Our NS Family Law team provides summaries of recent cases which have appeared in the Nova Scotia Supreme Court and the Nova Scotia Court of Appeal. Here are the cases from January 2023.read more
This Month in Nova Scotia Family Law – November 2022
Paradis v Gray, 2022 NSSC 322
Justice Theresa M. Forgeron
Subject matter: Interim Parenting
The parties had a four-year old daughter. Since birth, the mother was the child’s primary care provider. The mother had a cordial and respectful relationship with the child’s paternal grandmother. The child spent many weekends and extended periods in her grandmother’s care. All parties operated informally without issue.
In August 2022, the mother decided to move in with her father (the child’s maternal grandfather). However, the grandfather was named in the child abuse register for committing sexual offences against two children. The child’s grandmother was deeply concerned and refused to allow the child back into the care of the mother. She also called child protection authorities.
After investigating, child protection services developed a safety plan and concluded that the child would be safe in the mother’s care with that plan. By then, both the mother and grandmother had applied for custody of the child.
The issue before the Court was who should have interim care of the child until the final hearing of the matter.
Justice Forgeron reviewed the applicable legal principles and noted that her decision must be determined solely on the basis of the child’s best interests. After a brief review of the case law, she concluded that the law presumes that the child’s best interest lies in preserving the status quo that existed prior to the grandmother’s unilateral act. Unless the status quo in this case proves to be against the child’s best interest, it must continue.
To determine whether the status quo was in the child’s best interest, Justice Forgeron addressed two points. First, does the mother appreciate the risk that comes with her decision to move in with her father? Second, can a safety plan mitigate this risk?
On the first question, the Judge found that the mother minimized her father’s actions and did not fully appreciate the extent of the harm he caused in the past. However, she also held that a safety plan could mitigate the risk if properly worded. Such a safety plan would (among other things) create strict separation between the child and the grandfather, ensure that all contact between the two is supervised by multiple adults, require several adults in the child’s life to undergo training, and require the child to be taught to recognize and discuss inappropriate incidents with an adult.
The Court therefore ordered that the child be returned to the mother’s care under the terms of this safety plan, with the child’s grandmother having contact every other weekend.
Green v Nova Scotia (Department of Community Services), 2022 NSSC 324
Justice Ann Smith
Subject matter: Costs
Mr. Green was the unsuccessful party in a protracted divorce proceeding. Once his divorce was finalized, Mr. Green commenced a claim against Justice Forgeron of the Supreme Court of Nova Scotia, among others. Justice Forgeron had presided over Mr. Green’s divorce trial.
The claim was dismissed by summary judgment in October 2022 on the grounds that judges are immune from civil liability in relation to the performance of their duties. Therefore, the outstanding issue was costs.
In making her decision, Justice Smith found that Mr. Green had ample opportunity to avoid unnecessarily litigation. She relied on a letter that was delivered to Mr. Green in which he was informed of judges’ immunity from civil liability. The letter gave Mr. Green the opportunity to discontinue his claim to avoid costs and even provided him with a draft Notice of Discontinuance to ease the process. This was roughly ten months prior to the summary judgment hearing.
Under Rule 77 of the Nova Scotia’s Civil Procedure Rules, when a claim is resolved by summary judgment, the cost award may be increased. Justice Smith exercised her discretion to award $3,500.00 in costs.
KH v KN,2022 NSSC 305
Justice Samuel Moreau
Subject matter: Parenting Time | Decision Making Imputing Income | Child Support
The parties were in a common law relationship from 2005 to 2009. They had two children together prior to separation. Since then, the father re-partnered, moved to Newfoundland, and started a new family. The mother continued to exercise primary care over both children, while the father maintained regular contact. As the children grew older, at least one of them developed signs of anxiety and phobia. At the same time, both of them demonstrated a passion and talent for art and dance at an elite level.
At issue was the father’s parenting time and decision-making authority, as well as his reported income and the appropriate amount that he should pay for child support.
On the issue of parenting time, the mother proposed that the children be in the father’s care during March break of each year, as well as for two weeks every summer, long weekends, and half of Christmas vacation. The father generally agreed but wanted more time in the summer. The mother stated that, of the summer break’s eight weeks, the children spend six weeks in dance school, camps, and other art-related activities. She also noted that the children’s mental health cannot accommodate long stays away from home.
Justice Moreau found that the children’s art and dance activities nurture their physical and mental development and help them grow their confidence. He also concluded that their art forms an integral part of their identity and sense of stability. Their best interests therefore required that they continue in those activities, even though doing so would limit the father to two weeks of contact in the summer.
Justice Moreau also found that there was no evidence that the mother was unreasonably denying the father his parenting time, but that she was in fact supportive of his relationship with the children. At the same time, the Judge took note that the parties failed to develop a productive communication style to resolve parenting differences. He therefore concluded that joint decision making was not feasible and granted the mother sole decision making authority while ordering both parents to communicate in writing.
On the issue of child support, the mother alleged that the father had failed to produce accurate figures of his income. After a thorough analysis of the facts and history of the father’s employment and business, Justice Moreau imputed an annual income amount of $58,389.89. This translated to a child support figure of $830.30 per month. Special expenses would be divided between the parties in proportion to their income.
Davis v Davis,2022 NSSC 334
Justice Lloyd Berliner
Subject matter: Costs
After a contested divorce proceeding, the parties could not settle on the issue of costs.
Ms. Davis stated that her legal expenses totaled $131,304.63 and sought costs in the amount of $88,325.00. On the other hand, the legal expenses incurred by Mr. Davis totaled roughly $32,000.00. He took the position that each party should be responsible for their own costs. Justice Berliner took note that, while both parties each had some success, Ms. Davis had far more success than Mr. Davis. She was therefore entitled to costs.
The Court reviewed the law on costs under Nova Scotia Civil Procedure Rule 77. Justice Berliner stated that the Court’s overall mandate is to do justice between the parties, and that a judge is permitted to deviate from the default cost tariffs if doing so better achieves this objective. Justice Berliner relied on this authority to depart from the default tariff rules.
In reviewing the relevant facts to determine a fair costs award, the Court observed that Mr. Davis was not initially forthcoming on various areas that require disclosure, that the parties’ disagreements with respect to child support were in relation to offsets and were not regarding entitlement or amount, and that Ms. Davis often spent extensive time and fees on relatively minor issues. He concluded that although Ms. Davis was entitled to costs, the fees she incurred were too high and the costs she was seeking were therefore unreasonable.
Justice Berliner found that a cost award of $36,000.00 was more reasonable and exercised his discretion accordingly. He ordered Mr. Davis to pay $6,000.00 immediately and provide the rest in installments of $1,000.00 each month, without interest.