Charapovich v. Charapovich, 2023 NSCA 15

Nova Scotia Court of Appeal Citation: Charapovich v. Charapovich , 2023 NSCA 15 Date: 20230314 Docket: CA 517190 Registry: Halifax Between: Vitali Charapovich Appellant v. Hanna Charapovich Respondent Judge: The Honourable Justice Elizabeth Van den Eynden Appeal Heard: February 10, 2023, in Halifax, Nova Scotia Subject: Divorce Act , R.S.C., 1985, c. 3 (2nd Supp .); leave to appeal; interim relief (primary care, decision making, imputation of income and child support)

Summary: The appellant challenges an interlocutory order made pursuant to s.15.1 (2) and s.16.1 (2) of the Divorce Act which awarded interim; primary care, decision making and child support to the respondent. Income of $100,000 was also imputed to the appellant pursuant to s.19.1(

f) of the Act . The appellant asserts the judge made errors of law, erred in her fact finding, and demonstrated bias towards him. Issues:

(1) Should leave to appeal be granted?

(2) Did the judge err in her award of interim primary care, decision making, imputation of income and child support?

(3) Did the judge demonstrate bias? Result: Leave to appeal granted but appeal dismissed with costs of $2000. Such interim decisions are intended to stabilize a child's situation and provide appropriate arrangements until the matter can be heard in full. The judge’s determinations are subject to considerable deference and this Court cannot intervene unless the judge applied a wrong principle of law or a patent injustice would result from the order. The appellant established neither nor was there any merit to the complaint of bias. 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 48 paragraphs. Nova Scotia Court of Appeal Citation: Charapovich v. Charapovich , 2023 NSCA 15 Date: 20230314 Docket: CA 517190 Registry: Halifax Between: Vitali Charapovich Appellant v. Hanna Charapovich Respondent

Judges: Van den Eynden, Fichaud, and Beaton, JJ.A. Appeal Heard: February 10, 2023, in Halifax, Nova Scotia Written Release March 14, 2023 Held: Leave to appeal allowed, appeal dismissed with costs, per reasons for judgment of Van den Eynden, J.A.; Fichaud and Beaton, JJ.A. concurring Counsel: Appellant, self-represented Pavel Boubnov, for the respondent Reasons for judgment: Introduction [ 1 ] On appeal, Mr. Charapovich challenges interim parenting arrangements, income imputation and child support provisions granted by Justice Elizabeth Jollimore of the Nova Scotia Supreme Court. The judge’s interim order was made pursuant to sections 15.1 (2) , 16.1 (2) and 19.1 (

f) of the Divorce Act , R.S.C., 1985, c. 3 (2nd Supp .). Mr. Charapovich asserts the judge made errors of law and erred in her fact finding. [ 2 ] Such interim decisions are intended to stabilize a child's situation and provide appropriate arrangements until the matter can be heard in full. The judge’s determinations are subject to deference and this Court cannot intervene unless the judge applied a wrong principle of law or a patent injustice would result from the order. [ 3 ] Given the challenged order provides interim, not final, relief, the issue of leave to appeal was raised by the panel.

The parties disagreed as to whether leave to appeal is required. [ 4 ] For the reasons that follow, leave is required and I would grant leave to appeal. However, I would dismiss the appeal as Mr. Charapovich did not establish the judge erred nor does a patent injustice arise from her order. Background [ 5 ] In the pending divorce proceedings in the court below, Ms. Charapovich applied for interim relief including primary care of the children (now ages 12 and 7), decision making respecting the two children and support, both child and spousal.

For the purposes of determining the quantum of support, she argued that income should be imputed to Mr. Charapovich. [ 6 ] Mr. Charapovich requested the judge order shared parenting with each parent having equal parenting time on a rotating schedule. He opposed Ms. Charapovich having the final say on major decisions respecting the welfare of their children. He argued income should not imputed to him.

As to the quantum of any support award, he contended that his limited ability to pay must be considered, together with the payments he made after separation and his obligation to support his new partner and her children. [ 7 ] The parties filed the usual documentation (affidavits, statements of property, income, expenses, and parenting statements). They gave limited direct evidence and were cross-examined.

