This Month In Nova Scotia Family Law – December 2023 - Family Law

Strait-Hinnerichsen v Strait-Hinnerichsen, 2023 NSSC 340.

Judge: Honourable Justice Ingersoll
Subject: Division of Assets, Unequal Division, Parenting, Child Support, and Special and Extraordinary expenses.

Summary: The parties separated after almost 20 years of marriage. They have agreed to a shared parenting arrangement. Each issue in this decision will be discussed separately below.

The first issue concerned the division of matrimonial assets. The parties agreed to the identity, characterization, and value of most assets and debts. However, the parties are not in agreement with respect to an investment account and an RRSP. Mr. S inherited both assets and they are in his name exclusively. However, Ms. S says the investment account was used to fund the family's expenses through their marriage, and the RRSP was intended to fund the parties' retirement. Mr. S inherited the investment account from his mother. The evidence demonstrates that funds were withdrawn on an ongoing basis to fund family expenses such as the purchase of their family home and several other homes. Mr. S withdrew $4,476,151.97 from the account for the benefit of the family. Mr. S was the only person with authority over the investment account and did not use it for any other purpose. As such, Justice Ingersoll decided that the remaining balance of the investment account is not matrimonial property. Mr. S has no claim for the amounts withdrawn and spent, as they are now matrimonial property. However, the remaining balance is exempt.

The RRSP account was created with RRSP funds held by Mr. S's mother. The fund was valued at $454,476 in 1994, and has grown to $4,494,191 as of the end of 2021. Mr. S was also the sole authority holder of this RRSP. He kept this account very separate from the family pot. Further, no deposits from his income or joint accounts were made. The only deposits came directly from the other investment account discussed above. Justice Ingersoll held that the RRSP was entirely exempt and would not be subject to division as it was an inheritance.

The second issue is the division of assets. To determine the equalization payment, the value of Ms. S's TFSA and claim for repayment of ski equipment must be determined. The value of the TFSA at separation was $81,544.58. The TFSA decreased in 2022 after separation to $69,698.19. Justice Ingersoll decided the use the former value as that was closer to separation. Ms. S claims that Mr. S disposed of her ski equipment and seeks $2,000 as reimbursement. No evidence was provided to substantiate the claim. Mr. S noted the Skis were purchased in 2002 and were obsolete, except for the helmet which was more recently purchased. Justice Ingersoll rejected the claim for reimbursement as there was insufficient evidence. The remainder of matrimonial property was divided, resulting in an equalization payment from Mr. S to Ms. S in the amount of $433,301.68.

The third issue is whether Ms. S is entitled to an unequal division of matrimonial assets or to a division of non-matrimonial assets. After calculating the property division and equalization payment, Justice Ingersoll evaluated whether the proposed division was unfair or unconscionable. The evidence tendered did not support the enumerated factors in section 13 of the MPA. Justice Ingersoll noted that the wealth disparity between the parties is purely a result of the inherited assets. Neither party was able to gain a greater amount of wealth at the demise of the other. Ms. S was able to build her savings and wealth through contributions from Mr. S, and the proposed property division does not place her in an unfair or unconscionable position.

The fourth issue is child support in the context of shared parenting. The child is in grade 12 and will spend a week with each parent on a rotating basis. The other child is much older and attends university out of town. She visits her parents on breaks and worked in Toronto in the summer. Both parties submitted their income evidence without issue. However, Mr. S has been habitually withdrawing from the investment account. As such, the Court imputed income to him for child support purposes. The imputed income was the amount withdrawn in the respective year and grossed up to reflect income tax. Justice Ingersoll then evaluated the fairness of the set-off arrangement by using the Contino analysis evaluating duplicate expenses, the difference in quality of life between households, and the parents' disposable incomes. Ultimately, for 2021 the set-off amount of child support for two children was $2,244. The same approach was utilized for 2022, however, the table amounts were reduced to one child partway through the year as the older child reached the age of majority and had moved away for university. Mr. S was also deemed to be underemployed for calculating his support obligations on a prospective basis. He has only applied to jobs that are far above his skillset. Therefore, $29,952 of annual income was imputed for the determination of child support based on a minimum wage salary. Prospective child support was awarded by a set-off analysis ordering Mr. S to pay $1,759.50 per month for the younger child.

