Edwards v. Edwards, (1994) 133 N.S.R.(2d) 8 (CA)

• Judge: Jones, Chipman and Pugsley, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: August 22, 1994
• Jurisdiction: Nova Scotia
• Citations: (1994), 133 N.S.R.(2d) 8 (CA);1994 CanLII 4054 (NS CA);118 DLR (4th) 217;5 RFL (4th) 321;[1994] NSJ No 361 (QL);133 NSR (2d) 8

Edwards v. Edwards (1994), 133 N.S.R.(2d) 8 (CA);

  380 A.P.R. 8

MLB headnote and full text

Michael Lee Edwards (appellant) v. Colleen Ann Edwards (Pereira)(respondent)

(C.A. No. 100775)

Indexed As: Edwards v. Edwards

Nova Scotia Court of Appeal

Jones, Chipman and Pugsley, JJ.A.

August 22, 1994.

Summary:

A husband and wife divorced. The husband agreed, in 1990 minutes of settlement, to pay $1,100 per month maintenance for his two children, now aged six and five. The wife applied to increase maintenance. The hus­band applied for, inter alia, a reduction in maintenance.

The Nova Scotia Supreme Court, in a judgment reported 126 N.S.R.(2d) 341; 352 A.P.R. 341, allowed the wife's application and dismissed the husband's application. The court increased maintenance to $1,200 per month (net of tax to the wife).

The Nova Scotia Supreme Court, in a subsequent decision reported 127 N.S.R.(2d) 379; 355 A.P.R. 379, awarded the wife costs based on an amount involved of $100,000 on Scale 5 plus disbursements. The husband appealed both decisions.

The Nova Scotia Court of Appeal dis­missed the appeal.

Family Law - Topic 4004

Divorce - Corollary relief - Maintenance awards - Effect of income tax liability - A 37 year old father paid $1,100 per month maintenance for two children, aged six and five - The mother earned $37,769 - The father's income was over $70,000, substantially higher than when he agreed to pay $1,100 per month - The mother received only $585 of the $1,100 after paying tax - The father's net cost was only $607, because he received an income tax deduction - The husband remarried, pur­chased an expensive new home in his new wife's name and made substantial expendi­tures for recreation and travel - The trial judge held that there were sufficient changed circumstances to justify variation of maintenance - The cost of raising the children was $2,000 per month - The mother was in need and paying more than her proportionate share - The court increased the father's maintenance obliga­tion to $1,200 per month (net of tax to the mother) - The Nova Scotia Court of Appeal held that the trial judge did not err - See paragraphs 30 to 59.

Family Law - Topic 4017

Divorce - Corollary relief - Maintenance awards - Variation of periodic payments - [See Family Law - Topic 4004 ].

Family Law - Topic 4017

Divorce - Corollary relief - Maintenance awards - Variation of periodic payments - Effect of new family - The Nova Scotia Court of Appeal referred to the following six considerations on a maintenance varia­tion application where there was a new family: "(1) A payor cannot avoid his or her obligation to his or her first family by forming a second family. (2) A person who becomes involved with an individual subject to a support obligation must accept that person in his or her weakened finan­cial condition. (3) If a second relationship results in increased child-care obligations, the court should not prefer the children of one relationship to the children of the other. (4) A court should not divert so much money away from the second family that it becomes unable to function. (5) A natural parent's support obligation should take precedence to that of a stepparent. (6) Remarriage does not entitle a payee to support; however, a court is entitled to assume that the second partner is able to meet the dependants' ongoing living expenses." - See paragraph 48.

Family Law - Topic 4176

Divorce - Practice - Costs - Party and party costs - A mother of two applied to vary child support - The father applied to vary it downwards and made four other applications - The court increased support to $1,200 per month (net of tax to the wife) - The mother had made an offer to settle for less than what the court awarded - The father delayed in disclosing infor­mation to the mother - The application got out of hand because of the father's con­duct, which was partly an attempt to frus­trate the preparation and conduct of the mother's case - The trial judge calculated the amount involved to be $100,000 and fixed costs on Scale 5 plus disbursements - The Nova Scotia Court of Appeal held that the trial judge did not err in awarding costs - See paragraphs 64 to 74.

