Judge: The Honourable Justice Samuel Moreau
Subject: Bifurcation of issues (Matrimonial Assets); Division of Matrimonial Assets; Inferences; Credibility; Sections 13 and 18 of the Matrimonial Property Act.
Summary: The parties were married in April 2010 and separated in October 2023. Ms. Swimm filed a Petition for Divorce soon after. There are two dependent children.
The parties agreed to separate the division of assets claim. The Court considered whether Avive Naturals Inc., a supplement manufacturing business, should be included in the division of matrimonial assets or whether it was a business asset. If the court found Avive to be a business asset, it next was to determine whether Ms. Swimm is entitled to a share of Mr. Swimm’s interest in the business under sections 13 and/or 18 of the Matrimonial Property Act.
Ms. Swimm sought recognition of her contributions to the family and argued that she assumed some financial risk linked to Avive, namely that the parties’ matrimonial home(s) were used as collateral to obtain loans for Avive. Mr. Swimm contended she had no involvement with the business. There was no evidence showing that Ms. Swimm was a guarantor on any loans obtained for or on behalf of Avive. However, Justice Moreau accepted the evidence of Ms. Swimm and Ms. Boutilier, Ms. Swimm’s sister and a business partner in Avive, that the parties’ matrimonial home was used as collateral for loans obtained by Mr. Swimm for Avive. The Court determined that while Ms. Swimm did not play an active role in Avive’s day-to-day operations, she did assume financial risk in Avive, even in light of limited documentary evidence.
The Court determined that Avive was clearly classified as a business asset. Next, it turned to sections 13 and 18 of the Matrimonial Property Act to determine that Ms. Swimm was entitled to a 40% share of her former husband’s financial interest in Avive.
In applying section 13, the Court considered the fact that it was highly unlikely Mr. Swimm would have any involvement in Avive except for his association with Ms. Swimm. The Court accepted Ms. Boutilier’s evidence that her primary motivation for including Mr. Swimm in Avive was due to his relationship with her sister. The Court considered that the parties relied on Ms. Swimm’s income during periods where Mr. Swimm left Avive to seek other employment. Further, the Court questioned whether Mr. Swimm would have qualified for the loans he acquired on Avive’s behalf.
In applying section 18, the Court reiterated that the parties’ matrimonial home and other assets were likely used as collateral for Avive’s loans, meaning the assets at risk classified as having a matrimonial interest. Justice Moreau determined that 7-15% would be consistent with previous caselaw. However, the Court reemphasized that Mr. Swimm’s involvement with Avive arose only due to his relationship with Ms. Swimm. This unique fact elevated the share that Ms. Swimm was entitled to a 40% share.
Judge: The Honourable Justice Terrance G. Sheppard
Subject: Admission of Surreptitious Recording; Undue Hardship; Parenting Arrangements given Mental Health Issues of Father
Summary: The parties separated in August of 2020 and have a 10-year-old son. The father moved to Montreal in May 2022 to deal with his mental health issues. The mother and child live in Colchester County, Nova Scotia. The mother requested primary care of the child and supported parenting time for the father. The father requested a reduction in his child support to assist him with travel expenses in exercising his parenting time.
The Court first addressed whether a surreptitious recording between the father and son should be admitted into evidence. Surreptitious recordings are typically strongly discouraged from being included in family law cases. There are four factors to consider: 1) the recording must be relevant, 2) the participants must be accurately identified, 3) the recording must be trustworthy, and 4) the court must be satisfied that the probative value outweighs its prejudicial effects (Power v Power, 2025 NSSC 236).
The Court accepted that the child made the recording on their own initiative, and there had been no attempt to manipulate the conversation between the parent and child. The Court accepted the reliability and trustworthiness of the recording. The Court found the content of the recording deeply disturbing and highly compelling. The recording was therefore admitted.
The Court determined that the child did need to be protected from the potential emotional abuse of the father. The surreptitious recording displayed, on the father’s part, a complete lack of knowledge or inability to keep the child out of the conflict between the parents. His unresolved mental health issues posed an emotional and potential physical risk to the child.
As well, the Court declined to reduce the child support amount as the father did not submit a financial disclosure, confirmation of his travel expenses, or a standard of living analysis. Without the proper documentation the Court was unwilling to grant his request.
