2011 NBCA 17, 2011 NBCA 17

COURT OF APPEAL OF NEW BRUNSWICK 59-10-CA C.A.E. (Applicant) APPELLANT C.A.E. (Requérante) APPELANTE - and - - et - M.D. (Respondent) RESPONDENT M.D. (Intimé) INTIMÉ C.A.E. v. M.D., 2011 NBCA 17 C.A.E. c.

M.D., 2011 NBCA 17 CORAM: The Honourable Justice Deschênes The Honourable Justice Richard The Honourable Justice Quigg CORAM : L’honorable juge Deschênes L’honorable juge Richard L’honorable juge Quigg Appeal from an Order of the Court of Queen's Bench: March 17, 2010 Appel d’une ordonnance de la Cour du Banc de la Reine : Le 17 mars 2010 History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : Inédite Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : S.O.

Appeal heard: November 24, 2010 Appel entendu : Le 24 novembre 2010 Judgment rendered: March 3, 2011 Jugement rendu : Le 3 mars 2011

Reasons for judgment by: The Honourable Justice Quigg Motifs de jugement : L’honorable juge Quigg Concurred in by: The Honourable Justice Deschênes The Honourable Justice Richard Souscrivent aux motifs : L’honorable juge Deschênes L’honorable juge Richard Counsel at hearing: For the appellant: Monica L. Johnson For the respondent: Marylène Pilote Avocats à l’audience : Pour l’appelante : Monica L. Johnson Pour l’intimé : Marylène Pilote THE COURT The appeal is allowed with costs of $1,500. LA COUR Accueille l’appel avec dépens de 1 500 $. The judgment of the Court was delivered by QUIGG, J.A. I.

Introduction [ 1 ] This is an appeal from a decision of a judge of the Court of Queen’s Bench, Family Division, confirming, with variation, a provisional order from the Supreme Court of Nova Scotia, Family Division, pursuant to s. 19 of the Divorce Act , R.S.C. 1985, c. 3 (2nd Supp.). II. Background [ 2 ] The parties married on October 12, 1991, and separated on November 9, 1998. They executed a separation agreement on November 30, 1998, and an amending agreement on May 26, 2000, resolving all issues resulting from their separation.

The parties were divorced on July 18, 2000, and an order for corollary relief, including the terms of the agreements, was incorporated into the divorce order. The parties have two children who are currently 17 and 15 years of age. The children reside with the appellant mother in Stillwater Lake, Nova Scotia. The respondent father resides in Edmundston, N.B. He exercises access to the children approximately five times per year. [ 3 ] It is worth noting that, from 2002 to 2007, the respondent had not provided the appellant with copies of his annual income tax returns as required by the order for corollary relief.

Nevertheless, shortly before the hearing of the application, the respondent provided the appellant with his tax returns for 2002, 2003, 2004, and 2005. He did not, however, provide his 2006 income information. [ 4 ] On November 28, 2007, the appellant filed a variation application with the Supreme Court of Nova Scotia,

Family Division. The case proceeded provisionally, under ss. 17 and 18 of the Divorce Act , pursuant to which the appellant requested: (1) retroactive child support as of June 1, 2002; and (2) retroactive contribution to extraordinary expenses as of 2006. In January 2008, this request was amended to be retroactive to 2004. [ 5 ] The appellant appeared before Justice Douglas C. Campbell of the Supreme Court of Nova Scotia on March 14, 2008. The respondent was not provided with notice of this hearing and, therefore, was not present.

On April 2, 2008, Justice Campbell issued a provisional order pursuant to s. 18(2) of the Divorce Act . The order was then forwarded to the Court of Queen’s Bench, Family Division, in Edmundston via the Office of the Attorney General of New Brunswick. [ 6 ] The respondent filed his documents in response to the variation application and the provisional order in the Court of Queen’s Bench on May 7, 2009. His response included a claim of undue hardship pursuant to s. 10 of the Federal Child Support Guidelines , SOR/97-175, and a request for variation of his contribution to extraordinary expenses back to 2002.

