Milton v. Milton,
Jurisdiction | New Brunswick |
Judge | Larlee, Richard and Bell, JJ.A. |
Neutral Citation | 2008 NBCA 87 |
Citation | 2008 NBCA 87,(2008), 338 N.B.R.(2d) 300 (CA),338 NBR (2d) 300,305 DLR (4th) 94,62 RFL (6th) 286,[2008] NBJ No 467 (QL),305 D.L.R. (4th) 94,(2008), 338 NBR(2d) 300 (CA),[2008] N.B.J. No 467 (QL),338 N.B.R.(2d) 300,338 NBR(2d) 300 |
Date | 12 June 2008 |
Court | Court of Appeal (New Brunswick) |
Milton v. Milton (2008), 338 N.B.R.(2d) 300 (CA);
338 R.N.-B.(2e) 300; 866 A.P.R. 300
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]
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Temp. Cite: [2008] N.B.R.(2d) TBEd. DE.019
Renvoi temp.: [2008] N.B.R.(2d) TBEd. DE.019
John Rodney Milton (appellant) v. Beverly Jean Milton (respondent)
(165/07/CA; 2008 NBCA 87)
Indexed As: Milton v. Milton
Répertorié: Milton v. Milton
New Brunswick Court of Appeal
Larlee, Richard and Bell, JJ.A.
December 4, 2008.
Summary:
Résumé:
At issue in this divorce proceeding were claims relating to custody of the parties' children, child support, spousal support and the division of property.
The New Brunswick Court of Queen's Bench, Family Division, in a decision reported at 326 N.B.R.(2d) 324; 838 A.P.R. 324, granted a divorce, determined the issues and ordered accordingly. The husband appealed, asserting that the court erred by classifying a professional corporation as marital property subject to division; by ordering that he pay monthly spousal support of $6,500; and by securing the support order by requiring that he designate the wife as the sole beneficiary under his life insurance policy.
The New Brunswick Court of Appeal dismissed the appeal.
Family Law - Topic 870
Husband and wife - Marital property - Distribution orders - Appeals - The New Brunswick Court of Appeal stated that "The question of whether a professional corporation qualifies as a family asset under the Marital Property Act is a question of law for which the standard of review is correctness. With respect to the standard of review applicable to an appeal from a division of assets made pursuant to the Marital Property Act (legislation conferring discretion on a judge to divide property), we can intervene and review the facts only if the trial judge has misdirected herself or himself or if the decision is so clearly wrong as to amount to an injustice ... In addition we will only interfere with a support order where there has been an error in principle, a significant misapprehension of the evidence, or the award is clearly wrong ..." - See paragraph 14.
Family Law - Topic 876
Husband and wife - Marital property - Distribution orders - Family or matrimonial assets - The New Brunswick Court of Appeal adopted the following twofold analysis to determine if an asset could properly be defined as a business asset as opposed to marital property: "The first question to ask is whether the asset was used principally in the course of the business carried on by that spouse. If the answer at this stage of the analysis is 'no' then the asset is not a business asset but marital property. If the answer at this stage is 'yes' then the item in question is a business asset that requires further examination. If the business asset includes money held in an account that is 'ordinarily used or enjoyed for shelter or transportation or for household, educational, recreational, social or aesthetic purposes by both spouses or one or more of their children while the spouses were cohabiting' a further analysis is required." - See paragraph 17.
Family Law - Topic 876
Husband and wife - Marital property - Distribution orders - Family or matrimonial assets - A wife petitioned for divorce and sought, inter alia, a division of the husband's professional corporation through which he conducted his medical practice - The trial judge concluded that the professional corporation was marital property subject to division - The New Brunswick Court of Appeal dismissed the husband's appeal - The professional corporation was not used principally in the course of a business since there was no entrepreneurial aspect to it - It was used to defer the payment of income tax and was therefore like a first cousin of an RRSP - Having regard to the intention, statements, and actions of the parties, it was established, and the trial judge so found, that the retained earnings were used or enjoyed for shelter or transportation or for household, educational, recreational, social or aesthetic purposes by both spouses or one or more of their children while the spouses were cohabiting - Therefore, the professional corporation was a family asset and, consequently, marital property subject to an equal division - See paragraphs 15 to 28.
Family Law - Topic 880.30
Husband and wife - Marital property - Distribution orders - Particular property - Professional practice - [See both Family Law - Topic 876 ].
