This Month in Nova Scotia Family Law – January 2024

January 19, 2024

Kulu v. Atuanya, 2024 NSSC 2

Judge: Honourable Justice Theresa Forgeron
Subject: Parenting and Child Support

Summary:
The parties were in a brief relationship in March 2007. There is one child of the relationship, B. He is seventeen years old. The mother lives in Nova Scotia and the father lives in the USA.

B has been in the primary care of the mother since birth. It had been two years since the father has since B when the parenting and support order was issued in June 2011. The order included the father travelling to Nova Scotia to exercise, supervised, in-person, parenting time with B and video calling parenting time. The father was ordered to pay child support in the amount of $135 monthly. The father did not exercise parenting time or pay child support. In 2012, the father asked to fly B to the US for a visit and the mother declined since B was only 5 years old and has not seen his father for three years. The father did not attempt to make further contact with B for ten years.

The US Government began collecting child support arrears for more than $18,000 USD by garnishing the father’s wages and seizing his passport. The father attempted to contact B on Instagram, but B ended the conversation quickly. There has been no further communication between the father and B. The father applied to vary his child support obligation and parenting provisions from the 2011 order. In February 2023, the father filed for interim relief and the mother contested the application and motion by filing her response in June 2023.

The interim motion filed by the father was heard on April 28, 2023. The Court declined to grant any undue hardship findings and the father was ordered to continue to pay child support set out in the 2011 order, plus an additional $250 towards the arrears, for a monthly payment of $385 USD. The contested hearing was held on December 12, 2023, the father participated virtually.

The Court found that the father was responsible for his lack of relationship with B and was an absent parent. The father chose not to exercise parenting time after the 2011 order was issued and his failure to do so was his personal decision. The Court determined that the mother did not engage in alienating conduct. In accordance with section 18 of the Parenting and Support Act, the Court determined that it is in B’s best interest to vary the father’s parenting time from the 2011 order. The father’s parenting time is subject to B’s discretion and wishes.

The father sought undue hardship. The Court denied the father’s application for undue hardship because he should have paid child support as ordered, any financial difficulties experienced today are caused by his failure to prioritize his child support obligation. The father did not provide evidence of income, tax returns, assets, debt, or expenses to support his position.

The mother’s application to vary the child support was granted by the Court. The reasonings for the variation were because the father’s income increased, and he did not exercise access so did not incur any associated expenses.

The Court denied the father’s application for enforcement because he failed to exercise the parenting time that the 2011 order provided him. In addition, the Court found that it was in B’s best interests to vary the 2011 parenting provisions such that the father’s parenting time will be at B’s discretion and subject to his wishes.

The mother’s variation application was granted, and the father’s undue hardship application was denied. The Court stated that the varied table amount of child support is due as of July 1, 2023, and is to continue monthly. The table amount of $449 CAD is based on the father earning an income of $40,000 USD or $52,800 CAD. In addition, the father will pay $151 CAD towards the arrears until the arrears are paid in full. Costs of $5,500 are granted, half of the costs award relates to the parenting issues and half to the child support issues.

 

GS v. AB, 2024 NSCA 6

Judge: Honourable Justice Anne S. Derrick
Subject: Appeal, Parenting

Summary:
This an appeal of a decision regarding parenting time. The parties were before Justice Forgeron on July 18, 2023. GS discovered on December 14, 2023, that he was out time to file an appeal from the decision of Justice Forgeron. The correct deadline for the filing of GS’ Notice of Appeal was September 21, 2023 (which is 25 clear business days from August 16, 2023, the date of judge’s Order). Once GS realized he missed the deadline, he filed a motion in the Court of Appeal seeking an extension of time. The Chambers judge has discretion under Civil Procedure Rule 90.37(12)(h) to extend the applicable time limit to permit the filing of a late Notice of Appeal.

The explanation provided by GS for the late filing were simple. He stated that he understood the judge to have told him he had six months from the date of her decision to appeal. Derrick, J.A. conducted a search of the audio recordings of the proceedings before Justice Forgeron. After listening, the Court was satisfied that GS had a genuine intention to appeal within the appeal period and a reasonable excuse for not doing so. During the audio recording, Justice Forgeron informed GS that the scrapbook he tendered as evidence would be returned to him in six months after the expiration of the appeal period.

