Anderson v. Anderson, 2023 SCC 13

Judge: Justice Karakatsanis

Subject Matter: Absence of Legal Advice when Entering Domestic Agreements

The parties were married for three years. They had both been married previously, and each entered the marriage with significant assets. They separated and signed a domestic agreement without disclosing their individual finances or seeking independent legal advice. The domestic agreement provided that each party would keep the property in their names, release all rights to each other's property, and divide the family home and household goods evenly. Two friends present at the meeting acted as witnesses.

Ms. Anderson filed for divorce. Mr. Anderson filed an answer 17 months later, requesting the division of property, and arguing that the domestic agreement was signed under duress and without legal advice.

The trial judge held that the lack of independent legal advice meant the agreement was not binding. He instead ordered an equal division of property. Ms. Anderson appealed.

On appeal, the court accepted Ms. Anderson's argument that the agreement should have been considered in light of Miglin v Miglin, 2003 SCC 24. In Miglin, the Supreme Court of Canada held that courts should defer to the parties in separation agreements, and to consider whether procedural protections were present when deciding whether to uphold the agreement. The court of appeal found that the agreement should have been given great weight, and ordered Mr. Anderson to pay Ms. Anderson approximately $5,000. Mr. Anderson appealed.

The Supreme Court of Canada allowed the appeal. Justice Karakatsanis for a unanimous court wrote that the agreement was short, uncomplicated, and demonstrated the intention of the parties to have a clean break from their partnership. While Miglin provided guiding principles for family law cases, it concerned the federal Divorce Act. Justice Karakatsanis held that when determining the weight to give a domestic contract, the judge must consider the appropriate legislation. As the agreement concerned the division of property, Saskatchewan's Family Property Act applied.

The agreement had not satisfied the requirements of the Family Property Act to be enforceable, but Mr. Anderson could not demonstrate any prejudice arising from his lack of legal counsel. The Supreme Court set aside the SKCA's decision and enforced the domestic agreement. The family home and domestic goods were divided evenly, and Ms. Anderson was ordered to pay approximately $43,000 difference.

Green v Green, 2023 NSCA 38

Judge: Justice Farrar, Justice Van den Eynden, Justice Beaton

Subject Matter: Parenting; Evidence

This matter concerns an appeal of an order regarding parenting time as well as a motion by the appellant to admit fresh evidence.

The Court of Appeal held that most of the appellant's submissions attacked the decision in K.G. v. H.G., 2021 NSSC 43 and that the appellant had already attempted unsuccessfully to appeal that decision in Green v. Green, 2021 NSCA 61. The Court reiterated that rehearing and reweighing evidence does not fall within the appellate court's role.

The Court also denied the appellant's motion to admit fresh evidence, as it was not in admissible form. The appellant did not sufficiently show that the evidence was relevant to the matter at hand, nor that it could have changed the outcome of the Order. The Court added that admitting fresh evidence on appeal is rare, since the issues to be addressed in a case should narrow as a case progresses.

The Court ordered that the respondent, who was self-represented, should be entitled to $5,000.00 in costs.

Edwards v Edwards 2023 NSSC 141

Judge: Justice Elizabeth Jollimore

Subject matter: Variation of Parenting Order; COVID-19 Vaccination

The parties, Ms. Lysens and Mr. Edwards, have an 11-year-old child. The parents' Corollary Relief Order requires both parents to agree on their child's medical attention. Mr. Edwards sought to vary the order so that he alone could consent to the child receiving the COVID-19 vaccine and boosters.

Justice Jollimore found that there had been a change in the child's circumstances since the order was granted in 2018, due to the global pandemic and the issuing of federal and provincial public health recommendations for children to be vaccinated.

The court then considered whether the proposed variation is in the child's best interests. The parties submitted conflicting publications regarding COVID-19 vaccinations and the risks and benefits of vaccination to children.

Justice Jollimore reviewed these publications and considered the weight that should be given to the published statements. Justice Jollimore noted that the child had been infected by COVID-19 twice already, indicating that natural immunity had not protected her from contracting the disease. Based on the publications provided, Justice Jollimore found that it was in the child's best interests that Mr. Edwards have sole-decision making on the child's COVID-19 vaccination and boosters, granting his request to vary the order.

