Moore v. Darlington, 2011 NSCA 101

NOVA SCOTIA COURT OF APPEAL Citation: Moore v. Darlington , 2011 NSCA 101 Date: 20111109 Docket: CA 350840 Registry: Halifax Between: David Moore Appellant v. Michelle Darlington Respondent Judge: The Honourable Mr. Justice Jamie W.S. Saunders Motions Heard: November 3, 2011, in Halifax, Nova Scotia, in Chambers Held: Appellant’s motion to fix dates granted; respondent’s motion to strike appeal denied; and appellant’s motion for a stay dismissed. Counsel: Appellant in person Peter D.

Crowther and Bry en Hebert, for the respondent Decision : [ 1 ] This case came before me in Chambers on November 3rd as a motion by the appellant to set the matter down for appeal, and obtain a stay in the interim. [ 2 ] At the conclusion of the hearing I indicated that the appellant’s motion to fix dates was granted and that the following

schedule was ordered: Appeal Book - to be filed on or before December 31, 2011 Appellant’s Factum - to be filed on or before January 20, 2012

Respondent’s Factum - to be filed on or before February 13, 2012 Appeal hearing - Thursday, March 29, 2012 at 10:00 a.m. (half day). [ 3 ] I said the respondent’s motion to strike out the appeal summarily on the basis that the appellant’s motions were out of time, was denied, but without costs. [ 4 ] I said that I would reserve judgment on the appellant’s’ motion for a stay and file written reasons in due course. These are my reasons. [ 5 ] To provide context, I will give a very brief description of the background surrounding this dispute.

A much more detailed history of the litigation can be found in Justice Mona Lynch’s decision which is the subject of this appeal and is now reported at 2011 NSSC 152 . [ 6 ] The parties met in 1989, started living together in 1990, and separated in 2009. They never married but presented themselves to the public as a married couple, with the respondent often referred to as “Mrs. Moore” in documents such as cheques and by school officials. [ 7 ] The couple had two children, a daughter born in 1992 and a son born in 1993. Ms. Darlington continued to work as a registered nurse, while Mr.

Moore served as a member of the Royal Canadian Mounted Police. [ 8 ] The appellant registered a company under the name of Sand, Surf & Sea which purchased and operated a restaurant. The respondent ran the restaurant and the appellant worked at the business whenever he was not otherwise employed as a police officer. [ 9 ] The restaurant was extensively damaged by fire in 2003. Government officials would not allow the establishment to be rebuilt on the same lot.

The company continued to operate, carrying on a business of buying and selling automobiles, and residential properties on the speculative real estate market. [ 10 ] After the restaurant burned, Ms. Darlington worked at various jobs. She is currently employed as a commission salesperson in a furniture store. [ 11 ] The appellant has been on stress leave from the RCMP and continues to receive income from the force, as well as Veterans Affairs and the company. [ 12 ] A host of interim applications, orders, pre-trial conferences and filing deadlines were logged throughout 2010.

Their chronology is described by Justice Lynch in her decision. [ 13 ] Following an interim hearing held April 22, 2010, the appellant was obliged to pay child maintenance of $1,441. per month, and spousal support of $900. per month. [ 14 ] The final disposition hearing began March 28, 2011. It lasted three days. Things did not go smoothly. As Lynch, J. observed: [32] When court opened on Monday, March 28, 2011 counsel for the mother was asked how the mother wished to proceed. Because of the mistake in the date in the father's letter it was not clear whether he intended to be in court on Tuesday or Wednesday.

Counsel for the father had written to counsel for the mother late on Friday, March 25, 2011 asking to have two experts available for cross-examination.

Counsel for the mother was not aware the father would not be present on March 28, 2011. [33] The trial commenced on March 28, 2011 and evidence was heard from the mother in the morning and the appraiser for the jointly held home in the afternoon. [34] On Tuesday, March 29, 2011 the father appeared and indicated that he had not been present the day before as he was in Provincial Court on a personal

Summary Offence Ticket. He was unsure when he received the

Summary Offence Ticket or when the trial date was set. The father indicated that he wanted counsel and did not want to participate in the proceeding without counsel. He indicated he had no questions for the doctor who was present to give testimony. The mother concluded her case and the father was asked if he wanted the court to consider anything that he had filed. The father indicated that he wanted counsel. [35] Counsel for the mother wanted to ask the father questions on cross-examination and the father took the stand and was sworn in.

