Bramwell v. Locke, (2015) 360 N.S.R.(2d) 129 (SC)

• Judge: MacLeod-Archer, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: March 03, 2015
• Jurisdiction: Nova Scotia
• Citations: (2015), 360 N.S.R.(2d) 129 (SC);2015 NSSC 140

Bramwell v. Locke (2015), 360 N.S.R.(2d) 129 (SC);

    1135 A.P.R. 129

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. MY.012

Tracey Bramwell (applicant) v. Todd Locke (respondent)

(SFSNMCA No. 87528; 2015 NSSC 140)

Indexed As: Bramwell v. Locke

Nova Scotia Supreme Court

Family Division

MacLeod-Archer, J.

March 5, 2015.

Summary:

The parties were in a common law relationship from 1994 to 2013. They had two children. The mother applied for retroactive and prospective child support, s. 7 expenses, retroactive and prospective spousal support, and exclusive occupation of the family home. The father was self-represented. In the middle of his cross-examination by the mother's counsel, he requested an adjournment so that he could retain a lawyer.

The Nova Scotia Supreme Court, Family Division, denied the father's request for an adjournment. The court determined the issues raised by the mother's application.

Family Law - Topic 684

Husband and wife - Property rights during and after common law marriage or relationship - Family home - The parties were in a common law relationship from 1994 to 2013 - They held joint title to a home which the wife had lived in since separation - The wife sought sole ownership of the home - The Nova Scotia Supreme Court, Family Division, granted the wife's claim - If the wife retained the home, a division of the parties' assets and debts would result in a difference of ($472.50) in favour of the wife - This would not constitute a disproportionate division - See paragraphs 62 to 75.

Family Law - Topic 1004

Common law, same-sex or adult interdependent relationships - Family home - [See Family Law - Topic 684 ].

Family Law - Topic 2210

Maintenance of spouses and children - General principles - Calculation or attribution of income - [See Family Law - Topic 2329 and Family Law - Topic 4045.5 ].

Family Law - Topic 2211

Maintenance of spouses and children - General principles - Retrospective or retroactive orders - [See Family Law - Topic 2329 and Family Law - Topic 2353 ].

Family Law - Topic 2328

Maintenance of spouses and children - Maintenance of spouses - Effect of spouse's ability to work - [See Family Law - Topic 2329 ].

Family Law - Topic 2329

Maintenance of spouses and children - Maintenance of spouses - Considerations - The parties were in a common law relationship from 1994 to 2013 - They had two dependent children - The wife was disabled and had been unable to work since 2008 - She currently received disability benefits of $9,045/ year - The husband was trained as a welder and pipe fitter - He earned $34,164 when the parties separated, then secured work in the Alberta oil industry and earned approximately $79,900 in 2014 - He was laid off in August 2014 and had been collecting employment insurance (EI) benefits since that time - The Nova Scotia Supreme Court, Family Division, held that the wife was entitled to retroactive and prospective spousal support on a compensatory and non-compensatory basis - She had supported both children since separation while the father paid insufficient child support and no spousal support - The court imputed income of $79,900 to the husband and ordered him to pay a mid-range of support ($984/ month) for the eight months that he worked in the oil industry (January to August 2014) - For the first six months that the husband was receiving EI benefits (September 2014 to February 2015), he was ordered to pay support of $300/month - Thereafter, it was no longer reasonable for him to be unemployed, and he was again required to pay support of $984/month - See paragraphs 39 to 56.

Family Law - Topic 2353

Maintenance of spouses and children - Maintenance of children - Retroactive maintenance - The parties ended their common law relationship in May 2013 - They had two children - The father made voluntary child support payments totalling $2,340 in 2013, and payments of $791/month beginning in January 2014 pursuant to an interim order which set his income at $56,685 - The mother sought retroactive child support, asserting that the father's actual income in 2013 ($33,562.33) and 2014 ($79,921.26) was greater than the amount on which his payments were based - The Nova Scotia Supreme Court, Family Division, ordered the father to pay retroactive child support of $5,108 - The mother's application was made in August 2013 and was timely - The father did not increase child support when his income increased or disclose his increased income to the mother - He gave his interests priority over those of the children - This constituted blameworthy conduct - The mother struggled to meet the children's needs, particularly one child's medical expenses - The fact that the father was not currently working did not mean he would suffer hardship if ordered to pay retroactive support - He had some assets, little debt, and a trade with significant earning capacity - He was also married to a woman who shared living expenses with him - See paragraphs 8 to 18.

