C.M.R. v. O.D.R., (2008) 337 N.B.R.(2d) 90 (FD)

• Jurisdiction: New Brunswick
• Judge: Baird, J.
• Neutral Citation: 2008 NBQB 253
• Citation: (2008), 337 N.B.R.(2d) 90 (FD),2008 NBQB 253,337 NBR(2d) 90,(2008), 337 NBR(2d) 90 (FD),337 N.B.R.(2d) 90
• Date: 16 July 2008
• Court: Court of Queen's Bench of New Brunswick (Canada)

C.M.R. v. O.D.R. (2008), 337 N.B.R.(2d) 90 (FD);

    337 R.N.-B.(2e) 90; 864 A.P.R. 90

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Temp. Cite: [2008] N.B.R.(2d) TBEd. OC.004

Renvoi temp.: [2008] N.B.R.(2d) TBEd. OC.004

C.M.R. (petitioner) v. O.D.R. (respondent)

(FDSJ-656-05; 1301-57692; 2008 NBQB 253; 2008 NBBR 253)

Indexed As: C.M.R. v. O.D.R.

Répertorié: C.M.R. v. O.D.R.

New Brunswick Court of Queen's Bench

Family Division

Judicial District of Saint John

Baird, J.

August 15, 2008.

Summary:

Résumé:

The parties married in 1988 and separated in 2005. They had four children. The wife petitioned for divorce. She requested a joint custody order with primary day to day care and control of the children to be with her and reasonable access to the husband, child support of $819 per month, spousal support and costs. Pursuant to the Marital Property Act, she claimed an equal division of marital property. An interim order issued on May 7, 2007, had assessed the husband's annual income at $35,000 and ordered Guideline child support in the amount of $819 per month. Effective August 2008, arrears had accumulated to $18,587.28. The husband filed notices of motion seeking a variation of the child support provisions of the interim order and rescission of the accumulated arrears on the grounds that he was no longer employed and was on social assistance.

The New Brunswick Court of Queen's Bench, Family Division, granted a divorce. The court made a joint custody order in relation to three youngest children, with the primary day-to-day residential care and control of the children to be with the mother. The court found that the oldest child stopped being a dependent for the purposes of child support at the end of August 2008. The court imputed the husband's income at $35,000 and fixed his support obligation for the three youngest children at $682 monthly. The arrears in child support would be satisfied through the transfer of the equity in the marital home to the wife. The husband's obligation to pay child support in the amount of $682 monthly would be satisfied from the additional equity the wife was receiving by virtue of taking title to the home. The wife could return to the court for a further child support order and she would have to provide an accounting of all monies received from the sale of the home. The court made no order for spousal support. The court denied the wife's claim for occupation rent with respect to the marital home and determined the division of property issues accordingly.

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 627

Husband and wife - Marital property - Matrimonial home - Occupation by one spouse - Claim for occupation rent - The husband had lived in the marital home since the separation date in 2005 - There was no mortgage on the home - The wife sought occupation rent - The New Brunswick Court of Queen's Bench, Family Division, held that an order for occupation rent would have been appropriate in this case - However, the court stated that "No evidence was before the court concerning what monthly amount should be assigned for occupation rent. Occupation rent was not requested in the pleadings. The petitioner's claim for occupation rent fails for the above reasons" - See paragraphs 103 to 111.

Family Law - Topic 4007

Divorce - Corollary relief - Maintenance and awards - Awards - Order securing payment of - The New Brunswick Court of Queen's Bench, Family Division, held that it was not satisfied that a father would comply with a court order for child support - The court ordered that arrears in child support ($18,587.28) would be satisfied through the transfer of the equity in the marital home to the mother - The father's ongoing obligation to pay child support in the amount of $682 monthly would be satisfied from the additional equity the mother was receiving by virtue of taking title to the home to be held in trust by her for the benefit of the children - The mother could return to the court for a further child support order and she would have to provide an accounting of all monies received from the sale of the home - See paragraphs 72 to 87.

