Davis v Harrison, 2023 NSCA 74 Judges: Justice Anne S. Derrick; Chief Justice Michael J. Wood and Justice Joel E. Fichaud concurring Subject Matter: Matrimonial property; Pension division; s. 13 MPA; Costs; Fresh Evidence Summary: The parties were married for 20 years. The contested issues at trial included the division of the appellant’s Canadian Armed […]read more
This Month in Nova Scotia Family Law – January 2022
Woods v Ferguson, 2022 NSCA 1
Justices Van Den Eynden, Hamilton, and Scanlan
Issues: Corollary Relief Order | Division of Property
Mr. Woods and Ms. Ferguson were middle-aged when they married. Their divorce and division of property took place in 2014-2015. Mr. Woods was found not entitled to spousal support and Ms. Ferguson never claimed spousal support. A Corollary Relief Order was issued in 2014. However, the equalization payment for the division of the property was not calculated. It would depend on many factors, including the sale prices and costs incurred in selling rental properties and would involve offsetting credits and debits. One of the debts in Mr. Woods’ name was $39,858.26 that he owed to the Canada Revenue Agency (“CRA”) for his unpaid income tax prior to divorce. In the divorce decision, Justice Gass directed Ms. Ferguson to control these matters. Mr. Woods filed for bankruptcy in September 2015. Ms. Ferguson sold two of the rental properties before Mr. Woods filed for bankruptcy.
When Ms. Ferguson went to sell the third rental property, she became aware the CRA had filed a lien for the amount Mr. Woods owed in unpaid taxes. Ms. Ferguson chose to pay the CRA to remove the lien and sell the property.
Mr. Woods was discharged from bankruptcy in January 2017. In 2018 Ms. Ferguson calculated the amount she felt she was owed under the Corollary Relief Order and sought an execution order against Mr. Woods for that amount under Nova Scotia Civil Procedure Rule 78.08. Except for the consequences of Mr. Woods’ bankruptcy, there was no dispute between the parties that Mr. Woods owed a significant equalization payment to Ms. Ferguson.
The judge ordered Mr. Woods to pay $41,052.82 to reimburse Ms. Ferguson for the money she paid to the Canada Revenue Agency concerning Mr. Woods’ unpaid income tax and to obtain deeds from the trustee in bankruptcy conveying Mr. Woods’ interest in two properties to her.
Mr. Woods appealed this unreported decision.
The appeal was granted. The Court of Appeal determined the judge erred by failing to consider the legal principles applicable on a motion pursuant to Rule 78.08. Rule 78.08 cannot be used to vary a portion of the Corollary Relief Order dealing with matrimonial property on divorce. Rule 78.08 can only be used to correct clerical or accidental mistakes or to provide for something that should have been but was not adjudicated on.
The appeal was allowed, without costs. The basis for the appeal was raised by the Court and not the grounds of appeal raised by Mr. Woods.
Green v Green, 2021 NSCA 90
Issues: Motion to Dismiss Appeal
The parties had a divorce hearing on June 9, 2021, to determine corollary issues pertaining to parenting, child support and division of property. An oral decision was issued that same day. Mr. Green filed a Notice of Appeal challenging the oral decision on July 5, 2021. The Registrar outlined directions to Mr. Green to move along his appeal on July 16, 2021. The Corollary Relief Judgment was issued November 1, 2021. Mr. Green did not file a motion for date and directions by the October 28, 2021 deadline, despite the Registrar outlining this deadline to him on July 16, 2021. The Registrar brought a motion to dismiss the appeal.
Mr. Green says he did not file his motion for date and directions by the deadline because he had not yet received an order from the judge. Indeed, Mr. Green did not receive an order until November 12, 2021.
Mr. Green complied with the Registrar’s directions in all other respects. Given Mr. Green’s reason for the delay, the fact he has arguable issues for appeal, the Court of Appeal’s finding that Mr. Green is acting in good faith in advancing his appeal, the indication that he is willing and able to comply with further direction from the Court, and the conclusion that Mr. Green would suffer prejudice should the appeal be dismissed, the Registrar’s motion was dismissed.
Currie v Currie, 2022 NSSC 23
Justice Pamela A. Marche
Issues: Retroactive Variation to Decrease Support | Imputed Income
In 2005, Mr. Currie was ordered to pay Ms. Currie $1,000 per month in spousal support and $2,000 per month in child support for their three children. Mr. Currie did not make payments and now owes approximately $285,361 in support arrears.
Mr. Currie sought to retroactive variation of his support obligation and consequently a reduction of his arrears. Ms. Currie agreed to terminate child support retroactive to 2017 because the children were no longer dependent. Ms. Currie further agreed to terminate prospective spousal support. She contested the rest of Mr. Currie’s application.
