Moody v. Holden, (2015) 375 Nfld. & P.E.I.R. 180 (NLTD(F))

JudgeMennie, J.
CourtSupreme Court of Newfoundland and Labrador (Canada)
Case DateSeptember 23, 2015
JurisdictionNewfoundland and Labrador
Citations(2015), 375 Nfld. & P.E.I.R. 180 (NLTD(F))

Moody v. Holden (2015), 375 Nfld. & P.E.I.R. 180 (NLTD(F));

    1167 A.P.R. 180

MLB headnote and full text

Temp. Cite: [2015] Nfld. & P.E.I.R. TBEd. DE.070

Steven Moody (applicant) v. Tina Holden (respondent)

(201102F0901; 2015 NLTD(F) 45)

Indexed As: Moody v. Holden

Newfoundland and Labrador Supreme Court

Trial Division (Family)

Mennie, J.

December 30, 2015.

Summary:

The parties married in 1997 and separated in 2010. They had one child. The mother filed an application seeking (1) a final parenting order; (2) child support and spousal support on a prospective and retroactive basis; and (3) a division of property.

The Newfoundland and Labrador Supreme Court, Trial Division (Family), determined the issues.

Family Law - Topic 1897

Custody and access - Considerations in awarding custody - Status quo - [See Family Law - Topic 2082 ].

Family Law - Topic 2082

Custody and access - Shared parenting - Considerations (incl. best interests of the child) - The parties separated in 2010 - They had one child - With the exception of approximately six months (November 2011 to May 2012), when the mother limited the father's contact to access only due to concerns regarding the child's emotional health, the parties had participated in a shared custody arrangement since separation - The mother applied for a final parenting order - The Newfoundland and Labrador Supreme Court, Trial Division (Family), ordered shared parenting - The court stated that "Neither party presented any evidence to suggest that they were dissatisfied with the current parenting arrangement or sought any specific changes to it. More importantly, neither party presented any evidence to the court that the current arrangement was contrary to [the child's] best interests. Without any evidence, I do not think that it is in [the child's] best interests that I disturb the status quo which has existed for almost two years." - See paragraph 16.

Family Law - Topic 2210

Maintenance of spouses and children - General principles - Calculation or attribution of income - The parties separated in 2010 - The wife sought child support and spousal support - She had a bachelor's degree in psychology, but testified that she was no longer able to work in that field due to a 2007 arrest - From 2007 to 2012, the wife owned a fitness business that closed for financial reasons - In 2013, she attempted to work at a mortgage brokerage owned by her boyfriend and then a consulting business that she began herself, but was unable to succeed at either, allegedly for health reasons - She was currently unemployed - The husband argued that the wife was intentionally unemployed and that the court should impute income to her - The Newfoundland and Labrador Supreme Court, Trial Division (Family), held that income should be imputed to the wife because (1) although the medical evidence established that she had been diagnosed with fibromyalgia and myofascial pain, it did not establish that she was unable to work; (2) she was not taking medication or physiotherapy despite medical recommendations; (3) she did not confirm with the relevant authorities what impact the stayed criminal charge had on her ability to practice psychology; (4) despite her education and experience, she had only applied for three jobs related to her field since separation; (5) she chose to invest time and effort in non-remunerative employment such as her boyfriend's business and her consulting business; (6) her suggestion that she could only maintain employment with no fixed schedule or commitments was not supported by the medical evidence and was irreconcilable with her ability to travel frequently; and (7) she had not completed any type of retraining or upgrading since separation - The average income of the wife's last two years of paid employment (2010 and 2011) was $26,223 - The court imputed that amount to the wife effective 2012 - See paragraphs 53 to 57.

Family Law - Topic 2211

Maintenance of spouses and children - General principles - Retrospective or retroactive orders - The parties separated in 2010 - They had one child - The mother applied for child support in March 2012 - In December 2012, the father was ordered to begin paying child support in January 2013 - That order was recalculated on two occasions using the "10 percent rule" because the father had not filed updated financial information - The mother sought retroactive support for the period January to December 2012 - She also sought retroactive support for the years 2013 to 2015 on the basis that the recalculations did not reflect the father's actual income - The Newfoundland and Labrador Supreme Court, Trial Division (Family), held that it would be inappropriate to award retroactive support for the period January to December 2012 - The court was unaware what evidence was used to decide the father's income, or why January 2013 was chosen as the start date for the December 2012 order - However, the court could assume that the December 2012 order was made on the basis of satisfactory evidence, a consideration of the parties' submissions, and in the best interests of the child - The only period of time that the previous order failed to reflect the father's increased income was from November 2013 to March 2015 - Given the father's unexplained failure to file his financial information as required, and his lack of disclosure concerning his secondary income, he was ordered to pay retroactive child support for that period (a total of $603) - See paragraphs 85 to 94.

Family Law - Topic 2211

Maintenance of spouses and children - General principles - Retrospective or retroactive orders - The parties married in 1997 and separated in 2010 - They had one child - The wife sought retroactive spousal support commencing January 2012 - The Newfoundland and Labrador Supreme Court, Trial Division (Family), denied the request on the basis of the husband's ability to pay - The husband was currently working as a substitute teacher with the result that the amount of work he received was unpredictable - The court had already ordered that he pay prospective spousal support of $500/month for a period of two years - The court did not want to make a further order that might jeopardize his ability to meet expenses relating to the child - A retroactive spousal support order would cause hardship - See paragraphs 152 to 154.

