This Month In NS Family Law ' October 2021

• Published date: 11 November 2021
• Subject Matter: Litigation, Mediation & Arbitration, Family and Matrimonial, Family Law, Trials & Appeals & Compensation, Divorce
• Law Firm: Cox & Palmer
• Author: Ms Jocelyn Campbell, Michelle Axworthy, Andrea Pierce, Kelcie N. White and Dominique Perinchief

Richardson v. Richardson, 2021 SCC 36
Justices Wagner C.J. and Moldaver, Karakatsanis, C'té, Brown, Rowe, Martin, Kasirer and Jamal

Issues: Best interest of the child | Custody

The parties have a 16-year-old daughter and a 10-year-old son. The dispute revolved around custody of the two children and whether it is in their best interests to reside with the Appellant in Ottawa or with the Respondent in Niagara. One week before be hearing the parties filed a joint letter advising the court that due to changing circumstances the Respondent would not take any further steps to enforce the trial judge's order regarding the 16-year-old child.

The court agreed unanimously that appeal should be dismissed without costs.

A.M. v. K.W., 2021 NSCA 69
Justices Bryson, Van den Eynden, Derrick

Issue: Custody | Parenting | Division of property | Costs

The parties have two children ages 6 and 4. The couple had a level of conflict in their relationship which resulted in the father being charged with forcible confinement in 2018 and the mother leaving with the two children. At trial the court awarded joint custody with primary care and final decision-making authority to the mother.

After an 8-year common law relationship, mother made a claim for unjust enrichment for a share of the interest in the three properties acquired during the relationship. At trial, she was successful and was awarded cost.

The father appealed the Court's decisions on custody, unjust enrichment, and costs.

On appeal, the father argued that the trial judge erred in failing to consider the maximum contact principle in determining parenting. The Court of Appeal found that although the trial judge did not expressly refer to that section of the legislation, it was clear from the reasoning that the judge was mindful of the principle.

The Court of Appeal was not satisfied that the trial court did not properly consider the issue of offsetting in determinin the mother's unjust enrichment claim. The father had not advances this argument at trial, but the trial judge still considered offsetting in making the unjust enrichment order in favor of the mother.

The Court of Appeal dismissed the father's arguments on the issue of costs. The father argued that the trial judge had not considered his ability to pay. The Court found that the father did not advance any concerns about his ability to pay at trial and he did not advance a motion under Rule 77.04 to be relieved from cost.

The appeal was dismissed with costs...