Clark-Smith v. Smith, (2013) 401 N.B.R.(2d) 206 (FD)

• Judge: Baird, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: February 18, 2013
• Jurisdiction: New Brunswick
• Citations: (2013), 401 N.B.R.(2d) 206 (FD);2013 NBQB 74

Clark-Smith v. Smith (2013), 401 N.B.R.(2d) 206 (FD);

    401 R.N.-B.(2e) 206; 1041 A.P.R. 206

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2013] N.B.R.(2d) TBEd. MR.021

Renvoi temp.: [2013] N.B.R.(2d) TBEd. MR.021

Terry Ann Josephine Clark-Smith (petitioner) v. Arthur Shawn Dwight Smith (respondent)

(FDF-290-11; 2013 NBQB 74; 2013 NBBR 74)

Indexed As: Clark-Smith v. Smith

Répertorié: Clark-Smith v. Smith

New Brunswick Court of Queen's Bench

Family Division

Judicial District of Fredericton

Baird, J.

February 18, 2013.

Summary:

Résumé:

Spouses married in 1981 and separated in 2010. These were high conflict divorce proceedings. The husband moved to (1) vary an interim spousal support order and (2) purchase assets held by a corporation which was operated by the parties during the marriage. The wife sought (1) an order for advance payment to compensate her for her one-half interest in the marital home as well as rental property; (2) an order requiring the husband to complete all outstanding undertakings; (3) discovery of the accountant for the husband's veterinary practice as well as the legal council for the practice; and (4) security for the payment of spousal support.

The New Brunswick Court of Queen's Bench, Family Division, determined the issues.

Family Law - Topic 2228

Maintenance of wives and children - Interim relief - Variation of interim relief - Spouses married in 1981 and separated in 2010 - An interim order granted the wife monthly support of $5,419.58 based on the husband's reported income of $180,000 - The husband was a veterinarian who ran his own practice - The husband moved to, inter alia, vary the interim spousal support order - He asserted that the court should impute income to the wife on the basis that she was living in Ontario and should be able to work - In the alternative, the husband asserted that there had been a material change in his financial circumstances since the interim order - The New Brunswick Court of Queen's Bench, Family Division, dismissed the motion - Rule 72.22 of the New Brunswick Rules of Court required the filing of a financial statement in motions where support issues were engaged - The husband had a statutory obligation to file and serve a sworn financial statement with his motion - He did not - Instead, he relied on his affidavit evidence, as well as the incomplete income statement for his new company in support of his claim to reduce the interim spousal support - Even had the court not been persuaded otherwise, it would have dismissed the request, as the husband was non-compliant with the financial disclosure requirements of Rule 72 - See paragraphs 58 to 65.

Family Law - Topic 2228

Maintenance of wives and children - Interim relief - Variation of interim relief - Spouses married in 1981 and separated in 2010 - An interim order granted the wife monthly support of $5,419.58 based on the husband's reported income of $180,000 - The husband was a veterinarian who ran his own practice - The husband moved to, inter alia, vary the interim spousal support order - He asserted that there had been a material change in his financial circumstances since the interim order - The New Brunswick Court of Queen's Bench, Family Division, dismissed the motion - There were insufficient reasons to establish the threshold, material change of circumstances as required by s. 17 of the Divorce Act - In fact, the court found that the husband had intentionally embarked on a financial course of action that had been orchestrated to create the illusion that his financial circumstances were worse than they were at the time of the previous order - There was insufficient evidence to support the husband's submission - The financial statement was missing and the corporate financial information incomplete - The wife continued to have economic need which arose from the breakdown of the marriage and the husband had the ability to pay the interim spousal support as previously ordered - See paragraphs 72 to 105.

Family Law - Topic 2384

Maintenance of wives and children - Variation of - Grounds (incl. changed circumstances) - [See second Family Law - Topic 2228 ].

Family Law - Topic 2392

Maintenance of wives and children - Variation of - Interim orders - [See second Family Law - Topic 2228 ].

Family Law - Topic 2445

Maintenance of wives and children - Evidence - Financial disclosure - [See first Family Law - Topic 2228 ].

Family Law - Topic 4080

Divorce - Corollary relief - Interim maintenance - Variation of - [See second Family Law - Topic 2228 ].

