Rad v. Poole, 2018 NSCA 88

Nova Scotia Court of Appeal Citation: Rad v. Poole , 2018 NSCA 88 Date: 20180918 Docket: CA 469407 CA 477189 Registry: Halifax Between: Samuel Rad Appellant v. Tara Poole Respondent Judge: The Honourable Justice Cindy A. Bourgeois Appeal Heard: September 18, 2018, in Halifax, Nova Scotia Written Release November 14, 2018

Summary: The parties are the parents of two young boys. In July 2017, the mother sought to vary the existing parenting and financial arrangements in relation to the children. She filed a Notice of Variation Application with supporting documentation. A Motion for Date and Directions was scheduled for August 3, 2017 before a motions judge. The mother appeared, the father did not. The motions judge concluded the father was aware of the court date and granted all of the relief sought by the mother in her Notice of Variation Application. A return date was set for October 3, 2017.

On the return date, both parties appeared before the motions judge. After hearing limited submissions from the father, she directed that the terms and conditions ordered in the first appearance would continue. The father filed two appeals, one with respect to the outcome of each appearance. The appeals were heard simultaneously. In both, the father submits the motions judge denied him the opportunity to be heard prior to rendering a decision and, as such, breached the rules of natural justice. Issues: 1. Was Mr. Rad denied natural justice by virtue of the motions judge rendering a decision on the merits of Ms.

Poole’s variation application on August 3, 2017? and 2. Was Mr. Rad denied natural justice by virtue of the motions judge declining to further consider the merits of the variation application on October 3, 2017? Result: Appeals allowed. The father was denied natural justice. The mother’s variation application is to be returned for hearing before a different judge. With respect to the first hearing, the motions judge erred in concluding the father had received adequate notice, in particular, that a determination could be made on the mother’s application in the context of a Motion for Date and Directions.

With respect to the second hearing, the motions judge erred in not permitting the father to speak to the merits of the application to vary. 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: Rad v. Poole , 2018 NSCA 88 Date: 20180918 Docket: CA 469407 CA 477189 Registry: Halifax Between: Samuel Rad Appellant v. Tara Poole Respondent Judges: Fichaud, Beveridge and Bourgeois, JJ.A. Appeal Heard: September 18, 2018, in Halifax, Nova Scotia Written Release November 14, 2018 Held: Appeals allowed, with costs payable in the cause, per reasons for judgment of Bourgeois, J.A.; Fichaud and Beveridge, JJ.A. concurring Counsel: Daniel S.

Walker, for the appellant Tara Poole, self-represented Reasons for judgment: [ 1 ] The parties are the parents of two young boys, ages 8 and 7. In July 2017, Ms. Poole sought to vary the existing parenting and financial arrangements in relation to the children. She filed a Notice of Variation Application on July 7, 2017, with supporting documentation. [ 2 ] A Motion for Date and Directions was scheduled for August 3, 2017 before Justice Carole A. Beaton. Ms. Poole appeared. Mr. Rad did not. The motions judge concluded Mr. Rad was aware of the court date and granted all of the relief sought by Ms.

Poole in her Notice of Variation Application. A return date was set for October 3, 2017. [ 3 ] On October 3, 2017, both parties appeared before the motions judge. After hearing limited submissions from Mr. Rad, she directed that the terms and conditions ordered as a result of the first appearance would continue. [ 4 ] Mr. Rad filed two appeals, one with respect to the outcome of each appearance, the orders having been issued September 12, 2017 and May 11, 2018, respectively. The appeals were heard simultaneously.

In both he submits that the motions judge denied him the opportunity to be heard prior to rendering a decision and, as such, breached the rules of natural justice. He asked this Court to set aside the orders arising from the two appearances and return Ms. Poole’s variation application for hearing before a different judge. [ 5 ] At the conclusion of the hearing, the Court was of the unanimous view that Mr. Rad’s appeals ought to be granted with a promise of written reasons to follow. These are our reasons.

Background [ 6 ] For the purpose of the analysis to follow, it is helpful to set out the relevant factual and procedural background.

[ 7 ] On July 7, 2017, Ms. Poole filed a Notice of Variation Application with the Supreme Court of Nova Scotia (Family Division). In support of her application, Ms. Poole filed a number of other documents, including a detailed affidavit explaining why she was seeking to change the existing 50/50 parenting arrangement and to alter the terms of child support. [ 8 ] The Notice of Variation Application did not identify a date for hearing.