Family Law - Topic 3997
Divorce - Corollary relief - General - Economic self-sufficiency - Prior to her marriage, the wife quit nursing and pursued a Bachelor of Science degree in Psychology - Instead of developing a career in that field, she married and worked full time for her husband's medical practice until the first of their three children was born - She subsequently took on a traditional role in the marriage and assisted the husband's practice on a part time basis - After 21 years of marriage they separated - The wife left the marital home and obtained part time employment as a home support worker earning $14,883 per year - The husband suggested that the wife, now aged 50, was underemployed and should take the upgrading necessary to return to work as a nurse - He requested that support be time limited - The trial judge held that the marriage was a traditional long-term marriage - The judge rejected the assertion that the wife was underemployed and concluded that she had been economically disadvantaged by the marriage breakdown - The judge used the Spousal Support Advisory Guidelines as a comparative tool to arrive at the spousal support payment - The Guideline range was $7,952 and $10,603 per month - The judge estimated the wife's future income at approximately $40,000 per year and, considering the husband's professional corporation (which was determined to be a family asset) and his medical practice, determined his annual income to be $500,000 - The judge ordered the husband to pay $6,500 per month indefinitely - The New Brunswick Court of Appeal held that the trial judge made no reversible error - See paragraphs 29 to 31.
Family Law - Topic 4010
Divorce - Corollary relief - Maintenance awards - Periodic payments - [See Family Law - Topic 3997 ].
Family Law - Topic 4019
Divorce - Corollary relief - Maintenance awards - Appeals - [See Family Law - Topic 870 ].
Family Law - Topic 4021.2
Divorce - Corollary relief - Maintenance awards - Considerations - Leaving labour market for family responsibilities - [See Family Law - Topic 3997 ].
Family Law - Topic 4021.4
Divorce - Corollary relief - Maintenance awards - Considerations - Ability to pay - Potential to earn income and calculation of income - [See Family Law - Topic 3997 ].
Family Law - Topic 4021.5
Divorce - Corollary relief - Maintenance awards - Support tables - [See Family Law - Topic 3997 ].
Family Law - Topic 4022
Divorce - Corollary relief - Maintenance awards - To wife - Considerations - [See Family Law - Topic 3997 ].
Family Law - Topic 4022.1
Divorce - Corollary relief - Maintenance awards - To spouse - Extent of obligation - [See Family Law - Topic 3997 ].
Family Law - Topic 4094
Divorce - Corollary relief - Incidental matters - Insurance policies, pension plans or health plans naming spouse or children beneficiaries - The New Brunswick Court of Appeal stated that while it did not agree that securing the payment of periodic payments with a life insurance policy was outside the objectives of a spousal support order, it appeared from the jurisprudence that the jurisdiction of the court to direct payments was not free from doubt - However, many trial courts had held that they had the power under s. 15 of the Divorce Act to make an order for maintenance enforceable after the death of the paying spouse - See paragraph 34.
Family Law - Topic 4094
Divorce - Corollary relief - Incidental matters - Insurance policies, pension plans or health plans naming spouse or children beneficiaries - A trial judge ordered a husband to pay spousal support of $6,500 per month and, relying on s. 15.2(1) of the Divorce Act, secured the support payment by ordering that the husband designate the wife as a beneficiary of his $750,000 life insurance policy - The husband appealed, asserting that if the wife wanted to secure her support by an insurance policy on his life then she should do so by paying the premiums - The New Brunswick Court of Appeal noted that no evidence was led as to the life expectancy of either party or why an amount of $750,000 was used, except that the policy was already in existence - The husband's financial statement indicated a monthly amount of $1,100 for life insurance, but it was unclear if that related to just one policy - However, it was logical to assume that the trial judge set the amount of support at the low end of the range recommended by the Spousal Support Advisory Guidelines because he took into account the $1,100 that the husband had to pay to secure the support for the benefit of the wife - Under these circumstances, the court upheld the order - See paragraph 35.
Family Law - Topic 4094
Divorce - Corollary relief - Incidental matters - Insurance policies, pension plans or health plans naming spouse or children beneficiaries - A husband appealed an order that required that he secure the spousal support that he was to pay his wife by designating her as a beneficiary of his life insurance policy - The New Brunswick Court of Appeal stated that "Trial judges should pay close attention to the evidentiary foundation in support of this type of order securing payment of spousal support. They should consider the following: is the amount of the policy sufficient to secure the support order or is it excessive? In relation to the amount of the spousal support payment, is the amount of the premium reasonable or excessive? If the support order is time limited, then the period of security should be limited 'for as long as support continues to be paid' or 'while the appellant has an obligation to contribute to his or her [spouse's] support'. Another consideration is whether the policy should be apportioned for the benefit of the former spouse and the children of the marriage." - See paragraph 36.
Droit de la famille - Cote 870
Mari et femme - Biens matrimoniaux - Ordonnances de répartition - Appels - [Voir Family Law - Topic 870 ].
Droit de la famille - Cote 876
Mari et femme - Biens matrimoniaux - Ordonnances de répartition - Actif familial ou matrimonial - [Voir Family Law - Topic 876 ].
Droit de la famille - Cote 880.30
Mari et femme - Biens matrimoniaux - Ordonnances de répartition - Biens particuliers - Profession libérale - [Voir Family Law - Topic 880.30 ].
