Michaud v. Kuszelewski, 2008 NSSC 276

• Judge: O'Neil, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: May 16, 2008
• Jurisdiction: Nova Scotia
• Citations: 2008 NSSC 276;(2008), 269 N.S.R.(2d) 35 (SC)

Michaud v. Kuszelewski (2008), 269 N.S.R.(2d) 35 (SC);

    860 A.P.R. 35

MLB headnote and full text

Temp. Cite: [2008] N.S.R.(2d) TBEd. SE.052

Joanne Michaud (applicant) v. Raymond W. Kuszelewski (respondent)

(SFHMCA 055131; 2008 NSSC 276)

Indexed As: Michaud v. Kuszelewski

Nova Scotia Supreme Court

Family Division

O'Neil, J.

September 18, 2008.

Summary:

The parties cohabited in a common law relationship from 1991 to 1998. There were two children of the relationship. The father paid child ($800 per month) and spousal ($1,200 per month) support under a March 1998 interim consent order. In October 2000, the parties signed an amended separation agreement that confirmed the interim order and provided for support payments of $1,000 (child and spousal support combined). Between 2000 and 2005, the father experienced alcoholism and was unable to maintain employment. In 2006, he gained employment and was able to make some support payments. After the father discontinued all support payments in May 2007, the mother applied to vary the order for child and spousal support and sought an order for the payment of arrears.

The Nova Scotia Supreme Court, Family Division, determined the support issues. The court found that there were no arrears owing to May 2007.

Equity - Topic 2070

Equitable defences - Laches - Child support - [See Family Law - Topic 2367 ].

Family Law - Topic 744

Husband and wife - Actions between husband and wife - Defences - Laches - [See Family Law - Topic 2367 ].

Family Law - Topic 2228

Maintenance of wives and children - Interim relief - Variation of interim relief - The parties cohabited in a common law relationship from 1991 to 1998 - There were two children of the relationship - The father paid child and spousal support under a March 1998 interim consent order - Clause 5 of the order provided for a review within six months - In October 2000, the parties signed an amended separation agreement that confirmed the interim order - The mother applied to vary the order - The father asserted that the application was not properly before the court, first, because the order at issue was an interim order and only a final order could be varied and, second, because the absence of a timely review under clause 5 rendered the order void - The Nova Scotia Supreme Court, Family Division, held that the variation application was properly before the court - The parties' conduct was consistent with the March 1998 order remaining in effect after October 2000 - Clause 5 was designed to facilitate a reexamination of the order, should either party choose to do so - The fact that a review did not happen was consistent with affirmation of the status quo established by the order - See paragraphs 13 to 17.

Family Law - Topic 2243

Maintenance of wives and children - Jurisdiction - Interim relief - [See Family Law - Topic 2228 ].

Family Law - Topic 2367

Maintenance of wives and children - Defences or bars - Delay or estoppel - The parties cohabited in a common law relationship from 1991 to 1998 - There were two children of the relationship - The father paid child and spousal support under a March 1998 interim consent order - In October 2000, the parties signed an amended separation agreement that confirmed the interim order - Between 2000 and 2005, the father experienced alcoholism and was unable to maintain employment - In 2006, he gained employment and was able to make some support payments - After the father discontinued all support payments in May 2007, the mother applied to vary the order and sought an order for the payment of arrears - The father asserted that the doctrine of laches barred the application - The Nova Scotia Supreme Court, Family Division, held that the application was not barred - The mother could not be described as delaying the initiation of court action - She knew of the father's struggle and recognized that his ability to meet the obligations that he had assumed in 2000 was limited - The father reassured the mother after he commenced employment that he was getting back on his feet and would begin to make full payments - In those circumstances, not bringing an application until late 2007 reflected the mother's belief that the father would increase payments as his financial circumstances permitted - The mother did not sit on her rights - See paragraphs 18 to 22.

Family Law - Topic 2383

Maintenance of wives and children - Variation of - Jurisdiction - [See Family Law - Topic 2228 ].

Family Law - Topic 2392

Maintenance of wives and children - Variation of - Interim orders - [See Family Law - Topic 2228 ].

Family Law - Topic 2416

Maintenance of wives and children - Practice - Costs (incl. suit money or interim costs) - The parties cohabited in a common law relationship from 1991 to 1998 - There were two children of the relationship - The father paid child and spousal support under a March 1998 interim consent order - In October 2000, the parties signed an amended separation agreement that confirmed the interim order - Between 2000 and 2005, the father experienced alcoholism and was unable to maintain employment - Support arrears accumulated - In February 2006, he gained employment and was able to make some support payments - After the father discontinued all support payments in May 2007, the mother applied to vary the order and sought an order for the payment of arrears and costs - The Nova Scotia Supreme Court, Family Division, ordered the father to pay costs of $1,250 - The father disregarded a number of orders to disclose, raised an issue of conflict that had no substantive basis and repeatedly raised the issues of property and debt division without filing the necessary pleadings - For each of his three failures to disclose, costs of $250 were assessed - For raising the issues of conflict and property division, costs of $500 were assessed - Overall, the parties' success was divided - A substantial award had been made against the father - No additional award of costs was warranted - See paragraphs 66 to 82.

