Best v. Best, (2015) 369 Nfld. & P.E.I.R. 163 (NLTD(F))

• Judge: Fowler, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: July 15, 2015
• Jurisdiction: Newfoundland and Labrador
• Citations: (2015), 369 Nfld. & P.E.I.R. 163 (NLTD(F))

Best v. Best (2015), 369 Nfld. & P.E.I.R. 163 (NLTD(F));

    1150 A.P.R. 163

MLB headnote and full text

Temp. Cite: [2015] Nfld. & P.E.I.R. TBEd. JL.026

Kimberley Best (applicant) v. Anthony Best (respondent)

(201002F0572; 2015 NLTD(F) 23)

Indexed As: Best v. Best

Newfoundland and Labrador Supreme Court

Trial Division (Family)

Fowler, J.

July 15, 2015.

Summary:

The parties commenced a relationship while working at a hospital in Saudi Arabia. As a result of strict rules governing the social life of single people, it was difficult and dangerous for them to maintain the relationship. They wanted to live together and therefore had to avail themselves of a married couple's residence which required that they register a marriage certificate with the hospital's human resources department. They travelled to Nepal and participated in a form of matrimonial ceremony conducted by a Buddhist Lama. They had a Nepalese marriage certificate fabricated which they presented to the hospital. During their 11 years of cohabitation they had two children born in Saudi Arabia. The issues to be decided on this application were: (1) whether they were validly married; and (2) whether a separation agreement that they had entered into was valid and enforceable and, if so, what was the amount of child and spousal support flowing from the agreement. Both parties agreed that the respondent's 2008 income was understated in the agreement and wanted to proceed on the basis of his correct income for 2008.

The Newfoundland and Labrador Supreme Court, Trial Division (Family), held that the parties were not validly married and the separation agreement was valid and enforceable. Child and spousal support were to be paid in accordance with the separation agreement. The respondent's 2008 income for the purposes determining child support was to be his corrected 2008 income.

Family Law - Topic 216

Marriage - Invalid marriages - Grounds for invalidity - The parties commenced a relationship while working at a hospital in Saudi Arabia - As a result of strict rules governing the social life of single people, it was difficult and dangerous for them to maintain the relationship - They wanted to live together and therefore had to avail themselves of a married couple's residence which required that they register a marriage certificate with the hospital's human resources department - They travelled to Nepal and participated in a form of matrimonial ceremony conducted by a Buddhist Lama - They had a Nepalese marriage certificate fabricated which they presented to the hospital - The Newfoundland and Labrador Supreme Court, Trial Division (Family), refused to recognize the marriage as a valid marriage as there was no compliance with the laws of Nepal - Neither of the parties made a sufficient or reasonable inquiry as to what was required to obtain the proper documentation for a Nepalese marriage - However, the parties met the definition of spouse under the Family Law Act for the purposes of the division of matrimonial assets, spousal support and child support - The court rejected the respondent's assertion that the parties had not intended to marry and that the ceremony in Nepal was only a blessing ceremony - The court considered the elaborate set of circumstances that followed the ceremony, the 11 years of cohabitation as husband and wife, the parties' two children born in Saudi Arabia, and the fact that their separation agreement referred to them as husband and wife and stated that the Nepalese ceremony was intended to be a marriage ceremony - See paragraphs 10 to 28.

Family Law - Topic 234

Marriage - Formalities - Failure to comply with - Effect of - [See Family Law - Topic 216 ].

Family Law - Topic 629

Husband and wife - Marital property - Marital property legislation - Application of - [See Family Law - Topic 216 ].

Family Law - Topic 2247

Maintenance of spouses and children - Jurisdiction - Where marriage is void or voidable - [See Family Law - Topic 216 ].

Family Law - Topic 2325

Maintenance of spouses and children - Maintenance of spouses - Spouse - What constitutes - [See Family Law - Topic 216 ].

Family Law - Topic 2357.1

Maintenance of spouses and children - Maintenance of children - Considerations - Support tables - At issue was whether the parties' separation agreement was valid and enforceable and, if so, what was the amount of child and spousal support flowing from the agreement - Both parties agreed that the respondent's 2008 income was understated in the agreement and wanted to proceed on the basis of his correct income for 2008 - The Newfoundland and Labrador Supreme Court, Trial Division (Family), stated that while the federal Child Support Guidelines generally determine the amount of child support payable, that was not necessarily the case when dealing with a shared custody situation such as was the case here - The formula set out in the separation agreement reflected the parties' intention to care for their children on an ongoing basis in a generous and fair manner - The respondent's corrected income was to be used to determine the payments in accordance with the agreement's formula - See paragraphs 41 to 55.

Family Law - Topic 3356

Separation agreements, domestic contracts and marriage contracts - Effect of agreement - Maintenance - At issue was whether the parties' separation agreement was valid and enforceable and, if so, what was the amount of child and spousal support flowing from the agreement - Both parties agreed that the respondent's 2008 income was understated in the agreement and wanted to proceed on the basis of his correct income for 2008 - The Newfoundland and Labrador Supreme Court, Trial Division (Family), accepted that the respondent's understated income had been an innocent mistake and it did not impact on the agreement's validity - The applicant asserted that spousal support had to be redefined in accordance with the respondent's corrected 2008 income - However, unlike child support, there was no reference in the agreement that the amount of spousal support payable was based on the respondent's income - The agreement's wording was clear and unambiguous and set a fixed amount for a fixed period - The applicant had the draft of the agreement in her possession for over three months during which she had sound legal advice from competent and respected legal counsel who advised her not to sign the agreement as more financial information was required - The applicant signed the agreement despite that advice - The applicant was bound by her acceptance of the terms of the agreement - See paragraphs 33 to 40.

Family Law - Topic 3357

Separation agreements, domestic contracts and marriage contracts - Effect of agreement - Maintenance of children - [See Family Law - Topic 2357.1 ].

Family Law - Topic 3391

Separation agreements, domestic contracts and marriage contracts - Grounds for setting aside - Lack of independent or competent legal advice - [See Family Law - Topic 3356 ].

Family Law - Topic 3395

Separation agreements, domestic contracts and marriage contracts - Grounds for setting aside - Mistake - [See Family Law - Topic 3356 ].

Cases Noticed:

Nafie v. Badawy (2015), 599 A.R. 1; 643 W.A.C. 1; 381 D.L.R.(4th) 208; 2015 ABCA 36, refd to. [para. 11].

Davies v. Collins (2010), 297 N.S.R.(2d) 136; 943 A.P.R. 136; 2010 NSSC 457, refd to. [para. 12].

Veleta v. Canada (Minister of Citizenship and Immigration) (2005), 273 F.T.R. 108; 254 D.L.R.(4th) 484; 2005 FC 572, refd to. [para. 13].

Contino v. Leonelli-Contino, [2005] 3 S.C.R. 217; 341 N.R. 1; 204 O.A.C. 311; 259 D.L.R.(4th) 388; 2005 SCC 63, refd to. [para. 46].

Counsel:

Keith Morgan, for the applicant;

Jean Dawe, for the respondent.

This application was at St. John's, N.L., on April 29 and 30, May 1, 2, 5 and 6, July 23, September 2, and December 10-12, 2014, by Fowler, J., of the Newfoundland and Labrador Supreme Court, Trial Division (Family), who delivered the following judgment on July 15, 2015.