McNeil v. McNeil, 2013 NBCA 65

• Judge: Larlee, Robertson and Quigg, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: September 11, 2013
• Jurisdiction: New Brunswick
• Citations: 2013 NBCA 65;(2013), 412 N.B.R.(2d) 303 (CA)

McNeil v. McNeil (2013), 412 N.B.R.(2d) 303 (CA);

    412 R.N.-B.(2e) 303; 1070 A.P.R. 303

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Sommaire et texte intégral

[French language version follows English language version]

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

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Temp. Cite: [2013] N.B.R.(2d) TBEd. NO.018

Renvoi temp.: [2013] N.B.R.(2d) TBEd. NO.018

David Alexander McNeil (appellant) v. Kelly Margaret McNeil (respondent)

(126-12-CA; 2013 NBCA 65)

Indexed As: McNeil v. McNeil

Répertorié: McNeil v. McNeil

New Brunswick Court of Appeal

Larlee, Robertson and Quigg, JJ.A.

November 21, 2013.

Summary:

Résumé:

The parties were married in 1994, separated in 2001 and divorced in 2004. The corollary relief order required the husband to pay child maintenance (for two children) and to file his income tax return with the court before the end of May of each year. The husband failed to file his returns for 2007 and 2009. The wife moved for a variation. She sought retroactive and proactive child support on the basis that the husband failed to report his actual income, including his stock options and a disposition of shares.

The New Brunswick Court of Queen's Bench, Family Division, in a decision reported at 393 N.B.R.(2d) 296; 1017 A.P.R. 296 allowed the motion. It had become "apparent" that the husband had not revealed nor declared "very significant amounts of income under his stock option agreements" (capital gain of $1,383,750). The retroactive child support would cover the period beginning in 2005. The total amount of arrears was $242,722. Prospective support was based on imputed income of $228,007. This yielded an amount of $2,991 per month for the two children, to be reduced to $1,915.66 per month when the oldest child finished a post-secondary education program. The husband appealed.

The New Brunswick Court of Appeal allowed the appeal and varied the decision by deleting from the husband's 2005 annual income the capital gain.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Calculation or attribution of income - A motion judge granted the mother's motion for retroactive child support - The arrears totaled $232,604 - Of that amount, $195,120 was attributable to the arrears for 2005 - Much of that amount was attributable to an undisclosed capital gain of $1,383,750 arising from the exercise of employee stock options - The father appealed, raising a question of law not put to the motion judge: whether that capital gain should have been included in the father's 2005 income for purposes of determining child support - The New Brunswick Court of Appeal allowed the appeal and varied the decision by deleting from the husband's 2005 annual income the capital gain - The inclusion of the $1.3 million capital gain in the father's income for 2005 was not the fairest way of fixing his annual income in accordance with s. 17 of the Federal Child Support Guidelines - The gain was a non-recurring amount that did not generate disposable income from which child support could be paid - This conclusion was not undermined by the mother's principal argument: the father was guilty of blameworthy conduct - Admittedly, the father's blatant failure to disclose all sources of income over the years in question had frustrated her attempts to ensure compliance with his obligation to pay child support in accordance with the Guidelines - However, that failure was not a valid basis for including the capital gain in the father's income - Even if the $1.3 million gain had been disclosed to the children's mother, the father would not have been obligated to include that amount in his 2005 income for purposes of determining child support.

Droit de la famille - Cote 4045.5

Divorce - Mesures accessoires - Ordonnances alimentaires - Lignes directrices sur le pensions alimentaires pour enfants (y compris les cas hors-divorce) - Calcul ou attribution du revenu - [Voir Family Law - Topic 4045.5 ].

Cases Noticed:

Miller v. Miller (2003), 259 N.B.R.(2d) 132; 681 A.P.R. 132; 2003 NBCA 37, refd to. [para. 2].

Arnold v. Washburn (2001), 152 O.A.C. 364 (C.A.), consd. [para. 7].

Ewing v. Ewing (2009), 457 A.R. 238; 457 W.A.C. 238; 2009 ABCA 227, leave to appeal denied [2010] 1 S.C.R. ix; 404 N.R. 386, consd. [para. 10].

P.M.R. v. M.H.R. - see/voir Richardson v. Richardson.

Richardson v. Richardson (2013), 343 B.C.A.C. 259; 586 W.A.C. 259; 2013 BCCA 378, refd to. [para. 10].

Vincent v. Vincent (2012), 321 B.C.A.C. 219; 547 W.A.C. 219; 2012 BCCA 186, refd to. [para. 10].

DeWolfe v. McMillan (2011), 306 N.S.R.(2d) 227; 968 A.P.R. 227; 2011 NSSC 301, refd to. [para. 10].

Pollitt v. Pollitt, [2010] O.T.C. Uned. 1617; 2010 ONSC 1617, refd to. [para. 10].

Francis v. Baker, [1999] 3 S.C.R. 250; 246 N.R. 45; 125 O.A.C. 201, refd to. [para. 11].

Counsel:

Avocats:

Grant M. Ogilvie and Jennifer Hanson, for the appellant;

Allison Whitehead, Q.C., for the respondent.

This appeal was heard on September 11, 2013, by Larlee, Robertson and Quigg, JJ.A., of the New Brunswick Court of Appeal. The following judgment of the Court of Appeal was delivered in both official languages by Robertson, J.A., on November 21, 2013.