L.W.H. v. S.C.,

• Jurisdiction: New Brunswick
• Judge: French, J.
• Neutral Citation: 2012 NBQB 2
• Citation: (2011), 383 N.B.R.(2d) 206 (FD),2012 NBQB 2,383 NBR(2d) 206,(2011), 383 NBR(2d) 206 (FD),383 N.B.R.(2d) 206
• Date: 20 December 2011
• Court: Court of Queen's Bench of New Brunswick (Canada)

L.W.H. v. S.C. (2011), 383 N.B.R.(2d) 206 (FD);

    383 R.N.-B.(2e) 206; 991 A.P.R. 206

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Temp. Cite: [2012] N.B.R.(2d) TBEd. FE.019

Renvoi temp.: [2012] N.B.R.(2d) TBEd. FE.019

L.W.H. (petitioner) v. S.C. (respondent)

(1301-61658; 2012 NBQB 2; 2012 NBBR 2)

Indexed As: L.W.H. v. S.C.

Répertorié: L.W.H. v. S.C.

New Brunswick Court of Queen's Bench

Family Division

Judicial District of Saint John

French, J.

December 20, 2011.

Summary:

Résumé:

The divorcing parties had a custody, access and maintenance dispute with respect to their daughter born in 2008. The father lived in Ireland. The mother lived in St. Andrews, New Brunswick.

The New Brunswick Court of Queen's Bench, Family Division, ordered that the mother have sole custody of the daughter. The father was given access which comprised six extended periods of access in Canada, including a period of up to 28 days in the summer, exercisable either entirely in Canada or one half in Canada and one half in Ireland. The father was to pay for the flight to Ireland. The mother was to pay for the return flight to Canada. The father was ordered to pay child support. His claim for a reduction because of hardship was denied. The mother's claim for s. 7 expenses was also denied. See paragraph 81 for the court's detailed order.

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.

Editor's Note: For a related decision, see (2010), 365 N.B.R.(2d) 130; 939 A.P.R. 130 (F.D.).

Family Law - Topic 1990

Custody and access - Access - General principles - The New Brunswick Court of Queen's Bench, Family Division, stated that access was not a way of making up for the fact that a parent did not have custody - See paragraph 41.

Family Law - Topic 2012

Custody and access - Access - Access awards - Where mother and father reside in different cities or countries - The parties, who did not have sex together, nor intended to live together, used artificial insemination to conceive their daughter, born in 2008 - They married and lived in Ireland for a while - Eventually, the parties' relationship broke down and the mother returned to New Brunswick with the daughter - The parties divorced - The parties' parenting abilities were not in dispute but custody and access were - The New Brunswick Court of Queen's Bench, Family Division, after granting the mother sole custody, granted the father access which comprised six extended periods of access in Canada, including a period of up to 28 days in the summer, exercisable either entirely in Canada or one half in Canada and one half in Ireland - The father was to pay for the flight to Ireland - The mother was to pay for the return flight to Canada - The father was to notify the court that the Irish courts had recognized its order or made a similar order - Also, the father was to notify the courts of travel dates and undertake to submit to its order - During extended access in Canada, the daughter was to spend four nights with the father, one with the mother, four with the father, and so on - The father was given Skype access three times a week - See paragraphs 41 to 69, 81.

Family Law - Topic 2072

Custody and access - Joint custody - When available - The parties, who did not have sex together, nor intended to live together, used artificial insemination to conceive their daughter, born in 2008 - However, they did marry to make it easier for the mother to live in Ireland, where the father lived - Eventually, the parties' relationship broke down and the mother clandestinely returned to New Brunswick with the daughter - The parties divorced - The father asked for joint custody - The parties' parenting abilities were not in dispute - The New Brunswick Court of Queen's Bench, Family Division, after indicating that there had to be some consideration or understanding of the parties' relationship, granted the mother sole custody - The parties were not able to effectively communicate with each other even though their education, level of professional achievement, age, maturity, intelligence, and their "original and common objective" of coming together to have a child had created the expectation that the parties would have the ability to work together - Distance was also a factor that weighed against joint custody, although the father often came to New Brunswick to be with the daughter and the parties used e-mail and Skype - Finally, the father's submission that without joint custody, he would not be able to have a meaningful relationship with the daughter was not a factor that weighed heavily - In the present case, access was the means to best address the father's ongoing contact and relationship with the daughter - See paragraphs 15 to 40.