Judge: The Honourable Justice Terrance G. Sheppard
Subject: Age limit for Secure-Treatment Orders
Summary: B.D.M. was born July 29, 2006. He was placed in permanent care and custody of the then Minister of Community Services on June 14, 2022, just before his sixteenth birthday. An order extending the order for permanent care and custody was granted on June 26, 2025, shortly before his nineteenth birthday. In this finding, the Court determined that B.D.M was under a disability.
The Minister believed that B.D.M. could be under a Secure-Treatment Order past his nineteenth birthday. B.D.M. disagreed with the Minister’s interpretation of the Children and Family Services Act (“CFSA”). The Court affirmed that a child in care, that has a permanent care and custody order extended to their twenty-first birthday, can be placed under a Secure-Treatment Order past their nineteenth birthday.
The CFSA defines a “child” as a person under 19 years of age and a “child in care” as a child in the case and custody of the Minister by agreement or pursuant to an order. Section 48(1)(a) of the CFSA provides that a permanent care and custody order automatically terminates when a child turns 19 years of age. However, if a child is under a disability, such as B.D.M., a court can order that the permanent care and custody be extended until the child reaches 21 years old.
The Court determined that the CFSA drew a distinction between a “child” and a “child in care” such that a child in care is not limited to those under the age of 19. Since the CFSA allows permanent care to extend to 21 years old for children under a disability, the Court found it consistent with the purpose of the CFSA that secure treatment could also extend to 21 years old.
As a result, the Court ordered a 30-day secure treatment placement or B.D.M.
Judge: The Honourable Justice Samuel Moreau
Subject: Costs, Jurisdiction
Summary: Initially, the parties appeared before Justice Beryl MacDonald in 2017. Justice MacDonald’s decision, issued August 17, 2017, awarded primary care of the parties’ son, J, to the father, R.I. In 2021, the mother, A.M., sought to vary Justice MacDonald’s order and obtain primary care of J. Justice Moreau denied this request and awarded costs to R.I. for $21,000. He issued an Order for Costs on July 28, 2022.
A.M. did not make any payments towards the costs award outlined in the Order. R.I. then filed a motion requesting Justice Moreau to apportion a percentage of the costs award towards A.M.’s child support obligation. R.I. submitted that he intended to register this amount with the Nova Scotia Maintenance and Enforcement Program.
The Court assessed whether it had maintained sufficient jurisdiction to grant R.I.’s motion, and the appropriate amount to apportion from the costs award.
The Court determined that it had sufficient jurisdiction to apportion the earlier costs award. In terms of the amount apportioned, the Court held that child support was a minimal issue in the proceeding that resulted in the costs award. However, it was also inextricably tied to the issue of primary care, which was a prominent issue in the proceeding. The Court apportioned 25% of the costs award to the child support obligation, representing $5,250 out of the $21,000 costs award.
Judge: The Honourable Justice Robin C. M. Gogan
Subject: interlocutory appeals
Summary: The Respondent, Ms. Sutherland filed a petition for divorce on February 9, 2023. At a case conference on April 28, 2025, Justice Cromwell issued an Order requiring that Mr. and Ms. Sutherland’s children attend counselling services at a provider that Ms. Sutherland had arranged. Mr. Sutherland contested the Order, submitting that the choice of provider for counselling services was inappropriate. He subsequently sought leave to appeal and brought a motion to stay the Order.
Mr. Sutherland, who was self-represented, filed a general Notice of Appeal but later filed an “amended” notice seeking leave to appeal an interlocutory order. He did not serve either notice on Ms. Sutherland. His final amendment added a motion to stay the counselling Order issued April 28, 2025. The final notice was properly served on Ms. Sutherland on July 10, 2025. Ms. Sutherland then filed a motion to dismiss the amended notice of appeal and motion to stay.
The Court determined that Mr. Sutherland’s filed the leave for interlocutory appeal beyond the required deadline. It found that Justice Cromwell made no error in issuing the April 28, 2025 Order for counselling services. Mr. Sutherland’s behaviour delayed the children from obtaining counselling during a critical period of need. The evidence suggested that the children needed counselling during a highly adversarial divorce proceeding. The Court granted Ms. Sutherland’s motion to dismiss Mr. Sutherland’s motion to stay the Order. It awarded Ms. Sutherland $500 in costs.
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