The matter stretched over 3 days – May 25, 2022 for hearing the evidence, July 18, 2022 for submissions, and July 22, 2022 so the judge could deliver her oral decision [1] . [ 8 ] Between closing submissions and the decision, Mr. Charapovich filed some additional financial information. As a preliminary matter to delivering her oral decision, the judge addressed Mr. Charapovich’s late attempt to supplement the record. The judge did not take this new information into consideration for the purposes of the interim motion and explained why. In

summary, she reasoned: - The purpose of the return date (July 22nd) was to deliver her decision on the evidence and submissions she had received. - The documents were submitted after the evidence closed and after hearing closing submissions. The documents were not in evidence. Neither she nor counsel for Ms. Charapovich had time to review them. - Admitting them at this stage of the proceedings was prejudicial to Ms. Charapovich.

The judge said: It is a rule of natural justice that any evidence I am to consider be provided to the other party so that they have an opportunity to consider it in determining the questions they want to ask their own clients, determine the questions they want to ask the witness, and determining the arguments they want to make before me. None of this evidence was here in time for Mr. Boubnov to make these decisions, so it would be prejudicial to his client to allow those documents to be admitted now. - The filing dates, which Mr.

Charapovich missed, had been made clear to him and the delay lay at his feet. - Although she would not consider these materials for the interim hearing, they would be taken into consideration in the final divorce proceeding.

[ 9 ] Ms. Charapovich was successful on all fronts except for interim spousal support. Justice Jollimore made these interim determinations: - Ms. Charapovich should have primary care and custody of the children. The judge found this parenting arrangement would maintain stability for the children. - Mr. Charapovich was granted parenting time on alternating weekends from Friday at 3 p.m. to Sunday at 6 p.m. On the week with no weekend access, he would have parenting time Tuesday after school until Thursday morning at 9 a.m.

The interim order also made provision for sharing parenting time during the Christmas, Easter, and summer school breaks. - Regarding decision making, the judge ordered Ms. Charapovich to consult with Mr. Charapovich on all major parenting decisions but in case of disagreement, Ms. Charapovich shall have the final say. The judge found the circumstances of the parties were not conducive to shared decision making and given her concerns with Mr.

Charapovich’s approach to decision making and communications in the past, it was not appropriate for him to be the final decision maker. - An annual income of $100,000 should be imputed to Mr. Charapovich under 19.1 (

f) of the Federal Child Support Guidelines . (This subsection authorizes a judge to impute income to a spouse who has failed to provide income information when under a legal obligation to do so.) - Having decided that the children be placed in the primary care of Ms. Charapovich, the judge ordered Mr.

Charapovich to pay the corresponding table amount of child support—being $1383 per month commencing June 1, 2022. - Although the judge found there was an entitlement to interim spousal support, she declined to make an award, given the interim level of child support she awarded and the parties’ respective incomes. [ 10 ] Mr. Charapovich is self employed in the IT sector. For 2020 he reported gross business income of $332,308 and net income of $41,299. However, the evidence respecting expenses deducted from gross income was lacking. Although Ms.

Charapovich had requested this information prior to the hearing, it was not disclosed. The judge made this finding: There is no evidence of the necessity of the expenses which reduced his gross income. I am satisfied that his lifestyle demonstrates access to income and his gross earnings can sustain an annual income of $100,000. [ 11 ] The spousal support determination is not contested on appeal. The other noted determinations are challenged. Mr.

Charapovich requests we intervene by either reversing the challenged interim provisions and sending the matter back to the court below for a redetermination, or in the alternative, grant interim shared parenting and decision making and reduce his child support. Issues [ 12 ] Mr. Charapovich alleges the judge erred in law and in her fact finding and presented a long and somewhat overlapping list of complaints. In

summary, he says the judge: - Misapprehended and omitted evidence. - Failed to consider the best interests of the children and failed to justify changes in what he claimed was a de facto shared parenting arrangement post separation. - Imputed an unrealistic income and ordered retroactive child support for a period when the parties had shared parenting. - Gave inappropriate weight to the credibility of the respondent. - Failed to follow proper procedure. - Demonstrated bias towards him. [ 13 ] Before turning to the merits of Mr. Charapovich’s appeal, the issue of leave must be addressed.