The fifth issue is spousal support. Although Mr. S has not earned much income himself, he has received a great deal of wealth from his inheritances. As such, the lifestyle the couple lived was far greater than Ms. S could have enjoyed with her own income. Her income never amounted for more than 10% of the funds annually available to the family. Justice Ingersoll focused on the disposable income remaining after the award of child support. The monthly spousal award based on the imputed income is $3,809 per month.

SK v EC, 2023 NSSC 410.

Judge: Honourable Justice Pamela Marche
Subject: Parenting, Child Support and Division of Assets

Summary: SK and EC are involved in a contested parenting dispute involving their child, N, who was born in June 2012. Both parties submitted hearsay evidence in their affidavits attributed to N that purported to demonstrate her views and preferences. SK motioned to have a Voice of the Child Report ("VOC") prepared. EC objected. Justice Marche sought to resolve this issue.

SK believes N's views and preferences can be best communicated to the Court through a VOC. N is 11.5 years' old, bright, mature, and able to express her views and preferences. N has a right to have her views and preferences considered by the Court and a VOC is the best way to do so. EC put the issue of N's views before the Court when filing hearsay evidence. The VOC would not cause delay. Moreover, a VOC will facilitate settlement and reduce conflict. N's views would be more reliable if communicated through a third party. Justice Marche agreed with SK that a VOC is both necessary and appropriate in the circumstances given the reasons provided above. It is in N's best interests that a VOC be prepared. It is necessary and appropriate that N's views and preferences be considered by the Court given her age and stage of development.

J.R. v M.R., 2023 NSSC 359.

Judge: Honourable Justice Lorne MacDowell
Subject: Divorce, Parenting Plan, Child Support, Division of Assets

Summary: The parties were married on April 29, 2011, and separated on June 25, 2021. There is one child of the marriage, CSR. She is eleven years old.

CSR has been in the primary care of the father since May 2022. Child protection services became involved with the family in May 2022 because of concerns regarding the mother. As of October 2022, the mother has been permitted parenting time. Child protection services is no longer involved with the family. The father remains the primary caregiver. He adjusted his work schedule to be there for the child and when he was away his mother cared for the child. The child enjoys sporadic time with her mother.

The Court found that is in the best interest of the child for the father to be granted primary care and sole decision-making authority and parenting time with her mother schedule on Saturdays. The parties were free to agree on other parenting time arrangements, however, such communication must be between the mother and father directly.

The father requested child support. The mother did not provide the required financial documents to the Court but stated that she earned $21,000 per year. The father requested that the Court impute income for the mother. The evidence established that the mother was working and has worked in various capacities. The Court state that given her deliberate failure to file any financial information, imputation of income was justified. The Court imputed income in the amount of $28,288, based on a minimum wage salary in Nova Scotia. The mother was ordered to pay $239 per month in support.

The father sought occupation rent. The Court awarded occupation rent from the mother to the father. The mother occupied the matrimonial home, the child was not in her primary care, the mother was living rent free, and the father was paying the mortgage, and the father was caring for the child and paying $500 a month in rent. The Court determined the amount of $500.00 per month occupation rent to be reasonable in these circumstances. The mother must pay this amount to the father, which amount is calculated from May 2022 to and inclusive of the date of the mother vacates the matrimonial home.

The father sought exclusive possession of the matrimonial home. The parties jointly own the residence. The father only wanted possession of the home to prepare it for sale – not in accordance with the best interest of the child or for shelter. The Court explained that it does not have the authority to order exclusive possession of the home as sought. Rather, it has the authority to order the sale of the home. The Court ordered the mother to vacate the home by the end of January 2024 and the home be listed for sale.

Archibald v Rountree, 2023 NSSC 323.

Judge: Honourable Justice Cindy G. Cormier
Subject: International Parenting Time and Property

Summary: The parties were common law partners and have two children. Both children have some specific care needs. M has diabetes and cochlear implants. G has asthma and/or lung issues. Prior to separation, the family lived in Ontario and the father was heavily involved in the care of the children. Upon separation, the mother moved with the children to Nova Scotia to live with her parents.

The father was illegally residing in Canada. He was a United States citizen who fled the United States to avoid criminal charges for property theft. The Court acknowledged that he lied about his identity and his past life but also recognized that he was a loving and caring father. The father was ultimately deported back to the United States. He was now seeking in-person parenting time.