The respondent also forwarded a complete copy of this information to the appellant by fax and courier on May 7, 2009. The hearing was set for May 14, 2009. [ 7 ] On May 13, 2009, the appellant forwarded a letter to the Court of Queen’s Bench of New Brunswick, Family Division, wherein she requested an opportunity to respond to the respondent’s claims, pursuant to s. 18(5) of the Divorce Act . On May 14, 2009, a judge of the Court of Queen’s Bench of New Brunswick, Family Division, adjourned the hearing to allow the appellant to respond . The appellant did not appear at this hearing.

The situation became particularly confusing when the judge ordered the appellant to produce information pursuant to s. 6(3) of the Interjurisdictional Support Orders Act ( ISO ), S.N.B. 2002, c. I-12.05. The ISO does not apply to variation of orders made pursuant to the Divorce Act . On July 2, 2009, the appellant filed a supplemental affidavit in compliance with the application judge’s order.

The judge did not remit the application to the Supreme Court of Nova Scotia for further evidence as envisioned by s. 18(5) of the Divorce Act. [ 8 ] On November 26, 2009, the respondent appeared before the application judge pursuant to s. 19(2) of the Divorce Act . The appellant did not appear. [ 9 ] On March 17, 2010, the application judge confirmed the provisional order which included the following variation of the support order: THE ORDER OF THE COURT IS AS FOLLOWS: 1. The Respondent is allowed to deduct from his income, his business portion of vehicle expenses and professional dues. 2.

The Respondent’s income from 2002 to 2008 is fixed as per the Divorce Mate Guideline Calculator [Divorcemate’s Chequemate Spousal Guidelines Calculator] prepared and filed by the Respondent and the Respondent’s income for 2009 is fixed as per the Respondent Financial Statement (Form 72J), and confirmed at: 2002 95 400,00$ 2003 83 148,00$ 2004 88 820,00$ 2005 115 164,00$ 2006 83 854,00$ 2007 85 477,00$ 2008 90 365,00$ 2009 90 400,00$ 3. The Respondent is successful in his claim made pursuant to

Section 10 of the Federal Child Support Guidelines , and as a remedy, the Court orders that the Respondent be allowed to deduct from his child support obligation, the amount of SIX HUNDRED DOLLARS (600,00$) per visitation right exercised, for a maximum of SEVEN (7) visits per year; 4. Child support payments shall be calculated from 2002 to 2009 according to the Respondent’s confirmed income as per table outlined in paragraph 2, and the New Brunswick Federal Child Support Tables.

5. After July 2nd 2005, the HUNDRED DOLLARS (100,00$) paid by the Respondent to the Applicant on a bi-weekly basisis considered child support payment. Therefore, the said amount shall be considered when calculating the child support overpaymentand/or child support due from July 2005 to 2009, as per

schedule enclosed and marked « B » to this order. 6. The Respondent overpaid his child support obligation to the Applicant by the sum of TWENTY EIGHT THOUSANDSEVEN HUNDRED AND NINETY-SIX DOLLARS (28 796,00$) in child support from January 2002 to December 2009, as per theschedule enclosed and marked « A » to this order. This amount is payable by the Applicant within SIX (6) months of the date of thisorder or may be paid by set-off. 7.

The Respondent will pay child support to the Applicant in the amount of FIVE-HUNDRED AND SEVENTY-ONEDOLLARS (571,00$) bi-weekly for two children, based on a yearly income of NINETY THOUSAND AND FOUR HUNDERED DOLLARS (90 400,00$) for 2009 and according to the New Brunswick Federal Child Support Tables, starting January 1st 2010, anduntil further order of the Court. 8.

The Respondent will provide the Applicant with a copy of his T-4 and appropriate schedules detailing business portion ofvehicle expenses for the preceding year, before or on the first day of June of each year and child support will be adjusted according to theNew Brunswick Federal Child Support Tables on the first day of June of each year, beginning June 2010. 9. With the exceptions of the items consented to by the Respondent as extraordinary expenses and outlined in

schedule «B » enclosed to this order, all other expenses submitted by the Applicant such as: School supplies, guide registration and uniform, dramaclasses, dance classes, skating lessons, Ringuette registration fees and purchase of equipment, summer camps, school trips, sewingclasses, saxophone rental and saxophone purchase, sharpening of skates, meals, hotels and tolls for hockey tournaments, do not constituteextraordinary expenses in light of the Federal child support guidelines and in accordance with the case law (Hines v. Hines 2004 NBQB349 , [2004] N.B.J. No. 373 and M.S. v. G.H. [2006] N.B.J. 375). 10.