The father refused to answer any questions without counsel, despite being directed to answer by the court and being warned that he could be found in contempt. The matter of the father's contempt was put over to another date to allow the father to obtain counsel. [36] The trial was set over until Wednesday, March 30, 2011 for submissions. On Wednesday, March 30, 2011 the father filed a Notice of Intention to Act on One's Own. The father was provided information the court had received regarding his

Summary Offence Ticket being issued on August 28, 2010 and the trial date in Provincial Court having been scheduled on October 29, 2010. A partial transcript of the Provincial Court hearing was provided to the father and counsel for the mother. The father took the stand but again refused to answer questions from the court or counsel for the mother. [37] Counsel for the mother made an ex parte motion for a preservation order for assets of the company and assets of the father.

The father made some submissions in relation to the preservation order and a preservation order was granted. [38] Counsel for the mother made closing submissions and the father provided some limited submissions. The father did not return to the court after an afternoon break.

The matter was adjourned for decision. ... [50] Given the concerns over the father's credibility, his lack of disclosure, his refusal to answer questions about any subject and his failure to ask any questions of the mother or her witnesses, I disregard the father's evidence and accept the uncontradicted evidence of the mother in relation to all issues. [ 15 ] Justice Lynch issued an Interim Preservation Order on April 12, 2011, obliging the appellant to preserve and leave unencumbered real property in his name, or in the name of Sand, Surf & Sea Limited more particularly described as: (a) 9564 St.

Margaret’s Bay Road, Queensland, Nova Scotia; and (b) 139 Tantallon Crescent, Upper Tantallon, Nova Scotia, Lot 26A. [ 16 ] After considering the evidence presented during the three day hearing, Lynch, J. filed lengthy and comprehensive reasons for judgment on April 18. She imputed annual income to the appellant of $189,475. She ordered an equal division of various properties as well as the appellant’s RCMP pension and the parties’ RRSPs. She ordered continuing child support in the amount of $2,355 per month and fixed arrears in child support at close to $17,000.

She also ordered that the appellant provide ongoing spousal support in the amount of $3,000 per month and fixed arrears in spousal support of $36,300. Separate orders were issued on June 8, 2011, giving effect to Justice Lynch’s directions. [ 17 ] Mr. Moore filed a notice of appeal on June 15. He lists the following grounds:

1. The trial judge erred in failing to grant the Appellant’s continued request for an adjournment to obtain legal counsel to assist in the presentation of his case. 2. The trial judge erred in disallowing the Appellant to present documentary evidence to the Court in support of his case. 3. The trial judge erred in failing to take into account the nature of the disabilities from which the Appellant suffers and was receiving disability income, namely a hearing impairment, and post-traumatic stress disorder which further impacted the Appellant’s ability to participate in the trial. 4.

The trial judge erred in incorrectly calculating Mr. Moore’s income upon which to accurately calculate his ability to pay both child and spousal support. 5. The trial judge erred in failing to account or discount for business assets and liabilities when calculating the equalization payment required for the purposes of division of joint property. 6. The trial judge erred in failing to discount the value of assets for pre-cohabitation contributions. 7. The trial judge erred in failing to assess the Respondent’s contributions, if any, when ordering to divide the Appellant’s pension.

He asks that the appeal be allowed, the judgment set aside, and a new trial ordered. [ 18 ] On October 25 the appellant filed a Notice of Motion for Dates and Directions and a Certificate of Readiness indicating that a transcript of the proceedings is complete and that he anticipates being able to file his appeal book not later than December 31, 2011. [ 19 ] On the same day the appellant also filed a Notice of Motion seeking a stay of the lower court decision pending appeal. [ 20 ] The respondent strongly opposes the appellant’s motions.

First, she says the appeal should be dismissed summarily because the appellant was late in filing.

