Black v. Black, (2015) 441 N.B.R.(2d) 257 (CA)

• Judge: Larlee, Quigg and Baird, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: June 10, 2015
• Jurisdiction: New Brunswick
• Citations: (2015), 441 N.B.R.(2d) 257 (CA);2015 NBCA 63

Black v. Black (2015), 441 N.B.R.(2d) 257 (CA);

    441 R.N.-B.(2e) 257; 1152 A.P.R. 257

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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: [2015] N.B.R.(2d) TBEd. OC.015

Renvoi temp.: [2015] N.B.R.(2d) TBEd. OC.015

Michael Kenneth Black (appellant) v. Bonnie Jeanne Black (respondent)

(85-14-CA; 2015 NBCA 63)

Indexed As: Black v. Black

Répertorié: Black v. Black

New Brunswick Court of Appeal

Larlee, Quigg and Baird, JJ.A.

October 15, 2015.

Summary:

Résumé:

The parties were married for eight years and four months prior to their separation in 2003. There were no children of the marriage. The wife had become ill in 2000 and withdrew from the workforce. The 2004 corollary relief order, imported from the parties' domestic contract, required the husband to pay spousal support of $750 monthly, with no time limit, in addition to health insurance premiums for the wife's benefit. Neither party requested the four-year review hearing provided by the contract. The husband filed for bankruptcy in 2011, and stopped making the spousal support payments. The wife moved for contempt relief; an order varying support; an order requiring the husband to pay her medical expenses; an order for suit money, and costs on a solicitor-client basis. The husband requested a review and termination of spousal support.

The New Brunswick Court of Queen's Bench, Family Division, in a decision reported at (2014), 427 N.B.R.(2d) 45; 1114 A.P.R. 45, (1) declined to conduct a review; (2) found a material change in circumstances, increased spousal support to $1,000 monthly for an indefinite duration and added the cost of the health premiums, for a total monthly award of $1,514; (3) declined to make a contempt order; (4) declined to order solicitor-client costs; (5) declined to order suit money; and (6) ordered the husband to pay costs of $6,000, on the basis of his conduct. The husband appealed the variation order and the costs award.

The New Brunswick Court of Appeal allowed the appeal in part, by restoring the original order for support. The motion judge made reversible errors in principle, and the award was clearly wrong. The Court varied the costs award by awarding no costs since there was a mixed result.

Family Law - Topic 3375

Separation agreements, domestic contracts and marriage contracts - Variation - Of maintenance - [See second and third Family Law - Topic 4017 ].

Family Law - Topic 3997

Divorce - Corollary relief - General - Economic self-sufficiency - [See first Family Law - Topic 4018.1 ].

Family Law - Topic 4017

Divorce - Corollary relief - Maintenance awards - Variation of periodic payments or lump sum award - The husband appealed an order for variation of spousal support in favor of his ex-wife - He submitted that the motion judge erred when he considered the increases in his post-separation income, as they had no connection to the parties' short-term marriage - The New Brunswick Court of Appeal agreed that there was no demonstrable link between the husband's current income and employment, the corresponding skills he acquired during the marriage, and any contribution the wife might have made towards the acquisition of those skills - The husband's business failed following the breakdown of the marriage - There was an assumption by the motion judge that the wife would have an automatic right to share in the post-separation increase in the husband's income based primarily on the fact that the wife's expenses increased - That was an error in principle - The motion judge acknowledged the damage to the wife's overall financial situation as a result of her gambling, but attributed her economic need to other factors without quantifying what they were, or linking them to the marriage or its breakdown, as required by s. 17 of the Divorce Act - See paragraph 38.

Family Law - Topic 4017

Divorce - Corollary relief - Maintenance awards - Variation of periodic payments or lump sum award - The New Brunswick Court of Appeal discussed the "material change" threshold established in s. 17 of the Divorce Act, whether a party sought to vary a court order or a domestic contract - See paragraphs 39 to 47.

Family Law - Topic 4017

Divorce - Corollary relief - Maintenance awards - Variation of periodic payments or lump sum award - The parties' marriage had been of short duration and was childless - The wife was disabled - The divorce order included corollary relief imported from the parties' domestic contract - The husband agreed to pay spousal support, with no time limit - He appealed an order for variation in favour of his ex-wife - The New Brunswick Court of Appeal held that the husband had failed to adduce evidence that met the material change threshold established in s. 17 of the Divorce Act - Therefore his request to terminate or vary his spousal support payment failed - The wife's medical condition was known to the husband at the time the parties executed their domestic contract and, therefore, could not be relied upon by the husband as support for a variation - There was no submission that the domestic contract was improperly drafted and, therefore, it was presumed to be correct - The husband did not request a time-limited support order at the time the divorce was heard - See paragraph 48.

