Canada: This Month In NS Family Law – May 2021

TM v CV, 2021 NSSC 148
Honorable Justice Theresa M. Forgeron

Issues: Costs

The parties participated in a divorce trial. TM sought costs in the amount of $5,000 and CV sought costs in the amount of $6,643.25. The Court determined that CV was the more successful party on two of the parties' four issues. TM was successful on one of four issues and the parties had mixed success on the fourth issue. The Court awarded $3,000 in costs to CV.

The reason for this award include: the award will do justice between the parties; CV was the more successful party; the parties' animosity towards each other increased legal fees; the litigated issues were not complicated; and trial was reduced to a half day. Costs were payable within 45 days.

Additionally, it was ordered that the parties' Corollary Relief Order reflect the clauses discussed including; the parties' communications for parenting would be facilitated through a designated app; the parties were not required to hire a transportation service to exchange parenting time; and nothing in the Order would affect a Provincial Court order.

Pike v Pike, 2021 NSSC 162
The Honourable Associate Chief Justice Lawrence I. O'Neil

Issues: Division of assets | Rental properties

The parties were married for 23 years and have two children together. Their main issue was the division of property. The parties were joint owners of four properties. Three of these properties were tourism rental properties held as assets by the wife. The fourth property was a half interest in the wife's mother's home, which the parties used as their matrimonial home. The Court determined that the rental properties were joint family ventures and were to be divided equally since they were acquired and maintained through both parties' efforts and funds. The nature of the tourism business was a family enterprise and this was unaffected by the wife registering the business in her name alone. The Court ordered that the net value of all four properties be divided equally.

TM v. RR, 2021 NSSC 156
Honorable Justice Pamela Marche

Issues: Unjust enrichment | Spousal support

TM brought a claim for unjust enrichment and sought spousal support on a compensatory and non-compensatory basis. The parties had a 16-year common-law relationship. TM's claim of unjust enrichment related to RR retaining sole ownership of a home received from TM's father and his employment pension. The Court found that there was unjust enrichment of RR given that: he received the benefit of the home and equity from TM's father with no down payment; TM's father transferred title of the home to RR based on RR's relationship with TM; TM contributed to the household bills and was even a guarantor for a mortgage on the home at one point; and RR left the relationship with an unequal distribution of wealth with no justification for doing so. The Court ordered that the equity in the home be divided equally between the parties. The Court did not order an equal division of RR's pension. His contributions to the pension had a minimal impact on the family's funds and TM make significantly lower contributions to this asset than RR.

TM was considered a spouse under the Parenting and Support Act and was awarded spousal support based on need. She relied on disability benefits and had an annual income of $15,029. RR had an income of $62,550. He was ordered to pay $1,307 per month from the parties' date of separation reviewable when RR retired. RR was also ordered to pay retroactive spousal support in the amount of $37,105, in monthly $500 payments. This amount was calculated from the time TM first brought her application for support.

Clowes v Clowes (Burns), 2021 NSSC 163
Honourable Associate Chief Justice Lawrence I. O'Neil

Issues: Division of matrimonial home | Spousal support

The parties were married for 28 years before separating. Their matrimonial home was owned jointly until 2014, when the property was transferred to the wife alone for tax purposes. On separation, the wife left the home and the husband had been financially responsible for the property since that time. The Court ordered an updated appraisal of the home and an equal division according to this valuation. The husband was given the option of purchasing the home from the wife for the net value.

The Court found that the wife was entitled to retroactive and prospective spousal support. This was based on the following considerations: she left her employment to care for the children for a period; she contributed to joint family ventures and she maintained the household when the husband traveled for work. The amount of spousal support could not be calculated at the time of the hearing since both parties were receiving employment insurance. The Court arranged to review the parties' incomes to calculate support, in the near future. The husband was also ordered to maintain his life insurance policy with the wife as the beneficiary for half of its value.

TE v ND, 2021 NSSC 169
Honourable Justice Cindy G. Cormier

Issues: Child support variation | Retroactive child support | Parenting time

The father brought an application to vary the parties' Corrollory Relief Order, specifically to terminate child support to the parties' oldest child on his 19^th birthday, and for sole custody of the parites' youngest child. The mother applied for: retroactive child support for both children from 2014, reflecting the father's true income; prospective child support for the oldest child; and joint custody of the youngest child.

