P.D. v. C.D., (2011) 378 N.B.R.(2d) 85 (FD)

• Judge: Baird, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: June 24, 2011
• Jurisdiction: New Brunswick
• Citations: (2011), 378 N.B.R.(2d) 85 (FD);2011 NBQB 239

P.D. v. C.D. (2011), 378 N.B.R.(2d) 85 (FD);

    378 R.N.-B.(2e) 85; 973 A.P.R. 85

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Temp. Cite: [2011] N.B.R.(2d) TBEd. SE.011

Renvoi temp.: [2011] N.B.R.(2d) TBEd. SE.011

P.D. (petitioner) v. C.D. (respondent/moving party)

(FDF-540-10; 1301-61553; 2011 NBQB 239; 2011 NBBR 239)

Indexed As: P.D. v. C.D.

Répertorié: P.D. v. C.D.

New Brunswick Court of Queen's Bench

Family Division

Judicial District of Fredericton

Baird, J.

June 24, 2011.

Summary:

Résumé:

The parties separated after a 13 year marriage. The husband/father petitioned for divorce. Pursuant to a separation agreement, the parties had shared custody of their three children. The father stopped paying child support alleging that he had no income. The wife sought to vary custody and to impute income to the father.

The New Brunswick Court of Queen's Bench, Family Division, allowed the motion. The court changed custody to interim joint custody with primary day-to-day care and control to be with the mother. The court imputed income to the father and ordered child support accordingly. The father was ordered to pay the mother costs of $3,000.

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 1950.1

Custody and access - Variation of custody and access rights - Changed circumstances of child - [See Family Law - Topic 2054 ].

Family Law - Topic 2054

Custody and access - Interim custody - Variation of - The parents of three children separated after a 13 year marriage - Pursuant to a separation agreement, the parties had shared custody - The wife had been the primary parent responsible for most of the day-to-day matters respecting the children - The wife sought to vary custody pending trial - The New Brunswick Court of Queen's Bench, Family Division, changed custody to interim joint custody with primary day-to-day care and control to be with the mother pending trial - The children's emotional health had been negatively affected by the existing shared access arrangement - They were having difficulty with the transition between households - The mother had adopted a more proactive and primary caregiving role in the children's lives - She appeared more prepared to give priority to the children's best interests over and above her own best interests - The children had expressed a desire for change - The mother appeared to be able to communicate in a mature and responsible manner and was more likely to be flexible with access - The father seemed incapable of understanding the effects that the situation was having on the children and their intellectual, emotional and academic health was suffering - There was little, if any, potential for the parents to communicate effectively and to make joint decisions about the children (a prerequisite for a shared custody arrangement) - See paragraphs 71 to 130.

Family Law - Topic 2189

Custody and access - Practice - Costs - The parties separated after a 13 year marriage - The father petitioned for divorce - Pursuant to a separation agreement, the parties had shared custody of their three children - The father stopped paying agreed child support, alleging that he had no income - The wife sought to vary interim custody and to impute income to the father respecting child support - The wife was substantially successful on the motion - The father was self-represented for most of the proceeding - The New Brunswick Court of Queen's Bench, Family Division, ordered the father to pay the mother costs of $3,000 - The court acknowledged that it was highly unusual and an exceptional remedy to make an order for costs where there was a self-represented litigant - However, the father's unilateral decision to not pay child support was unacceptable and supportive of the mother's submission that he had orchestrated his financial affairs so as to avoid child support payments - This was a lengthy hearing, there were many witnesses, and the issues were complex - The father's failure to disclose financial information was "troublesome" - Also, his failure to provide a sworn affidavit of documents until the eve of the hearing was not in accordance with the Rules of Court - See paragraphs 131 to 138.

Family Law - Topic 2416

Maintenance of wives and children - Practice - Costs - [See Family Law - Topic 2189 ].

