This Month In Family Law ' May 2022

• Published date: 08 June 2022
• Subject Matter: Family and Matrimonial, Family Law, Divorce
• Law Firm: Cox & Palmer
• Author: Ms Jocelyn Campbell, Michelle Axworthy, Andrea Pierce, Dominique Perinchief and Kelcie N. White

Daye v Savoie, 2022 NSCA 38
Justice Wood

Subject matter: Consent order | Appeals

On March 3, 2022, Ms. Daye filed a motion requesting an extension of the time to challenge a consent order issued on January 22, 2021. The consent order anticipated conveying a property to Ms. Daye by a certain date, and if financing could not be obtained by that date, Mr. Savoie would pay her an agreed sum in lieu of transfer of title. Justice Derrick dismissed Ms. Daye's motion on the basis that her appeal was without merit, she did not demonstrate a bona fide intention to appeal within the appeal period, and there was insufficient explanation for the delay. (2022 NSCA 27)

Ms. Daye then made a motion for leave to have Justice Derrick's decision reviewed by a panel of the Court pursuant to Civil Procedure Rule 90.38. Justice Wood found that the audio recording of the NSCA hearing and the materials submitted by Ms. Daye provided no basis for challenging Justice Derrick's conclusions. The Court found that there was nothing in Ms. Daye's written motion which suggests a panel review is necessary to prevent an injustice. The motion for a review pursuant to Civil Procedure Rule 90.38 was dismissed with costs payable to Mr. Savoie for the amount of $250.

Titus v. Kynock, 2022 NSCA 35
Honourable Justice Carole A. Beaton

Subject matter: Relocation | Best interests of the child | Primary care

The parties have a nine-year-old child, and a long history of litigation. Both parties wanted to relocate with J and have argued that their respective relocations are in J's best interest. Ms. Kynock sought to relocate to her husband's farm in Idaho. Mr. Titus applied to relocate with J to a home he owns in Stewiacke, Nova Scotia. The trial judge granted Ms. Knoyck primary care of J.. permission to relocate to Idaho, sole decision-making, and the ability to travel without Mr. Titus's consent. Mr. Titus appealed on multiple grounds, including that the judge erred in her analysis and application of the best interest of the child test, the judge misapprehended the evidence, the judge did not provide adequate reasons for her decision and the decision demonstrated an apprehension of bias.

The Court of Appeal found that two errors in the trial judge's application of the best interest of the child test. First, the judge focused on resolving the tension between the parents rather than focusing primarily on the child's best interests. Second, the judge's decision suggested that Mr. Titus's plan for relocation was not given sufficient consideration compared to Ms. Kynock's plan for relocation. The trial judge also focused heavily on the implications of the move on Ms. Kynock and not on the child, which effectively placed the child's interests as secondary.

It was of concern to the Court of Appeal that the trial judge did not have meaningful details from Ms. Kynock's plan for relocation. The overwhelming focus on Mr. Titus' plans and insufficient consideration of the gaps in Ms. Kynock's plan reasonably left the impression on Mr. Titus that he did not receive a fair hearing. The Court of Appeal allowed the appeal and ordered a new hearing of the parenting and relocation issues.

Charapovich v Charapovich, 2022 NSSC 124
Justice Elizabeth Jollimore

Subject matter: International law | Foreign divorce | Division of property

Ms. Charapovich filed a petition for divorce and corollary relief. Mr. Charapovich responded to this claim by asserting that the parties were already divorced in Belarus. He asked the Court to hold that the Byelorussian divorce should not be recognized in Canada. One common law requirement for recognizing a foreign divorce is that either party had a real and substantial connection with the foreign jurisdiction where the foreign divorce was granted. The parties disagreed whether Mr. Charapovich had a real and substantial connection to Belarus. Justice Jollimore held that she did not need to consider this issue as granting the divorce would be contrary to public policy to recognize the Byelorussian divorce.

Justice Jollimore was concerned that if she recognized the Byelorussian divorce that Ms. Charapovich would be unable to claim a division of property as the Matrimonial Property Act only applies to spouses, and not divorced spouses, and the common law requires the assumption that the foreign law is the same as Nova Scotian law. Mr. Charapovich submitted that Justice Jollimore could use her inherent jurisdiction to allow for a post divorce division of property. Justice Jollimore rejected this argument on the basis that divorce is a matter of exclusively federal jurisdiction while property is exclusively provincial jurisdiction. As such there is no gap in the legislation and no reason therefore to use inherent jurisdiction.

The Court granted Ms. Charapovich's request and refused to recognize the Byelorussian divorce on the basis of public policy reasons.

Partridge v Bain, 2022 NSSC 125
Justice Elizabeth Jollimore

Subject matter: Division of property | Valuation of property | Business assets | Unequal division of property

This matter involved the characterization, valuation and division of Mr. Partridge and Ms. Bain's assets under Matrimonial Property Act. Justice Jollimore found that the real estate at, 6017 Highway 215 Kempt Shore, the three 40-foot storage containers, and the camper were business assets because they were bought with funds from the business and were primarily used for the purpose of business. Justice Jollimore determined that the boat and accessories, the 1997 Skandic skidoo, the 2007 Chevrolet 2500 Silverado, household contents and Ms. Brain's jewelry were matrimonial assets.

Justice Jollimore ordered that within 30 days of the decision, Mr. Partridge is to create a list of household contents in his possession and divide the assets between himself and Ms. Bain. Ms. Bain will then have first choice of which items she wishes to own and she must collect the items from Mr. Partridge within 14 days after identifying her choices. The same procedure will apply for household contents in Ms. Bain's possession.

Ms. Bain applied for an unequal division of her pre marriage pension and RRSP contributions. Justice Jollimore held that there would be nothing shockingly unfair about an equal division of assets. Justice Jollimore considered the length of the relationship and the manner of the acquisition of the assets. The relationship was 10 years long, does not meet the criteria of unusually short. Furthermore, the parties both brought significant assets (over $100,000) into the marriage and invested these assets into matrimonial property. Justice Jollimore held that the contributions made by the party to the matrimonial assets were not so unequal that they warranted an unequal division of assets. Mr. Partridge owes Ms. Bain $579.60.

Oliver v Oliver, 2022 NSSC 131
Justice Jean M. Dewolfe

Subject matter: Divorce | Division of property |...