Carr v. Anketell, 2015 NBQB 51

Judge:Walsh, J.
Court:Court of Queen's Bench of New Brunswick
Case Date:February 26, 2015
Jurisdiction:New Brunswick
Citations:2015 NBQB 51;(2015), 431 N.B.R.(2d) 319 (FD)
 
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Carr v. Anketell (2015), 431 N.B.R.(2d) 319 (FD);

    431 R.N.-B.(2e) 319; 1124 A.P.R. 319

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Temp. Cite: [2015] N.B.R.(2d) TBEd. MR.014

Renvoi temp.: [2015] N.B.R.(2d) TBEd. MR.014

Timothy Carr (petitioner) v. Karen Anketell (respondent)

(FDM 374-13; 2015 NBQB 51; 2015 NBBR 51)

Indexed As: Carr v. Anketell

Répertorié: Carr v. Anketell

New Brunswick Court of Queen's Bench

Family Division

Judicial District of Moncton

Walsh, J.

February 26, 2015.

Summary:

Résumé:

The parties separated in 2012 after 31 years of marriage. The issues were division of assets and debts under the Marital Property Act and spousal support for the wife under the Divorce Act. The most important question with respect to spousal support was whether to impute income to the husband.

The New Brunswick Court of Queen's Bench, Family Division, granted a divorce. The court imputed income to the husband and ordered him to pay prospective spousal support of $725 per month and arrears of $19,212. The parties would equally divide the wife's pension once that value was determined. The wife would owe the husband, pension division aside, $12,853.77 as an equalization payment. The wife was entitled to set-off against the required equalization and/or pension division the following: i. costs of $750 awarded to her on an interim motion; ii. the husband's $300 share of the cost for determining the pension value for division purposes; iii. costs ordered against the husband on this trial; and iv. arrears of spousal support.

Family Law - Topic 4021.4

Divorce - Corollary relief - Maintenance awards - Considerations - Ability to pay (incl. potential to earn income and calculation of income) - The parties separated in 2012 after 31 years of marriage - The husband was then 50 and the wife was 49 - The wife had been the primary care giver for their three children (now adults) - She was employed in a clerical position - During the marriage, the husband had been the owner-operator of a tractor-trailer and had driven locally for one company for approximately 20 years - He also worked many weekends doing carpentry/construction for cash - In November 2013 a judge ordered the husband to pay interim spousal support of $2,668 per month - At that time the husband was working in Alberta and the judge found his annual income for 2013 was projected to be $115,000 - The husband never paid the support ordered, except for minimal amounts through garnishment - The husband stopped working at the end of December 2013, claiming acute "anxiety" and "stress" - He was cleared to return to employment - However, his doctor's note advised that he not return to his previous employment - The husband had sold his transport truck - He obtained seasonal employment with a local company driving a dump truck - The wife asked the court to impute income to the husband on the grounds of his "intentional under-employment" - The New Brunswick Court of Queen's Bench, Family Division, concluded that the husband was unreasonably under-employed - The drop in the marital standard of living (from the combined household income of the parties around the time of separation to the parties' current combined incomes) of $25,970.58 was the additional income the court attributed to the husband for the purposes of calculating prospective spousal support - The court ordered the high end of the Spousal Support Advisory Guidelines range of $725 per month because of the length of the marriage and the existence of a compensatory element of entitlement - The court's approach for the period predating the trial (as covered by the interim order) was to impute income at the marital standard as it did for calculating prospective spousal support - The court found that the husband should have paid $19,212 for the period October 1, 2013 to December 31, 2014 - See paragraphs 25 to 54.

Family Law - Topic 4021.4

Divorce - Corollary relief - Maintenance awards - Considerations - Ability to pay (incl. potential to earn income and calculation of income) - The parties separated in 2012 after 31 years of marriage - At issue was spousal support for the wife - The wife asked the court to impute income to the husband on the grounds of his "intentional under-employment" - The New Brunswick Court of Queen's Bench, Family Division, stated that "before addressing whether income should be imputed logic would dictate that the Court decides what the marital standard of living had been. ... if there has not been a drop in the standard of living after separation there would not seem to be any cause to consider imputation of income for the purposes of determination of spousal support, at least on the grounds of 'intentional under-employment'. On the other hand, if there has been a decline in the marital standard of living post-separation then identifying the cause would be a most relevant inquiry. The usual proxy for the marital standard of living in a case such as this one, where the parties 'means' are essentially their respective incomes, would be the combined household incomes of the parties around the time of separation" - The court found that the combined marital household income was $86,521.86 ($24,690.90 (hers) + $61,830.96 (his)) - The effect of the parties' current combined incomes totalling $60,551.28 ($33,901.28 (hers) ད $26,650 (his)) was a drop of $25,970.58 from the standard of living enjoyed during marriage - The court concluded that the husband was unreasonably under-employed - The drop in the marital standard of living by $25,970.58 was the additional income the court attributed to the husband for the purposes of calculating prospective spousal support - See paragraphs 25 to 47.

