Canada: This Month In Nova Scotia Family Law – March 2022

Ward v Murphy, 2022 NSCA 20
Justices Carole A. Beaton, Elizabeth Van den Eynden and J. Edward Scanlan

Issues: Application to Vary | Child Support Guidelines | Child Support | Parenting and Support Act

Mr. Ward applied to reduce his child support payment. The trial judge applied ss. 18 and 19 of the Provincial Child Support Guidelines to reduce Mr. Ward's annual income, adjusted arrears accordingly and set his obligation on a prospective basis. The trial judge also ordered that Mr. Ward be required to seek leave before filing any further variations of child support. Costs were awarded against Mr. Ward.

Mr. Ward appealed the judge's decision. He sought to introduce fresh evidence and argued the trial judge misapprehended evidence, made factual or mathematical errors, made errors of law, ordered outside of her jurisdiction and demonstrated bias. Further, the Court of Appeal considered whether leave to appeal costs should be granted and whether the hearing judge erred in assessing costs.

The Court of Appeal found that the materials sought to be addressed as fresh evidence did not meet the threshold required to admit new evidence concerning due diligence, relevancy, and potential to impact results. The Court of Appeal found that there was no misapprehension of evidence, nor factual or mathematical errors of significance. Further, the Court of Appeal found the hearing judge did not exceed her jurisdiction when ordering and there was no misapprehension of bias.

The Court of Appeal did find that the trial judge made an error of law in her application of ss.18 and 19 of the Provincial Child Support Guidelines. While there is nothing prohibiting the use of both s. 18 and s. 19, they cannot be used at the same time. The judge properly began the s. 18 analysis by considering the 2019 pre-tax corporate income sitting inside the company. The judge then concluded certain expenses paid by the company were incurred for the personal benefit of Mr. Ward. At this point, the judge was required, by the language of s 18, to add those monies back to the pre-tax corporate income. The judge failed to do so and consequently failed to complete the exercise under s.18 which resulted in her moving wholesale to imputing income, the equivalent of an exercise under s.19. The judge's failure to properly apply s.18 of the Guidelines was an error in law. Therefore, the s.18 analysis must be remitted for fresh consideration.

Leave to appeal costs were granted. The hearing judge did not err in assessing costs. However, the costs award is set aside because the s.18 analysis is remitted to the court. Costs can be determined at that time.

Daye v Savoie, 2022 NSCA 27
Justice Anne S. Derrick

Issues: Notice of Appeal | Consent Order

The parties had been involved in divorce proceedings since 2019. A conference on December 7^th, 2020, led to a Consent Order dated January 22^nd, 2021. Ms. Daye sought to appeal the January 22^nd Consent Order. However, she was long past the deadline for doing so and sought an extension to file her Notice of Appeal.

According to section 39 of the Judicature Act, RSNS 1989 c 240, no order of the Supreme Court made with the consent of the parties is subject to appeal, except by leave of the Court of Appeal. Ms. Daye failed to file a motion for leave to appeal the Consent Order. Nevertheless, Mr. Savoie did not object to waiving this requirement so that the motion to extend the deadline to file a Notice of Appeal could be heard.

Ultimately, the Court dismissed Ms. Daye's motion finding that her proposed appeal of the Order was without merit. There was incontrovertible evidence she agreed to the conditions of the Order and there was no arguable issue that would justify either an extension of time to file a Notice of Appeal or granting leave to appeal.

Annand v Annand, 2022 NSSC 70
Justice Theresa Forgeron

Issues: Care and Decision Making | Division of Assets | Child Support | Spousal Support

The parties are separated spouses who disagreed about the best interests of their children, and various financial issues. Ms. Annand sought primary care and final decision making in the event of an impasse. Mr. Annand sought a shared parenting order should his employment circumstances change. He also wanted to be involved with all decisions impacting the children. The parties disagreed about what should be divided as matrimonial assets and debts. The parties also disagreed about child support amounts and spousal support.

