This Month in Nova Scotia Family Law – March 2024

April 18, 2024

Fox v. Muise, 2024, NSSC 50

Judge: Honourable Justice Theresa M Forgeron
Subject: Child Support, Unjust Enrichment

Summary:  Leonard Fox and Margaret Muise have two children born in 2001 and 2004 from a common-law relationship that ended in 2010. In 2012-2013, a contested hearing decided on parenting, child support, and unjust enrichment. Mr. Fox seeks to vary child support and property provisions due to changes in circumstances. The Court in this case dealt with the following issues:

  1. Did Mr. Fox underpay or overpay child support?
  2. Should child support be retroactively adjusted, and if so, by how much?
  3. Does the court have jurisdiction to cancel or vary the unjust enrichment award?

Regarding child support payments, Mr. Fox consistently underpaid child support, with evidence showing discrepancies between his reported and actual income. Despite being ordered to pay section 7 expenses which never were incurred, Mr. Fox failed to pay the table amount of support.

In terms of retroactive adjustment, legal principles emphasize a payor’s duty to disclose and pay based on income changes. In this case, Mr. Fox’s conduct, lack of disclosure, and failure to pay the unjust enrichment award impacted the determination. The court applies a highly restrictive approach with a presumption in favor of retroactive decrease, considering the decisions in DBS v SRG, Michel v Graydon, and Colucci v. Colucci.

On the issue of the unjust enrichment award, the Court noted that, while it has jurisdiction to vary spousal and child support, it lacks authority for property or unjust enrichment orders. Mr. Fox’s failure to appeal the 2013 order means he must pay the award.

In conclusion, the court ultimately found in favor of Ms. Muise regarding the unjust enrichment award and upheld the original 2013 order. Mr. Fox’s variation application, however, was granted in part. The court concluded that Mr. Fox’s child support obligation was concluded at the present time, subject to him paying the outstanding child support arrears. This means that Mr. Fox is no longer obligated to pay ongoing child support, but he must settle the arrears owed. The court noted, however, that should either child pursue other post-secondary education, then child support entitlement and quantum can be reassessed based on the circumstances existing at that time.

 

Windrem v. Beck, 2024 NSSC 71

Judge: Honourable Justice Theresa M Forgeron
Subject: Non-payment of Child Support, Failure to Disclose Income

Summary:  Patrick Beck and Jennifer Windrem were married for 9 years and are the parents of two dependent children. Following separation, a shared parenting agreement was adopted, with no child support payable. Ms. Windrem initiated divorce proceedings in March 2012, and two separate orders were made for Mr. Beck to file income information, which he did not. In April 2013, a corollary relief order confirmed the shared parenting arrangement and nonpayment of child support. It also contained two provisions regarding income disclosure; the first noting that Ms. Windrem reserved the right to test the information available to her about Mr. Beck’s income in the future if other information becomes available, and the second mandating Mr. Beck disclose his income on June 1st every year. Mr. Beck did not disclose his income information as ordered.

In 2019, the shared parenting arrangement morphed into a primary care model of parenting with the children remaining with Ms. Windrem most of the time. By 2020, Mr. Beck was exercising his parenting time on an infrequent basis. Additionally, even though Mr. Beck received several promotions, and Ms. Windrem repeatedly asked him for income information so that child support could be properly calculated, he continued to reject.

Ms. Windrem wanted to vary the child support provisions of a previous court order for three reasons. First, the children now live primarily with her as the shared parenting arrangement broke down several years ago. Second, Mr. Beck’s income has increased. Third, the children are now attending university. The Court noted that these reasons were confirmed, and proved a material change in circumstances. Despite being personally served with the variation and other documents, Mr. Beck did not file a response, financial disclosure, or any other documentation, and did not participate in any court proceedings. Ms. Windrem asked the Court to impute income of $390,330 to Mr. Beck for child support purposes, but the decision was adjourned to March 2024. Mr. Beck wrote a letter to the Court on March 12, 2024, asking for further adjournment, but did not provide the mandatory disclosure documents, nor any other required court form, and the Court declined for three reasons:

  1. Windrem and the children would experience significant prejudice if there was further delay.
    • Windrem took all reasonable steps to secure Mr. Beck’s disclosure – from repeated verbal requests to court orders.
    • For approximately 12 years, Mr. Beck ignored court directions and orders to disclose – a practice that did not change with his late filed adjournment request.
    • The child support determination should not be adjourned without day when there is no realistic prospect of disclosure.
  2. Beck had many months to respond to the variation application, having been personally served on July 3, 2023; and
    • Beck was aware of his legal obligation to disclose his annual income, yet neither responded to the variation application, nor filed his mandatory disclosure.
  3. An adjournment would bring the administration of justice into disrepute given legislative and judicial denunciation of conduct that limits full and frank disclosure.
    • It is untenable that an adjournment be granted to a payor who flagrantly disregards court orders to disclose.