The Court found that there was nothing in GS’ Notice of Appeal that would result in his appeal being successful. The judge found that there had been no material change in circumstances since the August 2020 order. The judge noted that the parties’ child was no longer participating in parenting time with GS and described the relationship as being seriously compromised. The Court found that GS failed to correctly apply the law and dismissed his application to extend time for filing the Notice of Appeal without costs.

 

Houlihan v. Houlihan, 2024 NSSC 9

Judge: Honourable Justice Daniel W. Ingersoll
Subject: Spousal Support, Variation, Material Change in Circumstances, Termination, Self-Sufficiency

Summary:
The parties divorced in 2007. Their Corollary Relief Order (the “CRO”) required the father to pay child and spousal support. The father stopped paying child support when the parties’ youngest child was twenty-one and no longer in school. The father is now sixty-five. He retired in September of 2023. He sought an order confirming he appropriately stopped paying child support and an order terminating spousal support.

The wife does not take issue with the cessation of child support payments but argued that the father should continue paying spousal support until the wife turned sixty-five and begins receiving Old Age Security payments.

Justice Ingersoll had to determine whether retirement constituted a material change in circumstance justifying a variation of spousal support.

Justice Ingersoll looked to section 17 of the Divorce Act which permits the variation of support obligations should there be a material change of circumstances. Justice Ingersoll canvassed the relevant case law. The case law suggests that retirement where someone did not retire early or voluntarily constitutes a material change in circumstance. Here, the husband was sixty-five and forced to retire by his employer. He is not literate in computers and therefore elected not to return to the workforce. The husband testified that he begged for an additional year of employment, but his employer denied his request. The husband’s income decreased from $75,000 per year to $21,206.65 from Old Age Security and Canada Pension Plan plus $15,600 per year from rental income. Justice Ingersoll determined Mr. Houlihan’s retirement constituted a material change in circumstance.

Given a material change in circumstance, Justice Ingersoll then determined the appropriate amount of variation. Justice Ingersoll looked to the four factors set out in section 17(7) of the Divorce Act. Justice Ingersoll determined that the husband’s income was drastically less due to his retirement, the wife’s lack of employment was not justified, and any ongoing economic disadvantage experienced by the wife is not attributable to the breakdown of the marriage. Justice Ingersoll ultimately determined that the wife has not taken any steps to pursue self-sufficiency since the parties divorced in 2007. Justice Ingersoll terminated the husband’s spousal support obligations effective September 30, 2023 (the date of retirement).

 

Butt v. Patterson, 2023 NSSC 422

Judge: Honourable Justice Cindy G Cormier
Subject: Spousal Support, Division of Assets

Summary:
The parties, AB and DP, lived together in a common-law relationship for 17 years and separated in October 2020. AB owned the home that the parties resided in when they began their common law relationship in 2003. The parties sold their first home in 2008 and received a net profit of $42,000 for the sale. The parties purchased their new home in 2008 for $202,728.91. AB claimed that DP’s name was included on the deed as it was a requirement for them to access the military moving benefits program.

Both AB and DP have been unemployed since the separation. AB shares three children from her marriage and remained legally married throughout her relationship with DP. DP has two children from previous relationships. DP’s position was that he would take financial responsibility for his two children and AB would take financial responsibility for her three children. The Court was to consider whether AB had entitlement to compensatory and non-compensatory spousal support and an equal division of all the parties’ assets or an unequal division of the parties’ joint real property, by way of unjust enrichment.

Shortly after moving into the home in 2003, DP was deployed. He stated that without his knowledge or consent while on deployment, AB moved several of his items into the home. Since the separation, DP has not been able to retrieve these items from the home. DP provided the Court with a list of the household items that belongs to him and remained in the home after the separation. DP had been prohibited from returning to the home since the separation. The Court ordered the items on the list by DP were to be made available to him for pick up.

AB applied to the Court for prospective and retroactive spousal and associated support. When DP retired from the Canadian Armed Forces in 2005 and received a lump sum of $21,000 for his military service. AB stated that although DP had prior relationships with his children’s mothers, there was no evidence that his regular military pension was ever divided with a common law partner or spouse before they began their relationship in 2003. AB argued that she was entitled to an equal division of the entirety of DP’s pension and that the remaining pension income would be available for him to pay spousal support to her, after account for the division of the entirety of his pension. The Court declined to award either party any interest in the other parties’ pension benefits or other assets in either party’s sole name.

