This Month In Nova Scotia Family Law ' July 2023

• Published date: 13 September 2023
• Subject Matter: Litigation, Mediation & Arbitration, Family and Matrimonial, Family Law, Trials & Appeals & Compensation, Wills/ Intestacy/ Estate Planning
• Law Firm: Cox & Palmer
• Author: Ms Michelle Axworthy, Jocelyn Campbell, Courtney Losier and Kyle Barrie

R.H. v A.L.S., 2023 NSSC 171

Judge: Justice Samuel Moreau

Subject: Primary Care; Parental Decision Making; Parenting Time

Summary:

The parties separated in 2020 after 13 years of marriage. The separation had been highly contentious. The father, R.H., sought primary care and decision-making responsibilities for their 8-year-old child, while reducing the mother's parenting time. The mother, A.L.S., sought to return to a shared parenting arrangement and to have decision-making responsibility.

The Court determined that where there is any conflicting evidence, they will accept the father's version. This is because the mother was deemed to be self-serving; she has a lack of insight on how her behaviour has impacted B, and her evidence was focused on how the separation impacted her specifically and not what was in the best interest of B.

The Court determined that it is within B's best interest to remain in the primary care and residence of the father. However, the judge did not find that reducing the mother's parenting time will be beneficial. The mother will maintain her current parenting time schedule, where she has B every second weekend.

The Court found that joint-decision making between the parties was "unworkable" and that it is in the best interest of B to have the father as his appointed decision-maker. The parties have been deemed incapable of communicating on a civil level, and so it has been ordered that they continue to communicate via email only, where text messaging is allowed in only emergency situations.

Either parent is able to travel outside of Nova Scotia with B, including international travel. Notice of 60 days must be given to the other parent for travel of this kind. The only exception to this is in relation to emergency situations, which include family emergencies.

Bennett v Pettipas, 2023 NSSC 198

Judge: Judge Lawrence I. O'Neil

Subject: Unjust Enrichment; Credibility; Joint Family Venture

Summary:

Mr. Bennett and Ms. Pettipas were in a common law relationship. Mr. Bennett claimed to have provided Ms. Pettipas with money and services which benefitted her and caused him to suffer a corresponding deprivation. He sought a joint family venture, or alternatively, quantum meruit. Ms. Pettipas denied that the parties were living together in a common law relationship.

The court considered the credibility of the parties and found that Mr. Bennet was forthright and candid, whereas Ms. Pettipas was strategically deceptive and called witnesses to give evidence she knew was untrue. The court accepted Mr. Bennett's evidence and held that the parties had been in a (tumultuous) common law relationship for 9 years.

The court then considered whether Ms. Pettipas had enjoyed an enrichment for which Mr. Bennett had suffered a deprivation.

A house had been built in 2011 that was in Ms. Pettipas' name alone. It was sold in 2017. A second home was built in 2017, which was also only in Ms. Pettipas' name. The parties separated in 2019, and the second home was sold for approximately $600,000.00, half of which was held in trust pending this litigation. Mr. Bennett claimed that he had contributed to the household expenses and was also heavily involved in the construction of both homes. Mr. Bennett's brother was the contractor engaged for the construction of both houses, and he claimed that he had charged Ms. Pettipas and Mr. Bennett a discounted rate, in part because Mr. Bennett had contributed free labour. The court accepted this evidence. The court also accepted that Mr. Bennett had regularly contributed financially to the household.

The court held that Mr. Bennet had proven a joint family venture. The parties had contributed mutual effort to the construction of the homes and had planned to operate both of their businesses from their home, indicating personal and business life integration. Ms. Pettipas had managed their bank accounts and had received $30,000 of Mr. Bennett's inheritance. Ms. Pettipas was unemployed during much of their relationship and benefitted from Mr. Bennett's income.

The court held that the value of Mr. Bennet's contribution, including household expenses and labour on the two houses, was $70,000. The court acknowledged that Ms. Pettipas made a significant capital investment into the homes. Ms. Pettipas was ordered to pay this amount from the proceeds of sale of the second house that were held in trust.

MacLean v Francis, 2023 NSSC 212

Judge: Justice Moira C. Legere Sers

Subject: Child support; Costs

Summary:

This matter concerned a motion for costs regarding an application to vary a child support order. The motion for costs related to the inadequacy of and delay in the Respondent's document disclosure.

The parties have two children together. There have been a series of child support orders relating to these children. The Court issued the first child support order on May 4, 2011. At that time, Mr. Francis worked full-time for the Band Council. Through this employment, he received an honorarium. Mr. Francis also received income from fishing. The court imputed his income during this period to be $117,200. In August 2012, Mr. Francis advised that he had lost his employment with the Band Council. He made an application to vary the child support order due to this change in his income. In this application, Mr. Francis also advised the court that he started a tuna chartering business and that he was making $75,000. The court ordered Mr. Francis to pay $1,226 per month in child support for the two children.

In July 2020, Ms. MacLean applied to vary this order and sought retroactive child support back to 2013. She argued that Mr. Francis's income was significantly higher than the income he declared.

Mr. Francis filed a statement of income in September 2020. Shortly after this, Ms. MacLean retained legal counsel. In January 2021, the Court ordered Mr. Francis to submit full financial disclosure. Mr. Francis responded to this order 9 months later, however incomplete. Mr. Francis also applied to vary the parenting order to create a shared custody arrangement at this time.

In January 2021, the Court ordered Mr. Francis to file full financial disclosure, including his crab and tuna income. The Court directed these documents to be disclosed by April 15, 2021, and specified that the documents must include his personal and business income.

In April 2022, Mr. Francis provided a partial disclosure. He filed this disclosure on the day before he was scheduled for his court appearance. The Court adjourned for 2 weeks to allow for the review of these documents. However, further adjournments took place until October...