At the time the Corollary Relief Order was issued, both children lived primarily with the mother. The youngest child began living with the father in May, 2021. The mother's delay in applying for retroactive child support was because she was unaware of changes in the father's income. The father was criticized for not voluntarily increasing his child support payments when his income increased. The wife demonstrated that she experienced financial difficulties and even filed for bankruptcy during the retroactive period. There was no hardship to the father found as he continued to acquire assets like a house and vehicles during the retroactive period. The mother was awarded retroactive child support in the amount of $6,356.

The father was ordered to pay prospective child support for the oldest child in the amount of $467 per month and the mother was ordered to pay child support for the youngest child in the amount of $450 per month pursuant to the child support tables. The set-off amount for these payments is $17 per month, payable by the father to the mother. The Court found that both parties and the oldest child should be equally responsible for the oldest child's college expenses. As a result, the parties each had a debt to the oldest child in the amount of $2,408 for past expenses. This was to be paid by each party to the oldest child in the amount of $172 per month. The parties must also provide the oldest child with $171 per month for this ongoing expense until the child completes their program in 2023.

The Court ordered joint custody of the youngest child with parenting time to the mother one weekend per month.

AM v KG, 2021 NSSC 167
H.J. Samuel C.G. Moreau

Issues: Parenting time

The parties are separated and have one child together. They have had a highly conflictive relationship and have been granted a number of interim orders relating to parenting. There was an incident between the parties which resulted in AM being charged with assault. Following this incident, KG did not facilitate parenting time between AM and the child.

AM sought a shared parenting arrangement with a week about schedule. The Court found that it was not within the child's best interest to have a shared parenting arrangement. There were questions about AM's cannabis consumption and it was noted that family violence impacted his relationship with the child. Both parents had good care plans. However, KG had a closer relationship with the child and supported the child's relationship with AM's family.

The Court maintained the existing parenting schedule for these reasons. AM continued to have parenting time every second weekend from Thursday to Sunday. The parties are required to consult one another when making parental decisions. If they cannot reach an agreement, a professional opinion must be obtained. AM's parents will provide transportation for parenting time exchanges and neither party can be intoxicated while caring for the child.

LL v KS, 2021 NSSC 84
H.J. Theresa M. Forgeron

Issues: Costs

KS sought costs from LL in the amount of $17,000. LL initially brought an application for parenting time and child support. KS was found to be the more successful party. The Court ordered his request for a shared parenting arrangement, which was the most contested issue. However, neither party was successful on the parenting schedule, or the amount of retroactive child support awarded.  KS had legal feesof $37,000, which was considered reasonable for the parties' three day trial. Neither party's settlement offers reflected the decision. LL was criticized for opposing a shared parenting arrangement and KS was criticized for opposing retroactive child support. KS was awarded $7,000 in costs payable by LL in monthly payments of $200.

Garnier v Garnier, 2021 NSSC 116
H.J. Theresa M. Forgeron

Issues: Costs

The wife sought costs from the husband. The wife was found to be the more successful party. The Court took her position on the main issues of spousal support entitlement and interpretation of the parties' Order. The Court acknowledged that self-represented parties are entitled to costs. When determining the amount of costs, the Court did not solely rely on the amount of time the wife spent preparing for the matter. It was noted that the parties' settlement offers did not reflect the decision and the wife's conduct prevented the parties' from settling. For these reasons, the Court awarded $2,000 in costs to the wife payable by June 2021. The husband's claimed inability to pay was not considered since he failed to file the necessary motion at the beginning of the costs proceeding.

