Court of Appeal

CASE NO.                                                   VOL. NO.                                                           PAGE

BERNADETTE DIANE MILLER                    - and -                            JAMES FRANCIS MILLER

(Appellant)                                                                                                                       (Respondent)

CA 164860                                                  Halifax, N.S.                                           HALLETT, J.A.

                                           [Cite as:  Miller v. Miller, 2001 NSCA 31]

APPEAL HEARD:                                         January 22, 2001

JUDGMENT DELIVERED:                        February 9, 2001

SUBJECT:                 Divorce Act, R.S.C. 1985, Chap. D-3 (2^nd Supp.), c. 3, s. 17(4.1); s. 17(7)

SUMMARY:              A chambers judge reduced spousal support from $650 a month to $350 a month.  He also forgave eight months plus of arrears of $5,500.

The appellant asserted that the chambers judge erred in that he did not give adequate consideration to the means and needs of the parties, nor did he consider the objectives of s. 17(7) of the Divorce Act.

On appeal the Court of Appeal held that the trial judge did not err in focusing primarily on the ability of the payor spouse to pay the support of $650 a month as this was the key issue on the evidence.  His oral judgment clearly disclosed that he was well aware of and considered the objectives of s. 17(7) of the Divorce Act in relation to Mrs. Miller’s circumstances.  The Court of Appeal held that he did not err in reducing the spousal support from $650 to $350 a month as there was evidence to support his finding (Hickey v. Hickey, [1999] 2 S.C.R. 518).

The Court of Appeal held that the chambers judge erred in  forgiving the arrears of support of $5,500 as he significantly misinterpreted the evidence with respect to the money advanced to Mrs. Miller by her boyfriend, Mr. White.  He also erred in basing the forgiveness of the arrears on his speculation that Mr. Miller could have successfully applied for retroactive forgiveness of arrears on the grounds of Mrs. Miller’s relationship with Mr. White.  The forgiveness of the arrears was clearly wrong.

The Court of Appeal, based on the trial judge’s finding that Mr. Miller had the ability to pay $350 a month spousal support ordered that he pay on the arrears eight months plus support at the rate of $350 a month for a total of $3,000 in full satisfaction of the arrears.