It did, however, contain the following statements: Possible order against you A judge may grant a final order on the variation application without further notice to you if you fail to appear at the court when directed or fail to file documents as directed. Filing and delivering documents . . .

The Nova Scotia Civil Procedure Rules require that whenever you file a document you must immediately deliver a copy of it to the applicant, or respondent, and to each other party entitled to notice, unless the document is part of an ex parte motion, the parties agree delivery is not required, or a judge or court officer directs it is not required. [ 9 ] Simultaneously, Ms. Poole filed a Notice of Motion for Directions (Family) with a supporting affidavit.

Unlike the Notice of Variation, that document provided a date: Motion for date and directions At 2:00 p.m. on August 3, 2017, the applicant will appear before a judge in court at the courthouse at 3380 Devonshire Avenue, Halifax, Nova Scotia, to make a motion for an order giving directions and appointing a time, date, and place for the hearing. If you fail to attend The judge may provide directions in your absence if you or your counsel fail to attend. [ 10 ] In addition to her documents, Ms. Poole filed a cover letter on July 7, 2017.

She expressed a degree of urgency in having the matter dealt with and advised she would be serving Mr. Rad with the documentation once issued. There is nothing in the court record to suggest that Ms. Poole requested that personal service on Mr. Rad be waived. There was no motion for substituted service. [ 11 ] On July 11, 2017, a court officer issued a Direction to Disclose to Mr. Rad requiring him to file a Parenting Statement, and a sworn Statement of Income with mandatory attachments.

The Direction provided: Deadline for filing documents Mail or deliver the documents to the court at the courthouse at Supreme Court (Family Division), 3380 Devonshire Ave., Halifax, Nova Scotia no later than 12:00 p.m. on August 2, 2017. … Possible order against you if you fail If you fail to disclose at the required time, a court officer or a judge may do any of the following without further notice to you: (1) order costs against you in an appropriate amount which is usually $250.00; (2) make an interim order for child support; (3) dismiss an application, motion, or claim, or any part of it, or stay a proceeding started by you. [ 12 ] Also on July 11, 2017, Associate Chief Justice O’Neil issued an Order to File a

Summary of Motion for Directions. It set a filing deadline of July 22, 2017 for each party to file a short (one and a half pages) Pre-Hearing of Motion for Directions

Summary. That order also provided: 1. The above referenced matter is scheduled for a Hearing of Motion for Directions on August 3, 2017 at 2:00 p.m. for thirty (30) minutes. Hearing time, if required, will be confirmed at that time. . . . 4. The presiding Judge at the Hearing of Motion for Directions may give further filing directions and will determine what hearing time is required. 5. If you fail to file a Pre-Hearing of Motion for Directions

Summary, as directed, you may be ordered to pay costs. [ 13 ] On July 11, 2017, a court officer sent correspondence to Ms. Poole. It said: Enclosed, please find the following documents in reference to your above-mentioned file:

1) a completed Notice of Motion for Directions; 2) a certified true copy of an Order to file a

Summary of Motion for Directions issued on July 11, 2017; 3) a copy of the Direction to Disclose issued to Samuel Rad on July 11, 2017; 4) a scheduled Group Information Session notification; 5) a scheduled Parent Information program notification; 6) copy of documents you filed with the court on July 7, 2017. Please be advised copies of the above documents have been mailed to Samuel Rad, on today’s date; therefore, avoiding the necessity of service. (Emphasis added) [ 14 ] There is no indication in the court file why the court officer determined that mailing the documentation to Mr.

Rad, notably the originating documents, was sufficient notice. As will be discussed later, the Civil Procedure Rules contain a presumption of personal service. [ 15 ] Further, although the above letter includes a reference to being copied to Mr. Rad, there is no record in the court file of correspondence being sent to him. There is further no indication that Mr. Rad was provided with a Notice to Appear in relation to the Motion for Date and Directions scheduled for August 3, 2017. [ 16 ] Mr.

Rad did not appear for the Motion for Date and Directions, nor had the court received materials from him as outlined in the Direction to Disclose. The motions judge, based on the submissions of Ms. Poole, concluded Mr. Rad was aware of the court date and had failed to attend as directed. [ 17 ] The motions judge then proceeded to grant all of the relief sought by Ms. Poole in the Notice of Variation Application. In particular, she ordered that the parenting arrangement be varied from the existing 50/50 shared parenting to Mr.

