This Month in Nova Scotia Family Law – November 2023

December 4, 2023

CT v JB, 2023 NSSC 351

Judge: Justice Lee Anne MacLeod-Archer
Subject: Costs

Summary: The parties participated in a nine day hearing on the issues of parenting and child support.  CT was awarded primary care and decision-making responsibility and JB was ordered to pay prospective and retroactive child support.  CT sought lump costs of $60,000 inclusive of disbursements. JB claimed each party should bear their own costs because success was mixed.

CT incurred legal fees, disbursements, and taxes in excess of $113,000 (net of a discount). In addition, CT paid for Voice of the Child (“VOC”) reports that were not included in his legal fee accounts. JB claimed that CT’s legal fees were unreasonable. Justice MacLeod-Archer reviewed the fees and was satisfied that they were generally reasonable in the circumstances given the high conflict nature of parenting proceedings.   The exception were the disbursements, which were higher than allowed for taxation purposes; however, CT requested one lump sum inclusive of disbursements.

Justice MacLeod-Archer noted that the majority of court time was spent on parenting, which CT was wholly successful. Further, the proceedings were extended largely due to JB’s opposition to the VOC reports, her evasive and obstructive approach to cross-examination, her failure to file materials or participate in a settlement conference scheduled by the court, and JB refused to accept the recommendation of a settlement justice who proposed a shared parenting arrangement which would have given her more parenting time than she was ultimately granted.

Justice MacLeod-Archer ordered lump sum costs in the amount of $45,000 inclusive of disbursements and taxes.

 

DB v EJ, 2023 NSSC 346

Judge: Justice Pamela Marche
Subject: Parenting, Relocation.

Summary: In September 2019, the parties consented to an order placing the parties son in his mother, DB’s primary care, and granting DB final decision making after consultation with the child’s father, EJ. At the time the, the mother and child were living in Glace Bay. Soon after, the mother and child relocated to Dartmouth. In April 2020, the mother’s living arrangements became precarious. She sent the child to live with the child’s grandfather, EJ’s father, where EJ also lived. The mother said that she intended for the grandfather to provide care for the child; however, the father was ultimately providing for the child’s parental care at this residence.

In April of 2022, the child was diagnosed with leukemia. He received treatment at the IWK Children’s Hospital in Halifax. The father stayed near by in a hotel to attend to the child’s medical needs. Following a parenting visit in July of 2022, the mother informed the father she would not be returning the child to his care as she feared for his health and safety and was acting as a protective parent by keeping the child solely in her care.

The father responded by filing a Variation Application and Interim Motion seeking primary care of the child and putting the issue of relocation before the Court.  The parties resolved the interim issue by agreement, and put in place a week-about parenting arrangement.

On the first issue, the Justice Marche found there has been a change in the circumstances as there has been a substantial lack of compliance with the original Consent Order. The lack of compliance was evidenced by the child being in the father’s primary care for the preceding two years. Further, the serious illness and future treatment for the child warranted a change in the circumstances to vary the parenting arrangement.

Justice Marche determined that it was in the child’s best interest to be placed in his father’s primary care in a First Nation community in Cape Breton. The main reasons for this decision included: the mother failed to prove that the father did not properly attend to the child’s medical and educational needs, the mother’s concerns about the father’s parenting skills were generally without merit, the mother demonstrated a pattern of instability in terms of housing and interpersonal relationships, the mother’s unilateral decision to relocate the child with the father and subsequent unilateral decision to reverse that decision created insecurity for the child during his chemotherapy treatment, the father’s plan to reside in the First Nations community better connected the child with his Aboriginal heritage, and the father’s parenting plan was more fully supported and enriched by extended family primarily residing within the same community.

 

JP, JLP v DM, 2023 NSSC 363

Judge: Justice Pamela Marche
Subject: Parenting, Child’s Views and Preferences

Summary: The child, IL, had been living primarily with her mother, DM, and two half sisters until September 2020, when a child protection proceeding started due to concerns related to the mother’s mental health. The child and her two half sisters were placed in the care of their respective fathers. In the child’s case, she was placed with her father, JLP and her paternal grandmother, JP. The grandmother and the father live together, and he works on a rotational basis out of the province. The child protection proceeding was terminated in August 2022 based on a “Bridging Order” that continued the child’s placement with the father and grandmother, on an interim basis until the matter could be properly litigated. The Bridging Order provided grandmother and father joint primary care and decision-making authority for the child. The mother was not to have contact with the child except for parenting time upon terms and conditions agreed to by the father. The conditions placed restrictions on the use of drugs and alcohol by the mother, and requirements to continue support services for addiction rehabilitation.

Justice Marche found that the distrust between grandmother and the mother negatively affected their credibility. She relied on the father’s evidence when there was conflicting testimony between mother and grandmother.

Justice Marche accepted the findings of the Voice of the Child report, which indicated that IL wishes to live with her grandmother and father.

Justice Marche ordered that all three parties have joint custody of the child, with the child residing primarily with her grandmother and father.  The order provided for regular weekly parenting time with the mother.

