This Month in Family Law – May 2022

June 7, 2022
Daye v Savoie, 2022 NSCA 38
Justice Wood

Subject matter: Consent order | Appeals

On March 3, 2022, Ms. Daye filed a motion requesting an extension of the time to challenge a consent order issued on January 22, 2021.  The consent order anticipated conveying a property to Ms. Daye by a certain date, and if financing could not be obtained by that date, Mr. Savoie would pay her an agreed sum in lieu of transfer of title. Justice Derrick dismissed Ms. Daye’s motion on the basis that her appeal was without merit, she did not demonstrate a bona fide intention to appeal within the appeal period, and there was insufficient explanation for the delay. (2022 NSCA 27)

Ms. Daye then made a motion for leave to have Justice Derrick’s decision reviewed by a panel of the Court pursuant to Civil Procedure Rule 90.38. Justice Wood found that the audio recording of the NSCA hearing and the materials submitted by Ms. Daye provided no basis for challenging Justice Derrick’s conclusions. The Court found that there was nothing in Ms. Daye’s written motion which suggests a panel review is necessary to prevent an injustice. The motion for a review pursuant to Civil Procedure Rule 90.38 was dismissed with costs payable to Mr. Savoie for the amount of $250.

Titus v Kynock, 2022 NSCA 35
Honourable Justice Carole A. Beaton

Subject matter: Relocation | Best interests of the child | Primary care

The parties have a nine-year-old child, and a long history of litigation. Both parties wanted to relocate with J and have argued that their respective relocations are in J’s best interest. Ms. Kynock sought to relocate to her husband’s farm in Idaho. Mr. Titus applied to relocate with J to a home he owns in Stewiacke, Nova Scotia. The trial judge granted Ms. Knoyck primary care of J.. permission to relocate to Idaho, sole decision-making, and the ability to travel without Mr. Titus’s consent. Mr. Titus appealed on multiple grounds, including that the judge erred in her analysis and application of the best interest of the child test, the judge misapprehended the evidence, the judge did not provide adequate reasons for her decision and the decision demonstrated an apprehension of bias.

The Court of Appeal found that two errors in the trial judge’s application of the best interest of the child test. First, the judge focused on resolving the tension between the parents rather than focusing primarily on the child’s best interests. Second, the judge’s decision suggested that Mr. Titus’s plan for relocation was not given sufficient consideration compared to Ms. Kynock’s plan for relocation. The trial judge also focused heavily on the implications of the move on Ms. Kynock and not on the child, which effectively placed the child’s interests as secondary.

It was of concern to the Court of Appeal that the trial judge did not have meaningful details from Ms. Kynock’s plan for relocation. The overwhelming focus on Mr. Titus’ plans and insufficient consideration of the gaps in Ms. Kynock’s plan reasonably left the impression on Mr. Titus that he did not receive a fair hearing. The Court of Appeal allowed the appeal and ordered a new hearing of the parenting and relocation issues.

Charapovich v Charapovich, 2022 NSSC 124
Justice Elizabeth Jollimore

Subject matter: International law | Foreign divorce | Division of property

Ms. Charapovich filed a petition for divorce and corollary relief. Mr. Charapovich responded to this claim by asserting that the parties were already divorced in Belarus. He asked the Court to hold that the Byelorussian divorce should not be recognized in Canada. One common law requirement for recognizing a foreign divorce is that either party had a real and substantial connection with the foreign jurisdiction where the foreign divorce was granted. The parties disagreed whether Mr. Charapovich had a real and substantial connection to Belarus. Justice Jollimore held that she did not need to consider this issue as granting the divorce would be contrary to public policy to recognize the Byelorussian divorce.

Justice Jollimore was concerned that if she recognized the Byelorussian divorce that Ms. Charapovich would be unable to claim a division of property as the Matrimonial Property Act only applies to spouses, and not divorced spouses, and the common law requires the assumption that the foreign law is the same as Nova Scotian law. Mr. Charapovich submitted that Justice Jollimore could use her inherent jurisdiction to allow for a post divorce division of property. Justice Jollimore rejected this argument on the basis that divorce is a matter of exclusively federal jurisdiction while property is exclusively provincial jurisdiction. As such there is no gap in the legislation and no reason therefore to use inherent jurisdiction.

The Court granted Ms. Charapovich’s request and refused to recognize the Byelorussian divorce on the basis of public policy reasons.

