J. NOVA SCOTIA COURT OF APPEAL Citation: Terry v. Francis, 2004 NSCA 118 Date: 20041006 Docket: CA 213701 Registry: Halifax Between: Jennifer Ann Terry v. Steven Alexander Francis Respondent Judges: Glube, C.J.N.S.; Freeman and Cromwell, JJ.A. Appeal Heard: September 27, 2004, in Halifax, Nova Scotia Held: Appeal allowed per reasons for judgment of Cromwell, J.A.; Glube, C.J.N.S. and Freeman, J.A. concurring. Counsel: Theresa Marie Forgeron, for the appellant respondent not appearing Reasons for judgment: [1] Ms. Terry appeals an order of Vernon MacDonald, J.S.C. (Fam. Div.) which, in response to an application by Mr. Francis to vary a child maintenance order, reduced his child maintenance obligation to $1.00 per month. Ms. Terry submits that the judge erred in principle by allowing Mr. Francis’ variation application to proceed even though he had not made adequate disclosure of his financial situation. [2] Mr. Francis and Ms. Terry are the parents of two children, aged and 7. On July 2, 2002, in response to an earlier variation application by Mr. Francis, M. C. MacLellan, J.S.C.(Fam. Div.) affirmed the amount of maintenance set out in an earlier order in the monthly amount of $265 and confirmed the considerable arrears payable under that order. The judge also directed Mr. Francis to provide Ms. Terry with “...a copy of his income tax return, completed and with all attachments, even if the return is not filed, along with all notices of assessment received from Revenue Canada, on or before June 1st of each and every year.” [3] Justice MacLellan’s order, like the preceding one, immediately fell into arrears. In fact we were told at the hearing that Mr. Francis had never paid any child support voluntarily under these orders and that what had been recovered was as result of the efforts of the Maintenance Enforcement Program placing garnishments against his wages. [4] In April of 2003, less than a year after the variation application to Justice MacLellan, with arrears now approaching $4000, Mr. Francis again applied to vary the maintenance order. In support of his application, he filed an incomplete Statement of Financial Information. It did not attach any income tax information for the 2002 tax year or the statement of earnings or statement from an employer as required by paragraph in Part of the form. Even though he acknowledged receiving student loan and showed some $6500 expenses per year for books and tuition, no documentation relating to his student loan was attached and the only income shown was included under the heading “Gross Salary or Wages or Net Professional Income.” [5] The application came on for hearing in December of 2003 before Justice MacDonald. By then, Mr. Francis’ incomplete Statement of Financial Information was 10 months out of date and he was in default of the disclosure provision in Justice MacLellan’s order. Mr. Francis told the Court that his tax information was with Block, but he could not afford the fee for them to file his return or to get his documents back. He presented no T-4 slips and incomplete income documentation for the 2002 and the 2003 years. He also sought to rely on medical disability of which he had given no previous notice. [6] Counsel for Ms. Terry objected to the variation application being entertained because of Mr. Francis’ lack of disclosure of income documentation and of his alleged medical problems. The judge indicated in response to counsel’s objection that if counsel were disadvantaged, he could adjourn the proceedings. However, the judge heard the evidence and submissions and gave decision. [7] The judge appeared concerned that court staff had scheduled the application without the proper documentation being in the file and that Mr. Francis, as self represented litigant, should not suffer for that oversight. Mr. Francis was apparently eligible for Legal Aid but had chosen to represent himself. The judge appears to have given no weight to the disadvantage which the incomplete and late disclosure worked on counsel for Ms. Terry. [8] The standard of appellate review is to determine whether the reasons of the judge at first instance disclose an error in principle, significant misapprehension of the evidence or that the award is clearly wrong: Hickey v. Hickey, 1999 CanLII 691 (SCC), [1999] S.C.R. 518 at paras. 11 and 12; Betlem v. Tzagarakis, 2003 NSCA 141 (CanLII), [2003] N.S.J. No. 458 (Q.L.) at para. 2. [9] In my opinion, the judge’s decision was procedurally unfair to Ms. Terry and wrong in principle. He erred in hearing Mr. Francis’ application to reduce the amount of child maintenance and to cancel arrears absent full disclosure by Mr. Francis. As Goodfellow, J. put it in MacLean v. MacLean (2002), 2002 NSSC (CanLII), 200 N.S.R. (2d) 34 at para 19, “Full disclosure in family matters is given. Failure of party to [disclose] will, in most circumstances, result in adverse consequences.” In my respectful view, only in rare circumstances should a party applying to reduce a child support obligation be heard absent that party making full disclosure. Moreover, the absence of disclosure here was unfair to Ms. Terry as it prevented her from making full response to Mr. Francis’ application. [10] would set aside the order of MacDonald, J.S.C.(Fam.Div.) and dismiss Mr. Francis’ application without prejudice to his bringing new variation application on proper material. [11] Ms. Terry did not request costs and would therefore order none. Cromwell, J.A. Concurred in: Glube, C.J.N.S. Freeman, J.A.
The father, who was in arrears under an order requiring him to pay child support, applied to vary the support order which had been made less than a year before. He failed to make the required financial disclosure and relied on a medical disability of which he gave no prior notice. The judge allowed the application to proceed, over the objections of the mother, and reduced the child support obligation to $1 per month. The mother appealed. Appeal allowed; the judge's decision to allow the application to proceed was procedurally unfair to the appellant and wrong in principle. Only in rare circumstances should a party applying to reduce child support be heard absent that party making full disclosure.