C.A. No. 125303
NOVA SCOTIA COURT OF APPEAL
Cite as: Stuckless v. Stuckless, 1996 NSCA 141
Freeman, Pugsley and Bateman, JJ.A.
BETWEEN:
EVERETT ROGER STUCKLESS ) ) the appellant
) appeared in person
Appellant )
)
- and - )
) no one appearing
) for the respondent
KRYSTAL ANN STUCKLESS ) )
)
Respondent ) Appeal Heard:
) May 30, 1996
)
)
) Judgment Delivered:
) June 10, 1996
)
THE COURT: Appeal dismissed per reasons for judgment of Bateman, J.A.; Freeman and Pugsley, JJ.A. concurring.
BATEMAN, J.A.:
Everett Stuckless appeals the dismissal of his application to vary an interim maintenance order, made pursuant to the Divorce Act.
The appellant and the respondent, Krystal Ann Stuckless, were married in 1984 and separated in July of 1992, when the respondent moved to Manitoba with the parties' three dependant children, now ages 13, 10 and 9.
The respondent petitioned for divorce in Manitoba and obtained a default interim maintenance order of $1000 per month effective September 20, 1994. The respondent's affidavit, filed in support of the Manitoba order, indicates that at the time of separation the appellant's income was $6,800 monthly. The respondent works part time as a dental assistant and is in receipt of Unemployment Insurance.
The appellant failed to make the payments required under the Manitoba order. Enforcement proceedings commenced in Nova Scotia. The record reveals that there were numerous appearances in the Family Court culminating in the arrears being fixed at $8000 as of May 11, 1995 and a garnishee order for the continuing maintenance. The Family Court judge had no jurisdiction to vary the Manitoba Order. The appellant was directed to file a statement of assets and liabilities. He did not do so. Further proceedings were scheduled in the Family Court. The appellant did not appear as required and a Warrant was issued.
The appellant appealed the Family Court order, enforcing the arrears, to the Supreme Court. After several adjournments to accommodate the appellant, he did not follow through with the appeal which was dismissed.
Ultimately, the appellant applied to the Supreme Court to vary the
Manitoba Order. He maintained that he could not afford to pay the amount of maintenance ordered. The appellant filed a financial statement and testified before the Supreme Court judge. He was cross-examined by counsel for the respondent. The appellant was unable to advise the court how much he had paid for the support of his family since separation. He estimated that he had sent cash to the respondent of perhaps $2,500 in total, together with other unspecified cash amounts and gifts directly to the children. He testified that his gross annual income, before business expenses, was about $35,000 annually. He testified that his business expenses are about $1400 monthly. He suggested maintenance of $300 monthly.
The trial judge found that the appellant's business expenses approximated $500 monthly. He held that the appellant, with adjustment to his lifestyle, had the ability to respond to the Manitoba order. He found, as well, that the appellant had not adequately explained his failure to comply with the order and pay the arrears. (In this regard see the decision of this court in Young v. Young (1976), 17 N.S.R. (2d) 375.) He dismissed the application to vary and fixed the arrears at $16,000, giving credit for a payment of $1000.
The record reveals that the financial information supplied by the appellant to the court was unclear, incomplete and virtually indecipherable. His evidence on examination was equally oblique. He did not adequately explain his failure to address the arrears. The fact that he had not provided any meaningful support for his children since the separation seriously impaired his credibility. The onus was upon the appellant to satisfy the judge that the maintenance should be varied. The evidence presented by the appellant fell substantially short of the mark. The trial judge committed no error in reaching the conclusion he did.
I would dismiss the appeal.
Bateman, J.A.
Freeman, J.A.
Pugsley, J.A.
C.A. No. 125303
NOVA SCOTIA COURT OF APPEAL
BETWEEN:
EVERETT ROGER STUCKLESS
)
Appellant )
- and - ) REASONS
) FOR
) JUDGMENT ) BY:
KRYSTAL ANN STUCKLESS )
) BATEMAN,
) J.A.
Respondent )
)
)
)
)
)
)