Waterman v. Waterman, (2014) 357 N.S.R.(2d) 36 (CA)

• Judge: Beveridge, Hamilton and Bryson, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: April 15, 2014
• Jurisdiction: Nova Scotia
• Citations: (2014), 357 N.S.R.(2d) 36 (CA);2014 NSCA 110

Waterman v. Waterman (2014), 357 N.S.R.(2d) 36 (CA);

    1127 A.P.R. 36

MLB headnote and full text

Temp. Cite: [2014] N.S.R.(2d) TBEd. DE.034

Wayne Waterman (appellant) v. Paulette Waterman (respondent)

(CA 422372; 2014 NSCA 110)

Indexed As: Waterman v. Waterman

Nova Scotia Court of Appeal

Beveridge, Hamilton and Bryson, JJ.A.

December 11, 2014.

Summary:

A wife obtained an order for spousal support in Ontario. After she moved to Nova Scotia, her husband applied under the Ontario Interjurisdictional Support Orders Act to vary the award and for forgiveness of all spousal support arrears. The officials in Ontario processed the application and sent it to the authorities in Nova Scotia. The husband was not given a copy of the material filed by the wife and was not notified of the hearing in Nova Scotia.

The Nova Scotia Supreme Court, Family Division, in a decision not reported in this series of reports, dismissed the husband's application, finding that information was missing that would impact on the issue of quantum of support, and the husband had not established a material change of circumstances. The husband appealed.

The Nova Scotia Court of Appeal, Hamilton, J.A., dissenting, allowed the appeal on the basis that the husband had been denied procedural fairness. The court remitted the matter for determination before a different judge upon proper notice to both parties.

Civil Rights - Topic 8582

Canadian Charter of Rights and Freedoms - Practice - Charter application - Grounds for precluding - A wife obtained an order for spousal support in Ontario - After she moved to Nova Scotia, her husband applied under the Ontario Interjurisdictional Support Orders Act (ISO Act) to vary the award and for forgiveness of all spousal support arrears - The officials in Ontario processed the application and sent it to the authorities in Nova Scotia - The husband was not given a copy of the material filed by the wife and was not notified of the hearing in Nova Scotia - An applications judge in Nova Scotia dismissed the application - The husband appealed, asserting that he was denied procedural fairness - The wife asserted that the husband had not properly raised the issue of whether the ISO Act was in accordance with the Constitution and, therefore, the issue should be disregarded - The Nova Scotia Court of Appeal stated that "Nor do I see the relevance of the absence of a constitutional challenge. Although not argued, I will take it as implicit in the [wife's] suggestion that the ISO legislation does authorize a departure from the usual norms of the audi alteram partem rule. Hence, the respondent suggests, that absent a properly framed and successful constitutional challenge, the procedure authorized by the legislation must be respected. ... It is settled law that audi alteram partem is a common law rule. Legislation can exclude the normal presumed operation of such rules-provided of course the legislation is not found to impermissibly infringe rights guaranteed by the Canadian Charter of Rights and Freedoms. There is no suggestion of infringement of Charter rights in this case." - See paragraphs 67 and 68.

Courts - Topic 586

Judges - Duties - Duty to hear evidence and submissions of a litigant - [See Civil Rights - Topic 8582 ].

Courts - Topic 586

Judges - Duties - Duty to hear evidence and submissions of a litigant - A wife obtained an order for spousal support in Ontario - After she moved to Nova Scotia, her husband applied under the Ontario Interjurisdictional Support Orders Act (ISO Act) to vary the award and for forgiveness of all spousal support arrears - The officials in Ontario processed the application and sent it to the authorities in Nova Scotia - The husband was not given a copy of the material filed by the wife and was not notified of the hearing in Nova Scotia - An applications judge in Nova Scotia dismissed the application - The husband appealed, asserting that he was denied procedural fairness - The Nova Scotia Court of Appeal allowed the appeal - The ISO Act and its Regulations were silent about if, when, and how notice of the hearing and a copy of the wife's materials were to be provided to the husband - If the Legislature had intended to exclude one of the basic tenets of the legal system, it would have been a simple matter for it to have done so - An applicant had the right to know when and where the application was to be heard and the opportunity to fully participate at the hearing - In Nova Scotia there was no express statutory language directing that notice need not be given to an applicant, nor authorizing the court to hear and determine the rights of the parties in the absence of an opportunity for the applicant to know the case against him and to respond - Nor did the legislation by "necessary implication" exclude the provision of notice - The husband had no notice of the hearing, no opportunity to participate and no opportunity to respond to the wife's submissions - This was a final hearing at which his application to vary was determined - The process, absent statutory authority, was flawed - See paragraphs 69 to 110.

Courts - Topic 592

Judges - Duties - Duty to conduct fair and impartial proceedings - [See second Courts - Topic 586 ].