Family Law - Topic 4045.4

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Special or extraordinary expenses (incl. calculation of amount) - The New Brunswick Court of Queen's Bench, Family Division, stated that "the fact that hardship is not established pursuant to section 10 [of the Guidelines] in relation to basic child support, does not preclude the denial of a claim under section 7 based on the reasonableness of the expenses in relation to the means of the spouses" - See paragraph 77.

Family Law - Topic 4045.4

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Special or extraordinary expenses (incl. calculation of amount) - The parties, who did not have sex together, nor intended to live together, used artificial insemination to conceive their daughter, born in 2008 - They married and lived in Ireland for a while - Eventually, the parties' relationship broke down and the mother returned to New Brunswick with the daughter - The parties divorced - The mother got custody - The father got access in New Brunswick, at his expense, and in Ireland - The parties were ordered to split the daughter's air travel costs for the Ireland access - The mother sought child support and s. 7 expenses for daycare - The New Brunswick Court of Queen's Bench, Family Division, ordered the father to pay the applicable Guideline amount of $670 per month - The court dismissed the mother's s. 7 claim - The claim was not reasonable given the father's "tight" financial situation, including his obligation for basic child support, his access costs and his means generally - The father had no significant assets whereas the mother's financial statement showed a mortgage-free home and investments worth approximately $850,000 - The court specified that it was not concluding that the mother's s. 7 claim should be denied because she did not need a contribution to this expense - See paragraphs 77 to 79.

Family Law - Topic 4045.6

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Exceptions and exemptions (incl. undue hardship) - The parties, who did not have sex together, nor intended to live together, used artificial insemination to conceive their daughter, born in 2008 - They married and lived in Ireland for a while - Eventually, the parties' relationship broke down and the mother returned to New Brunswick with the daughter - The parties divorced - The mother got custody - The father got access in New Brunswick, at his expense, and in Ireland - The parties were ordered to split the daughter's air travel costs for the Ireland access - The mother sought child support - The father sought a reduction on account of hardship - The New Brunswick Court of Queen's Bench, Family Division, ordered the father to pay the applicable Guideline amount of $670 per month - The court declined the hardship reduction sought - Although the father had "unusually high expenses in relation to exercising access", which left him in a "tight financial situation", he did not suffer undue hardship - His obligation to pay the child support was not "oppressive, excessive or disproportionate" - He had no other dependents and his "difficult financial choices" were not an undue hardship - Also, the court's conclusion was influenced by the fact that the mother was to pay for half of the daughter's air travel expenses and that the court dismissed the mother's claim for s. 7 expenses for day care - See paragraphs 70 to 75.

Family Law - Topic 4175

Divorce - Practice - Costs - General (incl. considerations) - The New Brunswick Court of Queen's Bench, Family Division, declined to order costs in a custody, access and child support dispute in a divorce matter, stating as follows: "[The mother] was successful on the issue of custody. [The father] was successful on access - which seemed to be the most contentious issue - especially regarding [his] access in Ireland. Finally, success was divided in connection with child support and access, albeit, more in favour of [the mother]. In the circumstances, I will not order any costs and I will avoid the temptation to comment in any amount of detail, as part of this analysis or generally, on the conduct of each party that contributed to the length of this trial. It lacked proportionality and under the assertion of credibility, there was evidence presented that sought to have trials within the trial" - See paragraph 80.

Droit de la famille - Cote 1990

Garde et accès - Accès - Principes généraux - [Voir Family Law - Topic 1990 ].

Droit de la famille - Cote 2012

Garde et accès - Accès - Ordonnances d'accès - La mère et le père n'habitent pas dans la même ville ou le même pays - [Voir Family Law - Topic 2012 ].

