B.P. v. A.T.,

• Jurisdiction: New Brunswick
• Judge: Larlee, Quigg and Green, JJ.A.
• Neutral Citation: 2014 NBCA 51
• Citation: (2014), 423 N.B.R.(2d) 99 (CA),2014 NBCA 51,423 NBR (2d) 99,[2014] CarswellNB 382,[2014] NBJ No 209 (QL),(2014), 423 NBR(2d) 99 (CA),423 NBR(2d) 99,423 N.B.R.(2d) 99,[2014] N.B.J. No 209 (QL)
• Date: 28 May 2014
• Court: Court of Appeal (New Brunswick)

B.P. v. A.T. (2014), 423 N.B.R.(2d) 99 (CA);

    423 R.N.-B.(2e) 99; 1103 A.P.R. 99

MLB headnote and full text

Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2014] N.B.R.(2d) TBEd. AU.005

Renvoi temp.: [2014] N.B.R.(2d) TBEd. AU.005

B.P. (appellant) v. A.T. (respondent)

(106-13-CA; 2014 NBCA 51)

Indexed As: B.P. v. A.T.

Répertorié: B.P. v. A.T.

New Brunswick Court of Appeal

Larlee, Quigg and Green, JJ.A.

July 31, 2014.

Summary:

Résumé:

The parties began to cohabit in September 2005, married in August 2007 and separated in July 2011. There was one child of the marriage and the wife also had a child from a previous relationship. At issue was custody, access, child and spousal support and division of marital property.

The New Brunswick Court of Queen's Bench, Family Division, in a decision not reported in this series of reports, determined the issues. The husband appealed with respect to the issues of access and spousal support.

The New Brunswick Court of Appeal dismissed the appeal.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Family Law - Topic 1916

Custody and access - Appeals - Standard of review - The parties began to cohabit in September 2005, married in August 2007 and separated in July 2011 - There was one child of the marriage and the wife also had a child from a previous relationship - At issue was custody, access, child and spousal support and division of marital property - The trial judge determined the issues - The husband appealed with respect to the issues of access and spousal support - With respect to the standard of review, the New Brunswick Court of Appeal stated that " the standard of review to be employed in custody cases such as this one: deference is required. Intervention on appeal is unjustified absent a material error ... Deference is owed to the trial judge's assessment of the evidence when it comes to deciding who should have custody and on what terms. However, no deference is owed with respect to a question of law, including the identification of the proper test to be applied ... The standard of review in spousal support cases is set out in Milton v. Milton, 2008 NBCA 87, 338 N.B.R.(2d) 300. We will only interfere with a support order where there has been an error in principle, a significant misapprehension of the evidence, or the award is clearly wrong ... In short with respect to both issues, absent error, we cannot re-try the case." - See paragraphs 11 and 12.

Family Law - Topic 1920

Custody and access - Appeals - Admission of "new evidence" - The parties began to cohabit in September 2005, married in August 2007 and separated in July 2011 - There was one child of the marriage and the wife also had a child from a previous relationship - At issue was, inter alia, custody and access - The wife alleged that the husband was in possession of child pornography - The parties were granted joint custody of the child of the marriage and the husband was granted supervised access - The husband appealed and sought to introduce fresh evidence, i.e., a further psychological report by Dr. Kingston - The husband submitted the report would have an impact on the "best interests of the child" determination, and that, if it had been considered by the trial judge, he would have ordered unsupervised access - Specifically the new evidence was: 1) Since the end of the trial the husband had completed six therapy sessions with Dr. Kingston reinforcing the low risk assessment made by the previous psychologist (Mr. Galarneau); 2) Since the end of the trial the husband had been unable to find supervisors on a regular basis, and so had not had regular access to the child; 3) The wife had refused in certain circumstances to allow access visits; and 4) The child was being hurt by the lack of access to the husband - The New Brunswick Court of Appeal denied the request to adduce the evidence - The court was not persuaded that this further evidence, if introduced, would have had an important influence on the results of this case - The report of Dr. Kingston was confirmatory of Mr. Galarneau's report that the husband presented as a low risk for contact sexual offending - The trial judge was cognizant of this evidence - See paragraphs 6 to 10.

Family Law - Topic 2023

Custody and access - Access - Supervised access - The parties began to cohabit in September 2005, married in August 2007 and separated in July 2011 - There was one child of the marriage and the wife also had a child from a previous relationship - At issue was, inter alia, custody and access - The wife alleged that the husband was in possession of child pornography - The parties were granted joint custody of the child of the marriage and the husband was granted supervised access - The husband appealed the supervised access order - The New Brunswick Court of Appeal dismissed the appeal - Overall, the trial judge undertook a thorough analysis of the "best interests of the child" and provided a reasoned decision for granting the custody and access order - The trial judge devoted a large segment of his written reasons to the question of supervised access - He recognized that supervised access was not the ideal situation for a father and child and that it was in the "best interests of the child" to maintain and foster a meaningful relationship with both parents - He acknowledged that both parents were loving parents and had a tremendous amount to contribute to the long-term welfare of their daughter - With respect to the supervised access order, the court was in agreement with the carefully considered reasons of the trial judge - He relied on the evidence and made a determination with respect to the "best interests of the child" - He came to the conclusion that supervised access was necessary as a precautionary measure - Despite the husband's able arguments with respect to the lack of analysis regarding the "best interests of the child" criteria, the delegation of the decision to an expert, the reliance on stale evidence and the burden of proof, the trial judge did not make any reviewable error - See paragraphs 13 to 20.

