1.2: Purpose and intention of these rules
1.3: General authority of the Court to provide remedies
10.52: Declaration of civil contempt
10.53: Punishment for civil contempt of Court
13.18: Types of affidavit
13.6: Pleadings: general requirements

Case Summary

The parties, parents of two children, divorced in 2008. Ms. McCarty applied for an Order directing reimbursement for orthodontic expenses and a variation of the prior child support Order.

With respect to the orthodontic expenses, the Court considered whether Mr. McCarty was required to carry insurance for these expenses as per the prior Order. Ms. McCarty submitted hearsay evidence about her insurance, but Renke J. held that the evidence was admissible in an interim Application under Rule 13.18. Mr. McCarty simply denied he had insurance coverage, but did not provide any evidence to support his assertion. Justice Renke granted reimbursement for the orthodontic expenses as the remedy for the contravention of the prior Order. Justice Renke noted that Ms. McCarty did not have a cause of action simply for the contravention of the prior Order. Civil contempt was not a “useful avenue of approach” since Rule 10.52(3)(a)(i) prevents civil contempt from being declared with respect to an Order to pay money without reasonable excuse, and Rule 10.53 does not appear to allow for a compensation Order. Renke J. considered what, if anything, should be ordered regarding future orthodontic work for the children. His Lordship noted that Rule 1.3(2) permits the Court to grant a remedy whether or not it is claimed. However, this additional dental treatment was only raised in Ms. McCarty’s reply Affidavit, to which Mr. McCarty did not have an opportunity to respond. Therefore, it was held that awarding the costs of future orthodontic work would not be fair to him.

With respect to the variation of the child support Order, Ms. McCarty claimed retroactive child support based on Mr. McCarty’s income. Renke J. observed that, normally, viva voce evidence, tested by cross-examination, was appropriate to make a retroactive award, and retroactive support ought not to be granted on interim Applications. However, given Rule 1.2 and the principles in Hryniak v Mauldin, 2014 SCC 7, the Court should come to conclusions based on the evidence where possible. Pursuant to Rule 13.18, the parties could rely on hearsay evidence for the interim Application, so long as the source of the information was disclosed in the Affidavit. The hearsay pertaining to the retroactive child support issue was a report included in Mr. McCarty’s Affidavit. Ms. McCarty did not object to its admissibility, but simply challenged its conclusions.

As part of determining the retroactive child support issue, Justice Renke considered Ms. McCarty’s allegations that Mr. McCarty received non-arm’s length benefits from his companies, which was not disclosed. Justice Renke noted that Ms. McCarty should have notified Mr. McCarty about the benefits issues, thereby identifying the real issues in dispute under Rule 1.2(3)(a), and complying with Rules 13.6(2) and (3) which circumscribe the requirements for the contents of Pleadings. Ms. McCarty also failed to identify the source of information within her Affidavit, contrary to Rule 13.18(2). Ultimately, however, the Court held that retroactive child support was appropriate in all the circumstances.

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