The Court sought to determine how the needs of the children could be met in such circumstances, and what consequences arise from Mr. Beck’s failure to disclose in child support proceedings. Specifically, the Court answers the following questions:

  1. What legal consequences arise from Mr. Beck’s failure to disclose?

Mr. Beck’s failure to disclose his income has legal ramifications, as it violates his obligation to support his children commensurate with his income. According to the Child Support Guidelines and established case law, failure to disclose can lead to adverse inferences, imputation of income, striking of pleadings, contempt orders, and cost awards. Courts strongly denounce such behavior and aim to ensure that non-compliance does not benefit the offending party.

  1. What income should be imputed to Mr. Beck?

Considering Mr. Beck’s persistent refusal to disclose his income, the court imputed an annual income of $390,330 to him for child support purposes. This imputation is based on various factors, including evidence provided by Ms. Windrem, negative inferences drawn from Mr. Beck’s failure to disclose, and reasonable assumptions about his income and lifestyle.

  1. Should retroactive child support be awarded?

Retroactive child support was awarded at $2,000 per month, effective January 1, 2022, due to Mr. Beck’s material change in circumstances and his blameworthy conduct in failing to disclose. The court applied principles outlined in relevant case law to determine the retroactive period and considered factors such as effective notice, blameworthiness, and the best interests of the children.

  1. What amount of child support should be awarded?

The court ordered Mr. Beck to pay the table amount of child support, set at $9,842 per month, along with his proportionate share of section 7 special expenses, which include university expenses for the children. The court carefully calculated these expenses and ensured fair distribution based on each child’s needs and contributions.

  1. What is the appropriate costs award?

In light of Mr. Beck’s failure to disclose and subsequent litigation, the court awarded costs to Ms. Windrem on a solicitor and client basis to fully compensate her for all expenses incurred in the proceedings. The court considered relevant case law and determined a fair and reasonable costs award of $22,933.46.

 

M.G. v. C.G., 2024 NSSC 73

Judge: Honourable Justice Pamela Marche
Subject: Parenting Arrangements, Child Support, Spousal Support

Summary:  The case involves a high-conflict divorce between the parties, referred to as MG and CG. They have two children, C and J. The divorce proceedings have been complicated by allegations of abuse, a history of child protection and police referrals, and non-compliance with parenting orders.

The court needed to determine the most suitable parenting arrangements for the children, considering the non-compliance with parenting orders and the children’s expressed preferences. The court also looked to determine the appropriate amounts for child support and spousal support based on the parties’ incomes and circumstances.

Regarding parenting arrangements, the court assessed each party’s ability to facilitate the children’s relationship with the other parent. It considered the children’s expressed preferences but did so cautiously due to potential parental influence. Non-compliance with parenting orders by CG was thoroughly examined, including his reasons and actions regarding the children’s visits with their mother.

The court evaluated proposed parenting plans by both parties, considering the children’s well-being, and the ability of each parent to support their relationship with the other. CG proposed that the children reside primarily with him, with full decision-making authority. He suggested supervised visits with their mother at the children’s discretion. MG proposed that the children be placed in her primary care, with her having final decision-making authority. She committed to facilitating the children’s transition into her care with appropriate support. A transition plan was proposed to minimize disruption for the children.

The court found that CG’s non-compliance with parenting orders and lack of willingness to support the children’s relationship with their mother weighed heavily against him. MG’s proposed parenting plan, despite potential short-term discomfort for the children, was deemed more suitable. The court decided to place the children in the primary care of MG, with CG granted scheduled parenting time and limited communication between the parties.

Regarding support payments, the court assessed the parties’ incomes and financial circumstances to determine child support and spousal support obligations. It considered any agreements reached during settlement conferences and examined the need for retroactive support payments. MG’s income was found to be $50,890 annually. CG’s income was determined to be $84,069.96 annually.