The mother accused the father of emotional and physical abuse. The Court found that the father did emotionally abuse the mother, but that he was remorseful. The mother also stated that G disclosed the father sexually touched her. The Minister of Community Services investigated but found there was no indication sexual touching took place. Throughout the separation, the mother did not openly facilitate virtual, or in-person contact between the children and the father. There was hostility between the parties due to how the parties communicated throughout the separation.

Based on the recommendation of experts, the Court found that it is in the children's best interest to gradually reintroduce in-person visits with the father. The visits were to take place in the United States and the mother could chose the supervisor. The Court also ordered ongoing specific virtual parenting time between the children and the father three times a week.

The parties also disagreed about what the children's last names should be. The main issue was that the father, while living illegally in Canada after fleeing the United States, used various different names. The court ordered that the children's last name be a combination of the father's last name (which the court was satisfied was accurate) and the mother's last name.

The mother claimed child support. The Court looked to the father's yearly income for the past three years but found the father failed to properly disclose his income or he was underemployed. The Court imputed income in the amount of $50,000 US. The Court ordered the father pay the table amount of $942.53 per month on an ongoing basis.

The parties did not agree on the division of property. The father sought a 50% interest in home the parties shared throughout their relationship. As the parties were not married, the father relied on equitable principles. The Court found that the parties were involved in a joint venture. The Court awarded the father half of the equity in the home the parties shared. The Court went on to divide the household furniture, bedding, the father's personal items, and the parties' debts. The Court equally divided the shared assets.

JH v RH, 2023 NSSC 380.

Judge: Honourable Justice Theresa M Forgeron
Subject: Costs

Summary: JH sought costs in the amount of $8,400, plus disbursements of $535.82, for a total costs award of $8,935.82. RH states that costs should be limited to $4,000. The parties are separated spouses who have a teenage daughter. In the proceedings, JH was granted primary care and decision-making, while RH was granted reasonable parenting time. RH was ordered to pay $1,000 in monthly spousal support, and $1,161 in monthly child support, together with 82% of the child's uninsured medical expenses, including physiotherapy, orthodontic and counselling expenses. Justice Forgeron invited costs submissions according to Tariff C.

JH claimed that Tariff C would not do justice as to her costs and sought for a lump sum award. JH stated that $8,400 represents 70% of her legal fees. RH relied on Tariff C to limit costs at $4,000. Justice Forgeron ultimately ordered costs in the amount of $5,000 due to RH's failure to disclose information during the proceedings, and added disbursements of $535.82 for a total costs award of $5,535.82.

J.R. v M.R., 2023 NSSC 392.

Judge: Honourable Justice Lester Jesudason
Subject: Parenting time

Summary: The parties have two children. The daughter is old enough to make her own decisions regarding parenting time. This decision focuses on the younger son. The father requested a variation to the mother's parenting time with the son requiring all parenting time be supervised. The mother sought unsupervised parenting time.

The parties had previously appeared in Court and agreed to a week about parenting arrangement. However, problems soon arose. The mother had a history of alcohol abuse. The conditions on the parenting arrangement required the mother to abstain absolutely from alcohol consumption for eight hours prior to and during her access with her children. The children disclosed to the father upsetting events that occurred during the mother's parenting time. The parties agreed to the children seeing a counsellor. The counsellor identified that while the children love their mother, she is "never sober" and this makes time with her stressful.

The father attempted to hire private supervisors to supervise visits. The mother continued to arrive intoxicated to the supervised visits. The children are aware of the mother's health and alcohol habits. The mother shows little insight into the harm that her behaviour causes the children.

The Court concluded that it was in the son's best interest to have supervised parenting time with his mother. This was based on applying a holistic and child-centered lens. While the son loved his mother very much, he was aware of her behaviour and it was negatively impacted him.

