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MARRIAGE - Common law marriage - Property and benefits rights

Tuesday, January 07, 2020 @ 6:28 AM  


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Appeal by the father from an order determining parenting, support and property issues between the parties. The parties moved in together in 2010. Their daughter was born in 2009. In 2011, they purchased land as joint tenants. The mother then quit claimed her interest in the land to the father to enable him to obtain a mortgage to build a duplex on the land. In September 2011, when the duplex was complete, the parties moved into one unit of the duplex and rented the other unit. The mother left the unit with the child in December 2011 when the relationship ended. Pursuant to a 2015 consent order, the father had access every second weekend, one weekday and holiday time. At trial, the father sought shared parenting on an alternate week basis. The trial judge decided that maintaining the status quo with additional parenting time while the mother was working was in the daughter’s best interests. The father continued to live in one unit of the duplex with his current common-law spouse and collected the rent from the second unit. The judge found the rental income was $900, not $700 per month as alleged by the father. She added $42,000 to the father’s 2017 income with respect to his construction company, being the amount by which the father’s company’s wages and salaries increased from 2016 to 2017, at a time when the father testified business was slow. In determining the mother’s interest in the duplex, the judge found there was a joint family venture. The father argued the judge erred by allocating him too little parenting time with his daughter, imputing income to him, in quantifying the mother’s share in the duplex at $24,117 and finding the mother was entitled to $6,000 retroactive spousal support.

HELD: Appeal dismissed. The trial judgment was corrected to ensure it corresponded with Schedule A to her reasons. The trial judge understood and considered the parenting evidence. The judge was not convinced an equal sharing of parenting time would work, given the continuing tension in the parents’ relationship and the father’s continuing struggles with anger. The parenting time she allocated to the father was not clearly wrong. With respect to the father’s income, the judge’s findings of fact, and the inferences she drew from those facts, did not disclose a palpable and overriding error. The judge did explain why she added $42,000 to the father’s 2017 income. It was not an arbitrary amount. While the amount awarded to the mother for her interest in the duplex was substantial, it was not clearly wrong. Had the land remained registered in the names of both parties as joint tenants, there would be a presumption that they each held a half interest in it. The mother made some contribution to the construction itself by selecting the finishes and provided child care and household management. The father benefitted from living in one unit of the duplex rent free for over six years and collecting the rent from the second unit. In ordering retroactive spousal support and setting the amount at $6,000, the judge made no error of law, did not misapprehend the evidence and her decision was not clearly wrong and was entitled to considerable deference. While the parties’ relationship was short, the judge found it was traditional, with the mother the primary caregiver and the father the main income earner. For the years immediately following separation, the mother had a need for support and the father had the ability to pay. The judge considered the father’s payment of the car loan and child support, together with the parties’ current circumstances, in setting the amount and its terms of payment.

G.L.M. v. T.D., [2019] N.S.J. No. 476, Nova Scotia Court of Appeal, M.J. Wood C.J.N.S., M.J. Hamilton and P. Bryson JJ.A., November 13, 2019. Digest No. TLD-January62020004