This Month in Nova Scotia Family Law – February 2022

This Month in Nova Scotia Family Law – February 2022

March 14, 2022
Green v Green, 2022 NSSC 30
Justice Theresa M Forgeron

Issues: Judge Recusal | Divorce Proceedings

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.

Gillis v Tully, 2022 NSSC 50
Justice Cindy G. Cormier

Issues: Parenting Time

The parties separated in 2016 and had an 8 year old son. Ms. Gillis filed an application to vary parenting after learning that Mr. Tully was excessively violent with his girlfriend for a period of 5 days. His girlfriend then tried to commit suicide, and Mr. Tully faced criminal charges.

Ms. Gillis sought an order requiring all parenting time be arranged by agreement between the parties, parenting time be supervised, and not bring their son around third parties without Ms. Gillis’ written consent. Mr. Tully argued that it was not in their son’s best interest to have reduced or supervised parenting time, and that his regular schedule should be followed.

The Court found that the parties had agreed to advise the other parent of any health, including mental health, issue that may affect their ability to parent. Mr. Tully’s criminal charges that may have related to his mental health and impacted his ability to parent constituted a change of circumstances to vary parenting.

Considering the circumstances, the Court varied Mr. Tully’s parenting terms and required Mr. Tully to have partial supervision during his daytime parenting time and full supervision during overnight parenting, prohibited Mr. Tully from introducing his son to his intimate partners until he has completed necessary programs on healthy relationships, and encouraged Mr. Tully to seek professional help to address his anger issues. Otherwise, the parenting arrangements remained the same.

The Court determined that the new requirements would balance the strong relationship Mr. Tully had with his son, with the additional risks Mr. Tully’s conduct with his girlfriend raised.

Simmons v Bennet, 2022 NSSC 27
Justice Cindy G. Cormier

Issues: Endorsement | Costs | Parenting Time | Child Support

Mr. Bennet was ordered to pay Ms. Simmons costs of $7,000 on or before March 1, 2022. In May 2021, Mr. Bennet requested the Court to revisit the parties’ parenting arrangement. The Court confirmed the parenting arrangement the parties initially agreed to in January 2021. The Court also considered issues concerning child support. At the final hearing, the Court granted Ms. Simmons full custody and final decision making. Mr. Bennet was required to pay Ms. Simmons retroactive child support. Ms. Simmons was the most successful party and Mr. Bennet had delayed the proceedings. This favoured the Court’s discretion in awarding costs to Ms. Simmons.

Ramsay v Reilly, 2022 NSSC 26
Justice Cindy G. Cormier

Issues: Endorsement | Costs | Parenting Time | Child Support

A hearing took place concerning the parties’ interim custody, parenting and child support. Ms. Reilly was the substantially successful party at the hearing on all issues. Mr. Ramsay was ordered to pay Ms. Reilly costs of $1,000.

Bailey v Lenihan, 2021 NSSC 315
Justice Cindy G. Cormier

Issues: Endorsement | Costs 

The parties had been before the Court on numerous occasions. Several motions and hearings took place. The issue concerning Mr. Lenihan’s parenting time and decision-making for the children was scheduled for a final hearing in October 2021. The Court determined that costs should be considered “in the cause” following the final hearing held in October 2021.

Hartlen v McNeil, 2021 NSSC 223
Justice Cindy G. Cormier

Issues: Child Support | Spousal Support

The parties divorced in 2017. Mr. Hartlen sought to have the Court finalize outstanding issues arising from the 2017 decision. Ms. McNeil argued that she had been incapacitated and unable to participate at trial in 2017. She argued the Court could and should vary, rescind, or suspend final determinations of fact made in 2017.

The Court determined that Ms. McNeil was not incapacitated in 2017. The Court found that Ms. McNeil’s failure to understand and appreciate the risks and consequences of not fully participating at trial is different than finding she was unable to understand and appreciate the risks and consequences of not fully participating at trial.

In finalizing the outstanding issues, the Court approved the draft calculation and draft Corollary Relief Order. Mr. Hartlen was found to have overpaid child support and Ms. McNeil was ordered to reimburse him. The Court found the 2017 determination of value of assets and debt owed were final. Finally, as it related to spousal support, the Court found that because of Mr. Hartlen’s inability to pay spousal support, the parties’ respective means, and because the parties have now been separated for 9 years, entitlement to spousal support terminated as of December 1, 2020.

Hovey v Hanson, 2021 NSSC 89
Justice Cindy G. Cormier

Issues: Retroactive Child Support

The parties had three children. They separated in 2009. Mr. Hovey asked the Court to address the issues of custody, access, prospective and retroactive child support and division of assets. A trial was held in November 2020 where the parties came to agreements on custody, access, and division of assets.