Rad having the children in his care every second weekend during the school year, with alternating weeks in the summer. [ 18 ] The motions judge directed that the matter be returned for another appearance explaining: I’m going to make an order, but the order is going to [be] time limited. It’s going to be time limited until the next date that we return. And at that time, if – unless Mr. Rad appears and advises that he wishes to contest the matter or take a different position, the court can consider that at that time and set a date for a hearing.

But if he doesn’t appear or doesn’t communicate with the Court, then the Court will exercise its jurisdiction to direct that the order can then continue. So, rather than make a – make an Interim Order which really isn’t appropriate as a Variation Order, what I’m going to do is make a variation – make a Variation Order today and provide that that order will either continue or be replaced or expire at the next date. Part of the reason that I’m doing things this way is – without any ability to assess what Mr.

Rad’s position is, I’m of the view that the matter needs to be moved forward in the most efficient manner possible. And so, the most efficient manner possible that takes into account the best interest of the children is to grant the relief requested today, and so as not to completely shut the door for Mr. Rad, he will have an opportunity then to appear and advise whether he is opposed or not. Later she added: And the reason I am doing things this way is I’m trying to – recognizing that Mr.

Rad has not responded and that the Court has only your information, your evidence, and recognizing that it’s – there’s no utility in adjourning the matter today because if he did – if Mr. Rad didn’t respond today, when is it that he’s going to respond? So, I’m putting an order in place now because I’m persuaded that that’s in the best interest of the children and sometimes there’s a very good reason why people don’t appear that’s not apparent at first blush. So, I’m not completely closing the door if Mr.

Rad wishes to come at the next date and persuade the Court that something other than the order that I’ve made today should actually be considered, then or at some future time. [ 19 ] The next hearing date was set for October 3, 2017. A Notice to Appear in Court was issued and mailed to Mr. Rad. It directed that he “must appear in court” and further, it indicated that the appearance was scheduled for one-half hour for the purpose of “trial”.

That document also stated: Possible order against you if you fail If you fail to appear in court at the required time, a judge or court officer may do any of the following without further notice to you: (1) order costs against you in an appropriate amount which is usually $250.00; (2) make an order directing a person, such as your employer, to disclose financial or other information about you; (3) dismiss an application, motion, or claim, or any part of it, or stay a proceeding started by you; (4) make an interim or final order for custody, access, or about parenting; (5) make an interim or final order for child support or child maintenance; (6) make any other interim or final order, including an order for spousal support, division of property, division of pensions, or any other order sought.

[20] Mr. Rad appeared on October 3, 2017, as did Ms. Poole. The record clearly shows he was upset about the order put in place atthe earlier appearance. The motions judge explained the purpose of the present hearing as follows: . . . The matter was last before the Court on August the 3rd. I have directed in the absence of Mr. Rad that the matter could return todayfor a brief docket appearance, at which time I could review the matter and take into account anything that might need to be taken intoaccount, and any other direction that might be appropriate given that Mr.

Rad was not present on the last day. [21] Without permitting Mr. Rad to speak to the merits of the application to vary, the motions judge directed the order arising from the August 3rd appearance would continue. [22] Mr. Rad filed separate Notices of Appeal in relation to the orders arising from the August 3 and October 3, 2017 appearances. Issues [23] In his written submissions, Mr. Rad sets out the issues to be determined in the first appeal as follows: 1. Did the Honourable Justice err in finding that the appellant had been properly notified of the variation application and theAugust 3, 2017, court date? 2.

Did the Honourable Justice err in not providing the appellant an opportunity to be heard prior to rendering her decision onAugust 3, 2017? [24] With respect to the second appeal, Mr. Rad poses: 1. Did the Honourable Justice err in not providing the appellant an opportunity to be heard prior to rendering her decision onOctober 3, 2017? 2. Did the Honourable Justice err in not ascertaining whether the appellant, as a self-represented litigant, was seeking anopportunity to be heard? 3.

Did the Honourable Justice err in determining that the order issued on September 12, 2017, was a final disposition of therespondent’s variation application and that there could therefore be no further opportunity to be heard? [25] In my view, the issues raised on the appeals can be resolved by addressing the following: 1. Was Mr. Rad denied natural justice by virtue of the motions judge rendering a decision on the merits of Ms. Poole’svariation application on August 3, 2017? and 2. Was Mr.

