This Month In Family Law – November

BM v AC,  2025 NSSC 348

Judge: The Honourable Justice Pamela Marche
Subject: Whether the views and preferences of L (age 12) should be presented to the Court through a Voice of the Child (VOC) report.

Summary: BM and AC are engaged in a high-conflict parenting dispute. BM seeks to vary a 2022 Consent Order that was issued in March 2022 following the termination of a child protection proceeding. BM wants to have L placed in his primary care and filed a motion for a VOC report in early 2024, citing L's age.

BM argued that at age 12 there is a presumption for a VOC report, referencing statutory rights under the Children and Family Services Act and section 18(6)(f) of the Parenting and Support Act. He claimed L is mature, aware, and capable of expressing views and disputed the autism diagnosis as unreliable or very mild. AC opposed, citing L's Autism Spectrum Disorder (ASD), learning disabilities, and the risk of emotional harm from being drawn into parental conflict, and argued there is no presumption based on age and that L is easily influenced and reactive given the high level of parental conflict.

The Court reviewed the legal framework under section 19 of the Parenting and Support Act noting that VOC reports are not automatic and must be assessed case-by-case regarding the best interests of the child. Justice Marche found L has ASD (Level 1 severity) and learning disabilities, struggles with expressive communication and insight, and is highly susceptible to influence. Expert evidence indicated the VOC process would likely cause emotional distress and any report's reliability would be questionable even with specialized expertise. High parental conflict further weighed against ordering a VOC report.

The Court concluded there is no presumption at age 12 and BM did not meet the burden of proof. It is not in L's best interests to prepare a VOC report. The motion was dismissed, with costs deferred to the overall parenting determination.

Diallo v. Bah, 2025 ONSC 2106

Judge: Justices Sachs, Reid, and Nakatsuru
Subject: Whether the mother should be permitted to relocate with the children from Toronto to Winnipeg on an interim (temporary) basis before trial.

Summary: The parties, originally from Guinea, married in 2017 and separated in 2023, with two children aged eight and three. Family violence was present in the marriage. The mother, primary caregiver, commenced an application claiming primary residence of the children and final decision-making authority. She also sought permission to relocate to Winnipeg for a higher-paying job offering financial stability, family support, and access to French-language speech therapy for the younger child. The father opposed, citing harm to his relationship with the children.

After an expanded hearing with oral evidence and cross-examination, the motion judge allowed the temporary relocation, finding a material change in circumstances under Gordon v. Goertz, compelling reasons for the move, and that relocation was in the children's best interests under the Divorce Act. The mother agreed to cover the father's travel and accommodations.

The father appealed, alleging errors in applying the material-change test, misapplication of the “genuine issue for trial” concept, inadequate consideration of the impact on his relationship with the children, and procedural unfairness. The Divisional Court dismissed the appeal, reaffirming that the best interests of the children remain the sole governing consideration under the Divorce Act. It held that previous case law which set out factors to consider when determining relocation had been overtaken by the 2021 Divorce Act amendments and the Supreme Court's decision in Barendregt v. Grebliunas (2022).

The Court observed that interim relocation orders often have an air of finality and stressed the need for appropriate procedural safeguards, including trials or summary judgment where material facts are in dispute.

Ultimately, the stay was lifted, and the relocation proceeded, with final determination deferred to an expedited trial. This decision signals a shift toward a best-interests analysis for interim relocation but may create ambiguity for future cases.

McGean v. Andrews, 2025 NSSC 344

Judge: Justice Shannon B. Mason
Subject: Parenting arrangements, supervised access, family violence, and child support for 18-month-old.

Summary: The parties, Mitchell McGean and Brianna Andrews, were involved in a highly conflictual relationship beginning in 2022 and separated in September 2024 following an alleged violent incident.

Ms. Andrews alleged that Mr. McGean was physically and emotionally abusive throughout the relationship and that he had, on one occasion, physically abused Lavinia, their 18-month-old child. Mr. McGean denied the allegations, asserting that Ms. Andrews was violent toward him and had fabricated the claims to alienate him. Both parties sought primary care, with Ms. Andrews requesting supervised parenting time.

The Court found, on a balance of probabilities, that Mr. McGean physically abused Ms. Andrews on multiple occasions and emotionally abused her through coercive and controlling behaviour. This finding was supported by photographs, hospital records, and corroborating evidence from Ms. Andrews' mother. The allegation of harm to Lavinia was not proven on a balance of probabilities.

The Court rejected Mr. McGean's evidence, emphasizing that myths and stereotypes regarding false allegations must be avoided. Ms. Andrews was granted primary care and sole decision-making authority.

