Hurley v. Hurley, 2012 NSCA 32

This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 16 pages. NOVA SCOTIA COURT OF APPEAL Citation: Hurley v. Hurley , 2012 NSCA 32 Date: 20120327 Docket: 347786 Registry: Halifax Between: Mandy-Lynn Hurley (Campbell) Appellant v. Roger Hurley Respondent Judge: The Honourable Justice David P.S. Farrar Appeal Heard: January 19, 2012 Subject: Family Law. Spousal Support. Reasonable Apprehension of Bias. Trial Judge Improperly Intervening During Course of the Trial.

Summary: The appellant appeals alleging that the trial judge erred in failing to award her spousal support. She also argues that the trial judge improperly intervened during the course of the trial and that he had a pre-determined conclusion with respect to the ordering of spousal support. Issue: Did the trial judge err in the manner alleged by the appellant? Result: Appeal dismissed. The trial judge did not have a reasonable apprehension of bias with respect to the ordering of support nor did he improperly intervene during the course of counsel’s cross-examination of the respondent.

Finally, he did not err in exercising his discretion in failing to award spousal support. He found that although the appellant had a need, the respondent did not have the ability to pay. There was ample evidence before him to reach these conclusions and there was no basis for this Court to interfere. As the respondent did not file a factum and was not represented by counsel, no costs were awarded.

NOVA SCOTIA COURT OF APPEAL Citation: Hurley v. Hurley , 2012 NSCA 32 Date: 20120327 Docket: CA 347786 Registry: Halifax Between: Mandy-Lynn Hurley (Campbell) Appellant v. Roger Hurley Respondent Judges: Oland, Farrar and Bryson, JJ.A. Appeal Heard: January 19, 2012, in Halifax, Nova Scotia Held: Appeal dismissed per oral reasons for judgment of Farrar, J.A.; Oland and Bryson, JJ.A. concurring. Counsel: Joyce M. Ruck De Peza, for the appellant Respondent in person Reasons for judgment: [ 1 ] The appellant, Mandy-Lynn Hurley (Campbell) appeals the dismissal of her claim for spousal support.

She and the respondent, Roger Hurley, started living together in 1996. They were married on September 4, 1999, and separated on September 15, 2006. They do not have children together. [ 2 ] The appellant was diagnosed with manic depressive and bi-polar disorder in 1992 and, except for raking blueberries for four weeks, was unable to work during the marriage. After the parties separated she worked in retail for several months.

[3] Aside from income earned at these two jobs, disability payments have been her sole source of income since her relationshipwith the respondent began. She receives approximately $647.74 each month for an annual income of $7,770. [4] The respondent works as a dispatcher for Premium Ventures. The evidence at trial showed his income fluctuated. For thepurposes of his analysis, the trial judge estimated his income to be between $38,000 and $42,000 per year. [5] The respondent made a voluntary assignment in bankruptcy on June 11, 2009.

His first payment to the trustee in bankruptcy was due in July 31st, 2009, but he did not make that payment. Nevertheless, a Conditional Order of Discharge was issued on April 30,2010, requiring him to pay $3,450 in installments of $150 per month starting August 31, 2010. Again those payments were not made. InDecember, 2010, the respondent and the trustee in bankruptcy made an arrangement requiring him to make monthly payments of $150 tocommence January 31, 2011. It appears that these payments are being made.

The estimated date of his absolute discharge frombankruptcy is November 30, 2012. [6] The divorce trial took place before the Honourable Justice J.E. (Ted) Scanlan on February 3, 2011. At the conclusion of theevidence he gave an oral decision granting the divorce. He also ordered that there would be no further division of assets or matrimonialproperty between the parties and that there would be no spousal support payable by the respondent to the appellant. [7] The appellant appeals from the decision alleging that the trial judge erred in failing to award the appellant spousal support.

She also argues that the trial judge improperly intervened during the course of the trial and that he had a pre-determined conclusion withrespect to the ordering of the spousal support. [8] For the reasons that follow, I would dismiss the appeal without costs to either party. Issues [9] The appellant raises eight grounds of appeal. I would summarize the grounds of appeal and address them in the followingorder: 1. Whether the trial judge had a pre-determined conclusion with respect to the ordering of spousal support prior to hearing evidencefrom the parties; 2.