The prorated share of each parent for the extraordinary expenses calculated according to the Respondent’s confirmed incomeand the Applicant’s Income from 2002 to 2009 are as follows: Applicant Income Applicant ProratedShare Respondent Income Respondent ProratedShare 2002 42 000,00$ 31% 95 400,00$ 69% 2003 42 000,00$ 34% 83 148,00$ 66% 2004 41 740,00$ 32% 88 820,00$ 68% 2005 46 884,00$ 29% 115 164,00$ 71% 2006 46 068,00$ 35% 83 854,00$ 65% 2007 49 649,00$ 37% 85 477,00$ 63% 2008 47 017,00$ 34% 90 365,00$ 66%

2009 47 017,00$ 34% 90 400,00$ 66% 11. The Respondent owes FIVE THOUSAND THREE HUNDRED THIRTY THREE DOLLARS AND THIRTY SIX CENT (5 333,36$) in extraordinary expenses from January 2002 to December 2009, as per the

schedule enclosed and marked « B » to this order. This amount is payable by the Respondent to the Applicant within SIX (6) months of the date of this order or may be paid by set-off . 12. Beginning January 1 st 2010, the Respondent prorated share of the extraordinary expenses is SIXTY-SIX PERCENT (66%) , and every extraordinary expense submitted by the Applicant as of January 1 st 2010, shall be reimbursed by the Respondent as such. 13. As of today, the Applicant and Respondent will discuss every extraordinary expense before incurring the expense. 14. The Applicant will submit a

summary of extraordinary expenses with receipts enclosed every THIRTY DAYS (30 DAYS) to the Respondent. 15. The Respondent will reimburse the Applicant his share of the extraordinary expenses within THIRTY DAYS (30 DAYS) of demand of payment and make. 16. Each party shall bear their own legal costs. III. Issues [ 10 ] The appellant’s written submission contains six grounds of appeal. The respondent agreed with the ground concerning the deduction of tax credits. The remaining grounds are:

(1) The judge made an error of law when he failed to record his reasons pursuant to section 10(6) of the Federal Child Support Guidelines ;

(2) The judge made an error of law and fact when he accepted the Respondent’s claim of undue hardship pursuant to

section 10 of the Federal Child Support Guidelines ;

(3) The judge made an error of law and fact when calculating the Respondent’s child support obligations, when he considered the $100 paid by the Respondent to the Appellant on a bi-weekly basis as of July 2, 2005, to be child support when calculating the Respondent’s child support obligations; […]

(5) In the alternative, the judge made an error of law when he accepted the Supplemental Affidavit of the Appellant as further evidence pursuant to subsection 18(5) of the Divorce Act ; and

(6) In the alternative, the judge made an error of law when he failed to provide written reasons for confirming the ProvisionalOrder with variation pursuant to section 19(12) of the Divorce Act. IV. Standard of Review [11] In P.R.H. v. M.E.L., 2009 NBCA 18, 343 N.B.R. (2d) 100, Larlee J.A. discusses the standard of reviewapplicable in family law cases: The appropriate standard of review to be applied in an appeal of this nature is discussed in Van de Perre v. Edwards, [2001] 2 S.C.R.1014, [2001] S.C.J. No. 60 (QL), 2001 SCC 60.

The Supreme Court of Canada set out a standard of considerable deference for thedecisions of trial courts in cases of family law. Intervention on appeal requires that there have been a material error, a seriousmisapprehension of the evidence, or an error of law. […] […] See this Court’s decisions on the application of the deferential standard: MacLean v. MacLean (2004), 274 N.B.R. (2d) 90, [2004]N.B.J. No. 363 (QL), 2004 NBCA 75 at para. 18; J.P. v. R.R. (2004), 278 N.B.R. (2d) 351, [2004] N.B.J. No. 467 (QL), 2004 NBCA 98at para. 27; Scott v. Scott (2004), 278 N.B.R. (2d) 61, [2004] N.B.J.

