1993 S.H. No. 93‑4034 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: MARLENE CAMPBELL ‑and- DANIEL WALL Respondent HEARD: At Halifax, Nova Scotia, before the Honourable Justice John Davison November 2, 1993 DECISION: November 2, 1993 WRITTEN RELEASE OF ORAL DECISION: December 23, 1993 COUNSEL: A. Pavey, for the Appellant C. Berryman, for the Respondent DAVISON, J.: (Orally) will deliver decision. It might be subject to editing and to enhancing but the parties are entitled to know as soon as possible what my decision will be. This is an appeal from the decision of Judge Levy of the Family Court for the Province of Nova Scotia, which bears date 14th day of July 1993. The appeal is taken pursuant to Section 44 of the Family Maintenance Act, R.S.N.S., 1989, Chapter 160. Section 44 (1) reads; 44 (1) An appeal lies to the county court from any decision, judgment or order of court or judge thereof. (2) The county court shall not rehear the evidence on an appeal but shall consider the record from the court. (3) Notwithstanding subsection (2), where, because of the condition of the record or for any other reason, the county court, upon application, is of the opinion that the interests of justice would be better served by hearing and determining the appeal by holding trial de nova the county court may order that the appeal shall be heard by way of trial de novo." Since the merger of the two courts, the designation of Supreme Court should be substituted for the reference in the statute to the County Court. The record before me consists of very brief decision from Judge Levy, Notice of Appeal, the original application to vary and also various memoranda of counsel submitted to the judge in the Family Court, copy of an affidavit of the respondent filed before Judge Levy and an unsigned copy of document, which purports to be an affidavit of Marlene Campbell. Specifically, no transcript of evidence has been placed before me and no affidavits have been placed before me. In his factum, the appellant counsel set out number of factual matters. The respondent, in his factum, accepts these facts but with certain stipulated exceptions. It is clear from what has been said that the appellant gave birth to child on April 20, 1985 and named the respondent as the natural father of her child. In 1985 there were several court appearances which took place before Judge J.V. MacDonald and in particular court appearance on September 30, 1985 during which the parties testified. Judge Levy in his decision sets out the operative portion of the order of Judge MacDonald. The order required the respondent to pay lying‑in expenses in the amount of $209.00 together with periodic payments for the support of the child in the amount of $100.00 every two weeks or in the alternative lump sum payment of $7,500.00 be paid by the 14th day of October 1985 together with lying‑in expenses of $209.00. am advised that the respondent elected to make the lump sum payment and did so on or about the 2nd of October, 1985. The respondent has made no further payment since that time and has not had contact with the child. In 1993, the appellant made application for variation of this order pursuant to Section 37, which reads; "Where an order for the payment of maintenance or expenses or respecting care and custody or access and visiting privileges has been made pursuant to this Act, an applicant or respondent may apply to the court to have the order varied, rescinded or suspended, and judge may vary, rescind or suspend the order on the basis that the circumstances have changed." Judge Levy held a pre‑trial conference, at which time the respondent raised a jurisdictional question, arguing that the payment of the lump sum in 1985 fully and finally discharged his responsibility for child support. The matter was adjourned with the direction from Judge Levy that an affidavit be filed along with legal memoranda on the issue. The parties filed legal memoranda, however, the trial date was adjourned and prior to the matter returning to court, Judge Levy rendered his decision, which is the subject of this appeal. In other words, there was no hearing on the merits of the application. The decision of Judge Levy is brief and basically he found that he was bound by the decision of the Appeal Division of the Supreme Court in Gillis v. Soulis,(1990), 1990 CanLII 2358 (NS CA), 101 N.S.R. (2d) 91 and stated that the issue of maintenance could not be revisited. Judge Levy held that the Gillis case stood for the proposition that lump sum, which has been paid, cannot be varied to include monthly maintenance. In my view, and with respect, Gillis v. Soulis did not enunciate such wide proposition and was confined to consideration of variation of an order made under the Children of Unmarried Parents Act. In this respect would refer to several passages in the decision of Justice Freeman. At page 92 he stated; "The issue