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Child support guidelines - Calculation or attribution of income - The married parties had three children - They separated - The father petitioned for divorce - The father stopped paying child support as required by a separation agreement - He was a civil engineer - He had had several companies that had allegedly failed - He declared bankruptcy - The wife sought to impute income to the father - She alleged that he had intentionally organized his financial affairs in such a way as to defeat any order for child support - She alleged that he had incorporated a construction company in his name but had subsequently transferred ownership to his girlfriend - She alleged that he should be receiving compensation from the company - The father alleged that his girlfriend's family had been in the construction business a long time and that the company was really his girlfriend's - He testified that he was trying to establish an engineering consulting firm of his own and was currently working from his girlfriend's home - However, he produced nothing to support his testimony - He deposed that his girlfriend was supporting him and paying all of the bills including vacations and other luxury things that they experienced together - The New Brunswick Court of Queen's Bench, Family Division, imputed income to the father based on his average income for the last three years - It was improbable that the father's girlfriend was operating the construction company - The onus was on the father to establish that the alleged change of employment and change of income were reasonable - There was no onus on the mother to bring evidence as to the amount of income to be imputed - See paragraphs 6 to 70.

Practice - Topic 4645

Discovery - Affidavit or list of documents - Time for filing - The parties separated after a 13 year marriage - The father petitioned for divorce - Pursuant to a separation agreement, the parties had shared custody of their three children - The father stopped paying child support, alleging that he had no income - The wife sought to vary interim custody and to impute income to the father - Despite repeated requests to receive a sworn Affidavit of Documents, it was not produced until just days prior to the hearing - The New Brunswick Court of Queen's Bench, Family Division, rejected the notion that nothing turned on this and that the mother and her counsel were not prejudiced as a result as the father had previously provided an unsworn Affidavit of Documents - The Rules of Court (rule 31.03) specifically provided that once counsel received notice requiring an Affidavit of Documents the sworn affidavit of the party was to be provided within ten days of receipt of same - To provide an unsworn Affidavit of Documents did not satisfy the rule - Counsel opposite could take no comfort from the receipt of an unsworn document, particularly where there were complex financial matters involved as there were in this case - As discovery was held on June 9, 2010, not to have provided the document until just days prior to April 7, 2011 was unacceptable - See paragraph 4.

Practice - Topic 7050

Costs - Party and party costs - Entitlement to party and party costs - Successful party not represented by counsel - [See Family Law - Topic 2189 ].

Droit de la famille - Cote 1950.1

Garde et accès - Modification des droits de garde et d'accès - Changement de circonstances de l'enfant - [Voir Family Law - Topic 1950.1 ].

Droit de la famille - Cote 2054

Garde et accès - Garde provisoire - Modification - [Voir Family Law - Topic 2054 ].

Droit de la famille - Cote 2189

Garde et accès - Procédure - Dépens - [Voir Family Law - Topic 2189 ].

Droit de la famille - Cote 2416

Entretien des épouses et des enfants - Procédure - Dépens - [Voir Family Law - Topic 2416 ].

Droit de la famille - Cote 4045.5

Divorce - Mesures accessoires - Ordonnances alimentaires - Lignes directrices sur les pensions alimentaires pour enfants - Calcul ou attribution du revenu - [Voir Family Law - Topic 4045.5 ].

Procédure - Cote 4645

Enquête préalable - Affidavit ou liste de documents - Moment du dépôt - [Voir Practice - Topic 4645 ].

Procédure - Cote 7050

Dépens - Dépens entre parties - Droit aux dépens entre parties - Partie gagnante non représentée par un avocat - [Voir Practice - Topic 7050 ].

Cases Noticed:

T.B. v. A.M., [2002] N.B.R.(2d) (Supp.) No. 93 (Fam. Div.), refd to. [para. 9].

D.L.A. v. J.T.A. (1999), 241 A.R. 361; 1999 ABQB 221, refd to. [para. 43].

Pagani v. Pagani, [1999] B.C.T.C. Uned. 364; 2000 BCSC 75, refd to. [para. 44].

Donovan v. Donovan (2000), 150 Man.R.(2d) 116; 230 W.A.C. 116; 2000 MBCA 80, refd to. [para. 44].

J.A.M. v. D.L.M. (2008), 326 N.B.R.(2d) 111; 838 A.P.R. 111; 2008 NBCA 2, refd to. [para. 47].

O'Brien v. O'Brien (2007), 312 N.B.R.(2d) 302; 806 A.P.R. 302; 2007 NBCA 22, refd to. [para. 49].