Partridge v Bain, 2022 NSSC 125
Justice Elizabeth Jollimore

Subject matter: Division of property | Valuation of property | Business assets | Unequal division of property

This matter involved the characterization, valuation and division of Mr. Partridge and Ms. Bain’s assets under Matrimonial Property Act. Justice Jollimore found that the real estate at, 6017 Highway 215 Kempt Shore, the three 40-foot storage containers, and the camper were business assets because they were bought with funds from the business and were primarily used for the purpose of business. Justice Jollimore determined that the boat and accessories, the 1997 Skandic skidoo, the 2007 Chevrolet 2500 Silverado, household contents and Ms. Brain’s jewelry were matrimonial assets.

Justice Jollimore ordered that within 30 days of the decision, Mr. Partridge is to create a list of household contents in his possession and divide the assets between himself and Ms. Bain. Ms. Bain will then have first choice of which items she wishes to own and she must collect the items from Mr. Partridge within 14 days after identifying her choices. The same procedure will apply for household contents in Ms. Bain’s possession.

Ms. Bain applied for an unequal division of her pre marriage pension and RRSP contributions. Justice Jollimore held that there would be nothing shockingly unfair about an equal division of assets. Justice Jollimore considered the length of the relationship and the manner of the acquisition of the assets. The relationship was 10 years long, does not meet the criteria of unusually short. Furthermore, the parties both brought significant assets (over $100,000) into the marriage and invested these assets into matrimonial property. Justice Jollimore held that the contributions made by the party to the matrimonial assets were not so unequal that they warranted an unequal division of assets. Mr. Partridge owes Ms. Bain $579.60.

Oliver v Oliver, 2022 NSSC 131
Justice Jean M. Dewolfe

Subject matter: Divorce | Division of property | Business assets | Spousal support

This matter involved a number of issues, including date of separation classification and value of various assets, unequal contribution to the business, unequal division of assets, retroactive spousal support, prospective spousal support and costs.

The Court held that while the Matrimonial home may have been used to store business assets, it was not primarily used in connection with a business purpose and therefore the entire value of the matrimonial home was found to be a matrimonial asset. The home is to be sold and the net proceeds divided equally. The cottage is also to be sold and the net proceeds are to be divided equally. The Hillsburn Properly was given to Ms. Oliver as a gift from her father as an advance on her inheritance and was found to not be a matrimonial asset as it was never used by the family. The same can be said of the Shore Road property, which was found to be a gift to Mr. Oliver and was not used by the family. Where Mr. Oliver failed to provide evidence regarding the business’ use of vehicles, they were classified as matrimonial assets. The Court estimated a nominal amount as an equalization payment for household items as no appraisals were conducted and neither party presented estimated values.

Mr. Oliver’s is the sole shareholder of a business. Ms. Oliver sought a 50% interest of the business on the basis of her contributions. Ms. Oliver proved on a balance of probabilities that she had contributed significant work in the operation and improvement of the business over a long period of time. Ms. Oliver’s duties involved paying the bills, preparing cheques for the crew members, keeping records of employment and working with the companies accountant. Ms. Oliver’s daughter, her former co-worker from the bank and the company’s accountant all testified to Ms. Oliver’s role in the company. As such the Court awarded her 20% of the company’s value.

Ms. Oliver sought an unequal division of matrimonial assets pursuant to s.13 of the Matrimonial Property Act. There is evidence that family funds were diverted in order to be invested in the business, Mr. Oliver benefited from Ms. Oliver taking responsibility for the majority of the family’s childcare and housekeeping, and Ms. Oliver is losing a valuable source of retirement revenue. However, an equal division of matrimonial assets would not be unfair or unconscionable once the s.18 payment is made and as such a further division of business assets is not necessary.

Ms. Oliver was 61 at the time of separation and lacked employable skills, as such it was not realistic to impute income to Ms. Oliver. Her previous application for interim spousal support was delated and as such the Court ordered retroactive spousal support at $3,194 a month. The Court did not rule on prospective spousal support though would be willing to address this issue. However, based on the division of assets the Court cautioned that Ms. Oliver may have exhausted her entitlement to spousal support.

Wood v Debaie-Musolino, 2022 NSSC 113
Cindy G. Cormier, J.S.C. (endorsement)

Subject matter: Costs

Mr. Wood requested party and party costs of $2,000 as recovery of legal fees of $2,620 from Ms. Debaie-Musolino. The Court ordered Ms. Debaie-Musolino to pay the costs of $2,000 to Mr. Wood over the next year. The costs in question were related to a hearing about relocation of the parties’ children. The hearing determined that relocation was not in the children’s best interest and Mr. Wood was granted primary care of the children. The cost award was based on the consideration of factors such delays of proceedings, complexity of proceedings and the cost of the voice of the child reports. The Court also considered the additional complicating factor of Ms. Debaie-Musolino re-introducing her eldest child’s biological father to him. The court expressed the view that this was done in order to attempt to minimize the role of Mr. Wood in the child’s life ahead of the relocation hearing.