Family Law - Topic 4014

Divorce - Corollary relief - Maintenance and awards - Awards - To children and children defined - The parties' oldest child, N., was born in 1989 - N. had graduated from high school two years earlier and he was attempting to upgrade his skills by returning to high school to pursue one course - He was also partly employed one day a week at two different jobs - From January 2007 to the end of 2007, N. was not employed and he continued to live with his mother - The New Brunswick Court of Queen's Bench, Family Division, found that N. continued to remain a child of the marriage and a dependent for the purposes of child support from his graduation up to the end of August 2008 - The court heard evidence that it was N.'s intention to be enrolled as a Reservist with the Department of National Defence so his period of dependency terminated as of the end of August 2008 - See paragraphs 69 to 71.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Calculation or attribution of income - The parties separated in 2005 - They had four children - An interim order issued on May 7, 2007, ordered Guideline child support in the amount of $819 per month based on the father's then income of $35,000 per year from his employment as an autobody mechanic - The husband sought a variation of the child support provisions and rescission of the accumulated arrears ($18,587.28) on the grounds that he was no longer employed and was on social assistance - The husband testified that he suffered from anxiety and depression for which he was receiving treatment - The New Brunswick Court of Queen's Bench, Family Division, found that the husband was intentionally unemployed, that he was working under the table for cash in an attempt to avoid the payment of child support and that he had deliberately failed to provide full disclosure with respect to his income or cash available to him to discharge his child support arrears - The husband had historically been employed as an auto body mechanic and the court attributed an annual income of $35,000 to him on an ongoing basis - See paragraphs 46 to 67.

Family Law - Topic 4050

Divorce - Corollary relief - Maintenance - Enforcement - Payment or cancellation of arrears of maintenance (incl. interest) - [See Family Law - Topic 4007 ].

Droit de la famille - Cote 627

Mari et femme - Biens matrimoniaux - Foyer matrimonial - Occupation par un des conjoints - Demande d'indemnité d'occupation - [Voir Family Law - Topic 627 ].

Droit de la famille - Cote 4007

Divorce - Mesures accessoires - Ordonnances alimentaires - Ordonnance de paiement - [Voir Family Law - Topic 4007 ].

Droit de la famille - Cote 4014

Divorce - Mesures accessoires - Ordonnances alimentaires - Ordonnances en faveur d'enfants et définition d'enfants - [Voir Family Law - Topic 4014 ].

Droit de la famille - Cote 4045.5

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

Droit de la famille - Cote 4050

Divorce - Mesures accessoires - Ordonnances alimentaires - Exécution - Paiement ou annulation des arriérés - [Voir Family Law - Topic 4050 ].

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. 28].

Pickett v. Pickett (2000), 230 N.B.R.(2d) 165; 593 A.P.R. 165 (Fam. Div.), refd to. [para. 29].

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. 29].

Passarello v. Passarello (1998), 64 O.T.C. 118; 1998 CarswellOnt 2983 (Gen. Div.), refd to. [para. 36].

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. 45].

Morris v. Morris (1997), 187 N.B.R.(2d) 205; 478 A.P.R. 205; 1997 CarswellNB 81 (C.A.), refd to. [para. 59].

Mason v. Fournier, 2008 NBQB 133, refd to. [para. 67].

MacDougall v. Rousselle (2006), 303 N.B.R.(2d) 111; 787 A.P.R. 111 (Fam. Div.), refd to. [para. 67].

Hanson v. Hanson, [1999] B.C.T.C. Uned. 688 (S.C.), refd to. [para. 67].

Francis v. Sappier, [2005] N.B.J. No. 30, refd to. [para. 68].

Finlay v. Finlay (2004), 283 N.B.R.(2d) 201; 740 A.P.R. 201 (Fam. Div.), refd to. [para. 68].

Forward v. Martin (1999), 217 N.B.R.(2d) 61; 555 A.P.R. 61 (Fam. Div.), refd to. [para. 68].

Cyr v. Roy (1999), 210 N.B.R.(2d) 100; 536 A.P.R. 100 (Fam. Div.), refd to. [para. 68].

Warren v. Warren (1998), 203 N.B.R.(2d) 356; 518 A.P.R. 356 (Fam. Div.), refd to. [para. 68].

Hunt v. Smolis-Hunt (1998), 224 A.R. 68; 1998 CarswellAlta 427 (Q.B.), revd. in part (2001), 286 A.R. 248; 253 W.A.C. 248 (C.A.), consd. [para. 76].

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. 93].

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. 96].

Crosman v. Crosman (2006), 299 N.B.R.(2d) 334; 778 A.P.R. 334 (C.A.), refd to. [para. 97].

Brennan v. Brennan, [2003] N.B.R.(2d) Uned. 4 (Fam. Div.), consd. [para. 106].

Braglin v. Braglin (2002), 325 A.R. 161 (Q.B.), consd. [para. 106].

Barton v. Barton, [1999] N.B.R.(2d) Uned. 72 (Fam. Div.), refd to. [para. 108].

Counsel:

Avocats:

Kenneth W. Martin, for the applicant;

Peter J.C. White, for the respondent.

This matter was heard on July 16, 2008, before Baird, J., of the New Brunswick Court of Queen's Bench, Family Division, Judicial District of Saint John, who delivered the following oral judgment on August 15, 2008.