C.H. v. T.C., (2008) 348 N.B.R.(2d) 127 (FD)

• Jurisdiction: New Brunswick
• Judge: Baird, J.
• Neutral Citation: 2008 NBQB 283
• Date: 16 October 2008
• Court: Court of Queen's Bench of New Brunswick (Canada)

C.H. v. T.C. (2008), 348 N.B.R.(2d) 127 (FD);

    348 R.N.-B.(2e) 127; 897 A.P.R. 127

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Temp. Cite: [2009] N.B.R.(2d) TBEd. SE.008

Renvoi temp.: [2009] N.B.R.(2d) TBEd. SE.008

C.H. (applicant) v. T.C. (respondent/moving party)

(FDSJ-703-04; 2008 NBQB 283; 2008 NBBR 283)

Indexed As: C.H. v. T.C.

Répertorié: C.H. v. T.C.

New Brunswick Court of Queen's Bench

Family Division

Judicial District of Saint John

Baird, J.

December 11, 2008.

Summary:

Résumé:

Spouses divorced. The husband sought a retroactive variation of his child support obligation to June 2006 when he unilaterally reduced his payments. Section 7 expenses under the Federal Child Support Guidelines were also payable. Both parties were self-employed and both sought to have income imputed to the other party. The wife sought to have the husband held in contempt where he had unilaterally reduced his child support payments.

The New Brunswick Court of Queen's Bench, Family Division, dismissed the husband's motion. The court imputed income to the husband and retroactively increased his child support obligation from January 2007, when he filed his motion to vary. The court declined to find the husband in contempt. The court awarded $2,500 costs to the wife, plus disbursements which included one-half of her expert accountant's fees. The court sought further information from the wife respecting her income and deductions.

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 2353

Maintenance of wives and children - Maintenance of children - Retroactive maintenance - [See Family Law - Topic 4001.1 ].

Family Law - Topic 2537

Maintenance of wives and children - Enforcement - Orders - Contempt proceedings - Spouses divorced - The husband sought a retroactive variation of his child support obligation to June 2006 when he unilaterally reduced his payments - The husband reported his income as $15,260 - The New Brunswick Court of Queen's Bench, Family Division, dismissed the husband's motion - The court imputed income to the self-employed husband for a total income of $71,661 as of January 2007, and retroactively increased his child support obligation from that date, when he filed his motion to vary - However, the court denied the wife's motion to find the husband in contempt where it was not satisfied beyond a reasonable doubt that he deliberately and willfully disobeyed the last court order - He unilaterally reduced his child support payments and filed a motion within a few months afterwards - See paragraphs 198 to 202.

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance and awards - Retroactive awards - Spouses divorced - The husband sought a retroactive variation of his child support obligation to June 2006 when he unilaterally reduced his payments - The New Brunswick Court of Queen's Bench, Family Division, dismissed the husband's motion - The court imputed income to the self-employed husband and retroactively increased his child support obligation from January 2007 when he filed his motion to vary - The court considered the payor's conduct, his failure to make timely disclosure, his attitude in the proceedings, his lifestyle, the financial documentation and the submissions made by both counsel and their experts - The court also found that the payor had sufficient means to satisfy a retroactive award - See paragraphs 142 to 158.

Family Law - Topic 4045.2

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Financial disclosure - The New Brunswick Court of Queen's Bench, Family Division, stated that "Financial disclosure is the foundation of proceedings involving child support." - The court reviewed case law respecting disclosure in child support proceedings - The court noted that s. 25 of the Child Support Guidelines imposed on the payor a specific obligation in terms of financial disclosure when there was a business involved - The court held that, given the language in s. 25, there was a duty to disclose that existed outside of any agreement or prior consent order - The obligation to disclose an increase or any change in income was a fundamental component of the Guidelines - The legislation contemplated adjustments for the children of post-separation and divorce to permit alterations or variations in the amount of child support consistent with the changes in the parties' income - See paragraphs 135 to 141 and 157.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Calculation or attribution of income - The New Brunswick Court of Queen's Bench, Family Division, stated that "In determining whether to impute income to a corporation, the court must consider the pre-tax income of the corporation, and the needs of the business to function properly. The goal is not to strip the company of capital. I agree that the payor parent should not be required to borrow funds or sell company assets to provide funds for child support." - See paragraph 172.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Calculation or attribution of income - Spouses divorced - The husband sought a retroactive variation of his child support obligation to June 2006 when he unilaterally reduced his payments - The New Brunswick Court of Queen's Bench, Family Division, dismissed the husband's motion - The court imputed income to the self-employed husband and retroactively increased his child support obligation from January 2007 when he filed his motion to vary - The husband's business income had been used for personal expenses, and not recorded - There were "unaccounted transactions, such as cash taken, unrecorded land transaction, adjustments to 'cash clearing' and advances to shareholder, unexplained" - Effective January 1, 2007, the court assessed the husband's income at $71,661 ($15,260 (as reported by him) plus $56,401 (unreported personal transactions and cash withdrawals as found by the wife's expert accountant)) - See paragraphs 159 to 190.

