This Month in Nova Scotia Family Law – April 2022

May 5, 2022
Green v Green, 2022 NSCA 30
Justice Elizabeth Van den Eynden

Issues: Retroactive Child Support | Prospective Child Support | Stay Pending Appeal

Mr. Green sought to stay the provisions of a Corollary Relief Order requiring him to pay $37,767.57 in retroactive child support and pay  prospective child support pending his appeal of that order.

In support of his motion, Mr. Green argued that if the Order was enforced prior to his appeal, some of the funds, primarily cash, would be irretrievable once placed in the possession of Ms. Green. Further, Mr. Green argued that splitting his investments would result in unnecessary fees and tax consequences if he were to be successful on appeal.

The Court found that while there was an arguable issue raised by his appeal, Mr. Green failed to provide sufficient detail to substantiate a claim for irreparable harm. Indeed, Ms. Green pointed out, and the Court agreed, that Mr. Green failed to provide any evidence that Ms. Green would not or could not pay back the cash should he be successful on appeal. The Court concluded that even if Mr. Green had established irreparable harm, Ms. Green would suffer greater harm if the stay had been granted. Finally, the Court found there were no exceptional circumstances to otherwise justify a stay. The motion to stay was dismissed.

MacNeil v Yeadon, 2022 NSCA 32
Justice Anne S. Derrick

Issues: Motion to Strike | Motion to Stay Pending Appeal

This decision addressed two motions: Mr. MacNeil’s motion for a stay pending appeal and Ms. Yeadon’s motion to strike portions of Mr. MacNeil’s affidavits.

The Court first dealt with Ms. Yeadon’s motion to strike portions of Mr. MacNeil’s affidavits. Mr. MacNeil’s counsel proposed amendments to address some of the concerns. Most of those amendments were accepted and only some portions of the motion to strike were left in dispute.

The Court accepted some of the other amendments proposed by Mr. MacNeil’s counsel to address Ms. Yeadon’s concerns that she had not already accepted, determined that reference to a report did not require Justice Derrick to hear a motion for the admission of fresh evidence first, and rejected that one of Mr. MacNeil’s affidavits are irrelevant because they related to the issue of irreparable harm.

Mr. MacNeil sought to appeal Justice Cindy Cormier’s decision where she found that Mr. MacNeil’s 2016 tax information was not sufficient disclosure to allow Ms. Yeadon to be fully informed about Mr. MacNeil’s means and circumstances to reach an agreement concerning ongoing child support in a shared parenting agreement. Justice Cormier held that child support should be recalculated. Mr. MacNeil listed 31 grounds for appeal in his Notice of Appeal.

In determining whether Mr. MacNeil met the test for stay pending appeal, Justice Derrick focused on the irreparable harm and the balance of convenience requirements of the Fulton test because Ms. Yeadon had conceded to the arguable issue requirement.

Justice Derrick found that it was likely Mr. MacNeil would suffer irreparable harm should a stay not be granted because there is a substantial amount of money in issue in the appeal for which there is no evidence that Ms. Yeadon would or would be able to pay back to Mr. MacNeil if he was successful on appeal. Instead, Mr. MacNeil led evidence that Ms. Yeadon would not pay back the money to Mr. MacNeil. For instance, he described emails from Ms. Yeadon to their sons and his colleague and law partner that suggest Ms. Yeadon would not be someone who is inclined to preserve and then repay a large sum of money. Furthermore, the Court recognized the profound impact the order would have on Mr. MacNeil’s law practice and the tax consequences he would face.

Finally, Justice Derrick found that the balance of convenience favoured Mr. MacNeil. Indeed, there was a significant likelihood that Mr. MacNeil would experience considerable actual hardship if a stay were not granted whereas Ms. Yeadon would suffer some further delay in the child support issue being settled.

Cormier v Vienneau, 2022 NSSC 98
Justice Pamela Marche

Issues: Child Support | Imputing Income | Retroactive Support | Special or Extraordinary Expenses

Ms. Cormier sought child support for the parties’ four children prospectively and retroactive to June 2017. She asked the Court to impute income to Mr. Vienneau on the basis of undeclared earnings and unemployment without valid reason. Ms. Cormier also sought contribution to section 7 expenses concerning medical and dental premiums as well as horseback riding. Mr. Vienneau denied receiving undeclared cash income and claimed health reasons prevented him from earning income and paying child support.

Ms. Cormier did not provide sufficient evidence  that Mr. Vienneau is paid by employers in cash. As such, the Court did not impute income to Mr. Vienneau on this basis. However, the Court did not accept that Mr. Vienneau had proven that health reasons prevented him from obtaining or maintaining employment. The Court imputed income to Mr. Vienneau equivalent to full-time minimum wage of $26,104, because of his intentional unemployment, without reason. Mr. Vienneau was ordered to pay table child support on that income.

The Court imputed Mr. Vienneau’s income for the years 2019 and 2020 by using his income tax information from 2017 and 2018. Retroactive child support from June 15, 2017, to October 15, 2020, was set at $20,707.92.

Given the parties income is found to be equal, Mr. Vienneau is to cover 50% of the cost of medical and dental insurance premiums attributable to the four children. However, given the economic realities of the parties, the Court was not prepared to require Mr. Vienneau pay for the horseback riding lessons.

T.L.D. v R.H., 2022 NSSC 103
Justice Samuel Moreau

Issues: Parenting | Decision Making | Custody

The mother filed a Variation Application in September 2019 seeking a shared parenting arrangement and a request to relocate the child to Kentville. The father’s response filed December 2019 sought to vary custody and also addressed parenting and child support. The Interim Consent Order issued on January, 2020, provided the father with interim primary care and residence of the child. The trial was 2 days in October 2021. The Court found that there had been a change in the circumstances since the 2018 Consent Corollary Relief Order. Indeed, the Court stated that the provisions of the Interim Consent Order issued in January 2020 revealed a change in the condition, means, needs or other circumstances of the child since the 2018 Consent Corollary Relief Order. At trial, the father wished to maintain the status quo: the child remain in his primary care.

The child was a young teenager. The Court recognized that the child was at a formative stage of her development that required stability and security. Further, a voice of the child report dated March 6, 2021, was of significant relevance to this matter. In that report, the child made it clear that the child wished to live with the father. Overall, the Court found that the totality of the evidence confirmed the status quo for primary care was in the best interests of the child.

Green v Green, 2022 NSSC 105
Justice Theresa M. Forgeron

Issues: 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
Justice Theresa M. Forgeron

Issues: 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.

B.J. v S.D., 2022 NSSC 116
Justice Theresa M. Forgeron

Issues: Endorsement

This decision addressed the admissibility of a proposed expert report that was filed on the eve of the contested parenting hearing scheduled for the following week. The proposed report was about the nine-year old daughter of the mother (SD) and father (BJ) parties. The father and the grandparents are each seeking primary care and decision-making on behalf of the child.

The expert report was filed late. Therefore, the Court had to determine whether the grandparents and mother proved the existence of exceptional circumstances to have the report admitted.

The Court found that the mother and grandparents did not prove exceptional circumstances because the report was of limited probative value, it was not in the interest of justice nor in the child’s best interests to admit the report, and because significant prejudice would flow from admitting the late-filed report.

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