Weagle v Kendall, 2023 NSCA 47 Judge: Justice Carole A. Beaton Subject Matter: Parenting Time; Relocation The father appealed from the trial judge’s decision allowing the mother to relocate their child from Halifax to Ottawa. The appeal was allowed, and the matter sent for a rehearing with another judge. The judge erred in overemphasizing the […]read more
This Month in Nova Scotia Family Law – July 2023
R.H. v A.L.S., 2023 NSSC 171
Judge: Justice Samuel Moreau
Subject: Primary Care; Parental Decision Making; Parenting Time
The parties separated in 2020 after 13 years of marriage. The separation had been highly contentious. The father, R.H., sought primary care and decision-making responsibilities for their 8-year-old child, while reducing the mother’s parenting time. The mother, A.L.S., sought to return to a shared parenting arrangement and to have decision-making responsibility.
The Court determined that where there is any conflicting evidence, they will accept the father’s version. This is because the mother was deemed to be self-serving; she has a lack of insight on how her behaviour has impacted B, and her evidence was focused on how the separation impacted her specifically and not what was in the best interest of B.
The Court determined that it is within B’s best interest to remain in the primary care and residence of the father. However, the judge did not find that reducing the mother’s parenting time will be beneficial. The mother will maintain her current parenting time schedule, where she has B every second weekend.
The Court found that joint-decision making between the parties was “unworkable” and that it is in the best interest of B to have the father as his appointed decision-maker. The parties have been deemed incapable of communicating on a civil level, and so it has been ordered that they continue to communicate via email only, where text messaging is allowed in only emergency situations.
Either parent is able to travel outside of Nova Scotia with B, including international travel. Notice of 60 days must be given to the other parent for travel of this kind. The only exception to this is in relation to emergency situations, which include family emergencies.
Bennett v Pettipas, 2023 NSSC 198
Judge: Judge Lawrence I. O’Neil
Subject: Unjust Enrichment; Credibility; Joint Family Venture
Mr. Bennett and Ms. Pettipas were in a common law relationship. Mr. Bennett claimed to have provided Ms. Pettipas with money and services which benefitted her and caused him to suffer a corresponding deprivation. He sought a joint family venture, or alternatively, quantum meruit. Ms. Pettipas denied that the parties were living together in a common law relationship.
The court considered the credibility of the parties and found that Mr. Bennet was forthright and candid, whereas Ms. Pettipas was strategically deceptive and called witnesses to give evidence she knew was untrue. The court accepted Mr. Bennett’s evidence and held that the parties had been in a (tumultuous) common law relationship for 9 years.
The court then considered whether Ms. Pettipas had enjoyed an enrichment for which Mr. Bennett had suffered a deprivation.
A house had been built in 2011 that was in Ms. Pettipas’ name alone. It was sold in 2017. A second home was built in 2017, which was also only in Ms. Pettipas’ name. The parties separated in 2019, and the second home was sold for approximately $600,000.00, half of which was held in trust pending this litigation. Mr. Bennett claimed that he had contributed to the household expenses and was also heavily involved in the construction of both homes. Mr. Bennett’s brother was the contractor engaged for the construction of both houses, and he claimed that he had charged Ms. Pettipas and Mr. Bennett a discounted rate, in part because Mr. Bennett had contributed free labour. The court accepted this evidence. The court also accepted that Mr. Bennett had regularly contributed financially to the household.
The court held that Mr. Bennet had proven a joint family venture. The parties had contributed mutual effort to the construction of the homes and had planned to operate both of their businesses from their home, indicating personal and business life integration. Ms. Pettipas had managed their bank accounts and had received $30,000 of Mr. Bennett’s inheritance. Ms. Pettipas was unemployed during much of their relationship and benefitted from Mr. Bennett’s income.
The court held that the value of Mr. Bennet’s contribution, including household expenses and labour on the two houses, was $70,000. The court acknowledged that Ms. Pettipas made a significant capital investment into the homes. Ms. Pettipas was ordered to pay this amount from the proceeds of sale of the second house that were held in trust.
MacLean v Francis, 2023 NSSC 212
Judge: Justice Moira C. Legere Sers
Subject: Child support; Costs
This matter concerned a motion for costs regarding an application to vary a child support order. The motion for costs related to the inadequacy of and delay in the Respondent’s document disclosure.