Whether the trial judge unnecessarily interrupted counsel for the respondent during cross-examination of the respondent; 3. Whether the trial judge erred in failing to order spousal support. [10] I will set out the standard of review when I address each issue. 1. Whether the trial judge had a pre-determined conclusion with respect to the ordering of spousal support prior to hearingevidence from the parties; [11] The appellant’s argument is, essentially, that the conduct of the trial judge gave rise to a reasonable apprehension of bias. [12] In Miglin v.

Miglin, 2003 SCC 24, the Supreme Court of Canada outlined the test for reasonable apprehension of a bias andadded a special caution for Family Court judges: 26 The appropriate test for reasonable apprehension of bias is well established. The test, as cited by Abella J.A., is whether a reasonableand informed person, with knowledge of all the relevant circumstances, viewing the matter realistically and practically, would concludethat the judge’s conduct gives rise to a reasonable apprehension of bias: R. v. S. (R.D.), (SCC), [1997] 3 S.C.R. 484, atpara. 111, per Cory J.; Committee for Justice and Liberty v.

National Energy Board, (SCC), [1978] 1 S.C.R. 369, at pp.394-95, per de Grandpré J. A finding of real or perceived bias requires more than the allegation. The onus rests with the person who isalleging its existence (S. (R.D.), at para. 114). As stated by Abella J.A., the assessment is difficult and requires a careful and thoroughexamination of the proceeding. The record must be considered in its entirety to determine the cumulative effect of any transgressions orimproprieties.

We see no reason to interfere with the Court of Appeal’s assessment of the record, nor with its conclusion that although thetrial judge’s comments were intemperate and his interventions at times impatient, they do not rise to the level necessary to establish areasonable apprehension of bias. 27 We wish to stress, however, how critical it is for trial judges to maintain at all times an appearance of impartiality and fairness whenpresiding over acrimonious matrimonial disputes. Trying as the conduct of the parties may be, trial judges must be alive to theemotionally charged nature of the proceedings.

Parties to litigation of this kind may feel particularly vulnerable and sensitive. Trialjudges should measure the wisdom of their interventions accordingly. [13] The issue is fundamentally one of trial fairness. The ultimate question is whether a reasonable person would think the trialjudge’s conduct demonstrated a pre-judgment of the issues and/or a bias against one of the parties such that the trial was unfair.

In thiscase, the question is whether a reasonable person would think the trial judge had pre-determined the spousal support issue against theappellant to such an extent that she did not receive a fair trial. [14] The appellant in her factum excerpts a lengthy discussion between her counsel and the trial judge prior to evidence being calledon the issue of spousal support.

[15] I will not reproduce the discussion, however, in

summary, it involves a discussion between the trial judge and the appellant’scounsel about the status of the respondent’s bankruptcy. The trial judge was inquiring of counsel whether they were challenging thebankruptcy proceedings. The trial judge correctly commented the bankruptcy was not an issue for him as it had already been determinedin another court. Ms. Hurley’s counsel clarified that she was not challenging the bankruptcy proceedings, but rather, was alleging therespondent was misleading the court on his statement of income and assets.

Once the matter was clarified the trial judge commented: … I think the only issue is going to be, you know, has he somehow misled the court on the issue of his income and assets.

And I’m notgoing to preclude you from doing that, because of the nature of the issues that you have before the court … [16] The appellant puts the issue as follows in her factum: It is respectfully submitted, that the Court had a prior misapprehension (sic) of bias with respect to the Respondent’s bankruptcyassignment, and thereby declined to order spousal maintenance. [17] From her factum and oral submission I take the appellant’s argument to be the trial judge had a preconceived notion that,because Mr. Hurley had made an assignment in bankruptcy, he was not required to pay spousal support.

With respect, I do not read thetrial judge’s comments that way. The trial judge was simply attempting to clarify with counsel that the appellant was not attacking thevalidity of the bankruptcy proceeding but instead was questioning whether he was being forthcoming about his true financial situation. The trial judge was clearly willing to permit the latter course of inquiry which is evident in the exchange set out above and one occurringright before the one reproduced in the factum: MS. RUCK DE PEZA: That’s correct, My Lord. It’s… We’re attacking his state, his financial situation. THE COURT: Well, that’s fine.

