This Month In Nova Scotia Family Law – October 2022 - Family Law

Stanton v Inglis, 2022 NSCA 60
Justice Carole A. Beaton

Subject matter: Appeal Ground – Reasonable Apprehension of Bias | Primary Parenting Time | Leave to Apply for Parenting Time

In October 2022, Justice Beaton dismissed Ms. Stanton's appeal. Ms. Stanton sought to overturn Justice DeWolfe's decision that denied Ms. Stanton leave to apply for primary parenting of her three grandchildren. The Respondents, Ms. Inglis and Mr. Leavitt, are the parents of the children. The children reside with Ms. Inglis and have parenting time with Mr. Leavitt. At trial, Justice DeWolfe determined that it was not in the best interests of the children to grant Ms. Stanton leave to appeal.

Ms. Stanton requested that the Court of Appeal intervene and grant her the leave she was refused at trial, as well as primary care of her grandchildren. The Court explained that it is not within the jurisdiction of the Nova Scotia Court of Appeal to grant the relief requested by Ms. Stanton with respect to a parenting order.

Ms. Stanton asserted reasonable apprehension of bias on the part of Justice DeWolfe that constituted a miscarriage of justice. The Court explained that Ms. Stanton had the burden to persuade the court of this argument. However, the Court held that Ms. Stanton's submissions solely sought to re-litigate an application that had already been decided by Justice DeWolfe. The Court reminded family law litigants that such re-litigation is not the function or purpose of appeal courts. Furthermore, the Court stated that a high standard of deference must be applied to the decisions of trial court judges that do not contain a material error or a misapprehension of evidence. The Court found that there was no basis to interfere with Justice DeWolfe's decision and that Ms. Stanton had not discharged her burden.

The appeal was dismissed, and Ms. Stanton was ordered to pay costs of $500 to each Respondent.

Ambrose v Ambrose, 2022 NSSC 285
Justice Cindy G. Cormier

Subject matter: Costs

In April 2019, Ms. Ambrose filed a Notice of Application and a Notice of Motion for Interim Relief. There were several court conferences and one interim hearing. Some of the appearances had to be rescheduled because Mr. Ambrose refused to file the requisite documents or make complete financial disclosure.

In November 2021, Justice Cormier found that Ms. Ambrose was entitled to spousal support on the high end of the Spousal Support Advisory Guidelines because of the parties' 18-year relationship, the role Ms. Ambrose played in the relationship, Mr. Ambrose's failure to provide full financial disclosure, and the fact Mr. Ambrose had been underreporting his income since the parties' separation (2021 NSSC 308).

In December 2021, Ms. Ambrose filed submissions on costs. Ms. Ambrose sought costs in the amount of $3,500.00 (pursuant to Tariff A – with an amount involved of less than $25,000.00) to be awarded to the Nova Scotia Legal Aid Commission. Ms. Ambrose sought contribution towards legal fees and other expenses arising from the court appearances that eventually culminated in the November 2021 decision.

Justice Cormier agreed with Ms. Ambrose that Tariff A and Scale 1 should be applied and agreed that $3,500.00 was an appropriate costs award. Further, Justice Cormier held that Rule 77.03(5) and sections 22 and 23 of the Nova Scotia Legal Aid Act apply. Mr. Ambrose was ordered to pay $3,500.00 immediately. Under the "Rule of Thumb" approach, Justice Cormier found that the matter took up at least one day of court time. Justice Cormier determined that Mr. Ambrose's lack of financial disclosure was a complicating factor that informed the costs award.

MacIntyre v Spooney, 2022 NSSC 281
Justice Pamela Marche

Subject matter: Unjust Enrichment | Spousal Support

This decision follows the 2022 NSSC 233 decision released in August 2022. After the decision, the parties were unable to reach agreement on costs and filed written submissions with the Court in October 2022.

Ms. Pennell sought costs from Mr. Larkin in the amount $25,621.72, inclusive of disbursements of $575.51. Mr. Larkin submitted that he should pay costs to Ms. Pennell of $10,250.00. Mr. Larkin proposed to pay $2,250 immediately and $1,000 per month on the first day of the month for the next 8 months.

The Court ordered that Mr. Larkin pay Ms. Pennell $20,000 in costs. The first $5,000 shall be paid immediately, and the remaining $15,000 paid in $1,000 monthly installments until the balance is paid. The Court noted that this payment structure was ordered to protect Mr. Larkin from financial hardship and to protect the parties' child from negative impacts.

The Court explained that this amount is approximately 60% of Ms. Pennell's legal fees and that the percentages offered in Armoyan are not "static standard percentages that must be applied in all cases." Rather, those specific percentages were ordered in that case based on the misconduct of the parties and other special circumstances. The Court held that there was limited misconduct in this matter.

The Court held that Ms. Pennell was the more successful party and was therefore owed a costs award that represented "a substantial indemnity of her reasonable legal fees and expenses." However, the Court did acknowledge that Ms. Pennell was not entirely successful.