Verwey v. Verwey (2007), 220 Man.R.(2d) 52; 407 W.A.C. 52; 2007 MBCA 102, refd to. [para. 49].

Wellman v. Gillcash, 2002 CarswellNB 538 (Q.B.), refd to. [para. 50].

P.D.R. v. J.E.R. (2005), 284 N.B.R.(2d) 321; 742 A.P.R. 321; 2005 CarswellNB 22 (Fam. Div.), refd to. [para. 50].

Bak v. Dobell (2007), 224 O.A.C. 10; 2007 ONCA 304, refd to. [para. 52].

Brown v. Brown, [2011] N.B.R.(2d) Uned. 40; 2011 CanLII 28422 (C.A.), refd to. [para. 59].

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. 59].

A.L. v. J.T. (2010), 373 N.B.R.(2d) 226; 964 A.P.R. 226 (Fam. Div.), refd to. [para. 61].

Bates v. Welcher (2001), 153 Man.R.(2d) 281; 238 W.A.C. 281; 2001 MBCA 33, refd to. [para. 64].

Chapman v. Summer et al. (2010), 287 B.C.A.C. 128; 485 W.A.C. 128; 2010 BCCA 237, refd to. [para. 65].

Jardine-Hynds v. Grant, 2009 ONCJ 133, refd to. [para. 65].

Lahanky v. Lahanky (2011), 376 N.B.R.(2d) 1; 970 A.P.R. 1; 2011 NBQB 84 (Fam. Div.), refd to. [para. 67].

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. 114].

Gordon v. Goertz (1996), 196 N.R. 321; 141 Sask.R. 241; 114 W.A.C. 241 (S.C.C.), refd to. [para. 114].

C.B. v. E.C.C. (2002), 166 O.A.C. 44 (C.A.), refd to. [para. 114].

Robinson v. Filyk (1996), 84 B.C.A.C. 290; 137 W.A.C. 290 (C.A.), refd to. [para. 115].

King v. Mr. and Mrs. B., [1985] 1 S.C.R. 87; 57 N.R. 17; 58 A.R. 275, refd to. [para. 116].

King v. Low - see King v. Mr. and Mrs. B.

Shaw v. Shaw (1997), 189 N.B.R.(2d) 84; 482 A.P.R. 84 (Fam. Div.), refd to. [para. 118].

Giri v. Wentges, [2009] O.A.C. Uned. 411; 2009 ONCA 606, refd to. [para. 118].

L.C.M. v. B.A.C. (2010), 359 N.B.R.(2d) 300; 929 A.P.R. 300; 2010 NBQB 127 (Fam. Div.), refd to. [para. 118].

Roy v. Roy, [2006] O.A.C. Uned. 215; 2006 CanLII 15619 (C.A.), refd to. [para. 118].

Newman v. Tibbetts (2005), 283 N.B.R.(2d) 63; 740 A.P.R. 63; 2005 NBCA 37, refd to. [para. 133].

British Columbia (Minister of Forests) v. Okanagan Indian Band et al. (2003), 313 N.R. 84; 189 B.C.A.C. 161; 309 W.A.C. 161; 2003 SCC 71, refd to. [para. 134].

Andrews v. Andrews (1980), 32 O.R.(2d) 29 (C.A.), refd to. [para. 134].

Katz v. Katz (2004), 184 Man.R.(2d) 271; 318 W.A.C. 271; 2004 MBCA 85, refd to. [para. 134].

Authors and Works Noticed:

Payne, Julien D., and Payne, Marilyn A., Child Support Guidelines in Canada (2009), generally [para. 56].

Thompson, D.A. Rollie, Slackers, Shirkers and Career-Changers; Imputing Income for Under-Employed and Underemployment, Law Society of Upper Canada, Special Lectures, 2006 Family Law Paper, generally [para. 46].

Counsel:

Avocats:

Jennifer Donovan, for the moving party;

Howard Myatt (for first part of hearing) and respondent per se.

This motion was heard on April 7, May 16 and 30, 2011, by Baird, J., of the New Brunswick Court of Queen's Bench, Family Division, Judicial District of Fredericton, who delivered the following oral reasons for judgment on June 24, 2011.