You can attack the financial situation and say he’s lied to the courts and that the order … MS. RUCKDE PEZA: Yes. [18] The appellant’s factum also leaves out the trial judge’s discussion with the respondent about the type of evidence he wasrequired to give. This was an attempt by the trial judge to give some assistance to a self-represented litigant. However, it is illustrativeof the trial judge focusing the parties on the issues for determination. The following exchange took place between the court and therespondent: THE COURT: Okay. Okay. Mr. Hurley, you are the petitioner.

You’re going to have to give evidence in support of both thedivorce, you’re going to have to give evidence in terms of your income. If I recall, Ms. De Peza was even challenging whether or notyou were living in a common law relationship. You were challenging whether Ms. Campbell was living in a common law relationship. If you’re trying to prove that she was, then you’ll have to give me evidence as to what you know in that regard. Obviously, nobodytrusts anybody on anything in this file, and I accept that as a given. Okay? MR. HURLEY: Yes, Your Honour.

THE COURT: So, there’s nothing that you, in terms of your income and your assets, that you shouldn’t discuss and give your evidenceon. You will go first. You’ll give your direct evidence, then you’ll be subject to cross-examination. Okay? And cross-examinationmeans that Ms.

Campbell’s lawyer can ask you questions. [19] The discussion, taken as a whole, demonstrates the trial judge was clearly open to receiving further evidence of the respondentmisleading the court on the matter of his bankruptcy, income and assets. [20] By his comments, the trial judge had obviously reviewed the information filed by both parties in the proceeding and wasmerely expressing his views on what he saw to be the issues to be resolved between the parties, one of them being Mr.

Hurley’s ability topay spousal support in light of his financial situation. [21] I am satisfied that a reasonably informed person, with knowledge of all of the relevant circumstances, viewing the matterrealistically and practically, would not consider that the judge’s conduct gave rise to a reasonable apprehension of bias (Miglin, supra,para. 26). [22] I would dismiss this ground of appeal. 2.

Whether the trial judge unnecessarily interrupted counsel for the respondent during cross-examination of the respondent [23] The leading case on interventions by a trial judge, in particular, interventions in examination of witnesses, is Majcenic v.Natale, (ON CA), [1968] 1 O.R. 189 (C.A.):

When a Judge intervenes in the examination or cross-examination of witnesses, to such an extent that he projects himself into the arena, he of necessity, adopts a position which is inimical to the interests of one or other of the litigants. His action, whether conscious or unconscious, no matter how well intentioned or motivated, creates an atmosphere which violates the principle that "justice not only be done, but appear to be done". Intervention amounting to interference in the conduct of a trial destroys the image of judicial impartiality and deprives the Court of jurisdiction.

The right to intervene is one of degree and there cannot be a precise line of demarcation but if it can be fairly said that it amounted to the usurpation of the function of counsel it is not permissible. [ 24 ] As with the test for reasonable apprehension of bias, the issue is one of trial fairness. [ 25 ] There are two aspects to the appellant’s oral and written arguments on the impugned interventions. First, the appellant says the trial judge’s intervention to prevent the respondent potentially disclosing solicitor-client communications impeded her counsel’s ability to cross-examine.

She also alleges the trial judge’s frequent interventions about the mortgage on the matrimonial home impeded her counsel’s cross-examination. [ 26 ] Regarding the first challenge, counsel’s question seemed to be targeting solicitor-client communications, particularly conversations the respondent may have had with his lawyer when preparing an affidavit. [ 27 ] The appellant, in her factum, quotes the following excerpts of the court’s discussions from the transcript: Court (i) “I don’t want … any more questions …” (ii) “…he may have misunderstood that … your question was pretty specific.” (iii) “Counsel, can I stop you for a second.” (iv) “… you may have a whole bunch of evidence that’s not before the court” (v) “… What are we fighting about here?” (vi) “Counsel, I don’t know if you’ve clued into this or not, in terms of the big picture …” MS.