Rad denied natural justice by virtue of the motions judge declining to further consider the merits of the variationapplication on October 3, 2017? Standard of Review [26] The above issues engage a consideration of whether there was a breach of the rules of natural justice. As such, there is notraditional standard of review analysis. This Court must decide whether or not Mr. Rad was denied natural justice. (Slawter v.Bellefontaine, 2012 NSCA 48 at para. 18; Waterman v. Waterman, 2014 NSCA 110 at para. 23; Whalen v.

Whalen, 2018 NSCA 37 atpara. 27.) General Principles Natural justice [27] It is helpful to start with a brief

summary of the rules of natural justice. In Waterman v. Waterman, supra, Justice Beveridgewrote: [63] Natural justice has two important and distinct rules: an adjudicator must be impartial, and the parties must have adequate notice,and an opportunity to be heard. These rules have been historically described by the courts using Latin phrases. Gonthier J., inConsolidated-Bathurst Packaging Ltd. v. International Woodworkers of America, Local 2-69, (SCC), [1990] 1 S.C.R.282, described the rules as follows: [66] . . .

It has often been said that these rules can be separated in two categories, namely “that an adjudicator be disinterested andunbiased (nemo judex in causa sua) and that the parties be given adequate notice and opportunity to be heard (audi alteram partem) [28] Along with Waterman, two other recent decisions of the Court, Slawter v. Bellefontaine, supra, and B.A.J. v.

J.S.V., 2018NSCA 49, have articulated several principles relating to the application of the rules of natural justice, including: • The rules of natural justice, including the right to be heard, can only be ousted by express language or by necessaryimplication contained in constitutionally valid legislation (Waterman, at para. [70]); • The best interests of the child do not oust the right of a party to natural justice, but may impact the content of that right,which must be assessed in light of the legislative scheme and the issue being addressed (Slawter, at paras. [24] to [30]);

• The right to notice includes not only the right to be made aware of a proceeding brought against them, but of the nature andextent of that proceeding (B.A.J., at paras. [74] to [76]), and to be aware of what is at risk (Slawter, at para. [56]); and • Effecting service is an important means of ensuring that a party is given appropriate notice and, following therefrom, givenan opportunity to be heard (B.A.J., at paras. [74], [76]). The legislative scheme [29] Ms. Poole’s Notice of Variation Application states that it was brought under the Maintenance and Custody Act.

However, theParenting and Support Act, R.S.N.S. 1989, c. 160 as amended, was effective on May 26, 2017.

As such, it is the proper reference andlegislative scheme. [30] Although that legislation clearly makes the best interests of the child the paramount consideration in matters involvingparenting arrangements and other interactions with a child (s. 18(5)), nothing in it explicitly or implicitly serves to oust the rules ofnatural justice afforded to a party. [31] The Supreme Court of Canada has long recognized that parental participation in court proceedings is a means of determining,on the best evidence, the best interests of a child.

Although involving the constitutional right to state-funded counsel in child-protectionproceedings, Chief Justice Lamer in New Brunswick (Minister of Health and Community Services) v. G. (J.)., (SCC),[1999] 3 S.C.R. 46 observed: 73 For the hearing to be fair, the parent must have an opportunity to present his or her case effectively.

Effective parentalparticipation at the hearing is essential for determining the best interests of the child in circumstances where the parent seeks to maintaincustody of the child. … In order to make this determination, the judge must be presented with evidence of the child’s home life and thequality of parenting it has been receiving and is expected to receive. The parent is in a unique position to provide this information to thecourt. If denied the opportunity to participate effectively at the hearing, the judge may be unable to make an accurate determination ofthe child’s best interests.

There is a risk that the parent will lose custody of the child when in actual fact it might have been in the child’sbest interests to remain in his or her care. [32] The above observation is equally applicable in private custody disputes where a court must assess what division of parentingtime would be in the best interests of a child. In my view, the Parenting and Support Act also recognizes the importance of hearing allevidence relevant to the child’s circumstances, including that which can be offered by both parents.