Mr. McGean's parenting time remains supervised through the Supervised Access and Exchange Program until he completes programming related to family violence, healthy relationships, and anger management. Communication between the parties is limited to written form, and neither party may make disparaging remarks in Lavinia's presence. Due to the high level of conflict, Mr. McGean's mother is prohibited from attending parenting time.

The Court emphasized that Lavinia's safety and stability were paramount, requiring supervised access and therapeutic intervention before any expansion of parenting time.

Charapovich v. Charapovich,  2025 NSSC 350

Judge: Honourable Justice Samuel Moreau
Subject: Parenting arrangements (primary care, parenting time, parental alienation, voice of the child report); Decision making authority; Imputation of Income; Prospective child support; Division of matrimonial property; Spousal support; Credibility

Summary: The parties are originally from Belarus and moved to Canada in 2017. They have two children and separated in 2019. Ms. Charapovich filed a petition for divorce in July of 2021.

Mr. Charapovich challenged the petition on the basis that the parties were already divorced in Belarus. In 2022 Justice Jollimore found that for public policy reasons the Belarussian divorce should not be recognized and ultimately granted Ms. Charapovich request and issued an interim parenting order.

Justice Moreau found that the children's best interests are served by remaining in Ms. Charapovich's primary care, accepting her evidence and rejecting Mr. Charapovich's evidence as unreliable, particularly regarding income, travel, and allegations of alienation. The Court attributed the high conflict to the father's absences and conduct, which eroded the children's trust, and found no alienating behaviour by Ms. Charapovich.

Given the high conflict and the father's inconsistent involvement, Ms. Charapovich was granted sole decision-making authority, and the father's parenting time was made conditional on completing counselling to repair his relationship with the children.

In light of inconsistencies between Mr. Charapovich's declared income and lifestyle, and evidence showing large sums of money moving into and out of his bank accounts, including accounts held in foreign countries, the Court imputed his annual income at $125,000. The Court declined to order spousal support, finding Ms. Charapovich economically self-sufficient, and left the division of matrimonial property unchanged due to insufficient evidence to warrant an adjustment.

Low v. Smith,  2025 NSSC 335

Judge: Honourable Justice Cindy G. Cormier
Subject: Parenting time; Parenting arrangements; Compliance with Court-Ordered Conditions for Parenting Expansion; Breach of Court Orders and Risk of Abduction; Jurisdiction

Summary: The Court previously set specific conditions that Mr. Smith was required to meet before any increase in parenting time could occur, such as completing counselling, demonstrating meaningful insight into his behaviour, and engaging in co-parenting work. After reviewing the evidence, the Court found that Mr. Smith did not satisfy these conditions and that the therapeutic documentation he submitted did not address the concerns identified in the earlier decision.

The Court noted repeated instances of harassment, denigration, and behaviour that undermined the mother's authority and stability in the children's lives. The most serious concern arose when Mr. Smith left Nova Scotia with the children during his 2025 parenting time, contrary to a clear court order, and failed to maintain their required contact with the mother. This conduct reinforced the Court's previous findings that Mr. Smith was unwilling to comply with orders and posed a risk of further unauthorized travel.

Based on the evidence, the Court found that Mr. Smith had not made progress toward safe and constructive parenting and that his behaviour continued to negatively affect the children and the mother. His requests for primary care and changes to child support were either not properly before the Court or unsupported by adequate disclosure. The Court's analysis emphasized the best interests of the children, their need for emotional security, and the importance of ensuring compliance with court orders.

Watkins v. Collins,  2025 NSSC 363

Judge: Honourable Justice Terrance G. Sheppard
Subject: Retroactive Child Support, Prospective Child Support

Summary: The parties have one child who was born in 2009. The previous child support order of August 2016 required Mr. Watkins to pay based on an income of $39,000 and to provide annual financial disclosure, which he failed to do. When Mr. Watkins applied to reduce support in 2024 due to leaving the fishing industry and claiming decreased income, Ms. Collins sought a full recalculation back to 2016 using his actual income, which was significantly higher than the amount used in the original order.

Justice Sheppard held that the court cannot go behind the last court order, so the earliest possible date for recalculation was September 2016. Additionally, Justice Sheppard declined Mr. Watkins request to recalculate from 2022 because it would be unfair to ignore his much higher earnings from earlier years. For 2016–2022, support was calculated using Mr. Watkins actual income, which was consistently higher than the amount used in 2016. For 2023 and 2024, the Court found that although Mr. Watkins could not reasonably return to the fishing industry, he was capable of working full-time. Furthermore, the Court imputed minimum-wage income for those years due to underemployment, unreported cash work, and quitting a job to avoid wage garnishment.