 

T.J. v S.R. v DM, 2023 NSSC 344

Judge: Justice Samuel Moreau
Subject: Parenting, Supervised parenting, Sexual Assault

Summary: The father, SR, and mother, TJ, are the parents of the child, I.  In October 2019 the father was charged with various sexual offences relating to the child.  The father plead guilty to the offences of sexual assault, sexual exploitation, and possession of child pornography. In Early 2022, he was sentenced to four years in prison. In January 2023, he was released on day parole. He currently resides in a halfway house during the weekdays and with his current partner during the weekends, all within the Halifax Regional Municipality.   The father requested supervised parenting time; the mother opposed any contact between the father and the child.

Justice Moreau considered expert evidence of a Clinical and Forensic Psychologist, who prepared an Assessment and Report as part of the father’s sentencing.  The report concluded that the risk of reoffence was most likely to be against an adolescent female well known to the father.  Justice Moreau further considered the evidence from the facilitator of the father’s sex offender program, who indicated that the father’s rating was ‘needs improving’.  A DCS social worker viewed the child as “vulnerable to sexual risk from” the father, and was of the opinion that  the paternal grandmother was not an appropriate supervisor because she previously allowed contact with the father when she was told not to.

Justice Moreau found that, although the father has shown a consistent desire to improve his ways, he has yet to do so, and not enough time has passed since his sentencing. Justice Moreau held that it is in the child’s best interest’s that the father does not have direct contact, even supervised, at this time. Should the father continue his current path and provide a more robust plan, the Court would be in a much better position to assess his request had more development occurred. The mother shall continue to have primary care and residence, and sole decision-making authority of the child.

 

Harris v Delaney, 2023 NSSC 349

Judge: Justice Pamela Marche
Subject: Costs

Summary:  The parties participated in a parenting trial. Mr. Harris was granted shared parenting, and Ms. Delaney was awarded retroactive child support from Mr. Harris of $5,186.

Mr. Harris sought costs of $5,000, arguing that he was entirely successful in his claim for shared parenting.  Ms. Delaney argued she should not pay costs, or that the amount should, be significantly reduced because she was a reasonable and well-behaved litigant with no delays in the proceeding.  She argued that an order for costs would create undue hardship and would be against the child’s best interests.

Ms. Delaney further asked Justice Marche to consider that she is a Legal Aid client, and her financial situation is made worse by the court’s decision about shared parenting, and reduction of support; this now also reduces her Child Tax Credit.

Justice Marche declined to order costs.  Although being a Legal Aid client does not shield Ms. Delaney from an award of costs, her financial circumstances must be taken into consideration. Mr. Harris did not include a bill for services in support of his claim for lump sum costs.  Although he did not contest an order for lump sum retroactive support at trial, he failed to pay support for many months prior to the hearing.

 

S.L.J. v T.D., 2023 NSSC 343

Judge: Justice Samuel Moreau
Subject: Decision making, parenting time, domestic violence, supervision, passport.

Summary: The parties have two children, T and N, born in 2013 and 2017 respectively. The mother moved back to Nova Scotia in 2015 after the father was charged and incarcerated for assaulting her. The father filed a Notice of Application in 2021 addressing the issues of parenting arrangements, paternity testing, preventing the relocation of a child, registration of an agreement or parenting plan and the denial of time or interaction with a child.

The mother alleged continued coercion and physical abuse by the father, all of which he denied. The father said that he only plead guilty to the physical abuse charges to get out of jail. The father’s last parenting visit with the children was approximately two years ago. The mother says that he has not attempted to see the children as he is unable to control when and where the visits occur. The father has had a difficult time adhering to a parenting time schedule, and as a result he has withdrawn from attempting to see them.

Justice Moreau granted the mother decision making and primary care. The father would have supervised parenting through Veith House.  The mother was granted the ability to obtain passports and travel without the father’s consent, but was required to notify him of international travel.

 

TY v AK., 2023 NSFC 4.

Judge: Honourable Justice Timothy Daley
Subject: Parenting, Relocation, Burden of establishing best interests

Summary: The parties are the parents of two children, 5 and 3 years old.   The mother sought primary care of the children in Economy, where she moved after separation.  The parties lived in Cole Harbour at the time of separation. The mother claimed it was not a relocation matter because the father also moved from their home community of Cole Harbour to Lower Sackville after separation. The father claims this is clearly a relocation matter and asks the court to deny the application. He seeks an order that the children reside primarily with him during the school year and their mother during the summer break, or shared parenting.

Justic Daley found that the mother’s decision to move to Economy with the children was clearly a case of relocation. After separation, the parties agreed that the children would be in the father’s care each week from Friday to Monday; the move impacts the children’s relationship with their father.  He found that the father’s move does not constitute relocation, because it was within HRM and did not impact the mother’s relationship with the children.

After separation, the older child spent approximately equal time between the parents’ homes.  The younger child spent more time with the mother, largely due to her unilateral decision.  Justice Daley identified that because of the different parenting schemes, this would lead to the application of different burdens of proof to determine whether the move was in each child’s best interests.  He found that it would be unreasonable to apply two standards.  Because the older child had been in a substantially shared parenting arrangement, the mother bore the burden of establishing that the move was in the best interests for both children.