Family Law - Topic 2419

Maintenance of spouses and children - Practice - Adjournments - [See Practice - Topic 5068.2 ].

Family Law - Topic 4045.4

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Special or extraordinary expenses - The parties ended their common law relationship - One of their children suffered from an auto-immune disorder - She was on a special diet because of her illness and also required medications which were only partly covered by insurance - The mother sought to have the father contribute his proportionate share of these expenses - The Nova Scotia Supreme Court, Family Division, ordered the father to pay his proportionate share of the uninsured prescription expenses, but made no order respecting the child's dietary expenses because these needs would be met through the table amount of child support payable by the father - See paragraphs 28 to 38.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Calculation or attribution of income - The parties ended their common law relationship in May 2013 - They had two children - During the relationship, the father worked at a local fish plant on a seasonal basis - He then acquired his welding certificate and worked at the fish plant as a welder - After separation, the father acquired work as a pipe fitter in the Alberta oil industry - He was laid off in August 2014 and had made no other efforts to find work since then, other than to inquire whether there was a position available at the fish plant - The Nova Scotia Supreme Court, Family Division, found that the father was intentionally unemployed - He opted to remain on employment insurance benefits while qualified, able and available for work - This constituted a self-imposed reduction in income which was not reasonable in the circumstances - For child support purposes, the court imputed income of $79,900 to the father, which was approximately the amount that he earned in 2014 - See paragraphs 19 to 27.

Practice - Topic 5067

Conduct of trial - Adjournments - Circumstances when request for adjournment refused - [See Practice - Topic 5068.2 ].

Practice - Topic 5068.2

Conduct of trial - Adjournments - Self-represented litigants (incl. adjournment to consult counsel) - The parties separated in May 2013 - In August 2013, the wife filed an application for child support, spousal support, and sole ownership of the family home - An interim order was granted in December 2013 - At a date assignment conference in August 2014, the husband's request for an adjournment so that he could consult counsel was granted - The hearing was held in March 2015 - The husband was self-represented - In the middle of being cross-examined by the wife's counsel, the husband requested an adjournment to allow him to retain counsel - The Nova Scotia Supreme Court, Family Division, denied the request - The husband had several opportunities to retain counsel throughout the process - He did not make honest or diligent efforts - The reason that he wanted to retain a lawyer in the middle of cross-examination was that he recognized the damaging effect of his evidence - 18 months had passed since the wife filed her application, and it would be vastly unfair to her to suspend the hearing at this point - See paragraphs 76 to 90.

Cases Noticed:

D.B.S. v. S.R.G. (2006), 351 N.R. 201; 391 A.R. 297; 377 W.A.C. 297; 2006 SCC 37, refd to. [para. 8].

Bocaneala v. Bocaneala (2014), 354 N.S.R.(2d) 27; 1120 A.P.R. 27; 2014 NSSC 450, refd to. [para. 10].

MacDonald v. Pink (2011), 311 N.S.R.(2d) 31; 985 A.P.R. 31; 2011 NSSC 421, refd to. [para. 24].

Tillmanns v. Tillmanns, 2014 ONSC 6773, refd to. [para. 25].

Bracklow v. Bracklow, [1999] 1 S.C.R. 420; 236 N.R. 79; 120 B.C.A.C. 211; 196 W.A.C. 211, refd to. [para. 39].

Kerr v. Baranow (2011), 411 N.R. 200; 300 B.C.A.C. 1; 509 W.A.C. 1; 274 O.A.C. 1; 2011 SCC 10, refd to. [para. 46].

Jeffrie v. Hendriksen et al. (2012), 320 N.S.R.(2d) 393; 1014 A.P.R. 393; 2012 NSSC 335, refd to. [para. 60].

Muise v. Fox, [2013] N.S.R.(2d) Uned. 257; 2013 NSSC 349, refd to. [para. 65].

Darlington v. Moore (2012), 318 N.S.R.(2d) 246; 1005 A.P.R. 246; 2012 NSCA 68, refd to. [para. 87].

Counsel:

Alan Stanwick, for the applicant;

Todd Locke, respondent.

This matter was heard in Sydney, N.S., on March 3, 2015, before MacLeod-Archer, J., of the Nova Scotia Supreme Court, Family Division, who delivered judgment on March 5, 2015, and the following written decision on May 12, 2015.