsel to divide the pensions equally, as is evidenced in his original decision. His subsequent finding that the parties did not have such an agreement is not supported upon a review of the transcript. Indeed this finding is unfortunate as it has resulted in additional litigation and expense for these parties. Mr. Kuna's submission in response to the trial judge's letter of February 5, raising the pension issue, is troubling. He wrote in his letter of May 31,1995: Unfortunately counsel could not agree nor were they capable of arriving at the capitalized value of the pensions as of the date of separation. We submit your Lordship does have the authority to exclude the disability pension from division of matrimonial assets as well as to deduct the 1/3 portion of the NHL pension earned prior to the marriage, as the evidence does warrant this. Your Lordship would also have to make a finding as to whether or not the parties agreed as to the valuation of the pensions or agreed that all the pensions would be equally split. Mr. Kuna's submission followed that of counsel for the appellant who clearly stated that she and Mr. Kuna had agreed to the equal division. Ms. Forgeron wrote in her submission of March 29, 1995: This issue, however, is not before this Honourable Court given the consents and agreement of the parties which form part of the court record. The parties specifically agreed to divide the pensions equally. It is not incumbent upon this court to overturn agreements reached between the parties which are not contrary to public policy. Mr. Kuna's response, while it does not expressly say that the parties did not have agreement to divide the pensions equally, is lacking in the candour expected of an officer of the court. The trial judge erred in his finding that counsel did not have an agreement to divide the total pension income equally. In his first decision the trial judge found an equal division of the assets to be appropriate, subject to the 5 year postponement of the appellant's receipt of the pension income stream. The postponement of the wife's receipt of the pension income was intended by the trial judge to be the equivalent of ordering a like amount of child support. The timing coincides with the 5 year period during which John Michael would remain dependent. The Court of Appeal confirmed that interpretation. In doing so, however, as was noted by the court, the trial judge failed to separate asset division from the calculation of maintenance. The proper approach is to first divide the assets, calculate the capital position of the parties, and then determine the maintenance issues. A party's need for or ability to pay maintenance can only be assessed once his or her capital position is established. It is not clear from a reading of the Supplemental Decision whether the trial judge reclassified the pensions, exempting certain of them under s. 4(1) of the Matrimonial Property Act, R.S.N.S. 1980 c. 9 s.1, or, alternatively, determined that all of the pensions were matrimonial assets and divided unequally pursuant to s. 13. In either instance he erred in that he had already found that an equal division of the total was appropriate. The equal division of the assets, including the pensions, was not raised on the first appeal, save the issue of whether the trial judge's postponement of the wife's receipt of the pension income stream amounted to an unequal division. The Court of Appeal found that it did. The direction of the Court of Appeal to divide the pension income "with such adjustments thereto as the evidence warrants" was not a licence for the trial judge to reopen the pension issue and reclassify the pensions. Any "adjustments" that were necessary related to a calculation of what was owing to the appellant, because of the respondent's receipt of the full pension income before and after the trial. It is not necessary, on this appeal, to decide the status of "disability pensions" under the Matrimonial Property Act. Indeed, there is no evidentiary basis upon which to do so. Because classification of the pensions was not in issue, there was no evidence before the trial court as to the exact nature of the so-called "disability pensions". Such evidence is essential if the court is to determine whether an asset is, by its characteristics, exempt from division within the meaning of s. 4(1) of the Matrimonial Property Act, supra. A court might consider, for example, whether the "pension" is contributory or noncontributory, whether it emanates from a policy of insurance or from employment, whether it is truly a disability pension or simply early payment of a retirement pension, and countless other factors. (see for example, MacDonnell v. MacDonnell (1991), 103 N.S.R. (2d) 435 (S.C.) and Macaw v. Macaw, as yet unreported, No.1206-002214, September 26, 1995, N.S.S.C.) The onus is on the party seeking exemption to put that evidence before the court. (see Yaschuk v. Logan, supra) I find that the trial judge erred in reopening an issue which had not been appealed and, thus, was not before him. His error was not cured by inviting counsel to make further submissions on the issue. Accordingly, the appellant is entitled to an equal division of the total gross pension income of the respondent. The income tax status of the U.S. pensions is unclear. Additionally, it is unknown whether the pensions are divisible at source. Where source division is possible, it is my direction that such be done. Where