Doing so in some detail will be helpful to future appeal proceedings under the Divorce Act . Leave to appeal Is leave required for interim orders under the Divorce Act ? [ 14 ] Mr. Charapovich filed a General Notice of Appeal; however, this is an appeal from an interim order. Neither party addressed leave in their written submissions but were directed by the panel to address the issue in their oral submissions. [ 15 ] Mr. Charapovich contends leave to appeal is not required for an interim order issued pursuant to the Divorce Act , which is

federal legislation. He points to s. 21(1) of this Act which provides him a right of appeal and makes no mention that leave is required. Further, when filing his General Notice of Appeal and appearing at the motion for date and direction to set down his appeal, the issue of leave was not raised, nor, prior to the panel raising the issue, did the respondent contend leave was required. However, should we determine leave is required, Mr.

Charapovich submits leave should be granted because his appeal has merit. [ 16 ] The respondent says leave is required and relies on s. 40 of the Judicature Act , R.S.N.S. 1989, c. 240 , which mandates that leave to appeal is required for an appeal of an interlocutory order. The respondent urges we deny leave, asserting the appellant has not raised an arguable issue. [ 17 ] The requirement of leave in the family law context has been addressed by this Court in several cases. For example, see Burden v. Burden , 2013 NSCA 30 at para. 1 and 2 and Leyte v.

Leyte , 2019 NSCA 41 at paras. 21 and 24 . [ 18 ] Further, in Elgner v. Elgner , 2011 ONCA 483 (leave to appeal to SCC denied, No. 34372), the Ontario Court of Appeal answered the question of whether an interim support order made under the Divorce Act can be appealed as of right or only with leave under s. 19 (1) (

b) of Ontario’s Courts of Justice Act , R.S.O. 1990, c. C.43 . Under s.19(1)(b), like our Judicature Act , leave is required to appeal interlocutory orders. [ 19 ] Mr. Elgner argued leave was inconsistent with his general right of appeal under s. 21(1) of the Divorce Act .

The appeal court found the leave provision of the Courts of Justice Act was not inconsistent with the general right of appeal provided by s. 21(1) of the Divorce Act . [2] Citing s. 21(6) of the Divorce Act , the court contextualized the general right and said: [39] …Section 21(1) sets out the appeal right and s. 21(6) sets out how, among other things, that right is to be asserted. [ 20 ] Like Elgner , the interim order Mr. Charapovich challenges is an interlocutory order and leave is required.

The following provisions of the Divorce Act , Judicature Act and Civil Procedure Rules make this clear. [ 21 ] Section 21 (1) of the Divorce Act provides a general right of appeal for final and interim orders: 21

(1) Subject to subsections (2) and (3), an appeal lies to the appellate court from any judgment or order, whether final or interim, rendered or made by a court under this Act. [ 22 ] Subsection 21(2) is not relevant to leave and s. 21(3) sets the timeline to file an appeal. However, the above general right of appeal is modified by s. 21(6): Procedure on appeals

(6) Except as otherwise provided by this Act or the rules or regulations, an appeal under this

section shall be asserted, heard and decided according to the ordinary procedure governing appeals to the appellate court from the court rendering the judgment or making the order being appealed. [bolding added] [ 23 ]

Section 40 of Nova Scotia’s Judicature Act provides that an appeal from an interlocutory order requires leave as provided in the Rules or by the Court of Appeal: 40 There is no appeal to the Court of Appeal from any interlocutory order whether made in court or chambers, save by leave as provided in the Rules or by leave of the Court of Appeal. [ 24 ]

Section 40 of the Judicature Act refers to interlocutory not interim orders. Our Civil Procedure Rules , made under the Judicature Act , provides the link. Rule 90.01 makes clear that an interim order should be treated as an interlocutory order, unless the context requires otherwise: 90.01

Definitions

(1) In this Rule, unless the context requires otherwise , “interlocutory appeal” means an appeal of an interlocutory order; “interlocutory order” in reference to an order under appeal, includes an interim order; [bolding added] [ 25 ] The context here does not require otherwise. The challenged order does not dispose of the rights of the parties to the litigation. [3] Rather, as noted, it provides interim parenting and support terms until the matter pending in the court below can be heard in full. [ 26 ] Having settled that leave to appeal is required, I turn to the test for leave and whether Mr.