R.R. v J.M., 2022 NSSC 140
Honourable Justice Lee Ann MacLeod-Archer

Subject matter: Primary care | Child support

The parties have one daughter together. A 2010 Consent order granted the parties joint custody, with R.R.M. primarily residing with J.M.. The Order also stipulated that R.R. would pay child support. In 2019 R.R. filed an Application to Vary, seeking child support from J.M. and termination of his support obligations. J.M. filled an Application to Vary, seeking retroactive child support, enforcement of arrears and recalculation of child support obligations. The issues in this case involved the determination of who has primary care of R.R.M and for what time, what each parent owes for child support and what other related orders are appropriate.

The parties had joint custody under the 2010 agreement. However, R.R.M.  in the care of her father and has since 2019. Accordingly, given the age of the child and the amount of conflict between the parties R.R. was granted sole decision making and primary care. J.M. was given parenting time based on R.R.M.’s wishes. The court did not offer analysis for the basis of the primary care decision.

Based on payments made between the parties, retroactive child support is owed in the amount of $5419.50, payable from J.M. to R.R.. J.M.’s child support payments were varied, as assessed on a reduction of income in 2021. She will now pay $353.00 per month. The arrears owed by R.R. were suspended in 2017, but they were not forgiven. The judge therefore help that any amounts owed by J.M. will be set off against his arears, brining J.M.’s payment down to $1,439.50.

Barendregt v Grebliunas., 2022 SCC 22
Judges: Richard Wagner; Michael J. Moldaver; Andromache Karakatsanis; Suzanne Côté; Russell Brown; Malcolm Rowe; Sheilah Martin; Nicholas Kasirer; Mahmud Jamal
Decision written by Karakatsanis J., Dissent per Côté J.

Subject matter: Evidence | Relocation

The mother in this case relocated with her children from Kelowna to Telkwa following an alleged assault by the father. Telkwa is in the Bulkley Valley which is approximately a 10 hour drive away from the family home. An interim order was made in the aftermath of the mother’s move to Telkwa, which split parenting time between the parents, alternating between Telkwa and Kelowna. A subsequent court order gave the mother parenting time with the children in Telkwa in August 2019, but she had no further parenting time before the initial trial.

The trial judge awarded primary residence of the children to the mother and granted her request to relocate the children to Telkwa. The judge’s decision tuned on two issues. The first was the parents’ acrimonious relationship and its impact on the children. The trial judge concluded that based on the father’s abusive conduct towards the mother, he would be unable to cooperate with the mother to promote the children’s best interests and the children would benefit indirectly from the mother having a strong support system in Telkwa. The second issue was the parties’ financial situation. The house in Kelowna needed an influx of money to make it habitable. At trial, the father submitted that he would accelerate the renovations but did not prepare a budget to demonstrate how he would finance that. The judge concluded on this basis that the father’s ability to remain in the house was uncertain. Based on these two issues the trial judge concluded that relocation would best promote the children’s interest.

The British Columbia Court of Appeal reversed the trial decision on the basis that there was “new” evidence which suggested that the trial judge’s finding that there was uncertainty concerning father’s ability to remain in the Kelowna home was incorrect. Justice Voith characterized the evidence supporting the father’s claim that he would be able to accelerate the repairs as “new” evidence because it had not existed at the time of trial. The court held that because it was new evidence, as opposed to “fresh” evidence (which refers to facts that occurred before the trial), it was not subject to the Palmer test and could be admitted so long as it was established that “a premise or underpinning or understanding of the trial judge that was significant or fundamental or pivotal has been undermined or altered”. The BCCA admitted the evidence and found that the consideration of the father’s finances no longer applied. As such, it was no longer in the children’s best interests to be relocated. The court concluded that the children’s best interests were better served by staying in Kelowna with both parents. and the court ordered the children back to Kelowna to reflect that.

