C.A.V. v. L.C.M., 2020 NSCA 55

Nova Scotia Court of Appeal Citation: C.A.V. v. L.C.M. , 2020 NSCA 55 Date: 20200821 Docket: CA 498644 Registry: Halifax Between: C.A.V. Applicant v. L.C.M. Respondent Judge: Derrick, J.A.

Motion Heard: August 19, 2020, in Halifax, Nova Scotia in tele-Chambers Written Decision: August 21, 2020 Held: Motion re: transcript – allowed Motion re: style of cause – Justice Cormier’s Order – dismissed Motion re : stay – dismissed without costs Counsel: Applicant by telephone Respondent by telephone Decision: Introduction [ 1 ] C.A.V. has filed a Notice of Appeal in relation to an Order of Justice Cindy Cormier of the Nova Scotia Supreme Court, Family Division, issued July 3 rd , 2020.

The Order followed a hearing on February 24 th , 2020 of an application by C.A.V. to terminate child support payable by her to L.C.M. and fix the arrears at zero. C.A.V. is alleging Justice Cormier made errors in dismissing her application and calculating a total amount of child support arrears owing to L.C.M. of $48,616.00. [ 2 ] C.A.V. brought a motion in this Court applying for a stay of Justice Cormier’s Order. She is also seeking to be relieved of the requirement for filing a transcript in her appeal book.

In addition, she demands that “signed and certified copies of Cormier J’s Decision and Order of June 2, 2020 bearing the correct style of cause” are to be provided to her, or “alternatively an order quashing Cormier J’s work for her failure to endorse it”. (I note the date of Justice Cormier’s Order is in fact July 3, 2020). [ 3 ] In a letter dated August 11 th , L.C.M. opposed C.A.V.’s motion for a stay saying it was without merit. He took no position on the matter of the transcript.

He has not commented on the “correct style of cause” issue. [ 4 ] C.A.V.’s motions were heard by me in tele-Chambers on August 19 th , 2020. Both she and L.C.M. were on the call. It concluded after approximately nineteen minutes when C.A.V. abruptly hung up. I indicated at that point to L.C.M. I was reserving my decision on the motions and would be providing written reasons. These are my reasons.

Background [ 5 ] In June 2018 in the Nova Scotia Supreme Court, Family Division, C.A.V. filed a Notice of Variation application under the Divorce Act , R.S.C. 1985 (2 nd Supp.), c. 3, seeking to terminate child support for the three children of her marriage with L.C.M., and fix the arrears at zero. The children are triplets, born on January 1, 1993. The child support order had been issued in April 2003 by the Ontario Superior Court of Justice.

L.C.M. attorned to the jurisdiction of the Nova Scotia Supreme Court and participated in the proceeding. [ 6 ] L.C.M. consented to Justice Cormier finding that as of their eighteenth birthday on January 1 st , 2011 the children ceased to be children of the marriage. Justice Cormier’s Order dealt with child support for the period of 2003 to 2011. [ 7 ] There were four appearances before Justice Cormier prior to the February 24 th hearing of C.A.V. ’s application. For the three

L.C.M. attended, he was present by telephone. There was an initial provisional hearing on July 8 th , 2019 with just C.A.V. , a conference with the parties on September 30 th , 2019 (C.A.V. appeared in person), a telephone call on November 26 th , 2019 (Justice Cormier expressed surprise that C.A.V. didn’t attend), and a pre-hearing conference with the parties on January 23 rd , 2020. Conference memoranda were produced for the July 8 th and September 30 th appearances. (I advised C.A.V. and L.C.M.

I obtained this information by reviewing the Family Division file.) [ 8 ] Justice Cormier heard C.A.V. ’s application on February 24 th , 2020. The proceeding took less than an hour. Justice Cormier reviewed the documentation before her and indicated which of the issues raised by C.A.V. she would or would not be dealing with. There was no cross-examination of C.A.V. ’s affidavits and no oral evidence offered by either party. C.A.V. and L.C.M. chose not to make oral submissions. [ 9 ] Justice Cormier referred to the February 24 th hearing in her written decision (reported C.A.V. v.

L.C.M. , 2020 NSSC 168 ) as follows: [94] At the commencement of the hearing on February 24, 2020, I provided the parties with an "overview" of the documents the parties had filed, and I provided direction with regard to what the court could consider as requested by C.A.V. I explained I was prepared to adjourn the matter to allow for cross-examination on the materials filed, and to allow for further submissions. The parties declined the court's offer to adjourn the hearing. As noted above, both parties requested the court make a decision based on the documents filed by them up to that point.

