Miner v. Miner, (2013) 402 N.B.R.(2d) 116 (FD)

• Judge: Baird, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: June 19, 2012
• Jurisdiction: New Brunswick
• Citations: (2013), 402 N.B.R.(2d) 116 (FD);2013 NBQB 103

Miner v. Miner (2013), 402 N.B.R.(2d) 116 (FD);

    402 R.N.-B.(2e) 116; 1044 A.P.R. 116

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[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. AP.036

Renvoi temp.: [2013] N.B.R.(2d) TBEd. AP.036

Vicki Miner (petitioner) v. David Miner (respondent)

(1301-60697; 2013 NBQB 103; 2013 NBBR 103)

Indexed As: Miner v. Miner

Répertorié: Miner v. Miner

New Brunswick Court of Queen's Bench

Family Division

Judicial District of Fredericton

Baird, J.

March 4, 2013.

Summary:

Résumé:

The parties married in June 2002 and separated on January 26, 2007. They had one son. The parties agreed to joint custody of the son, with primary residence with the mother. The father was granted generous access. Child support payable by the father was $550 monthly. The father paid the mother a lump sum of $5,000 to equalize property and debt division as requested by her. These provisions were incorporated into a 2009 corollary relief order. The father moved to retroactively vary child support. The mother moved to extend the limitation period under s. 3(4) of the Marital Property Act to request an equitable division of marital property.

The New Brunswick Court of Queen's Bench, Family Division, dismissed the father's motion, dismissed the mother's motion and awarded costs to the mother.

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.

Family Law - Topic 629

Husband and wife - Marital property - Marital property legislation - Application of - The parties married in June 2002 and separated on January 26, 2007 - In 2009, the father paid the mother a lump sum of $5,000 to equalize property and debt division as requested by her - These provisions were incorporated into a 2009 order - The mother applied to extend the 60 day limitation period under s. 3(4) of the Marital Property Act to request an equitable division of marital property - Section 3(4) provided that "Where a person is prevented (a) by lack of knowledge of the occurrence of a death or of the date thereof; or (b) by circumstances reasonably beyond his control, from making an application within the limitation period fixed in subsection (2), the Court may extend the limitation period by such length of time and upon such terms as it considers just" - The New Brunswick Court of Queen's Bench, Family Division, dismissed the mother's motion - The court was not asked to set aside or to vary the court order that issued in 2009 - The court was only asked to extend the limitation period permitted in s. 3(4), for the filing of an application to divide marital property - That application was already before another court in 2009, and was resolved by court order - A plain reading of the section persuaded the court that an application de novo, following the death of a spouse, or after the expiration of 60 days post divorce would be permitted if the applicant could establish that lack of knowledge of the death, or the divorce hearing, or there were exigent circumstances that prevented the applicant from filing a claim - The section was not meant to be used as a vehicle to revisit, set aside or vary previous applications that had been dealt with by court order, such as in this case - Parties were entitled to believe that agreements were final - The legislation articulated when an extension of time would be granted - The mother did not fall within those listed exceptions - The evidence did not support the mother's claim that she was not able to pursue a division of property within the 60 day period post order, based on circumstances reasonably beyond her control - See paragraphs 164 to 213.

Family Law - Topic 945

Husband and wife - Marital property - Distribution orders - Practice - Time for application - [See Family Law - Topic 629 ].

Family Law - Topic 4018

Divorce - Corollary relief - Maintenance and awards - Awards - Variation of - Jurisdiction - The parties married in June 2002 and separated on January 26, 2007 - They had one son - The parties agreed to joint custody of the son, with primary residence with the mother - The father was granted generous access - Child support payable by the father was agreed to by the parties and fixed at $550 monthly based on an assessed income of $63,000 to $64,000 - The father moved to retroactively vary child support to November 2010 when he first gave notice to the mother that his income had changed and sought reimbursement for any overpayments he might have paid - The New Brunswick Court of Queen's Bench, Family Division, dismissed the father's motion - There were no statutory references cited in the father's motion document as required by rule 37.03(b) of the Rules of Court - The rule was mandatory, not permissive - It was the court's practice to refuse the relief requested in the absence of statutory references - It was the statutory reference that gave the court jurisdiction to make an order - There were no exceptions or equitable considerations which applied - See paragraphs 223 to 243.

Family Law - Topic 4195

Divorce - Practice - Judgments and orders - Variation of - [See Family Law - Topic 4018 ].

Practice - Topic 3139

Applications and motions - Motions - Dismissal of for noncompliance with rules - [See Family Law - Topic 4018 ].

