This Month in Nova Scotia Family Law – April 2023

This Month in Nova Scotia Family Law – April 2023

May 8, 2023

Ezurike v Gbeve, 2023 NSCA 27

Judge: Chief Justice Michael J. Wood

Subject Matter: Motion by written submission (Civil Procedure Rule 90.38)

Justice Peter Bryson dismissed Mr. Ezurike’s motion for an extension of time to file his appeal. The proposed appeal related to a Corollary Relief Order issued by Justice Samuel Moreau of the Nova Scotia Supreme Court (Family Division).

When a judge in chambers issues an order which has the effect of disposing of an appeal, a party may request the order be reviewed by a panel of the Court with Leave of the Chief Justice. Mr. Ezurike made a motion for a review hearing. Chief Justice Wood referred to the decision Marshall v Truro (Town), 2009 NSCA 89 to illustrate the role of the Chief Justice in this process and outline the applicable review criteria.

There was no suggestion that Justice Bryson acted without authority or that his decision was inconsistent with another decision of a judge or the Court. The main issue at hand was whether Mr. Ezurike demonstrated that a review hearing by a panel is necessary to prevent an injustice. Chief Justice Wood explained that an applicant must have a “compelling” case for a review panel to be ordered and that the review panel is not an opportunity for the applicant to repeat the same arguments that were unsuccessful before the chambers judge.

Chief Justice Wood found that the arguments made by Mr. Ezurike in support of his motion for a review hearing were simply variations on the arguments previously made. No new information was provided. Also, Justice Bryson’s decision demonstrated that Justice Bryson carefully considered the relevant legal principles and the circumstances at hand. Ultimately, Chief Justice Wood held that Mr. Ezurike did not demonstrate that a review hearing was required to prevent an injustice.

Garnier v Garnier, 2023 NSSC 115

Judge:  Justice Theresa M Forgeron

Subject Matter: Spousal Support; Division of Pension

At a review hearing, Ms. Garnier sought continued spousal support until she was able to access her share of his pension when she turns 55 years old. Mr. Garnier disputed entitlement, arguing that Ms. Garnier had her own income and benefits.  In the alternative, he argued a quantum a the low end of the Spousal Support Advisory Guidelines. He argued that income should be imputed to Ms. Garnier because she should have filed a hardship application to access the funds from his divided pension that were placed in a LIRA on Ms. Garnier’s behalf.

Justice Forgeron found that Ms. Garnier was entitled to support on both compensatory and non-compensatory grounds.  The parties’ marriage was 24 years, and they had two children.  Ms. Garnier’s role in the relationship resulted in economic disadvantage, while Mr. Garnier’s provided him an economic advantage; there is a great income disparity post-separation.

Justice Forgeron found that Ms. Garnier should not be required to collapse her pension before age 55 and declined to impute income to her for this reason.  She found that ‘double dipping’ was not a significant factor in this case, because his income did not reduce after his pension was divided.  Justice Forgeron iputed an additional $1,500 in income to Ms. Garnier for the sale of some crafts.

Justice Forgeron ordered Mr. Garnier to pay spousal support to Ms. Garnier in the amount of $900 per month, which is an upward adjustment from the mid-range of the Guidelines.  Spousal support shall terminate when Ms. Garnier turns 55 and is able to access pension funds.  Mr. Garnier must maintain life insurance.

MacDonald v MacDonald, 2023 NSSC 120 (Endorsement)

Judge: Justice Elizabeth Jollimore

Subject Matter: Adjournment

Ms. MacDonald requested an adjournment of her divorce and corollary relief proceeding. Mr. MacDonald opposed the adjournment. Ms. MacDonald was represented by Mr. Church. Mr. Church did not file a Notice of New Counsel and never indicated that he no longer represented Ms. MacDonald.