Based on CG’s income, he was ordered to pay the Nova Scotia table amount of child support for two children, commencing from a specified date. MG’s entitlement to spousal support was acknowledged, but due to her income and the child support received, the amount payable was determined to be $0.00.

The court’s decision aimed to prioritize the children’s best interests by ensuring their safety, security, and well-being. It addressed the complex family dynamics, non-compliance issues, and financial considerations to provide a comprehensive resolution to the divorce proceedings.

 

Cox v. Cox, 2024 NSCA 34

Judge: Honourable Justice J. Edward (Ted) Scanlan
Subject: Division of Matrimonial Property and Assets

Summary:  The parties began cohabiting in June 2010, married in August 2013, and eventually separated in January 2021. They had a son born in January 2011. Both parties entered the relationship with assets; the appellant owned a property at Contessa Court in Halifax, and the respondent owned a home at Brentwood Avenue. During the marriage, they sold the respondent’s home and purchased a matrimonial home at Riverwood Drive in Timberlea. The respondent, a member of the Canadian military since 2006, sustained injuries while deployed to Africa. In 2019, he received a lump sum award for pain and suffering from Veterans Affairs Canada (VAC).

The court sought to determine whether the respondent’s pension earned prior to cohabitation should be divided between the parties. The appellant sought an unequal division of matrimonial assets due to substantial gambling losses incurred by the respondent during the marriage. The appellant also challenged the inclusion of a rental property she owned prior to marriage in the division of assets, arguing it should be declared a business asset exempt from division. The court also needed to assess the division of various other assets challenged by the appellant.

Division of Pre-Cohabitation Pension: The court found that the trial judge erred in not dividing the portion of the respondent’s pension earned before cohabitation. Pension benefits acquired pre-cohabitation are prima facie matrimonial assets subject to division. The judge wrongly placed the burden on the appellant to justify an equal division, contrary to the presumption of divisibility. Since there was no evidence justifying an unequal division, the respondent was ordered to make a lump sum equalization payment of $35,000 to the appellant, representing her share of the pre-cohabitation pension.

Unequal Division Based on Gambling Expenses: The appellant argued that the respondent’s gambling expenses impacted matrimonial assets available for division. The court found that the gambling expenses were not paid from matrimonial funds but were financed through personal loans and lines of credit obtained by the respondent. The respondent paid off the remaining gambling debts using the VAC settlement, which was exempt from division. As there was no evidence that matrimonial assets were affected by the gambling, the court dismissed the appellant’s claim for an unequal division based on gambling losses.

Exclusion of Rental Property from Division: The appellant claimed that a rental property she owned prior to marriage should be declared a business asset exempt from division. The court determined that the rental property was a matrimonial asset, not a business asset, as both parties were involved in its management during the marriage. The property was subject to division as it was used for family purposes and contributed to the parties’ assets.

Division of Other Assets: The court upheld the division of other assets challenged by the appellant, including a refund from a cancelled vacation, which was deemed a matrimonial asset subject to division.

The court dismissed all grounds of appeal except for the division of the respondent’s pre-cohabitation pension. The respondent was ordered to make a lump sum equalization payment of $35,000 to the appellant for her share of the pre-cohabitation pension. Each party was responsible for their own costs on the appeal.

 

CB v. AB, 2024 NSSC 91

Judge: Honourable Justice Lee Anne MacLeod-Archer
Subject: Divorce, Division of Assets and Debts, Parenting Arrangements, Child Support

Summary:  The case involves a divorce proceeding between CB and AB, who were married in 2011 and separated in 2020 after almost 9 years of marriage. They have two children, aged 9 and 6. The parties reached a parenting and child support agreement in 2021 during a settlement conference, reflected in a Final Consent Order issued in July 2021. CB filed for divorce in January 2022, and AB responded with an amended response in April 2022.

The court addressed several key issues including:

  1. Determining whether the marriage had irretrievably broken down.
  2. Resolving the division of the matrimonial home, a truck, a travel trailer, household contents, and debts between the parties.
  3. Evaluating AB’s request for modifications to the existing parenting schedule and CB’s request for primary care and decision-making responsibility.
  4. Calculating child support payments and addressing overpayments made by CB and contributions to childcare expenses.

After confirming that the marriage had permanently broken down irretrievably and all legal requirements were met, the court granted the divorce.