The Supreme Court of Canada disagreed with the BCCA’s finding that there is a different standard for “new” evidence and “fresh” evidence. They concluded that the Palmer test applies to all evidence tendered on appeal. The Palmer test sets out four criteria for the admission of evidence on appeal. The criteria is as follows:

  • The evidence could not, by the exercise of due diligence, have been obtained for the trial;
  • The evidence is relevant in that it bears upon a decisive or potentially decisive issue;
  • The evidence is credible in the sense that it is reasonably capable of belief, and’
  • The evidence is such that, if believed, it could have affected the result of the trial.

The SCC focused heavily on the due diligence criteria in their decision. The court emphasised that due diligence encourages litigants to put their “best foot forward” in the initial litigation, which in turn encourages finality and order in the proceedings. Finality and order are often in the best interests of children, as experiences such as relocation are already tumultuous for children without the concern that there may be multiple appeals if due diligence is not done and new evidence is uncovered. It was also noted that courts should be wary of parties using the Palmer framework as an indirect means of varying the original parenting order. However, the court does acknowledge that in best interest of child proceedings a lack of due diligence is not necessarily fatal if the need for order and finality is superseded by the interests of justice (Children’s Aid Society of Halton (Region) v. A. (K.L.) 2006 32 R.F.L. (6th) 7).

The SCC found that the BCCA erred in admitting the father’s evidence on appeal, as the evidence could have been available for trial had due diligence been exercised. The SCC held that the trial judge was correct in making an assessment about the father’s financial future based on the evidence he had before him. The father’s subsequent attempt to correct the lack of evidence at trial does not mean that the trial judge erred in his findings. The SCC characterized the father’s attempts to enter new evidence towards the end of the appeal as considerably unfair to the other party.

Justice Côté disagreed with the application of Palmer to the facts of the case. She argued that narrowing Palmer’s flexibility to only “exceptional cases” is too rigid and that the Palmer test should be applied flexibly in all cases that involve child welfare. Her reason for this is that children’s circumstances change depending on the stage of their life and the courts should have flexibility to adapt to those changing circumstances. Based on this argument, she submits that the new evidence should have been admitted and the appeal should have been remanded to trial court for reconsideration of the children’s best interests considering the new information regarding the father’s finances.

The SCC also took this case as an opportunity to consider the new relocation provisions in the Divorce Act, despite the provisions coming into place after the trial occurred. The SCC suggested that the Divorce Act functionally codified the precedent set in Gordon v Goertz (1996 19 R.F.L 4th 177). Where the Divorce Act differs from Gordon, it does so in a manner that reflects common law precedent. For example, the Divorce Act now contains an express consideration for the best interests of the child in relocation. The Divorce Act now also considers any form of family violence and it’s impact on the perpetrator’s ability to care for the child. The SCC held that the trial judge did not err in his application of the Gordon framework to the proposed relocation. In Justice Côté’s dissent, she commented that the Divorce Act relocation provisions were not before the court. Therefore it should not have been considered in this case as there was not sufficient fact evidence to properly address the application of the provisions.

The SCC allowed the appeal and set aside the decision of the Court of Appeal. The trial judge’s order regarding the primary residence of the children was restored. The mother is entitled to costs.

THE GREEN’S – A series of decisions of matters between the Green’s have been released over the past two months.  Some of these decisions were featured in our April issue of TMIFL.  We are including all of the recent decisions here, in chronological order.

KG v HG 2021, NSSC 43
Honourable Justice Theresa Forgeron
Release Date: February 16, 2021

Subject matter: Costs

This is a decision regarding costs. The Father filed for divorce and an interim parenting order in 2018. The parties participated in several court conferences, settlement conferences and a lengthy hearing to resolve issues relating to parenting time and child support. A trial decision was released in February, 2020. The Mother’s legal fees, disbursements and portion of their Parental Capacity Assessment, totaled $61,766.15. She sought costs on the basis that she was the successful party and wished to deter further appeals and motions by the Father. She sought costs from the date she provided the Father with a settlement offer. The Father argued that a future review date in the Order signified that it was not final and therefore he could be the successful party. It was also his position that future appeals should not be considered in assessing costs.

Justice Forgeron acknowledged that costs are governed by NS Civil procedure Rule 77 and the decision in Armoyan v Armoyan. Costs have the objective of doing justice for the parties. They are intended to cover a substantial amount of a party’s legal fees which is in the range of 50% -100%. Costs are quantified according to the tariffs for predictability. However, there are opportunities for courts to use their discretion to raise or lower these amounts when appropriate. Justice Forgeron ordered the Father to pay $40,882.00 in costs by lump sum determined by the following calculations: $19,113 x 80% = $15,290.40 representing 80% of the Mother’s legal fees and disbursements incurred after she filed her pre-trial brief; and $42,653.15 x 60% = $25,591.89, representing 60% of the Mother’s legal fees and disbursements incurred before the hearing.