is whether an order for lump sum payment under the Children of Unmarried Parents Act, R.S.N.S., 1967, c.32, made shortly after the boy's birth is subject to variation. It reflects conflict between concerns of an expanding social conscience and the traditional concern of the law to preserve order in human affairs." Again, at page 93, Justice Freeman states; "The scheme of the Children of Unmarried Parents Act is markedly different than that of the Family Maintenance Act..." And at page 94; "The problem in the present case is that the order in question is unique creation of the old Children of Unmarried Parents Act. It is governed by the principles of that Act, which are outside the legislative scheme of the Family Maintenance Act. Rights of the parties established under the Children of Unmarried Parents Act are not to be abrogated without clear and specific statements of legislative intention..." Again at page 97; Counsel for the applicant was unable to cite case other than Ivey v. Muir in which lump sum order under the Children of Unmarried Parents Act have ever been varied after payment. The dearth of cases as readily explained. There is no power in the courts of Nova Scotia to vary such orders. They are unique creations of particular statute, and the statute must govern. It is possible to arrive at this conclusion merely by considering the scheme of the Children of Unmarried Parents Act. However any lingering doubt is removed by s.34, which states with finality that 'this Part', the part dealing with the father's civil liability to pay maintenance, to which the Family Maintenance Act is the successor legislation, 'this part shall not apply to any punitive father who has fulfilled the terms of any order made against him with respect to the same child under Part 1'." The case of Gillis v. Soulis did not deal with the issue of whether lump sum made under the Family Maintenance Act can be varied. At page 97, Freeman, J.A. referred to the finality of the lump sum payment under the Children of Unmarried Parents Act and stated; "It was not an unjust provision when the Children of Unmarried Parents Act was in effect, and the principle of clean break which enables the parties to meet their obligations and get on with their lives is not an unjust one even by today's standards. The expectation of child to be supported by his or her parents is undeniably just, as well. In the present circumstances the general principles favouring the child's claim must yield to the clear, specific intention of the statute and the order made under it..." The case Gillis v. Soulis was not determinative of the issue before Judge Levy. In my respectful view he was in error in concluding that it was determinative. Section 37 of the Family Maintenance Act provides; "Where an order for the payment of maintenance of expenses...has been made pursuant to this Act, an applicant or respondent may apply to the court to have the order varied, rescinded or suspended, and judge may vary, rescind or suspend the order on the basis that the circumstances have changed." Section 33 of the Family Maintenance Act provides; "A court may order maintenance to be paid periodically or in lump sum or in combination thereof." There is no finality to the orders made under the Family Maintenance Act, nor was there any finality to the order made by Judge MacDonald. The order was made under Section 37 of the Act and by the clear, plain meaning of the words of the Act it is subject to variation. In this respect, agree with the decision of Butler, J.F.C. in Mahoney v. Woodside (1988) 95 N.S.R. (2d) 1. The common‑law obligation for parent to support child by maintenance is incorporated in the Family Maintenance Act in Section 8. It seems clear to me that Judge Levy erred when he thought he could not consider the application before him. It is equally clear to me that he did not consider the application before him because if he had he would have called upon the applicant and the respondent to adduce material evidence. For all the foregoing reasons, the appeal succeeds and I direct that the matter be sent back to Judge Levy for a hearing on the merits. No costs will be awarded. J. Halifax, Nova Scotia
This was an appeal of a decision which denied variation of a maintenance award where a lump sum had been previously ordered. The judge determined that since the respondent had paid the lump sum, his obligations were terminated; therefore, the Family Court did not have jurisdiction to hear the application. Allowing the appeal and returning the matter to the Family Court, that orders for child support made under the Family Maintenance Act do not have the finality which they did under other previous legislation. The order is always subject to variation in appropriate circumstances. Accordingly, the Family Court has jurisdiction to vary awards of lump sum child support made pursuant to the Family Maintenance Act.