J.N. v. A.L., (2016) 447 N.B.R.(2d) 240 (FD)

• Judge: Hackett, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: April 21, 2016
• Jurisdiction: New Brunswick
• Citations: (2016), 447 N.B.R.(2d) 240 (FD);2016 NBQB 80

J.N. v. A.L. (2016), 447 N.B.R.(2d) 240 (FD);

    447 R.N.-B.(2e) 240; 1171 A.P.R. 240

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Temp. Cite: [2016] N.B.R.(2d) TBEd. AP.031

Renvoi temp.: [2016] N.B.R.(2d) TBEd. AP.031

J.N. (applicant) v. A.L. (respondent)

(FDSJ-531-13; 1301-67354; 2016 NBQB 80; 2016 NBBR 80)

Indexed As: J.N. v. A.L.

Répertorié: J.N. v. A.L.

New Brunswick Court of Queen's Bench

Family Division

Judicial District of Saint John

Hackett, J.

April 21, 2016.

Summary:

Résumé:

A wife applied for a divorce, an order for joint custody of their child with primary residential care with her and reasonable access to the husband (father), child support retroactive to the date of separation and sharing of special expenses. The wife also claimed spousal support retroactive to the date of separation. She sought an order for equal division of marital property and debt, and costs. By the time of trial, issues of custody and access and child support were resolved in accordance with the relief requested by the wife. The remaining issues were, inter alia, arrears of child support; whether a debt repayment to the Trustee in bankruptcy was a marital debt and if so, how should it be divided; how other assets and debts should be divided; quantum and duration of spousal support; and costs.

The New Brunswick Court of Queen's Bench, Family Division, dealt with the issues accordingly.

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 868.2

Husband and wife - Marital property - Distribution orders - Debts - A husband, who owed $240,000 to Canada Revenue Agency (CRA) and had $90,000 in credit card debt declared bankruptcy in June 2012 - His made monthly payments to the trustee totalling $13,207.92 - He and his wife separated in August 2012 - In divorce proceedings, the husband claimed that the payments to the trustee should be shared by the parties equally as a marital debt - The New Brunswick Court of Queen's Bench, Family Division, held that it could not make an order for division of the debt to the trustee in bankruptcy - Because of lack of evidence, the court was unable to determine if the debt was incurred for supporting the family - See paragraphs 80 to 89.

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance awards - Retroactive awards - In this family matter, quantum and duration of spousal support were in issue, including whether spousal support should be retroactive to the date of separation in 2012 - The application for divorce, including the request for spousal support, was filed at the end of July 2013 - The New Brunswick Court of Queen's Bench, Family Division, noted that in Quinn-Eusanio v. Eusanio (NBCA 2003), the court held that there was no jurisdiction to make an order retroactive to a date prior to the commencement of the divorce proceeding - The court, after considering Kerr v. Baranow (SCC 2011), stated that it was not clear that the law as set out in Quinn-Eusanio no longer applied in New Brunswick - The court ruled, therefore, that while the wife was entitled to retroactive support, it was payable starting August 1, 2013 (after the divorce proceeding was commenced), not retroactive to the date of separation - See paragraphs 146 to 150.

Family Law - Topic 4021.1

Divorce - Corollary relief - Maintenance awards - Considerations - Financial consequences of child care and household responsibilities - In this family matter, quantum and duration of spousal support were in issue, including whether income should be imputed to the wife on the basis that she was intentionally unemployed or underemployed - The New Brunswick Court of Queen's Bench, Family Division, stated that "... there is no evidence to support a finding that the applicant is intentionally unemployed. Even if the respondent wanted the applicant to work during the marriage, the reality was that the applicant was primarily responsible for caring for the child with the responsibilities that accompany that role. She did not work outside the home. She would undoubtedly require retraining to upgrade her skills in order to obtain employment, let alone earn in the range of $30,000.00 per year, as the respondent suggests. Her health, limited work experience and outdated training and education, and her ongoing role as the primary caregiver for the parties' child, all mitigate against a finding that income should be imputed to her" - See paragraphs 116 to 121.

Family Law - Topic 4021.4

Divorce - Corollary relief - Maintenance awards - Considerations - Ability to pay (incl. potential to earn income and calculation of income) - In this family matter, quantum of spousal support was in issue - In the year of separation, the husband's income was $98,700 and since then his income increased - The wife argued that the post-separation increases were attributable to her sacrifices and she therefore should be entitled to share in those increases for support purposes - The New Brunswick Court of Queen's Bench, Family Division, held that there was not a sufficient link between the wife's contributions to the family and the husband's increase in income two years post-separation - The court held that for the purpose of determining spousal support, the husband's income at separation, was a fair income to use - See paragraphs 137 to 145.

Family Law - Topic 4021.5

Divorce - Corollary relief - Maintenance awards - Support guidelines (incl. non-divorce cases) - In this family matter, quantum of spousal support was in issue, including that application of the Spousal Support Advisory Guidelines - The New Brunswick Court of Queen's Bench, Family Division, held that it was appropriate to use the Guidelines to determine the appropriate range of support - In this case, the husband's income for purposes of calculating spousal support was $98,700 and the wife's was zero - The wife had a relatively strong compensatory claim - The husband had to ability to pay - The wife's need was moderated by financial help from others - Neither party had significant debt - The court opined that the facts supported an award of $2,100 which was between the low and mid-range of the Guidelines - This was also an appropriate case for a time limited award (11 years) - See paragraphs 151 to 160.

