This Month In Nova Scotia Family Law – December 2022 – Family Law


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MacNeil v Yeadon, 2022 NSCA 79

Justice Cindy A. Bourgeois

Subject matter: Retroactive Child Support | Prospective Child
Support

Mr. MacNeil and Ms. Yeadon were divorced in 2011 and share two
children. In 2019, Mr. MacNeil applied to decrease his child
support payments because to their oldest child was attending
university and living away from home for most of the year. Ms.
Yeadon opposed a decrease of child support and requested a
retroactive increase in child support. At the hearing, Justice
Cormier determined that Mr. MacNeil had experienced a significant
increase in income which he failed to disclose to Ms. Yeadon. Mr.
MacNeil was ordered to pay $193,607 in retroactive child support
and $7,061 in ongoing monthly child support for both children.

On Appeal, Mr. MacNeil argued that the hearing judge made
significant errors in determining his past and current income. He
also argued that the trial judge failed to properly apply legal
principles in determining whether a retroactive award was
warranted.

Mr. MacNeil asked the Court to accept fresh evidence of his past
and present income, which was an expert Guideline Income Report
calculating his income according to the child support guidelines.
Justice Bourgeois did not permit the Report to be introduced on
appeal. Although the Report was relevant and could have affected
the outcome of the hearing, it existed prior to the hearing and
could have been presented to the judge at that time.

The parties agreed that the income attributed to Mr. MacNeil at
the hearing was inaccurate. In calculating Mr. MacNeil’s income
between 2018 to 2021, the judge collectively overstated Mr.
MacNeil’s income by at least $869,000. Justice Bourgeois
described the hearing judge’s calculation of Mr. MacNeil’s
income as “significantly flawed” and would have an impact
on the proper quantum for retroactive and prospective support.

The hearing judge determined that Ms. Yeadon was entitled to
retroactive support commencing on January 1, 2017. On appeal, it
was held that the hearing judge failed to establish a presumptive
date of retroactivity and failed to provide an explanation as to
why January 1, 2017 was chosen as the date on which Mr.
MacNeil’s retroactive support obligation commenced.

Justice Bourgeois allowed the appeal, set aside the hearing
judge’s order for child support, and ordered a new trial to be
heard by a different judge.

Green v Green, 2022 NSCA 83

Justice Elizabeth Van den Eynden

Subject matter: Retroactive Child Support | Prospective Child
Support | Property Division | Separation Agreements

Mr. and Ms. Green separated in 2017 and had a divorce trial in
2021. They share a son and a daughter who were respectively 20 and
17 years old at the time of the trial. At trial, the most
contentious issues were the amount of child support, the division
of property, and the apportionment of debt. Mr. Green argued that
the trial judge made errors with respect to property division and
the amount of child support. Mr. Green argued that the trial judge
displayed bias and erred in setting aside a partial separation
agreement between the parties.

Mr. Green sought to introduce new evidence to the Court about
the value of the matrimonial home. Justice Van den Eynden did not
admit the fresh evidence because it was readily available at the
time of trial and was not relevant to the issues before the trial
judge.

Mr. Green made various allegations bias, pointing to comments
made by the judge during the trial and within the written decision.
Mr. Green also alleged that an email sent to the parties from the
trial judge’s office informing them of a recent Supreme Court
of Canada decision demonstrated bias towards him. Justice Van den
Eynden found that there was no merit to Mr. Green’s claims of
bias and dismissed this aspect of the appeal.

Justice Van den Eynden determined that Mr. Green failed to
demonstrate any error of the trial judge in determining retroactive
and prospective child support. Therefore, there was no basis for
the Nova Scotia Court of Appeal to interfere with the awards given
at trial.

At trial, the judge set aside separation agreement because Ms.
Green did not obtain independent legal advice. The separation
agreement between the parties contained provisions that would have
been favourable to Mr. Green. Justice Van den Eynden found that Mr.
Green failed to demonstrate any error of the trial judge in setting
aside the separation agreement. Similarly, Justice Van den Eynden
dismissed Mr. Green’s claim that the trial judge erred in
making property division determinations.

The appeal was dismissed, and Ms. Green was awarded costs in the
amount of $5,000.

Almon v Hill, 2022 NSSC 350

Justice Pamela Marche

Subject matter: Clerical Error

In December, the Court released an addendum to Almon v
Hill
, 2022 NSSC 310, a decision about the imputation of income
for child support determinations. In that decision, the judge wrote
that Mr. Hill failed to file written post-hearing submissions.
However, this was incorrect as Mr. Hill did indeed file written
submissions. Mr. Hill’s submissions were not brought to the
attention of the Court due to a clerical error.

Although a written decision had already been rendered, an order
had not yet been issued by the Court. Therefore, the judge
maintained jurisdiction over this matter. A conference was held
between to allow the parties a further opportunity to be heard. The
judge found that Mr. Hill’s written post-hearing submissions
did not raise any new information that would have altered
judge’s analysis of the issues at trial. Justice Marche held
that an order shall be issued as previously directed at trial.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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