The evidence suggested that both parents had a strong relationship with the children and would be able to provide them suitable accommodations. The children have an older half sister, S, who lives with the mother.  There has been minimal disagreements between the parents in raising these children post separation allowing for a shared parenting arrangement. The mother provided that her reasons for relocation to Economy included her father’s recent illness, and the lack of affordable housing in Halifax. The mother’s other reasons for relocation failed to appropriately indicate how the children’s lives would be improved.

Justice Daley noted that the relocation does not serve many positives for them, rather it provides more negatives as it will diminish their relationship with their father and grandmother. Justice Daley denied the mother’s application to relocate and ordered that the father will have primary care of the children. The parents will share joint decision-making responsibilities, along with the mother having reasonable parenting time access including weekends and holidays. The order provided that the primary care will reside with the father unless the mother moves back to the Halifax Regional Municipality.

 

SO v TO, 2023 NSFC 3

Judge: Honourable Justice Timothy G Daley
Subject: Parenting, Relocation, Child support

Summary: The mother sought permission to move with the parties 12 year old child to New Brunswick.  The parents live approximately 20 minutes from each other in Nova Scotia.  She also sough child support from the date of separation.  The father opposed relocation.

Both parents agree that the child has been diagnosed with ADHD, dyslexia, and learning disabilities and requires special assistance in school. The child is bilingual and attends a French language school in Nova Scotia.

The father argued that the move would increase travel time to 5 hours and damage his relationship with his son.  His parenting schedule had been every other weekend, and most days after school.  The mother argued that the child can receive better schooling and assistance in New Brunswick, along with a greater connection to the mother’s extended family who live in New Brunswick.

Given the child spent relatively similar time with both parents, although in the primary care of the mother, Judge Daley found that the onus of showing what is in the best interests of the child was with both parties.

The mother provided thorough evidence to demonstrate the child’s strong bonds with her extensive extended family in New Brunswick. This included her retired parents that will support her in raising the child. The grandparents live a short walk from the school and will provide after-school care. The father provided no evidence to demonstrate close relationships between the child and his family in Nova Scotia. Further, no evidence was provided demonstrating the child has personal relationships in Nova Scotia.

Justice Daley granted permission to relocate, and ordered that the father’s parenting time would be every other weekend. The Order further included that the father have parenting time for five weeks each summer break, along with the majority of holiday time. Child support was ordered according to the table amount based on the father’s income both retroactively since separation, and prospectively given the new primary residence arrangement after relocation.

 

Ward v Murphy, 2023 NSSC 370

Judge: Honourable Justice Theresa M Forgeron
Subject: Child support, retroactive variation, corporate income

Summary: Mr. Ward filed an application to vary child support retroactively and prospectively.  The parties have a 9-year-old son.

Mr. Ward claimed that the judge who previously determined his support obligation incorrectly imputed his income. His support obligation is based on an imputed income from two sources, employment and EI income, and rental income. Mr. Ward claimed that his rental company has does not earn the income that was previously attributed to him. Ms. Murphy argued that Mr. Ward’s circumstances are largely unchanged. She argued that his income must include all pre-tax corporate plus add back many of the expenses which the company deducted.

Justice Forgeron relied on section 18 of the Child Support Guidelines which allows a judge to lift the corporate veil when they are satisfied the payor’s line 150 income does not fairly reflect all income available for child support as the shareholder payor has the ability to control the income of the corporation.

Justice Forgeron added back the expenses for directors’ fees, half of the meals and entertainment expenses, half of the amortization expenses, the personal portion of the mortgage interest expense, office expenses, half of salary and wages, 15% of repairs and maintenance, half of vehicle expenses, and half of telephone expenses. These expenses were grossed up reflect the personal use by Mr. Ward.

Justice Forgeron then calculated Mr. Ward’s income from 2018 to present and ordered the corresponding table amount of monthly support for those years. Justice Forgeron directed the Maintenance Enforcement Program to adjust their records and recalculate the already paid support to determine any over or under payment of child support to date. After such calculation, the parties are to provide written submissions about the appropriate repayment schedule.

Related Articles

This Month in Nova Scotia Family Law – May 2024

MacDonald v MacDonald, 2024 NSCA 58 Judge: Justice Farrar Subject: Motion to Stay, Relocation Summary: The parties are former spouses and parents to an eleven-year-old son. Mr. MacDonald assumed primary care and decision-making responsibility of their son in 2022 after Ms. MacDonald was found guilty of fraud and incarcerated. In 2023, the Court granted Mr. […]

read more

This Month in Nova Scotia Family Law – April 2024

Hanak v Hanak, 2024 NSCA 44 Judge: Justice Elizabeth Van den Eynden Subject: Appeal of an Interim Order, Imputation of Income, Fresh Evidence Summary: Mr. Hanak sought leave to appeal from an interim order, which imputed his income at $200,000 for the purpose of determining his support obligations.  He argued instead that his annual income should be […]

read more

This Month in Nova Scotia Family Law – March 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 […]

read more
view all
Cox & Palmer publications are intended to provide information of a general nature only and not legal advice. The information presented is current to the date of publication and may be subject to change following the publication date.