Family Law - Topic 4022

Divorce - Corollary relief - Maintenance awards - To spouse - Considerations - A couple, who had lived together for five years before marrying, divorced after a 10 year marriage - They had a 13 year old child - The wife was 50, the husband 48 - After the child was born, the wife was the primary caregiver for the child and the husband the income earner - Quantum and duration of spousal support were in issue - The New Brunswick Court of Queen's Bench, Family Division, held that the wife was entitled to spousal support on both a compensatory and non-compensatory basis in light of her role as the primary homemaker and caregiver for the child, her dependency on the husband for support during the marriage, and her loss of the parties' joint standard of living at separation - See paragraphs 94 to 115.

Family Law - Topic 4022.1

Divorce - Corollary relief - Maintenance awards - To spouse - Extent of obligation - [See Family Law - Topic 4021.5 ].

Family Law - Topic 4027

Divorce - Corollary relief - Maintenance awards - Effect of income or potential income of claimant - In this family matter, quantum and duration of spousal support were in issue, including whether income should be attributed to the wife because she received income from gifts - The New Brunswick Court of Queen's Bench, Family Division, declined to attribute income to the wife on the basis of gifts from family because there was no evidence that there had been a pattern of such gifts being received and used for family purposes during the relationship - See paragraphs 122 to 130.

Family Law - Topic 4027

Divorce - Corollary relief - Maintenance awards - Effect of income or potential income of claimant - [See Family Law - Topic 4021.1 ].

Family Law - Topic 4030

Divorce - Corollary relief - Maintenance awards - Effect of relationships of claimant - In this family matter, quantum and duration of spousal support were in issue, including whether the wife (claimant) had re-partnered, and if so, what impact that had on spousal support - The wife was in an intimate relationship that had been ongoing for three years - They did not share a residence, rather they each maintained their own residences in different provinces - There was no merging of finances, although the new boyfriend gave money to the wife - The New Brunswick Court of Queen's Bench, Family Division, held that even if the wife had re-partnered, which was unlikely, that did not negate her entitlement to compensatory support - However, while she might consider the boyfriend's assistance as gifts, insofar as it impacted her incentive to move toward self-sufficiency, it was a relevant a factor to considered in the overall assessment in determining spousal quantum and duration of spousal support - See paragraphs 131 to 136.

Cases Noticed:

E.J.H. v. D.H.H. (2008), 332 N.B.R.(2d) 127; 852 A.P.R. 127; 2008 NBQB 217 (Fam. Div.), refd to. [para. 85].

Bracklow v. Bracklow, [1999] 1 S.C.R. 420; 236 N.R. 79; 120 B.C.A.C. 211; 196 W.A.C. 211; 169 D.L.R.(4th) 577, refd to. [para. 97].

Moge v. Moge, [1992] 3 S.C.R. 813; 145 N.R. 1; 81 Man.R.(2d) 161; 30 W.A.C. 161; 99 D.L.R.(4th) 456, refd to. [para. 97].

Leskun v. Leskun (2006), 349 N.R. 158; 226 B.C.A.C. 1; 373 W.A.C. 1; 2006 SCC 25, refd to. [para. 113].

Betts v. Betts (2015), 433 N.B.R.(2d) 81; 1130 A.P.R. 81; 2015 NBQB 19, refd to. [para. 114].

Chiasson v. Doucet (2014), 422 N.B.R.(2d) 304; 1096 A.P.R. 304; 2014 NBCA 49, refd to. [para. 116].

Cavanaugh v. Cavanaugh (2008), 341 N.B.R.(2d) 166; 876 A.P.R. 166; 2008 NBQB 387 (Fam. Div.), refd to. [para. 119].

Vaughan v. Vaughan (2014), 415 N.B.R.(2d) 286; 1076 A.P.R. 286; 2014 NBCA 6, refd to. [para. 120].

Horowitz v Nightingale, 2015 ONSC 19, refd to. [para. 128].

Juvatopolos v. Juvatopolos, [2004] O.T.C. 941; 2004 CanLII 34843 (Sup. Ct.), refd to. [para. 131].

Bullied v. Kallen (2008), 233 Man.R.(2d) 219; 2008 MBQB 268, refd to. [para. 133].

Black v. Black (2015), 441 N.B.R.(2d) 257; 1152 A.P.R. 257; 2015 NBCA 63, refd to. [para. 139].

Quinn-Eusanio v. Eusanio (2003), 255 N.B.R.(2d) 70; 668 A.P.R. 70; 2003 NBCA 1, refd to. [para. 147].

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. 148].

Kerr v. Baranow, [2011] 1 S.C.R. 269; 411 N.R. 200; 300 B.C.A.C. 1; 509 W.A.C. 1; 274 O.A.C. 1; 2011 SCC 10, refd to. [para. 148].

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. 151].

Statutes Noticed:

Marital Property Act, S.N.B. 2012, c. 207, sect. 1, sect. 2 [para. 83].

Counsel:

Avocats:

Mary-Eileen O'Brien, for the applicant;

Andrew Harrison, for the respondent.

This application was heard on February 22 and 23, 2016, before Hackett, J., of the New Brunswick Court of Queen's Bench, Family Division, Judicial District of Saint John, who delivered the following decision on April 21, 2016.