This Month In Nova Scotia Family Law ' June 2023
| Published date | 12 July 2023 |
| Subject Matter | Family and Matrimonial, Family Law, Divorce |
| Law Firm | Cox & Palmer |
| Author | Ms Jocelyn Campbell, Courtney Losier and Michelle Axworthy |
Weagle v Kendall, 2023 NSCA 47
Judge: Justice Carole A. Beaton
Subject Matter: Parenting Time; Relocation
The father appealed from the trial judge's decision allowing the mother to relocate their child from Halifax to Ottawa. The appeal was allowed, and the matter sent for a rehearing with another judge.
The judge erred in overemphasizing the reasons the father could not act as a primary parent and thereby effectively shifted the father's burden of proof under the Parenting and Support Act. The judge also erred in the interpretation of s 18H(3) of the Act, by improperly limiting the range of parenting options she could have considered in not examining certain evidence, not assessing all relevant factors required to be considered, and not sufficiently focusing on whether the move was in the child's best interests, placing greater emphasis on the mother's interests in relocating.
Pottie v Boudreau, 2023 NSCA 40
Judge: Justice Cindy Bourgeois
Subject Matter: Filing Accommodation; Appeal; Access to Justice
This decision is the result of Mr. Pottie's Appeal of two orders coming from the Supreme Court of Nova Scotia dated February 17, 2023. The order allowed Ms. Boudreau to travel internationally with the children and obtain the required travel documents without Mr. Pottie's consent.
Mr. Pottie asked for relief from the technical requirements of the Appeal under Civil Procedure Rule 90. Specifically, he asked to be relieved of the production of 5 appeal books for the use of the Court, and the requirement to deliver a paper copy to Ms. Boudreau, due to cost proving to be prohibitive. Mr. Pottie requested to be allowed to use the copier available at the Court at no cost, to serve Ms. Boudreau electronically, and to be relieved of any other costs that may arise pursuant to his appeal.
The Court dismissed Mr. Pottie's motion for accommodation. The Court outlined that the cost of an appeal should not be weighed in isolation. The merits of the appeal, the impact of the accommodation on Court resources, procedural fairness on the other party and whether appeal is brought in bad faith should also be considered by the Court before awarding accommodation.
Although Mr. Pottie did demonstrate financial hardship, he failed to address the projected costs in anticipation of the preparation of the appeal books. Additionally, the Court explained that Mr. Pottie had failed to demonstrate the merits of his appeal.
Murphy v Ibrahim 2023 NSCA 42
Judge: Justice Peter Bryson, Justice Elizabeth Van den Eynden, and Justice Carole Beaton
Subject: Apprehension of Bias; Parenting Time; Supervised Parenting Time; Parental Capacity
The appellant, Ms. Murphy, and the respondent, Mr. Ibrahim, had one child together. In June of 2020, Ms. Murphy brought an Application to Vary, which was heard in September, 2021. In his 2022 NSSC decision the judge varied a 2017 parenting order. Ms. Murphy's parenting time and child support were varied and she was ordered to participate in a psychological assessment. The judge also ordered that Ms. Murphy's parenting time be supervised, and that Ms. Murphy pay costs. Ms. Murphy appealed and brought a motion for a stay of all three orders.
The motion to stay was granted in part in Murphy v Ibrahim, 2022 NSCA 75. Ms. Murphy's parenting time had been ordered supervised over twelve, 1.5 hour sessions at Veith House. This twelve-session limit was stayed. Ms. Murphy had been ordered to attend a psychological assessment as a pre-condition for a variation of the judge's variation order. This pre-condition requirement was stayed (although Ms. Murphy was still ordered to attend a psychological assessment). The order for costs was also stayed.
In this case, the Court of Appeal found that Ms. Murphy was appealing on five main points:
- sufficiency of reasons;
- reasonable apprehension of bias;
- errors of law, mixed fact and law, or of fact;
- ineffective assistance of counsel; and
- error in awarding costs.
It was held that the judge's reasons appropriately considered the best interests of the child factors found in s. 18(6) of the Parenting and Support Act, RSNS 1989, c. 160 and were sufficient to permit appellate review.
Ms. Murphy claimed that all the requests and motions she brought were denied, while all of the requests Mr. Ibrahim brought were granted, and this demonstrated a reasonable apprehension of bias. The Court of Appeal rejected this argument, finding that the judge had managed the case appropriately.
Ms. Murphy identified many areas she argued were errors of law, mixed fact and law, and fact. The Court of Appeal declined to address each individually but chose to review several points to demonstrate their lack of merit. The Court held that the judge had correctly identified and considered the best interests of the child throughout the decision. Ms. Murphy argued that the judge had not considered the maximum contact principle when considering parenting time. The Court of Appeal disagreed, holding that the judge had correctly identified that supervised access was not a long-term arrangement, and had also correctly considered the child's best interests, rather than Ms. Murphy's, when making an order for parenting time.
Ineffectiveness of counsel was held to not be a valid ground of appeal, as this case didn't meet the "rarest of civil cases where a very compelling public interest is engaged" standard described in Kedmi v Korem, 2012 NSCA 103, para 41.
Ms. Murphy's appeal on costs was also rejected, as the judge had considered the history of the matter, the positions taken by the parties and their respective successes on the issues raised.
The appeal was dismissed and Ms. Murphy was ordered to pay costs.
D.D. v M.P., 2023 NSSC 192
Judge: Justice Lorne MacDowell
Subject matter: Parenting; allegations of abuse from third party
The parties have a five-year-old child, diagnosed with autism. Both the mother and father sought primary care of the child. The mother has other children, including a 17-year-old, V.D.
The father claimed that the child should be in his primary care because the child was allegedly sexually abused by V.D. The father also claimed that he is better equipped to provide the child with educational support, proper nutrition, routine sleep, and cultural ties.
The mother denied all allegations that V.D. had sexually abused the child. She argued that she is able to deal with her son's autism diagnosis and provide the child with strong community support. The mother claimed that the father had been emotionally abusive to her during and after their relationship.
The Court concluded that the father had not proven that V.D. had sexually abused the child. The Court noted that the father had not shared his concerns of abuse until after the litigation between parties began.
On the issue of care, the Court held that it is in the child's best interests to be placed in the mother's primary care due to evidence that she is more capable...
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