Miller v Miller, 2021 NSSC 152
Honourable Justice Cindy G. Cormier

Issues: Child support | Retroactive child support

The mother applied to vary the parties' Collaroy Relief Order for prospective and retroactive support for their oldest child. The father's income was $82,762 at the time of the Order, but increased to $87,666.59 in 2020. At the time of the Order, the oldest child lived primarily with the mother and the youngest child had a week about schedule. The youngest child began living primarily with the father in May, 2021. The father was ordered to pay child support in the amount of $415 based on the table amount for a split parenting arrangement, beginning in May, 2021. If the youngest child begins living with the mother, child support must be adjusted the month after, based on a hybrid parenting model with at least 40% of child support paid to the mother. The father was ordered to pay $3,496 in retroactive child support for the oldest child for the period of June 15, 2020 – April 15, 2021.This amount was to be repaid in monthly payments of $291. The children's expenses were to be shared between the parties proportionate to their incomes. Spousal support received by the mother is taken into account when determining her income for expenses.

Costey v Rundle, 2021 NSSC 168
H.J. Samuel C.G. Moreau

Issues: Division of assets

The parties were married for 15 years at the time of separation. Costey sought an unequal division of property. After she failed to provide financial disclosure, the Court ordered an equal division of the parties' assets. Their matrimonial home was previously sold and the proceeds divided based on the parties' agreement. Costey requested that the parties share the cost of her legal fees by re-classifying the division of the proceeds of the home based on an agreement between the parties. The Court declined to do so, since it was already determined that the agreement would not be considered in this decision. The parties own an engineering corporation and 50% of a rental company, through a holding company. Costey took out share holder's loans in the amount of $127,677.69 over a 21- month period from one of the parties' companies. Costey claimed that the share holder's loans were for unpaid wages she was owed. The Court classified these loans as matrimonial assets based on the intention that the assets would be used for immediate gain and were acquired from employment income diverted from family use. The Court considered the loans as an advance on the parties' division of property. Costey was credited the total amount of the loans less income tax and was ordered to transfer her shares to Rundle so he could wind up the company. Costey's pension was classified as a matrimonial asset and was equally divided. On the total division of assets, Costey was ordered to pay $91,981.62 to Rundle within 60 days of the order being issued or she had the option of securing the debt against her real property by way of a mortgage with and annual interest rate of 5%.

Wintrup v Adams, 2021 NSSC 164
H.J. Samuel C. G. Moreau

Issues: Date of separation | Division of property

The parties were married for one year before separating and lived together for a total of two years. Wintrup sought spousal support and division of assets.

Adams appeared by video from Saudi Arabia due to the pandemic. The Court found that Wintrup was not entitled to spousal support given the short duration of the marriage and Wintrup's financial self-sufficiency. The parties became close for approximately 75 days after separating, which caused a disagreement over their date of separation. The Court found that this period did not interrupt the parties' initial separation. Wintrup continued to file her taxes under the status of divorced. Wintrup did not indicate a later date of separation in the divorce petition documents and the period did not exceed 90 days.

The parties had several properties to consider. Property that Adams received in a settlement with his previous wife was exempt from division. The remaining properties were rental properties- two were previously acquired by Wintrup,  two were previously acquired by Adams, and one property was acquired during the marriage. The Court ordered that the parties retain the properties they each acquired prior to marriage, along with their respective accounts and pensions. The property acquired during the marriage was divided unequally in favour of Adams. This was to account for $200,000 Wintrup removed from the joint without consent.

Henderson v Micetich, 2021 ABCA 103
Marina Paperny J.A., Jack Watson J.A., and Thomas W. Wakeling J.A.

Issues: Retroactive child support | First application of Michel v Graydon, 2020 SCC 24 by a provincial Court of Appeal

The parties have two children together. Henderson made monthly child support payments to Micetich on an informal basis. Since the parties' arrangement, Henderson's income increased, however he also made a consumer's proposal. The Court acknowledged that Michel v Graydon modernized the DBS factors for retroactive support. Here there was no unreasonable delay. Micetich applied for child support in May 2018, retroactive to January 2018. Henderson's failure to disclose his income and increase child support according to his income was blameworthy conduct, despite the informal agreement of the parties. The children were presumed to have lost a benefit by not receiving increased child support despite being financially cared for by their step-father. The Court did not find any undue hardship to Henderson given that child support obligations must come before his consumer proposal obligations. The Court awarded child support arrears in the amount of $24,408.90 and prospective child support in the amount of $1,662 per month.

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