Section 18(6) mandates: In determining the best interests of the child, the court shall consider all relevant circumstances, including (

a) the child’s physical, emotional, social and educational needs, including the child’s need for stability and safety, taking into accountthe child’s age and stage of development; (

b) each parent’s or guardian’s willingness to support the development and maintenance of the child’s relationship with the otherparent or guardian; (

c) the history of care for the child, having regard to the child’s physical, emotional, social and educational needs; (

d) the plans proposed for the child’s care and upbringing, having regard to the child’s physical, emotional, social and educationalneeds; (

e) the child’s cultural, linguistic, religious and spiritual upbringing and heritage; (

f) the child’s views and preferences, if the court considers it necessary and appropriate to ascertain them given the child’s age andstage of development and if the views and preferences can reasonably be ascertained; (

g) the nature, strength and stability of the relationship between the child and each parent or guardian; (

h) the nature, strength and stability of the relationship between the child and each sibling, grandparent and other significant person inthe child’s life; (

i) the ability of each parent, guardian or other person in respect of whom the order would apply to communicate and co-operate onissues affecting the child; and (

j) the impact of any family violence, abuse or intimidation, regardless of whether the child has been directly exposed, including anyimpact on (

i) The ability of the person causing the family violence, abuse or intimidation to care for the meet the needs of the child, and (ii) The appropriateness of an arrangement that would require co-operation on issues affecting the child, including whether requiringsuch co-operation would threaten the safety or security of the child or of any other person. (Emphasis added) [33] In light of the above, a court should exercise caution when making determinations based on the best interests of the child in theabsence of evidence from a parent.

In those cases where a court finds it appropriate to do so, it should be satisfied that the absent parenthas not been denied natural justice. It is also advisable that the court, in its reasons, demonstrates it turned its mind to that issue. The Civil Procedure Rules

[ 34 ] As is specifically noted in the Parenting and Support Act ( s. 21 ), the Civil Procedure Rules apply to matters heard in the Supreme Court of Nova Scotia (Family Division). The Rules do not derogate from a party’s right to natural justice. To the contrary, they serve to protect them. This is true in all civil matters. [ 35 ] In particular, the right to adequate notice is clear. For the purpose of considering the issues on appeal, the following are the relevant provisions relating to applications to vary in the Supreme Court (Family Division): • Family proceedings are governed by

Part 13 of the Rules , with the practice and procedure for the variation of financial and parenting arrangements found in Rule 59; • The Rules outside of

Part 13 apply with any necessary changes to the practice and procedure in family matters (Rules 59.02(2)); • The Rules for notice contained in Rule 31 apply to applications made under Rule 59 “unless a court officer or a judge directs that another method be used” (Rule 59.14(1)); • Rule 31 addresses the requirements of notice, including service.

It applies to family proceedings and sets out the type of service required to commence a proceeding, to make a claim in an existing proceeding and to provide notice of further steps in an existing proceeding (Rule 31.01); • A proceeding seeking to vary, rescind, or suspend an existing order under the Parenting and Support Act (formerly the Maintenance and Custody Act ) is treated as an original proceeding ( Rule 59.06(5) ); • In an originating proceeding, the party against whom the proceeding is brought is to receive by personal service a certified copy of the originating documents or receive notice by an “alternative method” (Rule 31.02); • The Rules contemplate only five scenarios where an alternative method of notice can replace personal service: where a lawyer accepts service on behalf of a party (Rule 31.06), where a responding party files a document in response to the originating documents (Rule 31.07), in a claim arising by contract and where the parties have agreed to an alternative method of service by the terms thereof (Rule 31.08), where service must be effected outside of Nova Scotia (Rule 31.09), and where a judge, on a motion, makes an order for substituted service (Rule 31.10); • Rule 59.14(4) notes a party in a family proceeding may make a motion for substituted service to a judge; and • A party who causes a document to be personally served must obtain and file an affidavit of service with the court (Rule 31.05).

Analysis Was Mr. Rad denied natural justice by virtue of the motions judge rendering a decision on the merits of Ms. Poole’s variation application on August 3, 2017? [ 36 ] I am satisfied that Mr. Rad did not receive adequate notice of the August 3 rd hearing and, as a result, was denied the opportunity to be heard. In reaching this conclusion, I have taken note of a number of concerns. [ 37 ] As a starting premise, Mr. Rad was entitled to be personally served with a certified copy of the Notice of Variation Application and supporting affidavit. He was not.

Instead, it appears the court officer determined that substituted service by way of regular mail was appropriate. Although substituted service can be granted under Rule 31.10, it is clear from the requirements set out therein and in Rule 59.14(4) that such an order is to be made by a judge and with the benefit of an evidentiary foundation. [ 38 ] I do note, however, that there are two rules which give court officers decision-making authority with respect to the nature of service.

