Owda v Hussini, 2024 NSSC 23

Judge: Honourable Justice Cindy Cormier
Subject: Relocation, Parenting Time, Child Support

Summary:
Ms. Owda filed an initial application under the Parenting and Support Act to seek to have Mr. Hussini pay child support. The mother claimed that Mr. Hussini was not contributing to the children's expenses and that he was intentionally unemployed. The mother also sought primary care of the children and permission to relocate to Calgary, Alberta so that she may start a new job with Alberta Health Services. The father sought an order requiring the children to remain in Halifax and stated that he was prepared to assume primary care of the children and facilitate the mother's parenting time in Calgary. If the children remained in Halifax, he stated that he would be content with the current parenting arrangement which gave him care of the children Thursday through Sunday.

The parties began a relationship in or around 2008, and were married in 2012. Their relationship was one which had ongoing difficulties with conflict, including reports of domestic violence filed with the police in 2012 and 2013. The initial report of domestic violence was filed by the father against the mother in 2012 due to her throwing his belongings out the window, and in 2013 the father again filed a report against the mother due to yelling and physical fighting when he tried to leave the apartment. The mother filed a report the same day in 2013, reporting historical domestic abuse by the father. Both parties were charged with domestic assault although the charges were dropped after the parties agreed to participate in counselling together.

The parties resided in Calgary between 2013 and 2017 before moving back to Halifax in 2017 when the mother became pregnant with their first child, M. Following the birth of M the father was inconsistently employed. The parties then had a second child in 2020.

In 2021, there was another physical altercation between the parties due to the mother wanting the father to leave the home; this altercation involved the police and resulted in both parties being charged with assault and ordered to not have contact except to facilitate parenting arrangements. At this time the father allegedly offered to pay the mother's rent in lieu of child support. Disagreements over this arrangement resulted in another involvement with the police in 2022, as the mother refused to let the father take the children swimming until he paid her rent that he owed for that month. Following the police's involvement the father's name was removed from the lease.

The Judge found that despite the parties strained relationship, the father had continued to be substantially involved with the children following their separation and that the parties had a substantially shared parenting arrangement with significant support from extended family.

The mother stated that her reasons for wanting to relocate to Calgary were so that she could change to a higher paying job and so that the children would have better access to health care. The Judge found that regarding healthcare there was insufficient evidence presented that the children had been unable to access appropriate health care in Halifax. The effect of the move on the children's time with their father and extended family would be drastic. Considering that the parties already have challenges communicating the Judge expressed concern that this would be an even bigger challenge if the mother was to relocate with the children. Furthermore, the children currently have a strong relationship with their father and his extended family, and a move would make this difficult to sustain, especially as the mother provided insufficient evidence regarding details of planned visits to Nova Scotia.

The Judge ordered shared decision making and a continuation of the shared parenting time if the mother chooses to remain in Halifax. If the mother chooses to move to Calgary without the children, the father will be granted primary care of the children and the mother's parenting time will be determined via further court submissions. The Judge ordered that the parties file further financial information in order to determine appropriate child support.

Hillier v Hillier, 2024 NSSC 48

Judge: Honourable Justice Aleta Cromwell
Subject: Costs

Summary:
Ms. Hillier sought to terminate spousal support following her retirement in December 2022. Alternatively, she sought to vary the spousal support provisions to reduce her spousal support obligations and add a termination date. In Hillier v Hillier, 2023 NSSC 316 Justice Cromwell found that there had been a material change in circumstances due to Ms. Hillier's retirement and reduced spousal support from $4000 to $1000 a month, terminated the "top-up" payment, and added the termination date of April 30, 2025.

The first issue was to determine what was the "amount involved". Ms. Hillier suggested that the amount involved was $120,888.00 representing the difference between the two spousal support amounts for the remaining duration of spousal support payments. Justice Cromwell disagreed with this suggestion and instead chose to use Mr. Hillier's suggestion that the amount involved was $64,888.00 which represents the "top-up" payment ($36,888) plus spousal support for another 24 months.

The second issue to determine was who was the more successful party. Justice Cromwell determined that Ms. Hillier was more successful as she was able to demonstrate a material change in circumstances, and she was awarded a reduction in spousal support and the addition of a termination date. As such, she will be awarded costs.

The final issue was to determine what the appropriate cost award is. Trial time was one day. Ms. Hillier submitted that she made two offers to settle, however, the Judge found the "offers" were not made in accordance with Rule 10.05 and instead they constituted prejudice letters. However, the intention of the letters was still given weight. In consideration of all the factors, Justice Cromwell declined to increase the tariff amount and awarded costs of $9250.00.

