SYDNEY, N.S. — A Cape Breton father of four, who spent more money in one year at the liquor store and dog sitting services than on child support, has been denied an appeal that he pay nearly $100,000 in outstanding support payments.
The ruling was made by the Nova Scotia Court of Appeal in Halifax that heard the application in March and released a copy of the written reasons earlier this week.
The Cape Breton Post has decided not to name the man in a bid to protect the identity of his four children.
The man and his wife were divorced in 2005 and there was a court order in place mandating the father pay child support for his children.
In 2014, the father applied to family division of the Nova Scotia Supreme Court to lower the amount of support and to recalculate the amount he was in arrears. The mother also filed her own application to vary the amount.
“For reasons not apparent from the record before us, the applications were not scheduled to be heard until June 11, 2018,” said Justice Cindy Bourgeois, in writing the unanimous decision for the three-member panel of the court.
While the mother came to the hearing prepared to proceed, the father came seeking an adjournment having failed to file his financial information for the two previous years and was unable to secure one witness to be in attendance.
The presiding judge, Justice Lee Ann MacLeod-Archer, granted the adjournment but tagged the father with $1,000 in court costs which she ordered be paid before the hearing proceeded on Oct. 1, 2018.
The October hearing was also adjourned because the father’s lawyer was ill. The father had still not paid the $1,000 in costs.
The hearing was rescheduled for Dec. 21, 2018.
Again, the mother appeared in court ready to proceed but the father appeared without his lawyer and still hadn’t paid the previously ordered court costs.
Archer-MacLeod told the father the hearing was going to proceed but his failure to abide by the court order meant she would not let him call evidence but he could cross-examine the mother’s witnesses.
The father decided to leave the hearing which proceeded with only the mother.
Archer-MacLeod ruled in favour of the mother and ordered the father to pay $99,525.49 in arrears at a rate of $750 per month.
In her decision, the judge referred to the mother’s affidavit which detailed the history of collection and enforcement efforts made by the Maintenance Enforcement Program to get the father to pay.
The father would make arrangements to pay — usually to have a garnishee lifted — but would then fail to make the payments.
The mother testified her former husband had quit several jobs through the years after the enforcement agency caught up with him.
Further, it was noted by the court that the father spent $1,807.35 at the Nova Scotia Liquor Corp. in one year which was more than he paid in child support. He also paid more for a sitter for his dog than in making payments for his children.
The father appealed the ruling to the appeal court arguing the judge erred because she did not have jurisdiction to prevent him from calling evidence because he failed to pay the cost order. Further, he claimed to have filed numerous affidavits that satisfied all disclosure obligations.
In the decision of the court, Bourgeois said both complaints were easily dismissed.
She said it was “categorically incorrect” to suggest the trial judge lack jurisdiction, referring to civil procedure rules giving the judge inherent jurisdiction over process. Also, the appeal court said the father made no attempt to apply for relief of the cost order during the six months between the issuing of the order and the hearing.
When it came to the father’s argument that he met all of his disclosure obligations, Bourgeois said “in my view, a novel argument” and dismissed the second claim.
“It was entirely reasonable, in light of the father’s failure to follow the direction of the court with respect to costs and making complete financial disclosure (notably his most recent income), for the trial judge to prohibit him from presenting viva voce evidence at the hearing,” said Bourgeois.
She said to do otherwise would have placed the mother at a disadvantage and given the father a tactical advantage.
The appeal court ordered the father to pay an additional $2,000 in costs to the mother.
