MacDiarmid v. MacDiarmid, 2014 NBQB 12

Judge:d'Entremont, J.
Court:Court of Queen's Bench of New Brunswick
Case Date:January 14, 2014
Jurisdiction:New Brunswick
Citations:2014 NBQB 12;(2014), 414 N.B.R.(2d) 316 (FD)
 
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MacDiarmid v. MacDiarmid (2014), 414 N.B.R.(2d) 316 (FD);

    414 R.N.-B.(2e) 316; 1075 A.P.R. 316

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Temp. Cite: [2014] N.B.R.(2d) TBEd. JA.023

Renvoi temp.: [2014] N.B.R.(2d) TBEd. JA.023

Reid MacDiarmid (petitioner) v. Beverly MacDiarmid (respondent)

(FDM-275-2012; 2014 NBQB 12; 2014 NBBR 12)

Indexed As: MacDiarmid v. MacDiarmid

Répertorié: MacDiarmid v. MacDiarmid

New Brunswick Court of Queen's Bench

Family Division

Judicial District of Moncton

d'Entremont, J.

January 14, 2014.

Summary:

Résumé:

The parties separated after 14 years and seven months of marriage. They had five children. The petitioner asked the court to recognize the present custody and access arrangements regarding their two youngest children; requested a change to the quantum of child support being paid; and sought a reduction or elimination of spousal support. The respondent requested a continuation and an increase in the amount of spousal support; proposed a reduction to child support; requested a contribution to university expenses for the oldest children; and requested a contribution to medical expenses previously paid for the oldest child. She was also of the view that given the children's ages, their wishes as to custody and access should be respected.

The New Brunswick Court of Queen's Bench, Family Division, granted a divorce. The court determined the custody and support issues accordingly.

Family Law - Topic 3998

Divorce - Corollary relief - General - Children's post-secondary education - The parties had five children - The New Brunswick Court of Queen's Bench, Family Division, held that the parents' RESP should be divided equally among all five children - The court anticipated that the two younger children would follow the path of the older siblings and also attend a post-secondary institution - The court divided the funds on the basis that the children would generally enrol in four year programs with two semesters per academic year - Payment was contingent on full-time enrolment/attendance and passing grades - If a calculation was made under s. 7 of the Guidelines, any spousal support payments paid to the respondent had to be deducted from the petitioner's income and included in the respondent's income - The court held that the respondent could not be credited with her mother's generous contributions to the children's post-secondary education - See paragraphs 21 to 26.

Family Law - Topic 4014

Divorce - Corollary relief - Maintenance and awards - Awards - To children and children defined - [See second Family Law - Topic 4045.4 ].

Family Law - Topic 4018.1

Divorce - Corollary relief - Maintenance awards - Review of maintenance v. variation of maintenance - The parties separated in 2006 after over 14 years of marriage - They had five children - The wife left her career working for a hospital archives department after their third child was born - A December 2006 separation agreement provided for $1,300/month spousal support for the wife starting January 1, 2007 - The wife sought increased spousal support without a termination date - The New Brunswick Court of Queen's Bench, Family Division, noted that the agreement provided for a review of spousal support around December 18, 2010 - The court considered the present hearing to be a review of spousal support - As such, there was no need to find a change in circumstances - The children, who were seven to 14 years old at separation, were now aged 14 to 21 - Three of the children were attending university away from home - The fourth lived exclusively with his father - The youngest, who had lived exclusively with her father for about two years, had reverted to the shared custody schedule in the past six months - The wife had previously taken courses in Fashion Merchandising, Hairstyling and Administrative Secretarial - The court concluded that the wife was entitled to spousal support on both a compensatory and non-compensatory basis - The Divorcemate calculations used an annual income of $123,235 for the husband and $23,129 for the wife - The proposed spousal support gave a low range of $1,854, a mid range of $2,224 and a high range of $2,585/month - The duration proposed by the software for a 14 year marriage ranged from seven to 14 years from separation - The court held that the lower amount of $1,854/month was appropriate - The husband had already paid substantial spousal support for seven years - The court held that in 2.5 years, when the youngest child graduated, or at the latest by June 2017, the husband's obligation to pay spousal support would terminate - See paragraphs 86 to 94.