Fashoranti v Fashoranti, 2024 NSSC 21

Judge: Honourable Justice Theresa Forgeron
Subject: Divorce, Division of Assets

Summary:
The parties were married in 1990 in Nigeria and immigrated to Canada in 1993. They have three adult children. Mr. Fashoranti practiced family medicine until his license was suspended in 2020. He has remained unemployed.

The parties separated in June 2021 although they continued to live together until Ms. Fashoranti and her son left in May 2023 due to safety concerns. Following the separation, Ms. Fashoranti has shouldered the household payments herself. Ms. Fashoranti filed for divorce on January 6, 2023. On March 24, 2023, Ms. Fashoranti filed a motion for an uncontested divorce, which Mr. Fashoranti did not respond to until June 1, 2023, when he filed a motion for that motion to be set aside. Justice Forgeron granted Mr. Fashoranti's motion on November 17, 2023, although she did not grant his request for an adjournment as the parties were facing considerable debt and prolonging the legal proceedings would cause Ms. Fashoranti considerable prejudice. An oral decision on the divorce trial was delivered on January 19, 2024.

The parties disagreed on four key issues which impacted the equalization of their assets and debts. The issues are as follows:

  1. Whether the sale proceeds from their former home should be included as a matrimonial asset. Ms. Fashoranti argued that prior to separation the parties conveyed their Pugwash home to their son who sold it and retained the sale proceeds.
  2. What the value of the matrimonial assets is, including the value of their property owned in Nigeria and the value of their vehicles.
  3. Whether all outstanding business debts should be divisible as matrimonial debt. Ms. Fashoranti argued that business debts, like business assets, should be excluded from division.
  4. What the appropriate disposition is of the matrimonial home, which is held in their daughter's name despite the mortgage being in the parties' names. Mr. Fashoranti wanted to retain the matrimonial home even though he had no ability to pay any associated expenses or buy out Ms. Fashoranti's interest. Ms. Fashoranti requested that the home be sold, and the proceeds be equally divided.

The net proceeds from the sale of the Pugwash home were not to be included as matrimonial property. Mr. Fashoranti had decided to transfer the property to the son and the son is not party to the litigation, so Justice Forgeron has no authority to order him to return the sale proceeds to his parents.

Justice Forgeron found that the corporate income tax debt and the source deduction arrears were matrimonial debt as the corporate income was used to pay the families expenses. However, she declined to include any interest and penalties accrued after separation because Mr. Fashoranti delayed the sale of the home which prevented the early payment of the outstanding debts.

Justice Forgeron was unable to assign a value to the Nigerian property because no evidence was offered. She instead stated that absent an agreement or determination by the Nigerian courts, the parties will remain joint owners of the Nigerian property.

Neither party put forward a feasible plan to buy out the other's interest and so the matrimonial home was ordered to be sold. Until its sale, Ms. Fashoranti was granted exclusive possession of the home on the basis that she has no other adequate shelter, she left due to safety concerns, and she cannot continue to pay both a mortgage and her rent. Justice Forgeron also ordered that from the sale proceeds, Mr. Fashoranti must reimburse Ms. Fashoranti 50% of the mortgage payments, real property taxes and house insurance from the date of separation to May 2023. From May 2023 until February 29, 2024, Mr. Fashoranti must reimburse Ms. Fashoranti all the mortgage and insurance payments that she made, as well as $500 a month in occupation rent. He must also reimburse her for 50% of all the bills that Ms. Fashoranti paid for the house while the parties lived together and 100% of the bills for after she moved out. While Ms. Fashoranti continues to reside in the home, she will pay Mr. Fashoranti $500 a month as occupation rent.

McLearn v McLearn, 2024 NSSC 36

Judge: Honourable Justice Daniel Ingersoll
Subject: Spousal support, child support, division of matrimonial property

Summary:
Ms. McLearn and Mr. McLearn separated in 2016 after a twenty-two-year marriage. During the marriage, Ms. McLearn primarily stayed at home to raise the parties' four children while Mr. McLearn worked as a horticulturalist. Ms. McLearn moved out of the family home in May 2018 and none of the parties' four children moved with her.

Mr. McLearn submitted that Ms. McLearn should be ordered to pay $7, 559 in historic child support for the two children under the age of majority. Ms. McLearn submitted she should not pay child support for her daughter because her daughter spent most of her time at her father's house. Justice Ingersoll noted that a child's location is not determinative of child support obligations. Based on imputed income (discussed below), Ms. McLearn was ordered to pay historic child support to Mr. McLearn out of the net sale proceeds of the matrimonial home.

