St-Jules v. St-Jules, (2012) 321 N.S.R.(2d) 133 (CA)

• Judge: Oland, Hamilton and Beveridge, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: April 13, 2012
• Jurisdiction: Nova Scotia
• Citations: (2012), 321 N.S.R.(2d) 133 (CA);2012 NSCA 97

St-Jules v. St-Jules (2012), 321 N.S.R.(2d) 133 (CA);

    1018 A.P.R. 133

MLB headnote and full text

Temp. Cite: [2012] N.S.R.(2d) TBEd. SE.043

Yvan St-Jules (appellant) v. Vivian St-Jules (respondent)

(CA 348221; 2012 NSCA 97)

Indexed As: St-Jules v. St-Jules

Nova Scotia Court of Appeal

Oland, Hamilton and Beveridge, JJ.A.

September 18, 2012.

Summary:

A divorced father appealed a variation order granted by Lynch, J., following a January 2011 hearing of the mother's application to vary their November 2007 corollary relief judgment. The father submitted that the judge erred by: (1) refusing to adjourn the hearing, (2) imputing to him an annual income of $65,000, (3) ordering him to pay $917 per month child support commencing January 1, 2010, (4) ordering him to reimburse the mother $783.08 for the children's medical expenses and (5) deeming two outstanding joint matrimonial debts to be child support for the purposes of s. 178(1)(c) of the Bankruptcy and Insolvency Act (BIA), with the effect that he would not be released from those debts when he was discharged from bankruptcy, if they were outstanding at that time.

The Nova Scotia Court of Appeal dismissed the appeal.

Bankruptcy - Topic 8986

Discharge of debtor - Liabilities not released by discharge - Maintenance - [See Family Law - Topic 868.2 ].

Family Law - Topic 868.2

Husband and wife - Marital property - Distribution orders - Debts - A judge granted a mother's application to vary a 2007 corollary relief judgment (CRJ) - The father appealed the order, submitting that the judge erred in deeming two outstanding joint matrimonial debts to be child support for the purposes of s. 178(1)(c) of the Bankruptcy and Insolvency Act (BIA) - The Nova Scotia Court of Appeal rejected the submission - The essence of the proceeding before the judge involved child support and its enforcement, clearly within her jurisdiction - To deal with these issues, she had to interpret the CRJ to determine the father's obligations respecting child support - Once these obligations were determined, she had to consider how to enforce them - This necessarily required her to consider what effect the father's outstanding bankruptcy would have on enforcement - In resolving how the child support order should be enforced, the judge had the jurisdiction to deem, as she did, the two joint matrimonial debts to be child support - Once the father was discharged from bankruptcy, the effect of s. 178(1)(c) was that these debts, representing unpaid child support, would automatically survive his bankruptcy - The CRJ made it clear that the payment of the debts was in lieu of paying child support to the mother for a time - The judge made no error in deeming the debts to be functionally equivalent to outstanding child support - See paragraphs 46 to 54.

Family Law - Topic 880.9

Husband and wife - Marital property - Distribution orders - Enforcement - General - [See Family Law - Topic 868.2 ].

Family Law - Topic 2211

Maintenance of wives and children - General principles - Retroactive orders - A divorced father appealed a variation order granted by Lynch, J., following a January 2011 hearing of the mother's application to vary their November 2007 corollary relief judgment (CRJ) - The father submitted that the judge erred in ordering him to pay $917 per month child support commencing January 1, 2010 - The Nova Scotia Court of Appeal rejected the submission - The judge found the father had notice in 2009, that the mother was seeking child support, even though her application to vary was not served on him until June 10, 2010 - She found that the mother applied when she did because her portion of the matrimonial debt would have been paid by that time if the father had complied with the CRJ's terms - The judge was critical of the father's substantial failure to pay the matrimonial debts that he had undertaken and was ordered to pay in lieu of paying child support for a time; his assignment into bankruptcy when he thought this would make the mother solely liable for two of those matrimonial debts; his directing those creditors to the mother for payment despite the CRJ; his attempt to get the mother disqualified from legal aid representation; his two applications for the Child Tax Credit despite agreeing that the mother was entitled to this as the children's primary caregiver; his failure to pay the children's medical expenses; and his failure to disclose his annual income and report changes in his income sources to the mother - The mother was receiving social assistance and there was no suggestion that the child support would not benefit the children - The judge found that any hardship to the father was brought about by himself, by quitting his well-paid job with the Armed Forces and by not paying the debts required by the CRJ, which he agreed he could have paid more of had he wished - Self-imposed hardship was of less concern when deciding if retroactive child support should be ordered - See paragraphs 39 to 45.

Family Law - Topic 2419

Maintenance of wives and children - Practice - Adjournments - A divorced father appealed a variation order granted by Lynch, J., following a January 2011 hearing of the mother's application to vary their November 2007 corollary relief judgment (CRJ) - The Nova Scotia Court of Appeal held that the judge did not err in refusing the father's request for an adjournment to give him time to reapply to Legal Aid with additional information concerning his Armed Forces' pension - The request was made one week before the hearing was scheduled to take place - The father was aware of the hearing date seven months in advance, yet waited until less than three months before the scheduled hearing to apply for a legal aid lawyer - When he did, his application was refused because his income was too high - The additional pension information he wanted to provide to Legal Aid would not have changed their position as his income would have been even higher - If he wanted to retain private counsel, he had seven months to do so - If he suffered any prejudice from the judge's refusal to adjourn, it was of his own making - The mother and the children would have been prejudiced by the adjournment - It would have extended the time for the father to ignore his child support obligations - The mother would have continued to receive calls she considered harassing from the parties' unpaid creditors - See paragraphs 27 to 31.