Mr. Larkin did not challenge the legal fees presented by Ms. Pennell. The Court held that a lump sum award is more appropriate in this circumstance than applying the tariffs because parenting issues cannot be assigned a dollar value. The Court rejected the "rule of thumb analysis" and described it as "dated." The Court stated that the extra costs associated with Mr. Larkin's late filings informed the costs award.

Pennell v Larkin,2022 NSSC 303
Justice R. Lester Jesudason

Subject matter: Costs

Paulin v Pennell, 2022 NSSC 297
Justice Theresa M. Forgeron

Subject matter: Parenting | Division of Assets | Child Support

Mr. Paulin and Ms. Pennell are separated spouses. Their relationship lasted approximately 12 years, They are the parents of three children who self-identify as Mi'Kmaq and Acadian. The parties were unable to resolve issues of parenting, division of property, and support.

Parenting and Decision Making

Mr. Paulin sought a shared parenting arrangement, and Ms. Pennell sought primary care.

The Court found that Ms. Pennell was better equipped to make decisions regarding the children. The Court did acknowledge that Mr. Paulin was able to meet the day to day needs of the children, but Ms. Pennell's organizational skills and assumption of decision-making responsibilities both before and after separation made her the better decision-making choice. However, Ms. Pennell will seek the opinion of Mr. Paulin before making major decisions if Mr. Paulin agrees to communicate in a respectful manner. If the parties cannot agree, Ms. Pennell has final decision-making authority.

The Court also found that it was in the best interests of the children to be the in the primary care of Ms. Pennell. Further, the Court found that Ms. Pennell was better equipped to meet the children's medical, emotional, and social welfare needs. The Court created a parenting schedule for the parties to follow that is based on the best interests of the children and supports Mr. Paulin's relationship with the children. The Court disagreed with Mr. Paulin who argued that a positive and loving relationship can only be achieved by a shared parenting arrangement.

Although denied by Mr. Paulin, the Court accepted that he had been abusive to Ms. Pennell and the children in the past. The Court highlighted that Mr. Paulin did not provide any independent evidence that he addressed this history of family violence in a therapeutic setting. Further, the Court felt that Mr. Paulin minimized his own actions during his testimony and blamed his outburst on the actions of Ms. Pennell and her boyfriend. The Court accepted Ms. Pennell's arguments that Mr. Paulin's history of family violence negatively impacted the children and should inform their parenting arrangement. The Court agreed that Mr. Paulin did not appreciate the negative impacts that family violence has on children.

For these reasons, the Court held that Ms. Pennell is the stronger parent who provides a safer home for the children. The Court ordered Mr. Paulin to attend therapeutic counselling to achieve several objectives. These objectives included obtaining a better understanding of the impact family violence can have on children, developing skills to better manage fear, anger, and frustration in a healthy fashion, developing better disciplinary skills, and developing better communication skills.

Division of Assets

Both parties agreed that the assets and debts should be equally divided, but they could not agree on how to approach said division. The parties' assets consisted of the matrimonial home, household contents, two vehicles, and Ms. Pennell's pension. The family debts were a mortgage, two car loans, and credit card debt.

Mr. Paulin wanted to retain the matrimonial home. Ms. Pennell offered Mr. Paulin a two-year window to arrange for her share of the home to be paid out to her. That two-year window expired. Ms. Pennell wanted the home to be sold and their debts paid off so the parties could move pass their separation.

The Court agreed that Mr. Paulin had ample time to refinance the home to payout Ms. Pennell but did not. The Court ordered the matrimonial home be immediately listed for sale and divided the remaining matrimonial property and debts.

Child Support

Under the primary parenting plan ordered by the Court, Mr. Paulin must pay child support according to the Child Support Table Guidelines. Mr. Paulin is off work due to injury. He earns $33,728 in tax free worker compensation benefits. The Court grossed this amount up to $38,304 for child support purposes. Therefore, the Court ordered Mr. Paulin to pay $757 per month to Ms. Pennell. The Court relieved Mr. Paulin of the obligation to contribute towards section 7 expenses because of the income differential and the spousal support calculation.

Spousal Support

The Court found that Mr. Paulin was entitled to spousal support. The Court found that Mr. Paulin had a strong non-compensatory component, but also demonstrated some factors of a compensatory claim. The Court considered the following factors:

Both parties were employed when the relationship began.
Pennell took maternity leaves and was the children's primary care parent.
Paulin became disabled as a result of a workplace injury that had nothing to do with the marriage or the needs of the children. Mr. Paulin receives a significant non-taxable WCB.
Pennell improved her career trajectory by undertaking postsecondary education during the relationship. She currently earns about $85,000 as the regional coordinator of Mi'kmaw Education Services.
There is a significant disparity in the incomes of the parties.
Pennell will have primary care of the children.
The parties' budgets will change after the matrimonial home is sold.
Paulin will not pay income tax on the ordered spousal support payments because his WCBS are not taxable. Ms. Pennell will be able to deduct the payments.

The Court awarded spousal support in the mid-range of $390 per month for a period of 6 years because Mr. Paulin's claim is primarily grounded in non-compensatory factors. The Court noted that Ms. Pennell had already been making spousal type payments for a period of two years (i.e., the mortgage and insurance payments made post separation).

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