Practice - Topic 5006

Conduct of trial - Reopening of trial to hear additional evidence - The husband's income was in issue on an application to vary child maintenance - The husband was a partner in an accounting firm, which refused to provide financial information to verify what the husband claimed his income to be - The trial judge, in increas­ing child maintenance, commented unfavourably on the husband's credibility - The trial judge refused the husband's request to reopen the trial to permit him to provide the financial information he re­fused to disclose earlier - The Nova Scotia Court of Appeal held that the trial judge did not err in exercising his discretion - No injustice would result - See paragraph 26.

Practice - Topic 7110.1

Costs - Party and party costs - Special orders - Increase in scale of costs - Con­duct of opposite party - [See Family Law - Topic 4176 ].

Practice - Topic 9031

Appeals - Evidence on appeal - Admis­sion of "new evidence" - The Nova Scotia Court of Appeal stated that the principles governing admission of fresh evidence on appeal were "(1) The evidence should generally not be admitted if by due dili­gence it could have been adduced at trial. (2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue at trial. (3) The evidence must be credible in the sense that it was reasonably capable of belief. (4) The evidence must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result." - The court refused to admit new financial information on an appeal from a decision to increase child maintenance, where the information was available at trial - See paragraph 27.

Cases Noticed:

Moge v. Moge, [1992] 3 S.C.R. 813; 145 N.R. 1; 81 Man.R.(2d) 161; 30 W.A.C. 161, refd to. [para. 20].

Paras v. Paras (1970), 2 R.F.L. 323 (Ont. C.A.), refd to. [para. 33].

Snelgrove-Fowler v. Fowler (1993), 138 A.R. 192; 13 Alta. L.R.(3d) 432 (Q.B.), agreed with [para. 49].

Hersey v. Hersey (1993), 135 N.B.R.(2d) 67; 344 A.P.R. 67; 47 R.F.L.(3d) 117 (C.A.), refd to. [para. 50].

Kerr v. Kerr (1992), 41 R.F.L.(3d) 264 (Ont. Gen. Div.), refd to. [para. 50].

Davis v. Colter (1973), 12 R.F.L. 84 (Sask. Q.B.), refd to. [para. 50].

Burt v. Burt (1990), 81 Nfld. & P.E.I.R. 241; 255 A.P.R. 241; 25 R.F.L.(3d) 92 (Nfld. U.F.C.), refd to. [para. 50].

Lebsack v. Lebsack (1992), 132 A.R. 78 (Q.B.), refd to. [para. 52].

Corkum v. Corkum (1989), 20 R.F.L. (3d) 197 (N.S.C.A.), refd to. [para. 53].

Thibaudeau v. Minister of National Reve­nue (1994), 167 N.R. 161 (F.C.A.), refd to. [para. 54].

Levesque v. Levesque (1994), 155 A.R. 26; 73 W.A.C. 26 (C.A.), refd to. [para. 55].

Chaddock v. Chaddock (1993), 121 N.S.R.(2d) 274; 335 A.P.R. 274 (S.C.), refd to. [para. 73].

Statutes Noticed:

Civil Procedure Rules (N.S.), rule 57.27(1), rule 63.02(1), rule 63.02(2), rule 63.04 [para. 71].

Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, sect. 17(4), sect. 17(8) [para. 4].

Authors and Works Noticed:

MacLeod, Annotation to Greco v. Levin (1991), 33 R.F.L.(3d) 405 (Ont. C.J.), p. 406 [para. 47].

Weisman, N., The Second Family in the Law of Support, 37 R.F.L.(2d) 245, p. 259 et seq. [para. 50].

Counsel:

David S. Green and Alexandra A. Mac­Lean, for the appellant;

Deborah K. Smith, for the respondent.

This appeal was heard on June 16, 1994, before Jones, Chipman and Pugsley, JJ.A., of the Nova Scotia Court of Appeal.

On August 22, 1994, Chipman, J.A., delivered the following judgment for the Court of Appeal.