AB worked for an insurance company until 2016, earning between $50,000 and $60,000. The parties agreed that AB was the primary income earner during their relationship. DP stated that AB paid the mortgage payments on their jointly owned home. However, DP stated that in addition to helping at home, he contributed to or paid for insurance for the house and vehicle, telephones, internet, house phone, power, all car loans, and other vehicle expenses. DP expressed that his contributions to the household equaled the financial contributions provided by AB.

After reviewing the evidence provided by the parties, it appeared the household expenses and duties were divided equally. The Court granted that each party have sole ownership of any accounts, investments, vehicles or assets of any kind currently in their own name. The Court was not prepared to grant an order requiring AB to return $50,000 that DP transferred to her. The Court found that neither party was entitled to spousal support.

 

NF v. JF, 2024 NSSC 29 

Judge: Honourable Justice Lee Anne MacLeod-Archer
Subject: Divorce, Parenting Plan, Mobility, Child Support

Summary:
The parties were married for five years and have been separated for over three years. There is one child of the marriage, CF. he is seven years old.

When the parties initially separated, they remained living under the same roof and shared parenting of CF. Once the parties completely separated, CF lived primarily with his mother. The father moved in with his sister, however, he was evicted, and child protection services became involved. The father secured living arrangements about six months ago with his father and started exercising parenting time with CF. CF stays with his father from Saturday to Sunday every weekend.

The mother sought primary care and an order permitting relocation. The mother wished to move with CF to the United States to live with her new partner. The position of the mother was that the move would offer CF financial security, an opportunity to see more of the world and the care and guidance of a committed stepfather. The father opposed the relocation and stated that during the school year, CF should live with his mother during the week and continue to spend weekends with him.

The Court found that it is in the best interest of the child for the mother to be granted primary care and sole decision-making authority and parenting time with his father.

The mother requested order to relocate. The father did not provide evidence that the move was not in the best interests of CF. The evidence established that CF did not spend substantially equal time in the care of each parent and hasn’t for a long time. The Court found that CF spends the vast majority of his time in his mother and has been staying overnight on Saturdays only since his father found an apartment.

The Court found that the father did not meet the satisfaction that the move was not in the child’s best interest. The father struggled in recent years to meet his own needs, has not paid child support and only recently secured housing. The father could not offer a plan for CF’s care beyond weekends and has not played a major role in CF’s life for the past few years. The Court granted the mobility order permitting the mother to relocate CF from Nova Scotia to the United States.

The father suggested that he should have CF in his care every summer and alternate spring and Christmas breaks. The mother argued that alternating breaks in addition to every summer involved too much travel and would impede CF’s ability to develop new relationships. The Court found that the mother’s objection failed to recognize the significant impact the move will have on CF’s relationship with his father. The Court found that the father would have parenting time with CF for two consecutive weeks every summer, alternate years for Christmas and Spring break, and flexible electronic contact. In addition, flexible and generous in-person parenting time if the father visits CF in the United States.

The mother did not request child support. The Court found that the father will be required to pay for CF’s airfare, estimate about $3,000.00 per year, plus the cost of an accompanying adult for a total of $6,000.00 per year. The Court ordered, in lieu of child support, the father will share CF’s transportation expenses.

 

LeBlanc v. LeBlanc, 2024 NSCA 13

Judge: Honourable Justice Anne S. Derrick.
Subject: Appeal, Costs

Summary:
This is an appeal decision regarding a Cost Order. On January 17, 2024, the mother sought an extension of time file a Notice of Application for Leave to Appeal and Notice of Appeal from a Costs Order. The Costs Order was issued in September 2023 by Justice Robert Gregan and ordered the mother to pay the father $4,750. Under Civil Procedure Rule 90.13(3), the mother had ten clear business days to file her Notice of Application for Leave to Appeal and Notice of Appeal. Since was out of time applying, a Chambers judge has the discretion to extend the time for late filing.

The Court was not satisfied that the mother’s main focus was on the children. The mother stated she believed she had a longer period of time to file the required documents for the extension. The judge found that the mother is not new to the appeal process and would have known how long she had to file her Notice of Application for Leave to Appeal and Notice of Appeal. The judge found it was not in the interests of justice to extend the filing time for the mother.

The Court found there to be prejudice to the father if he were to have to respond to a stale appeal. The father would have been expecting the matters relating to this proceeding to be concluded and he is entitled to finality.