Family Law - Topic 4017

Divorce - Corollary relief - Maintenance awards - Variation of periodic payments or lump sum award - The husband appealed an order for variation of spousal support in favor of his ex-wife - The New Brunswick Court of Appeal allowed the appeal in part, by restoring the original support order - "The motion judge erred in principle in arbitrarily increasing the support payments ... without analyzing how that amount met the formulaic range set out in the [Spousal Support Advisory] Guidelines, if at all. There was no consideration of the disability exception and whether it would apply in this case. On the material change in circumstances analysis pursuant to s. 17 of the [Divorce] Act, the reasons did not inform on what basis the material change was not within the contemplation of the parties at the time the domestic contract was incorporated in the order for corollary relief, or whether the change was linked to the marriage or its breakdown. The motion judge over-stated the compensatory element of the wife's claim to spousal support. [The wife] was not automatically entitled to an increase in her support by virtue of [the husband's] post-separation increases in income or on the basis her financial need had changed. The motion judge downplayed the impact [the wife's] mismanagement of funds had on her economic need." - See paragraph 49.

Family Law - Topic 4018.1

Divorce - Corollary relief - Maintenance awards - Review of maintenance v. variation of maintenance - The New Brunswick Court of Appeal addressed the different evidentiary burdens in review and variation hearings pursuant to s. 17 of the Divorce Act - "On a review hearing, 'nobody bears an onus to show changed circumstances' ... . The recipient spouse should present evidence of his/her efforts to achieve self-sufficiency, and the motion judge can then modify or terminate the order. On a variation hearing, however, the moving party bears the onus to satisfy the threshold requirement of material change stipulated in s. 17 of the Act. These are important distinctions that govern how a hearing judge must approach motions to vary spousal support. These distinctions are also of importance to the parties, as, arguably, on a review, it is contemplated that support would continue absent any change towards economic self-sufficiency by the recipient spouse." - See paragraphs 15 and 16.

Family Law - Topic 4018.1

Divorce - Corollary relief - Maintenance awards - Review of maintenance v. variation of maintenance - The New Brunswick Court of Appeal, in discussing the different standards to be applied in review and variation hearings pursuant to the Divorce Act, stated that "[o]n a variation hearing, the hearing judge has broader latitude in the scope of evidence he/she will receive to conduct the analysis set out in s. 17 of the Act. Hence, it is of critical importance for the hearing judge to identify the jurisdictional basis for the decision, i.e. whether the case falls under the compensatory or non-compensatory model of support. In the case at bar, both parties sought a variation of the corollary relief order, thus, both had an onus to provide proof of material change." - See paragraph 16.

Family Law - Topic 4021.5

Divorce - Corollary relief - Maintenance awards - Support guidelines (incl. non-divorce cases) - Both parties sought a variation of the spousal support order - The marriage was of short duration, was childless, and the recipient spouse was disabled - The New Brunswick Court of Appeal held that the motion judge erred in principle in arbitrarily increasing the support payments, without analyzing how that amount met the formulaic range set out in the Spousal Support Advisory Guidelines, if at all - "Although the Guidelines had not been published at the time the corollary relief order was granted in this case, it is generally accepted they apply to a review or to a variation proceeding that takes place thereafter ... . [T]he authors [of the Guidelines] clarified the Guidelines have a conditional role to play in variation motions ... and noted the types of variation or review cases that should be approached with caution: i. Old orders made prior to the Guidelines; ii. A post-separation increase in income of the payor spouse; iii. A post-separation decrease in income of the recipient spouse; iv. Remarriage or partnering of the recipient spouse; v. Second families; vi. Applications to terminate on the grounds of no entitlement." - See paragraphs 18 to 20.

Family Law - Topic 4021.5

Divorce - Corollary relief - Maintenance awards - Support guidelines (incl. non-divorce cases) - The New Brunswick Court of Appeal discussed the application of the Spousal Support Advisory Guidelines disability exception where, as in this case, the marriage had been of short duration, was childless, and the recipient spouse was disabled - "Some courts have referred to the Guidelines' disability exception, and others have not. It is fair to say the jurisprudence is particularly inconsistent in cases involving short to medium term marriages where there is a disabled recipient spouse. ... Due to the short duration of the marriage as well as [the wife's] disability, this case is considered exceptional. ... There is no indication in the reasons [below] how, if he did at all, the motion judge applied the Guidelines in this case. The variation order requires [the husband] to pay support in an amount that exceeds the formulaic range, with no mathematical calculation, for an indefinite duration. This represents an unexplained deviation that fails to comply with this Court's direction in Smith [v. Smith (2011)]." - See paragraphs 26 to 28.