DeLeon v DeLeon, 2022 NSSC 392

Judge: Justice Elizabeth Jollimore

Subject Matter: Relocation

The mother relocated to Alberta with the child without permission from the father, who requested that the child be returned to Nova Scotia. Justice Jollimore considered whether the move was in the best interests of the child by considering the relevant factors identified in the Parenting and Support Act. The court concluded it was not in the child's best interests to be relocated and ordered the child to be returned. One key factor to this decision was the father's unique ability to provide cultural education to his daughter as a Cuban and Indigenous man. Further, Justice Jollimore was not satisfied that the financial reasons provided in support of the move to Alberta were enough to justify the relocation. The court gave the mother the option to return to Nova Scotia to enter into a shared parenting arrangement or remain in Alberta without her child, with prescribed parenting time during summertime and holidays.

Naugle v Strickland, 2023 NSSC 133

Judge: Justice Cindy G. Cormier

Subject Matter: Costs

Mr. Strickland sought legal costs and all disbursements related to the parties' divorce proceeding.

The parties had agreed on some issues, but a half-day trial was still required. The parties had previously attended multiple settlement conferences.

Ms. Naugle argued that because she chose to represent herself, there should be no costs associated with the divorce proceeding. Mr. Strickland, the more successful party, argued that while he made significant efforts to settle the matter, Ms. Naugle delayed the matter, failed to meet filing deadlines, and failed to abide by agreements made on the record with respect to the sale of the matrimonial home.

To determine costs, Justice Cormier considered the court time required and that the parties had mixed success. The court found that Mr. Strickland delayed the negotiation process as he was slow to disclose his financials, despite being the party to commence the proceeding. Justice Cormier also found some of Ms. Naugle's positions to be unreasonable.

The court considered the time spent in court along with the Tariff A, Scale 2 amount and the disbursements to arrive at a costs award payable by Ms. Naugle in the amount of $7,095.75.

Pruneau v McCarthy, 2023 NSSC 118

Judge: Justice Cindy G Cormier

Subject Matter: Security for costs

This is a security for costs decision. The parties have a litigation history going back to 2020.

Mr. Pruneau filed a Response to Variation Application seeking, among other things, for Ms. McCarthy to post security for costs before the court considers her request to consider varying the parenting agreement. Ms. McCarthy had not paid any costs arising from the previous hearing in 2020.

Under the Parenting and Support Act, the court may order that a party post security for costs if the court believes that an order will not be complied with.

The court considered the child's best interests and Ms. McCarthy's behaviour during litigation. Justice Cormier found that Ms. McCarthy's past allegations against Mr. Pruneau had not been proven and that it was unfair for Mr. Pruneau to continue to pay legal fees to respond to Ms. McCarthy's claims.

The court ordered Ms. McCarthy to post security for costs in the amount of $3,000.00 before an interim motion hearing on the issue of material change will be heard.

Mitchell v MacLeod, 2023 NSSC 104

Judge: Associate Chief Justice Lawrence I. O'Neil

Subject Matter: Costs; Division of Property; Offer to Settle

Ms. Mitchell and Mr. MacLeod had been married for over 22 years and have no dependent children. In 2018, they each waived their right to spousal support and settled most issues relating to division of property.

At issue was Ms. Mitchell's costs associated with the hearing to determine the remaining division of matrimonial assets, which resulted in mixed success for the parties. The matter consumed one day of hearing.

Ms. Mitchell had made numerous offers to settle, which had a more favorable outcome for Mr. McLeod than the outcome from the hearing. The court determined that Mr. McLeod unreasonably forced the matter to a hearing, resulting in emotional and financial costs to Ms. Mitchell.

The court awarded Ms. Mitchell $12,000, representing 40% of the costs she sought in her application.

Illington v MacIntyre, 2023 NSSC 105

Judge: Associate Chief Justice Lawrence I. O'Neil

Subject Matter: Child Support

The court ordered minor changes to the parties Corollary Relief Order. The changes were in relation to communication between the parents and scheduled times for electronic parenting time.

Still to be determined was the father's child support obligations. The court required further disclosure to accurately calculate support.

The court ultimately ordered retroactive child support payable, costs against Mr. Illington, and to complete disclosure requirements for ongoing support calculations. Lastly, any "backpay" received by Mr. Illington from his worker's compensation benefits are to be applied to the outstanding child support obligations.