The mother did not establish merit for her belief that the Cost Order was wrong and too high. She failed to provide her reasoning in her written materials or her submission at the hearing of her motion. The Court dismissed the mother’s motion without costs.

 

Zeggelaar v. Zeggelaar, 2024 NSSC 34

Judge: Honourable Justice Jean M. Dewolfe
Subject: Child Support, Parenting Plan, Spousal Support

Summary:
The parties married in December 1990 and separated in February 2021. The parties share two children, aged 19 and 18. The children have lived primarily with their mother since the separation. The father is a farrier, and the mother is a business coach, they are both self-employed. The parties attended a Settlement Conference in January 2022 and reached an agreement regarding parenting, child support and spousal support. The father was ordered to pay $2,000 a month in child support and $2,000 a month in spousal support.

The mother sought that income be imputed to the father. She did not believe that the father’s reported income accurately reflected his available income for support purposes. The basis for the mother’s position was that the father has underemployed himself, his cash income is not reported in his tax returns and his deduction of unreasonable business expenses. The father admitted that a portion of his revenue is from cash payments for services provided and agreed that CCA should be added back into his income.

The father underwent a hip replacement surgery in August 2023 as a result of arthritis. The father testified that while he was recovering his clients had used other farriers and was unsure how this would affect his prospective revenue. He stated that he was not actively seeking work and did not intend to call his former clients to advise that he was working again. The Court accepted that the father’s ability to work was impacted by his hip issued in 2021, 2022, and 2023 and accepted the reported gross business income for those years. The Court accepted the father’s 2022 gross business income as the starting point for determining his income for 2023 and 2024.

The father estimated that he brought in an extra $30,000 per year in cash. The mother argued that the total of income for work completed by cash was more like $130,000. The mother stated that majority of the father’s income was from undocumented cash work. The father failed to provide full income disclosure and the Court drew a negative inference with respect to his 2021 and 2022 income. The Court found that the value of the father’s cash work was higher than $30,000 per year estimate and that $130,000 was too high in 2021 and 2022. The Court found that the father’s cash income constituted at least 25% of his total income and accepted that this income decreased significantly due to his health issues and surgery in 2023.b The Court imputed income to the father from 2021 to 2024 ranged from $30,000 to $48,307.

The father stated that in order to calculate the mother’s income for the purposes of Section 7 expense sharing and spousal support, income should be imputed to her by adding back all of her business expenses. The Court accepted the mother’s evidence that she keeps current records of her expenses for her business and allows her to deduct expenses related to her home office.

The parties agreed that the children would continue to be children of the marriage and continue to attend their respected schools. The Court found that the expenses related to schooling were to be paid after separation. The mother argued that the fathers tax savings should be added to the retroactive child support owing. The Court found that the father owed retroactive table and Section 7 child support in the total of $19,993 to the mother for the period of March 1, 2021 to January 2021.

The mother sought prospective and retroactive spousal support on compensatory and non-compensatory basis. Her position was that she is entitled to compensatory spousal support because she was primarily responsible for caring for the children and the parties’ large property while the father was the primary “bread winner”. The mother argued that her work opportunities were limited because she was primarily responsible for caring for the children.

The father claimed that the mother had no ongoing entitlement to spousal support on either compensatory or non-compensatory basis. He pointed to the fact that the mother did, in some years, earn a significant income, and testified that he shared in the children’s care and transportation during the marriage. The father believed that his voluntary payments made between March 2021 to January 2022 and the spousal support payments made pursuant to the January 2022 Order satisfied any entitlement the mother had to spousal support following separation.

The Court found that the mother had proven entitlement to compensatory and non-compensatory spousal support. The Court explained that the parties were married for 31 years and she was the primary caregiver for their two children. Although, the mother worked during the marriage, her work was of secondary priority to her family responsibilities and the father was always the primary income earner during the marriage.

The Court granted the divorce and commencing February 1, 2021, the father is to pay table child support for two children in the amount of $1,763.00 per moth, based on an income of $131,059. In addition, the parties are to share prospective Section 7 expenses proportionate to their respective incomes. The father is to pay retroactive table and Section 7 child support of $19,993 by March 1, 2024 for the period of March 1, 2021 to January 31, 2024. Lastly, the father is to pay spousal support in the amount of $500.00 per month.

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