XD v. SZ, 2023 NSSC 416

Judge: Honourable Justice LeeAnne MacLeod-Archer
Subject: Contempt of Court

Summary: XD filed a motion to find SZ in contempt of court orders. The parties had two young children. They signed a consent order in 2019 granting XD custody of the children and provided SZ with one day per week of parenting time. XD moved to Ontario with the children denying SZ of his parenting time. XD was found guilty of contempt and returned to Nova Scotia with the children. XD then filed a motion seeking permission to move to Ontario with the children. The motion was denied. Eventually, SZ took the children to China and would not return with them. He was compelled to return the children immediately. The Orders were issued on June 20, 2023. SZ did not return the children until September 2023. XD was meant to have the summer with the children to make up for lost parenting time. That did not happen as the children were in China. XD filed this motion for contempt on October 13, 2023.

The Court found SZ guilty of two counts on contempt of Court. The Order stated that neither party could remove the children from Nova Scotia without consent. SZ removed the children from Canada without consent. SZ refused virtual parenting time while the children were in China. The Court found that SZ deliberately refused XD virtual parenting time, violating the order.

The sentencing hearing is scheduled for January 29, 2024.

Gale v King, 2023 NSCA 87

Judge: Honourable Justice Beaton
Subject: Contempt of Court

Summary: This was an appeal of a contempt order. The parties were before the Court on November 30, 2023. Justice Gregan made an order on July 26, 2023 finding Ms. Gale guilty of multiple counts of contempt. Justice Gregan ordered Ms. Gale to pay a fine totaling the amount of child support payable by Mr. King until the children turn the age of 19. The Court found that Ms. Gale would not pay the fine and therefore ordered the fine be paid by terminating Mr. King's child support payments to Ms. Gale. The Court ordered Ms. Gale complete 350 hours of community service and suspended the sentence of imprisonment of 90 days pending a review of the status of community service work in 12 months.

The appeal is scheduled to be herd on March 19, 2024. Ms. Gale argued that a stay of the order was necessary to level the playing field between the parties in the interim. Justice Beaton recognized that there is a heavy burden on Ms. Gale to prove on a balance of probabilities that a stay is required, as it would deprive Mr. King of the impact of the order.

Justice Beaton cited Green v Green, 2022 NSCA 30 for the test on establishing a stay on a balance of probabilities. The test requires an arguable issue raised on appeal, if a stay is not granted and the appeal is successful the person will suffer irreparable harm, and one party will suffer a greater hard if the stay is not granted than the other party would suffer if the stay was granted.

Justice Beaton found the first element of test met as the parties agreed there was an arguable issue raised on appeal. Ms. Gale argued her financial situation required the stay. The Court did not find her evidence compelling. Ms. Gale identified her approximate annual salary but did not mention a monthly or annual deficit. The Court was not persuaded that the second element of the test was met. As for the third element, Justice Gregan again was not satisfied that Ms. Gale would suffer more harm if the stay was not ordered than Mr. King would suffer if the stay was ordered. There was no evidence that the teenage children would suffer if the stay was ordered.

Ms. Gale proceeded to argue that there were exceptional circumstances present in this case justifying a stay. Justice Gregan found that the circumstances of this case are not unusual or unique. The stay was not needed to respond to immediate injustice. The motion was dismissed.

McCluskey v Tobin, 2023 NSSC 404

Judge: Honourable Justice Cindy G Cormier
Subject: Relocation

Summary: The mother requested to relocate to British Colombia with the child. The father opposed the relocation.

The mother wrote the father a letter in August 2022 requesting to relocate with the child before school started. On August 11, 2022, Justice Cormier directed the mother to return the child to Nova Scotia. The mother did not return the child to Nova Scotia.

This case has been in the Court system for years and was complicated due to the nature of the parties' relationship. The child's unauthorized move to British Colombia also significantly impacted the child's relationship with her father. The Court found based on the available evidence, there is no other explanation except that the mother is most likely responsible for the child taking the position that the child no longer wishes to, and the child is no longer required to spend time with her father. There is no other plausible explanation.

The Court heard evidence from several witnesses and experts. Ultimately, Justice Cormier found that it is in the child's best interest to return to Nova Scotia and be placed in her father's primary care. The child's contact with the mother is to be supervised for at least six months subject to conditions. The Court did not accept the mother or child's evidence that the father was scary. Rather, the father was trying to comply with a Court order.

The mother failed to meet the burden of providing the proposed relocation was in the child's best interest. The presumption that a relocation is in a child's best interests is confined to a specific group of ''non-shared" cases, where there is a clear primary caregiving parent, and the other parent is not "substantially involved." This father has always been substantially involved. Even when being denied his parenting time, he made efforts to show the child (regardless of how received) that he wanted to spend time with her.

