Cite as: Lucas v. Lucas, 1993 NSCO 8 ' CANADA PROVINCE OF NOVA SCOTIA 1992 S.H. 71694 CARLA KIM LUCAS (NOW WARD) Petitioner/Respondent - and -GARY WILLIAM LUCAS Respondent/Appellant HEARD BEFORE: The Honourable Justice Nancy Bateman PLACE HEARD: Halifax,Nova Scotia DATE OF DECISION: February lOth 1993 (Orally) COUNSE:: Ms. c. Christie, for appellant W.I. Yeadon, Esq., for the respondent
' CANADA PROVINCE OF NOVA SCOTIA 1992 S.H. No. 71694 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: CARLA KIM LUCAS (NOW WARD} Petitioner/Respondent - and -GARY WILLIAM LUCAS Respondent/Appellant ' BATEMAN I J.: (Orally at conclusion of hearing) This is an appeal by Gary Lucas of a decision by a Judge of the Family Court, dated August 12th 1992. At that time the learned trial judge found that Mr. Lucas had not shown cause why he had not complied with an order for maintenance for his son, entered judgement against Mr. Lucas for the full amount of the arrears being Seventy-five Hundred Dollars ($7,500.00) and put into effect an ongoing garnishee order for the monthly support and directed the issuance of an execution order for the arrears. In addition the judge ordered that Mr. Lucas pay Eight Hundred Dollars ($800.00) on or before September 5th 1992, or ~ be incarcerated for 30 days.
- 2 - ' Mr. Lucas appealed the order in its entirety. He obtained a stay of the committal order on September 3rd 1992 from the County Court pending his appeal. The appeal was set for February lOth 1993, with the appellant's factum to be filed 30 days in advance. While a transcript was prepared at the request of Mr. Lucas' then counsel, Mr. Lucas did not otherwise perfect the appeal. No factum was file!d. On my direction, staff made efforts to contact Mr. Lucas to determine the status of matters, leaving a message on his machine about two weeks ago. There was no response. Apparently Mr. Lucas retained counsel yesterday and she asked this morning that the matter proceed by oral argument ' only. As the respondent did not object, I heard oral representations. As is common in these Family Law appeals, there appears to be some confusion on th•: part of Mr. Lucas as to this Court's role. My power on appeal is, to a limited extent, to re-examine and reweigh the evidence, to determine if it supports the conclusions reached by the trial judge. I am not, however, to simply substitute my view for that of the trial judge. Mr. Lucas must demonstrate that the trial judge erred at law, or made a finding of fact not supported by the evidence. Findings of credibility are the province of the trial judge. The proceeding before the trial judge was an enforcement
·- 3 - ' hearing, pursuant to s. 43 of the This is commonly known as a proceeding to determine if Mr. reasonable excuse for his failure to comply with the divorce corollary relief order. There were several adjournments accommodate Mr. Lucas. He did from the Court to provide financial information. The judge heard the w.i tnesses accept the evidence of Mr. Lucas, unable to respond to the maintenance finding at page two of her decision: hearing, his credibility is almost non-existent." She found that it was extremely difficult straightforward answer from Mr. he was evasive. The transcript and history of proceedings in the Family Court support those findings. The trial judge rejected Mr. business expenses and found his "highly unreliable." She found Lucas, while protesting his ability to luxury, vehicle, jewellery and clothing financial success to friends. Again, regard, were supported by the evidence. Independent evidence was called friend of Mr. Lucas, to the effect that Mr. Family Maintenance Act. "show cause." It was a Lucas could provide a of the proceeding to not comply with directions and expressly did not to the effect that he was order. I quote her "For purposes of this for counsel to get a Lucas, under oath, and that Lucas' evidence as to his evidence as to finances, it incongruous that Mr. pay, bought a new, and boasted of his her findings in that from a Mr. Pettie, a Lucas boasted of
- 4 thwarting his obligation to pay maintence and said he was earning Forty Thousand Dollars ($40,000.00) per year, as well as a car bonus. The Judge accepted Mr. Pettie's evidence, as she was entitled to do. Indeed it is a rare case when a Court has the luxury of such independent evidence. Mr. Lucas submits that the Court should have rejected Mr. Pettie's evidence, of Mr. Lucas' comments to him, on the basis that Mr. Lucas was overstating his position, or to put it bluntly, lying to Mr. Pettie to impress him; that is a two edged sword. Significant is the fact that Mr. Lucas did not take the witness stand to contradict Mr. Pettie. His evidence went ' unrebutted. Counsel for Mr. Lucas submits that I am to consider the devastating effect that the garnishee order has had on Mr. Lucas since the August trial. That, however, even should I accept that the order has worked a hardship, is not before me. That is a matter for review by the Family Court, on motion of Mr. Lucas. I can only adjudicate upon the circumstances as presented to the trial judge, culminating in the August 12th decision. I must put myself in her place at that time and not consider matters transpiring subsequently. I am satisfied that, as regards to the findings that Mr. Lucas had not shown cause; on the entry of judgement; and on the garnishee order, the learned trial judge made no error of
-· 5 - ' law. In addition I am satisfied that there was ample evidence to support her findings of fact and the inferences she drew from those facts. There remains the appeal of the committal order. It is to be noted that Ms. Lucas made it clear at the outset of this appeal that she was not seeking compliance with the committal order. In my view, however, unlike other orders of the Court, it is questionable whether parties have the ability to consent to the setting aside of a committal order, which type of order is really one upholding the Court's own process. The Family Court has acted upon the execution order, in partial satisfaction of the judgement. Apparently funds that were held by a lawyer, in trust, for both parties were levied upon, to the extent of Twenty-nine Hundred and Fifty Dollars ($2,950.00) and applied to the credit of Mr. Lucas. Technically, then, the Eight Hundred Dollars ( $800.00) payment by Mr. Lucas to forestall the incarceration has been satisfied. In my view, then, the propriety of the committal order is no longer a live issue. I refrain from adjudicating specifically on that point. As to prospective committal orders, generally, however, there may be an argument on the basis of Clyburn v. Clyburn, (1987), 78 N.S.R. (2d) 334, Nova Scotia Supreme Court Appeal Civision, as it then was, that a
- 6 -Family Court Judge acting under Maintenance Act, which was ·:hen s. immediately, or hold a second show actual committal. In this regard then, if there was an error by the trial judge here, it was ironically an error in Mr. Lucas' favour, by permittin9 him order to pay Eight Hundred Dollars ($800.00). not been moot, I would have varied the trial judge's order, insofar as permitting Mr. Lucas immediate incarceration. These latter comments are however, committal order has been vacated by payment. In the interests of completeness file, I direct that the clerk of this Court shall arrange to have this decision transcrib·=d and submitted to the Family Court for filing. In these circumstances, given that certificate, I am not going to Normally however, it would be my though represented by Legal Aid, costs, to be retained by Legal Aid, to defray their costs in representing her in this caSE!. to costs. Halifax, Nova Scotia February lOth 1993 s. 43 of the Family 39 ( 1), must incarcerate cause hearing prior to time to comply with the Had the issue time to pay and ordered gratuitous, as the of the Family Court Mr. Lucas is on a make an order for costs. view that Mrs. Lucas, even would be entitled to her However, I make no order as \(:]" "~\ \:S::.__. ..... w..,;_ ~ '--J.
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