Mr. McLearn asked that income should be imputed to Ms. McLearn between May 1, 2018, and April 1, 2020. Following the split, Ms. McLearn began working at McDonalds but stopped this employment in 2018 and did not offer evidence as to why she stopped working at McDonalds. On cross examination Ms. McLearn admitted that she could work and did not offer an acceptable reason for why she is not working beyond her partner being able to provide for her. Despite Ms. McLearn's lack of education, training and job experience limiting the range of jobs she would be qualified for, Justice Ingersoll found that she could have been working in some capacity and chose not to. As a result, income was imputed to Ms. McLearn at the rate of full time minimum wage employment.

Ms. McLearn sought historic and prospective spousal support. Mr. McLearn did not deny that she may be entitled to it but submitted that he will have no ability to pay once the matrimonial home is sold and he begins paying rent. Justice Ingersoll agreed that Ms. McLearn is entitled to spousal support on both a compensatory and non-compensatory basis on the premise that she chose to not pursue education or employment in order to take care of the family.

While Ms. McLearn does not have an income, all of her living expenses and basic needs are now met by her new partner, Mr. Munroe. Her current lifestyle is not much different than it was during her marriage. Mr. McLearn asked the court to consider Ms. McLearn's re-partnering when assessing spousal support. Considering that all of Ms. McLearn's needs are met by Mr. Munroe, Justice Ingersoll decided to depart from the SSAG spousal support range. He eliminated Ms. McLearn's current entitlement to non-compensatory support. Ms. McLearn was granted monthly spousal support entitlement of $300 a month. Justice Ingersoll also awarded a lump sum retroactive spousal support payment of $8,968.

In terms of division of assets, Mr. McLean's pension was divided equally, the proceeds of the sale of the matrimonial home were divided equally and debts related to the home were to be paid equally out of the sale of the proceeds of the home. Mr. McLearn had inherited two Kennetcook properties from his mother, which were determined to not be used enough to classify the entire property as a matrimonial asset. As such, twenty percent of the value of the Kennetcook properties were considered a matrimonial asset subject to division.

Nova Scotia (Maintenance Enforcement) v R.M., 2024 NSSC 56

Judge: Honourable Justice Lorne J. MacDowell
Subject: Non-payment of child support

Summary:
In December 2013, R.M. was ordered to pay $390 in monthly child support for his two children. R.M. and his children are indigenous. On September 8, 2023, an oral decision was rendered. Those findings include that as of March 14, 2023, R.M. had an arrears owing of $32,660.44. The Maintenance Enforcement Program (MEP) had exhausted all reasonable administrative efforts. R.M. has not shown a valid excuse for not paying his support or arrears. R.M. had been given many opportunities to participate and file financial information but did not do so. The judge also found that a Gladue report was warranted and ordered one to be prepared.

The issue to be determined was what remedy should be imposed upon R.M. pursuant to the Maintenance Enforcement Act, given the evidence and consideration of the Gladue principles. The court confirmed that this was not a criminal proceeding, and the Criminal Code does not apply, however the Gladue principles must be considered. In consideration of the Gladue principles, the court found that they must:

  • Take judicial notice of the systemic and background factors impacting Indigenous defaulting payors;
  • Review a Gladue report with respect to specific individualized information;
  • Consider and apply the Supreme Court of Canada's direction that judicial notice and considerations and the contextualization of the unique circumstances of the particular Indigenous defaulting payor are to be used in a remedial restorative manner;
  • Consider how the judicial notice and contextualization impacts a fit and proper remedy; and
  • Consider Gladue factors on the evidence as it pertains to moral blameworthiness and appropriate sanctions.

The judge concluded, after considering the Gladue Report, that R.M. has personally experienced the adverse impacts of many factors continuing to plague Indigenous communities since colonization, and in his immediate family and among peers. The judge further acknowledged that what is required is the consideration of the Gladue principles within the context of the Act.

In this proceeding, R.M. had failed to engage in the enforcement and court process, failed to take any action to vary or appeal the original order, failed to attend court, failed to file the required documents, failed to provide evidence regarding his reason for failing to make his support payments, and failed to make his support payments.

The MEP had tried many administrative actions and sanctions, including revoking R.M.'s driver's license, Federal license actions, and more. None of these were successful. The judge found that a period of incarceration in default of payment was an appropriate remedy.

The judge clarified R.M.'s ongoing child support payments and arrears payments. They further order that if R.M. failed to pay his total amount due in any three-month instalment period, he shall be imprisoned for a period of seven days, to be served on weekends.

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