Family Law - Topic 3990

Divorce - Corollary relief - General - The parties began to cohabit in September 2005, married in August 2007 and separated in July 2011 - There was one child of the marriage and the wife also had a child from a previous relationship - At issue was, inter alia, spousal support - The husband appealed, asserting that the trial judge did not use the proper framework to determine entitlement first before fixing quantum - Although the trial judge referred to s. 15.2 of the Divorce Act with respect to support orders, the application was brought under s. 115(6) of the Family Services Act - The New Brunswick Court of Appeal dismissed the appeal - Although the trial judge referred to the wrong statute, he referred to the jurisprudence that applied to orders under either statute - He canvassed the criteria found in s. 115(6) - There was no error - See paragraphs 21 to 24.

Family Law - Topic 4021.5

Divorce - Corollary relief - Maintenance awards - Support guidelines (incl. non-divorce cases) - [See second Family Law - Topic 4022 ].

Family Law - Topic 4022

Divorce - Corollary relief - Maintenance and awards - Awards - To spouse - Considerations - The parties began to cohabit in September 2005, married in August 2007 and separated in July 2011 - There was one child of the marriage and the wife also had a child from a previous relationship - At issue was, inter alia, spousal support - The husband appealed, asserting that the trial judge erred with respect to quantum - The husband argued that the wife's decision to return to school instead of working amounted to intentional unemployment, and that, as a consequence, income should be imputed to her for the period she was studying - The wife had two degrees, a science degree in kinesiology and an education degree - She decided to take a one year paralegal course - The trial judge found she could not be faulted for changing career paths - The New Brunswick Court of Appeal dismissed the appeal - The wife made a reasonable decision to leave teaching to become a paralegal - She researched the job market in order to improve her earning capacity and, after completing the one-year course, would, in her estimation, earn more money - These findings support the trial judge's decision that the wife was not intentionally unemployed and therefore no income should have been imputed to her - See paragraph 25.

Family Law - Topic 4022

Divorce - Corollary relief - Maintenance and awards - Awards - To spouse - Considerations - The parties began to cohabit in September 2005, married in August 2007 and separated in July 2011 - There was one child of the marriage and the wife also had a child from a previous relationship - At issue was, inter alia, spousal support - The husband appealed, asserting that the trial judge erred with respect to quantum in applying the Spousal Support Advisory Guidelines by using the mid-range level of support - The New Brunswick Court of Appeal dismissed the appeal - The trial judge, after finding there was entitlement to support, exercised his discretion in assessing the quantum and duration of spousal support - As to quantum, there was evidence to support his decision and he made no error in fixing the quantum of support - See paragraphs 26 and 27.

Practice - Topic 9031

Appeals - Evidence on appeal - Admission of "new evidence" - [See Family Law - Topic 1920 ].

Droit de la famille - Cote 1916

Garde et accès - Appels - Norme de révision - [Voir Family Law - Topic 1916 ].

Droit de la famille - Cote 1920

Garde et accès - Appels - Réception d'une preuve nouvelle - [Voir Family Law - Topic 1920 ].

Droit de la famille - Cote 2023

Garde et accès - Accès - Termes d'accès - Accès surveillé - [Voir Family Law - Topic 2023 ].

Droit de la famille - Cote 3990

Divorce - Mesures accessoires - Généralités - [Voir Family Law - Topic 3990 ].

Droit de la famille - Cote 4021.5

Divorce - Mesures accessoires - Ordonnances alimentaires - Lignes directrices sur les pensions alimentaires (y compris les cas hors-divorce) - [Voir Family Law - Topic 4021.5 ].

Droit de la famille - Cote 4022

Divorce - Mesures accessoires - Ordonnances alimentaires - Ordonnances en faveur du conjoint - Facteurs considérés - [Voir Family Law - Topic 4022 ].

Procédure - Cote 9031

Appels - Preuve en appel - Réception d'une preuve nouvelle - [Voir Practice - Topic 9031 ].

Cases Noticed:

Young v. Young et al., [1993] 4 S.C.R. 3; 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161, refd to. [para. 5].

Gordon v. Goertz, [1996] 2 S.C.R. 27; 196 N.R. 321; 141 Sask.R. 241; 114 W.A.C. 241, refd to. [para. 5].

Banque Nationale du Canada v. Desrosiers (1996), 167 N.B.R.(2d) 241; 427 A.P.R. 241 (C.A.), refd to. [para. 6].

J.A.M. v. D.L.M. (2008), 326 N.B.R.(2d) 111; 838 A.P.R. 111; 2008 NBCA 2, refd to. [para. 6].

