McKinley v. McKinley, (2011) 378 N.B.R.(2d) 293 (FD)

• Jurisdiction: New Brunswick
• Judge: Morrison, J.
• Neutral Citation: 2011 NBQB 260
• Citation: (2011), 378 N.B.R.(2d) 293 (FD),2011 NBQB 260,378 NBR(2d) 293,(2011), 378 NBR(2d) 293 (FD),378 N.B.R.(2d) 293
• Date: 14 February 2011
• Court: Court of Queen's Bench of New Brunswick (Canada)

McKinley v. McKinley (2011), 378 N.B.R.(2d) 293 (FD);

    378 R.N.-B.(2e) 293; 973 A.P.R. 293

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Temp. Cite: [2011] N.B.R.(2d) TBEd. SE.029

Renvoi temp.: [2011] N.B.R.(2d) TBEd. SE.029

Lynn McKinley (applicant) v. Gregory McKinley (respondent)

(FDW/140/03; 2011 NBQB 260; 2011 NBBR 260)

Indexed As: McKinley v. McKinley

Répertorié: McKinley v. McKinley

New Brunswick Court of Queen's Bench

Family Division

Judicial District of Woodstock

Morrison, J.

September 22, 2011.

Summary:

Résumé:

The parties entered into a separation agreement in December 1996 wherein the respondent agreed to pay $350 monthly support for two children ($175 per child per month). The separation agreement also provided that two guaranteed investment certificates (GICs) in the total amount of $20,000 would be retained in joint ownership by the parties. Approximately two years after the agreement was executed, the respondent withdrew the funds without the applicant's knowledge or consent. Also, the applicant was no longer receiving child support for the eldest child who started university in September 2010. The applicant sought an order that the respondent continue to pay child support in accordance with the agreement and that he pay the applicant her portion of the GICs withdrawn by him.

The New Brunswick Court of Queen's Bench, Family Division, allowed the application and awarded the applicant $1,500 costs.

Family Law - Topic 880.40

Husband and wife - Marital property - Distribution orders - Joint accounts or property - The parties entered into a separation agreement in December 1996 which provided, inter alia, for the payment of $350 support monthly for two children and that two guaranteed investment certificates (GICs) in the total amount of $20,000 would be retained in joint ownership by the parties - Approximately two years after the agreement was executed, the respondent withdrew the funds without the applicant's knowledge or consent - In 2010, the applicant sought an order that the respondent continue to pay child support in accordance with the agreement and that he pay the applicant her portion of the GICs withdrawn by him - The applicant became aware that the respondent had collapsed the GICs at the time that the application was brought (approximately September 2010) - The New Brunswick Court of Queen's Bench, Family Division, rejected the respondent's argument that the applicant's entire interest in the marital property was satisfied by virtue of an equalization payment and that the GICs were held in joint ownership solely as security for the respondent's obligation to make the equalization payment - The language and structure of the separation agreement did not support that contention - See paragraph 11.

Family Law - Topic 880.40

Husband and wife - Marital property - Distribution orders - Joint accounts or property - The parties entered into a separation agreement in December 1996 which provided, inter alia, for the payment of $350 support monthly for two children and that two guaranteed investment certificates (GICs) in the total amount of $20,000 would be retained in joint ownership by the parties - Approximately two years after the agreement was executed, the respondent withdrew the funds without the applicant's knowledge or consent - In 2010, the applicant sought an order that the respondent continue to pay child support in accordance with the agreement and that he pay the applicant her portion of the GICs withdrawn by him - The applicant became aware that the respondent had collapsed the GICs at the time that the application was brought (approximately September 2010) - The New Brunswick Court of Queen's Bench, Family Division, rejected the respondent's argument that the applicant failed to assert any claim to the GICs when she had an opportunity to do so (i.e., in the divorce proceeding) - The respondent referred specifically to the statements contained in the divorce petition and the draft affidavit as evidence that the applicant believed she had no entitlement to the GICs - However, the applicant's evidence was that she had inquired about the GICs many times - Further, the statements contained in the divorce petition draft affidavit did not indicate that the applicant believed she had no claim to the GICs - Rather, they were consistent with the notion that she believed the matter of the GICs had been dealt with in the separation agreement and thus was not a live issue in the divorce proceedings - See paragraph 12.