May O'Toole v Sean O'Toole, 2023 NSSC 356

Judge: Honourable Justice Daniel W. Ingersoll
Subject: Determination of Income for Child Support, Non-Taxable Benefits, Special or Extraordinary Expenses for Child Attending University

Summary: The parties separated in 2018 after a 15-year marriage. They had one 19-year-old daughter. They had previously agreed on joint decision-making responsibility, primary care and parenting time and did not seek to alter those arrangements in this action. Accordingly, the court ordered that (1) the parties would continue to have joint-decision making responsibility, while recognising that the daughter would make her own decisions given her age, (2) the mother would continue with primary care and (3) the father would have parenting time as arranged directly with the daughter.

The father had paid child support in 2021, 2022 and 2023 up until October 31, 2023. To determine the father's income for the purpose of support, the court would have started with line 150 of his income tax return then adjusted according to the Child Support Guidelines. However, the father had failed to disclose a sworn Statement of Income. The court therefore had to impute income in accordance with section 19 of the Guidelines.

The mother subpoenaed a witness from the father's employer, who confirmed the father's employment income as well as the non-taxable benefits that he received in each of these years, specifically a "Room and Board Allowance" and "Non-Tax Travel Expenses". This was sufficient to impute employment income to the father. The mother submitted that the father's support obligations should be based on his non-taxable benefits as well as his employment income. The court included the amount of compensation that exceeded the father's actual housing and travel expenses. The court also grossed up this income as it was paid to him on a tax-free basis.

The daughter had graduated high school in June of 2022 and began university in September of 2022. However, the court held that support was still payable until she turned 19 on August 1, 2023. Further, the evidence established that the daughter intended to return to university in the fall of 2023 and continue residing with her mother. None of the mother's costs associated with the daughter had changed in 2023. Consequently, the court found that the father was required to pay the table amount of child support as if the daughter were under the age of majority.

Finally, the mother sought a monthly section 7 expense contribution from the father. The court found it reasonable to require that the parties fund their daughter's first degree in proportion with their incomes, considering their daughter's capacity to earn during the summer and other sources of income. The court considered the daughter's total university costs for 2023 and deducted the portion of the university costs that were funded by the balance of her RESP and the grant portion of her student loan. It apportioned the remaining university costs between the parties in accordance with their incomes.

The court ordered that the father pay the historic child support and section 7 expenses. Going forward, the court ordered that the father pay the monthly table amount corresponding to his imputed income for 2023 as well as a monthly section 7 contribution, which would increase in 2024 given the depletion of the daughter's RESP and one-time grant.

Sheila Rhyno v Burton Rhyno, 2023 NSSC 348

Judge: Honourable Justice Daniel W. Ingersoll
Subject: Unequal Division of Matrimonial Property, Pension, Spousal Support

Summary: The parties separated after almost 48 years of marriage. During their marriage, the husband served in the military while the wife assumed the primary responsibility for raising their children and running the household. The parties had agreed to split the husband's military pension and consented to a court order in March of 2023 to list the matrimonial home for sale. However, the house had not yet been listed for sale and the husband had not yet vacated the home. They also disputed the value of the remaining assets, that is TFSAs, RRSPs, several vehicles, and musical instruments. The wife also sought damages from the husband under the Intimate Images and Cyber-protection Act for certain Facebook posts regarding the wife and the matrimonial home.

The court ordered that the parties list the matrimonial home for sale immediately. It directed that the husband make the matrimonial home available for showings and ensure that the home was maintained in a clean condition at each showing, as had been requested by the listing agent to maximise its value. If, upon vacating the home, the husband failed to clean the home to the wife's satisfaction, her lawyer would advise the husband of this and give him 48 hours to clean it. If he failed to do so, the wife could have the home cleaned professionally and the reasonable cleaning costs incurred would be deducted from the husband's share of the net sale proceeds.

The parties agreed that their TFSAs and RRSPs were matrimonial assets but did not agree on the proper valuation of these assets. The wife submitted that the parties had equalized their TFSAs at separation and included this value in her sworn Statement of Property. The husband alleged that she had withdrawn $20,000 from her TSFA prior to the date that she swore her Statement of Property. However, he did not advance any evidence in support of this. The court therefore accepted the wife's Statement of Income as the best evidence of the TSFA account value as of the date of separation. The parties agreed on the value of the RRSPs and that the RRSPs should be reduced by 30% to reflect their after-tax values.