No. 468 (QL), 2004 NBCA 99 at para. 32 and Boudreau v. Brun(2005), 293 N.B.R. (2d) 126, [2005] N.B.J. No. 501 (QL), 2005 NBCA 106 at para. 5. [paras. 8-9] [Emphasis added.] [12] This is consistent with Richard J.A.’s comments in J.E.J. v. S.L.M., 2007 NBCA 33, 318 N.B.R. (2d) 119: I am mindful of the standard of review that governs appeals in custody, access and support matters, pursuant to which the decision infirst instance must be given considerable deference.

However, an appellate court is nevertheless empowered to set aside or vary adecision or order in these types of cases where it is the product of an error of law, an error in principle, a significant misapprehension ofthe evidence or if it is clearly wrong: see Hickey v. Hickey, (SCC), [1999] 2 S.C.R. 518, [1999] S.C.J. No. 9 (QL) atpara. 11 and Van de Perre v. Edwards, [2001] 2 S.C.R. 1014, [2001] S.C.J. No. 60 (QL), 2001 SCC 60. [para. 35] [13] In brief, no deference is owed to the application judge’s decision when reviewing a question of law, includingthe

interpretation of the Divorce Act and Federal Child Support Guidelines when determining whether a party is suffering unduehardship.

The judge did not provide any analysis or explanation for his conclusion that the respondent suffered “undue hardship” withinthe meaning of s. 10 of the Guidelines. [14] I am of the opinion the application judge made reversible errors when he: (1) failed to provide written reasonsfor confirming the provisional order with variation pursuant to s. 19(12) of the Divorce Act; and, (2) when he failed to record any reasonsfor determining the respondent suffered undue hardship pursuant to s. 10 of the Guidelines.

In my respectful opinion, the applicationjudge also erred in failing to remit the matter to the Nova Scotia Supreme Court for further evidence before disposing of it. V. Analysis and Statutory Framework [15] The case before us was commenced in Nova Scotia under ss. 18 and 19 of the Divorce Act. These provisionsallow a bifurcated process where former spouses, who now reside in different provinces, are able to file applications for variation ofexisting orders made pursuant to the Divorce Act in the province where they reside.

When the responding spouse does not attend orparticipate in the hearing of the application, the judge may make a provisional order. This provisional order must then be forwarded tothe province where the respondent resides, and the order is subject to confirmation, confirmation with variation, or refusal of

confirmation. The ISO Act does not apply to applications to vary support orders made pursuant to the Divorce Act. Those orders must bedealt with in accordance with the Divorce Act. The ISO Act only applies where an individual wishes to vary existing support ordersgranted under a provincial statute such as the Family Services Act, S.N.B. 1980, c. F-2.2. The process set out in ss. 18 and 19 of theDivorce Act is described in LeParque v. LeParque, 2005 NSCA 127, [2005] N.S.J. No. 388 (QL) as follows: […] It is a cumbersome, expensive and time consuming process, aptly described by Handrigan J. in Lynch v.

Lundrigan (2002), (NL SC), 215 Nfld. & P.E.I.R. 62; [2002] N.J. No. 185 (Q.L.)(S.C., U.F.C.), aff'd (2004), 2004 NLCA 35 , 237Nfld. & P.E.I.R. 304; [2004] N.J. No. 195 (Q.L.)(C.A.) as "awkward and ungainly" but "structured to ensure that each party has theopportunity to be fully heard before a final determination is made" (at para. 30). [para. 5] [16] The provisions of s. 19 of the Divorce Act that describe the process to be followed in the receiving jurisdictionare as follows: Procedure 19.

(2) Subject to subsection (3), wheredocuments have been sent to a court pursuantto subsection (1), the court shall serve on therespondent a copy of the documents and anotice of a hearing respecting confirmation ofthe provisional order and shall proceed withthe hearing, in the absence of the applicant,taking into consideration the certified orsworn document setting out or summarizingthe evidence given to the court that made theprovisional order. […] Right of respondent

(5) In a proceeding under this section, therespondent may raise any matter that mighthave been raised before the court that madethe provisional order. Further evidence

(6) Where, in a proceeding under this section,the respondent satisfies the court that for thepurpose of taking further evidence or for anyother purpose it is necessary to remit thematter back to the court that made theprovisional order, the court may so remit thematter and adjourn the proceeding for thatpurpose. Order of confirmation or refusal Procédure de confirmation del’ordonnance conditionnelle 19.