RUCK DE PEZA : “My Lord, I have to take exception to those comments, clued in … I’m seriously cluing in.” (vii) “Just a second. In terms of the big picture, and I didn’t mean that in a personal way …” (viii) “But if you’re satisfied, as well, in terms of those debt figures, then I have a problem. Okay?” [ 28 ] With respect, the appellant has been selective in choosing to quote only parts of the discussion. As a result, the trial judge’s comments are taken out of context.

In order to add context to the discussion it is necessary to look at the exchange which preceded the impugned portions excerpted by the appellant and to complete those portions that have been excerpted. [ 29 ] The appellant’s counsel’s questioning started with: Q. Now, when you prepared the affidavit or had ... your lawyer was assisting, was there any reason why you did not mention at the time that you were having a difficulty with maintaining the payments on the bank, or was that something that happened after the fact? A. No. I never, ever mentioned it to her. It never got brought up. Q. Is it possible ...

THE COURT : I don’t .. I don’t want there to be any more questions that would require the witness to disclose his solicitor-client communications. MS. RUCK DE PEZA : No. That’s fine. THE COURT : Okay. And he may have misunderstood that, but I think your question was pretty specific. Okay? MS. RUCK DE PEZA : Okay. I’ll withdraw that. Thank you. THE COURT : Which would be improper if you’re asking about solicitor-client communications. MS. RUCK DE PEZA : I’m not trying to do that, My Lord.

I’ll rephrase my question, withdraw that question. [ 30 ] The trial judge was simply preventing counsel from asking questions which would require disclosure of solicitor-client privileged information. [ 31 ] In fact, the appellant’s counsel recognized that she may be asking questions that required disclosure of solicitor-client information and withdrew the question. [ 32 ] In light of the fact that the respondent was self-represented, it was appropriate for the trial judge to intervene at this point of the questioning to ensure the respondent did not give up the benefit of solicitor-client privilege.

Roscoe, J.A. in Family and Children’s Services of Cumberland County v. D.M.M. , 2006 NSCA 75 made it clear that if evidence is sought to be tendered in respect of which the self-represented litigant has a possible claim of privilege, the trial judge should inform the litigant of his rights. (¶ 26)

[ 33 ] I do not see any merit in the appellant’s argument that this intervention by the trial judge impeded her ability to cross-examine the respondent. [ 34 ] Regarding the second challenge, I have set out above the eight examples of where the appellant says the trial judge impeded “counsel’s ability to cross-examine the respondent” about the mortgage on the matrimonial home. As noted earlier, the appellant has taken several of the trial judge’s comments out of context. Secondly, counsel’s ability to cross-examine the respondent about the mortgage was not impeded.

The following are the excerpted portions of the transcript with my comments: (there is some repetition with the appellant’s first argument under this heading addressed above). (i) “I don’t want … any more questions …” [ 35 ] The trial judge actually says, “I don’t … I don’t want there to be any more questions that would require the witnesses to disclose his solicitor-client communications.” This intervention was entirely appropriate. (ii) “.. he may have misunderstood that … your question was pretty specific” [ 36 ] This comment was also part of the discussion regarding solicitor-client communications, and it was also appropriate in light of the respondent’s status as a self-represented litigant who may not have realized he did not have to provide privileged information. (iii) “Counsel, can I stop you for a second.” (iv) “…you may have a whole bunch of evidence that’s not before the court” (v) “…what are we fighting about here?” [ 37 ] The comments in (iii), (iv) and (

v) relate to the trial judge attempting to ensure the proper use of court resources. He pointed out that it did not appear that the parties had any assets to divide, only debts, so he wondered where counsel’s cross-examination was going in that respect. Again, these seem to be legitimate ‘interruptions’ to ensure the evidence sought to be adduced was relevant. Furthermore, the appellant’s counsel was able to put her position on the record and state why she was pursuing this line of inquiry: My lord, with all, respectfully, it is Ms. Campbell’s position that Mr.

Hurley unnecessarily perhaps purposefully defaulted on the mortgage.” [ 38 ] Again, I see no difficulty with the trial judge attempting to determine what was really in issue between the parties. Once the issue was clarified, counsel was allowed to proceed. (vi) “Counsel, I don’t know if you’ve clued into this or not, In terms of the big picture …” Ms. RUCK DE PEZA : “My lord, I have to take exception to those comments, clued in … I’m seriously clueing in.” (vii) “Just a second.