The parties have two children together. There have been a series of child support orders relating to these children. The Court issued the first child support order on May 4, 2011. At that time, Mr. Francis worked full-time for the Band Council. Through this employment, he received an honorarium. Mr. Francis also received income from fishing. The court imputed his income during this period to be $117,200. In August 2012, Mr. Francis advised that he had lost his employment with the Band Council. He made an application to vary the child support order due to this change in his income. In this application, Mr. Francis also advised the court that he started a tuna chartering business and that he was making $75,000. The court ordered Mr. Francis to pay $1,226 per month in child support for the two children.
In July 2020, Ms. MacLean applied to vary this order and sought retroactive child support back to 2013. She argued that Mr. Francis’s income was significantly higher than the income he declared.
Mr. Francis filed a statement of income in September 2020. Shortly after this, Ms. MacLean retained legal counsel. In January 2021, the Court ordered Mr. Francis to submit full financial disclosure. Mr. Francis responded to this order 9 months later, however incomplete. Mr. Francis also applied to vary the parenting order to create a shared custody arrangement at this time.
In January 2021, the Court ordered Mr. Francis to file full financial disclosure, including his crab and tuna income. The Court directed these documents to be disclosed by April 15, 2021, and specified that the documents must include his personal and business income.
In April 2022, Mr. Francis provided a partial disclosure. He filed this disclosure on the day before he was scheduled for his court appearance. The Court adjourned for 2 weeks to allow for the review of these documents. However, further adjournments took place until October 2022.
In October 2022, the Court issued an order for production of missing financial records. Mr. Francis provided the records one day before his court appearance on May 31, 2023.
In May 2023, the Court held that Mr. Francis was under a positive duty to meet disclosure requirements. The Court stated that the information Mr. Francis was required to disclose was either in his control or available to him, given the court order that was issued to retrieve it. As such, his failure to provide these documents in a timely manner was inexcusable.
Considering the number of delays and Mr. Francis’s failure to make full financial disclosure as directed by the court, Mr. Francis was ordered to pay $2,550 in costs to Ms. MacLean by July 15, 2023.
I.C. v. M.C., 2023 NSSC 170
Judge: Justice Samuel Moreau
Subject: Child Support; Spousal Support; Imputed Income
The parties were married in the Philippines in 2013, lived in Ontario until 2015, and separated in 2021. The parties have two children, one born in 2017 and the other in 2018.
In a previous settlement conference, the parties agreed to a Consent Order which provided that they would have shared parenting alternating each week (subject to longer blocks of time if the father returned to Ontario), that major decisions would be made jointly, and that each parent had the ability to access information about the children such as medical and educational records. The parties agreed to a second conference to determine whether M.C., the mother, was entitled to spousal and child support.
On the day the second settlement conference was to occur, I.C., the father, informed the court that he wished to retain other legal counsel and that he would not be participating in the settlement conference. A trial date was scheduled, and the father was ordered to file current statements of income, expenses and property. The father took the children to Ontario and refused to return them. The mother traveled to Ontario to retain legal counsel there, and requested an adjournment of the trial, which was granted. The case went to trial several months later.
At trial, the father’s income was in dispute, as he had never complied with the order to provide updated income, expense and property statements. He was employed as an apprentice welder from 2015 until 2022 and owned a farm in Ontario which he had listed for sale. The mother argued that the father was intentionally underemployed and requested that his income be imputed.
The court held that the father was intentionally underemployed because he had failed to disclose updated statements of income, expenses and property. Further, he had the professional qualifications to earn income as a welder, he owned and resided on a farm that had previously generated income, no evidence was provided for why he was no longer employed as a welder, and there was no evidence of poor health or any other reason he could not earn more. The court imputed an income of $77,981.33 based on an average of three years of reported earnings.
The court held that the children had a right to child support based on this income. The father was ordered to pay $1,182.00 a month in child support based on the Ontario tables.
The mother’s role in the relationship included raising the children, cooking, cleaning, and daily chores. The court held that she was entitled to spousal support for four years based on the duration of the marriage, the roles of the parties, and the reduction in her standard of living following the separation. The father was ordered to pay $357.00 a month based on the Spousal Support Advisory Guidelines. The mother was granted primary care and residence of the children.