Family Law - Topic 4054.2

Divorce - Corollary relief - Maintenance - Enforcement - Contempt proceedings - [See Family Law - Topic 2537 ].

Family Law - Topic 4054.9

Divorce - Corollary relief - Maintenance - Enforcement - Costs - Spouses divorced - The husband sought a retroactive variation of his child support obligation to June 2006 when he unilaterally reduced his payments - The New Brunswick Court of Queen's Bench, Family Division, dismissed the husband's motion - The court imputed income to the self-employed husband and retroactively increased his child support obligation from January 2007 when he filed his motion to vary - The court awarded $2,500 costs to the wife, plus disbursements which included one-half of her expert accountant's fees - The wife made a pretrial settlement offer that was lower than what she received at trial - The husband's conduct in the proceedings created problems for the wife and her solicitor, resulting in time consuming and expensive pretrial procedures to find the truth - She should not be required to shoulder all of those costs herself - See paragraphs 203 to 215.

Droit de la famille - Cote 2353

Entretien des épouses et des enfants - Entretien des enfants - Rétroactivité - [Voir Family Law - Topic 2353 ].

Droit de la famille - Cote 2537

Entretien des épouses et des enfants - Exécution - Ordonnances - Procédures pour outrage au tribunal - [Voir Family Law - Topic 2537 ].

Droit de la famille - Cote 4001.1

Divorce - Mesures accessoires - Ordonnances alimentaires - Ordonnances rétroactives - [Voir Family Law - Topic 4001.1 ].

Droit de la famille - Cote 4045.2

Divorce - Mesures accessoires - Ordonnances alimentaires - Lignes directrices sur les pensions alimentaires pour enfants (y compris les cas hors-divorce) - Divulgation de renseignements financiers - [Voir Family Law - Topic 4045.2 ].

Droit de la famille - Cote 4045.5

Divorce - Mesures accessoires - Ordonnances alimentaires - Lignes directrices sur le pensions alimentaires pour enfants (y compris les cas hors-divorce) - Calcul ou attribution du revenu - [Voir Family Law - Topic 4045.5 ].

Droit de la famille - Cote 4054.2

Divorce - Mesures accessoires - Ordonnances alimentaires - Exécution - Procédures pour outrage au tribunal - [Voir Family Law - Topic 4054.2 ].

Droit de la famille - Cote 4054.9

Divorce - Mesures accessoires - Ordonnances alimentaires - Exécution - Dépens - [Voir Family Law - Topic 4054.9 ].

Cases Noticed:

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. 12].

L.G. v. G.B., [1995] 3 S.C.R. 370; 186 N.R. 201, refd to. [para. 12].

Sutton v. Kay (2002), 250 N.B.R.(2d) 106; 650 A.P.R. 106 (C.A.), refd to. [para. 136].

Kay v. Kay (1999), 215 N.B.R.(2d) 291; 551 A.P.R. 291 (C.A.), refd to. [para. 137].

O'Brien v. O'Brien (2007), 312 N.B.R.(2d) 302; 806 A.P.R. 302 (C.A.), refd to. [para. 139].

D.B.S. v. S.R.G. (2006), 351 N.R. 201; 391 A.R. 297; 377 W.A.C. 297; 2006 SCC 37, refd to. [para. 154].

L.J.W. v. T.A.R. - see D.B.S. v. S.R.G.

Henry v. Henry - see D.B.S. v. S.R.G.

Hiemstra v. Hiemstra - see D.B.S. v. S.R.G.

Newman v. Tibbetts (2004), 272 N.B.R.(2d) 337; 715 A.P.R. 337 (Fam. Div.), refd to. [para. 144].

Marinangeli v. Marinangeli (2003), 174 O.A.C. 76; 2003 CarswellOnt 2691 (C.A.), refd to. [para. 151].

L.S. v. E.P. (1999), 126 B.C.A.C. 28; 206 W.A.C. 28; 1999 CarswellBC 1402 (C.A.), refd to. [para. 151].

Baum v. Baum (1999), 27 B.C.T.C. 219; 182 D.L.R.(4th) 715 (S.C.), refd to. [para. 162].

Wilcox v. Snow (1999), 181 N.S.R.(2d) 92; 560 A.P.R. 92 (C.A.), refd to. [para. 163].

Brophy v. Brophy, [2002] O.T.C. Uned. 779 (Sup. Ct.), refd to. [para. 164].

