This Month in Nova Scotia Family Law – July 2022
Ranson v MacIntyre, 2022 NSCA 50
Justice Carole A. Beaton
Subject matter: Retroactive Child Support | Prospective Child Support | Stay Pending Appeal
In May 2022, Justice Beaton dismissed Mr. Ranson’s appeal requesting to overturn Justice Marche’s decision about spousal support. Mr. Ranson asserted that Justice Marche’s determination of Ms. MacIntyre’s ability to work was incorrect.
Ms. MacIntyre is unable to work due to medical challenges. She suffers from anxiety, depression, fibromyalgia, and essential tremors. Some of her medical challenges are due to a motor vehicle accident in 2017. Ms. MacIntyre’s doctor, Dr. Patel, testified to her inability to work. Dr. Patel’s files constituted a treating physician narrative under Civil Procedure Rule 55.14. Dr. Patel’s evidence stated that Ms. MacIntyre could work, but that the work had to be sedentary.
Justice Marche accepted Dr. Patel’s evidence and determined that Ms. MacIntyre could work for approximately 10 hours a week. There was no evidence before the Court of Appeal to overturn that finding. Justice Beaton emphasized that it is within the judge’s discretion to assign a monetary value to the evidence. There was no basis to interfere with the judge’s exercise of discretion to input income and to assess the quantum of support in the manner she did.
The appeal was dismissed, and Ms. MacIntyre was entitled to costs in the amount of $3,000.00.
XD v SZ, 2022 NSSC 202
Justice Lee Anne MacLeod-Archer
Subject matter: Relocation | Parenting Time | Alienation | Credibility
The mother sought an order permitting her to relocate from Cape Breton to Toronto with the parties now 4 and 5 year old children. The mother had already moved the children to Toronto in December 2019.
In January 2019 the parties signed a separation agreement placing the children in the mother’s custody. The father had parenting time one day per week. In August 2019, the mother advised the father by text that she intended to move to Toronto with them later that year. The court found that the father’s reply text message asking for her new address was not an acquiescence to the move. Rather, Justice MacLeod-Archer found that the father’s October 2019 request to register the Agreement and enforce his parenting time was a clear indication that he was not in agreement with the move. Despite this, the mother moved the children on December 2019.
The Court found that the mother’s text message to the father did not comply with all of the notice requirements of the Parenting and Support Act. In particular it failed to provide a date of the move, new address, or proposal for parenting time after the move. Her affidavit evidence still did not provide a specific address of her new home.
In considering the request to move, the Court found that because the mother was not in substantial compliance with the order for parenting time, no presumption in favour for or against the move applied, in keeping with section 18H(1A)(b) of the Parenting and Support Act.
The Court then considered the issue of relocation under the Supreme Court of Canada’s test in Barendgret v Grebliunas, 2022 SCC 22, and the test set out in the Parenting and Support Act.
The Court preferred the father’s evidence on the issue of family violence over the mother’s claims that he was abusive throughout the relationship. Justice MacLeod Archer fountd that there were significant inconsistencies in the mother’s evidence, and that she was evasive and strategic on cross examination. The mother’s allegations of child neglect and abuse coincide with her attempts to remove the children from Nova Scotia, and add weight to the suggestion that she has motive to deceive.
The Court found that the mother deliberately set out to exclude the father from the children’s lives, and concluded that this was alienation.
The Court highlighted that the mother moved with the children to Toronto in December 2019 under the guise of going on vacation, and then purchased a residence and enrolled the older child in school. Justice MacLeod Archer issued an order in February 2020 directing the mother to return to CBRM pending a hearing of her mobility application.
After the children’s return, the mother made a series of allegations to CPS and unilaterally reduced the father’s parenting time. The mother later split her time between Toronto and Nova Scotia, relying on her parents to care for the children in Nova Scotia, and did not offer the father additional parenting time.
The Court found that is if the children moved to Ontario that the mother would continue her interference in the children’s relationship with the father. The mother was not previously compliant with the previous court order. The children have a strong connection with the Cape Breton community.
The Court ordered that the mother and father share decision-making responsibility, with the Father choosing the children’s school in CBRM. The court ordered a week about shared parenting schedule. However, if the mother moved to Ontario, the father would assume sole parenting and decision-making responsibility.
Davis v Davis, 2022 NSSC 212
Justice Lloyd I. Berliner
Subject matter: Unequal Division of Property | Pension Division | Inherited Property | Child Support | Spousal Support
The parties separated in 2020 and have two children together (17 and 19). Both parties agree that the children are of an age that they can determine where they would like to reside.
Ms. Davis sought an order for the sale of the home, while Mr. Davis sought an order for appraisal of the home and the opportunity to retain it. Justice Berliner ordered that the home be sold on the basis that Ms. Davis was seeking to maximize the return, Mr. Davis had but did not exercise his opportunity to provide an appraisal before trial, and the ages of the children.
Mr. Davis sought to unequally divide his Canadian Armed Forces pension such that he retained the premarital portion. He argued that the pre-marital portion remained whole after his earlier separation from a common law partner only because he transferred RRSPs to account for the pension in the earlier separation.
Justice Berliner did not find that an equal division of the pension would be unfair or unconscionable as required by the Matrimonial Property Act. The pre-marital portion is presumptively divisible, the marriage was not short and the parties are in their 40s/50s, and there was no specific evidence of funds transferred to Mr. Davis’ former partner to preserve the pension. Justice Berliner retained jurisdiction to address the division of the pre-marital portion of the Pension should the pension administrator refuse to divide that portion.
Justice Berliner ordered that Mr. Davis’ post-separation contributions to the RESP be credited to him without accounting for growth or loss, since no evidence was supplied for this. The RESP funds would be first applied to the cost of education before contributions from the parents. Mr. Davis’ will manage the RESP.
Mr. Davis sought an unequal division of property to retain items he inherited from his father: boat, ATV and tools. Because the family used the boat and ATV, these were not protected from division as inherited property.
Mr. Davis sought an unequal division of property to retain the cottage he inherited from his father, but later placed in joint title with Ms. Davis. Justice Berliner found that this was matrimonial and subject to division. The court addressed the division of capital gains between the parties.
Mr. Davis argued that his disability award from Veterans Affairs was a settlement of damages exempt from division. Justice Berliner found that it was not. However, Justice Berliner did not agree with Ms. Davis’ argument that because Mr. Davis elected to convert the monthly payment to a lump sum, it was property for division. Justice Berliner ordered that the disability award was income for the purpose of support, and the lump sum would be amortized over a 80.8 year life span. Justice Berliner took judicial notice of Statistics Canada’s average life span for a male.
Mr. Davis sought to impute income to Ms. Davis during the time that she received EI and social assistance. Justice Berliner declined to do so. He was satisfied that her inability to work in that period was compromised by her ill health.
Mr. Davis acknowledged that he owed retroactive child support for the period of time that the children lived with the mother post-separation, however requested a credit for the amount that he spend on the children and mortgage payments while Ms. Davis lived in the house. Justice Berliner declined to find that any of the costs spend on the children were credits, as these would be s7 expenses. He ordered that the mortgage payments made by Mr. Davis post-separation be considered family debt, and reimbursed to him from the proceeds of the sale of the home.
Justice Berliner found that Ms. Davis had a compensatory and non-compensatory claim for support.