Canada: This Month In NS Family Law – September 2021

Wolfson v Wolfson, 2021 NSSC 260
Justice Forgeron

Issues: Unequal division of assets | Matrimonial property 

The couple was married for 12 years and have two children. Mr. Wolfson owns shares in 12 companies. The companies own and manage several rental properties. Mr. Wolfson sought to have the shares classified as business assets to exclude them from the matrimonial division of property. The court decided that the companies owned by the husband were intended to be an income producing and retirement vehicle for the couple. The rental property income was the family's primary income. The lifestyle that the family had could not be maintained by their personal assets alone and this showed that the business assets were intended to be used to maintain the family. The family also used company assets for personal purposes. The court decided that 50% of Mr. Wolfson's corporate shares are classified as matrimonial property. The court found that an unequal division of business assets in favour of Ms. Wolfson would be fair. Ms. Wolfson's childcare and domestic contributions during the marriage allowed Mr. Wolfson to build up the value of his companies. The matrimonial assets were divided equally.

Pike v. Pike (Johannesen), 2021 NSSC 257
Associate Chief Justice O'Neil

Issue: Costs

The parties were married for 16 years and have two children together. Their divorce was ordered in 2021. This matter dealt with the issue of costs. Mr. Pike argued that costs should be awarded in his favor in excess of $20,000. Ms. Johannesen argued that the prolonged litigation was because Mr. Pike changed lawyers and changed positions on issues before the court. Ms. Johannesen also said that she was more successful on the parenting issues. The court found that Mr. Pike was more successful on the division of property issue. This is in line with the principle that the successful party should be able to recover a substantial portion of their litigation costs. Ms. Johannesen was ordered to pay costs at $12, 188 and disbursements to Mr. Pike. A payment plan of $150 was granted to her in consideration of the fact that she is the primary caregiver for the couple's children and has limited financial resources.

MacDonald v. Padelt-Robinson, 2021 NSSC 258
Associate Chief Justice O'Neil

Issue: Relocation of children | Best interests of the child

The parties married in 2014 and separated in 2017. They have three children together. Their parenting arrangements were outlined in a consent order. The children reside primarily with the mother and the father pays monthly child support. Both parties are involved in parenting the children. The mother wanted to move to Sydney to further her education in a two-year program. The father opposed the children's relocation. The court decided that relocation was not in the best interests of the children. The mother's plan to move lacked financial stability and planning. The children were close with extended family, were settled in the school system, and had a stable life in the Margaree area. This was an important factor, considering the instability they had previously experienced.

Doucette v. Babin, 2021 NSSC 259
Associate Chief Justice. O'Neil

Issue: Relocation of children | Best interests of the child

The parties were married for five years and had one child together. Their parenting and property issues were settled by a consent order.  Both parents were heavily involved in parenting their 6-year-old child.  The mother wanted to relocate from Artichat to Spryfield.

The court found that it was in the best interests of the child to live with his father in Glace Bay because this provided him with more stability. The court considered factors relevant to what is in the best interests of the child including stability, impact to the child and connection to extended family. The court considered the child's Acadian heritage and the fact that both parents' plans involved removing the child from the Acadian community. The court found that the father would be in a better position to keep the child's connection to their cultural roots. The court said that the mother's plan relied two much on the actions of her new partner.

MacDonnell v. MacDonnell, 2021 NSSC 265
Justice Legere Sers

Issue: Continued decision | Child support

This is a continuation of a decision released August 24, 2021, involving parenting. This decision concerned child support, spousal support and division of property. The parties were involved in a high conflict divorce and have four children together. The mother sought retroactive support from February 2020. The court ordered the father to pay retroactive child support to July 2020, with no explanation provided.

The parties had an issue with their joint bank account. They continued to use this account to support the family after separation and until December 2020. They were now seeking to divide their contributions. The court found that there was insufficient evidence to make this division. The parties' failure to make financial and parenting plans for their separation was a significant factor in this issue.