(2) Sous réserve du paragraphe (3), surréception des documents visés au paragraphe(1), le tribunal en signifie au défendeur unecopie et un avis l’informant qu’il va êtreprocédé à l’instruction de l’affaire concernantla confirmation de l’ordonnanceconditionnelle et procède à l’instruction, enl’absence du demandeur, en tenant compte dudocument certifié conforme ou attesté sousserment où sont énoncés ou résumés leséléments de preuve présentés devant letribunal qui a rendu l’ordonnanceconditionnelle. […] Droit du défendeur

(5) Dans le cadre de la procédure prévue auprésent article, le défendeur peut soulevertout point qui aurait pu l’être devant letribunal qui a rendu l’ordonnanceconditionnelle. Complément de preuve

(6) Lorsque le défendeur démontre autribunal que le renvoi de l’affaire au tribunalqui a rendu l’ordonnance conditionnelles’impose pour faire recueillir tout élémentsupplémentaire de preuve ou à toute autre fin,le tribunal peut renvoyer l’affaire enconséquence et suspendre la procédure à cettefin. Issue de la procédure

(7) Subject to subsection (7.1), at the conclusion of a proceeding under this section, the court shall make an order (

a) confirming the provisional order without variation; (

b) confirming the provisional order with variation; or (

c) refusing confirmation of the provisional order. […] Further evidence

(8) The court, before making an order confirming the provisional order with variation or an order refusing confirmation of the provisional order, shall decide whether to remit the matter back for further evidence to the court that made the provisional order. […] Interim order for support of spouse

(9.1) Where a court remits a matter pursuant to this

section in relation to a spousal support order, the court may make an interim order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse, pending the making of an order under subsection (7). Terms and conditions

(10) The court may make an order under subsection (9) or (9.1) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it

(7) À l’issue de la procédure prévue au présent article, le tribunal rend, sous réserve du paragraphe (7.1), une ordonnance :

a) soit pour confirmer l’ordonnance conditionnelle sans la modifier;

b) soit pour la confirmer en la modifiant;

c) soit pour refuser de la confirmer. […] Complément de preuve

(8) Avant de rendre une ordonnance qui confirme l’ordonnance conditionnelle en la modifiant ou qui refuse de la confirmer, le tribunal décide s’il renvoie l’affaire devant le tribunal qui a rendu l’ordonnance conditionnelle pour qu’il recueille des éléments de preuve supplémentaires. […] Ordonnance alimentaire provisoire au profit d’un époux

(9.1) Le tribunal qui renvoie une affaire relative à une ordonnance alimentaire au profit d’un époux peut, avant de rendre l’ordonnance prévue au paragraphe (7), rendre une ordonnance provisoire enjoignant à un époux de garantir ou de verser, ou de garantir et de verser, la prestation, sous forme de capital, de pension ou des deux, qu’il estime raisonnable pour les aliments de l’autre époux. Modalités de l’ordonnance

(10) La durée de validité de l’ordonnance rendue par le tribunal au

titre des paragraphes (9) ou (9.1) peut être déterminée ou indéterminée ou dépendre d’un événement précis; l’ordonnance peut être assujettie aux modalités ou aux restrictions que le tribunal estime justes et appropriées.

thinks fit and just. This process is meant to ensure that both parties have a full opportunity to be heard before the final order is made. This was not the process followed in the case before us. I will now address the issues raised by the appellant. A.

Undue Hardship Claim – s. 10 of the Federal Child Support Guidelines [ 17 ] The appellant submits the application judge erred in law when he failed to record his reasons for undue hardship pursuant to s. 10(6) of the Guidelines which reads as follows: Where the court makes a child support order in a different amount under this section, it must record its reasons for doing so. [Emphasis added.] In the case before us, the trial judge deviated from the Guidelines as a result of his finding of undue hardship. It follows that he erred in law when he did not support this deviation with recorded reasons. B.