Bose v Bose, 2023 NSSC 229
Judge: Justice Elizabeth Jollimore
Subject: Contempt of Court; Corollary Relief Order
Mr. Bose applied for an order finding Ms. Bose in contempt of a corollary relief order which provided conditions for parenting time and information regarding their child. Civil contempt must be proven beyond a reasonable doubt. Mr. Bose had to prove that the terms of the order stated clearly what should and should not be done, that Ms. Bose had actual knowledge of the order, and that Ms. Bose had intentionally contravened a term of the order.
Mr. Bose alleged that Ms. Bose had failed to provide current information about their son, had denied him parenting time and did not meaningfully consult with him on major health decisions regarding their son’s health, all in contravention of terms of the corollary relief order.
The court was satisfied beyond a reasonable doubt that Ms. Bose had knowledge of the order. At issue was the clarity of the terms of the order, which Ms. Bose argued were not clear and unequivocal. She argued that the order did not specify how quickly she had to provide Mr. Bose with an updated phone number, email address or residential address. The court found that the order required both parents to provide transportation at the start or end of their parenting time, and that parenting time was to occur no more than four days apart. The court reasoned that this meant Ms. Bose had to notify Mr. Bose within days of a change of address, so that Mr. Bose could pick up or drop off the child at his next parenting time, and that the order was clear and unequivocal.
Ms. Bose argued that the order was unclear because it did not specify what would occur if parenting time was missed. The court rejected the argument that future parenting time was contingent on past parenting time and held that the order was clear and unequivocal. Ms. Bose also argued that the order was unclear because Mr. Bose had selected her house as the location for the first parenting time, and that it was unconscionable for Ms. Bose to be ordered to have Mr. Bose in her home. The court rejected this argument, holding that it was improperly framed as a lack of clarity, and noted that Ms. Bose had asked the court to order that Mr. Bose’s parenting time be in her home.
The court held that there was no evidence showing that Ms. Bose had changed the child’s address beyond a reasonable doubt, or that Mr. Bose had been denied parenting time at a location of his choice on any date other than February 28, 2022. The court held that Mr. Bose had proven beyond a reasonable doubt that he was denied parenting time on a number of occasions, and that Ms. Bose had intentionally violated the order.
The court ordered that the parties attend a penalty phase for this proceeding.
Nadeau v LaKing, 2023 NSSC 214
Judge: Justice Elizabeth Jollimore
This decision deals with the costs arising from a previous decision. The past decision, reported at 2023 NSSC 172, was summarized in our blog post dated July 10, 2023. The past decision dealt with a claim for property division made by Mr. Nadeau.
In this decision, both parties claimed they were the more successful party and therefore entitled to costs. Justice Jollimore found that Ms. LaKing was the more successful party for three reasons. First, Ms. LaKing’s payment to Mr. Nadeau was reduced by $66,100.00 based on the value of her home. Second, Mr. Nadeau was ordered to repay a $20,000.00 RRSP loan from Ms. LaKing. Finally, Ms. LaKing was ordered to pay Mr. Nadeau $6,000 for his work on the cottage, not the $25,000.00 he sought.
Further, Mr. Nadeau made seven settlement offers, none of which were more favorable than what Ms. LaKing received in the court’s decision. Ms. LaKing made two settlement offers, including one that was more acceptable than the result Mr. Nadeau received at trial.
For these reasons, Mr. Nadeau was ordered to pay Ms. LaKing $19,750.00 in costs.
Whitman v Hammond, 2023 NSSC 234
Judge: Justice Elizabeth Jollimore
Subject: Unequal Division; Inheritance
The parties lived together for about 4 years, and then were married in 2015. They separated in mid-2021. Ms. Whitman sought an equal division of the matrimonial property and Mr. Hammond sought an unequal division, relying on ss. 13(b) and (e) of the Matrimonial Property Act.
The court held that all the assets the parties held were matrimonial and subject to division. The most significant asset was the matrimonial home, valued at $506,100. The matrimonial assets also included Ms. Whitman’s RRSP, the contents of the house, and two vehicles. The parties each had debts.
