Michaud v. Kuszelewski, (2009) 284 N.S.R.(2d) 310 (CA)

• Judge: Roscoe, Oland and Fichaud, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: November 16, 2009
• Jurisdiction: Nova Scotia
• Citations: (2009), 284 N.S.R.(2d) 310 (CA);2009 NSCA 118

Michaud v. Kuszelewski (2009), 284 N.S.R.(2d) 310 (CA);

    901 A.P.R. 310

MLB headnote and full text

Temp. Cite: [2009] N.S.R.(2d) TBEd. NO.068

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

(CA 308191; 2009 NSCA 118)

Indexed As: Michaud v. Kuszelewski

Nova Scotia Court of Appeal

Roscoe, Oland and Fichaud, JJ.A.

November 24, 2009.

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, in a decision reported at (2008), 269 N.S.R.(2d) 35; 860 A.P.R. 35, determined the support issues. The court found that there were no arrears owing to May 2007. The father appealed.

The Nova Scotia Court of Appeal dismissed the appeal.

Family Law - Topic 966

Husband and wife - Actions between husband and wife - Practice - Costs (incl. interim costs) - [See Family Law - Topic 2416 ].

Family Law - Topic 2228

Maintenance of wives and children - Interim relief - Variation of interim relief - The parties cohabited 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 "or so soon thereafter as it pleases the court" - In October 2000, the parties signed an amended separation agreement that confirmed the interim order - In May 2007, 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 trial court held that the variation application was properly before the court - The Nova Scotia Court of Appeal dismissed the father's appeal - The words of the order clearly provided for a review of its terms at some time after six months at the court's own discretion - The words "or so soon thereafter as it pleases the court" did not limit the time within which the court retained jurisdiction - Sections 3(3) and 10 of the Maintenance and Custody Act permitted interim orders to be for an indefinite period - Further, the pleadings filed by the mother included her originating application and summons, dated February 24, 1998, along with her 2007 Notice of Intention to proceed and request for a trial date in relation to the originating summons, and an application to vary the March 1998 order - The trial court had the jurisdiction to deal with the matter either as a continuation of the 1998 proceedings or as an application to vary the 1998 order - Either way, the result would have been the same - See paragraphs 18 to 28.

Family Law - Topic 2329

Maintenance of wives and children - Maintenance of wives - Considerations (incl. pensions) - The parties cohabited 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 - 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 trial court allowed the application, ordering the father to pay spousal support of $900 per month (on an income of $81,475), retroactively to June 2007 and indefinitely - The father appealed, asserting that the trial judge erred by failing to consider the mother's obligation to assume responsibility for her own maintenance as required by s. 5 of the Maintenance and Custody Act and by failing to give proper weight to the fact that nine years had passed since the separation date - The Nova Scotia Court of Appeal dismissed the appeal - The trial judge's reasons indicated an implicit consideration of the need to attempt self-sufficiency - The trial judge referred to the mother's responsibility for childcare and to her financial difficulties due to the father's failure to contribute regularly to the family's support - These comments were also directed to the issue of self-sufficiency - The award took into account the unfulfilled agreement between the parties and the mother's attempts to assist the father by allowing him to board with her and by not enforcing the 1998 order when she knew that the father was not earning enough income - Nothing in the award required appellate intervention - See paragraphs 29 to 35.

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 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 - 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 and costs - The trial court allowed the application and 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 - The father appealed, asserting that the trial judge erred in ordering him to pay $500 for raising issues that were not pursued - The Nova Scotia Court of Appeal dismissed the appeal - The standard of review was highly deferential - There was no reason to interfere with the order for costs - See paragraphs 36 to 38.

Family Law - Topic 2421

Maintenance of wives and children - Appeals - General (incl. standard of review) - The parties cohabited from 1991 to 1998 - There were two children of the relationship - The father paid child and spousal support under an interim consent order - The mother applied to vary the order - The trial judge allowed the application and ordered costs against the father - The father appealed on three issues: (1) did the interim consent order form the proper legal basis for a variation application; (2) did the court err in awarding spousal support on an application nine years after the parties' separation; and (3) did the court err in its award of costs - The Nova Scotia Court of Appeal stated that the standard of review on the first issue was correctness - On the second issue, the court was very deferential to trial judge's decisions involving spousal support - Finally, an award of costs was clearly discretionary and would only be disturbed where wrong principles of law had been applied or the decision was so wrong as to amount to a manifest injustice - See paragraphs 15 to 17.

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:

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. 9].

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. 9].

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, refd to. [para. 10].

Conrad v. Rafuse (2002), 205 N.S.R.(2d) 46; 643 A.P.R. 46; 2002 NSCA 60, refd to. [para. 10].

MacIsaac v. MacIsaac (1996), 150 N.S.R.(2d) 321; 436 A.P.R. 321 (C.A.), refd to. [para. 10].

Director of Maintenance Enforcement (N.S.) v. Coolen (2009), 278 N.S.R.(2d) 57; 886 A.P.R. 57; 2009 NSCA 22, refd to. [para. 15].

Nova Scotia (Minister of Community Services) v. N.N.M. and R.D.M. (2008), 268 N.S.R.(2d) 109; 857 A.P.R. 109; 2008 NSCA 69, refd to. [para. 15].

Ezurike v. Ezurike (2008), 269 N.S.R.(2d) 72; 860 A.P.R. 72; 2008 NSCA 82, refd to. [para. 16].

Maritime Travel Inc. v. Go Travel Direct.Com Inc. (2009), 276 N.S.R.(2d) 327; 880 A.P.R. 327; 2009 NSCA 42, refd to. [para. 17].

Leskun v. Leskun (2006), 349 N.R. 158; 226 B.C.A.C. 1; 373 W.A.C. 1; 2006 SCC 25, refd to. [para. 26].

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. 31].

Lu v. Sun (2005), 235 N.S.R.(2d) 353; 747 A.P.R. 353; 2005 NSCA 112, refd to. [para. 33].

Counsel:

The appellant, in person;

Angela Walker, for the respondent.

This appeal was heard at Halifax, Nova Scotia, on November 16, 2009, by Roscoe, Oland and Fichaud, JJ.A., of the Nova Scotia Court of Appeal. On November 24, 2009, Roscoe, J.A., delivered the following reasons for judgment for the court.