Nova Scotia Court of Appeal
Citation: Aspden v. Leclerc, 2014 NSCA 86
Date: 20140926
Docket: CA 419796
Registry: Halifax
Between:
Pamela Leone Aspden
Appellant
v.
Marc Daniel Leclerc
Respondent
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Judges: |
Beveridge, Farrar and Scanlan, JJ.A. |
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Appeal Heard: |
September 10, 2014, in Halifax, Nova Scotia |
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Held: |
Appeal allowed in part per reasons for judgment of Farrar, J.A.; Beveridge and Scanlan, JJ.A. concurring. |
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Counsel |
Appellant in person Respondent not appearing |
Reasons for judgment:
Background and Proceedings
[1] The appellant, Pamela Aspden, and the respondent, Marc Leclerc, were married on August 15, 1987 in Tillsonburg, Ontario. The couple moved to Nova Scotia in 1998. They have three children, two sons born in 1989 and 1991 and a daughter born in 1992.
[2] In 2008 the couple were having serious problems with their relationship. They separated on January 1, 2009.
[3] Ms. Aspden commenced legal proceedings on October 9, 2009, under the Maintenance and Custody Act, R.S.N.S. 1989, c. 160, and the Matrimonial Property Act, R.S.N.S. 1989, c. 275.
[4] An Interim Consent Order was granted on March 30, 2010 requiring Mr. Leclerc to pay Ms. Aspden spousal support and child support for their daughter. On August 10, 2009, Mr. Leclerc initiated divorce proceedings in Ontario (where he was working and living at the time). However, that proceeding was discontinued by agreement and a Petition for Divorce was filed by Ms. Aspden in Sydney, Nova Scotia on February 21, 2011.
[5] Conciliation meetings were held with the parties in that year without success.
[6] On October 12, 2011, the parties appeared before Associate Chief Justice Lawrence I. O’Neil and it was agreed that Mr. Leclerc would no longer be responsible for the child support obligation as directed by the March 30, 2010 Interim Order. An order to that effect was issued on October 27, 2011.
[7] The matter proceeded to a divorce trial before A.C.J. O’Neil on January 25, 2012, and continued on January 26. It was completed on March 12 and 13, 2012.
[8] The trial judge released his decision on September 11, 2012.
[9] Following the release of that decision the parties requested a conference to deal with the implementation of the decision. A telephone conference eventually took place on July 24, 2013. Following that telephone conference a supplemental decision of A.C.J. O’Neil was issued on August 23, 2013.
[10] A divorce order and corollary relief order were also issued on August 23, 2013.
[11] Throughout the hearing the parties were self-represented. As noted by the trial judge, notwithstanding the parties’ best efforts, they omitted formal proof of many documents they wanted the court to consider and on which they relied in support of their respective positions. At the conclusion of the trial, Ms. Aspden and Mr. Leclerc both agreed that whatever documents they had filed, since the commencement of the proceedings, could be considered by the Court.
[12] By Notice of Appeal dated September 20, 2013, Ms. Aspden appeals the decision, supplementary decision and the orders flowing therefrom. She represented herself at the oral hearing. Mr. Leclerc filed a factum but did not attend at the oral argument.
Issues
[13] The Notice of Appeal filed by Ms. Aspden questions essentially every determination made by the trial judge relating to the division of property, spousal support and child support. With the exception of two items which I will address individually - the trial judge’s statement that Ms. Aspden earned $80,960 and the discontinuance of child support in July, 2011 – I will address all of the other issues under the global heading of Spousal Support and Division of Property.
Standard of Review
[14] As explained to Ms. Aspden at the commencement of the appeal, this is an appeal from a trial judge’s decision. Our role is not to embark upon a fresh assessment of the evidence or to substitute our exercise of discretion for that of the trial judge. We may only intervene if the trial judge erred in legal principle or was shown to have made a clear error with respect to a factual finding that has materially affected the result. (See for example, MacCulloch v. MacCulloch, 2012 NSCA 10, ¶15; McNaughton v. Ward, 2007 NSCA 81, ¶34).
[15] None of the grounds of appeal raised by Ms. Aspden, although listed under headings of “Error of Fact” , “Error of Law”, “Judicial Error”, allege any incorrect application of principles of law. Her “grounds of appeal” are in the form of arguments relating to the trial judge’s exercise of discretion in determining support and division of property. As a result, a deferential standard of review will be applied.