The court considered each party’s debts and concluded that an equal division would not be unconscionable on these grounds. The court then considered the manner of the acquisition of the assets and found that more than 90% of the value of the assets originated with Mr. Hammond’s inheritance, although Ms. Whitman had worked and contributed to household expenses.
The court held that it would be unfair or unconscionable to divide the matrimonial property equally and ordered a 75%-25% division in favor of Mr. Hammond. Ms. Whitman would retain her RRSP and Mr. Hammond was ordered to pay her $113,275 in satisfaction of her 25% interest in the matrimonial property. The parties were responsible for their own debts.
J.H. v R.H., 2023 NSSC 237
Judge: Justice Theresa Forgeron
Subject: Parenting; Child Support; Spousal Support
The parties have a child who is almost 13 years old. The mother, J.H., sought primary care of the child and spousal support. JH also argued that the father, R.H., had under-reported his business income and claimed unreasonable business expenses.
In response, R.H. sought a shared parenting arrangement with no child or spousal support payable. He argued that J.H. was underemployed by taking part-time positions, and that income should be imputed to her. The father’s position was that once income was imputed to JH, the parties would earn comparable incomes and no spousal or child support would be payable, except splitting s. 7 expenses equally.
On the issue of child support, the court found that it was in the child’s best interests to continue in the mother’s primary care for five reasons: the preservation of the status quo; the child’s needs; the child’s strained relationship with the father; the provincial court undertaking; and the child’s wishes. While the court had no Voice of the Child Report, they were satisfied the child wanted to live in the primary care of the mother. This conclusion was drawn from the fact that the father lived directly across the street from the mother, and had the child wanted to live with her father, she could have done so. The father was ordered to have reasonable parenting time with the child upon reasonable notice, which would include at least one overnight per week, and special occasion parenting time.
On the issue of J.H.’s income, the court agreed that the mother was underemployed based on her previously earning $45,000.00 while working full time. The court found that J.H. was capable of earning $45,000.000 per annum and imputed her income to this amount for support purposes.
On the issue of R.H.’s income, the court was satisfied that J.S. had proven that income should be imputed to the father in the amount of $200,000.00 for several reasons. Mainly, R.H. was shown to have under-reported his income by storing large quantities of cash in his home, failing to disclose financial documents to the court, and unreasonably claiming personal items as business expenses.
For these reasons, the court ordered the father to pay the table amount of child support in the monthly amount of $1,611.00 and 82% of the child’s uninsured medical expenses. Further, the father must pay J.S. monthly spousal support in the amount of $1,000.00.
D.G. v R.A., 2023 NSSC 190
Judge: Justice Lester Jesudason
Subject: Parenting; Child Support;
The parties have a child who is 10 years old. While there was no question as to both parties loving their daughter, they were unable to come to an agreement regarding decision making, parenting time, and child support. Their disputes resulted in the Department of Community Services considering commencing a separate court proceeding under the Children and Family Service Act if the parties were unable to minimize the emotional harm they were inflicting on their child.
On the issue of decision making, the court concluded that the parties are to consult on decisions not involving a third-party professional, but that the father will have final decision-making authority. The judge felt that the evidence demonstrated the father has more consistently made decisions with the child’s best interests at heart. The mother had made several unilateral decisions in the past, particularly around schooling, which have ultimately led to the child falling behind in school. The court also acknowledged that a decision had to be made regarding which school the child would attend before the summer; and the court felt the father’s proposal was more inline with the child’s best interests.
On the issue of parenting time, the parties were operating on a week about schedule. The court ruled that the child would live primarily with the father and have parenting time with the mother every other weekend. The rationale for this decision was that the father provided the child with the best chance of consistency and routine, which will hopefully allow her to both catch up in school and continue to develop physically, emotionally, and socially.
On the issue of a potential order of a review of the parenting arrangements, the court declined to do so. They reasoned that in doing so, it would only allow for the litigation to linger, which may only “fuel the flames” of the parental tug of war. Further, as DCS is actively involved with this family, there was a comfort level knowing that another set of eyes were on the parties. The court also acknowledged that the mother retains the right to seek a variation order. They outlined that if she is able to obtain a permanent residence, parental communication improves, and her other long-term plans are solidified, she could seek a variation order. They also provided that these occurrences taking place would not automatically amount to a material change of circumstances, but rather it would be dealt with at the time of a potential variation application.