They are: 59.14(1) Rules in Rule 31 – Notice, for giving notice in a proceeding, apply to an application made under this Rule 59, unless a court officer or a judge directs that another method be used. …

(3) A court officer or a judge may direct that notice of a proceeding be given by mail to a respondent in a proceeding in which a conciliation meeting is scheduled. [ 39 ] In my view, neither of the above serve to validate the notice provided to Mr. Rad in this instance. Firstly, as no conciliation meeting had been set, Rule 59.14(3) does not apply. Rule 59.14(1) is worded more broadly and, arguably, could permit a court officer to decide personal service of originating documents was not necessary in a given case.

I do not, however, read that rule as permitting a court officer (or a judge) to summarily waive personal service in favour of some other form of notice. Such would be inconsistent with the care taken elsewhere in the Rules to ensure a proper foundation is laid before an order for substituted service is granted. [ 40 ] Here, the court file is devoid of any evidence or even explanation as to why the court officer determined that personal service was unnecessary. This is particularly troublesome given that Ms.

Poole clearly indicated she could and expected to effect personal service of the originating documents on Mr. Rad. Further, although there is a copy of a letter addressed to Ms. Poole enclosing the documents filed with the court, there is nothing contained in the court file which establishes that a letter was sent to Mr. Rad, other than a notation on Ms. Poole’s letter indicating he was “c.c.ed”.

[ 41 ] I pause at this point to provide clarification. Personal service is not, in and of itself, a requirement of natural justice. Rather, it is a means of ensuring adequate notice is provided. There may well be instances where a party is found to have been properly notified in the absence of personal service, such as where they have responded to the proceedings (as contemplated in Rule 31.07), or where the court is satisfied, on evidence, that the party is aware of the nature and extent of the proceedings.

In the present instance, the lack of personal service ought to have served as a red flag for the motions judge to give careful consideration to exactly what Mr. Rad may have been given notice of. [ 42 ] Regarding the issue of notice, the motions judge concluded: Clearly, a Notice of Motion directed Mr. Rad to appear today at two o’clock. Just prior to entering the courtroom, the clerk advised me that Mr. Rad had been paged twice to the courtroom and had not responded. And I’m satisfied based on the information provided by Ms. Poole that he’s aware of today’s date . He’s not filed anything.

He’s not complied with a Direction to Disclose. He’s not appeared. (Emphasis added) [ 43 ] With respect, what was before the motions judge was insufficient to establish that Mr. Rad had received notice sufficient to comply with the rules of natural justice. Firstly, the motions judge had no evidentiary basis on which to base her conclusion that Mr. Rad knew about the court date. Secondly, even if the motions judge were satisfied that Mr.

Rad was aware a court date had been set for August 3 rd , she gave no consideration to what he had been advised as to the nature of that appearance. [ 44 ] If notified of anything, Mr. Rad was made aware that a Motion for Date and Directions was to be heard on August 3, 2017, the purpose of which was to give directions for the eventual hearing of the application to vary, including the setting of a hearing date. Unlike a Notice to Appear, the Notice of Motion for Date and Directions did not direct that Mr. Rad appear.

At most, the Notice warned that if he did not attend the hearing of the motion, the judge “may provide directions” in his absence. [ 45 ] If Mr. Rad received the Directions to Disclose, it also did not direct that he appear on August 3 rd . Rather, it directed him to mail or deliver his financial disclosure by noon on August 2 nd . The peril for Mr. Rad of failing to abide by this direction was set out as being an order for costs, or an interim order for support. [ 46 ] The Order to File a

Summary of Motion for Directions did identify that a Motion for Date and Directions was scheduled for August 3 rd . It stated that 30 minutes of court time was reserved for the appearance, at which time further filing directions may be given, or a hearing date set. Mr. Rad was directed to file a

summary for the motion, and warned that his failure to do so may result in an order for costs. The Order to File a

Summary also did not contain a direction to Mr. Rad that he was to attend the Motion for Date and Directions. [ 47 ] Although all of the above three documents contained warnings as to what consequences may flow should Mr. Rad not attend the motion or provide information as directed, none warned of the peril that actually occurred on August 3 rd . Nothing in those documents notified Mr. Rad that if he did not appear or comply, that the 30-minute hearing scheduled as a Motion for Directions could be transformed into a hearing on the merits of Ms. Poole’s application to vary.