Family Law - Topic 4021.4

Divorce - Corollary relief - Maintenance awards - Considerations - Ability to pay (incl. potential to earn income and calculation of income) - The New Brunswick Court of Queen's Bench, Family Division, stated that "By reviewing the authorities and adapting them to the spousal support context certain factors can be identified and certain principles emerge: The Court has a broad discretion to impute income but it must be determined on a case by case basis; 'The goal of imputation is to arrive at a fair estimate of income, not to arbitrarily punish'; In determining what is fair, the Court must examine not only the petitioner's financial situation but also that of the respondent; The Court is also entitled to take into consideration the 'litigation history' and 'the relationship between the parties'; Not every change of employment resulting in reduced income is 'unreasonable' and thus considered 'intentional'; However, the party seeking to justify a reduced income should demonstrate that the change is one over which he or she has no control or show that the 'change of employment that resulted in a reduced income was not made for selfish or illogical reasons and could prove sensible in the longer term'; And, when considering earning capacity the court must not only look at the person's qualifications, including factors such as age, education, experience, skills and health, the Court must also look to factors such as availability of work, freedom to relocate and other obligations" - See paragraph 34.

Family Law - Topic 4021.5

Divorce - Corollary relief - Maintenance awards - Support guidelines - [See first Family Law - Topic 4021.4 ].

Family Law - Topic 4022

Divorce - Corollary relief - Maintenance awards - To wife - Considerations - [See first Family Law - Topic 4021.4 ].

Family Law - Topic 4050

Divorce - Corollary relief - Maintenance - Enforcement - Payment or cancellation of arrears of maintenance (incl. interest) - [See first Family Law - Topic 4021.4 ].

Droit de la famille - Cote 4021.4

Divorce - Mesures accessoires - Ordonnances alimentaires - Facteurs considérés - Capacité de payer - [Voir Family Law - Topic 4021.4 ].

Droit de la famille - Cote 4021.5

Divorce - Mesures accessoires - Ordonnances alimentaires - Lignes directrices sur les pensions alimentaires (y compris les cas hors-divorce) - [Voir Family Law - Topic 4021.5 ].

Droit de la famille - Cote 4022

Divorce - Mesures accessoires - Ordonnances alimentaires - Ordonnances en faveur du conjoint - Facteurs considérés - [Voir Family Law - Topic 4022 ].

Droit de la famille - Cote 4050

Divorce - Mesures accessoires - Ordonnances alimentaires - Exécution - Paiement ou annulation des arriérés (y compris l'intérêt) - [Voir Family Law - Topic 4050 ].

Cases Noticed:

Thurrott v. Thurrott, [2011] N.B.R.(2d) Uned. 32; 2011 NBQB 125 (Fam. Div.), refd to. [para. 9].

C.M.H. v. J.R.H. (2012), 393 N.B.R.(2d) 154; 1017 A.P.R. 154; 2012 NBCA 71, refd to. [para. 25].

Rilli v. Rilli, [2006] O.T.C. Uned. A78 (Sup. Ct.), refd to. [para. 27].

Jean v. Jean (2006), 410 A.R. 260; 2006 ABQB 938, refd to. [para. 27].

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. 28].

Scott v. Jabora-Scott (2011), 368 N.B.R.(2d) 281; 949 A.P.R. 281; 2011 NBCA 7, refd to. [para. 29].

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. 33].

Pretty v. Pretty, [2011] N.S.R.(2d) Uned. 176; 2011 NSSC 296, refd to. [para. 34].

Bracklow v. Bracklow, [1999] 1 S.C.R. 420; 236 N.R. 79; 120 B.C.A.C. 211; 196 W.A.C. 211, refd to. [para. 35].

Fisher v. Fisher (2008), 232 O.A.C. 213; 2008 ONCA 11, refd to. [para. 36].

D.L. v. M.L. (2012), 396 N.B.R.(2d) 353; 1024 A.P.R. 353; 2012 NBQB 382 (Fam. Div.), refd to. [para. 41].

Lee v. Lee (1998), 167 Nfld. & P.E.I.R. 176; 513 A.P.R. 176 (Nfld. C.A.), refd to. [para. 44].

Pagani v. Pagani, [1990] B.C.J. No. 3051, refd to. [para. 44].

Milton v. Milton (2008), 338 N.B.R.(2d) 300; 866 A.P.R. 300; 2008 NBCA 87, refd to. [para. 55].

McColl v. McColl (1995), 13 R.F.L.(4th) 449 (Ont. C.J.), refd to. [para. 58].

Authors and Works Noticed:

Payne, Julien D., and Payne, Marilyn A., Child Support Guidelines in Canada (2012), p. 142 [para. 30]; 177 to 192 [para. 34].

Wilton and MacDonald, Spousal Support in Canada (2011), p. 247 [para. 26].

Counsel:

Avocats:

Petitioner, per se;

Jo-Anne Moore, for the respondent.

This matter was heard on February 4 and 5, 2015, before Walsh, J., of the New Brunswick Court of Queen's Bench, Family Division, Judicial District of Moncton, who delivered the following decision on February 26, 2015.

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