The parties agreed that their vehicles and motorcycles were matrimonial assets and had agreed as to who would keep each vehicle. However, the parties had not tendered appraisals for the vehicles that they would each retain. The wife had tendered some documents regarding values of comparable vehicles from listings and the relevant "Blue Book". The court accepted this evidence. The court further ordered that a truck loan was matrimonial debt for the purpose of equalization.

All the musical instruments were in the husband's possession. He had failed to secure a valuation for his instruments. The court was not satisfied with the estimates of either party and ultimately chose the midway point between the husband's valuation and the wife's lowest estimate for the purpose of equalization. The court did not include any other household items in the matrimonial assets.

The court found that the parties' line of credit had no balance as of the date of the parties' separation. It attributed the debt at the time of trial to the husband and excluded it for the purpose of matrimonial asset equalization. The husband had missed payments on the line of credit. The court ordered him to advise the court as to the amount of withdrawals from the wife's account that were made to keep the line of credit current. Once confirmed, these amounts would be deducted from the husband's share of the net proceeds from the sale of the matrimonial home and added to the wife's share.

The wife sought an unequal division of matrimonial assets under section 13 of the Matrimonial Property Act without identifying a specific section 13 factor. She submitted that the lack of valuation for the musical instruments created the need for unequal division. However, the court was not satisfied that this supported the finding that an equal division would be unfair or unconscionable, as the wife had failed to meet her burden or link her position to a specific section 13 factor.

The court found that the wife had proven entitlement to indefinite spousal support on a compensatory and non-compensatory basis for the following reasons:

The parties had their first child when the wife was 15 years old, they married when she was 17. Given her young age, she did not have a work history prior to the marriage and did not work outside of the home when the children were young. She had not graduated from high school.
The husband was the primary earner, and his career took priority, causing the couple to move on different occasions.
The wife took on a few clerical jobs once the children had started school, but she eventually stopped working after being diagnosed with cancer. She had also sustained a permanent injury while working in her last job which resulted in a lifelong monthly workers' compensation award. She was unable to re-enter the workforce due to her state of health.
They were married for almost 48 years.
The husband's income in the last full year of marriage was at least four times greater than the wife's income.
After the husband stopped working, the parties continued to live well. However, after the breakdown of the marriage, the wife could not maintain the lifestyle that she had enjoyed during the marriage and her income was insufficient to support her much moderated lifestyle. Conversely, the husband's lifestyle was not greatly disadvantaged by the breakdown of the marriage.

The court ordered that the husband pay monthly spousal support going forward, as well as a lump sum amount for historic spousal support.

The court declined jurisdiction to consider the wife's claim under the Intimate Images and Cyber-protection Act because relief under the Act was not sought in the Petition and proper notice of such relief had not been provided to the husband.

Bill C-78 FOAEAA

The amendments to the Family Orders and Agreements Enforcement Assistance Act ("FOAEAA") are aimed at reducing poverty by ensuring financial information is available for the purpose of determining family support. The amendments expand the circumstances in which information held in federal databases can be searched and released and establishes safeguards to prevent abuse of these measures. The amendments also expand the group of provincial family justice organizations or services that can request that information be searched and released.

The FOAEAA sets out the procedures required to make applications under the Act, including what documents are required. The FOAEAA forms that are required to make an application for information are available on the Justice Canada website.

The FOAEAA also enables the garnishment of wages to fulfill support obligations. The FOAEAA explains how a garnishment summons should be served, the administrative procedures following services, generally how the garnishment of wages occurs. This part of the FOAEAA encourages the fulfillment of support obligations.

The FOAEAA also provides a mechanism to deny licenses. If a debtor is in persistent arrears, a provincial enforcement service can apply to the Minister to request a schedule license be suspected, not renewed, or not issued.

The FOAEAA is a legislative mechanism that was created to help families obtain the support they are entitled to. The FOAEAA outlines the processes to follow, and forms required to prepare applications for the release of information, the garnishment of wages, and/or the denial of a license.

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.

Canada: This Month In Nova Scotia Family Law – December 2023