In terms of the big picture, and I didn’t mean that In a personal way …” [ 39 ] The trial judge made this comment after counsel explained to him that Ms. Hurley was alleging Mr. Hurley had purposely defaulted on the matrimonial home mortgage. He explicitly apologized for the “clued in” comment a few sentences later. [ 40 ] He later made the same “clued in” comment about himself: “I haven’t clued in and there’s something missing or we’re wasting time.” [ 41 ] The “big picture” being referred to by the trial judge was there were no assets, and only a significant amount of debt.

The trial judge was simply trying to understand what he was being requested to do. Although he may have chosen his words more carefully, his comments were, again, intended to focus counsel on the live issues. (vii) “But if you’re satisfied, as well, in terms of those debt figures, then I have a problem. Okay? [ 42 ] This comment comes at the end of another lengthy discussion by the trial judge questioning whether there was any property to divide and whether the respondent had the means to pay spousal support. However, the trial judge was open to receiving further evidence that could prove him wrong.

For example, he stated, “But if there’s something I’m missing here, or if there’s something in evidence that is going to come out and show a whole bunch more money or a whole bunch more assets, then by all means go for it.” [ 43 ] The comment in (viii) also was made after the trial judge said: “So, by all means, if it’s just that the light hasn’t come on for me, continue.” indicating to the appellant’s counsel that she could continue on with the line of questioning. [ 44 ] The appellant alleges the trial judge’s interruptions “greatly hindered” counsel’s ability to properly question the respondent regarding his knowledge of the state of the mortgage, and his decision to delay filing for bankruptcy until over two years later. [ 45 ] However, on a review of the transcript, it is clear that counsel asked the respondent about the mortgage payments and the trial judge did not intervene.

Counsel specifically asked the trial judge whether he would allow a certain line of questioning about the mortgage payments and he explicitly allowed her to do so. Similarly, she did not appear to be hindered in her ability to question the respondent about the bankruptcy. For example, she asked:

Q. Is it possible, Mr. Hurley, that you have been trying to use this whole … that you have filed for bankruptcy knowing that maybeyou might have to pay some support and you didn’t want to pay support for her? A. No, no. I just .. I got my wages garnished at work, so I had to file [for] bankruptcy. [46] There were no interventions from the trial judge either before or immediately after this question.

She also asked otherquestions about circumstances surrounding his bankruptcy without intervention. [47] Although the trial judge’s interventions may have been frequent, they were not improper and did not impede counsel’s ability tocross-examine the respondent on these two related issues. [48] I would also dismiss this ground of appeal. 3. Whether the trial judge erred in failing to order spousal support [49] The standard of review applicable in cases concerned with spousal support is well-known. The trial judge’s decision is entitledto deference.

Unless he has erred in principle, significantly misapprehended the evidence or made an award that is clearly wrong, wewill not interfere (Saunders v. Saunders, 2011 NSCA 81, para. 18). [50] The Supreme Court of Canada in Bracklow v. Bracklow, (SCC), [1999] 1 S.C.R. 420 held that the lawrecognizes three conceptual grounds regarding entitlement to spousal support: 1. compensatory; 2. contractual; and 3. non-compensatory. (para. 15) There is no contractual right to support in this case so the trial judge was only concerned with the non-compensatory and compensatory. I will address them separately.

Compensatory Support [51] The appellant in her factum argues that she is entitled to compensatory support: 29. … as she was unemployed during the marriage, with the exception of four weeks when she was seasonally employed. Incomparison the Respondent was employed for the duration of the relationship and received promotions and career advances as adispatcher for trucking companies. [52] She also emphasizes the uncontradicted evidence that she was responsible for the majority of the housekeeping during thecouple’s co-habitation. [53] The leading case on compensatory spousal support is Moge v.

Moge, (SCC), [1992] 3 S.C.R. 813. That case“is often described as finding the basis for spousal support to be one of compensating the receiving spouse for that spouse’s economicdisadvantage flowing from the marriage” (Mumford v. Mumford, 2008 NSSC 82, para. 59). The Supreme Court in Moge endorsedthe model of compensatory spousal support that would apply in cases where one spouse has sacrificed educational and/or careeropportunities to fulfill a more traditional marital role in the home.