Charapovich has satisfied his burden. Before doing so, I note that my determination on the leave requirement is restricted to the appeal of (interim) interlocutory orders under the Divorce Act and does not address interim appeals under other statutes. Has the appellant satisfied his burden? [ 27 ] Mr. Charapovich must raise an “arguable issue”, see Lavy v. Hong , 2018 NSCA 28 at para. 24 . As will become apparent in my analysis, some of the complaints of error Mr. Charapovich raises have no merit. That said, I am satisfied that he has raised an “arguable issue” and would grant leave.

Time limits to commence appeal, form of Notice, and timing for date and directions motion for interlocutory appeals under the Divorce Act

[ 28 ] In addition to making clear that leave to appeal is required for interlocutory (interim) orders under the Divorce Act , it would also be useful to address the related issue of time limits for commencing interlocutory appeals under that Act , the form of Notice and timing for filing the motion for date and directions. [ 29 ] The issue of time limits has come before this Court before but not been resolved. In Chedrawy v.

Chedrawy , 2021 NSCA 73 , the issue of whether an appeal of an interlocutory order under the Divorce Act must be appealed in 30 days (as provided in the Divorce Act ) or 10 days (as provided by our Rule 90.13 (3)) was raised. In Chedrawy the appellant filed a motion to extend time to appeal an ex parte order requiring she return the parties’ children to Nova Scotia. Bryson, J.A. sitting in chambers, did not have to resolve the timing issue because however calculated, Ms.

Chedrawy was out of time. [ 30 ] In my view, there is no conflict between our Rules and the Divorce Act . [ 31 ] The Divorce Act provides the same appeal path and timeline for both interim (interlocutory) and final orders. The Divorce Act instructs: 21

(1) Subject to subsections (2) and (3), an appeal lies to the appellate court from any judgment or order, whether final or interim, rendered or made by a court under this Act. … 21

(3) No appeal lies from an order made under this Act more than thirty days after the day on which the order was made. [ 32 ] The timeline under s. 21 (3) is compatible with our Rule 90.1 3 which also directs that orders under the Divorce Act have a 30- day time limit and does not differentiate between interlocutory and final orders: 90.13 Deadline for starting appeal …

(3) An appeal, or application for leave to appeal, from one of the following kinds of orders, or from the decision upon which it is based, must be started no more than the number of days in the following table after the date of the order, unless legislation provides, or a judge of the Court of Appeal permits, otherwise: Kind of Order Number of Days After under Divorce Act 30 days, within the meaning of Divorce Act … … interlocutory or costs only order of judge or court 10 days, within the meaning of Rule 94 … … … … [ 33 ] In short, although Rule 90.13(3) provides a shorter time limit for an appeal of an “interlocutory or a costs only order”, this can and should be read as applying to interlocutory orders other than those granted pursuant to the Divorce Act .

Appeals under the Divorce Act are to be started in “30 days, within the meaning” of the Divorce Act . [ 34 ] Finally, I note that the proper form of notice for an interlocutory appeal under the Divorce Act is a Notice of Application for Leave to Appeal and Notice of Appeal (Interlocutory)—see Rule 90.09. Further, Rule 90.25 specifies the deadlines to

schedule and hear motions for date and directions and in the case of a Notice of Appeal (Interlocutory), requires that such a motion be scheduled and heard within 15 days after the filing of the notice. Standard of Review [ 35 ] Before turning to the merits of this appeal it is important to keep in mind the standard of review that governs my analysis of whether appellate intervention is warranted. [ 36 ] In Bay Ferries Limited v. Houston , 2019 NSCA 84 this Court said: [26] Issues of law attract correctness.

Issues of fact or of mixed fact and law with no extractable legal error are reviewed for a palpable and overriding error, meaning a clear error that affected the outcome. Discretionary rulings may be overturned for legal error or when the ruling would cause a patent injustice; as it is presumed that judicial discretion should not be exercised to cause a patent injustice, this is a category of legal error. Innocente v. Canada (Attorney General ), 2012 NSCA 36 , paras. 22-29 . [ 37 ] As to the appellant’s bias complaint, he bears the burden of establishing a reasonable apprehension of bias or actual bias.