After recalculating all years, the Court found $12,784 in retroactive child support arrears. Claims regarding undue hardship, the Disability Tax Credit seizure, and a change of name were dismissed because neither party properly perfected those applications.

MacQueen v MacQueen, 2025 NSSC 366

Judge: The Honourable Justice Daniel W. Ingersoll
Subject: Parenting Arrangements Given Overseas Employment; Proactive and Retroactive Child Support; Income Determination with respect to Corporate Profits

Summary: The parties separated in 2018 after an 18-year marriage, during which time they had three children. The central issues were the historic and ongoing parenting arrangements, retroactive and prospective child support, and a high level of conflict between the parties. Much of the conflict stemmed from Mr. MacQueen's rotational work in Africa and his extended absences from Nova Scotia.

Justice Ingersoll found that, contrary to Mr. MacQueen's position, the children had been primarily in Ms. MacQueen's care in most years since separation. The Court relied heavily on credibility findings, including inconsistencies in Mr. MacQueen's evidence, and accepted Ms. MacQueen's detailed parenting-time calendars for later years. Given Mr. MacQueen's ongoing pattern of overseas employment and likely future rotations, the Court held it was in the children's best interests for Ms. MacQueen to continue as the primary care parent moving forward.

The Court examined Mr. MacQueen's pre-tax corporate profits and attributed a significant portion of those profits to him under s. 18 of the Federal Child Support Guidelines to determine his income, which was primarily generated through his closely held corporation For several years, particularly in 2018 and 2019, the Court found Mr. MacQueen's Line 15000 income did not accurately reflect the income available to him for support. As a result, the Court imputed higher income based on retained earnings, corporate profitability, and lack of legitimate business reasons for keeping large sums inside the corporation.

Applying the Supreme Court of Canada's principles in DBS v. SRG, 2006 SCC 37 the court also granted retroactive child support back to October 2018. It held that Mr. MacQueen had failed to pay support during periods when he indisputably owed it, and that retroactive support would not create hardship. After calculating obligations year-by-year, the Court ordered him to pay $169,668.47 in historic child support.

Going forward, the court ordered Mr. MacQueen to pay $3,515 per month in child support based on a 2025 imputed income of $225,000. The parties will continue to share major decision-making responsibility, but Ms. MacQueen will remain the primary care parent given the realities of Mr. MacQueen's work-related absences.

Crosby v Crosby (Westhaver), 2025 NSSC 372

Judge: The Honourable Justice Aleta Cromwell
Subject: Variation of Spousal Support; Material Change in Circumstances; Imputing Income Regarding Intentional Unemployment

Summary: Mr. Crosby applied to vary a 2020 spousal support order following the loss of his high-earning position with a U.S. software company. Under the original Consent Corollary Relief Order, he was required to pay Ms. Westhaver $8,000 per month (indexed by 2% annually), based on his income of roughly $560,999 CAD and her income of about $31,000. After his employment was terminated in March 2023, Mr. Crosby sought to reduce support retroactive to April 2023. Ms. Westhaver opposed the reduction, arguing he had not demonstrated a material change and was intentionally unemployed.

Justice Cromwell found that Mr. Crosby's job loss was indeed a material change in circumstances, but that Mr. Crosby had become intentionally unemployed. The Court found his job search efforts were minimal, he failed to meaningfully use outplacement assistance, and he devoted most of his time to building an unprofitable photography venture he had planned to pursue upon retirement. Evidence also showed extensive travel and only sporadic job applications. Although he argued his lack of a university degree had restricted him, the Court rejected this, noting his long history of senior roles without a degree and job postings showing that equivalent experience was acceptable.

The Court held that Mr. Crosby continued to have significant ability to pay, based on his assets, severance, investment growth, and significant earning capacity in the U.S. tech sector. Ms. Westhaver, by contrast, remained permanently disabled with substantial medical complications and was unable to work. She remained in substantial financial need and was dependent on spousal support.

Given these findings, the Court imputed income of $400,000 to Mr. Crosby with Ms. Westhaver's income of $41,852. The Court fixed ongoing spousal support at $7,500 per month effective October 1, 2023, the date his severance ended. The court also determined there were both underpayments (due to his failure to correctly apply the 2% annual increases under the CRO) and overpayments (following October 2023, when his obligation should have decreased). The parties were directed to calculate the net amount owing.

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