G.M. v. M.R., (2015) 434 N.B.R.(2d) 277 (FD)

• Judge: Cyr, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: October 03, 2014
• Jurisdiction: New Brunswick
• Citations: (2015), 434 N.B.R.(2d) 277 (FD);2015 NBQB 79

G.M. v. M.R. (2015), 434 N.B.R.(2d) 277 (FD);

          434 R.N.-B.(2e) 277; 1132 A.P.R. 277

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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: [2015] N.B.R.(2d) TBEd. JN.001

Renvoi temp.: [2015] N.B.R.(2d) TBEd. JN.001

[G.M.] (petitioner) v. [M.R.] (respondent)

(FDB/217/2008; 1301-58891; 2015 NBQB 79; 2015 NBBR 79)

Indexed As: G.M. v. M.R.

Répertorié: G.M. v. M.R.

New Brunswick Court of Queen's Bench

Family Division

Judicial District of Bathurst

Cyr, J.

March 30, 2015.

Summary:

Résumé:

The parties married in 1998 and separated in 2008. They agreed to have joint custody of their two children, and that the children's primary residence would be with the mother, but they disagreed on certain terms and conditions of custody and access. They also disagreed on the division of property and debts, spousal support, child support, and special or extraordinary expenses.

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

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 880.30

Husband and wife - Marital property - Distribution orders - Particular property - Professional practice - [See Family Law - Topic 880.47 ].

Family Law - Topic 880.47

Husband and wife - Marital property - Distribution orders - Particular property - Company shares, stock options, etc. - The parties separated - The wife was entitled to half of the value of the husband's professional corporation - There were two methods of paying the sum owing to the wife: the company could redeem the wife's shares, which would result in a taxable dividend payable by the wife, or the husband could purchase the shares, which would result in a capital gain for the wife - The New Brunswick Court of Queen's Bench, Family Division, held that the wife was not entitled to compensation for dividend tax because (1) no evidence was presented regarding the tax impact for the husband in the event that he had to purchase the wife's shares himself; (2) the husband's purchase of the wife's shares involved restructuring the corporation and some uncertainty as to the tax impact of such restructuring; (3) expert evidence revealed that on the disposal of shares, the disposing party would suffer tax consequences and this evidence applied to both parties; (4) the wife always received funds from the professional corporation in the form of dividends prior to separation, and she always took on the tax liability related to those dividends; and (5) in the absence of an agreement, both parties had to bear their own fiscal impact in terms of taxation - If the parties had an agreement, which was not the case, they could have negotiated to distribute the tax impact - The husband was ordered to arrange for his professional corporation to purchase the shares held by the wife so that she received an actual dividend - See paragraphs 107 to 109.

Family Law - Topic 882

Husband and wife - Marital property - Distribution orders - Relevant considerations (incl. income tax) - [See Family Law - Topic 880.47 ].

Family Law - Topic 1900

Custody and access - Considerations in awarding custody - Maximum contact with each parent - A father was granted specified periods of access with the parties' two children - At issue was (1) whether his access rights which began on Fridays should begin at 4:00 p.m. or 4:30 p.m., and (2) which parent was responsible for picking up and dropping off the children for all access periods - The New Brunswick Court of Queen's Bench, Family Division, held that access rights should begin at 4:00 p.m. on Fridays as this approach promoted contact between the father and the children - Respecting transportation, it was much more reasonable for the father to take responsibility for picking up and dropping off the children, since this would also give him extra time with the children - See paragraphs 36 to 44.

Family Law - Topic 2009

Custody and access - Access - Access awards - General - [See Family Law - Topic 1900 ].

Family Law - Topic 2079

Custody and access - Joint custody - Final decision-making authority - The primary residence of the parties' two children was with the mother - The father agreed to give the mother ultimate decision-making authority over major issues and in emergency situations involving the children's health, but wished to be involved in all non-urgent major decisions - He argued that one of the parties should apply to the court in the event of a dispute - The New Brunswick Court of Queen's Bench, Family Division, found that the mother had always been responsible for looking after the children when they were sick or required certain care - She arranged and took the children to their medical and dental appointments - The father had certain opinions that caused conflict in the parties' relationship (for instance, he did not want the children to be vaccinated) - Given that the mother had always made good decisions respecting the children's care in the past, she would continue to have ultimate decision-making authority in the event of a dispute - It would be unreasonable to make the parties apply to the court - See paragraphs 23 to 33.