Second, she says the appellant’s motion for a stay should be denied as it fails to meet any of the established criteria for such relief. [ 21 ] I will deal first with the respondent’s complaint that the appellant’s motions are out of time under the Rules and on that basis alone his appeal ought to be struck. [ 22 ] After filing his notice of appeal on June 15, the appellant received a letter from the Registrar dated June 22 acknowledging the filing and giving him explicit instructions as to what he was obliged to do, and when.

Her letter read in part: As the self represented Appellant, it is your responsibility to bring a Chambers motion to set the date for the hearing of the Appeal and to obtain directions regarding the appeal. The motion may be in person on Thursdays at 10:00 a.m. or by telephone at a pre-arranged time on Wednesdays. The telephone conference must be arranged through the Deputy Registrar, who can be reached at (902) 424-6937. You must also ensure that a stand alone Notice of Motion is filed no less than four (4) days before the motion hearing date.

There is no prescribed form for the Notion of Motion, however I have prepared one which is accessible on the courts’ website at: www.courts.ns.ca/appeals/ca_forms_2009/nsca_setting_down_motion_09_01.wpd

A Chambers motion to have the appeal set down cannot be heard until such time as the Certificate of Readiness on Form 90.26 is filed with the court. Please note that the certificate must also be filed no less than four (4) hours before the motion hearing date ( Rule 90.26(1) ). This motion to have the appeal set down for hearing must be brought within eighty (80) days from the date of filing the Notice of Appeal. The time period within which you must bring the Notice of Motion to set the matter down for hearing commenced to run on June 15, 2011.

That means that you must file the Notice of Motion no later than October 12, 2011. If the motion is not done within this time, I as the Registrar, will make a motion pursuant to Civil Procedure Rule 90.43(4) on five (5) days notice to have the appeal dismissed for non-compliance with the Rules . (Underlining mine) [ 23 ] Thus the appellant knew, or ought to have known, that he was obliged to file no later than October 12. He did not file his motions until October 25.

He was thirteen days late. [ 24 ] No explanation has been given by the appellant for his failure to comply with the Rules . [ 25 ] It goes without saying that any party who fails to satisfy clearly worded procedural requirements under the Rules and risks having his or her appeal struck out as a consequence, will be held to account and expected to file an affidavit or provide the Court with an explanation for the delay before asking the Court to exercise its discretion in permitting proceedings to continue. [ 26 ] While I am not prepared to accede to the respondent’s request that I summarily strike out the appeal on account of the appellant’s failure to meet the time requirements under the Rules , I would not want my disinclination to signal that such temporal limits are some how honoured in the breach or not given the importance they deserve. [ 27 ] The appellant was 13 days late in his filings.

He could not have mistaken the Registrar’s clear instructions. He was out of time on October 12th. He got around to filing his documents on October 25th. [ 28 ] Compounding the problem is the fact that the appellant chose not to file an affidavit, or offer any explanations when he appeared before me in Chambers, seeking to justify or at the very least provide a reason for his non-compliance. [ 29 ] Despite such irregularities, I am prepared to address the appellant’s motions on their merits for three reasons.

First, the appellant is a self-represented litigant which may account for his inexperience in initiating proceedings on appeal. Second, his “initial” affidavit was sworn June 2, and the first item attached to that affidavit as an “exhibit” is his two-page letter headed “A Stay of Execution Order is requested in this case SFHMCA-068167 decision” which would suggest that he was intent on bringing a motion for a stay shortly after the trial judge’s reasons and confirmatory orders were filed, and well within the time limits prescribed by the Rules . Third, no one was inconvenienced by the appellant’s tardiness.

The respondent and her counsel were obviously well prepared in opposing the appellant’s request for a stay, and there is nothing to indicate that they were in any way prejudiced by his 13-day (unexplained) delay in filing his motion(s). [ 30 ] I will now address the appellant’s motion for a stay of proceedings, on the merits. [ 31 ] In support of his motion the appellant filed a “package” of materials, approximately one inch thick with a table of contents and some 18 tabs separating the pages.