Family Law - Topic 2213

Maintenance of spouses and children - General principles - Extent of duty to support - The parties married in 1997 and separated in 2010 - They had one child - The husband had a university degree in education - The wife had a university degree in psychology - Both parties worked in their respective fields until 2007, when the wife started a fitness business - The husband began working at the fitness business full-time in 2008 - He returned to teaching in 2011 - The business closed in 2012 - The wife was now unemployed and suffered from fibromyalgia and myofascial pain - She sought spousal support - The Newfoundland and Labrador Supreme Court, Trial Division (Family), ordered the husband to pay spousal support of $500/month for a period of two years - This was a low-range amount based on the husband's income of $75,780 and the wife's imputed income of $26,223 - Considerations included the length of the marriage, the lack of any economic disadvantage to the wife arising from the marriage, the equal property division, the husband's current employment as a substitute teacher only, the wife's ability to earn an income in the future, and the court's conclusion that her claim to support was weak - In determining duration, it was also relevant that the husband paid the mortgage for almost the entire period from separation to the date of foreclosure - See paragraphs 142 to 148.

Family Law - Topic 2326

Maintenance of spouses and children - Maintenance of spouses - Effect of income or potential income of claimant - [See Family Law - Topic 2210 ].

Family Law - Topic 2328

Maintenance of spouses and children - Maintenance of spouses - Effect of spouses's ability to work - [See Family Law - Topic 2210 ].

Family Law - Topic 2329

Maintenance of spouses and children - Maintenance of spouses - Considerations - The parties married in 1997 and separated in 2010 - They had one child - The husband had a university degree in education - The wife had a university degree in psychology - Both parties worked in their respective fields until 2007, when the wife started a fitness business - The husband began working at the fitness business full-time in 2008 - He returned to teaching in 2011 - The business closed in 2012 - The wife was now unemployed and suffered from fibromyalgia and myofascial pain - She sought spousal support - The Newfoundland and Labrador Supreme Court, Trial Division (Family), held that the wife was not entitled to spousal support on a compensatory basis - There was no evidence that the wife had suffered any economic disadvantage related to the marriage or the role she adopted in the marriage - A spouse's conduct was not a factor for the court to consider when assessing entitlement to spousal support - The wife's argument that the husband had caused her illness and employment difficulties was therefore irrelevant - Although her claim was weak, the wife was entitled to some support on a non-compensatory basis given the length of the marriage, her contribution to the marriage when she was employed, her loss of access to the husband's income, her need, the husband's ability to pay, and the fact that her illness had some impact on her employment options - See paragraphs 137 to 141.

Family Law - Topic 2353

Maintenance of spouses and children - Maintenance of children - Retroactive maintenance - [See first Family Law - Topic 2211 ].

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance awards - Retroactive awards - [See both Family Law - Topic 2211 ].

Family Law - Topic 4021.4

Divorce - Corollary relief - Maintenance awards - Considerations - Ability to pay - [See second Family Law - Topic 2211 ].

Family Law - Topic 4022

Divorce - Corollary relief - Maintenance awards - To spouse - Considerations - [See Family Law - Topic 2329 ].

Family Law - Topic 4022.1

Divorce - Corollary relief - Maintenance awards - To spouse - Extent of obligation - [See Family Law - Topic 2213 ].

Family Law - Topic 4027

Divorce - Corollary relief - Maintenance awards - Effect of income or potential income of claimant - [See Family Law - Topic 2210 ].

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Calculation or attribution of income - [See Family Law - Topic 2210 ].

Cases Noticed:

Hanson v. Hanson, [1999] B.C.T.C. Uned. 688; 92 A.C.W.S.(3d) 1024 (S.C.), refd to. [para. 48].

Drygala v. Pauli (2002), 164 O.A.C. 241; 219 D.L.R.(4th) 319 (C.A.), refd to. [para. 49].

Duffy v. Duffy (2009), 289 Nfld. & P.E.I.R. 132; 890 A.P.R. 132; 2009 NLCA 48, refd to. [para. 50].

Contino v. Leonelli-Contino (2005), 341 N.R. 1; 204 O.A.C. 311; 2005 SCC 63, refd to. [para. 64].

D.B.S. v. S.R.G. (2006), 351 N.R. 201; 391 A.R. 297; 377 W.A.C. 297; 2006 SCC 37, refd to. [para. 78].

Moge v. Moge, [1992] 3 S.C.R. 813; 145 N.R. 1; 81 Man.R.(2d) 161; 30 W.A.C. 161; 99 D.L.R.(4th) 456, refd to. [para. 134].

Bracklow v. Bracklow, [1999] 1 S.C.R. 420; 236 N.R. 79; 120 B.C.A.C. 211; 196 W.A.C. 211; 169 D.L.R.(4th) 577, refd to. [para. 134].

Leskun v. Leskun (2006), 349 N.R. 158; 226 B.C.A.C. 1; 373 W.A.C. 1; 2006 SCC 25, refd to. [para. 140, footnote 16].

Myers v. Hawco (2005), 252 Nfld. & P.E.I.R. 121; 756 A.P.R. 121; 2005 NLCA 74, refd to. [para. 142].

Kerr v. Baranow (2011), 411 N.R. 200; 300 B.C.A.C. 1; 509 W.A.C. 1; 274 O.A.C. 1; 2011 SCC 10, refd to. [para. 151].

Counsel:

Tammy Drover, for the applicant;

Tina Holden, on her own behalf.

This application was heard at St. John's, N.L., on May 21, May 25-59, and September 23, 2015, before Mennie, J., of the Newfoundland and Labrador Supreme Court, Trial Division (Family), who delivered the following reasons for judgment on December 30, 2015.

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