This Month in Nova Scotia Family Law – August 2022
O’Reilly v Purgin, 2022 NSSC 240
Justice Elizabeth Jollimore
Subject matter: Costs
In July 2022, Justice Jollimore dismissed Ms. O’Reilly’s motion for her child to be registered in a school in her community. Mr. Purgin, the child’s father, sought costs for defending this motion.
Justice Jollimore found that a principled reason to deny costs existed because the risk of a costs award in custody cases may deter a parent from pursuing an action that is in the child’s best interests. This was the reasoning in Nemorin v Foote, 2009 NSSC 23, where Justice Gass dismissed an order for costs because there was a genuine issue to be tried that both parents had a reasonable position on.
Both Ms. O’Reilly and Mr. Purgin had reasonable positions regarding the school their child should attend, and both acted in good faith throughout the process. The claim for costs was dismissed.
Green v Green, 2022 NSSC 247
Justice Theresa Forgeron
Subject matter: Costs
Mr. and Ms. Green have a lengthy litigation history, beginning with a divorce trial in February 2021 (2021 NSSC 43). The trial culminated with Ms. Green being granted primary care of and decision-making power for their three children. Ms. Green was also granted a costs award of $40,882.29.
Between December 2021 and May 2022, Mr. Green filed several motions with the Nova Scotia Supreme Court. These motions, relating to matters stemming from the divorce hearing, were all denied. In May and June 2022, an application from Ms. Green to vary the parenting plan was heard. Justice Forgeron found that granting Ms. Green’s request to vary the parenting plan was in the children’s best interests (2022 NSSC 164).
Pursuant to this ruling, Ms. Green sought costs of $16,315 on the grounds that she was the successful party in all the motions and applications, as well as the effort and stress these proceedings caused her and her children. She claimed that Mr. Green had acted in bad faith by pursuing several time-consuming motions that he was ultimately unprepared for.
Mr. Green argued that there should only be a nominal costs award. He stated that the previous cost awards had weakened his financial state and he was not in a position to afford another. He had attempted family mediation, but Ms. Green refused. He claimed that the legal actions he initiated were done to salvage the relationship he had with his children, which was deteriorating due to Ms. Green.
Justice Forgeron found that Mr. Green’s claims did not have merit and stated that he had conducted himself poorly throughout the litigation process. However, since Ms. Green was representing herself in this matter, costs had to be calculated differently than if she had legal representation. Justice Forgeron could not calculate an exact amount, as the motions and applications concerned non-financial issues, so a lump sum costs award of $10,000 was ordered.
Mitchell v MacLeod, 2022 NSSC 217
Associate Chief Justice Lawrence I. O’Neil
Subject matter: Intellectual Property | Business Assets | Valuation Date
Ms. Mitchell and Mr. MacLeod divorced in December 2018. Both parties are artists: Ms. Mitchell is an author and filmmaker, and Mr. MacLeod is a songwriter and film industry creative artist. The divorce resulted in two property division issues.
The first was the ownership of certain intellectual property. Mr. MacLeod stated that he and Ms. Mitchell had collaborated on various literary works that she authored, and he claimed an interest in these works. Chief Justice O’Neil found that these works were business assets as defined by section 2(a) of the Matrimonial Property Act, RSC 275, and were therefore the personal property of Ms. Mitchell. This conclusion was reached because the works were used and held for an income producing purpose and were therefore not matrimonial assets. Mr. MacLeod could not produce evidence to show specifically how he contributed to these works. Furthermore, Chief Justice O’Neil did not believe that either party intended to have ownership interest in each other’s work.
The second was the valuation of each party’s interest in retirement and savings accounts held in Mr. MacLeod’s name. There had been some expenditures made from these accounts until December 2017, four months after the separation. Typically, the valuation date for these types of assets is the date of separation. However, the relationship between the parties was amicable and each wished for the other to become financially independent. Due to the parties’ wish to share common expenses and support each other during the separation, Chief Justice O’Neil established December 2017 as the valuation date for the accounts.
Pennell v Larkin, 2022 NSSC 233
Justice R. Lester Jesudason
Subject matter: Decision-Making | Parenting Arrangements | Family Violence | Duty of Counsel to Assist Parties in Exploring Settlement
Ms. Pennell and Mr. Larkin have a five-year-old son who lives primarily with Ms. Pennell. In September 2020, she filed a Variation Application seeking changes to child support. Mr. Larkin replied seeking a shared parenting arrangement. The parties agreed there had been a material change of circumstances, as their child was beginning primary school in September 2022.
During the initial stages of the trial, Justice Jesudason discussed the duty of a lawyer to inform their client of the alternative dispute resolution options under section 54(1)(c) of the Parenting and Support Act. This is especially important in cases involving a child’s best interests. Counsel used the first day of trial to negotiate and narrow the issues.
At trial, The issues were as follows:
- What decision-making arrangement is in the child’s best interest?
- What parenting arrangement during the school year is in the child’s best interest?
- Should a review of the parenting arrangements be ordered?
Mr. Larkin has a history of violence against Ms. Pennell, which Justice Jesudason had to consider in evaluating these issues. Regardless of the child’s direct exposure to the violence, it is a significant factor to consider in a best interest analysis.
Ms. Pennell was granted final decision-making authority for non-medical decisions and primary care during the school year. On the final issue, Justice Jesudason ordered that the circumstances warranted neither party being able to request a review of the parenting arrangements before June 2023.