Section 19(12) of the Divorce Act [ 18 ] The appellant also submits the judge made an error of law when he failed to provide written reasons for confirming the provisional order with variation, pursuant to s. 19(12) of the Divorce Act , which states:

Report and filing

(12) On making an order under subsection (7), the court in a province shall (

a) send a copy of the order, certified by a judge or officer of the court, to the Attorney General for that province, to the court that made the provisional order and, where that court is not the court that made the support order in respect of which the provisional order was made, to the court that made the support order; (

b) where an order is made confirming the provisional order with or without variation, file the order in the court; and (

c) where an order is made confirming the provisional order with variation or refusing confirmation of the provisional order, give written reasons to the Attorney General for that province and to the court that made the provisional order. [Emphasis added] Rapport et dépôt

(12) En rendant l’ordonnance visée au paragraphe (7), le tribunal d’une province :

a) transmet au procureur général de cette province, au tribunal qui a rendu l’ordonnance conditionnelle ainsi qu’au tribunal qui a rendu l’ordonnance alimentaire, dans le cas où ce dernier n’est pas le même que celui qui a rendu l’ordonnance conditionnelle qui s’y rattache, une copie certifiée conforme de l’ordonnance par un juge ou un fonctionnaire du tribunal;

b) ouvre un dossier sur l’ordonnance dans le cas où celle-ci confirme l’ordonnance conditionnelle avec ou sans modification;

c) fait parvenir ses motifs par écrit au tribunal qui a rendu l’ordonnance conditionnelle ainsi qu’au procureur général de cette province, dans le cas où il rend une ordonnance qui confirme l’ordonnance conditionnelle avec modification ou qui refuse de la confirmer. [C’est moi qui souligne] Thus, a judge who confirms a provisional order with variation must give written reasons to the Attorney General for that province and to the court that made the provisional order. Again, this was not done in the case before us, and as such, an error of law results. C.

Section 18(5) of the Divorce Act [ 19 ] A further error of law alleged by the appellant was the judge’s treatment of her supplemental affidavit as “further evidence” within the meaning of s. 18(5) of the Divorce Act : Further evidence 18.

(5) Where, during a proceeding under

section 19 , a court in a province remits the matter back for further evidence to the court that made the provisional order, the court that made the order shall, after giving notice to the applicant, receive further evidence. Complément de preuve 18.

(5) Le tribunal qui a rendu l’ordonnance conditionnelle est tenu, après notification au demandeur, de recueillir des éléments de preuve supplémentaires lorsque le tribunal saisi de la procédure prévue à l’article 19 lui renvoie l’affaire à cette fin.

[ 20 ] Pursuant to s. 19(5) of the Divorce Act , the respondent could raise any issue that might have been raised before the judge in Nova Scotia. When the respondent raised the issue of undue hardship, the appellant requested the opportunity to respond to it pursuant to s. 18(5) of the Divorce Act . [ 21 ] Before making an order confirming the provisional order, with variation, the judge had to decide whether to remit the application to Nova Scotia. He did not do so.

Instead, he ordered the appellant to provide further information pursuant to provisions of the ISO Act , an Act that has no application to orders pursuant to the Divorce Act . [ 22 ] The ISO Act does not apply to the case at bar, despite the fact that the respondent received the ISO forms in a package from the Provincial Government, when he received notice of the provisional order. The respondent filed forms pursuant to

Part I of the ISO Act . The ISO Act specifically states

Part I only applies to claims where no support order exists.

Part II applies solely to the registration and enforcement of orders made outside of New Brunswick, and

Part III applies to support orders not made pursuant to the Divorce Act . [ 23 ] A review of the record reveals the judge accepted the appellant’s supplemental affidavit as her response pursuant to s. 18(5) of the Divorce Act . It is the appellant’s position, however, that her affidavit was merely filed in order to comply with the judge’s order to provide further information, pursuant to s. 6(3) of the ISO Act . It was not intended to be a complete response to the respondent’s claim of undue hardship or to replace her opportunity to give evidence in a Nova Scotia court.