The court deliberated on the division of assets and debts, including the matrimonial home, a truck and travel trailer, household contents, and outstanding debts:

  • Matrimonial Home: The court considering mortgage payments, occupation costs, and the possibility of a buy-out. CB initially sought to sell the home or have AB buy out his interest, but later expressed interest in buying out AB’s interest. AB sought a deferred division until she could buy out CB. The court ordered a buy-out of AB’s interest, considering the appraised value and mortgage balances.
  • Truck and Travel Trailer: CB retained both assets, with values and associated debts captured in a spreadsheet attached to the decision. The court also addressed the trade-in of the travel trailer and its loan payout.
  • Household Contents and Debts: The court directed each party to retain the contents in their possession without claim by the other. It also considered various debts and determined responsibility based on evidence and agreements.

The court assessed AB’s request for modifications to the parenting schedule in light of her employment status change. While considering CB’s request for primary care and decision-making responsibility, the court found no material change in circumstances to warrant altering the existing parenting order. The parties agreed to offer the other parent first option to care for the children when needed.

Regarding child support, the court determined the parties’ incomes and calculated payments using a set-off arrangement. CB’s tax-exempt income as a member of a First Nations Band required gross-up. Despite AB’s claim of additional Band funds, the court accepted CB’s presented income figures. Using 2023 income, CB owed $50 per month based on the Child Support Guidelines. Overpayments in 2022 and 2023 amounted to $2,583.00 owed to CB. The court addressed AB’s childcare expenses, finding CB responsible for retroactive contributions since 2021, reimbursing AB for half of the net expenses after deducting a childcare subsidy.

It was determined that the net sum owing from AB to CB, factoring in the equalization payment shown on Schedule “A” if she buys his interest in the home, amounted to $1,047.50. Each party was responsible for their own litigation costs unless an offer was made for consideration by the court.

 

Gillis v. Lieberman, 2024 NSSC 62

Judge: Honourable Justice Jamie Campbell
Subject: Summary Judgment, Effect of Marital Settlement Agreement in Other Jurisdiction, Legal Harassment of Former Spouse

Summary Wayne Gillis filed a claim against his former spouse, Lisa Lieberman, alleging she owed him $417,000, citing a Notice of Action for Debt filed in June 2022. Gillis, a traumatic brain injury survivor, asserted that Lieberman, a licensed veterinarian, misused funds from a settlement related to his injury to finance her education and other expenses. He further claimed that Lieberman took advantage of his disability, relocating the family to Florida, where she subsequently divorced him to marry an American, purportedly for immigration purposes.

Mr. Gillis alleges that Ms. Lieberman misused the Power of Attorney he granted her, accessing his settlement funds from a 2008 accident claim. He claims she used $750,000 meant for monthly support to pay household expenses, her tuition, and buy property, depleting the funds by 2015. Their divorce in 2018 in Florida didn’t award Mr. Gillis spousal support. Ms. Lieberman contends that the settlement funds were used to support their family. They signed a Marital Settlement Agreement in 2017, later upheld by the Florida court in January 2018, settling all financial matters related to their marriage.

In November 2021, Mr. Gillis filed a $148,075 USD claim against Ms. Lieberman in Osceola, Florida, contesting their marriage settlement, alleging breach of contract, discrimination, and intent to harm. The court dismissed the claim. Subsequently, with regard to the June 2022 claim for debt in Nova Scotia, Mr. Gillis filed two separate motions to dismiss Ms. Lieberman’s defense, but they were rejected, and he was ordered to pay $500 in costs.

In June 2023, Mr. Gillis sought discovery examinations, which Ms. Lieberman agreed to. However, despite the agreement, Mr. Gillis proceeded with a motion to schedule further discovery without consent of Ms. Lieberman. During the discovery examinations, Mr. Gillis abruptly left, alleging Ms. Lieberman’s untruthfulness in her responses to questions. He then requested a male judge, which was denied.

Ms. Lieberman filed a motion for summary judgment, arguing Mr. Gillis’ claim lacked merit and should be barred due to a passed limitation period and the finality of the Florida divorce order. The court granted the motion, stating that the limitation period had passed, and that the claim would effectively re-litigate settled matters from the divorce proceeding.

In granting Ms. Lieberman’s injunction against Mr. Gillis from bringing further legal action, the Court noted that Mr. Gillis’ actions throughout the proceedings amounted to a form of legal harassment of his former wife.

 

 

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