Campbell v. Vaughan, 2016 NBCA 9

• Judge: Green, Baird and French, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: October 20, 2015
• Jurisdiction: New Brunswick
• Citations: 2016 NBCA 9;(2016), 447 N.B.R.(2d) 132 (CA)

Campbell v. Vaughan (2016), 447 N.B.R.(2d) 132 (CA);

    447 R.N.-B.(2e) 132; 1171 A.P.R. 132

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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: [2016] N.B.R.(2d) TBEd. MR.011

Renvoi temp.: [2016] N.B.R.(2d) TBEd. MR.011

Susan Amanda Campbell (appellant) v. James Edward Vaughan (respondent)

(60-15-CA; 2016 NBCA 9)

Indexed As: Campbell v. Vaughan

Répertorié: Campbell v. Vaughan

New Brunswick Court of Appeal

Green, Baird and French, JJ.A.

March 3, 2016.

Summary:

Résumé:

The parties separated in 2010 after 38 years of marriage. They were presently in their early 60s. In March 2011, the husband was ordered to pay interim spousal support of $6,601/month. The husband wished to retire on December 31, 2012. On December 19, 2012, a trial judge ordered the husband to pay spousal support of $6,500 until he retired and $1,300/month after he retired (see [2012] N.B.R.(2d) Uned. 138). The trial judge imputed post-retirement income to both parties. The husband appealed, arguing that the trial judge erred in law by (1) imputing post-retirement income to him without a finding of fact that his anticipated retirement was unreasonable; (2) including his veterans disability payments as income in the computation of spousal support; (3) including pension income in the calculation of spousal support when the pension had been included in the equalization of marital property; and (4) including the pension income and the income generated from the marital property asset division in his calculation of the amount of life insurance required post-retirement.

The New Brunswick Court of Appeal, in a decision reported at (2014), 415 N.B.R.(2d) 286; 1076 A.P.R. 286, held that the trial judge erred in law in fixing a post-retirement spousal support award when the husband had not yet retired and there was no evidence before him to support the award. The trial judge also erred by imputing income to the parties. The court set aside the amount determined for post-retirement spousal support and confirmed the amount of $6,500 to be paid monthly until such time as the husband retired. At that time, either party could request a review of spousal support without the requirement of proving a change in circumstances. The court also set aside the portion of the decision where the trial judge imputed income to the parties. The court upheld the trial judge's decision on the second and third grounds of appeal. Since the court had set aside the portion of the order respecting the amount of spousal support payable if and when the husband retired, it was not necessary to address the fourth ground of appeal. As of March 2015, the husband had still not retired. The wife applied to vary spousal support and requested that the variation be made retroactive to January 2012. She also sought to have a health and dental insurance plan for her benefit be reinstated.

The New Brunswick Court of Queen's Bench, Family Division, in a decision reported at (2015), 436 N.B.R.(2d) 201; 1139 A.P.R. 201, dismissed the application. The wife appealed.

The New Brunswick Court of Appeal dismissed the appeal.

Estoppel - Topic 377

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - When applicable - [See first Family Law - Topic 2210 ].

Estoppel - Topic 394

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - In family law cases - [See first Family Law - Topic 2210 ].

Family Law - Topic 2210

Maintenance of spouses and children - General principles - Calculation or attribution of income - The parties divorced - A 2012 final order required the husband to pay spousal support - The husband's income increased over the next three years - The wife moved to vary the spousal support order - The motion judge dismissed the motion - In finding that a variation was not warranted based on the parties' current financial circumstances, she imputed income of $20,000 to the wife because of her failure to use a $500,000 equalization payment to generate income - The wife appealed, arguing that the issue of imputation of income to her in relation to equalized marital property was res judicata because it was determined at the divorce trial and a subsequent appeal - The New Brunswick Court of Appeal dismissed the appeal - Neither the divorce trial nor the appeal determined whether income should be imputed to the wife based on the assertion that her equalization payment was not reasonably used to generate income - Even if such a determination had been made, res judicata would not preclude a future determination of the issue at a different time and in different circumstances - It was appropriate for the motion judge to determine the parties' income in the circumstances as they existed before her - See paragraphs 14 to 18.

Family Law - Topic 2210

Maintenance of spouses and children - General principles - Calculation or attribution of income - The parties divorced - A 2012 final order required the husband to pay spousal support - The husband's income increased over the next three years - The wife moved to vary the spousal support order - The motion judge dismissed the motion - In finding that a variation was not warranted based on the parties' current financial circumstances, she imputed income of $20,000 to the wife because of her failure to use a $500,000 equalization payment to generate income - The $500,000 was comprised of the wife's share of the husband's military pension and the parties' RRSPs - The wife appealed, arguing that it was unfair for the motion judge to impute income to her on that basis while at the same time excluding the husband's pension from his income for support purposes - The New Brunswick Court of Appeal dismissed the appeal - As a general proposition and all other factors being equal, divided marital property of this nature should factor similarly in the circumstances of both a payor and a payee in the determination of spousal support - However, such a proposition could not displace or dominate the analysis of the objectives and factors that had to be considered and weighed by a judge in order to make an appropriate spousal support order, as required by the Divorce Act - The motion judge did not err in law or in principle, or misapprehend the facts - See paragraphs 19 to 27.