Spousal Support and Division of Property
[16] As noted earlier, Ms. Aspden calls into question virtually every aspect of the trial judge’s decision. I will attempt to restate and summarize her complaints as follows:
1. Ms. Aspden’s income is misstated for the purpose of spousal and child support;
2. The matrimonial debt at the time of separation is miscalculated;
3. Calculation of the profit from an income property was wrong;
4. Mr. Leclerc did not make support payments directly to Ms. Aspden as ordered by the Interim Order;
5. Mr. Leclerc failed to properly disclose income or his income was improperly calculated by the Court;
6. The judge was unduly critical of Ms. Aspden in running up debt after the separation;
7. Mr. Leclerc lied in reporting his expenses;
8. Mr. Leclerc failed to disclose that he was in a common law relationship;
9. The trial judge considered some debts incurred by her to be hers alone and the debts incurred by Mr. Leclerc were considered matrimonial debt;
10. Mr. Leclerc did not pay their son’s tuition fees as required by the Interim Order of March, 2010;
11. The trial judge gave Mr. Leclerc credit for household expenses which Mr. Leclerc said he paid without documentary proof;
12. A motorcycle which was awarded to her with a credit to Mr. Leclerc was damaged while in Mr. Leclerc’s possession and that she ought to be given credit for at least the repairs to the motorcycle.
[17] With the exception of the two items to which I had earlier referred, Ms. Aspden is simply attempting to re-litigate the issues that were before the trial judge and asking us come to a different conclusion; one which is more favourable to her. That is not our role. There is nothing new in Ms. Aspden’s arguments before us. A.C.J. O’Neil heard argument on all of these issues at the trial or on the conference call on July 24, 2013.
[18] The parties had ample opportunity to put their case forward to A.C.J. O’Neil. The proceedings are best described by the trial judge near the closing of the trial on March 13, 2012:
... We have spent five days, and that’s why I’ve, I’ve given you two both a lot of latitude in how this proceeding’s been conducted. Many, many judges would not, would not approach it the same way perhaps, but ... it has taken more time than I would have liked and you would have liked, but you both had the opportunity to put in a lot of evidence, make a lot of statements, and, and you have to understand one of the reasons I make ... I conduct a trial that way is so that there can be closure, and people don’t have to repeat the process. ...
[19] A.C.J. O’Neil’s comment that he had provided the parties with “a lot of latitude” is an understatement. He is to be commended for the amount of time and patience he had with the two parties.
[20] A review of the record reveals that the documentary evidence submitted was incomplete and lacking in detail with respect to the receipt and expenditure of funds by both parties.
[21] Also problematic for the trial judge was the manner in which the parties presented the evidence to him. Their submissions, and arguments, were unstructured, unfocussed and of very little assistance to the trial judge in deciding the issues he had before him. The transcript reveals that the parties’ evidence and submissions disintegrated into accusations of misconduct by one or the other, failure to disclose income, failure to disclose documents, etc.
[22] Despite these difficulties it is apparent from the trial judge’s decision that he gave very close and careful consideration to all of the parties’ arguments and the evidence submitted by them. In his well-written decision he went to great pains to describe the information which he had in front of him and how he came to the conclusions that he did. His decision on the arrears of child and spousal support and the division of assets is amply supported by the evidence and I would not interfere with it.
[23] I will now turn to the two errors which I consider the trial judge to have made.
Ms. Aspden’s 2010 income of $80, 960 including spousal support
[24] The trial judge says the following:
[38] With her Statement of Income filed December 5, 2011, Ms. Aspden filed her Notice of Assessment for 2010. Ms. Aspden gained employment and had 2010 income of $80,960; including spousal support.
[25] The trial judge’s statement that her income was $80,960 is in error. Her income in 2010, according to her Notice of Assessment, was $34,748, including spousal support.
[26] However, it is my view that this is a clerical error and not an error of any substance.
[27] In his decision, after stating her income to be this amount, A.C.J. O’Neil says the following:
[46] ...