On December 13, 2022, the trial was scheduled for May 10, 2023. The staff member of Mr. Church’s office who scheduled the trial date was unaware that that Mr. Church’s colleague Mr. Tan, would argue the trial. The trial was mistakenly scheduled on a date (May 10, 2023) where Mr. Tan was unavailable.

Justice Jollimore weighed the prejudice to the parties and to the public (Darlington v Moore, 2012 NSCA 68). Justice Jollimore considered that Ms. MacDonald may be without counsel if the trial were to proceed, and this would prejudice Ms. MacDonald. Mr. MacDonald argued that the adjournment would cause “undue delay and prejudice,” but did not present specific examples to support his claims. Justice Jollimore held that Mr. MacDonald would be minimally prejudiced by the adjournment.

Mr. MacDonald argued that the child of the parties deserved the resolution of the matter. Justice Jollimore was presented with no information about the impact of any pending decisions on the children. Justice Jollimore did acknowledge that the adjournment would cause some prejudice to the public. However, the prejudice to Ms. MacDonald was significant. The request for adjournment was granted.

Levy v Mosher, 2023 NSSC 129

Judge: Justice Christa M. Brothers.

Subject Matter: Stay of Proceedings; Oppression remedy; Corporations

The parties were married for over 20 years, and they were directors and the sole shareholders of Karo Horticulture Inc. The parties’ marriage broke down and a divorce proceeding was filed in the Supreme Court Family Division. The respondent, Ms. Susan Levy, filed a concurrent oppression claim in the Supreme Court General Division alleging her roles and access to various company information have been negatively impacted by the actions of her husband.

The applicant, Mr. Kenneth Mosher, brought a motion to stay the underlying oppression action, arguing the matters at issue in the Family Division proceeding are substantially similar and the oppression action is an abuse of process.

The court dismissed the motion for stay and concluded that continuation of the oppression claim will not interfere with the proper adjudication of the family law proceeding. Upon inspection of the pleadings, there were no substantial similarities – the family proceeding is focused on the division of assets, including Karo, and the oppression claim is focused on the parties’ rights and obligations as shareholders, directors and officers. Ms. Levy is entitled to bring a separate claim to protect her business interests and such a claim, in this case, does not give rise to a multiplicity of proceedings.

KB v AT, 2023 NSSC 125

Judge: Justice Theresa M. Forgeron

Subject Matter: Supervised Parenting; Sole Decision-Making; Intimate Partner Violence

KB, the mother, and AT, the father, are the parents of three-year-old, Ajr. The parties were separated when the child was about eight months old. Immediately following separation, a child protection proceeding was commenced. The mother stated that the father was abusing her. The father denies the allegations. The mother seeks sole decision-making without consultation, no direct communication, supervised parenting exchanges, and supervised parenting time between the father and the child. The father seeks unsupervised parenting time every second weekend and additional parenting time during holidays and special occasions, joint decision-making with the mother having the final say in the event of a disagreement, and to be kept informed about important events in his son’s life.

The court found the father had engaged in “family violence” as defined in section 2(da) of the Parenting and Support Act. Justice Forgeron held that the father physically assaulted the mother on at least two occasions – once while she was pregnant and once at the time of separation. The latter assault occurred, in part, in front of their child. The court was also satisfied that the mother proved the father emotionally abused her through a pattern of coercive or controlling behaviour by engaging in intimidation and threats to harm her and her dog and by destroying her property.

Supervised parenting time was in the child’s best interests pending the father’s successful completion of therapy and an anger management course. The father showed little insight into how his conduct was emotionally and physically abusive. The mother will have primary care and residence of the child, and she will have sole-decision making without consultation about important matters affecting the child. The father is entitled to communicate with professionals involved with the child, and he shall exercise supervised parenting time every Saturday and alternating Christmas and Boxing days. He is not permitted to consume alcohol, illicit drugs or cannabis when he exercises parenting time, nor can he possess firearms or weapons. All communication between the parties will be directed through the parenting supervisor.

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