Family Law - Topic 2210

Maintenance of spouses and children - General principles - Calculation or attribution of income - The parties divorced - A 2012 final order required the husband to pay spousal support - The husband's income increased over the next three years - The wife moved to vary the spousal support order - The motion judge dismissed the motion - In finding that a variation was not warranted based on the parties' current financial circumstances, she imputed income of $20,000 to the wife because of her failure to use a $500,000 equalization payment to generate income - The $500,000 was comprised of the wife's share of the husband's military pension and the parties' RRSPs - The wife appealed, arguing that the motion judge erred in imputing "interest income" on the $500,000 in the absence of evidence to establish an appropriate rate for doing so - The New Brunswick Court of Appeal dismissed the appeal - The motion judge did not explain how she decided which amount to impute - There was no indication of an intention to impute income based on the interest that might have been earned on the $500,000 - It was more likely that she imputed the $20,000 that had been requested by the husband, and that she did so based on the rationale that he advanced - The husband's evidence provided a rational basis on which to impute, as $20,000 was the amount he received from his share of the divided pension and he suggested that the wife should also be able to receive a similar amount - See paragraphs 28 to 36.

Family Law - Topic 2326

Maintenance of spouses and children - Maintenance of spouses - Effect of income or potential income of claimant - [See second and third Family Law - Topic 2210 ].

Family Law - Topic 2329

Maintenance of spouses and children - Maintenance of spouses - Considerations (incl. pensions) - [See second and third Family Law - Topic 2210 ].

Family Law - Topic 4021.9

Divorce - Corollary relief - Maintenance awards - Considerations - Pension income - [See second and third Family Law - Topic 2210 ].

Family Law - Topic 4027

Divorce - Corollary relief - Maintenance awards - Effect of income or potential income of claimant - [See second and third Family Law - Topic 2210 ].

Family Law - Topic 4034

Divorce - Corollary relief - Maintenance awards - Effect of division of matrimonial property - [See second and third Family Law - Topic 2210 ].

Cases Noticed:

Boston v. Boston, [2001] 2 S.C.R. 413; 271 N.R. 248; 149 O.A.C. 50; 2001 SCC 43, refd to. [para. 3].

Hachey v. Hachey (1981), 34 N.B.R.(2d) 14; 85 A.P.R. 14 (C.A.), refd to. [para. 14].

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

Black v. Black (2015), 441 N.B.R.(2d) 257; 1152 A.P.R. 257; 2015 NBCA 63, refd to. [para. 17].

Delichte v. Rogers (2013), 299 Man.R.(2d) 269; 590 W.A.C. 269; 2013 MBCA 106, refd to. [para. 17].

I.P. v. J.S.P., [2010] B.C.T.C. Uned. 1112; 2010 BCSC 1112, refd to. [para. 17].

Pettigrew v. Pettigrew, [2005] N.S.R.(2d) Uned. 162; 2005 NSSC 219, affd. (2006), 246 N.S.R.(2d) 298; 780 A.P.R. 298; 2006 NSCA 98, refd to. [para. 21].

Yemchuk v. Yemchuk (2005), 215 B.C.A.C. 193; 355 W.A.C. 193; 2005 BCCA 406, refd to. [para. 25].

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. 30].

Chiasson v. Doucet (2014), 422 N.B.R.(2d) 304; 1096 A.P.R. 304; 2014 NBCA 49, refd to. [para. 34].

Drygala v. Pauli (2002), 164 O.A.C. 241 (C.A.), refd to. [para. 34].

LeBlanc v. LeBlanc (2013), 401 N.B.R.(2d) 334; 1041 A.P.R. 334; 2013 NBCA 22, refd to. [para. 34].

J.P. v. R.R. (2004), 278 N.B.R.(2d) 351; 728 A.P.R. 351; 2004 NBCA 98, refd to. [para. 34].

Trevors v. Jenkins (2011), 375 N.B.R.(2d) 293; 969 A.P.R. 293; 2011 NBCA 61, refd to. [para. 34].

Counsel:

Avocats:

Sheila J. Cameron, Q.C., and Nicholas C.L. O'Toole, for the appellant;

Kenneth W. Martin, for the respondent.

This appeal was heard on October 20, 2015, before Green, Baird and French, JJ.A., of the New Brunswick Court of Appeal. French, J.A., delivered the following reasons for judgment for the court, in both official languages, on March 3, 2016.