Family Law - Topic 2523

Maintenance of wives and children - Enforcement - Orders - Arrears of maintenance (incl. interest) - The parties cohabited in a common law relationship from 1991 to 1998 - There were two children of the relationship - The father paid child and spousal support under a March 1998 interim consent order - In October 2000, the parties signed an amended separation agreement that confirmed the interim order - Between 2000 and 2005, the father experienced alcoholism and was unable to maintain employment - Support arrears accumulated - In February 2006, he gained employment and was able to make some support payments - After the father discontinued all support payments in May 2007, the mother applied to vary the order and sought an order for the payment of arrears - The Nova Scotia Supreme Court, Family Division, found that, up to February 2006, the father did not have an income level that gave rise to a child or spousal support obligation - The court eliminated his support obligation for that period - After the father commenced employment and until he stopped all payments in May 2007, the parties had agreed that he was paying as much as he could - Both parties were satisfied with the arrangement that they were following - There were, therefore, no arrears owing from January 2006 to May 2007 - See paragraphs 37 to 55.

Practice - Topic 7103

Costs - Party and party costs - Special orders - Conduct by party (incl. breach of court rules) - [See Family Law - Topic 2416 ].

Cases Noticed:

J.B.P. v. L.J.S. (2008), 263 N.S.R.(2d) 192; 843 A.P.R. 192; 2008 NSCA 19, refd to. [para. 24].

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. 24].

Bracklow v. Bracklow, [1999] 1 S.C.R. 420; 236 N.R. 79; 120 B.C.A.C. 211; 196 W.A.C. 211; 1999 CarswellBC 532, refd to. [para. 24].

D.B.S. v. S.R.G., [2006] 2 S.C.R. 231; 351 N.R. 201; 391 A.R. 297; 377 W.A.C. 297; 2006 SCC 37, appld. [para. 33].

Conrad v. Rafuse (2002), 205 N.S.R.(2d) 46; 643 A.P.R. 46 (C.A.), refd to. [para. 37].

MacIsaac v. MacIsaac (1996), 150 N.S.R.(2d) 321; 436 A.P.R. 321 (C.A.), refd to. [para. 37].

Coadic v. Coadic (2005), 237 N.S.R.(2d) 362; 754 A.P.R. 362 (S.C. Fam. Div.), refd to. [para. 38].

Robertson v. Robertson, [2007] N.S.R.(2d) Uned. 48 (Fam. Ct.), refd to. [para. 38].

McCarthy v. Workers' Compensation Appeals Tribunal (N.S.) et al. (2001), 193 N.S.R.(2d) 301; 602 A.P.R. 301 (C.A.), refd to. [para. 38].

Mombourquette v. Dawe, [2008] N.S.R.(2d) Uned. 72; 2008 NSSC 167, refd to. [para. 44].

Jensen v. Jensen (2007), 263 N.S.R.(2d) 43; 843 A.P.R. 43 (S.C. Fam. Div.), refd to. [para. 66].

Ellis v. Ellis (2008), 269 N.S.R.(2d) 25; 860 A.P.R. 25; 2008 NSSC 262 (Fam. Div.), appld. [para. 66].

Shurson v. Shurson, [2007] N.S.R.(2d) Uned. 42; 2007 NSSC 101 (Fam. Div.), refd to. [para. 68].

Conrad v. Bremner (2006), 242 N.S.R.(2d) 330; 770 A.P.R. 330; 2006 NSSC 99 (Fam. Div.), refd to. [para. 68].

Gardiner v. Gardiner (2007), 259 N.S.R.(2d) 240; 828 A.P.R. 240; 2007 NSSC 282, refd to. [para. 68].

Grant v. Grant (2002), 200 N.S.R.(2d) 173; 627 A.P.R. 173 (S.C. Fam. Div.), agreed with [para. 68].

Pelrine v. Pelrine (2007), 255 N.S.R.(2d) 53; 814 A.P.R. 53; 2007 NSSC 123 (Fam. Div.), refd to. [para. 75].

Kennedy-Dowell v. Dowell (2002), 209 N.S.R.(2d) 392; 656 A.P.R. 392 (S.C. Fam. Div.), refd to. [para. 75].

MacLean v. MacLean (2001), 200 N.S.R.(2d) 34; 627 A.P.R. 34 (S.C.), refd to. [para. 75].

Counsel:

Angela A. Walker, for the applicant;

Raymond W. Kuszelewski, self-represented.

This application was heard at Halifax, Nova Scotia, on May 16, 2008, by O'Neil, J., of the Nova Scotia Supreme Court, Family Division, who delivered the following judgment on September 18, 2008.