Courts - Topic 592

Judges - Duties - Duty to conduct fair and impartial proceedings - A wife obtained an order for spousal support in Ontario - After she moved to Nova Scotia, her husband applied under the Ontario Interjurisdictional Support Orders Act (ISO Act) to vary the award and for forgiveness of all spousal support arrears - The officials in Ontario processed the application and sent it to the authorities in Nova Scotia - The husband was not given a copy of the material filed by the wife and was not notified of the hearing in Nova Scotia - An applications judge in Nova Scotia dismissed the application - The husband appealed, asserting that he was denied procedural fairness - The wife asserted that the husband chose to proceed by way of the ISO Act and could not now complain that he was not notified of the hearing or given a chance to participate - Had he wished to avail himself of those procedures he should have applied to vary under the Divorce Act - The Nova Scotia Court of Appeal rejected the argument - At the time of the application to vary, there were no proceedings under the Divorce Act extant - The fact that the husband could have started proceedings under the Divorce Act was irrelevant to the issue of whether he was denied natural justice in the proceedings under the ISO Act - See paragraph 66.

Family Law - Topic 2421

Maintenance of spouses and children - Appeals - General - Standard of review - The Nova Scotia Court of Appeal stated that "Where a judge makes a decision to award or vary spousal support, he or she is required to make a discretionary decision, balancing a variety of factors and guided by the particular facts of the case at hand. Appellate courts owe deference to such a decision, and will not intervene unless satisfied that the judge erred in principle, significantly misapprehended the evidence or made an award that is clearly wrong." - See paragraph 21.

Family Law - Topic 2421

Maintenance of spouses and children - Appeals - General - Standard of review - A husband's application under the Ontario Interjurisdictional Support Orders Act to vary an award of spousal support was dismissed by an application judge in Nova Scotia - The husband appealed, asserting that the judge erred in not following the process mandated by the Act - The Nova Scotia Court of Appeal in determining the standard of review for this issue stated that "Interpreting and complying with statutes are questions of law. These are reviewed on the standard of correctness. ... However, decisions resulting from the application of legal principles or the exercise of judicial discretion are afforded deference. An appeal court has no role to overrule such decisions, absent palpable and overriding error or patent injustice." - See paragraph 22.

Family Law - Topic 2547

Maintenance of spouses and children - Enforcement - Foreign orders - Variation - [See second Courts - Topic 586 ].

Family Law - Topic 2547

Maintenance of spouses and children - Enforcement - Foreign orders - Variation - A wife obtained an order for spousal support in Ontario - After she moved to Nova Scotia, the husband applied under the Ontario Interjurisdictional Support Orders Act to vary the award and for forgiveness of all spousal support arrears - The officials in Ontario processed the application and sent it to the authorities in Nova Scotia - The application judge in Nova Scotia dismissed the husband's application, holding that, inter alia, information was missing that would impact on the issue of quantum of support - The husband appealed, asserting that the application judge was required by s. 36(2) of the Act to adjourn the hearing and ask for the information that he needed - The Nova Scotia Court of Appeal rejected the assertion - There was nothing in the Act's object, structure or language that pointed to an imposition of a mandatory obligation to seek further information or documents - To interpret s. 36(2) as mandatory risked turning the judge into an advocate for the applicant - Requests for further information or documents instigated by the judge had at least the potential for unfairness to one or perhaps both of the parties, and detracted from the courts dealing with interjurisdictional applications with the minimum of delay - There were pragmatic and juristic concerns that militated against a mandatory obligation - The Act's object would not be served by the rote application of the grammatical meaning of "shall" without regard to the consequences of such an interpretation - To do so would amount to a significant and radical change to how judges adjudicated disputes - There was nothing in the Act's background, structure or wording that pointed to an intention by the legislature to do so - The use of "shall" in s. 36(2) gave a judge the discretion to request further information or documents - See paragraphs 27 to 61.

Family Law - Topic 4019

Divorce - Corollary relief - Maintenance awards - Appeals - [See both Family Law - Topic 2421 ].

Practice - Topic 5013

Conduct of trial - General principles - Adjudicative fairness - [See second Courts - Topic 586 ].

Practice - Topic 8800

Appeals - General principles - Duty of appellate court regarding findings of fact - [See first Family Law - Topic 2421 ].

Practice - Topic 8800.2

Appeals - General principles - Duty of appellate court regarding findings of law - [See second Family Law - Topic 2421 ].

Statutes - Topic 2417

Interpretation - Interpretation of words and phrases - General principles - "May" and "shall" - [See second Family Law - Topic 2547 ].

Statutes - Topic 4610

Operation and effect - Legislation by reference - General - By necessary implication - [See second Courts - Topic 586 ].

