Brown v. MacKeen

Brown v. MacKeen Court Supreme Court Date 2016-01-11 Citation 2016 NSSC 4 Docket Hfx 1201-67508 Judge/Registrar/Adjudicator Chiasson, C. LouAnn (Honourable Justice) Document Type Decision Decision Content SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: Brown v. MacKeen, 2016 NSSC 4 Date: 2016-01-11 Docket: Halifax No. 1201-67508 Registry: Halifax Between: Elizabeth Marie Brown Petitioner v. James Alan MacKeen Respondent Judge: The Honourable Justice C. LouAnn Chiasson Heard: August 7, 2015, in Halifax, Nova Scotia Counsel: Gordon R. Kelly for the Petitioner Janice Beaton for the Respondent By the Court: [1] Ms. Brown filed an Interim Motion on June 9, 2015. The motion requested the following relief: interim custody, interim access, interim child support (table and s. 7 expenses), interim spousal support, interim exclusive possession of the matrimonial home, updated income disclosure of Mr. MacKeen, interim exclusive possession of the contents of the matrimonial home, interim exclusive use of a motor vehicle, determination regarding payments on repairs and taxes owing on the matrimonial home and costs. All of these heads of relief were sought to be dealt with in a 2 ½ hour time frame. Additionally, further submissions were received requesting that the court deal with issues of striking portions of affidavits, requesting a subpoena be issued for the social worker, and a request for a wishes of the child assessment. [2] The affidavit evidence disclosed one of the children has cystic fibrosis. The implications of that diagnosis on issues of custody and access are self-evident. As a result of the myriad of issues and the necessity to have all relevant information before the court, those issues were adjourned to a settlement conference. [3] The parties were in agreement that Mr. MacKeen pay the table amount of child support for the younger child in Ms. Brown’s primary care. The agreed upon table amount for this child is $1,647 per month based on Mr. MacKeen’s gross income. There was also agreement that the parties were to share section 7 expenses on a net of cost basis and that these expenses would be dealt with on a case by case basis. Should the parties not agree on the sharing of s.7 expenses during the interim period, any such dispute is expressly reserved to be determined at a final hearing. [4] Prior to the commencement of the proceeding, the parties reached agreement that Ms. Brown would have exclusive possession of the matrimonial home and exclusive use of the Ford Focus vehicle. It would also appear as though the parties reached agreement that Ms. Brown would review a list of items requested by Mr. MacKeen to be removed from the matrimonial home to determine if there was agreement in relation thereto. [5] As a result of the above noted agreements and the deferral of the custody, access and child support issues, the sole interim issue for the court to deal with is the issue of interim spousal support. [6] Mr. MacKeen did not dispute Ms. Brown’s entitlement to spousal support in relation to her interim application. As such, evidence and cross examination during the proceeding focused on quantum. Mr. MacKeen’s position was that interim spousal support should be set at $3,000. Ms. Brown’s position is that the quantum of spousal support should be set at $6,027 per month. BACKGROUND [7] The parties began to cohabit in approximately 1990 and were married in 1993. They have two sons, aged 15 and 18. The 15 year old son has Cystic Fibrosis and lives primarily with Ms. Brown. The 18 year old son has graduated from high school, is working to some extent, and lives primarily with Mr. MacKeen. During the marriage, Ms. Brown was diagnosed with Multiple Sclerosis and Fibromyalgia. She has recently been diagnosed with Rheumatoid Arthritis. The parties separated in October 2013 (approximately 23 years after cohabitation began). [8] Section 15.2 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) is the statutory authorization related to interim spousal support orders: 15.2 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse. Interim order (2) Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse, pending the determination of the application under subsection (1). [9] When making an interim spousal support order the following factors must be considered in accordance with Section 15.2(4) of the Divorce Act: (4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including (a) the length of time the spouses cohabited; (b) the functions performed by each spouse during cohabitation; and (c) any order, agreement or arrangement relating to support of either spouse. (Emphasis mine) [10] The objectives of a support order are set out in s. 15.2(6) of the Divorce Act: 6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should (a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; (c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. [11] The court in Eyking v. Eyking, 2012 NSSC 409 reviewed the case law in relation to spousal support and noted with approval the case of Baker v. Baker, 2003 NSSC 203 (N.S. S.C.) at paragraph 17: 17 In attempting to determine the issue of spousal support the Supreme Court of Canada's analysis in Moge v. Moge, [1992] 3 S.C.R. 813 and Bracklow v. Bracklow, [1999] S.C.J. No. 14 are at the forefront. A number of principles or basics exist such as: 1. There are now three basis for spousal support; compensatory; non-compensatory, i.e. need alone; and contractual. 2. There is no one philosophy of support; i.e. mutual obligation vs. clean break. They co-exist. 