MacNeil v. MacNeil, (1995) 143 N.S.R.(2d) 205 (SC)

• Judge: Goodfellow, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: June 30, 1995
• Jurisdiction: Nova Scotia
• Citations: (1995), 143 N.S.R.(2d) 205 (SC)

MacNeil v. MacNeil (1995), 143 N.S.R.(2d) 205 (SC);

  411 A.P.R. 205

MLB headnote and full text

Wendy Arlene MacNeil (petitioner) v. Paul Wayne MacNeil (respondent)

(No. 1206-001392)

Indexed As: MacNeil v. MacNeil

Nova Scotia Supreme Court

Goodfellow, J.

June 30, 1995.

Summary:

Mr. MacNeil applied for a variation of the maintenance he paid to Mrs. MacNeil for their two children in her custody. A judge of the Nova Scotia Family Court heard the application as referee. The referee recom­mended that the application be allowed in part. A Notice of Objection pursuant to rule 35.03(1) was filed. Mrs. MacNeil sought a hearing.

The Nova Scotia Supreme Court adopted the referee's recommendations in part and determined the maintenance Mr. MacNeil had to pay.

Courts - Topic 6170.3

Provincial courts - Nova Scotia - Family Court - Recommendation to Supreme Court - Objection to - Whether hearing required - A Notice of Objection was filed against a maintenance recommendation made to the Supreme Court by a Family Court judge acting as referee - A hearing before the Supreme Court was sought - The Nova Scotia Supreme Court denied the hearing because the issues had received a substantial and extensive hearing before the referee and the court had before it the report, decision, financial statements, updated financial information, briefs, etc., that were more than adequate to meet the requirement of an "evidentiary basis" for its determination - See paragraphs 10 to 16.

Family Law - Topic 4017

Divorce - Corollary relief - Maintenance awards - Variation of periodic payments - In 1992, Mr. MacNeil was ordered to pay monthly maintenance of $1,000 for two children if he was employed full-time and $450 every four weeks if he was not - In 1994, Mr. MacNeil sought a variation - The Nova Scotia Supreme Court con­sidered Mr. MacNeil's capacity to pay then and now - The court found that the orig­inal order may have been inadequate at times given his capacity to pay - An "overpayment" of $1,125 and arrears of $874 arose, leaving an outstanding "over­payment" of $251 - The court ordered Mr. MacNeil to pay $300 per month - The arrears were ordered paid as a lump sum untaxable to Mrs. MacNeil - A credit was given for the outstanding overpayment - See paragraphs 8, 9, 17 to 32.

Family Law - Topic 4021.4

Divorce - Corollary relief - Maintenance awards - Considerations - Ability to pay - [See Family Law - Topic 4017 ].

Family Law - Topic 4090

Divorce - Corollary relief - Incidental matters - Maintenance - Order for the disclosure of recipient's income - The Nova Scotia Supreme Court, after pointing out "real problems faced by custodial parents in that they are the last ones to hear of any increased capacity in the non-custodial parent to pay an increased level of child support", ordered both parties to exchange their income tax returns every year - The court also ordered the non-custodial parent to provide any documen­tation on any employment he obtained or on any capacity arising for the payment of child maintenance - See paragraphs 26 to 28.

Family Law - Topic 4090.1

Divorce - Corollary relief - Incidental matters - Maintenance - Order for the disclosure of the payor's income - [See Family Law - Topic 4090 ].

Cases Noticed:

Levesque v. Levesque (1994), 155 A.R. 26; 73 W.A.C. 26; 4 R.F.L.(4th) 375 (C.A.), refd to. [para. 9].

Gorman v. Gorman (1994), 132 N.S.R.(2d) 396; 376 A.P.R. 396 (C.A.), refd to. [para. 10].

Chiasson v. Chiasson (1994), 135 N.S.R.(2d) 296; 386 A.P.R. 296 (S.C.), refd to. [para. 14].

Statutes Noticed:

Civil Procedure Rules (N.S.), rule 35.03(1) (former) [para. 11]; rule 35.03(1) [para. 12].

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

Counsel:

Gerard X. MacKenzie, for the petitioner;

William R. Burke, for the respondent.

This application was heard on June 30, 1995, by Goodfellow, J., of the Nova Scotia Supreme Court.

Goodfellow, J., delivered the following decision on June 30, 1995.