Director of Maintenance Enforcement (N.S.) v. Coolen, 2009 NSCA 22

• Judge: MacDonald, C.J.N.S., Bateman and Hamilton, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: February 09, 2009
• Jurisdiction: Nova Scotia
• Citations: 2009 NSCA 22;(2009), 278 N.S.R.(2d) 57 (CA)

Dir. of Maintenance v. Coolen (2009), 278 N.S.R.(2d) 57 (CA);

    886 A.P.R. 57

MLB headnote and full text

Temp. Cite: [2009] N.S.R.(2d) TBEd. FE.051

Director of Maintenance Enforcement for the Province of Nova Scotia and Minister of Community Services, as represented by The Attorney General of Nova Scotia (appellants) v. Brian Christopher Coolen and Marylee Louise Coolen (MacPhee) (respondents)

(CA 299551; 2009 NSCA 22)

Indexed As: Director of Maintenance Enforcement (N.S.) v. Coolen

Nova Scotia Court of Appeal

MacDonald, C.J.N.S., Bateman and Hamilton, JJ.A.

February 26, 2009.

Summary:

The Nova Scotia Supreme Court, in decisions not reported in this series of reports, issued (1) an interim order dated 1996 requiring the husband to pay spousal and child maintenance to the wife, and (2) a Corollary Relief Judgment dated 2005 requiring the husband to pay child maintenance to the wife. Maintenance was payable through the Maintenance Enforcement Program. Pursuant to an agreement that ran between March 1997 and November 1999, the wife assigned her right to the maintenance payments to the Department of Community Services in return for social assistance payments. If the husband did not pay the maintenance, the wife would accumulate a debt to the Department in the amount of the unpaid maintenance. The husband did not pay. The wife accumulated a debt of $15,818.53. The Director of Maintenance Enforcement applied for an order finding the husband in default. The husband cross-applied for a retroactive variation of his maintenance obligations and reduction or forgiveness of all arrears accumulated under the two orders described above. The husband's RRSP was collapsed and an amount of $20,780.37, net of tax, was recovered. The applications were heard together.

The Nova Scotia Supreme Court, in a decision reported [2008] N.S.R.(2d) Uned. 63; 2008 NSSC 182, found the husband in default in the amount of $43,707.16, applied to that amount the sum of $20,780.37 net recovered from collapsing the husband's RRSP, ordered the husband to pay an additional sum of $7,108.26 by way of monthly instalments, and ordered a moratorium against the collection of the $15,818.53 owing to the Department of Community Services. In addition, as of June 30, 2008, the husband had no further obligation to pay child support (the children's education had terminated). The Director and the Department appealed against the moratorium order.

The Nova Scotia Court of Appeal allowed the appeal.

Family Law - Topic 4047

Divorce - Corollary relief - Maintenance - Enforcement - Jurisdiction - Over a number of years, the husband accumulated arrears of maintenance payable through the Maintenance Enforcement Program - While the arrears accumulated, the recipient wife accumulated a debt of $15,818.53 to the Department of Community Services as a result of an agreement under which (a) she assigned her right to maintenance benefits to the Department in return for social assistance payments, and (b) she would accumulate a debt to the Department if the husband did not pay - An applications judge found the husband in default in the amount of $43,707.16, applied to that amount the sum of $20,780.37 net recovered from collapsing the husband's RRSP, ordered the husband to pay an additional sum of $7,108.26 by way of monthly instalments, and ordered a moratorium against the collection of the $15,818.53 owing to the Department of Community Services - The Nova Scotia Court of Appeal quashed the moratorium order as having been made without jurisdiction since: (1) this was relief not sought by any party; (2) the Department was not a party to the proceedings below; and (3) neither the Maintenance Enforcement Act (N.S.), nor the Divorce Act, authorized relief against a non-party in the circumstances - See paragraphs 1 to 40.

Cases Noticed:

Smith v. Smith (2002), 207 N.S.R.(2d) 5; 649 A.P.R. 5; 2002 NSCA 78, refd to. [para. 30].

Weinstein v. Weinstein (1997), 92 B.C.A.C. 143; 150 W.A.C. 143; 30 R.F.L.(4th) 82; 38 B.C.L.R.(3d) 103 (C.A.), refd to. [para. 30].

Ballentine v. Ballentine (2003), 173 O.A.C. 368; 65 O.R.(3d) 481 (C.A.), refd to. [para. 30].

Gessner v. Gessner (1990), 82 Sask.R. 223 (Q.B.), refd to. [para. 30].

A.V.S. v. J.T.N. (2007), 322 N.B.R.(2d) 352; 829 A.P.R. 352; 2007 NBQB 261 (Fam. Div.), refd to. [para. 31].

Burton v. Howlett (1998), 172 N.S.R.(2d) 342; 524 A.P.R. 342 (C.A.), refd to. [para. 37].

Counsel:

Nicholas Dorrance, for the appellant, Director of Maintenance Enforcement;

Richard Arab, for the appellant, Minister of Community Services;

Respondent, Marylee Louise Coolen (MacPhee) in person;

Respondent, Brian Coolen not appearing.

This appeal was heard in Halifax, N.S., on February 9, 2009, by MacDonald, C.J.N.S., Bateman and Hamilton, JJ.A., of the Nova Scotia Court of Appeal. The following decision of the Court of Appeal was delivered by Bateman, J.A., and released on February 26, 2009.