The court refused to impute income for the mother, finding that she had reasonable justifications for not having pursued income post separation. These justifications included having to find suitable housing and navigating shared parenting during the pandemic while not having a vehicle and having to get her daughter to school and tutoring. Further, the mother’s plan to go back to Nova Scotia Community College was deemed to be reasonable and likely in the best interests of the child.
On the issue of section 7 expenses, the court awarded proportional sharing for the tutoring costs, with the knowledge that the mother was unemployed and earned significantly less than the father. They declined to order the mother contribute to after school care expenses, partly due to the mother’s low income and also because no evidence of these expenses had been put before the court.
Finally, the court declined to order retroactive contribution to tutoring expenses, as they concluded that prospective awards take priority over retroactive ones and that the mother’s income is very modest and it would place an unwarranted financial burden on her.
Wolfson v. Wolfson, 2023 NSCA 57
Judge: Justice Elizabeth Van den Eynden
Subject: Matrimonial Property Act; classification; business assets; matrimonial assets; division; unequal division; costs
The Appellant, Mr. Wolfson, sought an appeal to overturn provisions of a Corollary Relief Order and the costs award made against him. At trial, the parties disputed the classification of certain assets. These assets were shares in businesses, which owned various real estate properties. The Respondent, Ms. Wolfson, had claimed at trial that the disputed assets were matrimonial and should be divided equally (under s. 18 of the Matrimonial Property Act, hereinafter the MPA), or in the alternative, there should be an unequal division of property (under s. 13 of the MPA). The Appellant argued that the disputed assets were business assets and should be excluded from the division of property. The trial judge concluded that the disputed assets were held for “two primary but equal purposes”— an income producing vehicle (business asset) and a retirement vehicle (matrimonial asset). This meant the Respondent failed in her s. 18 claim but was successful on her s. 13 claim.
The Appellant argued on appeal that the trial judge erred because (1) the MPA does not permit an asset to have two primary purposes, (2) the evidence was insufficient to ground a finding that the disputed assets were primarily intended as a retirement vehicle, and (3) the s. 13 analysis is materially flawed.
The issues before the Court of Appeal were:
- Did the judge err in her classification of the disputed assets?
- Did the judge err in her s. 13 analysis?
- Did judge err in her costs award?
- Should the proposed fresh evidence be admitted?
Did the Judge err in her classification of the disputed assets?
The Appellant asserted that the trial judge’s classification and resulting division of shares must be set aside because the MPA does not permit the hybrid classification and because the judge made a palpable and overriding error in finding the other primary and equal purpose of the rental properties was for the creation of a retirement vehicle for both parties. The Court of Appeal agreed with the Appellant.
The Court of Appeal conducted a review and interpretation of various provisions of the MPA. They began by identifying that s.4(1)(e) provides that all assets are presumed to be matrimonial assets under the MPA unless it can be demonstrated, on a balance of probabilities, that the assets are business assets. They continued to confirm that the Appellant, at trial, had the evidentiary burden of establishing that, on a balance of probabilities, the primary purpose of the disputed shares was the generation of income or profit in an entrepreneurial sense.
Reviewing the trial decision, the Court of Appeal noted that the trial judge appeared to have understood this task of ascertaining the primary purpose and that the concept of dual primary purposes was not proposed by either party. The classification of these assets was a question of law and a finding of dual primary purposes is not permitted by the MPA.
The Court of Appeal relied heavily upon the wording of section 16 of the MPA, mainly s.16(2)(b), which relates to the powers of the court:
(b) make a declaration as to whether the property is a matrimonial asset or a business asset
It was concluded that the use of the term “or”, which is a disjunctive term, meaning to link mutually exclusive alternatives, demonstrated the legislature’s intent. Had the legislature wished to allow a hybrid classification, they would not have used the term “or” in this section. The Court of Appeal also relied upon the existence of section 18 of the MPA, which permits relief to one spouse where the other spouse owns business assets, those assets not being divisible matrimonial property. They found that parties would have no use for section 18 of the MPA if hybrid classifications were permitted, as judges could simply determine which percentage of the business assets was a joint contribution and the split it accordingly. Based upon these reasons, and various other factors, the Court of Appeal concluded that the clear legislative intent was for assets to be classified as either matrimonial or business assets.
