K.L.S. v. D.R.S., 2012 NBCA 16

• Judge: Bell, Quigg and Green, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: November 22, 2011
• Jurisdiction: New Brunswick
• Citations: 2012 NBCA 16;(2011), 383 N.B.R.(2d) 47 (CA)

K.L.S. v. D.R.S. (2011), 383 N.B.R.(2d) 47 (CA);

    383 R.N.-B.(2e) 47; 991 A.P.R. 47

MLB headnote and full text

Sommaire et texte intégral

[French language version follows English language version]

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

.........................

Temp. Cite: [2012] N.B.R.(2d) TBEd. FE.029

Renvoi temp.: [2012] N.B.R.(2d) TBEd. FE.029

K.L.S. (respondent/appellant) v. D.R.S. (petitioner/respondent)

(102-11-CA; 2012 NBCA 16)

Indexed As: K.L.S. v. D.R.S.

Répertorié: K.L.S. v. D.R.S.

New Brunswick Court of Appeal

Bell, Quigg and Green, JJ.A.

November 22, 2011.

Summary:

Résumé:

The parties were married on March 31, 2004 and separated on February 10, 2010. The husband petitioned for divorce on the grounds that there had been a breakdown of the marriage by reasons of their having lived separate and apart for at least a year. Also at issue was corollary relief and the division of marital property.

The New Brunswick Court of Queen's Bench, in a decision not reported in this series of reports, concluded that it lacked jurisdiction to grant the divorce, where the period of separation had been interrupted by the parties having had a sexual relationship from May 2010 to February 2011. The wife appealed.

The New Brunswick Court of Appeal, Quigg, J.A., dissenting, allowed the appeal and remitted the matter to the trial judge to deal with the remaining 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 3605

Divorce - Grounds - Separation - What constitutes "living separate and apart" - The New Brunswick Court of Appeal stated that "When the Court is called upon to determine whether or not spouses who are not cohabitating are living separate and apart for the purposes of the Divorce Act, the following should be considered: 1. Are the parties actually living in separate residences? 2. How do the parties communicate with one another? 3. Do the parties engage in sexual relations? 4. Do the parties share meals together? 5. Do the parties attend or engage in social or recreational activities together? 6. Do the parties share domestic responsibilities (such as cleaning, maintenance, or renovation work) pertaining to the marital home, even though they no longer reside together? 7. Do the parties spend time together in private, engaged in the types of routine activities married couples or families often do together, such as watching television? 8. Do the parties travel or vacation together, or spend time together celebrating holidays or special occasions? 9. How do the parties present themselves to family, friends, and the community at large? ... This list is not intended to be exhaustive. As part of an analytical framework, these and similar factors should be considered collectively, and the Court should base its finding on whether the parties are at law living separate and apart based on the whole of the evidentiary record. It is not necessary for each individual factor to point conclusively to legal separation. As well, no one factor should be given undue weight, especially to the exclusion of some or all of the others which may point to a contrary result." - See paragraphs 21 and 22.

Family Law - Topic 3605

Divorce - Grounds - Separation - What constitutes "living separate and apart" - The parties were married on March 31, 2004 and separated on February 10, 2010 - The husband petitioned for divorce on the grounds that there had been a breakdown of the marriage by reasons of their having lived separate and apart for at least a year (Divorce Act, s. 8(2)(a)) - The trial judge concluded that she lacked jurisdiction to grant the petition where the separation period had been interrupted by the parties having had a sexual relationship from May 2010 to February 2011 - The New Brunswick Court of Appeal allowed the wife's appeal - The trial judge erred in law by focusing on a single issue and not addressing other relevant factors - Had she done so, the following picture would have emerged: the husband maintained a separate residence which was a second home for the parties' child; the parties did not communicate well and argued frequently, and what communication did occur was sometimes hostile; they engaged in sexual relations; the only meal they shared was on the child's birthday; they did not attend or engage in social or recreational activities together; they did not travel or vacation together, and they presented themselves to others as being separate and not on good terms - Only the sexual relationship suggested that the parties were not living separate and apart - That fact alone did not constitute an interruption of separation - See paragraphs 20 to 30.

Droit de la famille - Cote 3605

Divorce - Motifs - Séparation - Vivre "séparément" - En quoi consiste - [Voir Family Law - Topic 3605 ].

Cases Noticed:

Foote v. Foote, [1970] O.J. No. 1655 (H.C.J.), refd to. [para. 7].

Yorke v. Yorke (2011), 378 N.B.R.(2d) 141; 973 A.P.R. 141; 2011 NBCA 79, refd to. [para. 7].

P.R.H. v. M.E.L. (2009), 343 N.B.R.(2d) 100; 881 A.P.R. 100; 2009 NBCA 18, refd to. [para. 18].

Teillet v. Teillet, [1997] M.J. No. 135 (Q.B.), refd to. [para. 20].

Cooper v. Cooper, [1972] O.J. No. 975 (H.C.J.), refd to. [para. 20].

Dupere v. Dupere (1974), 9 N.B.R.(2d) 554; 1 A.P.R. 554 (Q.B.), affd. (1974), 10 N.B.R.(2d) 148; 4 A.P.R. 148 (C.A.), refd to. [para. 20].

Greaves v. Greaves, [2004] O.T.C. Uned. 587 (Sup. Ct.), refd to. [para. 26].

G.A.W. v. C.M.P., [2010] B.C.T.C. Uned. 532 (S.C.), refd to. [para. 27].

Oliver v. Oliver, [2011] B.C.T.C. Uned. 1126 (S.C.), refd to. [para. 28].

Statutes Noticed:

Divorce Act, R.S.C. 1985 (2nd Supp.) c. 3, sect. 8(2)(a), sect. 8(3) [para. 19].

Counsel:

Avocats:

Ferne M. Ashford, for the appellant;

Kelly A. Driscoll, for the respondent.

This appeal was heard and decided orally on November 22, 2011, by Bell, Quigg and Green, JJ.A., of the New Brunswick Court of Appeal. The court released written reasons in both official languages on February 23, 2012, with the following opinions:

Quigg, J.A., dissenting - see paragraphs 1 to 11;

Green, J.A. (Bell, J.A., concurring) - see paragraphs 12 to 32.