In fact, the appellant was responding to questions specifically framed by the judge, pursuant to his order dated May 14, 2009. As a result, the appellant was not given the opportunity to address the issue of undue hardship from her perspective in the proper forum. [ 24 ] Under s. 19(8), it was within the judge’s discretion not to remit the case to the Nova Scotia Court for receipt of “further evidence”. In this case, however, the New Brunswick Court should have considered the remittal option, as contemplated by ss. 18(5) and 19(8) of the Divorce Act .

Had the judge done so, the appellant could have properly replied to the respondent’s claims for retroactivity and undue hardship. [ 25 ] In Koval v. Brinton, 2010 NSCA 78 , [2010] N.S.J. No. 520 (QL), a judge of the Nova Scotia Supreme Court, Family Division, refused to confirm a provisional order of the Court Of Queen’s Bench of New Brunswick, Family Division. Instead, the Nova Scotia judge chose to vary the order.

This relieved the father from making future contributions to s. 7 expenses for his children, by virtue of the substantial costs he expended in exercising access. [ 26 ] The mother appealed and sought to introduce fresh evidence, complaining the judge’s variation order resulted from an error in law and the improper exercise of discretion. She argued the file sent to Nova Scotia by the Court in New Brunswick was deficient as it did not include a transcript of the provisional hearing.

The mother submitted that the trial judge in Nova Scotia ought to have remitted the application to New Brunswick for further evidence. [ 27 ] The Nova Scotia Court of Appeal dismissed the mother’s appeal. It found that, in the unique circumstances of the case, fresh evidence could be accepted to complete the record and provide a full understanding of the proceedings in both provinces. The Court determined the materials forwarded by the New Brunswick Court, together with the recitals in the provisional order were sufficient to satisfy the requirements of s. 18(3) of the Divorce Act .

The Court of Appeal found the trial judge neither erred in law nor in the exercise of his discretion in refusing to confirm the provisional order and in varying it. The Court found the variation order provided a practical and fair solution which met the needs of the children and the means of the parents. Moreover, the Court of Appeal did not find any error in the judge’s decision not to remit to the New Brunswick Court for receipt of further evidence.

I agree that s. 18(5) indicates that any decision to remit is entirely within the discretion of the confirming court, as long as the confirming court has sufficient evidence to allow it to make a proper decision. Finally, the Court of Appeal determined that, although there were “evidentiary gaps”, the confirming judge was “confident that he had sufficient evidence before him to craft a fair and sensible solution” and it was “not prepared to second guess him on that finding” (para.59). [ 28 ] The case before us is easily distinguished from Koval v. Brinton .

First, I cannot say the judge had sufficient evidence before him to “craft a fair and sensible solution”. The sole evidence the judge had before him regarding undue hardship and retroactivity of support was an affidavit that contained the mother’s responses to specific questions asked by the judge. She was not afforded an opportunity to reply on the issues in play in a meaningful way. Second, Koval v . Brinton can further be distinguished on the basis that the order did not operate retroactively (see para. 67). Finally, the underlying proceedings have severe ramifications.

Let me explain. [ 29 ] The process to obtain provisional orders is structured to ensure the parties have the opportunity to be fully

heard before a final determination is made. In this appeal, the respondent put forth a case to be met regarding undue hardship and retroactivity, but the appellant was deprived of a reasonable opportunity to respond to the respondent’s claims. Failure to provide each party with the opportunity to be fully heard constitutes an error in law. [ 30 ] In the circumstances, the issues contained in the remaining grounds of appeal are best left to be addressed by an application judge after the appellant has been afforded the opportunity to make a full reply. VI.

Disposition [ 31 ] For the above reasons, I would allow the appeal and set aside the application judge’s order. During the hearing, the parties advised they intended to have the application heard in New Brunswick with both parties present and represented by counsel. In the result, I would remit the matter to the Court of Queen’s Bench of New Brunswick, Family Division, for a full and proper hearing. I would order the respondent to pay costs on appeal of $1,500. _______________________________ KATHLEEN A. QUIGG, J.A.

WE CONCUR: ________________________________ ALEXANDRE DESCHÊNES, J.A. ________________________________ J.C. MARC RICHARD, J.A.