On the issue of section 7 expenses, the court noted that the majority of the mother's income was from the Canada Child Tax benefit. To determine section 7 expenses, income from Child Tax benefits must be excluded. This would require the father to pay 81% of these expenses which is unreasonable. After considering the mother's income, the court ordered the father to pay 55% of the children's childcare expenses. The court decided that the father had no ability to pay any additional section 7 expenses. The mother was directed to submit more information regarding her work hours and her need for childcare to assess retroactive section 7 expenses. There was no order for spousal support given the father's inability to pay.

The father sought an unequal division of matrimonial assets, since he gave up his interest in property held jointly by the mother's parents and the parties. He did so against the advice of counsel, under the belief that the grandparents were building the mother a house on the property. The court was not moved by this and decided that an equal division of assets was the fairest outcome.

Boutilier v. Snook, 2021 NSSC 271
Justice MacLeod-Archer

Issue: Child support | Retroactive support

The parties were divorced in May 2013. Their parenting and support issues were outlined in a corollary relief order and incorporated separation agreement. They have a shared parenting arrangement for their daughter, with the mother having primary care. The mother sought to retroactively vary child support and share section 7 expenses in proportion to the parties' incomes. She proposed to pay the child's section 7 expenses from her RESP and requested that these education costs be split proportionately when the RESP is exhausted.

Both parties agreed that there was a change in circumstances. The father's income increased each year since 2016.  The mother's income was imputed for child support purposes. The court considered whether the fear of jeopardizing the current cooperative parenting relationship prevented the mother from filing a variation application earlier. The court found that this was not the case. The father was ordered to pay retroactive support based on his increased income, from October 2016. The parties' child support will continue to be set off according to their incomes, because of their shared parenting arrangement. The father was also ordered to pay 77% of the child's section 7 expenses while the child attends university and lives at home.

Pelham v. MacNeil, 2021 NSSC 251
Justice Jollimore

Issue: Variation of child support

Mr. Pelham made a motion seeking to re-open an application to vary child support that was decided on June 3, 2021. To succeed on this motion Mr. Pelham had to provide the court with new evidence that was unable to be discovered previously, is credible and relates to the issue. If this could be shown, Mr. Pelham also had to demonstrate that he was diligent in seeking this evidence before a decision was made. Mr. Pelham's new evidence was that he was accepted into a trade program which will eventually affect his income. At trial he gave evidence that he was on a waitlist for this program and provided the income range he was expecting to earn afterwards. The court found that this was not new evidence and his motion to re-open the application was dismissed.

This decision was released on August 20, 2021

MacDonald v. Risley, 2021 NSSC 250
Justice Warner

Issue: Motion for enforcement of a promissory note

Ms. MacDonald brought a motion for summary judgment on the evidence, for payment of a $10 million promissory note. The promissory note was part of the parties' settlement of divorce proceedings. Mr. Risley argued that the two-year limitation period on the note had expired. The limitation period had in fact expired on May 31, 2020. However, the court sided with Ms. MacDonald and found that Mr. Risley's emails acknowledging the debt in 2018 and 2019 had the effect of extending the limitation period. Ms. MacDonald brought her action before the expiration of the new limitation period. Therefore, Ms. MacDonald was granted the summary judgment in the amount of $10 million for the debt.

Green v. Green, 2021 NSCA 61
Justice Bourgeois

The parties were involved in a high conflict divorce. The Husband brought a motion seeking to extend the time limit for filing a Notice of Appeal. He missed the filing deadline by one day. The court found that the delay was minimal and the reason for the delay was of little concern. However, the court found that the merits of the appeal were lacking. Mr. Green's proposed ground of appeal was contempt. He had previously made an application for contempt against Ms. Green relating to parenting time. This application was still outstanding. The court found that the contempt application did not relate to the matter before the trial judge and therefore was not a valid ground of appeal. The motion was dismissed.

SS v JG, 2021 NSSC 282
Justice Marche

Issue: Decision on costs

This is matter involved costs. The parties received a decision in July 2020 which dealt with the issues of parenting and child support. SS argued that she should receive costs since she was the more successful party, JG proposed an unrealistic parenting plan, JG wasted court time, and JG rejected a settlement offer that was more favorable to him than the outcome. JG did not provide a position on costs. The court ordered JG to pay $7,000 in costs to SS, payable to the Nova Scotia Legal Aid Commission.

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