Having concluded the assets cannot be classified as having dual primary purposes, the Court of Appeal conducted their own review of the evidence to determine the primary purpose. It was determined that the trial judge conflated the concepts of legacy and retirement, when they are two distinct concepts, and found that too much weight was put on the discussion between the parties to one day use one of the units of the owned residential properties as a retirement home. The assets were deemed to be owned, operated and managed for the primary purpose of generating income or profit in an entrepreneurial sense. This conclusion was based on the fact that the business assets were operated to produce a consistent cash flow which was reinvested in the company and used by the parties to support their family.
Did the judge err in her s. 13 analysis?
Section 13 of the MPA allows for the unequal division of matrimonial assets, where the court is satisfied that an equal division would be unfair or unconscionable. The section proceeds to list the factors to be taken into consideration. The trial judge relied upon subsections s. 13(a), (e), (f), (g), (i) and (j), finding that the respondent had established a claim under section 13. The Court of Appeal discussed only the trial judge’s decision in relation to subsections 13(a) and 13(e). For subsection 13(a), the Court of Appeal found the trial judge made an error in law, as she misinterpreted this factor. This subsection requires the court to consider “the unreasonable impoverishment by either spouse of the matrimonial assets”. The trial judge understood this to mean a comparison between the growth of the matrimonial assets and business assets, where the actual consideration is an objective one solely focused on whether the matrimonial assets were unreasonably impoverished. The Court of Appeal found that simply because business assets accumulated equity, it does not mean the matrimonial assets were impoverished. There was no additional evidence which could establish the matrimonial assets were impoverished or were impoverished unreasonably. As for subsection 13(e), which says to consider “the date and manner of acquisition of the assets”, the Court of Appeal found that the trial judge’s conclusion was based on the earlier conclusion that the disputed assets were both business and matrimonial. As such, this part of the trial judge’s analysis was deemed to be an error.
Finally, the trial judge failed to complete the entire section 13 analysis. The Court of Appeal confirmed that as per Donald v. Donald, (1991) 1991 CanLII 8267 (NS SC), 103 N.S.R. (2d) 322 (C.A.), there is a two-step test. First, which the trial judge completed, a court must determine if it would be unfair or unconscionable to divide the matrimonial assets equally. The second step, which the trial judge did not complete, asks what division would be fair and conscionable. Rather, the trial judge relied upon the quantum she set out in relation to the issue of classification of the assets. The Court of Appeal was satisfied that the trial judge erred in several aspects of her section 13 analysis and those errors had a material impact on the award, as such, this part of the decision was not subject to deference.
The Court of Appeal concluded that an appropriate award under section 13 would be $1,500,000, down from the trial judge’s award of $4,477,165. The determination was to be made with a goal of bringing the division of assets into a range which would be fair and conscionable and no further. This quantum was arrived at after considering the trial judge’s analytical errors, the strength of the remaining section factors, including the respondent’s disproportionate assumption of child care and other responsibilities (which allowed the appellant to acquire and develop the business assets).
Did the judge err in her costs award?
The trial judge awarded the respondent $422,567 in costs of which $168,117 related to expert fees incurred in the process of valuing the disputed assets. The Court of Appeal concluded that after the appellant was successful on appeal, the overall success of the parties was divided, meaning the parties should bear their own costs at trial and on appeal. As for the expert fees, the Court of Appeal agreed with the trial judge’s assessment, as the costs incurred by the respondent resulted largely from the appellants disclosure deficits.
The appellant put forward a motion for fresh evidence, which was comprised of communications between trial counsel and transcripts of pre-trial conferences with Justice Forgeron. The appellant argued that this evidence would “remove any evidentiary basis for the trial judge’s finding regarding non-disclosure which was used to underpin her costs award”. The Court of Appeal disagreed, as they felt that this evidence could have been adduced at trial with due diligence and it was insufficient to overturn the trial judge’s reasoning in relation to the respondent’s expert fees.