This Month in Family Law – December 2021

January 7, 2022
BJT V JD, 2021 SCC (neutral citation to follow)
Justices Wagner, C.J. and Moldaver, Karakatsanis, Cote, Brown, Rowe, Martin, Kasirer and Jamal

Issues: Parenting

The parents separated in 2012, after which the mother left Alberta to return to Prince Edward Island. At that time, the father was unaware that the mother was pregnant with their child. Four years later, the child was in the care of the applicant maternal grandmother when the father learned of the child’s existence and applied for permanent custody.

The trial judge held that the child should remain with his grandmother in Prince Edward Island. The Prince Edward Island Court of Appeal held that the child should be permanently placed in his father’s custody in Alberta.

The Supreme Court of Canada unanimously set aside the Court of Appeal’s decision, awarded the child’s maternal grandmother custody, and ordered the child be returned to her on or before March 21, 2022.

Reasons to follow.

Wintrup v Adams, 2021 NSCA 88
Justice Cindy A. Bourgeois

Issues: Stay Pending Appeal

In May 2021, the Nova Scotia Supreme Court dismissed Ms. Wintrup’s claim for retroactive and prospective spousal support and made several determinations concerning the categorization of assets as either matrimonial or non-matrimonial. A major issue at trial was Ms. Wintrup’s withdrawal of $200,000 and Ms. Wintrup’s subsequent purchase of a property in Halifax.

A Corollary Relief Judgment was issued on August 20, 2021, that directed Ms. Wintrup to pay $268,019 to Mr. Adams. Since the decision and judgment, Ms. Wintrup has filed a Notice of Appeal and a Motion for Stay.

The Court of Appeal dismissed Ms. Wintrup’s Motion for Stay because she failed to establish a probability that she would suffer irreparable harm if the stay was not granted. Ms. Wintrup argued that if she is successful on appeal, there is a risk that Mr. Adams would not repay the $268,019 because he lives in Saudi Arabia, which is not a party to any reciprocal enforcement arrangements with Canada. The Court of Appeal considered the circumstances of the case and found that since Mr. Adams attorned to the jurisdiction of Nova Scotia and has otherwise complied with the court processes, it is unlikely that he would not repay Ms. Wintrup. The Court of Appeal reiterated that the possibility of irreparable harm is insufficient to grant a stay. Rather, probability of suffering such harm must exist.

JD v CB, 2021 NSSC 345
Justice Theresa M. Forgeron

Issues: Parenting – Child support

The parties have a son, 9, and a daughter, 15. The mother sought an order for primary care of the children in HRM, while the father sought an order for primary care in New Glasgow. At the time of the hearing, the daughter was living with the father, and the son was living with the mother. Throughout the relationship, the mother was the primary caregiver, while the father was the primary earner. The father was also an involved parent.

The Court reviewed relevant best interest factors to determine which parent should have primary care of the children.

The Court determined it was in the daughter’s best interests to be in the primary care of her father. The father is better able to meet the daughter’s mental health needs, better supports her relationship with her mother, and does not expose her to parental conflict. The mother will have reasonable parenting time with the daughter, based on the daughter’s preferences. The father was ordered to drive the daughter to the mother’s residence, after she e-transfers him $100 for gas.

The Court determined it was in the son’s best interests to be in the primary care of his mother. The son is more securely attached to the mother and has expressed a desire to continue living with her. The son participated in a Wishes of the Child report, in which he expressed this. The father will have parenting time every other weekend and during holidays. He is responsible for transportation.

The father must pay child support to the mother on a prospective and retroactive basis. The father is employed and owes $476 in child support. The mother is under-employed but there is no evidence supporting that this is necessary. The mother owes $190 in child support. Therefore, the net prospective payment is due from the father to the mother for $286.

The father owes retroactive child support of $9,189.64. Because the father cannot afford a lump sum payment, the Court ordered he pay an additional $150 per month until the retroactive amount is paid.

Murphy v Howes, 2021 NSSC 354
Justice Theresa M. Forgeron

Issues: Child support | Imputed income | Self-employed | Capital gains

The parties have two children aged 14 and 16.

Ms. Murphy sought to retroactively increase child support by imputing income to Mr. Howe, who was self-employed in the financial industry. She argued that many of Mr. Howe’s claimed business expenses should not be deducted when determining his net income. Mr. Howe argued that the expenses were necessary, and a reasonable percentage of his income.

The Court considered sections 19(1)(g) and 19(2) of the Child Support Guidelines, and case law surrounding determination of income for self-employed individuals.

The court considered a $16,021 capital gain in 2017, $415 in 2018, and $554 in 2019. The court found that the 2017 gain was a non-recurring amount that should be excluded from calculation of child support. The gain was a result of liquidating shares, and was not connected with Mr. Howe’s employment. It was cashed so that he could buy a home, where the children live while in his care. Including the capital gain is unnecessary to provide proper support to the children, who receive support on an income of approximately $100,000, and the father incurs the cost of the daughter’s private school. The court found the same for the gain in subsequent years.

The court reviewed Mr. Howes’ expenses deducted from his commission income from 2017 to 2020 and noted that Mr. Howes was not a diligent record keeper in tracking his expenses. The court reduced Mr. Howes’ expenses claimed for meals and entertainment, utilities, motor vehicle expenses, and CA for business use of home by 50% to account for the personal component of such expenses.

The court calculated over and underpayments for the period of 2017 to 2021 and determined that there was a total retroactive amount of $916. However, the court declined to make an order for retroactive payment.

Williams v Power, 2021 NSSC 356
Justice LouAnn Chiasson

Issues: Christmas parenting time

The parties have two children, aged 8 and 9. The parties have a shared parenting arrangement. On Ms. Power’s request, the Court adjudicated the narrow issue of Christmas parenting time through written submissions.

Mr. Williams unilaterally imposed supervised parenting for Ms. Power and has drastically restricted her parenting time. The Court found no reason for Ms. Power’s parenting time to be supervised. Previously, the parties alternated Christmas Eve and Christmas morning. Mr. Williams had the children in his care last Christmas, so the Court determined it was Ms. Power’s turn this year. Still, the Court expressed concern about the children being placed in the middle of conflict between the parents. To mitigate the risk, the Court ordered the children to be brought to Ms. Power at noon on December 25th by third parties at a neutral location and returned to Mr. Williams December 26th at 5pm in the same way.

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