Mr. Hovey claimed that after separation, the parties shared parenting until 2011. Mr. Hovey did not pay any child support between January 2010 and December 2010. Mr. Hovey argued that the children were in the care of the maternal grandparents between May 2011 and April 2012. Ms. Hanson argued that the children were in her primary care until March 2015, when the two began living with Mr. Hovey. The third child also began living with Mr. Hovey in September 2016.

The Court determined that Mr. Hovey was responsible for child support payments from January 2011 through April 2012. He owed Ms. Hanson $1,276 for that period. The Court also found that all three children primarily lived with Ms. Hanson between May 2012 and March 2015. Mr. Hovey significantly underpaid child support for that period and as such owed Ms. Hanson $39,764 in retroactive child support. From April 2015 to August 2016, Ms. Hanson owed Mr. Hovey $1,922 in child support. And for the period from September 2016 to October 2017, Ms. Hanson owed Mr. Hovey $16,304 in child support. By November 2017, Ms. Hanson began paying child support.

The Court found that the matter could return to Court to determine Ms. Hanson’s future in person parenting time with the children.

Donelle v Donelle, 2021 NSSC 311
Justice Cindy G. Cormier

Issues: Endorsement | Parenting Time | Relocation

The biggest issue to be resolved was Mr. Donelle’s request to relocate to Ontario and the resulting custody and parenting arrangements that would flow from that decision. Ms. Donelle successfully prevented the child’s relocation. The Court ordered Mr. Donelle to pay Ms. Donelle costs of $6,000 by December 1, 2021.

Gill v Janes, 2021 NSSC 294
Justice Cindy G. Cormier

Issues: Endorsement | Child Support

Mr. Janes’ application to vary the parenting arrangements was dismissed. Mr. Janes was ordered to pay the table amount of child support ($344.67) to Ms. Gill and a share of child-care expenses of $135. Mr. Janes’ was also found to owe $3,493.04 in retroactive child support for the period of January 1, 2020 through to August 31, 2021, $3,462.16 for the period of January 1, 2019 to December 31, 2019, and $6,970.16 for the period of January 1, 2018 through December 31, 2018. The Court did not find the retroactive child support would cause Mr. Janes undue hardship.

Zarczynski v Niedzwiecka, 2021 NSSC 364
Justice Cindy G. Cormier

Issues: Endorsement | Parenting Time | Costs

The Court ordered Mr. Zarczynski to pay Ms. Niedzwiecka $8,000 in costs plus disbursements. Mr. Zarczynski applied to change the 2018 parenting arrangements in 2020. This was Mr. Zarczynski’s second variation application since 2018. At the hearing in 2021, it was determined that there was no change of circumstances. Mr. Zarczynski’s application was dismissed. Ms. Niedzwiecka was entirely successful.

Elwood v Dugas, 2021 NSSC 169
Justice Cindy G. Cormier

Issues: Endorsement | Child Support | Parenting Time

The Court ordered the parties to have joint custody of their child, Lucy, and Ms. Dugas was to have parenting time with Lucy one weekend of every month. Their son, Noah, was a dependent child over 19 while he was engaged in full time studies. Ms. Dugas was ordered to pay the table amount of child support for Noah with either party paying the set-off depending on their incomes. Mr. Elwood was ordered to pay Ms. Dugas $6,356 in retroactive child support. Ms. Dugas was ordered to contribute $171 per month to Noah for extraordinary post-secondary expenses between January 2020 and December 2023. Ms. Dugas and Mr. Elwood owed Noah $2,408 each for retroactive post-secondary expenses.

Marchand v Joyce, 2021 NSSC 117
Justice Cindy G. Cormier

Issues: Endorsement | Child Support | Parenting Time

Child support and decision making were continued as outlined in the Corollary Relief Order issued May 13, 2015. The Court found that Ms. Joyce was entitled to spousal support indefinitely. However, due to the parties’ circumstances, namely Mr. Marchand not being able to work and Ms. Joyce becoming financially self-sufficient, between August 2017 and March 2021, Ms. Joyce was entitled to $0 in spousal support.  Still, Mr. Marchand was ordered to pay $200 per month on the global amount of arrears of spousal support and child support of $22,000.85 owing up until October 31, 2017.

Mogg v Reid, 2021 NSSC 15
Justice Cindy G. Cormier

Issues: Endorsement | Child Support 

Ms. Mogg sought $700 per month in child support prospectively and retroactively to March 1, 2017. Mr. Reid was ordered to pay the table amount, $258, of prospective child support to Ms. Mogg between February 2020 to September 2021. As of October 1, 2021, Mr. Reid was ordered to pay the prospective table amount of $341 to Ms. Mogg. Mr. Reid was also ordered to pay retroactive child support to Ms. Mogg for a total payment of $14,015. The Court also imposed ongoing disclosure requirements on Mr. Reid. He must disclose his income from “all” sources, employment or otherwise, to Ms. Mogg on a yearly basis until the child turns 19.

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