This Month in Nova Scotia Family Law – September 2022
Annand v Annand, 2022 NSSC 252
Justice Theresa Forgeron
Subject matter: Costs
Mr. and Ms. Annand had a multi-day trial where the Court made final determinations with respect to decision-making and parenting time, division of matrimonial assets, child support, and spousal support. Ms. Annand sought costs. She argued that she was the more successful litigant at trial, and that Mr. Annand was overly litigious and acted unreasonably. Conversely, Mr. Annand claimed that each party should bear their own costs, arguing that the decision resulted in mixed success for both parties and that Ms. Annand refused all reasonable efforts to settle the issues.
After considering the arguments of both parties, the Court found that Ms. Annand was entitled to a lump sum costs award of $10,000. In arriving at the decision, the Court considered the following:
- Annand was the more successful party;
- The divorce was a lengthy, protroacted, complex proceeding;
- The issues were important to both parties;
- Both parties were disorganized and unfocused during the proceedings;
- Annand caused many unnecessary delays because of his failure to produce the materials ordered by the Court;
- Annand attempted to resile from settlements previously entered, such as agreements on parenting issues, valuations, asset and debt division, and entitlement to spousal support;
- Both parties were represented for a portion of the hearing but were self-represented by the time of trial;
- The settlement offers did not mirror the decision and thus have no bearing on the cost award; and
- Annand’s financial situation does not impact Ms. Annand’s costs entitlement. Ms. Annand, the more successful party, also finds herself in difficult financial circumstances as she is the primary care provider who is just returning to the work force.
XD v SZ, 2022 NSSC 260
Justice Lee Anne MacLeod-Archer
Subject matter: Costs
This is a costs decision following a contested hearing on parenting arrangements and relocation.
The Court denied XD’s application to relocate the children to Toronto following a two-day trial. Instead, the Court ordered a shared parenting arrangement in the community of habitual residence of the children, Cape Breton Regional Municipality (“CBRM”). SZ sought costs payable by XD.
XD argued that there were principled reasons to deny costs in this case. She argued that she had a “subjective” belief that a move to Toronto would be in the best interests of the children, and that she would incur significant travel costs to exercise parenting time with the children between Toronto and CBRM. SZ argued that XD is gainfully employed, recently purchased a townhome in Richmond Hill, and paid a fine imposed after a contempt hearing “with no difficulty.”
Justice MacLeod-Archer found that SZ was the more successful party, and presumptively entitled to an award of costs. The Court declined to exercise their discretion to award costs to XD, finding they did not have a bona fide belief that the move was in the best interests of the children. XD’s move was made to advance their career and social connections, as well as her agenda of restricting SZ’s contact with the children. The Court was also not satisfied that an award of costs will impede her ability to exercise parenting time with the children, especially if paid over time.
The Court directed XD to pay costs to SZ in the amount of $7,500, which reflects not only his success at the hearing, but also in the contempt proceeding.
LP v SP, 2022 NSSC 197
Justice Samuel Moreau
Subject matter: Divorce | Parenting | Ongoing and Retroactive Child Support | Division of Property | Agreement at Settlement Conference
The parties were in a relationship for approximately 19 years prior to their separation. They have one child, O, who is approximately 16 years old. The parties had a shared parenting arrangement.
The mother sought child support in the full guideline amount, while the father argued a set-off calculation. Justice Moreau ultimately ordered the father to pay the full guideline amount retroactive to April 2019, being approximately the time the father stopped contributing to household expenses. The Court held that a set-off amount was not fair or reasonable in the circumstances. The father moved in with a new partner and was benefiting from sharing household expenses. The Court was satisfied that the income disparity between the mother’s household and father’s household resulted in a significantly different standard of living for O, necessitating the full guideline amount of child support despite the shared parenting arrangement.
The parties had participated in a settlement conference and reached agreement on some, but not all, issues. The parties did not reach agreement on parenting time or the line of credit solely in the father’s name. The real estate market in Nova Scotia shifted during this time and previous agreement that the mother would remain in the matrimonial home was contested by the father. The mother argued the previous agreement should be upheld and the father argued the previous agreement was conditional due to the need for further financial disclosure. The Court ultimately found that the parties intended to be bound by the initial agreement through the words and subsequent actions of the parties. Despite the increase in the value of the matrimonial home, the Court held this was not sufficient in and of itself to set aside a mutual and valid agreement.
SM-M v SM, 2022 NSSC 256
Justice Samuel Moreau
Subject matter: Final Decision-Making | Imputing Income | Child Support in a Shared Parenting Arrangement | Post-Separation Debt Servicing
The parties are the parents of two children, H and V, ages 13 and 8, respectively. One of the children, H, suffers from anxiety, ADHD, and dyslexia. The parties began a shared parenting arrangement with respect to V in January 2022, and the mother maintains the primary care of H.