Family Law - Topic 4022

Divorce - Corollary relief - Maintenance and awards - Awards - To spouse - Considerations - [See Family Law - Topic 4018.1 ].

Family Law - Topic 4022.1

Divorce - Corollary relief - Maintenance awards - To spouse - Extent of obligation - [See Family Law - Topic 4018.1 ].

Family Law - Topic 4045.4

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Special or extraordinary expenses - [See Family Law - Topic 3998 ].

Family Law - Topic 4045.4

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Special or extraordinary expenses - The parties had five children - The three eldest were pursuing post-secondary education - An account of approximately $2,805 from a psychiatrist in Halifax was submitted for the eldest child (Dayton) - The maternal grandmother had paid the bill - The expense had been incurred just before Dayton left for school in Toronto, when he was 20 years old and living with his grandmother in Halifax - He was not attending a post-secondary program at this point, but sometimes worked at the Nova Scotia Liquor Commission - The petitioner/father was not aware that Dayton had seen a psychiatrist or that an account had been incurred until shortly before the trial started - The New Brunswick Court of Queen's Bench, Family Division, held that Dayton was not a child of the marriage when the fees were expended - Consequently, although health related expenses normally qualified as s. 7 special expenses, Dayton was not a dependant at the relevant time and therefore these fees did not fit within the definition - See paragraphs 32 and 33.

Family Law - Topic 4045.7

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Shared custody (at least 40% of time with each parent) - The parties separated in 2006 after over 14 years of marriage - They had five children, then aged seven to 14 years - A December 2006 separation agreement provided for shared custody (week on/week off basis) - The husband filed a divorce petition in October 2011, which was served on the wife in March 2012 - The New Brunswick Court of Queen's Bench, Family Division, held that 2011 was an appropriate year to start readjusting child support - By 2011, the oldest child was independent, the second child was living primarily with her mother, and the two youngest children had ceased the weekly rotation and started living with the father - By 2011, the children's living arrangement was far from the shared custody arrangement anticipated in the December 2006 separation agreement - While being mindful of Contino v. Leonelli-Contino (2005 S.C.C.), the court held that a straight set off of the amount as dictated by the Guidelines was appropriate in these circumstances - See paragraphs 42 and 43.

Droit de la famille - Cote 3998

Divorce - Mesures accessoires - Généralités - Études post secondaires des enfants - [Voir Family Law - Topic 3998 ].

Droit de la famille - Cote 4014

Divorce - Mesures accessoires - Ordonnances alimentaires - Ordonnances en faveur d'enfants et définition d'enfants - [Voir Family Law - Topic 4014 ].

Droit de la famille - Cote 4018.1

Divorce - Mesures accessoires - Ordonnances alimentaires - Révision de l'ordonnance alimentaire et ordonnance modificative - [Voir Family Law - Topic 4018.1 ].

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 du conjoint - Étendue de l'obligation - [Voir Family Law - Topic 4022.1 ].

Droit de la famille - Cote 4045.4

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

Droit de la famille - Cote 4045.7

Divorce - Mesures accessoires - Ordonnances alimentaires - Lignes directrices sur les pensions alimentaires (y compris les cas hors-divorce) - Garde partagée - [Voir Family Law - Topic 4045.7 ].

Cases Noticed:

Contino v. Leonelli-Contino, [2005] 3 S.C.R. 217; 341 N.R. 1; 204 O.A.C. 311; 2005 SCC 63, refd to. [para. 43].

Authors and Works Noticed:

Payne, Julien D., and Payne, Marilyn A., Child Support Guidelines in Canada (2009), p. 130 [para. 25].

Counsel:

Avocats:

Harold R. Grew, for the petitioner;

G. Douglas Sealy, Q.C., and Jennifer Korren, for the respondent.

This case was heard on December 3 and 4, 2014, by d'Entremont, J., of the New Brunswick Court of Queen's Bench, Family Division, Judicial District of Moncton, who delivered the following decision on January 14, 2014.

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