This Month in NS Family Law – October 2021

November 9, 2021

Richardson v. Richardson, 2021 SCC 36
Justices Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal

Issues: Best interest of the child | Custody

The parties have a 16-year-old daughter and a 10-year-old son. The dispute revolved around custody of the two children and whether it is in their best interests to reside with the Appellant in Ottawa or with the Respondent in Niagara. One week before be hearing the parties filed a joint letter advising the court that due to changing circumstances the Respondent would not take any further steps to enforce the trial judge’s order regarding the 16-year-old child.

The court agreed unanimously that appeal should be dismissed without costs.

A.M. v. K.W., 2021 NSCA 69
Justices Bryson, Van den Eynden, Derrick

Issue: Custody | Parenting | Division of property | Costs

The parties have two children ages 6 and 4. The couple had a level of conflict in their relationship which resulted in the father being charged with forcible confinement in 2018 and the mother leaving with the two children. At trial the court awarded joint custody with primary care and final decision-making authority to the mother.

After an 8-year common law relationship, mother made a claim for unjust enrichment for a share of the interest in the three properties acquired during the relationship. At trial, she was successful and was awarded cost.

The father appealed the Court’s decisions on custody, unjust enrichment, and costs.

On appeal, the father argued that the trial judge erred in failing to consider the maximum contact principle in determining parenting. The Court of Appeal found that although the trial judge did not expressly refer to that section of the legislation, it was clear from the reasoning that the judge was mindful of the principle.

The Court of Appeal was not satisfied that the trial court did not properly consider the issue of offsetting in determinin the mother’s unjust enrichment claim.  The father had not advances this argument at trial, but the trial judge still considered offsetting in making the unjust enrichment order in favor of the mother.

The Court of Appeal dismissed the father’s arguments on the issue of costs. The father argued that the trial judge had not considered his ability to pay. The Court found that the father did not advance any concerns about his ability to pay at trial and he did not advance a motion under Rule 77.04 to be relieved from cost.

The appeal was dismissed with costs payable to the mother.

Chedrawy v. Chedrawy, 2021 NSCA 73
Justice Bryson

Issue: Appeal period

The Appellant brought a motion to extend time to appeal an interim ex parte order.

The father had consented to the mother taking their children to visit  family in Lebanon. From Lebanon, the mother brought the children to Delaware without the father’s consent or knowledge. When the father learned the children were in Delaware, he filed an interim ex parte motion to have them returned to Nova Scotia, which was granted. The mother obtained an Ex Parte Order in Delaware.  However, once the Delaware Court was made aware of the Nova Scotia Order, it also ordered the mother to return the children to Nova Scotia.

The mother wished to appeal of the Ex Parte Order granted, and filed a motion to extend her time to appeal.  She argued that she was not out of time to file the appeal because the Interim Order was made pursuant to the Divorce Act, which provides for a 30-day appeal period.  In the alternative, she argued an inconsistency 10-day limitation to appeal under the Rules, and the 30-day limitation period under the Divorce Act.  The mother relied on federal paramountcy from Nestor v. Nestor, 2018 BCCA 453, and argued that the Divorce Act limitation should be followed.

The Court of Appeal relied on the analysis from Elgner v. Elgner, 2011 ONCA 483.  The Court indicated that Section 21(6) of the Divorce Act requies an appeal to be determined  “according to the ordinary procedure”. Even if there was a conflict the mother could not succeed in this argument because her appeal was filed 31 days after the ex parte order.

The court did not extend the appeal period, identifying that only in exceptional circumstances will the court overturn interim ex parte orders. The Court said that the procedural remedy is to seek an inter partes hearing, which the mother did not do. The Court found that the mother conceded jurisdiction and that she led no evidence or submissions regarding the best interest of the children to justify an extension.

The mother’s motion was dismissed with costs payable to the father.

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