O'Brien v. O'Brien

O'Brien v. O'Brien

The court held that the severance payment must be parsed: the contractual entitlement under the collective agreement (39 weeks) was earned during the marriage and is a matrimonial asset subject to equal division (with a tax withholding adjustment), while the additional incremental/discretionary weeks negotiated and paid by the government beyond the collective agreement are not matrimonial assets and remain the respondent's; pension credits are divided at source; household furnishings valued at $3,000 are split with reimbursement of $1,500 to the respondent; vehicle sale did not give rise to a claim against the petitioner; spousal support of $400/month for 16 months was awarded funded from...

Citation
2002 NSSC 194
Parties
Petitioner: Sara Ursula O'Brien; Respondent: Michael Alexander O'Brien
Court
Supreme Court of Nova Scotia
Jurisdiction
Canada
Judgment Date
5 June 2002
Procedural Posture
Divorce / Decision (trial)
Outcome
Divorce granted; partial division of severance and pension; spousal support awarded; specified property adjustments ordered
Legal Topics
Severance Pay Characterization, Pension Division at Source, Division of Household Assets, Interplay of Collective Agreements and Matrimonial Property, Income Tax Withholding on Severance
Source Language
English
Family Law Matrimonial Property Spousal Support Employment/collective Agreements Taxation Severance Pay Characterization Pension Division at Source Division of Household Assets +2 more

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Parties

Sara Ursula O'Brien

Petitioner

Michael Alexander O'Brien

Respondent

Procedural Posture

Divorce / Decision (trial)

Legal Issues

  1. 1 Whether the severance payment from employer/Government is a matrimonial asset divisible between spouses
  2. 2 Whether incremental or discretionary portions of severance are excluded from matrimonial property
  3. 3 Division of pension credits and method of division

Ratio Decidendi

The court held that the severance payment must be parsed: the contractual entitlement under the collective agreement (39 weeks) was earned during the marriage and is a matrimonial asset subject to equal division (with a tax withholding adjustment), while the additional incremental/discretionary weeks negotiated and paid by the government beyond the collective agreement are not matrimonial assets and remain the respondent's; pension credits are divided at source; household furnishings valued at $3,000 are split with reimbursement of $1,500 to the respondent; vehicle sale did not give rise to a claim against the petitioner; spousal support of $400/month for 16 months was awarded funded from...

Court Disposition

Divorce granted; partial division of severance and pension; spousal support awarded; specified property adjustments ordered

Orders

  • Divorce granted pursuant to s.8(2)(a) of the Divorce Act
  • Pension credits from Cape Breton Development Corporation of $21,670.98 to be divided at source; one half ($10,835.49) allocated/transferred to Mrs. O'Brien