(2) I am satisfied that Ms. Aspden's earnings were not known to Mr. LeClerc during the term of the March 2010 order and although her earnings were modest they would have resulted in some reduction in the spousal support obligation. Her income should have been known and considered when the spousal support guidelines were used as a guide to determine the spousal support obligation during Mr. LeClerc's period of unemployment and his subsequent period of reduced earnings following his resumption of employment. Mr. LeClerc's obligation would have been less as a result. [My emphasis]
[28] The trial judge refers to her income in 2010, in this paragraph, as “modest”. An income of approximately $81,000 would be far from modest. This supports my view that the amount referenced earlier was merely a clerical error. Furthermore, I am not satisfied the error was material.
[29] The fact that Ms. Aspden had a “modest income” was just one of the factors that A.C.J. O’Neil said justified a finding that the arrears of spousal and child support owing were overstated by approximately $40,000 by the Maintenance Enforcement Program record. He then goes on, in considerable detail, to calculate the specific amounts of the overpayment as $38,694. Therefore, Ms. Aspden’s “modest” income in 2010 had very little, if any, impact on his calculation of the overstatement of support payments owing by MEP. This supports the view that the approximately $81,000 stated as her income in 2010 is a clerical error. If it were otherwise that amount would have significantly impacted on his calculation of the overstatement of support payments.
[30] In the end result, this error did not materially affect his decision.
Termination of Child Support
[31] The trial judge found that effective July, 2011, the parties’ daughter stopped living with her mother. He says:
[41] Effective July, 2011, Alixandra discontinued living with her mother and I find Mr. Leclerc’s child support obligation for her terminated at that time; not in October, 2011. She now lives with Mr. Leclerc and he is supporting her. No financial obligation to her support is made by Ms. Aspden, nor is one sought by Mr. Leclerc.
[32] The trial judge then goes on to recalculate the amount of child support owing and at ¶46 says the following:
(5) For the three month period July, 2011 – September, 2011 inclusive I reduce the child support obligation from $1,385 per month to zero, because Alixandra was no longer a child of the marriage; the difference is a deduction from the total amount due as shown on the ‘MEP’ record; for these three months this totals $4,155.
[33] The trial judge’s conclusion that Alixandra ceased to live with her mother in July of 2011 is not supported on the record. In fact, the record reveals that an Order was issued on October 27, 2011, terminating child support obligations of Mr. Leclerc on October 12, 2011. The Order reads as follows:
On the motion of Marc Leclerc, clause 1 of the Amended Interim Consent Order issued May 5th, 2011 shall be replaced by the following:
Child maintenance payments
The child support obligations of Marc Leclerc are terminated by agreement of the parties on October 12, 2011.
[34] I can find nowhere in the record where their daughter’s place of residence was ever a point of dispute between the parties. Furthermore, in the transcript from the post-trial conference in July of 2013, Mr. Leclerc essentially concedes this issue. Ms. Aspden raised the issue with the trial judge and Mr. Leclerc that the conclusion their daughter lived with Mr. Leclerc was in error. Mr. Leclerc’s response was “There’s always going to be a few little points here and there that aren’t exactly correct”.
[35] The only conclusion I can come to is that the trial judge erred in reducing the child support obligations for the months of July to September, 2011.
[36] I am also of the view that the mistake is material in that it affected the trial judge’s ultimate decision on the reduction of support payments.
[37] As a result, Ms. Aspden is entitled to child support payments for the months of July, August and September of 2011.
[38] The trial judge had previously reduced the amount of the child support payments for the months of May and June, 2011, from $1,385 per month to $1,068 as Mr. Leclerc’s income was approximately $125,000 (¶46(4)).
[39] It follows that if they were reduced for the months preceding July, 2011 they should also be reduced for July – September, 2011. Therefore, the amount owing by Mr. Leclerc to Ms. Aspden is $3,204 (3 x $1,068).
Costs
[40] Ms. Aspden has been partially successful on this appeal. As a result, I would award her costs, inclusive of disbursements, in the amount of $2,000.
Conclusion
[41] The appeal is allowed, in part; Mr. Leclerc shall pay to Ms. Aspden the sum of $3,204 for child support for the months of July – September, 2011. Mr. Leclerc shall also pay $2,000 to Ms. Aspden for the costs of this appeal inclusive of disbursements.
Farrar, J.A.
Concurred in:
Beveridge, J.A.
Scanlan, J.A.