Vance v. Kovacs (2005), 295 N.B.R.(2d) 165; 766 A.P.R. 165 (Fam. Div.), refd to. [para. 166].

J.A.M. v. D.L.M. (2008), 326 N.B.R.(2d) 111; 838 A.P.R. 111; 2008 CarswellNB 24; 2008 NBCA 2, refd to. [para. 167].

Drygala v. Pauli (2003), 167 O.A.C. 274 (C.A.), refd to. [para. 167].

Mason v. Fournier, 2008 NBQB 133, refd to. [para. 168].

MacDougall v. Rousselle (2006), 303 N.B.R.(2d) 111; 787 A.P.R. 111 (Fam. Div.), refd to. [para. 169].

Hanson v. Hanson, [1999] B.C.T.C. Uned. 688 (S.C.), refd to. [para. 169].

S.F. v. L.S. (2005), 278 N.B.R.(2d) 16; 728 A.P.R. 16 (Fam. Div.), refd to. [para. 170].

Finlay v. Finlay (2004), 283 N.B.R.(2d) 201; 740 A.P.R. 201 (Fam. Div.), refd to. [para. 170].

Forward v. Martin (1999), 217 N.B.R.(2d) 61; 555 A.P.R. 61 (Fam. Div.), refd to. [para. 170].

Cyr v. Roy (1999), 210 N.B.R.(2d) 100; 536 A.P.R. 100 (Fam. Div.), refd to. [para. 170].

Warren v. Warren (1998), 203 N.B.R.(2d) 356; 518 A.P.R. 356 (Fam. Div.), refd to. [para. 170].

R.R. v. N.R. (2007), 308 N.B.R.(2d) 336; 797 A.P.R. 336 (Fam. Div.), refd to. [para. 170].

Tauber v. Tauber, [2001] O.T.C. 625; 203 D.L.R.(4th) 168 (Sup. Ct.), refd to. [para. 170].

Wildman v. Wildman (2006), 215 O.A.C. 239 (C.A.), refd to. [para. 171].

Nesbitt v. Nesbitt (2001), 156 Man.R.(2d) 238; 246 W.A.C. 238 (C.A.), refd to. [para. 173].

Hood v. Fost (2000), 182 N.S.R.(2d) 394; 563 A.P.R. 394; 2 R.F.L.(5th) 399 (C.A.), refd to. [para. 173].

Hobbs v. Hobbs (2008), 240 O.A.C. 202 (C.A.), refd to. [para. 199].

Services aux enfants et adultes de Prescott-Russell v. N.G. et al. (2006), 214 O.A.C. 146; 82 O.R.(3d) 686 (C.A.), refd to. [para. 200].

Bruce v. Kelly (2002), 214 Nfld. & P.E.I.R. 143; 642 A.P.R. 143; 30 R.F.L.(5th) 42 (P.E.I.T.D.), refd to. [para. 202].

Dickie v. Dickie (2007), 357 N.R. 196; 221 O.A.C. 394; 2007 SCC 8, refd to. [para. 202].

Collier v. Collier (1990), 108 N.B.R.(2d) 287; 269 A.P.R. 287 (Fam. Div.), refd to. [para. 204].

MacDougall v. Boivin (2005), 286 N.B.R.(2d) 57; 748 A.P.R. 57 (C.A.), refd to. [para. 205].

Scott v. Scott (2003), 265 N.B.R.(2d) 359; 695 A.P.R. 359 (Fam. Div.), refd to. [para. 206].

Newman v. Tibbetts (2005), 283 N.B.R.(2d) 63; 740 A.P.R. 63; 2005 CarswellNB 181 (C.A.), refd to. [para. 207].

Clain v. Clain (1985), 62 N.B.R.(2d) 319; 161 A.P.R. 319; 1985 CarswellNB 350 (C.A. Registrar), refd to. [para. 208].

Brad-Jay Investments Ltd. v. Village Developments Ltd. et al. (2006), 218 O.A.C. 315 (C.A.), leave to appeal refused (2007), 374 N.R. 390; 241 O.A.C. 394 (S.C.C.), refd to. [para. 213].

Brad-Jay Investments Ltd. v. Szijjarto - see Brad-Jay Investments Ltd. v. Village Developments Ltd. et al.

Khan v. Yakub, [2008] O.T.C. Uned. M28 (Sup. Ct.), refd to. [para. 215].

Counsel:

Avocats:

Corry A. Toole, for the applicant;

Jill M. Knee, for the respondent.

This motion was heard between May 29 and October 16, 2008, by Baird, J., of the New Brunswick Court of Queen's Bench, Family Division, Judicial District of Saint John, who delivered the following decision on December 11, 2008.