Family Law - Topic 2358.1

Maintenance of wives and children - Maintenance of children - Payments - To whom - The parties entered into a separation agreement in December 1996 wherein the respondent agreed to pay $350 monthly support for two children ($175 each) - The respondent argued that where the eldest child (Cally) was now in university and living on her own in an apartment, $175 of the child support should be paid directly to her - The New Brunswick Court of Queen's Bench, Family Division, stated that "Whether child support is paid directly to the child in these circumstances is not often contentious. However, there is evidence that if the payments are made directly to Cally, that this will have a negative impact on her eligibility for student loans. There is no evidence that the Applicant has failed to provide support to Cally in the past, nor is there any evidence to suggest that she will not do so in the future. In the circumstances, I order that child support in the amount of $350 per month for the support of the two children be paid to the Applicant through the Support Enforcement Office." - See paragraph 9.

Family Law - Topic 3265

Separation agreements, domestic contracts and marriage contracts - Enforcement - Limitation of actions - [See Limitation of Actions - Topic 9305 ].

Family Law - Topic 3266

Separation agreements, domestic contracts and marriage contracts - Enforcement - Distribution of property - [See both Family Law - Topic 880.40 ].

Family Law - Topic 4090.2

Divorce - Corollary relief - Incidental matters - Method of payment - [See Family Law - Topic 2358.1 ].

Limitation of Actions - Topic 9305

Postponement or suspension of statute - General - Discoverability rule - The parties entered into a separation agreement in December 1996 which provided, inter alia, for the payment of $350 support monthly for two children and that two guaranteed investment certificates (GIC's) in the total amount of $20,000 would be retained in joint ownership by the parties - Approximately two years after the agreement was executed, the respondent withdrew the funds without the applicant's knowledge or consent - In 2010, the applicant sought an order that the respondent continue to pay child support in accordance with the agreement and that he pay the applicant her portion of the GIC's withdrawn by him - The New Brunswick Court of Queen's Bench, Family Division, allowed the application - The court rejected the respondent's argument that the limitation period had expired with respect to the applicant's claim to the GICs and was thus statute-barred - The evidence was that the applicant discovered that the GIC's had been withdrawn at the time that she filed the present application (September 2010) - The cause of action arose at the time of her discovery of the missing funds - Therefore, the applicant's cause of action arose in August or September 2010 and the applicant brought her claim in September 2010, well within the two-year period permitted under s. 5(1) of the Limitation of Actions Act - See paragraphs 13 to 16.

Droit de la famille - Cote 880.40

Mari et femme - Biens matrimoniaux - Ordonnances de répartition - Comptes conjoints ou biens - [Voir Family Law - Topic 880.40 ].

Droit de la famille - Cote 2358.1

Entretien des épouses et des enfants - Entretien des enfants - Paiements - À qui - [Voir Family Law - Topic 2358.1 ].

Droit de la famille - Cote 3265

Ententes de séparation, contrats domestiques et contrats de mariage - Mise en application - Prescription - [Voir Family Law - Topic 3265 ].

Droit de la famille - Cote 3266

Ententes de séparation, contrats domestiques et contrats de mariage - Mise en application - Distribution de biens - [Voir Family Law - Topic 3266 ].

Droit de la famille - Cote 4090.2

Divorce - Mesures accessoires - Affaires incidentes - Méthode de paiement - [Voir Family Law - Topic 4090.2 ].

Prescription - Cote 9305

Suspension de la prescription - Généralités - Règle de la possibilité de découvrir - [Voir Limitation of Actions - Topic 9305 ].

Counsel:

Avocats:

G. Peter Hyslop, for the applicant;

Ian S. Purvis, for the respondent.

This application was heard on February 14, 2011, by Morrison, J., of the New Brunswick Court of Queen's Bench, Family Division, Judicial District of Woodstock, who delivered the following decision on September 22, 2011.