The burden is onerous as there is a strong presumption of judicial impartiality that must be overcome. The bias allegation is seen through the lens of whether a reasonable and informed person would think the judge's conduct demonstrated a pre-judgment of the issues and/or a bias such that the hearing was unfair. (See Stanton v. Inglis , 2022 NSCA 60 at para. 4 and Wewaykum Indian Band v. Canada , 2003 SCC 45 at para. 60 ). Analysis [ 38 ] On appeal, Mr. Charapovich extensively reviewed the evidence contained in the record including the arguments he put forth in the court below.

In his view, had the judge understood and properly considered the evidence, she would have ordered the interim relief

he urged. In effect, Mr. Charapovich advances the same arguments in this Court as he did unsuccessfully in the court below. [ 39 ] This case warrants the reminder that an appeal is not a retrial. [ 40 ] Nor is an appeal a chance to second guess the exercise of judicial discretion. That is particularly so in the family law context where a judge is called upon to make interim decisions for children pending final resolution.

Generally speaking, such interim decisions are inherently highly discretionary, as is the case here, and intended to stabilize a child's situation and provide appropriate arrangements until the matter can be heard in full. [4] [ 41 ] Having reviewed the record and considered the submissions, I see no basis for our intervention. [ 42 ] With respect, Mr. Charapovich has not established any error of law nor a palpable and overriding error in the judge’s factual determinations. There is no substance to the allegations the judge misapprehended or omitted evidence, improperly gave weight to the credibility of Ms.

Charapovich, and failed to follow proper procedures. [ 43 ] Mr. Charapovich is particularly critical of the brevity of the judge’s reasons relating to her award of primary care. He argues her reasons illustrate a failure to properly consider the best interests of the children and thus erred in law. The judge said: [8] The children have had frequent time with their father when he’s been in Nova Scotia. During the two years of the global pandemic, quarantine requirements and Mr. Charapovich’s travel requirements have meant that the children have spent more time with their mother, and Mr.

Charapovich’s circumstances have further changed given that he has brought his new partner and her three children to Canada. This is a significant change for the Charapovich children who now have stepsiblings and a stepmother. [9] To maintain stability for the Charapovich children, I determine that their primary base should be with their mother. In her environment they are the sole focus as children. [ 44 ] Although her reasons are succinct, I am satisfied that Justice Jollimore was well aware of the legal principles that must guide her interim decision making. That is evident in the record.

Further, I am satisfied that her application of law to the facts, as she found them, demonstrate no basis for appellate intervention. [ 45 ] I note that Mr. Charapovich’s complaint about retroactive support is frivolous as the support award is hardly retroactive. The judge set a start date of June 1, 2022, and explained she did so because but for the two adjournments (one for submissions and one to deliver her oral decision) the matter was otherwise essentially concluded on May 25, 2022. [ 46 ] Similarly, Mr.

Charapovich’s dissatisfaction with the judge not accepting the additional financial information he wanted her to consider after the close of evidence and submissions is misplaced. Justice Jollimore properly held that the delay lay at Mr. Charapovich’s feet. The judge was well within her right to not accept this information for the purpose of the interim hearing. [ 47 ] As to bias, Mr. Charapovich holds the view the judge was emotionally driven and favoured the respondent.

In support of this contention, he essentially lists the conclusions the judge drew that were not in his favour and argues this is indicative of her bias. The complaint of judicial bias is entirely without merit and warrants no further comment from this Court. [ 48 ] Mr. Charapovich may not like the judge’s interim parenting and support determinations, including the imputation of income but they find sufficient support in the record and in no way amount to a patent injustice. Conclusion [ 49 ] For the foregoing reasons, I would grant leave to appeal but dismiss the appeal. I would order Mr.

Charapovich to forthwith pay costs to Ms. Charapovich in the amount of $2000 inclusive of disbursements. Van den Eynden, J.A. Concurred in: Fichaud, J.A. Beaton, J.A. [2] Elgner, was followed by the Quebec Court of Appeal in Droit de la famille – 121718 , 2012 QCCA 1229 .