The reasons for the order were as follows: The Mother’s legal fees were considered reasonable. She was self-represented at times to reduce her legal fees and the matter involved extensive litigation. The rule of thumb approach was rejected as being outdated and arbitrarily assigned. The matter was considered important and complex given the subject matter, it’s progression and the evidence called in the hearing. The Father refused a settlement offer that provided him with more favorable parenting time and child support arrangements. Lastly, for the Father’s role in increasing costs by promoting unproven claims of parental alienation, providing inadequate income information and pursuing other baseless claims for primary care and reduced child support.

Green v Green, 2021 NSCA 61
Honourable Justice Cindy Bourgeois
Release Date: August 16, 2021

The parties were involved in a high conflict divorce. At trial, the judge awarded primary care to the mother, and specified access for the father. The father sought to appeal the trial decision on the grounds that his contempt applications against the mother were never heard by the Court. He further alleged his evidence surrounding parental alienation was not considered. The father filed his Notice of Appeal one day past the filing deadline.

The legal principles governing a motion for an extension of time have been recently affirmed in Shupe v Beaver Enviro Depot, 2021 NSCA 46 and applied to the present case. Justice Bourgeois found that the delay was minimal and the reason for the delay is less important because the delay in filing was only by one day. Further, the father had a bona fide intention to appeal within the notice period.

Ultimately, even though the factors weighed in favour of granting an extension of time, the motion failed due to a lack of merit. First, the outstanding contempt application is not a valid ground of appeal. Justice Bourgeois explained that the role of the Court is not to address general complaints about how other courts administer matters. Justice Bourgeois also found that the lack of a contempt hearing did not negatively impact the father, and he did not advance any of this evidence at trial when he could have. Second, the father had not articulated a clear error with his argument about parental alienation. The trial judge presented a strong analysis and factual conclusion. On this basis, Justice Bourgeois determined that it was not in the interest of justice to grant an extension of time.

Green v Green, 2022 NSSC 30
Honourable Justice Theresa Forgeron
Release date: February 1, 2022

The parties are former spouses who had a high conflict divorce. Justice Forgeron heard the parties divorce trial. Mr. Green filed an appeal of the decision, which was dismissed.

After the dismissed appeal, Mr. Green filed an application for Justice Forgeron’s recusal for any further reviews, motions, or applications associated with his file because of actual, or at least perception, of bias. In addition, Mr. Green asked that Justice Forgeron’s previous decision and order be vacated, and a new trial ordered. Lastly, he sought an order transferring the file from the Family Division to the General Division.

The Court denied Mr. Green’s motion for recusal. Mr. Green failed to meet the heavy burden of proving an informed reasonable person would find it more likely than not that Justice Forgeron would not decide issues in Mr. Green’s case fairly.

In reaching its conclusion, the Court made three general observations. First, unfavorable results or conclusions, even if repeated, are not in and of themselves proof of bias. Second, if the decision had errors, relief is achieved through the appeal process and not by recusal orders. Third, a fully informed reasonable person would conclude that in making decisions, Justice Forgeron applied the law to the trial evidence and the consequential decisions were grounded in legal analysis, not bias.

The Court similarly denied Mr. Green’s request for Justice Forgeron’s decisions to be vacated and a new trial ordered as well as Mr. Green’s request to transfer the file from the Family Division to the General Division.

Green v Green, 2022 NSSC 105
Honourable Justice Theresa Forgeron
Release date: April 13, 2022

Subject matter: Endorsement | Adjournment

Mr. Green sought an adjournment of the motion hearing to determine his request for state funded counsel because he is scheduled for an important personal matter. Ms. Green opposed Mr. Green’s adjournment because it is his second adjournment request, his application lacks merit, and because of her other frustrations with Mr. Green’s conduct throughout the Court process, such as failing to file financial materials as ordered.

Mr. Green did not provide any details concerning the scheduled personal matter. Mr. Green did not indicate whether the personal matter could be rescheduled. If granted, Ms. Green would have had to rearrange her employment a third time to another rescheduled date. Further, Mr. Green had failed to file financial information that he was repeatedly ordered to file and has made no efforts to comply. Finally, if an adjournment was granted, valuable Court time would have been once again lost. As such, the Court found that a second adjournment was not warranted.