But that is what happened. [ 48 ] In proceeding to consider the merits of the application on August 3 rd , the motions judge noted and relied upon the following wording contained in the Notice of Variation Application: Possible Order Against You A judge may grant a final order on the Variation Application without further notice to you if you fail to appear when directed or fail to file documents as directed. [ 49 ] The problem with the motions judge’s course of action is that the appearance on August 3 rd was not for determination of the variation application, rather it was for a Motion for Directions.

None of the other documentation purportedly mailed to Mr. Rad in relation to the Motion for Date and Directions contained any indication that his failure to participate or comply with disclosure could result in the parenting arrangement for his sons being changed at the hearing of that motion. No notice was provided that the parenting arrangement could be changed based on the untested evidence of only one parent. [ 50 ] I am satisfied that Mr. Rad was not adequately notified that the merits of the variation application could be determined at the Motion for Directions scheduled for August 3 rd .

As a result of the motions judge proceeding as she did in Mr. Rad’s absence, he was denied natural justice. Was Mr. Rad denied natural justice by virtue of the motions judge declining to further consider the merits of the variation application on October 3, 2017? [ 51 ] On October 3, 2017, the parties returned for an appearance before the motions judge. The Notice to Appear issued to Mr. Rad indicated this appearance was for “trial”. Mr. Rad filed a letter in advance, setting out his dismay and frustration with the order arising from the August 3 rd appearance.

In particular, he clearly disputed the motions judge’s finding that he had been properly notified of the first appearance. He was also upset with the change to the parenting arrangement. [ 52 ] There was no trial on October 3 rd . Despite the motions judge indicating on August 3 rd that she was not “completely closing the door [should] Mr. Rad … come at the next date and persuade [her] that something other than the order [put in place] should actually be considered”, the motions judge did not afford him that opportunity. She heard no evidence from either party.

On the unchallenged evidence contained solely in the affidavit of Ms. Poole, and without permitting Mr. Rad to put forward his own position, the motions judge directed that the order made on August 3 rd would continue.

[ 53 ] I am satisfied on the record that Mr. Rad was denied the right to be heard, and that the application for variation ought not to have been determined without permitting his participation. Conclusion [ 54 ] Based on the above, the appeals are allowed, and the orders arising from August 3 and October 3, 2017 issued on September 12, 2017 and May 11, 2018, respectively, are set aside. Ms. Poole’s application for variation is returned for hearing before a different judge of the Supreme Court of Nova Scotia (Family Division). [ 55 ] With respect to costs, Mr.

Rad has been successful on his appeals and, as such, would normally be entitled to costs. Counsel for Mr. Rad argues that because Ms. Poole did not respond to an early request to concede to the appeals being allowed, this resulted in him incurring the expense of preparing a factum. As such, he asserts that significant costs, in the amount of $5,000, ought to be ordered against her. I do not agree. [ 56 ] Ms. Poole did nothing in the court below to contribute to the circumstances giving rise to Mr. Rad being denied adequate notice and the right to be heard. She was willing to personally serve Mr. Rad.

At most, based on questions posed to her by the motions judge, she expressed her view that Mr. Rad was aware of the date for the Motion for Date and Directions. [ 57 ] Ms. Poole did not mount any opposition to the appeals being decided in Mr. Rad’s favour and agreed during the hearing that the application should be returned to the court below. I do not agree that her failure to concede the appeals prior to Mr. Rad being required to file his factum is a reason to order enhanced costs against her.

As a self-represented litigant, it is not unusual that her position on the outcome of the appeals would not be known until she had the opportunity to view the legal arguments being advanced. [ 58 ] Further, given that the appeals centered on claims that Mr. Rad had been denied natural justice by the court below, this Court likely would have wanted written submissions from Mr. Rad in any event. Such claims are serious.

Notwithstanding the concession of a self-represented litigant supportive of the appeals being allowed, this Court would still want to independently make such a determination with the assistance of written arguments from Mr. Rad. [ 59 ] In the circumstances of this matter, I am satisfied that the costs of the appeals, including disbursements, should be set at $1,000.00, payable in the cause, following the hearing of the variation application. Bourgeois, J.A. Concurred in: Fichaud, J.A. Beveridge, J.A.