3. Issues of entitlement and quantum/duration are weighed by consideration of all of the factors and objectives in s. 15.2(4) and (6) and specifically s. 17(4.1) which is the application to vary section of the Divorce Act. "The method to follow in determining a support dispute starts with the objectives and all must be considered. No one objective is paramount (see Moge v. Moge, [1992] 3 S.C.R. 813 and Bracklow v. Bracklow, [1999] 1 S.C.R. 420 at page 440). The factors are looked at against the background of the objectives. (Bracklow, p. 440, par. 36)." Higgins v. Higgins, [2000] N.S.J. No. 48N.S.C.A. 4. It is a matter of applying the relative factors in striking the balance that best achieves justice in the particular case before the Court. (Bracklow, supra par. 32). 5. The duty of a Court called upon to exercise discretion under s. 15.2(1) and s. 17(1) of the Divorce Act is to have regard to all of the factors in s. 15.2(4) and s. 17(4.1) in order to achieve the objective set out in s. 15.2(6). 6. Quantum of support does not always equal the amount of the need. [12] In the present case, Mr. MacKeen does not dispute the entitlement of Ms. Brown. As such, it is unnecessary for the court to establish the basis of entitlement be it compensatory or non-compensatory. The court is tasked with establishing an appropriate quantum at this interim stage and that was the focus of the interim hearing. [13] Both parties provided differing calculations based on the Spousal Support Advisory Guidelines (“SSAG”). The SSAG is not a mandatory directive to the court in terms of quantum but does provide some guidance. [14] Justice Dellapinna in the case of Colter v. Colter 2015 NSSC 2 (N.S.S.C.) cited with approval from the case of Fisher v. Fisher, [2001] J.S.J. No. 32 (N.S.C.A.). At paragraph 82 of the Fisher decision, supra, Cromwell J.A. (as he then was) stated: “The fundamental principles in spousal support cases are balance and fairness. All of the statutory objectives and factors must be considered. The goal is an order that is equitable having regard to all of the relevant circumstances. As was stated in Bracklow, supra, at [paragraph] 36: … There is no hard and fast rule. The judge must look at all the factors in the light of the stipulated objectives of support, and exercise his or her discretion in a manner that equitably alleviates the adverse consequences of the marriage breakdown.” [15] I have taken into account the calculations prepared by both parties pursuant to the SSAG. Mr. MacKeen’s counsel based their calculations on two children of the marriage in split custody resulting in a range of spousal support between $3,670 and $4,650. Ms. Brown’s counsel based their calculations on one child of the marriage residing primarily with Ms. Brown resulting in a range of spousal support between $4,896 and $6,027. [16] Pursuant to section 12.4 of the SSAG, one of the enumerated list of exceptions to the application of the SSAG is illness or disability. Given Ms. Brown’s disability, a strict application of the SSAG may not be appropriate. As a result, I have also examined the Statements of Income and Expenses of both parties in conducting a means and needs analysis. [17] The illness or disability of one of the spouses was a factor in the following cases: Wilson v. Wilson, 2014 NSSC 300 (N.S.S.C.); Haggerty v. Haggerty, 2010 NSSC 9 (N.S.S.C.) and Bracklow v. Bracklow, [1999] 1 S.C.R. 420 (S.C.C.). Justice McLachlin stated at paragraph 32 of the Bracklow decision, supra: “Both the mutual obligation model and the independent, clean-break model represent important realities and address significant policy concerns and social values. The federal and provincial legislatures, through their respective statutes , have acknowledged both models. Neither theory alone is capable of achieving a just law of spousal support. The importance of the policy objectives served by both models is beyond dispute. It is critical to recognize and encourage the self-sufficiency and independence of each spouse. It is equally vital to recognize that divorced people may move on to other relationships and acquire new obligations which they may not be able to meet if they are obliged to maintain full financial burdens from previous relationships. On the other hand, it is also important to recognize that sometimes the goals of actual independence are impeded by patterns of marital dependence, that too often self-sufficiency at the time of marriage termination is an impossible aspiration, and that marriage is an economic partnership that is built upon a premise (albeit rebuttable) of mutual support. The real question in such cases is whether the state should automatically bear the costs of these realities, or whether the family, including former spouses, should be asked to contribute to the need, means permitting. Some suggest it would be better if the state automatically picked up the costs of such cases… However, as will be seen, Parliament and the legislatures have decreed otherwise by requiring courts to consider not only compensatory factors, but the “needs” and “means” of the parties. It is not a question of either one model or the other. It is rather a matter of applying the relevant factors and striking the balance that best achieves justice in the particular case before the court.” [18] The calculation regarding the means of the parties is rather simplistic: Mr. MacKeen’s income is $206,239 and Ms. Brown has no source of income other than spousal support. Viva voce testimony of Ms. Brown confirmed that she will be applying for disability income and has the necessary forms for her completion. At the time of the interim hearing, however, she had no source of income other than