Family Law - Topic 2211

Maintenance of spouses and children - General principles - Retrospective or retroactive orders - [See Family Law - Topic 2353 ].

Family Law - Topic 2329

Maintenance of spouses and children - Maintenance of spouses - Considerations - [See Family Law - Topic 4022 ].

Family Law - Topic 2353

Maintenance of spouses and children - Maintenance of children - Retroactive maintenance - The parties separated in April 2008 - The mother and the parties' two children moved out of the marital home - The mother was unemployed - The father was a lawyer - An interim order required the father to pay child support of $1,940/month beginning in June 2008 based on an annual income of $150,000 - The father did not alter his support payments to comply with the changes that arose when the Federal Child Support Guidelines were amended on December 31, 2011 - The New Brunswick Court of Queen's Bench, Family Division, retroactively varied the interim order and ordered the father to pay $2,034/month as of January 2012 - The father did not have a reasonable belief that his support obligation was being fulfilled when he knew or ought to have known that the Guidelines had been amended - The father also knew or ought to have known that he had to make a child support payment in May 2008, when the mother had primary custody of the children and no income - A retroactive award would not impose too great a burden on the father and the children would benefit from it - See paragraphs 113 to 127.

Family Law - Topic 2484

Maintenance of spouses and children - Awards - Periodic payments - [See Family Law - Topic 4022 ].

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance awards - Retroactive awards - [See Family Law - Topic 2353 ].

Family Law - Topic 4010

Divorce - Corollary relief - Maintenance awards - Periodic payments - [See Family Law - Topic 4022 ].

Family Law - Topic 4021.1

Divorce - Corollary relief - Maintenance awards - Considerations - Financial consequences of child care and household responsibilities - [See Family Law - Topic 4022 ].

Family Law - Topic 4021.2

Divorce - Corollary relief - Maintenance awards - Considerations - Leaving labour market for family responsibilities - [See Family Law - Topic 4022 ].

Family Law - Topic 4021.5

Divorce - Corollary relief - Maintenance awards - Support guidelines - [See Family Law - Topic 4022 ].

Family Law - Topic 4022

Divorce - Corollary relief - Maintenance awards - To spouse - Considerations - The parties married in 1998 and separated in April 2008 - The New Brunswick Court of Queen's Bench, Family Division, considered the following facts in awarding the wife spousal support: (1) the length of the relationship; (2) the wife looked after housekeeping and the parties' two children, and supported the husband, which allowed the husband to devote a great deal of time to building a large legal practice and now enabled him to earn a substantial income (currently $150,000/year); (3) the wife was economically dependent as a result of the marriage; (4) the wife did not pursue a career during the marriage, which would have offered her some job security at the time of separation; (5) the wife suffered disadvantages as a result of the separation, including difficulty finding a full-time job with benefits; (6) the wife was the primary custodial parent during the marriage and since separation; (7) the wife needed financial support after the separation and at present; and (9) the husband had paid spousal support of $2,250/month since June 2008 - $2,250 was within the range suggested by the Guidelines - The wife was entitled to receive this amount on a monthly basis for six years beginning in December 2014 - See paragraphs 128 to 155.

Family Law - Topic 4022.1

Divorce - Corollary relief - Maintenance awards - To spouse - Extent of obligation - [See Family Law - Topic 4022 ].

Droit de la famille - Cote 880.30

Mari et femme - Biens matrimoniaux - Ordonnances de répartition - Biens particuliers - Profession libérale - [Voir Family Law - Topic 880.30 ].

Droit de la famille - Cote 880.47

Mari et femme - Biens matrimoniaux - Ordonnances de répartition - Biens particuliers - Actions de société, options d'achat d'actions, etc. - [Voir Family Law - Topic 880.47 ].

Droit de la famille - Cote 882

Mari et femme - Biens matrimoniaux - Facteurs considérés lors du prononcé de l'ordonnance de répartition - Facteurs considérés - Aspect fiscal - [Voir Family Law - Topic 882 ].

Droit de la famille - Cote 1900

Garde et accès - Facteurs considérés lors de l'attribution de la garde - Maximum de communication avec chaque parent - [Voir Family Law - Topic 1900 ].

Droit de la famille - Cote 2009

Garde et accès - Accès - Modalités d'accès - Généralités (y compris l'"accès raisonnable") - [Voir Family Law - Topic 2009 ].