The Court determined that Mr. Annand is not available to be a primary care provider because his employment required him to travel 50% of the time. Further, Ms. Annand has been and continued to be the children's primary caregiver, Mr. Annand's employment required him to be at sea where he cannot be reached, and the children are particularly connected to Ms. Annand. The children have done exceptionally well under their mother's primary care. The Court concluded that it was in the children's best interests to continue to be in the primary care of Ms. Annand and for Ms. Annand to have final decision-making authority in the event of an impasse.

With respect to division of matrimonial property, Mr. Annand sought to exempt three assets from division: a shareholder loan, the company's bank balance, and a life insurance policy.

The Court found that the shareholder loan owed to Mr. Annand by his professional corporation was not a matrimonial asset because at the time of separation the company's only discernable asset was the small balance in its bank account. The company stopped operating and had no source of income. As such, the company's bank balance was included as a matrimonial asset while the shareholder loan was not.

The Court classified the life insurance policy as matrimonial property because despite Mr. Annand's parents owning the policy at its inception, it was transferred to Ms. Annand during their marriage. The policy is presumed to be a matrimonial asset. The Court accepted Ms. Annand's evidence that the parties discussed the policy would be part of the family's retirement fund.

The parties did not agree on the incomes each earns or can earn. The Court did not impute incomes for either party. The Court found Mr. Annand's 2021 income to be $162,768 and Ms. Annand's 2021 income to be $22,000. However, commencing in 2022, Ms. Annand will earn $45,000 from her employment. Mr. Annand must pay monthly child support of $2,141 for the table amount and s.7 expenses of $278. Mr. Annand must pay Ms. Annand $1,608 in monthly spousal support.

Delaney v Best, 2022 NSSC 76
Justice Cindy G. Cormier

Issues: Retroactive Child Support | Interjurisdictional Child Support

The Applicant lived in Nova Scotia and the Respondent lived in Alberta. In 2019, the Applicant applied to vary child support pursuant to the Parenting and Support Act. The Applicant brought this application after several other applications and discontinuances under both the Parenting and Support Act and the Interjurisdictional Support Order Act. These other prior applications delayed the proceedings.

The Court found that a child support award should be payable from the date the recipient gave effective notice to the payor. In this case, the Respondent was served on January 29, 2020. As such, the Respondent, as the payor, was ordered to pay the table amount of child support from February 1, 2020, forward.

In denying the Applicant's application for retroactive child support to 2018, in part because of the Applicant's delay, the Court expanded on the issue of jurisdiction. The Court recognized that the Applicant's delay was primarily due to questions about jurisdiction. Indeed, there was clear confusion as to whether the application should be made pursuant to the Interjurisdictional Support Order Act or the Parenting and Support Act. To clarify the confusion, the Court found that the existence of the Interjurisdictional Support Order Act does not, in and of itself, preclude a parent from pursuing remedies against an out-of-province parent under the Nova Scotia Parenting and Support Act.

Smith v Harnish, 2022 NSSC 19
Associate Chief Justice Lawrence I. O'Neill

Issues: Primary Care | Relocation

The parties lived together when their child was born in 2010, and for a short time thereafter before separating. The child was in the primary care of the father in the Halifax Regional Municipality under the terms of a Court Order. The mother sought primary care and for the child to be relocated to Shubenacadie East where she lived.

The Court found that there was no change of circumstances to alter the most recent Court Order that provided the father with primary care. The mother argued the change of circumstances was that the father did not meet the child's basic or educational needs. The Court found that the father and his extended family have continued to provide a consistent living arrangement for the child that was available to the child at the last Court Order. The Court did not find that the allegations of inattention to the child on the part of the father was supported by the evidence. The Court accepted the father's evidence of why the child was missing school and that the situation has been addressed successfully. Finally, the Court found that the mother's circumstances have not changed since the last Court Order: she lives with the maternal grandmother and the child's care falls to the maternal grandmother during the mother's parenting time. On this basis, there was no material change of circumstances present.

The court found that even if there were a change of circumstances, it was in the best interests of the child not to change the primary care from the father to the mother or for the child to relocate to Shubenacadie East with the mother.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.