Family Law - Topic 4022

Divorce - Corollary relief - Maintenance awards - To spouse - Considerations - The New Brunswick Court of Appeal discussed the compensatory and non-compensatory models of support - The compensatory model did not apply in this case, a childless marriage of short duration - Although the motion judge acknowledged the compensatory element had "dwindled", he arbitrarily increased the spousal support quantum - "Although the hearing judge acknowledged the weak case for compensatory support, he proceeded to arbitrarily link the increases in [the wife's] monthly expenses to that element of support. This was an error in principle." - While the Spousal Support Advisory Guidelines did not rule out a "compensatory exception" in childless marriages of short duration, the wife in this case did not make a "dramatic relocation" for the sake of the relationship - The motion judge conducted no analysis of the non-compensatory model, relying instead on the work the wife did in the husband's business - That claim was overstated by the motion judge; the wife's contribution to the business was minor - See paragraphs 29 to 34.

Family Law - Topic 4022

Divorce - Corollary relief - Maintenance awards - To spouse - Considerations - The husband appealed an order for variation of spousal support in favor of his ex-wife - He submitted that the motion judge erred when he considered the increases in his post-separation income, as they had no connection to the parties' short-term marriage - The New Brunswick Court of Appeal considered the question whether post-separation increases in the income of the payor spouse should be considered in cases of short to medium term marriages - "Canadian jurisprudence remains divided, and ultimately the question is resolved on a case by case basis. ... To share in post-separation increases in income, the recipient spouse must prove a connection with his/her contribution to the marriage, which, over time, benefited the career of the payor spouse, and added to the economic well-being of the family unit ... . There is no presumption the standard of living of the recipient spouse should increase post-separation by virtue only of the payor's increased income." - See paragraphs 35 to 38.

Family Law - Topic 4022.1

Divorce - Corollary relief - Maintenance and awards - Awards - To spouse - Extent of obligation - [See third Family Law - Topic 4017 ].

Family Law - Topic 4039

Divorce - Corollary relief - Maintenance awards - Spousal support - Suspension or termination of - [See third Family Law - Topic 4017 ].

Cases Noticed:

Chamberlain v. Chamberlain (2002), 247 N.B.R.(2d) 258; 641 A.P.R. 258; 2002 NBCA 12, consd. [para. 7].

Hersey v. Hersey (1993), 135 N.B.R.(2d) 67; 344 A.P.R. 67 (C.A.), consd. [para. 7].

Leskun v. Leskun, [2006] 1 S.C.R. 920; 349 N.R. 158; 226 B.C.A.C. 1; 373 W.A.C. 1; 2006 SCC 25, refd to. [para. 8].

Willick v. Willick, [1994] 3 S.C.R. 670; 173 N.R. 321; 125 Sask.R. 81; 81 W.A.C. 81, refd to. [para. 8].

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. 8].

LeBlanc v. LeBlanc (2013), 401 N.B.R.(2d) 334; 1041 A.P.R. 334; 2013 NBCA 22, refd to. [para. 11].

MacDonald v. MacDonald (2011), 372 N.B.R.(2d) 179; 961 A.P.R. 179; 2011 NBCA 25, refd to. [para. 11].

Bourque v. Bourque (2004), 274 N.B.R.(2d) 72; 718 A.P.R. 72 (C.A.), refd to. [para. 12].

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. 12].

B.P. v. A.T. (2014), 423 N.B.R.(2d) 99; 1103 A.P.R. 99; 2014 NBCA 51, refd to. [para. 12].

L.G. v. G.B., [1995] 3 S.C.R. 370; 186 N.R. 201, refd to. [para. 17].

L.M.P. v. L.S., [2011] 3 S.C.R. 775; 424 N.R. 341; 2011 SCC 64, refd to. [para. 17].

R.L. v. N.L. (2012), 388 N.B.R.(2d) 220; 1006 A.P.R. 220; 2012 NBQB 123 (Fam. Div.), refd to. [para. 18].

Cavanaugh v. Cavanaugh (2008), 341 N.B.R.(2d) 166; 876 A.P.R. 166; 2008 NBQB 387 (Fam. Div.), refd to. [para. 18].

Gray v. Gray (2014), 325 O.A.C. 117; 2014 ONCA 659, refd to. [para. 18].

Fisher v. Fisher (2008), 232 O.A.C. 213; 2008 CaswellOnt 43; 2008 ONCA 11, refd to. [paras. 19, 37].

Beninger v. Beninger (2007), 249 B.C.A.C. 193; 414 W.A.C. 193; 2007 BCCA 619, refd to. [para. 19].

Bracklow v. Bracklow, [1999] 1 S.C.R. 420; 236 N.R. 79; 120 B.C.A.C. 211; 196 W.A.C. 211, consd. [paras. 21, 26].

Aujla v. Singh, [2012] O.T.C. Uned. 5217; 2012 ONSC 5217, consd. [para. 22].

Brown v. Brown (2010), 353 N.B.R.(2d) 323; 910 A.P.R. 323; 2010 NBCA 5, refd to. [para. 24].