In 2005, the Court imputed Mr. Currie’s income and ordered disclosure beyond Mr. Currie’s personal income tax returns. Mr. Currie argued that because his annual income had been less than the imputed $57,000 this warranted a retroactive variation to 2006. Mr. Currie argued that there has been no finding of entitlement to spousal support and therefore no spousal support should be paid, retroactive to 2006.
The framework for retroactive variation to decrease support was set out in Colluci v Colluci, 2021 SCC 24. In that case, the onus is on the party seeking the retroactive decrease to show a change in circumstances.
The Court determined that because Mr. Currie’s retroactive variation claim was solely based on a change in imputed income, he must do more than simply produce his income tax returns to show his income was lower than the imputed income. The Court found that Mr. Currie failed to demonstrate why income should no longer have been imputed to him.
Whalen v Barton, 2022 NSSC 24
Justice Gail L. Gatchalian
Issues: Summary Judgment | Common Law Partners
The Parties owned a property together as joint tenants. They bought it in 2012 when they were a common law couple. The Parties separated in 2018 and Ms. Whalen moved out. Mr. Barton still lived there with his new partner and their child. Ms. Whalen sought an order for the sale of the property and equal division of the proceeds. Mr. Barton wanted to keep the property and buy out Ms. Whalen’s interest.
Ms. Whalen made a motion for summary judgment on the evidence. She sought an order under the Partition Act because she has a right to have the property sold and the proceeds divided. She argued there was no genuine issue of material fact concerning her request for an order and there is no question of law to be determined. Therefore, she argued that she is entitled to the order on the undisputed facts and on the law to an order for sale.
The Court granted summary judgment in part. The parties owned the property as joint tenants and a fair division of the property is not possible. Therefore, Ms. Whalen is entitled on the undisputed facts and on the law to an order for sale and an equal share of the net sale proceeds, subject to an adjustment for mortgage payments made after the parties separated.
However, there is a dispute about the parties’ entitlement to equitable allowance for mortgage payments made between February 1, 2018, to December 31, 2018. The Court found that because a factual dispute about the date of the parties’ separation exists, that issue would be resolved at trial.
Wolfson v Wolfson, 2022 NSCC 25
Justice Therea M. Forgeron
Issues: Division of Property | Spousal Support
This decision determined the ancillary issues arising from the divorce decision reported as Wolfson v Wolfson, 2021 NSCC 260 that is summarized in our “This Month in Family Law – September 2021” article.
In addressing the ancillary issues, the Court found that an immediate equalization payment is preferable because it offers a clean break for the parties with respect to the properties issues. If Mr. Wolfson wants to proceed with an immediate transfer of the equalization payment, he will transfer $4,548,134 to Ms. Wolfson by March 24, 2022.
The Court also granted Ms. Wolfson’s request for monthly payments of $13,914 is spousal support based on the parties’ stated incomes and the factual findings from the divorce decision. In coming to that amount, the Court denied Mr. Wolfson’s request for bifurcation because it must be filed before trial commences and not after a decision is rendered. Furthermore, the Court refused to continue the trial because this is not an exceptional case where the Court would have the authority to withdraw, modify, or reverse its decision. The Court ordered that the spousal support obligation be secured by life insurance in the amount of $500,000.
The Court noted that co-operation and co-parenting under a shared parenting arrangement extends to the processing of section 7 expenses. Going forward, Ms. Wolfson should obtain reimbursement for school supplies, summer camp expenses, agreed upon extracurricular activities, medical and dental expenses, synagogue membership and half the cost of the Waegwoltic family membership. Mr. Wolfson should obtain reimbursement from Ms. Wolfson for private school tuition.
Finally, the Court concluded that if the parties cannot reach agreement on the dates and details for the division of home furnishing and personal property as outlined in the divorce decision, a further motion hearing will be scheduled.
Grafton Connor Group v Murphy, 2022 NSSC 7
Justice John Bodurtha
Issues: Implied Undertakings
This is not a Family Division decision; however, implied undertakings are often relied on in the family law context. This decision has been included for its commentary on competing interests.
Marsh Canada Limited (“Marsh”) brought an application to waive the implied undertaking pursuant to Nova Scotia Civil Procedure Rule 14.03 concerning materials disclosed during the prior proceedings in Grafton Connor Group v Murphy, 2021 NSSC 153.
Marsh has filed two applications for a bankruptcy order against Beaufort Investments Inc. and Grafton Connor Group. Marsh seeks to use evidence of Grafton’s financial position to support the bankruptcy applications.
In determining whether the motion should be granted, the Court found that competing interests should be identified and weighed against one another to decide if the implied undertaking that protects the examinee’s privacy interest and the public interest in efficient litigation should be modified. In weighing the competing public interests in the motion, the Court determined that there is a superior public interest in creditors pursuing enforcement in subsequent proceedings over the interests of debtors. As such, Marsh, as a creditor, should be able to take all necessary steps to obtain payment of an unpaid judgment. Therefore, Marsh’s motion was allowed.