The Motion to be Relieved of the Requirement to File a Transcript [ 10 ] In her written decision, Justice Cormier commented on the issue of the transcript for the February 24 th appearance: [89] C.A.V.'s request for an Order against the court administration in the Supreme Court Family Division in the Province of Nova Scotia to produce written transcripts of this proceeding, should an appeal be necessary, is dismissed, and I would reference Finck v. Smith , 2005 NSCA 43 in support of my determination. Evidence and submissions in this matter were filed in written form by both parties.

C.A.V. declined to ask L.C.M. any questions, and both asked the court to make a decision based on documents already before the court. Specifically, on February 24, 2020 both parties requested this court render a decision based on documents filed by them up to that date. Neither party wished to adjourn the matter to allow for cross examination or to make further submissions.

There is no need for a transcription of the proceedings. [ 11 ] C.A.V. relies heavily on this statement by Justice Cormier in her argument that a transcript is not required for her appeal. [ 12 ] In the tele-Chambers call on August 19 th , I dealt first with the transcript issue. I asked L.C.M. some questions to better understand his position. At a tele-Chambers appearance before Bourgeois, J.A. on July 15 th , 2020 L.C.M. had said he thought C.A.V. should be required to provide the transcript.

In his letter of August 11 th responding to C.A.V. ’s two motions (the stay motion and the transcript motion), he said about the transcript issue: “Her second motion – transcripts are a requirement of the court – I do not wish to comment further on this motion”. [ 13 ] In explaining why he had told Justice Bourgeois that he thought a transcript should be provided, L.C.M. said he had just been going along with what he understood was required by the Court’s rules. He could not say what the transcript might add. [ 14 ] C.A.V. was full-throated in her indignation about the transcript issue.

She was emphatic that the issue was already resolved by Justice Cormier’s statement in paragraph 89 of her decision. [ 15 ] C.A.V. ’s stance on the transcript issue is unhelpful. As I tried to explain to her, Justice Cormier’s statement is not determinative of the requirements for an appeal. [ 16 ] The Civil Procedure Rules contemplate the filing of lower court transcripts by appellants. Rule 90.30(2) sets out the standard requirements for the content and format of appeal books.

To be included, “unless a judge of the Court of Appeal directs otherwise” is the evidence of witnesses, “a copy of the transcript of everything said in the course of the proceedings under appeal”, and a copy of the transcript of submissions made ( CPR 90.30(2)(b)(i),(iii)(C)). [ 17 ] In this case, the February 24 th hearing before Justice Cormier proceeded without oral evidence or submissions. In preparation for C.A.V. ’s motion, and to be sure of what the hearing had involved, I listened to the recording.

Near its conclusion, C.A.V. told Justice Cormier she was relying on her written documentation. [ 18 ] As noted earlier, February 24 th was not the only date when Justice Cormier dealt with C.A.V.’s variation application. There were the four pre-hearing calls/conferences. I was able to remind C.A.V. and L.C.M. about these appearances as I had reviewed the Family Division file for the purpose of seeing what other proceedings there may have been. I did so because in addition to transcription of the February 24 th hearing, transcripts of these appearances might also be required for the appeal book.

As I mentioned above, the Civil Procedure Rules direct that an appeal book is to contain “a copy of the transcript of everything said in the course of the proceedings under appeal”. [ 19 ] The Civil Procedure Rules afford a judge of the Court of Appeal the discretion to direct that an appellant need not include any transcripts in the appeal book. Such discretion is exercised infrequently. As Hamilton, J. said in Ocean v.

Economical Mutual Insurance Co. , 2009 NSCA 33 : [13] …The reason transcripts are routinely required is because they afford efficient, precise and reliable access to prior proceedings both in preparation for and at the hearing of the appeal. Often what is said in one part of a proceeding is explained or expanded by the

context of the whole proceeding… [20] Transcripts will almost certainly be ordered where the appellant views what was said in other proceedings as relevant to theappeal and is intending to refer to them (Ocean v. Economical Mutual Insurance Co., at para. 13), and where there is a risk that without atranscript the appellant “might re-cast the submissions” that were made in the lower court (Hughes v.

Vincent, 2015 NSCA 21, at para.20). [21] However, in circumstances where a transcript is not required by either party (or may not be), the direction for what the appealbook must contain has not included the transcript (L.R.F. v. Nova Scotia, 2004 NSCA 121, at para. 9; L.F. v. Smith, 2005 NSCA 43, atpara. 4). [22] In Ocean and Hughes, the respondents viewed the transcripts as necessary for the appeal. In Ocean there had been oral evidenceand submissions. In Hughes there was no testimony but there were submissions by Mr. Hughes and opposing counsel.