Droit de la famille - Cote 3997
Divorce - Mesures accessoires - Généralités - Obligation d'atteindre l'indépendance financière - [Voir Family Law - Topic 3997 ].
Droit de la famille - Cote 4010
Divorce - Mesures accessoires - Ordonnances alimentaires - Versements périodiques - [Voir Family Law - Topic 4010 ].
Droit de la famille - Cote 4019
Divorce - Mesures accessoires - Ordonnances alimentaires - Appels - [Voir Family Law - Topic 4019 ].
Droit de la famille - Cote 4021.2
Divorce - Mesures accessoires - Ordonnances alimentaires - Facteurs considérés - Quitter le marché du travail pour se consacrer à sa famille - [Voir Family Law - Topic 4021.2 ].
Droit de la famille - Cote 4021.4
Divorce - Mesures accessoires - Ordonnances alimentaires - Considérations - Capacité de payer (y compris le potentiel de revenu et le calcul du revenu) - [Voir Family Law - Topic 4021.4 ].
Droit de la famille - Cote 4021.5
Divorce - Mesures accessoires - Ordonnances alimentaires - Tableaux des pensions alimentaires - [Voir Family Law - Topic 4021.5 ].
Droit de la famille - Cote 4022
Divorce - Mesures accessoires - Ordonnances alimentaires - Ordonnances en faveur de l'épouse - Facteurs considérés - [Voir Family Law - Topic 4022 ].
Droit de la famille - Cote 4022.1
Divorce - Mesures accessoires - Ordonnances alimentaires - Ordonnances en faveur de l'épouse - Étendue de l'obligation - [Voir Family Law - Topic 4022.1 ].
Droit de la famille - Cote 4094
Divorce - Mesures accessoires - Affaires incidentes - Polices d'assurance désignant l'épouse ou les enfants bénéficiaires - [Voir Family Law - Topic 4094 ].
Cases Noticed:
Elsom v. Elsom, [1989] 1 S.C.R. 1367; 96 N.R. 165, refd to. [para. 14].
Hickey v. Hickey, [1999] 2 S.C.R. 518; 240 N.R. 312; 138 Man.R.(2d) 40; 202 W.A.C. 40, refd to. [para. 14].
J.P. v. R.R. (2004), 278 N.B.R.(2d) 351; 728 A.P.R. 351; 2004 NBCA 98, refd to. [para. 14].
Clarke v. Clarke, [1990] 2 S.C.R. 795; 113 N.R. 321; 101 N.S.R.(2d) 1; 275 A.P.R. 1, refd to. [para. 18].
Sarchfield v. Sarchfield (1990), 109 N.B.R.(2d) 335; 273 A.P.R. 335 (C.A.), refd to. [para. 19].
Fox v. Fox (1994), 153 N.B.R.(2d) 1; 392 A.P.R. 1 (C.A.), refd to. [para. 20].
Hebb v. Hebb (1991), 103 N.S.R.(2d) 147; 282 A.P.R. 147 (C.A.), refd to. [para. 21].
Hickey v. Hickey (1999), 179 Nfld. & P.E.I.R. 242; 546 A.P.R. 242 (Nfld. C.A.), refd to. [para. 22].
MacElwain v. MacElwain (2006), 294 N.B.R.(2d) 111; 765 A.P.R. 111; 2006 NBQB 19 (Fam. Div.), refd to. [para. 24].
Wildman v. Wildman (2006), 215 O.A.C. 239; 82 O.R.(3d) 401 (C.A.), refd to. [para. 30].
Ripley v. Ripley (1991), 52 B.C.L.R.(2d) 362 (C.A.), refd to. [para. 34].
Waters v. Conrod (2007), 240 B.C.A.C. 208; 398 W.A.C. 208; 2007 BCCA 230, refd to. [para. 34].
Hines v. Hines (2004), 276 N.B.R.(2d) 9; 724 A.P.R. 9; 2004 NBQB 349 (T.D.), refd to. [para. 34].
Saunders v. Saunders (2007), 312 N.B.R.(2d) 363; 806 A.P.R. 363; 2007 NBQB 133 (Fam. Div.), refd to. [para. 34].
Roy v. Roy (2007), 322 N.B.R.(2d) 283; 829 A.P.R. 283; 2007 NBQB 234 (Fam. Div.), refd to. [para. 34].
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. 34].
Statutes Noticed:
Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, sect. 15.2 [para. 32].
Authors and Works Noticed:
Kelly, Gordon R., A Review of Selected Provisions of the Matrimonial Property Act (2006), generally [para. 17].
Counsel:
Avocats:
Rodney J. Gillis, Q.C., for the appellant;
Allison Whitehead, Q.C., for the respondent.
This appeal was heard on June 12, 2008, by Larlee, Richard and Bell, JJ.A., of the New Brunswick Court of Appeal. The following decision of the court was delivered in both official languages on December 4, 2008, by Larlee, J.A.
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