source division is not possible, the respondent shall receive the appellant's share of the pension in trust. (b) NHL Enhancements: On this issue, in the first decision, the trial judge held: I find that Mr. Hanna's potential entitlement to share in this court award arose during his marriage to Mrs. Hanna. I find that she is entitled to one half of any amount that Mr. Hanna eventually received pursuant to the court action in question. . . . My order will stipulate however that Mr. Hanna will immediately pay to Mrs. Hanna one half the gross of any lump sum and/or instalments he receives pursuant to the court action. He holds in the Supplemental Decision, regarding the NHL pension, however: In my June, 1993 decision, I failed to take into account that Mr. Hanna played one-third of his professional games prior to the marriage. Put another way, only 2/3 of his NHL pension entitlement was accumulated during the marriage. Mrs. Hanna shall therefore be entitled to 1/3 not 1/2 of any such benefits. [emphasis by trial judge] The trial judge's disposition regarding the proceeds of the Ontario litigation was not appealed, and, accordingly, it was not remitted to him on the first appeal. While it was an issue in dispute at the first trial, the trial judge had made his determination, which was incorporated into the Corollary Relief Judgment. He was not at liberty to recast that division. The appellant's entitlement to an equal division of the total pensions is restored. It shall include any enhancements to the pensions resulting from the Ontario litigation and any lump sum received in this regard. (c) Child Support: Child support was remitted to the trial judge after the first appeal. In his Supplemental Decision the trial judge ordered that the appellant pay child support of $300.00 per month, when working full time and $150.00 per month when working half time. Those payments were to commence on August 1, 1995 and continue monthly thereafter, through the Family Court. There has been no appeal or cross-appeal of that issue. In the Supplemental Decision, the trial judge calculated that the appellant should have paid child support retrospectively. He said: The Family Law Committee Child Support Tables indicate that maintenance payable in the $40,000.00 per year range without tax benefit would result in payment of $300.00 to $333.00 per month. Taking the lower figure times fifty months means that Mrs. Hanna should have paid a total of $15,000 to Mr. Hanna in child support. If I subtract from that the amount of pension money Mr. Hanna owes to Mrs. Hanna ($10,825.78), Mrs. Hanna's child support arrears total $4,174.22. I accept Mrs. Hanna's evidence that she did make some contribution towards child support over the last few years. She indicated that she has on occasion purchased clothes and various gifts. Accordingly, I direct that the $4,174.22 arrears be forgiven. The appellant submits that the calculation of retroactive child support by the trial judge is in error. He calculated the arrears using the $300.00/$150.00 monthly amount but assumed full employment by the appellant over the total period. The appellant submits that the trial judge made an error in that he did not take into account the lower amount of child support payable when the appellant was reduced to half time employment. The evidence at trial was that the appellant had been employed half time until May of 1992 and employed full time to the date of trial (June 1993). We are advised that this full time employment continued until September of 1994 and then reverted to half time employment, which status continues. The arrears of child support thus total $14,550.00 calculated as follows: May 1990 to May 1992 - 25 mo. @ $150.00 = $3,750.00 June 1992 to Sept. 1994 - 28 mo. @ $300.00 = $8,400.00 Oct. 1994 to Jab. 1996 - 16 mo. @ $150.00 = $2,400.00 The trial judge, in forgiving a portion of the arrears, recognized a past contribution to child support by the appellant of $4,174.22. This leaves a net amount owing by the appellant of $14,550 - $4,174 .22 or $10,375.78 which I will round to $10,376.00. I do have some concerns that the quantum of child support is lower than the trial judge would have otherwise ordered. It was predicated upon the respondent having a higher income through the retention of a greater share of the pensions and the appellant having a lower income, in that she would not receive the full one half share. While there was no cross-appeal on this issue, we have authority under Civil Procedure Rule 62.23(e) to "make any order or give any judgment which the appeal may require." It is in the interests of both parties that matters be concluded and that they not be subject to further litigation. In her submission to the trial judge, prior to his final decision, the appellant suggested that an appropriate level of child support would be $400.00 per month assuming the appellant is employed on a permanent part time basis and in receipt of one half of the pension benefits. Accordingly, I would direct that the appellant pay child support for John Michael, in that amount, commencing February 1, 1996. I have not used this figure to calculate the retroactive child support. I will take that into account below. (d) Spousal Support: As was found by the Court of Appeal, the trial judge, in his first decision, mixed spousal support with the division of assets. He did, however, say: I'm going to order that Mr. Hanna pay nominal spousal support to Mrs. Hanna and Mrs. Hanna to pay nominal child support to Mr. Hanna.