Included within the package, at Tab 16, is the appellant’s purported “affidavit” which is actually a photocopy of a single page dated June 2, 2011, apparently sworn by the appellant personally on that date before “BONNIE MACMULLIN, A Commissioner of the Supreme Court of Nova Scotia”. This photocopied signature of the appellant “Dave Moore” is then written over in ballpoint ink. The next page behind the single page jurat is a so-called Exhibit “A” which is date-stamped October 25, 2011 over the signature of “MANON HACHE, A Commissioner of the Supreme Court of Nova Scotia”. [ 32 ] The Exhibit “A” attached to Mr.

Moore’s affidavit is really three separate items. The first is a 2-page letter dated June 2, 2011, which consists of arguments, not facts, and attacks the respondent, her lawyer, and the trial judge, among others. Parenthetically one

wonders why the appellant was late in filing his motion for directions, and a stay, when this “letter” is dated June 2. [33] The second page in the “exhibit” is a photocopy of what the appellant describes as the respondent’s business cards as a realestate agent, or a beauty consultant. The third item is a letter dated May 11, 2008, from the Honourable David W. Gruchy, Q.C. to theMinister of Transportation and Infrastructure Renewal. It would appear from the letter that Mr.

Gruchy was retained to review alongstanding dispute between the appellant’s company Sand, Surf & Sea Limited, and the Department, and to make recommendations tothe Minister concerning a possible settlement following the loss of their restaurant by fire. Mr.

Gruchy’s letter proposes a settlementwithin a range he sees as being fair and reasonable. [34] When he appeared before me in Chambers, the appellant said he had “re-sworn” his original affidavit on October 25, to whichhe then attached the “full package” of materials he intended to rely upon in support of his motion for a stay. [35] Whatever the appellant has placed before me by way of affidavit and exhibits is not in proper form.

His “package” contains avariety of material including pleadings; court orders; correspondence with judges; letters from third parties; case law; a psychologicalassessment; a request to accommodate the appellant’s hearing disability; a contract and plans for home renovations; and correspondencerelating to termination of medical coverage. [36] The appellant has chosen to represent his own interests. That is his right.

While some leeway is given in such circumstances, aself-represented litigant does not enjoy a holiday from the rigours of following basic and essential procedures or satisfying the burdensand standards of proof. [37] Mr. Moore’s affidavit first sworn June 2 and later “re-sworn” October 25 is fundamentally flawed. It does not present, inseparate paragraphs, the appellant’s sworn affirmation of relevant facts based upon his personal knowledge, or reveal his secondarysource of information and belief. The accuracy and truthfulness of his assertions cannot be tested on cross-examination.

Waverley(Village Commissioners) v. Nova Scotia (Minister of Municipal Affairs), 1993 NSSC 71 , [1993] N.S.J. No. 151 (Q.L.), 123N.S.R. (2d) 46 (S.C.); Wall v. 679927 Ontario Ltd., (NS CA), [1999] N.S.J.

No. 124 (Q.L.), 176 N.S.R. (2d) 96(C.A.). [38] Further, the materials contained in the appellant’s “package” and tabbed 1 through 18 are not arranged in such a way that“argument” can be distinguished from credible and relevant “fact”. [39] All of this leaves respondent’s counsel at a distinct disadvantage in not knowing what is properly before the Court and aboutwhich the appellant might be subject to cross-examination. [40] The consequence of the appellant’s irregular and flawed filings is that he has failed to present evidence to support his motionfor a stay. [41] In Nova Scotia the test for obtaining a stay is settled law.

Purdy v. Fulton Insurance Agencies Ltd. (1991), (NS CA), 100 N.S.R. (2d) 341 (C.A.); Armoyan v. Armoyan, 2011 NSCA 92 (in Chambers). If one elects to proceed under thethree-step primary test, the onus is on the applicant to establish (

a) an arguable issue on the merits, (

b) irreparable harm should the staybe denied, and (

c) that the balance of convenience favours a stay. I alerted the appellant to these requirements during the hearing in aneffort to help focus his submissions. [42] Mr. Moore’s grounds of appeal challenge the judge’s procedural rulings and factual findings. Without a transcript, it is difficultto assess those grounds. I will assume, without deciding, that the appellant has raised arguable issues in his notice of appeal. [43] He fails on the other prerequisites.