As Fichaud, J.A.said in Hughes: “It is important that this Court be able to read what was said [to the judge in the court below]” (at para. 20). [23] C.A.V.’s appeal appears to have more in common with the cases where transcripts were not ordered to be included in the appealbook. The appearance before Justice Cormier lasted slightly less than one hour. Justice Cormier did most of the talking. There was notestimony and no oral submissions. C.A.V. told Justice Cormier she was relying on her “written documentation”. Justice Cormier’sdecision exhaustively details the documentation she received and reviewed.

It is that documentation, submitted by C.A.V. in support ofher application, and by L.C.M. in response, that is to be included in the appeal book. Reflecting on these facts, I have asked myself, inthe circumstances of this case, is the transcript necessary for the “efficient and just conduct” of C.A.V.’s appeal (Ocean, at para. 13). [24] It does not appear to me the transcript is necessary to fairly and effectively deal with C.A.V.’s appeal. Given the circumstancesin this case, I am prepared to direct that C.A.V. is not required to include in her appeal book a transcript of the proceedings before JusticeCormier.

I have decided to exercise my discretion to relieve C.A.V. of the usual requirement for the transcript in light of L.C.M. notidentifying a need for the transcript and not seeking to have it included, and C.A.V. indicating she will not be relying on what was “saidin the course of the proceedings under appeal”.

Justice Cormier’s statement in paragraph 89 of her decision has played no role in mydecision. [25] However, C.A.V.’s appeal book must contain all the documentation presented to Justice Cormier so there is a complete recordon appeal of everything she had before her. [26] In conclusion on the transcript issue, I will add that the exercise of my discretion as a Chambers judge does not bind the panelhearing C.A.V.’s appeal should that panel decide a transcript is required to fully and fairly determine the issues before them.

Justice Cormier’s Order – The Style of Cause Issue [27] As it is also related to the issue of what the appeal book should contain, I will now address C.A.V.’s complaint about JusticeCormier’s Order. As I understand it, C.A.V. objects to the style of cause – the initialization of her name and L.C.M.’s and the descriptionof her as “Petitioner”. C.A.V. says she was never a “petitioner”. [28] C.A.V. demands that a corrected Order be produced, and, if not corrected, she says it should be quashed.

It appears she believesthe style of cause for the Order, as drafted, renders it invalid. [29] There is little that needs to be said concerning C.A.V.’s objections to the Order. The style of cause does refer to C.A.V. as“Petitioner” (L.C.M. is styled as “Respondent”). It may be that “Applicant” would have been a more accurate description. However, evenif this is the case, the description of C.A.V. as “Petitioner” on the Order is of absolutely no consequence. Nor is it material that she andL.C.M. are identified by their initials.

If the continued identification by initials is unnecessary, the parties can raise this at the appeal. [30] If she has not done so, I direct C.A.V. to include in the appeal book for this appeal Justice Cormier’s Order as issued on July 3rd, 2020. There is no basis whatsoever for C.A.V. ’s claim that the style of cause on the Order must be changed for the Order to havelegitimacy. The Motion for a Stay [31] C.A.V. is seeking to have the enforcement of Justice Cormier’s Order stayed pending the determination of her appeal.

A stay ofa judgment under appeal can be granted pursuant to Civil Procedure Rule 90.41(2). [32] A stay is a discretionary remedy. It is intended “to achieve justice as between the parties in the particular circumstances of theircase” (Hendrickson v. Hendrickson, 2004 NSCA 98, at para. 11, per Saunders, J.A. quoting Widrig et al. v. R. Baker Fisheries Limited etal. (1998), 1998 NSCA 20 , 168 N.S.R. (2d) 378). [33] The traditional test applied by the Court on a stay application is the “Fulton” test (Fulton Insurance Agencies Ltd. v. Purdy,1990 NSCA 23).

Under the Fulton test, the party seeking the stay must show: (1) an arguable issue for appeal; (2) they would experienceirreparable harm if the stay were to be denied; (3) the balance of convenience favours a stay; or (4) there are exceptional circumstances. [34] The starting point for assessing whether C.A.V. has an arguable ground of appeal is her Notice of Appeal where she has set outfour grounds: 1. Cormier J. erred in law by failing to exercise her jurisdiction over the subject matter within

Section S.17 of the Divorce Act – R.S.C. 1985, c.3 (2nd Supp.), further ignoring the world renowned judicial ruling by Sopinka J. on Jurisdiction as well as the judiciallyrespected R. Variation and Termination of Support Orders by Julien D. Payne and Marilyn A. Payne, all of which were properly beforethe court.