(emphasis added) It appears from that first decision, as well, that he awarded lump sum spousal support to the appellant of $10,000 "to help correct the imbalance noted earlier in their retirement prospects". In my view, this lump sum award, was clearly linked to his order that the appellant's receipt of the pension income be postponed for 5 years. Since I am of the view, as was this Court on the first appeal, that the appellant's pension entitlement should not be postponed, under the guise of child support, and that she is entitled to receive the one half originally awarded, it would be inequitable to permit her to have the lump sum as well. Thus the award of spousal support is limited to the nominal amount, as ordered by the trial judge and the respondent shall receive credit for the $10,000 lump sum, assuming it has been paid. This will be specifically dealt with below. (e) Pension Received by the Respondent Before Trial: The respondent husband continued to receive his total pension income from the date of the commencement of proceedings until trial. The appellant wife sought an accounting and payment of her share. The trial judge did not deal with this retroactive pension issue in his first decision. The direction of the Court of Appeal on this issue was clear: ". . . the gross pension income of the respondent should be divided as at the date of the separation of the parties with such adjustments thereto as the evidence warrants." In the Supplemental Decision the trial judge calculated the amount owing to the appellant on the basis of a one half share of "the non-disability pensions" dating from May 1, 1990. When the respondent reached age 65, the appellant was entitled to a 1/3 share of the total pension income. Since I have found that the trial judge could not resile from his earlier finding that the appellant was entitled to a one half share of the total pension income, the calculation by the trial judge of the amount owing to the appellant must be revised. The total pension income received by the respondent from May 1, 1990 to January 1, 1996 is $141,726.00. Based upon an equal division of the pension income from that date, the amount of the appellant's entitlement is $70,863, excluding interest. In making this calculation I have used the monthly pension amount of $2054.00 as provided by counsel. This sum does not include any enhancements to the pension resulting from the Ontario litigation. Those should be included by counsel in reaching the final figure, as should any other increases in the monthly pensions, since May 1990. (f) Security for the Equalization Payment: The Court of Appeal directed that the equalization payment ordered by the trial judge be secured by an interest bearing mortgage. The trial judge, in his Supplemental Decision, directed that the appellant was entitled to a 5% per annum mortgage on 62 Mount Florence Street, Sydney, Nova Scotia, on the present balance owing on the equalization payment. Although he does not specify, I will assume that the trial judge intended that this be simple interest. We are advised that those funds have been paid by the respondent. RECONCILIATION The figures below do not take into account any amounts payable for the month of February, 1996. Pension not paid: $70,863.00 Less credit for lump sum (if paid): ($10,000.00) Less credit for child support not paid: ($10,376.00) The amount owing by the respondent to the appellant is $50,487.00. It shall be payable forthwith. In the Supplemental Decision the trial judge allowed interest at 5% on the amount of the pension owing to the appellant. It is appropriate that she receive interest on the amount outstanding. The total amount of pension owing increased monthly, which makes the interest calculation difficult. I have applied a simple rate of 5% to the annual amounts outstanding, which would approximate interest in the amount of $10,000. I did not, however, retroactively vary the child support to reflect the higher amount awarded. Had I done so, the additional child support owing by the appellant would have totalled about $4,800.00. It seems reasonable, therefore, to fix interest payable on the amount owing to the appellant at a lump sum of $5,000.00. The total sum owing by the respondent to the appellant is therefore $55,487.00, which I round to $55,500.00. If the $10,000 lump sum has not been paid by the respondent, then the amount owing is $65,500. The lump sum interest will remain the same. It is payable forthwith. COSTS The appellant has been substantially successful. It is appropriate that she receive costs of this appeal and of the further submissions to the trial judge following the last appeal. No costs were awarded on the first trial nor of the appeal. I would therefore order costs of $4,000.00 plus disbursements, the latter to be proved by affidavit. ORDER In these circumstances it would be appropriate for counsel for the appellant to prepare a detailed form of Order and submit it to counsel for the respondent for his "consent as to form". It should then be forwarded to this Court to be issued. If counsel cannot agree, I will determine the form of the Order. J.A. Concurred in: Pugsley, J.A. Flinn, J.A. C.A. No.119514 NOVA SCOTIA COURT OF APPEAL BETWEEN: GLORIA M. (HANNA) MACGILLIVRAY ) Appellant ) - and - ) REASONS FOR ) JUDGMENT BY: JOHN HANNA ) ) BATEMAN, ) J.A. Respondent ) ) ) ) ) ) )