Power v. Power, (2013) 337 N.S.R.(2d) 306 (CA)

• Judge: Beveridge, J.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: November 21, 2013
• Jurisdiction: Nova Scotia
• Citations: (2013), 337 N.S.R.(2d) 306 (CA);2013 NSCA 137

Power v. Power (2013), 337 N.S.R.(2d) 306 (CA);

    1067 A.P.R. 306

MLB headnote and full text

Temp. Cite: [2013] N.S.R.(2d) TBEd. NO.073

Joseph Patrick Power (appellant) v. Angela Rose Power (respondent)

(CA 416358; 2013 NSCA 137)

Indexed As: Power v. Power

Nova Scotia Court of Appeal

Beveridge, J.A.

November 28, 2013.

Summary:

The parties were divorced in 2005. There were two children of the marriage. The corollary relief judgment required the husband to pay child support of $700 per month. In 2011, the wife applied to vary child support and requested it be retroactive to 2006.

The Nova Scotia Supreme Court, Family Division, in a decision reported at (2013), 329 N.S.R.(2d) 25; 1042 A.P.R. 25, grossed up the husband's income by 40% (he had been dishonest about his income and did not fully comply with financial disclosure directions), and ordered retroactive child support to 2007, in the amount of $171,786, payable within 90 days. The Court also ordered ongoing child support of $3,242 per month. In a separate unreported decision, costs of $21,938 were awarded against the husband. The husband appealed. The wife moved for an order that the husband post $8,775.20 as security for costs by January 15, 2014, failing which his appeal would be dismissed.

The Nova Scotia Court of Appeal, per Beveridge, J.A., granted the motion, but on different terms. The Court ordered that the husband pay $5,000 by January 15, 2014, failing which the wife would be at liberty to apply to have the appeal dismissed.

Family Law - Topic 4179

Divorce - Practice - Costs - Security for costs (incl. on appeal) - An application judge ordered the husband to pay retroactive child support of $171,786, and ongoing child support for the two children of the marriage - Costs of $21,938 were awarded against the husband - The husband appealed - The wife moved for an order that the husband post 40% of the costs award (i.e., $8,775.20) as security for costs by January 15, 2014, failing which his appeal would be dismissed - The Nova Scotia Court of Appeal, per Beveridge, J.A., ordered that the husband pay $5,000 by January 15, 2014, failing which the wife would be at liberty to apply to have the appeal dismissed - Evidence about the husband's financial circumstances, including access to resources, was "thin" - He said he was unemployed and had no income - The application judge had found that the husband was evasive and not credible - The husband had paid nothing towards the order of retroactive child support, nor the costs award - Neither had he paid the full monthly child support ordered - The wife had incurred substantial legal fees - The court was not satisfied that the husband had no resort to resources to post security for costs - Even if he was not insolvent, there was grave cause to fear the wife would not be able to recover a costs award should she be successful in resisting the appeal - The court applied a "fairly conservative" approach in setting the quantum.

Practice - Topic 8209

Costs - Security for costs - Security for costs of an appeal - Grounds for - Special circumstances or other good reasons - [See Family Law - Topic 4179 ].

Cases Noticed:

Geophysical Services Inc. v. Sable Mary Seismic Inc. et al. (2011), 304 N.S.R.(2d) 178; 960 A.P.R. 178; 2011 NSCA 40, refd to. [para. 15].

Fotherby et al. v. Cowan et al. (2012), 319 N.S.R.(2d) 209; 1010 A.P.R. 209; 2012 NSCA 77, refd to. [para. 15].

Blois v. Blois (2013), 328 N.S.R.(2d) 324; 1039 A.P.R. 324; 2013 NSCA 39, refd to. [paras. 15, 28, 29].

Burris v. Disabled Consumer Society of Colchester et al. (2009), 278 N.S.R.(2d) 50; 886 A.P.R. 50; 2009 NSCA 21, refd to. [para. 16].

Smith v. Michelin North America (Canada) Inc. (2008), 265 N.S.R.(2d) 358; 848 A.P.R. 358; 2008 NSCA 52, refd to. [para. 26].

Wile v. Barkhouse, [2011] N.S.R.(2d) Uned. 116; 2011 NSCA 50, refd to. [para. 28].

Kedmi v. Korem (2012), 323 N.S.R.(2d) 259; 1025 A.P.R. 259; 2012 NSCA 124, refd to. [para. 28].

Richards v. Richards (2012), 312 N.S.R.(2d) 282; 987 A.P.R. 282; 2012 NSCA 7, refd to. [para. 28].

St-Jules v. St-Jules (2012), 321 N.S.R.(2d) 133; 1018 A.P.R. 133; 2012 NSCA 97, refd to. [para. 28].

Dunnington v. Emmett, [2012] N.S.R.(2d) Uned. 139; 2012 NSCA 55, refd to. [para. 28].

Campbell v. Campbell (2012), 320 N.S.R.(2d) 223;1014 A.P.R. 223; 2012 NSCA 86, refd to. [para. 28].

Statutes Noticed:

Civil Procedure Rules (N.S.), rule 90.42 [para. 14].

Rules of Civil Procedure (N.S.) - see Civil Procedure Rules (N.S.).

Rules of Court (N.S.) - see Civil Procedure Rules (N.S.).

Counsel:

Kim Johnson, for the appellant;

Judith A. Schoen and Ian McIsaac, for the respondent.

This motion was heard on November 21, 2013, in Halifax, Nova Scotia, in Chambers, before Beveridge, J.A., of the Nova Scotia Court of Appeal. The Court delivered the following decision, with reasons, dated November 28, 2013.