This Month in Nova Scotia Family Law – December 2022

January 18, 2023
MacNeil v Yeadon, 2022 NSCA 79
Justice Cindy A. Bourgeois
Subject matter: Retroactive Child Support | Prospective Child Support

Mr. MacNeil and Ms. Yeadon were divorced in 2011 and share two children. In 2019, Mr. MacNeil applied to decrease his child support payments because to their oldest child was attending university and living away from home for most of the year. Ms. Yeadon opposed a decrease of child support and requested a retroactive increase in child support. At the hearing, Justice Cormier determined that Mr. MacNeil had experienced a significant increase in income which he failed to disclose to Ms. Yeadon. Mr. MacNeil was ordered to pay $193,607 in retroactive child support and $7,061 in ongoing monthly child support for both children.

On Appeal, Mr. MacNeil argued that the hearing judge made significant errors in determining his past and current income. He also argued that the trial judge failed to properly apply legal principles in determining whether a retroactive award was warranted.

Mr. MacNeil asked the Court to accept fresh evidence of his past and present income, which was an expert Guideline Income Report calculating his income according to the child support guidelines.  Justice Bourgeois did not permit the Report to be introduced on appeal.  Although the Report was relevant and could have affected the outcome of the hearing, it existed prior to the hearing and could have been presented to the judge at that time.

The parties agreed that the income attributed to Mr. MacNeil at the hearing was inaccurate. In calculating Mr. MacNeil’s income between 2018 to 2021, the judge collectively overstated Mr. MacNeil’s income by at least $869,000.  Justice Bourgeois described the hearing judge’s calculation of Mr. MacNeil’s income as “significantly flawed” and would  have an impact on the proper quantum for retroactive and prospective support.

The hearing judge determined that Ms. Yeadon was entitled to retroactive support commencing on January 1, 2017. On appeal, it was held that the hearing judge failed to establish a presumptive date of retroactivity and failed to provide an explanation as to why January 1, 2017 was chosen as the date on which Mr. MacNeil’s retroactive support obligation commenced.

Justice Bourgeois allowed the appeal, set aside the hearing judge’s order for child support, and ordered a new trial to be heard by a different judge.

Green v Green, 2022 NSCA 83
Justice Elizabeth Van den Eynden
Subject matter: Retroactive Child Support | Prospective Child Support | Property Division | Separation Agreements

Mr. and Ms. Green separated in 2017 and had a divorce trial in 2021. They share a son and a daughter who were respectively 20 and 17 years old at the time of the trial. At trial, the most contentious issues were the amount of child support, the division of property, and the apportionment of debt.  Mr. Green argued that the trial judge made errors with respect to property division and the amount of child support. Mr. Green argued that the trial judge displayed bias and erred in setting aside a partial separation agreement between the parties.

Mr. Green sought to introduce new evidence to the Court about the value of the matrimonial home. Justice Van den Eynden did not admit the fresh evidence because it was readily available at the time of trial and was not relevant to the issues before the trial judge.

Mr. Green made various allegations bias, pointing to comments made by the judge during the trial and within the written decision. Mr. Green also alleged that an email sent to the parties from the trial judge’s office informing them of a recent Supreme Court of Canada decision demonstrated bias towards him. Justice Van den Eynden found that there was no merit to Mr. Green’s claims of bias and dismissed this aspect of the appeal.

Justice Van den Eynden determined that Mr. Green failed to demonstrate any error of the trial judge in determining retroactive and prospective child support. Therefore, there was no basis for the Nova Scotia Court of Appeal to interfere with the awards given at trial.

At trial, the judge set aside separation agreement because Ms. Green did not obtain independent legal advice. The separation agreement between the parties contained provisions that would have been favourable to Mr. Green.  Justice Van den Eynden found that Mr. Green failed to demonstrate any error of the trial judge in setting aside the separation agreement. Similarly, Justice Van den Eynden dismissed Mr. Green’s claim that the trial judge erred in making property division determinations.

The appeal was dismissed, and Ms. Green was awarded costs in the amount of $5,000.

Almon v Hill, 2022 NSSC 350
Justice Pamela Marche
Subject matter: Clerical Error             

In December, the Court released an addendum to Almon v Hill, 2022 NSSC 310, a decision about the imputation of income for child support determinations. In that decision, the judge wrote that Mr. Hill failed to file written post-hearing submissions. However, this was incorrect as Mr. Hill did indeed file written submissions. Mr. Hill’s submissions were not brought to the attention of the Court due to a clerical error.

Although a written decision had already been rendered, an order had not yet been issued by the Court. Therefore, the judge maintained jurisdiction over this matter. A conference was held between to allow the parties a further opportunity to be heard. The judge found that Mr. Hill’s written post-hearing submissions did not raise any new information that would have altered judge’s analysis of the issues at trial. Justice Marche held that an order shall be issued as previously directed at trial.

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