This Month in NS Family Law – August 2021

September 14, 2021

Green v Green, 2021 NSCA 61
Justice Bourgeois

Issues: Custody | Appeal | Late Application 

The parties were involved in a high conflict divorce. At trial, the judge awarded primary care to the mother, and specified access for the father. The father sought to appeal the trial decision on the grounds that his contempt applications against the mother were never heard by the Court. He further alleged his evidence surrounding parental alienation was not considered. The father filed his Notice of Appeal one day past the filing deadline.

The legal principles governing a motion for an extension of time have been recently affirmed in Shupe v Beaver Enviro Depot, 2021 NSCA 46 and applied to the present case. Justice Bourgeois found that the delay was minimal and the reason for the delay is less important because the delay in filing was only by one day. Further, the father had a bona fide intention to appeal within the notice period.

Ultimately, even though the factors weighed in favour of granting an extension of time, the motion failed due to a lack of merit. First, the outstanding contempt application is not a valid ground of appeal. Justice Bourgeois explained that the role of the Court is not to address general complaints about how other courts administer matters. Justice Bourgeois also found that the lack of a contempt hearing did not negatively impact the father, and he did not advance any of this evidence at trial when he could have. Second, the father had not articulated a clear error with his argument about parental alienation. The trial judge presented a strong analysis and factual conclusion. On this basis, Justice Bourgeois determined that it was not in the interest of justice to grant an extension of time.

Titus v Kynock, 2021 NSCA 64
Justice Beaton

Issue: Parenting | Mobility | Relocation

Mr. Titus and Mr. Kynock have a nine-year-old child together. Ms. Kynock was granted primary care and permitted to relocate to Idaho, United States with the parties’ child. Mr. Titus filed a Notice of Appeal and a motion seeking a stay pending the outcome of the appeal.

A stay was granted until the outcome of the appeal could be determined. Justice Beaton relied on the father’s arguments that international travel presents serious risks as Ms. Kynock and the child are unvaccinated. Further, there were no guarantees that Mr. Titus could exercise in-person parenting time in July 2022 due to border restrictions.

The Court of Appeal applied the test governing granting a stay is from Purdy v Fulton Insurance Agencies Ltd, 1990 NSCA 23, but noted it has been modified in family law matters. The best interests of the children remains paramount, but Fulton informs the decision to grant a stay. Under the modified Fulton test, Justice Beaton found that if the child was ordered to remain in Nova Scotia, there was only the possibility of one removal. For example, if the stay was not granted the child would be permitted to move to Idaho. If the appeal was successful and the child must return to Nova Scotia, this would present a removal of the child’s surroundings twice. It was found that it was in the best interests of the child to remain in Nova Scotia due to the risks and potential for only one relocation. Justice Beaton further clarified that relocation will not always equate to a risk of harm for the child for the purposes of the meeting modified Fulton test, but on the facts of this case it did.

MacDonnell v. MacDonnell, 2021 NSSC 256
Justice Legere Sers

Issue: Parenting Plan | Child Support

The parties separated following 18 years of cohabitation and four children together. The mother was the primary caregiver of the children throughout their lives. Upon separation the mother took the children out of the province for almost four months. Upon her return, she moved the children to Dartmouth from their historical home of Cape Breton. Justice Legere Sers found that though the mother was historically the primary caregiver, she had engaged in tactics to separate the children from their father. Among these tactics included forcing the father to have supervised parenting time with the children. The mother controlled and severely limited his access. This was resulted in the older children not wishing to spend time with their father.

Justice Legere Sers declined to grant sole decision-making authority to the mother. Major decision making resides with the mother and father equally. It was further ordered that the children will remain in the Mother’s day-to-day care. She further declined the Mother’s request fir supervised access. Both parties are required to communicate about the children through the Family Wizard program.

The mother’s mobility was restricted. Due to the distance between Dartmouth and Halifax the court arranged a parenting schedule based on the school vacations of the children and supplemental electronic visits.

Pelham v. MacNeil, 2021 NSSC 251
Justice E. Jollimore

Issue: Varying Child Support

A decision to vary child support was rendered in May 2021. Mr. Pelham sought to re-open the hearing and filed a motion. Justice Jollimore described that to succeed on this motion Nova Scotia Civil Procedure Rules 82.22(2) governs. There must be evidence discovered that was 1) not capable of being discovered previously, 2) credible new evidence, 3) the new evidence must be practically conclusive, and 4) if there is injustice the necessity to prove due diligence is not strictly applied.

Mr. Pelham did not argue this was a case of obvious and substantial injustice. Therefore, the other requirements of Rule 82.22(2) must be met. Mr. Pelham argued he had new information after the original decision was released, as he was accepted into community college. At the time of the original hearing, Mr. Pelham knew he was applying to school and would be receiving EI benefits. This does not meet the standard of due diligence, nor is the information new.

The motion failed as Mr. Pelham did not meet the requirements of Rule 82.22(2).

Related Articles

This Month in NS Family Law – July 2021

S.S. v. J.G., 2021 NSSC 228 Honourable Justice Pamela A. Marche Issues: Shared custody v Primary Care | Best interest test | Retroactive child support | Voice of child report | s.7 Health Insurance Premiums | Child support At a variation application, the mother sought primary care and final decision making, and the father sought […]

read more

Recent Developments in Retroactive Child Support

The recent decisions in Michel v Graydon, 2020 SCC 24 and Colucci v Colucci, 2021 SCC 24 have changed how the courts address applications for retroactive child support and the rescission of child support arrears. The new approach to retroactive child support intertwines the principles of leading cases to create a simplified framework. The framework […]

read more

This Month in NS Family Law – June 2021

Colucci v. Colucci, 2021 SCC 24 Martin J., Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe and Kasirer JJ. Concurring Issues: Retroactive child support | Rescinding child support arrears This Supreme Court of Canada decision created a new approach to retroactive child support and arrears. The parties had a nine-year marriage. The mother has […]

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.