The mother sought an order for final decision-making authority over medical issues. The father sought an order that the parties follow the advice of a professional. Ultimately, the Court ordered that the mother be the final decision maker with respect to medical issues of the children in the event the parents could not agree. The father has no contact with H and was not in the best position to make judgements about H’s medical affairs. The father also unreasonably withheld his consent in relation to medical issues the children were facing, demonstrating a wariness toward services important to the children’s mental health. The mother was more involved in the children’s medical affairs and was in the best position to make decision’s respecting their health.
The mother sought an order imputing income to the father. In or around 2010, the father conceived and developed a media news outlet operated principally on social media platforms. After being let go by his last employer prior to separation, the parties mutually agreed that instead of seeking other employment, the father would concentrate his efforts on the media news outlet. Justice Moreau declined to impute income to the father. The mother failed to demonstrate on a balance of probabilities that the father was intentionally underemployed. The decision of the father to not seek employment at a higher rate of remuneration was found to be bilateral.
The parties previously attended a settlement conference and agreed that the father would pay child support to the mother in the amount of $707 per month. The father argued this amount should be reduced to account for the shared parenting arrangement for V. The Court rejected this argument. The Court found an economic disparity between the two households, as the father lived with his mother and aunt, and the mother lived only with the two children. The father has the benefit of two other individuals to share the household expenses and contribute to V’s standard of living, whereas the mother does not. Ultimately, the Court ordered the father to continue paying $707 per month.
Finally, the mother claimed reimbursement for expenditures related to post-separation matrimonial debt. The Court was satisfied that mother’s claim was appropriate and reasonable in the circumstances. The father abdicated responsibility respecting the majority of the matrimonial debts and left the mother to service most of these debts. The father did not dispute this claim. Accordingly, Justice Moreau awarded reimbursement for matrimonial expenditures in addition to child support arrears and section 7 expenses.
Wolfson v Wolfson, 2022 NSSC 263
Justice Theresa M. Forgeron
Subject matter: Costs
This is a decision on costs following an aggressively contested and complex divorce trial involving the classification and division of over $16 million in assets, and the quantification of spousal and child support.
Ms. Wolfson sought $482,986.50 in costs based on her success at trial, her settlement position, and procedural history. This includes disbursements of $171,000 for expert fees. Mr. Wolfson did not seek costs from Ms. Wolfson. He said any costs payable by him should not exceed $250,000 and that the court has no authority to consider HST paid on legal fees, settlement positions in settlement conferences, or “without prejudice” communications.
The Court made several findings on this matter. First, the Court held that HST should be included when calculating the amount of legal fees incurred by Ms. Wolfson. This case involved “strategic and egregious dereliction of the duty to disclose”, Ms. Wolfson paid all her legal fees, and it would be unfair to ignore the 15% non-discretionary HST payment. Second, the Court excluded all settlement briefs and position letters/emails from their costs analysis. This is in line with many Nova Scotia Supreme Court decisions, which held that all discussions, positions taken, and opinions expressed during settlement conferences should remain confidential. Third, Ms. Wolfson proved that she should recover most of the expert fees charged to her. It was reasonable to retain the experts so that the value of Mr. Wolfson’s controlling shares in 11 companies could be ascertained, and the amount charged by the experts was just and reasonable.
Finally, the Court considered the appropriate value of costs. The Court awarded Ms. Wolfson $422,567 in costs payable by Mr. Wolfson. The Court based this decision on many factors, including the complex nature of the litigation, and Mr. Wolfson’s lack of disclosure, which compromised the integrity of the trial process, limited the parties’ ability to meaningfully engage in settlement discussions, and added unnecessary costs and expense.
Oliver v Oliver, 2022 NSCA 57
Justice Cindy A. Bourgeois
Subject matter: Corollary Relief
Mr. Oliver filed a motion to stay the entirety of the Corollary Relief Judgement pending appeal, which was issued on June 21, 2022, following a five-day divorce hearing on issues pertaining to the division of matrimonial assets.
At trial, the Court held that Ms. Oliver was entitled to a matrimonial property equalization payment of $169,042, a claim in Mr. Oliver’s company valued at $352,000, retroactive child support of $35,134, 50% of the matrimonial assets, and 50% of the appraised value of recreational vehicles owned by Mr. Oliver. Mr. Oliver alleged the trial judge erred in classifying some assets owned by his business as matrimonial assets.
The Court ultimately dismissed Mr. Oliver’s motion for a stay. In applying the Fulton test for the discretionary granting of a stay, the Court found Mr. Oliver had not demonstrated irreparable harm would occur. He provided no evidence of unexpected tax liabilities resulting from the Order, nor did he establish irreparable harm in relation to the use of bank drafts to pay Ms. Oliver. The Court also found that Mr. Oliver had not established extraordinary circumstances to justify a stay.
Notably, the Court was satisfied that Mr. Oliver had not come to the court with clean hands. He was not abiding by the previously issued Order for interim spousal support or payment of costs owing to Ms. Oliver. He said he could not afford to pay Ms. Oliver, but he provided no evidence of impecuniosity.
Ms. Oliver was entitled to costs in the amount of $2,000, as the successful party on the motion.