This Month In Nova Scotia Family Law – May 2024

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The parties are former spouses and parents to an eleven-year-old son. Mr. MacDonald assumed primary care and decision-making responsibility of their son in 2022 after Ms. MacDonald...
Canada Family and Matrimonial
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MacDonald v MacDonald, 2024 NSCA 58

Judge: Justice Farrar
Subject: Motion to Stay, Relocation

Summary: The parties are former spouses and parents to an eleven-year-old son. Mr. MacDonald assumed primary care and decision-making responsibility of their son in 2022 after Ms. MacDonald was found guilty of fraud and incarcerated. In 2023, the Court granted Mr. MacDonald's request to relocate with the child to Ontario. The parties subsequently agreed that this would not take place before August 31, 2024.

Ms. MacDonald appealed the relocation decision, and filed a motion for pending appeal. Ms. MacDonald argued that it would be unreasonable for Mr. MacDonald to refuse to extend his timeline until the appeal was resolved in early September, and that it would be disruptive to the child to move to Ontario, then back to Nova Scotia, if her appeal is successful.

Justice Farrar outlined the law surrounding motions to stay in the context of the best interests of the child (quoting Chiasson v Sautiere, 2012 NSCA 91). Ms. MacDonald had to show that the interests of her child would be so impaired by the time the final judgement of the appeal was known that it would be impossible to afford complete relief. This must be balanced against the risk of harm if the stay was granted.

The Court found that Ms. MacDonald failed to establish that relocation would cause irreparable damage to her child or their relationship. She provided little evidence in support of her position and was attempting to relitigate the issue of relocation on appeal. There was nothing sufficiently meritorious for Justice Ferrar to interfere with the lower court's finding, or question its conclusions.

Dismissing the motion, Justice Ferrer emphasized that it would be detrimental to grant the stay and have the child relocate in the middle of the school year.

JL v A.H, 2024 NSSC 96

Judge: The Honourable Justice Samuel Moreau
Subject: Child support, Undue Hardship, Retroactive Support, Non-recurring payments, Change of surname

Summary: The parties were in a common law relationship for two years and have one child, who lives in the mother's primary care in New Brunswick.

The father claimed that guideline child support would cause undue hardship because of his unusually high level of debt. Justice Moreau concluded that the father did not satisfy the burden to demonstrate undue hardship. He provided little evidence in support of his claim. Justice Moreau raised credibility concerns, noting that the evidence seemed to be provided in an evasive and strategic manner.

Justice Moreau determined the father's income based on incomplete Tax Return from 2022, and included non-recurring payments in the father's annual income.

The mother requested retroactive child support from the date of separation. Justice Moreau found that there was no delay from the mother in requesting support, the father behaved in a blameworthy fashion by not disclosing his financial information in a timely manner, a retroactive award would benefit the child, but would not as impose a hardship on the father. Justice Moreau awarded retroactive child support.

The father requested the child's surname be changed to his surname. The mother had registered the child's surname as her own, after the father failed to return the documents to register the child with a hyphenated name. Justice Moreau concluded that given the child's age and stage of development (2.5 years old) changing her surname a hyphenated name was in the child's best interest and would not cause confusion related to her identity. The father was responsible for the costs of the name change.

Symonds v. Macias and Symonds, 2024 NSSC 124

Judge: The Honourable Justice Daniel W. Ingersoll
Subject: Grandparent application, Primary Care, Relocation, Child Support

Summary: The parties are the paternal grandmother, and parents to twelve-year Enrique, who has lived in his grandmother's care in Nova Scotia since 2019. Both parents live in Toronto. The grandmother sought an order for primary care, and child support form the parents. The mother sought an order that Enrique be returned to her care in Toronto. The father supported the grandmother's application.

Justice Ingersoll rejected Ms. Macias' relocation request. Enrique had complicated physical, social, emotional, and educational needs that required a learning and living environment in which he was understood and accommodated. The Court was not confident that Ms. Macias could grasp the complexity of Enrique's condition nor truly respond to his needs due to her lack of availability and support system.

On the other hand, Ms. Symonds had proven to be capable of having Enrique's needs assessed and addressed through a network of professional support. She had become an important source of stability in his life and removing Enrique from her care would not be in his best interests.

Justice Ingersoll granted Ms. Symonds final decision-making authority and primary care of Enrique, and ordered child support payable to her at a reduced amount, considering the costs of travel to visit Enrique.

Westlake v. Morton, 2024 NSSC 144

Judge: The Honourable Justice Theresa M Forgeron
Subject: Relocation Request

Summary: The parties are former spouses and parents to two sons. They separated in 2016 and established a shared parenting arrangement in 2019.

Ms. Westlake sought an order permitting her to relocate her sons to the Valley. Ms. Westlake had consistently travelled to the Valley with her children to spend time with her fiancé. She also claimed it would have little impact on the children's relationship with their father given their age and proximity to Mr. Morton's home in Hammonds Plains.

Mr. Morton challenged the relocation as having a negative impact on the parties' shared parenting plan. He claimed it would diminish the sons' connection to relationships within the HRM while increasing their travel time and placing a detrimental reliance on virtual contact. He argued that nothing had changed since the court last denied Ms. Westlake's relocation request.

Justice Forgeron outlined that Ms. Westlake, as the applicant, had the burden of proof of demonstrating that relocation was in her sons' best interests. This was a highly contextual inquiry that considered the children's physical, emotional and psychological safety, security and well-being as well as a list of circumstantial factors (Barendregt v Grebliunas, 2022 SCC 22 at paras 97-98). In the context of relocation requests, it was also important for the Court to consider the reasons, impact, and reasonableness of relocation, along with each parent's involvement in their children's lives and compliance with legal obligations.

Applying a balanced and comparative analysis of these factors, Justice Forgeron found that the relocation request was in the children's best interests. Several considerations were involved in making this conclusion. First, in a Voice of the Child (VOC) report the sons had expressed their wishes to relocate to the Valley with their mother. This was not determinative of their best interests, but was afforded significant weight in the context of the case. Second, relocation would have positive impacts on the sons' future relationships, specifically since one was experiencing significant issues with bullying at his current school. Third, Justice Forgeron was confident Ms. Westlake could meet the sons' needs and ensure they maintained a quality relationship with their father.

Neither party's proposed parenting plan was accepted in its entirety. Justice Forgeron proposed an alternate arrangement that would allow the sons to spend many weekends, holidays, and school breaks with Mr. Morton while continuing to live with Ms. Westlake.

This article was written with the assistance of Maggie Jardine, a summer student in the Halifax office.

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.

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