Droit de la famille - Cote 2079

Garde et accès - Garde conjointe - Pouvoir décisionnel ultime - [Voir Family Law - Topic 2079 ].

Droit de la famille - Cote 2211

Entretien des conjoints et des enfants - Principes généraux - Ordonnances rétrospectives ou rétroactives - [Voir Family Law - Topic 2211 ].

Droit de la famille - Cote 2329

Entretien des conjoints et des enfants - Entretien des conjoints - Facteurs à considérer - [Voir Family Law - Topic 2329 ].

Droit de la famille - Cote 2353

Entretien des conjoints et des enfants - Entretien des enfants - Rétroactivité - [Voir Family Law - Topic 2353 ].

Droit de la famille - Cote 2484

Entretien des conjoints et des enfants - Montants accordés - Versements périodiques - [Voir Family Law - Topic 2484 ].

Droit de la famille - Cote 4001.1

Divorce - Mesures accessoires - Ordonnances alimentaires - Ordonnances rétroactives - [Voir Family Law - Topic 4001.1 ].

Droit de la famille - Cote 4010

Divorce - Mesures accessoires - Ordonnances alimentaires - Versements périodiques - [Voir Family Law - Topic 4010 ].

Droit de la famille - Cote 4021.1

Divorce - Mesures accessoires - Ordonnances alimentaires - Facteurs considérés - Conséquences financières du soin des enfants et des responsabilités domestiques - [Voir Family Law - Topic 4021.1 ].

Droit de la famille - Cote 4021.2

Divorce - Mesures accessoires - Ordonnances alimentaires - Facteurs considérés - Quitter le marché du travail pour se consacrer à sa famille - [Voir Family Law - Topic 4021.2 ].

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 4022.1

Divorce - Mesures accessoires - Ordonnances alimentaires - Ordonnances en faveur de l'épouse - Étendue de l'obligation - [Voir Family Law - Topic 4022.1 ].

Cases Noticed:

Milton v. Milton (2008), 338 N.B.R.(2d) 300; 866 A.P.R. 300; 2008 NBCA 87, refd to. [para. 94].

Hebb v. Hebb (1991), 103 N.S.R.(2d) 147; 282 A.P.R. 147 (C.A.), refd to. [para. 95].

Hill v. Hill et al. (2008), 332 N.B.R.(2d) 127; 852 A.P.R. 127; 2008 NBQB 217 (Fam. Div.), refd to. [para. 117].

Brown v. Brown (2010), 353 N.B.R.(2d) 323; 910 A.P.R. 323; 2010 NBCA 5, refd to. [para. 117].

D.B.S. v. S.R.G. (2006), 351 N.R. 201; 391 A.R. 297; 377 W.A.C. 297; 2006 SCC 37, refd to. [para. 118].

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. 129].

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. 134].

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. 140].

M.D. v. P.D. (2014), 426 N.B.R.(2d) 196; 1110 A.P.R. 196; 2014 NBCA 63, refd to. [para. 141].

B.P. v. A.T. (2014), 423 N.B.R.(2d) 99; 1103 A.P.R. 99; 2014 NBCA 51, refd to. [para. 154].

M.L. v. S.L. (2015), 434 N.B.R.(2d) 199; 1132 A.P.R. 199; 2015 NBQB 64, refd to. [para. 154].

Rademaker v. Rademaker (2002), 251 N.B.R.(2d) 177; 654 A.P.R. 177; 2002 NBCA 47, refd to. [para. 177].

Betts v. Betts (2015), 433 N.B.R.(2d) 81; 1130 A.P.R. 81; 2015 NBQB 19, refd to. [para. 177].

Simms v. Simms (1996), 182 N.B.R.(2d) 362; 463 A.P.R. 362 (C.A.), refd to. [para. 177].

Authors and Works Noticed:

Rogerson, Carol, and Thompson, Rollie, Spousal Support Advisory Guidelines: A New and Improved User's Guide to the Final Version, ch. 2, pp. 3 [para. 131]; 4 [para. 132].

Counsel:

Avocats:

Marie-Claude Bélanger-Richard, Q.C., appeared on behalf of the petitioner, [G.M.];

Stephen J. Doucet, appeared on behalf of the respondent, [M.R.].

This matter was heard on May 26-30, September 23 and 24, and October 3, 2014, before Cyr, J., of the New Brunswick Court of Queen's Bench, Family Division, Judicial District of Bathurst, who delivered the following decision on March 30, 2015.