Statutes - Topic 5130

Operation and effect - Enabling Acts - Obligatory, mandatory, imperative and absolute Acts - Whether mandatory enactment is obligatory or directory only - [See second Family Law - Topic 2547 ].

Words and Phrases

"Shall" - The Nova Scotia Court of Appeal considered the meaning of this word as used in s. 36(2) of the Interjurisdictional Support Orders Act, S.O. 2002, c. 13 - See paragraphs 27 to 61.

Cases Noticed:

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. 21].

Saunders v. Saunders (2011), 307 N.S.R.(2d) 297; 975 A.P.R. 297; 2011 NSCA 81, refd to. [para. 21].

B.H. v. Nova Scotia (Minister of Community Services) et al. (2009), 279 N.S.R.(2d) 278; 887 A.P.R. 278; 2009 NSCA 67, refd to. [para. 22].

Bellefontaine v. Slawter (2012), 318 N.S.R.(2d) 29; 1005 A.P.R. 29; 2012 NSCA 48, refd to. [para. 23].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 23].

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. 23].

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1; 2002 SCC 42, refd to. [para. 30].

Municipal Contracting Ltd. v. Nova Scotia (Attorney General) (2003), 212 N.S.R.(2d) 36; 665 A.P.R. 36; 2003 NSCA 10, refd to. [para. 30].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 31].

British Columbia (Attorney General) v. Canada (Attorney General), [1994] 2 S.C.R. 41; 166 N.R. 81; 44 B.C.A.C. 1; 71 W.A.C. 1, refd to. [para. 33].

Blueberry River Indian Band and Doig River Indian Band v. Canada (Minister of Indian Affairs and Northern Development) et al., [1995] 4 S.C.R. 344; 190 N.R. 89, refd to. [para. 34].

Mathers v. Bruce (2005), 215 B.C.A.C. 229; 355 W.A.C. 229; 2005 BCCA 410, refd to. [para. 37].

Dale v. Lockley, 2014 ONSC 1402, refd to. [para. 48].

M.I. v. A.T., 2004 BCPC 391, refd to. [para. 50].

Leduc v. Leduc, [2013] B.C.T.C. Uned. 78; 2013 BCSC 78, refd to. [para. 51].

Hann v. King (2013), 336 Nfld. & P.E.I.R. 279; 1043 A.P.R. 279; 2013 NLTD(G) 62, refd to. [para. 59].

Consolidated-Bathurst Packaging Ltd. v. International Woodworkers of America, Local 2-69 and Labour Relations Board (Ont.), [1990] 1 S.C.R. 282; 105 N.R. 161; 38 O.A.C. 321, refd to. [para. 63].

Ocean Port Hotel Ltd. v. Liquor Control and Licensing Branch (B.C.), [2001] 2 S.C.R. 781; 274 N.R. 116; 155 B.C.A.C. 193; 254 W.A.C 193; 2001 SCC 52, refd to. [para. 70].

L.L.A. v. Beharriell, [1995] 4 S.C.R. 536; 190 N.R. 329; 88 O.A.C. 241, refd to. [para. 72].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1, refd to. [para. 72, footnote 2].

Ferrara v. Trafford (1987), 77 N.B.R.(2d) 358; 195 A.P.R. 358; 7 R.F.L.(3d) 151 (C.A.), refd to. [para. 73].

Whelan v. O'Connor, [2005] O.T.C. Uned. B95 (Sup. Ct.), refd to. [para. 86].

R.Z. v. D.Z. (2013), 332 Nfld. & P.E.I.R. 349; 1030 A.P.R. 349; 2013 PECA 2, refd to. [para. 96].

Albinet v. Albinet (2003), 170 Man.R.(2d) 308; 285 W.A.C. 308; 2003 MBCA 22, refd to. [para. 99].

Haig v. Whitmore, [2012] A.R. Uned. 367; 2012 ABQB 343, refd to. [para. 104].

Statutes Noticed:

Interjurisdictional Support Orders Act, S.O. 2002, c. 13, sect. 36(2) [para. 27].

Authors and Works Noticed:

Hansard - see Nova Scotia, Hansard, House of Assembly.

Nova Scotia, Hansard, House of Assembly, 58th Assembly, 2nd Sess. (May 7, 2002), p. 9717 [para. 39].

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), p. 183 [para. 91].

Counsel:

Wayne Waterman, appellant in person, not present;

C. LouAnn Chiasson, Q.C., for the respondent.

This appeal was heard at Halifax, Nova Scotia, on April 15, 2014, by Beveridge, Hamilton and Bryson, JJ.A., of the Nova Scotia Court of Appeal. The decision of the court was released on December 11, 2014, with the following opinions:

Beveridge, J.A. (Bryson, J.A., concurring) - see paragraphs 1 to 110;

Hamilton, J.A., dissenting - see paragraphs 111 to 117.