2. Cormier J. erred in fact and law, exceeding her jurisdiction when ignoring evidence and the legislated table amounts within FederalChild Support Guidelines SOR 97-175 – DIVORCE ACT relying instead on common law not filed by either party and her work skills asa former child protection lawyer to effectively confuse, distort or otherwise malign the facts further failing to acknowledge anywhere inher 47 page decision that the appellant is collecting income assistance by way of disability benefits and that the disability is a diagnosisof P.T.S.D. Directly caused by Department of Justice Canada.

This has been undisputed and unquestioned evidence throughout theproceedings. 3. Cormier J. [erred] in law and exceeded or otherwise, abused her ‘discretion’ jurisdiction by ordering the appellant to pay monies127% above the legislated table amounts for child support, imputing income against the appellant when the evidence, undisputed andunquestioned since the file opened in June 2018 shows that the appellant’s earnings have remained consistently below poverty line since2003. 4.

In the absence of law, jurisdiction, rationalization and reason, Cormier J’s judicial work amounts to a cruel, unreasonable andarbitrary use of power and control and is appearing as a protected criminal offence. [35] It will be immediately apparent that C.A.V. ’s fourth ground and statements in her second ground are plainly not only notarguable grounds, they are defamatory. [36] I am unable to say C.A.V. has satisfied the first branch of the Fulton test.

In the tele-Chambers hearing before me, she did notilluminate her grounds of appeal or offer any insights into how they qualify as having “sufficient substance to be capable of convincing apanel of the court to allow the appeal…” (Coughlan v. Westminer Can.

Ltd. (1993), (NS CA), 125 N.S.R. (2d) 171(C.A.) at para. 11) I do not want to drill into the question of the merits of C.A.V. ’s grounds of appeal beyond noting that an appeal is notan opportunity to re-litigate the proceeding in the court below. [37] I invited C.A.V. during the hearing to provide submissions on the other branches of the Fulton test, the issues of irreparableharm and the balance of convenience. She declined to do so. She said everything she wanted to say is in the documents she filed.

I have reviewed this material – C.A.V.’s filings for the July 15th tele-Chambers appearance before Justice Bourgeois and for the tele-Chambersappearance before me. Much of what C.A.V. has said in her filings is a criticism of Justice Cormier’s decision. They are not helpful onthe issue of whether C.A.V. has satisfied the requirements for a stay. [38] C.A.V. clearly found the tele-Chambers experience to be frustrating. She became agitated during the call, raising her voice andinterrupting. She was resistant to efforts directed at helping her focus.

As a consequence she brought nothing to the table to persuade methat she will experience harm, let alone irreparable harm, if Justice Cormier’s order is not stayed and she is successful on appeal. [39] As for the balance of convenience, C.A.V. equally failed to show how she will suffer greater harm than L.C.M. if a stay is notgranted. I am mindful that Justice Cormier’s Order concerns arrears of child support accumulated from 2003 to 2011, an eight-yearperiod. During this time, the children, aged 10 to 18, were being solely supported by L.C.M..

I note that Justice Cormier found thatC.A.V. : [102] …has provided no evidence with regard to any effort she made to seek employment to enable her to meet her obligation to thechildren to pay child support during the relevant period between June 1, 2003 and January 31, 2011… [40] In her decision, Justice Cormier characterized the evidence presented by C.A.V. as consisting of “hearsay statements,unqualified opinions, conjecture, and unsworn letters from third parties” (at para. 39).

She also noted the evidence C.A.V. did notsupply: [43] C.A.V. has claimed she was diagnosed with Post Traumatic Stress Disorder, and as a result, she was unable to work. C.A.V. did notfile evidence with the court to confirm if, or when, C.A.V. was diagnosed with any mental, emotional, or physical condition. There areno medical reports of how any diagnosis may have impacted on C.A.V's past or present ability to earn an income, or may impact onC.A.V's future ability to earn an income.

In addition, C.A.V. failed to provide full disclosure of the particulars of a Teacher's pensionincome of $49,000 per year reportedly available to her in 2027. [41] C.A.V. provided nothing in support of her motion for a stay that paints a different picture of her circumstances. She has entirelyfailed to satisfy the Fulton requirements for obtaining a stay.

She has not shown how her grounds of appeal are likely to succeed, howshe will suffer irreparable harm without a stay and why the balance of convenience is tilted in her favour. [42] I further find there are no exceptional circumstances here to justify a stay of Justice Cormier’s Order. The motion for a stay ofthe Order is dismissed. Costs [43] The issue of costs was not raised before C.A.V. angrily declared she was hanging up the call and did so. Although this meantL.C.M. did not get to address the issue, I have decided no costs will be ordered.

Conclusion [44] C.A.V. does not have to include a transcript of the proceedings before Justice Cormier in her appeal book. Justice Cormier’sOrder is to be filed in its existing form in the appeal book. The motion for a stay is dismissed without costs. Derrick, J.A.