Droit de la famille - Cote 2072

Garde et accès - Garde conjointe - Conditions d'ouverture - [Voir Family Law - Topic 2072 ].

Droit de la famille - Cote 4045.4

Divorce - Mesures accessoires - Ordonnances alimentaires - Lignes directrices sur les pensions alimentaires pour enfants (y compris les cas hors-divorce) - Dépenses spéciales ou extraordinaires (y compris le calcul du montant) - [Voir Family Law - Topic 4045.4 ].

Droit de la famille - Cote 4045.6

Divorce - Mesures accessoires - Ordonnances alimentaires - Lignes directrices sur les pensions alimentaires - Exceptions et exemptions (y compris difficultés excessives) - [Voir Family Law - Topic 4045.6 ].

Droit de la famille - Cote 4175

Divorce - Procédure - Dépens - Généralités (y compris facteurs considérés) - [Voir Family Law - Topic 4175 ].

Cases Noticed:

Young v. Young et al., [1993] 4 S.C.R. 3; 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161, refd to. [para. 32].

L.C.M. v. B.A.C. (2010), 359 N.B.R.(2d) 300; 929 A.P.R. 300; 2010 NBQB 127, refd to. [para. 32].

Kaplanis v. Kaplanis (2005), 194 O.A.C. 106 (C.A.), refd to. [para. 32].

R.N.G. v. K.Q.N.G. (2001), 244 N.B.R.(2d) 303; 634 A.P.R. 303 (Fam. Div.), refd to. [para. 34].

Hunter v. Duplessis, [2001] N.B.R.(2d) Uned. 111; 2001 NBQB 261, refd to. [para. 34].

A.M.K.H. v. K.A.M. (2003), 259 N.B.R.(2d) 291; 681 A.P.R. 291; 2003 NBCA 33, consd. [para. 41].

Hirst v. McCormick, [2005] B.C.T.C. Uned. 322; 2005 BCSC 607, refd to. [para. 73].

Low v. Low, [2005] O.T.C. Uned. 615; 2005 CanLII 32116 (S.C.), refd to. [para. 73].

Novlesky v. Novlesky, [2009] B.C.T.C. Uned. 1328; 2009 BCSC 1328, refd to. [para. 73].

Koval v. Brinton (2010), 295 N.S.R.(2d) 242; 935 A.P.R. 242; 2010 NSCA 78, refd to. [para. 73].

H.F.G. v. C.G. (2003), 264 N.B.R.(2d) 277; 691 A.P.R. 277; 2003 NBCA 72, consd. [para. 74].

Tanner v. Simpson, [1999] N.W.T.J. No. 71 (S.C.), refd to. [para. 75].

B.W. v. B.W. (2007), 324 N.B.R.(2d) 107; 834 A.P.R. 107; 2007 NBQB 330 (Fam. Div.), refd to. [para. 75].

Wells v. Polland, 2008 ONCJ 646, refd to. [para. 75].

Morrone v. Morrone (2007), 44 R.F.L.(6th) 389 (Ont. Sup. Ct.), refd to. [para. 75].

Santos v. Potter (2010), 351 Sask.R. 144; 2010 SKQB 115 (Fam. Div.), refd to. [para. 75].

Branch v. Branch (2003), 256 N.B.R.(2d) 262; 670 A.P.R. 262 (Fam. Div.), refd to. [para. 75].

Ferguson v. Thorne (2007), 316 N.B.R.(2d) 18; 816 A.P.R. 18; 38 R.F.L.(6th) 252; 2007 NBQB 66 (Fam. Div.), consd. [para. 78].

Counsel:

Avocats:

Marie-Claude Bélanger-Richard, Q.C., for the petitioner, L.W.H.;

Carley Parish, for the respondent, S.C.

This matter was heard on March 29 and 30, May 24 to 27, and June 1 and 15, 2011, by French, J., of the New Brunswick Court of Queen's Bench, Family Division, Judicial District of Saint John, who delivered the following decision on December 20, 2011.