Doiron v. Wilcox (2012), 393 N.B.R.(2d) 183; 1017 A.P.R. 183; 2012 NBCA 70, refd to. [para. 6].

Harrison (C.) & Son Ltd. v. General Security Insurance Co. (No. 1) (1988), 91 N.B.R.(2d) 395; 232 A.P.R. 395 (C.A.), refd to. [para. 6].

Guimond v. Guimond Estate (1996), 183 N.B.R.(2d) 125; 465 A.P.R. 125 (C.A.), refd to. [para. 6].

Fletcher v. Keilty (2004), 269 N.B.R.(2d) 302; 707 A.P.R. 302; 2004 NBCA 34, refd to. [para. 6].

A.F.G. v. D.A.B., 2011 NBCA 100, refd to. [para. 11].

P.R.H. v. M.E.L. (2009), 343 N.B.R.(2d) 100; 881 A.P.R. 100; 2009 NBCA 18, refd to. [para. 11].

MacLean v. MacLean (2004), 274 N.B.R.(2d) 90; 718 A.P.R. 90; 2004 NBCA 75, refd to. [para. 11].

J.P. v. R.R. (2004), 278 N.B.R.(2d) 351; 728 A.P.R. 351; 2004 NBCA 98, refd to. [para. 11].

Scott v. Scott (2004), 278 N.B.R.(2d) 61; 728 A.P.R. 61; 2004 NBCA 99, refd to. [para. 11].

Boudreau v. Brun (2005), 293 N.B.R.(2d) 126; 762 A.P.R. 126; 2005 NBCA 106, refd to. [para. 11].

L.D.D. v. J.A.D. (2010), 364 N.B.R.(2d) 200; 937 A.P.R. 200; 2010 NBCA 69, refd to. [para. 11].

Milton v. Milton (2008), 338 N.B.R.(2d) 300; 866 A.P.R. 300; 2008 NBCA 87, refd to. [para. 12].

Hickey v. Hickey, [1999] 2 S.C.R. 518; 240 N.R. 312; 138 Man.R.(2d) 40; 202 W.A.C. 40, refd to. [para. 12].

K.C.W.V. v. K.L.P. (2010), 363 N.B.R.(2d) 351; 936 A.P.R. 351; 2010 NBCA 70, refd to. [para. 14].

N.E.R. v. J.D.M. (2011), 377 N.B.R.(2d) 147; 972 A.P.R. 147; 2011 NBCA 57, refd to. [para. 14].

K.V.P. v. T.E., [2001] 2 S.C.R. 1014; 275 N.R. 52; 156 B.C.A.C. 161; 255 W.A.C. 161; 2001 SCC 60, refd to. [para. 19].

Van de Perre v. Edwards - see/voir K.V.P. v. T.E.

Blake v. Blake (1998), 203 N.B.R.(2d) 134; 518 A.P.R. 22 (C.A.), refd to. [para. 22].

Moge v. Moge, [1992] 3 S.C.R. 813; 145 N.R. 1; 81 Man.R.(2d) 161; 30 W.A.C. 161, refd to. [para. 22].

White v. White, [1998] N.B.R.(2d) (Supp.) No. 17 (Fam. Div.), refd to. [para. 23].

Ross v. Ross (1995), 168 N.B.R.(2d) 147; 430 A.P.R. 147 (C.A.), refd to. [para. 24].

Bracklow v. Bracklow, [1999] 1 S.C.R. 420; 236 N.R. 79; 120 B.C.A.C. 211; 196 W.A.C. 211, refd to. [para. 24].

Smith v. Smith (2011), 375 N.B.R.(2d) 208; 969 A.P.R. 208; 2011 NBCA 66, refd to. [para. 27].

Kerr v. Baranow, [2011] 1 S.C.R. 269; 411 N.R. 200; 300 B.C.A.C. 1; 509 W.A.C. 1; 274 O.A.C. 1; 2011 SCC 10, refd to. [para. 28].

Samoilova v. Mahnic, [2014] A.R. Uned. 36; 2014 ABCA 65, refd to. [para. 28].

Rockall v. Rockall (2010), 490 A.R. 135; 497 W.A.C. 135; 2010 ABCA 278, refd to. [para. 29].

Robinson v. Robinson, [2012] B.C.A.C. Uned. 99; 2012 BCCA 497, refd to. [para. 29].

Bastarache v. Bastarache (2012), 387 N.B.R.(2d) 152; 1001 A.P.R. 152; 2012 NBQB 75 (Fam. Div.), refd to. [para. 30].

Authors and Works Noticed:

Payne, Julien D., Payne on Divorce (4th Ed. 1996), p. 414 [para. 14].

Counsel:

Avocats:

Rita Godin, for the appellant;

Kenneth W. Martin, for the respondent.

This appeal was heard on May 28, 2014, by Larlee, Quigg and Green, JJ.A., of the New Brunswick Court of Appeal. The following judgment of the Court of Appeal was delivered in both official languages by Larlee, J.A., on July 31, 2014.