[ 44 ] In argument Mr. Moore said his case “went off the rails” during trial in the Family Division. He said the judge erred in calculating his annual income and that the Table amounts of support ordered as well as the respondent’s continued involvement in his several corporate ventures effectively “paralyzed” him in his ability to meet ongoing obligations or deal with his employer.

He also suggested that the respondent was personally responsible for recent mischief causing damage to his property exceeding $70,000, and that she would be proven criminally responsible by virtue of her “fingerprints” left at the scene. The effect of the trial judge’s orders is to leave his bank accounts and property assets “frozen” such that it will be impossible for him to defend himself against third party creditors.

Respectfully, the problem for the appellant is that he has not produced any evidence that such is the case. [ 45 ] The appellant’s principal complaints seem to be a reiteration of many of the same points referred to at trial. The serious allegations he makes against other persons having any connection to the file, are not “evidence” but simply his personal attacks against those individuals concerning what he considers to be unfair treatment during the trial. Mr.

Moore may have his chance to present those arguments when his appeal is heard, but his bare assertions do not constitute proof of “irreparable harm”. [ 46 ] While not a factor in my decision to refuse a stay, it does seem to me that the respondent’s undertakings as reflected in her affidavit filed on the motion and stipulated on the record by her counsel, will provide reasonable protection to both parties’ interests pending appeal.

For example, as indicated in the materials filed on the motion, the provincial Maintenance Enforcement Program reports total arrears as at November 1, 2011, of $78,171, but has only registered garnishments against the appellant’s RCMP income and any funds received from the government in relation to income tax or GST reimbursements. This leaves the appellant’s other pension income and business income in tact to support the appellant and his appeal. Further, the respondent has agreed to forego payment of approximately $52,000 worth of arrears (as they existed at June 2, 2011).

As well, the respondent has asked the appellant’s pension provider to place a “hold” on the division of his RCMP pension pending a determination of the appeal by this Court. Further, the Preservation Order remains registered against the parties’ jointly owned residence and the respondent has confirmed by affidavit that she has discontinued her attempts to have the home listed for sale until the merits of this appeal have been decided. Thus, the existing preservation order on their jointly owned home ensures that their respective interests are protected pending appeal.

Finally, through her counsel, the respondent has agreed that the preservation order be partially released with respect to the two properties identified as: (a) 9564 St. Margaret’s Bay Road, Queensland, Nova Scotia; and (b) 139 Tantallon Crescent, Upper Tantallon, Nova Scotia, Lot 26A as “(t)his will ensure that the Appellant can continue to carry on business with the company, while protecting any property the parties may have a joint interest in”. (Mr.

Crowther’s brief on behalf of the respondent dated October 31, 2011, at ¶31). [ 47 ] Should the appellant be successful on appeal, any “losses” incurred in the interim can be rectified by costs and adjustments determined later. For example, the respondent’s equal division of Mr. Moore’s pension can be reduced. So too her sizeable equity in the home located at 141 Lakeshore Drive, Bedford. [ 48 ] Having failed to show irreparable harm, I need not go on to consider the balance of convenience. Reid v.

Halifax Regional School Board , 2006 NSCA 35 at ¶29; Armoyan, supra at ¶33. [ 49 ] As to the secondary test, the appellant has failed to identify any circumstances which I would consider exceptional, or produce any evidence to support such an assertion. While the phrase “exceptional circumstances” can never be exhaustively defined, it has been interpreted by this Court to at least mean factors that would make it plainly unjust to refuse a stay.

In other words, it is intended to catch the rare case when a court would wish to avoid a clear injustice in circumstances that did not meet the three requirements of the primary test. Armoyan, supra , at ¶34. This is not that case. [ 50 ] In conclusion, the motion for a stay is dismissed. I will issue an order accordingly. [ 51 ] I award costs to the respondent in the amount of $1,000 inclusive of disbursements, in any event of the cause.

Saunders, J.A.