Powell v. Levesque (2014), 350 B.C.A.C. 43; 598 W.A.C. 43; 2014 BCCA 33, refd to. [para. 25].

Lepp v. Lepp, [2008] B.C.T.C. Uned. B56; 2008 BCSC 448, refd to. [para. 27].

Beninger v. Beninger (2009), 277 B.C.A.C. 36; 469 W.A.C. 36; 2009 BCCA 458, refd to. [para. 27].

Pratt v. Pratt (2008), 334 N.B.R.(2d) 22; 858 A.P.R. 22; 2008 NBQB 94, refd to. [para. 27].

Jens v. Jens (2008), 260 B.C.A.C. 185; 439 W.A.C. 185; 2008 BCCA 392, refd to. [para. 27].

Elaschuk v. Elaschuk (1999), 123 O.A.C. 184 (C.A.), refd to. [para. 27].

Richardson v. Normand (2000), 151 Man.R.(2d) 12; 2000 MBQB 110, refd to. [para. 27].

Kerwood v. Kerwood, [1999] B.C.J. No. 830 (B.C.S.C.), refd to. [para. 27].

Wilson v. Marchand, 2007 ONCJ 408, refd to. [para. 27].

R.M.S. v. F.P.C.S. (2011), 299 B.C.A.C. 186; 508 W.A.C. 186; 2011 BCCA 53, refd to. [para. 27].

Stergios v. Kim, [2011] O.A.C. Uned. 740; 2011 ONCA 836, refd to. [para. 27].

Hurley v. Hurley (2012), 314 N.S.R.(2d) 346; 994 A.P.R. 346; 2012 NSCA 32, refd to. [para. 27].

Stannett v. Green, [2014] O.T.C. Uned. A01 (Sup. Ct.), refd to. [para. 27].

Smith v. Smith (2011), 375 N.B.R.(2d) 208; 969 A.P.R. 208; 2011 NBCA 66, refd to. [para. 28].

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. 29].

Scott v. Jabora-Scott (2011), 368 N.B.R.(2d) 281; 949 A.P.R. 281; 2011 NBCA 7, refd to. [para. 30].

Tasman v. Henderson, [2013] O.T.C. Uned. 4377; 2013 ONSC 4377, refd to. [para. 32].

Beardsall v. Dubois, [2009] O.J. No. 416 (C.A.), refd to. [para. 32].

Volik v. Lisovska, [2011] B.C.T.C. Uned. 22; 2011 BCSC 22, refd to. [para. 32].

Ahn v. Ahn, [2007] B.C.T.C. Uned. 635; 2007 BCSC 1148, refd to. [para. 32].

Fuller v. Matthews, [2007] B.C.T.C. Uned. C29; 2007 BCSC 444, refd to. [para. 32].

Vaughan v. Vaughan (2015), 436 N.B.R.(2d) 201; 1139 A.P.R. 201; 2015 NBQB 110, refd to. [para. 36].

Thompson v. Thompson, [2013] O.T.C. Uned. 5500; 2013 ONSC 5500, refd to. [para. 36].

Reid v. Gillingham (2015), 435 N.B.R.(2d) 176; 1134 A.P.R. 175; 2015 NBCA 27, refd to. [para. 38].

Brooks v. Brooks (2014), 419 N.B.R.(2d) 326; 1090 A.P.R. 326; 2014 NBCA 29, refd to. [para. 38].

Miglin v. Miglin, [2003] 1 S.C.R. 303; 302 N.R. 201; 171 O.A.C. 201; 2003 SCC 24, refd to. [para. 43].

MacLellan v. MacLellan, [2001] N.B.R.(2d) (Supp.) No. 58; 2001 NBCA 82, refd to. [para. 51].

Statutes Noticed:

Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, sect. 17(4.1) [para. 39]; sect. 17(7) [para. 41].

Authors and Works Noticed:

Canada, Department of Justice, Spousal Support Advisory Guidelines: A New and Improved User's Guide to the Final Version - see Rogerson, Carol, and Thompson, Rollie, Spousal Support Advisory Guidelines: A New and Improved User's Guide to the Final Version.

Rogerson, Carol, and Thompson, Rollie, Spousal Support Advisory Guidelines: A New and Improved User's Guide to the Final Version (2010), c. 12 [para. 27]; 12.5 [para. 32]; 13 [para. 19].

Wilton, Ann C., and Semple, Noel, Spousal Support in Canada (3rd Ed. 2015), p. 611 [para. 32].

Counsel:

Avocats:

Marie-Claude Bélanger-Richard, Q.C., for the appellant;

Robert N. Charman, for the respondent.

This appeal was heard on June 10, 2015, before Larlee, Quigg and Baird, JJ.A., of the New Brunswick Court of Appeal. In reasons written by Baird, J.A., the Court delivered the following judgment, in both official languages, on October 15, 2015.