Farell-Wadden v Mombourquette, 2023 NSSC 164

Judge: Justice Pamela Marche

Subject matter: Parental Alienation; Interim Orders

The parties are the maternal grandmother and the father of a nine-year-old child. The child had been living primarily with the grandmother, with the father having parenting time pursuant to an interim consent order.

The child had been resisting visitation with the father, who claimed that the grandmother had alienated the child from him, and that the child should be placed in his primary care.

Justice Marche found that it is not necessary to demonstrate a material change in circumstances to issue a final order. The court is not limited to the terms of an interim order in its consideration when issuing a final order. Though history of care is a relevant factor, the interim order is not binding.

Parental alienation was not proven on a balance of probabilities. Justice Marche adopted Justice Chiasson's definition of parental alienation from Williams v Power, 2022 NSSC 156, described as "a process where one parent's role in the child's life is systematically eroded over the course of time."

The court found that the grandmother had been a significant source of security for the child, including being primarily responsible for the child's complex medical and educational needs, while the father was not significantly involved.

The court determined it was in the child's best interests to remain in the primary care of the grandmother, with the father having regular parenting time.

King v. Raftus, 2023 NSSC 160

Judge: Justice John P. Bodurtha

Subject Matter: Unjust Enrichment

Following the death of Mr. King's wife, Mr. King had agreed with Mr. and Mrs. Raftus that they would renovate Mr. Raftus's workshop into an in-law suite for Mr. King to live in. It was agreed that Mr. Raftus would supply his own labour for the renovation project, with Mr. King responsible for paying the non-labour costs involved. Once the suite was completed, Mr. King was to have the option of living in it for the rest of his life if he so chose.

Mr. King subsequently moved out of the suite without notice to Mr. and Mrs. Raftus. He then sought an order for the repayment of monies on the basis that Mr. and Mrs. Raftus had been unjustly enriched by the renovation. An appraisal found that while the property had appreciated by $92,000 since the renovation, only $29,960 was attributable to the renovation itself, with the remainder reflecting general inflation in housing prices. Mr. Raftus had supplied $42,455 of his own time in the course of the renovation, based on the $65/hour rate he ordinarily charges in his work as a contractor.

Justice Bodurtha rejected the claim of unjust enrichment, finding that Mr. King had not demonstrated that Mr. and Mrs. Raftus had been enriched. The time that Mr. Raftus had spent on renovating the suite was worth more than the corresponding increase in property value, meaning that no enrichment took place. Justice Bodurtha further noted that Mr. and Mrs. Raftus had done nothing to "force out" Mr. King, a factor which might have altered the unjust enrichment analysis.

Justice Bodurtha also held that Mr. King retained the right to live in the in-law suite for the remainder of his life (a point that was not challenged by Mr. and Mrs. Raftus), but declined to recognize a life interest in the suite, as the necessary formalities to create this kind of proprietary interest had not been observed.

Friesen v Friesen, 2023 NSSC 168

Judge: Justice Elizabeth Jollimore

Subject matter: Child and Spousal Support

The parties, Mr. and Ms. Friesen, have been separated since 2015 and have one child. At issue was whether retroactive child and spousal support was owed, and whether spousal support should be discontinued.

The prospective child support, for a period beginning in September 2020, was awarded to the parent that the child was living with at the time and determined based on each parent's income. The child currently lives with Mr. Friesen, is 18 years old, and is not working or going to school. If the child returns to school, the parents were ordered to proportionately share the educational costs.

Retroactive child support was awarded to Ms. Friesen from January 2017 to March 2020. Mr. Friesen did not provide Ms. Friesen with his tax returns, and his failure to disclose his increased income and change his child support payments to reflect this increase were blameworthy.

Justice Jollimore found that Ms. Friesen was entitled to both compensatory and non-compensatory spousal support. The parties were married in 2001 and separated in 2015. Ms. Friesen helped pay for Mr. Friesen's tuition before the birth of their child and left the work force to home school the child, resulting in her not being able to make Canada Pension Plan contributions or build career experience. Mr. Friesen has been economically advantaged by the roles the parties played in the relationship, while Ms. Friesen, despite good efforts to retrain, has not yet attained self-sufficiency. Mr. Friesen's request to end spousal support was dismissed.

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