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance awards - Retroactive awards - [See Family Law - Topic 2211 ].

Family Law - Topic 4015

Divorce - Corollary relief - Maintenance and awards - Awards - Enforcement of - [See Family Law - Topic 868.2 ].

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Calculation or attribution of income - A divorced father appealed a variation order granted by Lynch, J., following a January 2011 hearing of the mother's application to vary their November 2007 corollary relief judgment (CRJ) - The father submitted that the judge erred by imputing to him an annual income of $65,000 after finding that he was intentionally underemployed - The father argued that he had to stop working with the Armed Forces because of the stress caused by the mother's unjustified efforts to obtain child support - The Nova Scotia Court of Appeal held that the judge committed no reviewable error in imputing income to the father - Among other things, the father had: failed to provide financial disclosure ordered by the judge; provided no independent evidence that his voluntary discharge from the military in the Fall of 2010 was medically necessary despite the judge having directing him how to do this; and twice, without apparent good reason, he had quit a well-paid job with the military when court proceedings considering his child support obligations were ongoing - See paragraphs 32 to 38.

Family Law - Topic 4054.1

Divorce - Corollary relief - Maintenance - Enforcement - Effect of bankruptcy of payor - [See Family Law - Topic 868.2 ].

Family Law - Topic 4171

Divorce - Practice - Appeals - Admission of new evidence - A divorced father appealed a variation order granted by Lynch, J., following a January 2011 hearing of the mother's application to vary their November 2007 corollary relief judgment (CRJ) - The father submitted that the judge erred by, inter alia, imputing to him an annual income of $65,000 after finding that he was intentionally underemployed - At the hearing, the father provided a copy of a letter by McClatchey, a clinical social worker with the Armed Forces, in support of his argument that he had left the Forces in 2010 for medical reasons - The letter was not admitted into evidence as the father did not subpoena McClatchey and McClatchey did not attend the hearing - The father's bankruptcy trustee testified - The father sought to admit fresh evidence on appeal - The Nova Scotia Court of Appeal refused - Much of the material was not relevant because it predated the CRJ - The legal obligations of the parties based on that material had been determined by the CRJ, which was not appealed - As such, this material would not have been relevant at the variation hearing and would not have affected the result - The other documents could either have been adduced at the hearing if the father had complied with the judge's orders to file, or was not relevant to the issues the judge had to decide and therefore would not have affected the result - McClatchey's letters in particular could have been adduced at the hearing if the father had subpoenaed the author as the judge directed - It would not be appropriate to admit them now, in effect allowing an end run around the hearing process - See paragraphs 22 to 26.

Practice - Topic 3073.1

Applications and motions - Applications - Adjournments - [See Family Law - Topic 2419 ].

Practice - Topic 9031

Appeals - Evidence on appeal - Admission of "new evidence" or "fresh evidence" - [See Family Law - Topic 4171 ].

Cases Noticed:

R. v. P.S.M. - see R. v. McBirnie (P.S.).

R. v. McBirnie (P.S.) (1992), 59 O.A.C. 1; 77 C.C.C.(3d) 402 (C.A.), refd to. [para. 23].

Palmer v. The Queen - see R. v. Palmer.

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, appld. [para. 24].

T.G. v. Nova Scotia (Minister of Community Services) et al. (2012), 316 N.S.R.(2d) 202; 1002 A.P.R. 202; 2012 NSCA 43, refd to. [para. 24].

Sharpe v. Abbott (2007), 250 N.S.R.(2d) 228; 796 A.P.R. 228; 2007 NSCA 6, refd to. [para. 28].

Moore et al. v. Economical Mutual Insurance Co. (1999), 177 N.S.R.(2d) 269; 542 A.P.R. 269 (C.A.), refd to. [para. 28].

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. 34].

Hickey v. Hickey, [1999] 2 S.C.R. 518; 240 N.R. 312; 138 Man.R.(2d) 40; 202 W.A.C. 40, refd to. [para. 34].

Hughes et al. v. Graves (2001), 194 N.S.R.(2d) 51; 606 A.P.R. 51; 2001 NSSC 68, refd to. [para. 49].

Authors and Works Noticed:

Klotz, Robert A., Bankruptcy, Insolvency and Family Law (2nd Ed. 2001) (2003 Looseleaf Update, release 1), c. 3.2, p. 3-11 [para. 50].

Counsel:

Appellant, in person;

Susan M. Litke and Daniel Roper, Senior Law Student, for the respondent.

This appeal was heard on April 13, 2012, by Oland, Hamilton and Beveridge, JJ.A., of the Nova Scotia Court of Appeal. Hamilton, J.A., delivered the following decision for the court on September 18, 2012.