spousal support. [19] When analyzing the needs of each party, counsel for Ms. Brown indicates that her monthly deficit is $7,773 and Mr. MacKeen’s surplus is $9,488 prior to the payment of child support ($1,647 table amount and $195 s. 7 expenses). Despite the noted deficit of Ms. Brown, her stated position of the appropriate quantum of interim spousal support is $6,027. [20] Mr. MacKeen’s counsel, on the other hand, indicates that he was consistent in his financial support to Ms. Brown. Mr. MacKeen indicated that he paid all expenses related to the matrimonial home until April 2015. His evidence was that from April 2015 to the date of the hearing, he began paying Ms. Brown $3,000 per month in spousal support. His position at the time of the interim hearing is that he is prepared to continue to pay $3,000 per month in interim spousal support. [21] The matter before the court is a balancing of the interests of both parties. Ms. Brown’s need for interim spousal support is self-evident. The question is to whether her expenses are found to be reasonable. The competing factor in any such analysis is the ability of Mr. MacKeen to pay. A review of the Statements of Expenses and Property filed on behalf of Mr. MacKeen reveal that, in addition to the payment of child and spousal support, Mr. MacKeen is servicing the matrimonial debt (credit line, tax liability incurred during the marriage, as well as credit cards). [22] Counsel for Ms. Brown has also requested that Mr. MacKeen retain insurance coverage for Ms. Brown on his current medical and dental plan. Mr. MacKeen has agreed to do so and will maintain such coverage for so long as he is legally able. Mr. MacKeen shall provide documentation to Ms. Brown to confirm that the insurance coverage for her remains in place. [23] Additionally, there has been a request that Mr. MacKeen contribute to repairs to the matrimonial home and the outstanding bills (property taxes, flood cleanup, roof repair, and window replacement). The property taxes billed in the spring of 2015 were received by Ms. Brown at a time when Mr. MacKeen had full control over the monies paid to Ms. Brown. Ms. Brown’s evidence was that the payments of support were erratic and that she could not determine with any consistency what Mr. MacKeen would pay. Ms. Brown is wholly dependent on Mr. MacKeen financially- she has no other source of income other than spousal support. [24] Mr. MacKeen shall pay the outstanding property taxes and ensure that they are up to date. It is to the benefit of both parties during this interim period that the taxes be paid as they are due. The unpaid property taxes as well as accumulated interest and penalties shall be paid by Mr. MacKeen within 60 days of this decision. Taxes owing up to October 31, 2015 are in the amount of $2,497.22 (plus any accumulated interest and penalties). Ms. Brown shall be responsible for the property taxes from November 1, 2015 until further agreement of the parties or court order. [25] Ms. Brown provided evidence that there is a $2,000 deductible in relation to a flood cleanup (reference Exhibit of Ms. Brown, August 4, 2015, Exhibit K). I have few details in relation to this claim, other than that this claim resulted from a leak in the living room. [26] I have also been provided with a quotation in relation to roof repairs in the amount of $7,155 (reference Affidavit, August 4, 2015, Exhibit J). Again, it is to the benefit of both parties to ensure that the home is maintained such that the equity in the home is not affected by disrepair. I do not, however, have sufficient evidence to confirm that this expense is necessary and reasonable at this point in time. If the repairs to the roof are not done and will affect the ultimate value of the home, then it will serve Mr. MacKeen well to examine his position on this issue. The court, however, will not require Mr. MacKeen to pay these repair costs at this interim stage based on the evidence presented. [27] Likewise, the request for the window replacement is not ordered to be paid by Mr. MacKeen at this time. My comments in relation to the roof would be equally applicable to the replacement of the windows. It is to Mr. MacKeen’s benefit to maintain the value in the matrimonial home given his ongoing interest in the equity. There is insufficient evidence, however, to conclude that the window replacement is necessary and reasonable at this point in time. Both repair issues may be relevant to a final determination of the division of matrimonial property. [28] Taking all factors into consideration, interim spousal support payable by Mr. MacKeen to Ms. Brown shall be set at $4,500 per month, commencing November 1, 2015, and continuing on the first of each month thereafter until further agreement of the parties or order of the court. I have set the commencement date for the month following the property tax liability due in the amount of $2,497.88 (as of October 31, 2015). Commencing Nov. 1, 2015, Ms. Brown shall responsible for the payment of all normal operating expenses associated with the matrimonial home (excluding unforeseen costs related to damage and/or repair). Any necessary repair/renovation costs will be included in the analysis on the final disposition of the matrimonial home at the time of the divorce. [29] Spousal support for the period August 1, 2015 up to October 1, 2015 is set in the amount of $3,000 per month for each of those months. This recognizes that the property tax liability to be paid (of $2,497.88) results in an additional financial burden to Mr. MacKeen of approximately $800 per month on a net of tax basis for those three months. Chiasson, J.