Droit de la famille - Cote 629

Mari et femme - Biens matrimoniaux - Application d'une législation sur les biens matrimoniaux - [Voir Family Law - Topic 629 ].

Droit de la famille - Cote 945

Mari et femme - Biens matrimoniaux - Ordonnances de répartition - Procédure - Moment pour présenter la demande - [Voir Family Law - Topic 945 ].

Droit de la famille - Cote 4018

Divorce - Mesures accessoires - Ordonnances alimentaires - Modification de l'ordonnance - Compétence du tribunal - [Voir Family Law - Topic 4018 ].

Droit de la famille - Cote 4195

Divorce - Procédure - Jugements et ordonnances - Modification - [Voir Family Law - Topic 4195 ].

Procédure - Cote 3139

Requêtes et motions - Motions - Rejet pour défaut de se conformer aux règles de procédure - [Voir Practice - Topic 3139 ].

Cases Noticed:

O'Brien v. O'Brien (2011), 375 N.B.R.(2d) 42; 969 A.P.R. 42; 2011 NBQB 179 (Fam. Div.), refd to. [para. 132].

Stewart v. Stewart Estate, [2006] N.B.R.(2d) Uned. 100; 2006 CanLII 21030 (C.A.), consd. [para. 173].

Cornect v. Poirier-Robichaud (2000), 230 N.B.R.(2d) 368; 593 A.P.R. 368; 2000 NBCA 31, refd to. [para. 175].

MacDonald v. MacDonald (2011), 372 N.B.R.(2d) 179; 961 A.P.R. 179; 2011 NBCA 25, refd to. [para. 177].

Gaudet v. Gaudet (2009), 350 N.B.R.(2d) 237; 903 A.P.R. 237; 2009 CanLII 37506, refd to. [para. 181].

Miglin v. Miglin, [2003] 1 S.C.R. 303; 302 N.R. 201; 171 O.A.C. 201; 2003 SCC 24, refd to. [para. 187].

Rick v. Brandsema - see/voir N.R. v. B.B. et al.

N.R. v. B.B. et al., [2009] 1 S.C.R. 295; 385 N.R. 85; 266 B.C.A.C. 1; 449 W.A.C. 1; 2009 SCC 10, refd to. [para. 190].

L.M.P. v. L.S., [2011] 3 S.C.R. 775; 424 N.R. 341; 2011 SCC 64, refd to. [para. 195].

Grimes v. Grimes (2012), 329 Nfld. & P.E.I.R. 29; 1022 A.P.R. 29; 2012 CarswellNfld 397, refd to. [para. 199].

Rademaker v. Rademaker (2002), 251 N.B.R.(2d) 177; 654 A.P.R. 177 (C.A.), refd to. [para. 202].

Hartshorne v. Hartshorne, [2004] 1 S.C.R. 550; 318 N.R. 1; 194 B.C.A.C. 161; 317 W.A.C. 161, refd to. [para. 203].

Waugh et al. v. Canadian Broadcasting Corp. et al. (2000), 224 N.B.R.(2d) 391; 574 A.P.R. 391 (C.A.), refd to. [para. 227].

Davidson et al. v. Craig Manufacturing Ltd. (2009), 345 N.B.R.(2d) 359; 889 A.P.R. 359; 2009 NBCA 42, refd to. [para. 235].

Myshrall v. Vu (1994), 156 N.B.R.(2d) 241; 401 A.P.R. 241 (T.D.), refd to. [para. 235].

Optimum Insurance Co. v. Donovan (2008), 340 N.B.R.(2d) 45; 871 A.P.R. 45; 2009 NBCA 6, leave to appeal refused (2009), 398 N.R. 388 (S.C.C.), refd to. [para. 236].

Newman v. Tibbetts (2005), 283 N.B.R.(2d) 63; 740 A.P.R. 63; 2005 NBCA 37, dist. [para. 237].

D.B.S. v. S.R.G., [2006] 2 S.C.R. 231; 351 N.R. 201; 391 A.R. 297; 377 W.A.C. 297; 2006 SCC 37, refd to. [para. 253].

Statutes Noticed:

Marital Property Act, S.N.B. 1980, c. M-1.1, sect. 3(4) [para. 165].

Counsel:

Avocats:

Terence Connelly, for the petitioner;

Ferne M. Ashford, for the respondent.

These motions were heard between June 19, 2012, and January 25, 2013, by Baird, J., of the New Brunswick Court of Queen's Bench, Family Division, Judicial District of Fredericton, who delivered the following decision on March 4, 2013.