Family Law - Topic 4085

Divorce - Corollary relief - Interim maintenance - Evidence and proof (incl. disclosure) - [See first Family Law - Topic 2228 ].

Droit de la famille - Cote 2228

Entretien des épouses et des enfants - Mesures provisoires - Modification des mesures provisoires - [Voir Family Law - Topic 2228 ].

Droit de la famille - Cote 2384

Entretien des épouses et des enfants - Modification de l'ordonnance d'entretien - Motifs (y compris changement de circonstances) - [Voir Family Law - Topic 2384 ].

Droit de la famille - Cote 2392

Entretien des épouses et des enfants - Modification des ordonnances provisoires - [Voir Family Law - Topic 2392 ].

Droit de la famille - Cote 2445

Entretien des épouses et des enfants - Preuve - Information financière - [Voir Family Law - Topic 2445 ].

Droit de la famille - Cote 4080

Divorce - Mesures provisoires - Aliments - Modification - [Voir Family Law - Topic 4080 ].

Droit de la famille - Cote 4085

Divorce - Mesures provisoires - Preuve - [Voir Family Law - Topic 4085 ].

Cases Noticed:

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. 23].

Sutton v. Kay (2002), 250 N.B.R.(2d) 106; 650 A.P.R. 106 (C.A.), refd to. [para. 60].

Kay v. Kay (1999), 215 N.B.R.(2d) 291; 551 A.P.R. 291 (C.A.), refd to. [para. 67].

Lahanky v. Lahanky (2011), 375 N.B.R.(2d) 370; 969 A.P.R. 370; 2011 NBQB 220 (Fam. Div.), refd to. [para. 74].

Morris v. Morris (1997), 187 N.B.R.(2d) 205; 478 A.P.R. 205; 1997 CarswellNB 81 (C.A.), refd to. [para. 79].

Grant v. Grant (2012), 397 N.B.R.(2d) 254; 1028 A.P.R. 254; 2012 NBCA 101, refd to. [para. 81].

Sypher v. Sypher, [1986] O.J. No. 536 (C.A.), refd to. [para. 82].

Stewart-Croll v. Croll (1996), 113 Man.R.(2d) 60; 131 W.A.C. 60 (C.A.), refd to. [para. 83].

Pumphrey v. Pumphrey (1997), 148 Nfld. & P.E.I.R. 340; 464 A.P.R. 340 (Nfld. C.A.), refd to. [para. 83].

C.M.H. v. J.R.H. (2012), 393 N.B.R.(2d) 154; 1017 A.P.R. 154; 2012 CarswellNB 525; 2012 NBCA 71, refd to. [para. 83].

D.A. v. J.R. (2012), 387 N.B.R.(2d) 203; 1001 A.P.R. 203; 2012 NBCA 38, refd to. [para. 83].

D.L.J. v. D.J.L. (2009), 284 Nfld. & P.E.I.R. 316; 875 A.P.R. 316; 2009 PECA 6, refd to. [para. 83].

Smith v. Smith (2011), 375 N.B.R.(2d) 208; 969 A.P.R. 208; 2011 NBCA 66, refd to. [para. 88].

Chamberlain v. Chamberlain (2003), 259 N.B.R.(2d) 309; 681 A.P.R. 309; 2003 NBCA 34, refd to. [para. 91].

Flieger v. Adams (2012), 387 N.B.R.(2d) 322; 1001 A.P.R. 322; 2012 NBCA 39, refd to. [para. 93].

Willick v. Willick (1994), 173 N.R. 321; 125 Sask.R. 81; 81 W.A.C. 81; 1994 CanLII 28 (S.C.C.), refd to. [para. 102].

Rademaker v. Rademaker (2002), 251 N.B.R.(2d) 177; 654 A.P.R. 177 (C.A.), refd to. [para. 159].

Grant v. Townsend-Grant, [2011] N.B.J. No. 33 (C.A.), refd to. [para. 159].

Lizotte v. Arseneault et al. (2012), 395 N.B.R.(2d) 298; 1023 A.P.R. 298 (C.A.), refd to. [para. 165].

Counsel:

Avocats:

Benda G. Noble, Q.C., for the applicant;

Scott Larson, for the respondent.

This motion was heard on December 13 and 14, 2012, by Baird, J., of the New Brunswick Court of Queen's Bench, Family Division, Judicial District of Fredericton, who delivered the following decision on February 18, 2013.