Dykeman v. Dykeman, (2002) 256 N.B.R.(2d) 207 (FD)

• Judge: Robichaud, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: October 11, 2002
• Jurisdiction: New Brunswick
• Citations: (2002), 256 N.B.R.(2d) 207 (FD);2002 NBQB 395

Dykeman v. Dykeman (2002), 256 N.B.R.(2d) 207 (FD);

    256 R.N.-B.(2e) 207; 670 A.P.R. 207

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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: [2003] N.B.R.(2d) TBEd. JA.012

Sylvia Dykeman (petitioner) v. Leroy Dykeman (respondent)

(FDF/521/01; 2002 NBQB 395)

Indexed As: Dykeman v. Dykeman

New Brunswick Court of Queen's Bench

Family Division

Judicial District of Fredericton

Robichaud, J.

December 23, 2002.

Summary:

Spouses separated in May 2000 after 39 years' marriage. The wife petitioned for a divorce and sought spousal support and a division of marital assets. At issue was the quantum and duration of support and the division of the husband's investment portfolio, which dropped in value significantly in the two years since separation. Particularly, should the portfolio be valued at the date of separation or the date of division, when it was worth significantly less.

The New Brunswick Court of Queen's Bench, Family Division, awarded the wife $700 per month spousal support, reviewable when the husband reached age 65. The court denied the wife's claim for lump sum support and her claim for retroactive support. An equal division of marital property was ordered, with the stock portfolios to be valued as of December 31, 2002, after the date of judgment.

Family Law - Topic 888

Husband and wife - Marital property - Considerations in making distribution orders - Valuation (incl. time for) - Spouses separated in May 2000 after a 39 year traditional marriage - A significant marital asset (one of husband's investment portfolios) had declined 37% in value ($148,873) since the date of separation due to the stock market decline - Additionally, losses resulted from the husband's continued purchase of Nortel stock as it plummeted - At issue was whether the portfolio should be valued at the date of separation, with the husband solely shouldering any post-separation losses in value - The New Brunswick Court of Queen's Bench, Family Division, held the portfolio was to be valued as of December 31, 2002, after the date of judgment - The wife benefitted from the husband's historical wise investment decisions that resulted in a significant stock portfolio at the date of separation - The husband did not act wantonly or recklessly in the post-separation purchases of Nortel stock - It was fair that both spouses equally share the post-separation losses - See paragraphs 107 to 135.

Family Law - Topic 4011

Divorce - Corollary relief - Maintenance awards - Lump sum - [See Family Law - Topic 4022.1 ].

Family Law - Topic 4022.1

Divorce - Corollary relief - Maintenance awards - To spouse - Extent of obligation - Spouses separated in 2000 after a 39 year traditional marriage - The wife suffered from medical conditions which rendered her incapable of becoming self-sufficient - Her income sources were limited to $326 per month in Canada Pension benefits and her share of marital property - The self-employed husband earned net income of $23,000 per year and equally shared living expenses with his new partner - The New Brunswick Court of Queen's Bench, Family Division, awarded the wife $700 per month spousal support, reviewable when the husband reached age 65 - The court denied the wife's request for a "clean break" by converting the periodic support obligation to a lump sum - Circumstances did not warrant a lump sum, which would effectively result in a redistribution of marital property - See paragraphs 47 to 70.

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. 57].

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. 58].

Sharpe v. Sharpe (1997), 22 O.T.C. 298 (Gen. Div.), refd to. [para. 67].

Fraser v. Fraser (1983), 47 N.B.R.(2d) 364; 124 A.P.R. 364 (C.A.), refd to. [para. 133].

Counsel:

Arlene H. Glencross and Jennifer M. Robertson, for the petitioner;

Barry L. Athey, Q.C., and Kathryn Gregory El-Khoury, for the respondent.

This case was heard on June 13-14 and October 11, 2002, before Robichaud, J., of the New Brunswick Court of Queen's Bench, Family Division, Judicial District of Fredericton, who delivered the following judgment on December 23, 2002.