To put it another way, one party’s economic disadvantage is causedby the roles assumed by the parties in the marriage. [54] Although the trial judge did not speak in terms of non-compensatory and compensatory spousal support, he found that hereconomically disadvantaged situation did not result from the role she adopted during the marriage but rather, from her disability. In hisoral decision he said: There was nothing during the marriage that contributed to her disability. The situation she finds herself in now, in terms of income, wasnot anything that was the result of what she did during the marriage.

In fact, they had no children. She did stay at home. She talkedabout cleaning house and having his meals ready, but then went on to explain that he only stayed home for an hour each day and then leftto go with his so-called friends. [55] The appellant did not give up any educational and/or career opportunities to stay home. She was already on disability when therelationship began. Child care was not an issue either. The trial judge was not satisfied on the evidence that the appellant was entitled tocompensatory support. [56] In denying spousal support on this basis the trial judge did not commit any error.

Non-Compensatory Support [57] Non-compensatory support was succinctly summarized in Shurson v. Shurson, 2008 NSSC 264 which held: [14] Non-compensatory support incorporates an analysis based upon need and ability to pay. If spouses have lived fully integratedlives, so that the marriage creates a pattern of dependence, the higher-income spouse is to be considered to have assumed financialresponsibility for the lower-income spouse. In such cases a court may award support to reflect the pattern of dependence created by the

marriage and to prevent hardship arising from marriage breakdown. [ 58 ] It is apparent from the trial judge’s decision that he would have ordered spousal support on a non-compensatory basis if he had found that the respondent had the means to pay. While the trial judge was skeptical about the appellant’s disability, he accepted that she was disabled.

He made the following comments in his reasons: … I simply say although she’s been declared incapacitated by Canada Pension, I’m not so sure that I’m convinced that there is no capacity to earn an income. … On the one hand, she’s saying she is totally disabled and needs the help; on the other hand, she was saying that they discussed, as a couple, the possibility of her going back to work, and seemed to imply, at least, that it was his fault she didn’t go back to work. But she can’t have her cake and eat it too.

She’s either disabled and can’t work or is not disabled and doesn’t qualify for CPP and should be out supporting herself or making the effort. The sense that I have is that … Clearly, she’s been declared disabled, gets the Canada Pension benefits, and would have a great deal of difficulty in working because of that disability, and she referred to bipolar and anxiety, as well. There’s no medical evidence, but Mr. Hurley doesn’t dispute that in any way, shape or form.

So I accept her disability and her condition. [ 59 ] Despite this skepticism he accepted her evidence about her disability and her condition. [ 60 ] He went on to find “But clearly, she has a need”. [ 61 ] Having found a need the trial judge turned his attention to the respondent’s ability to pay spousal support. His fundamental conclusion on the spousal support issue was that the respondent did not have the means to pay support, either pre or post- bankruptcy. He stated: … at the end of the day, he doesn’t have any excess money over and above the bare minimum from which to pay [spousal support] to Ms.

Campbell, even if she was entitled under any of the models … … I’m not satisfied that in any way, shape or form that Mr. Hurley has the current ability to pay spousal support, and, as such, I’m not prepared to order that he pay any spousal support. [ 62 ] The trial judge also expressed concerns about the respondent’s ability to maintain his employment in the future.

He continued: I have some serious concerns as to whether or not he’s going to be able to maintain his employment, if he stays with that employer, at the rate of $38,000 a year on a go forward basis, but certainly of the 38 to $42,000 a year he’s been earning, and certainly while he’s been living in the area where he is living now, he’s really not netting out near as much as he would think.

In other words, it’s not straight after-tax money that’s available to him to live; it’s after-tax money less those horrendous motor vehicle expenses of travelling back and forth to work. [ 63 ] There was ample evidence to support the trial judge’s conclusion and we cannot interfere. Conclusion [ 64 ] As a result, I would dismiss the appeal, however, in these circumstances, where Mr. Hurley was self-represented and did not file a factum, I would not award costs to either party. Farrar, J.A. Concurred in: Oland, J.A. Bryson, J.A.