Green v Green, 2022 NSSC 106
Honourable Justice Theresa Forgeron
Release date: April 13, 2022

Subject matter: State-funded counsel

On May 30, 31 and June 2, 2022, a contested parenting hearing for the parties will be held. Mr. Green wanted state-funded counsel to represent him during the contested hearing. Ms. Green’s position was that Mr. Green was not entitled to state-funded counsel.

Mr. Green did not attend the motion for state-funded counsel. The Court considered his affidavit and written submissions, except for hearsay comments and opinions contained in his affidavit. Mr. Green wanted state-funded counsel because he fundamentally disagrees with the parenting decision contained in the Corollary Relief Order, the contested parenting hearing will be complex, and he cannot afford a lawyer and was denied legal aid.

Mr. Green’s motion for state funded counsel was denied. Mr. Green did not file any of the financial materials required to support his application for state-funded counsel despite being given repeated direction to do so and copies of the forms he needed to complete. Therefore, Mr. Green did not prove need.

Green v Green, 2021 NSCA 61
Honourable Justice Cindy Bourgeois
Release date: April 13, 2022

Subject matter: Filing deadlines

Following the Court’s order that the children live in Ms. Green’s primary care, Mr. Green attempted to file a Notice of Appeal to challenge the decision (Green v Green, 2021 NSCA 61). He missed the filing deadline by one day, and as a result he made a motion for an extension of time to file his appeal. The Nova Scotia Court of Appeal dismissed the motion. The court did not give a reason for the dismissal.

Green v Green, 2022 NSSC 120
Honourable Justice Theresa Forgeron
Release date: May 2, 2022

Subject matter: Parental alienation | Admission of expert reports | Jurisdiction

Mr. Green sought to admit two reports as expert evidence at the contested Variation Application. The reports were authored by Dr. Steven Miller and Dr. Jennifer Harman, and addressed the issue of parental alienation. In addition Mr. Green sought to have Justice Forgeron’s 2021 divorce decision (KG v HG 2021 NSSC 43) set aside as it related to alienation, property division and costs.

Mr. Green took the position that that the expert reports confirmed Ms. Green alienated the children against him. He argued that reports were not available at the time of the divorce trial in 2021, and they demonstrate that the divorce decision was incorrect. Ms. Green argued that the parenting issues were already resolved, and that neither of the experts had contact with her or their children and as such the reports are of little value.

The Court found that the reports of Dr. Miller and Dr. Harman should not be admitted into evidence. The Court found that there was little probative value to the reports and they were being used primarily as a means to relitigate matters that were previously resolved. It’s important to note that Mr. Green had also attempted to appeal the 2021 decision and had missed the filing deadline. His appeal has been subsequently dismissed. The test for res judicata was met and relitigating the issue would result in an abuse of process. Justice Forgeron found that she has no jurisdiction to set aside previous findings, rulings or conclusions on the parenting, property and costs issues.

Green v Green, 2022 NSSC 126
Honourable Justice Theresa Forgeron
Release date: May 5, 2022

Subject matter: Adjournment | Prejudice to parties

Ms. Green sought to adjourn the hearing set for May 30, 31 and June 2, 2022. Justice Theresa Forgeron rejected this request.

The review hearing set for May 30, 31 and June 2, 2022 were to determine the status of the therapeutic process which was directed in the divorce decision (reported in KG v HG 2021 NSSC 43). In addition, both parties sought to vary the provisions of the CRO at this hearing. Mr. Green’s counsel sought an adjournment of the hearing because he was new to the matter, and had prior commitments for the hearing dates before being retained by Mr. Green.

Ms. Green objected to an adjournment on the basis that Mr. Green frequently seeks adjournments in order to delay proceedings, the matter was originally scheduled for September 2021, and she expressed concern regarding the impact of further delays on the children. She was also concerned that a delay may impact the therapists ability to recall, as the treatment was completed before September 2021.

Justice Forgeron weighed prejudice to the parties in order to assess whether the adjournment should be granted. It was considered that if the adjournment was not granted that Mr. Green may not be represented by a lawyer, which could result in prejudice. However, this was mitigated by the consideration that Mr. Green delayed in finding representation, when he did retain Mr. Chongatera as counsel he was aware that he was unavailable for the required dates and that Mr. Green has previously been able to sufficiently represent himself. Ms. Green would experience prejudice if the hearing was delayed as it will further delay the resolution of pressing issues, such as therapy and international travel. Furthermore, a delay would not be in the best interests of the children. As a result of this weighing the Court denied the adjournment request of Mr. Green.

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