Pelham v. MacNeil, 2021 NSSC 251

SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: Pelham v. MacNeil , 2021 NSSC 251 Date: 2021-08-20 Docket: SFHMCA 105034 Registry: Halifax Between: Luke Pelham Applicant v. Laura MacNeil Respondent LIBRARY HEADING Judge: The Honourable Justice Elizabeth Jollimore Heard: By correspondence

Summary: Mr. Pelham moved to re-open a hearing after a written decision was released but where the order had not yet been finalized. His motion under Rule 82.22(2) was dismissed because he failed to address or satisfy the requirements of the Rule. Legislation: Civil Procedure Rules 78.04(3)(

c) and 82.22(2) THIS INFORMATION SHEET DOESN’T FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET . SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Pelham v. MacNeil, 2021 NSSC 251 ENDORSEMENT August 20, 2021 Luke Pelham v. Laura MacNeil 2017; SFH-MCA 105034 Peter J. Katsihtis for Mr. Pelham Margot Fulmer for Ms. MacNeil

Luke Pelham asks to re-open an application to vary child support, prospectively and retroactively, following my written decision in the application (reported at 2021 NSSC 190 ). Decision: Mr. Pelham has failed to satisfy any of the requirements of Rule 82.22(2), so I dismiss his request. Reasons: 1 . On May 28, 2021, I heard Ms. MacNeil’s application to vary child support. My written decision was sent to counsel on June 3, 2021. Ms. MacNeil’s lawyer prepared the order and sent it to Mr. Pelham’s lawyer the same day. Hearing no response from him, she sent the order to the court on June 22, 2021. Ms.

MacNeil wants the order endorsed and issued, under Rule 78.04(3)(c). 2 . Before I received the draft order on June 30, 2021, Mr. Pelham’s counsel wrote, advising that he was awaiting instructions on a possible motion to re-open the hearing under Rule 82.22(2). 3 . Mr. Pelham filed his motion to re-open the hearing on July 6, 2021. His motion included an affidavit, a brief and a draft order. 4 . Ms. MacNeil filed a brief, opposing the motion. She did not want to cross-examine Mr. Pelham or offer any evidence of her own. 5 . After a phone conference, Mr.

Pelham had the opportunity to file responding submissions, which he did on August 11, 2021. 6 . To succeed in his motion, Mr. Pelham must prove, on a balance of probabilities, that: a. the evidence discovered after my decision is such that it wasn’t previously capable of being discovered by the exercise of reasonable diligence; b. the new evidence is apparently credible; c. when examined with the complete record of the previous proceeding, the new evidence is such that it would be practically conclusive of the issue in Mr.

Pelham’s favour; and d. provided that, in a case of obvious and substantial injustice, if the second and third requirements are met, the necessity to prove due diligence, should not be applied as strictly. [1] 7 . These requirements are identified in Rule 82.22(2). According to Rule 82.22(2)(d), all these requirements must be met. 8 . Mr. Pelham’s evidence has not directly addressed any of the requirements of Rule 82.22(2). 9 . Mr. Pelham does not argue that this is a case of obvious and substantial injustice. 10 . In the affidavit in support of his motion to re-open, Mr.

Pelham said that 3 weeks after my decision was released, he learned he had been accepted into a gas technician training program at the Nova Scotia Community College. He said he would pay the program’s cost of $13,655 with student loan funds and that he was eligible to receive EI benefits while attending the program. He also summarized the income ranges for different jobs which had, as their base requirements, the training he’d complete. 11 . Mr. Pelham’s evidence at the May 28 hearing was that he had applied for this course and was on the waitlist. 12 . At the May 28 hearing, Mr.

Pelham estimated the hourly wage he’d earn was between $30 and $40. 13 . An hourly wage of $30 to $40 equates to an annual income in the range of $54,000 - $72,000 for someone working 37.5 hours each week, for 48 weeks each year. This is consistent with the income ranges Mr. Pelham quoted in the affidavit he filed in support of his motion to re-open. This is not new information. 14 . The amount of Mr. Pelham’s EI benefits was known at the May 28 hearing. This is not new information or information which was unavailable at the May 28 hearing. 15 . At the May 28 hearing Mr.

Pelham testified that he believed that EI would help out with his school costs, but that he hadn’t fully researched it. He has not said that this information was unavailable at the time of the May 28 hearing.

16 . Mr. Pelham has not explained why this information wasn’t previously capable of being discovered by the exercise of reasonable diligence. So, the requirement of Rule 82.22(2)(

a) is not satisfied. 17 . Since all requirements of Rule 82.22 must be met, Mr. Pelham’s motion fails. 18 . If Mr. Pelham had addressed the requirement of Rule 82.22(2)(a), his motion would still fail because the evidence he now offers (about his program’s cost, his student loan, and EI benefits), when examined with the complete record of the previous proceeding, is not such that it would be practically conclusive of the issue in Mr. Pelham’s favour. 19 . I imputed income to Mr. Pelham where I found that he was intentionally under-employed or unemployed, and this was not required by his children’s needs or his own reasonable educational or health needs, under clause 19(1) (

a) of the Child Maintenance Guidelines , NS Reg 53/98 . His educational needs are not reasonable. Directions: I have prepared the Order dismissing Mr. Pelham’s motion to re-open and it is enclosed. I have endorsed Ms. MacNeil’s order from the May 28 hearing. It, too, is enclosed. __________________________ ___ Elizabeth Jollimore, J.S.C.(F.D.)