Purdue v. Purdue, (2014) 431 N.B.R.(2d) 23 (FD)

• Judge: Wooder, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: June 11, 2014
• Jurisdiction: New Brunswick
• Citations: (2014), 431 N.B.R.(2d) 23 (FD);2014 NBQB 262

Purdue v. Purdue (2014), 431 N.B.R.(2d) 23 (FD);

    431 R.N.-B.(2e) 23; 1124 A.P.R. 23

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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: [2015] N.B.R.(2d) TBEd. JA.029

Renvoi temp.: [2015] N.B.R.(2d) TBEd. JA.029

Mary Jane Purdue (petitioner/moving party) v. David Purdue (respondent)

(FDF-465-06; 1301-55528; 2014 NBQB 262; 2014 NBBR 262)

Indexed As: Purdue v. Purdue

Répertorié: Purdue v. Purdue

New Brunswick Court of Queen's Bench

Family Division

Judicial District of Fredericton

Wooder, J.

December 3, 2014.

Summary:

Résumé:

The parties were each presently 48 years of age. When they separated in 2005, they had been married for 16.5 years. They were divorced in 2009, and corollary relief was granted (split custody, child support, and spousal support). The wife sought retroactive and prospective increases in the child and spousal support, based on the increased income of the husband. On consent, child support was increased for the remaining child of the marriage. A main issue was the determination of the husband's income, including the treatment of the dividends that his shareholdings generated.

The New Brunswick Court of Queen's Bench, Family Division, determined the issues. Success was divided.

Courts - Topic 2284

Jurisdiction - Bars - Res judicata - [See Estoppel - Topic 394 ].

Estoppel - Topic 386

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Issues decided in prior proceedings - [See Estoppel - Topic 394 ].

Estoppel - Topic 394

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - In family law cases - By this latest motion, the wife sought an increase in spousal support granted in 2009 - A main issue was the determination of the husband's income, including the treatment of the dividends that his shareholdings generated - The determination of the husband's income had been a matter of dispute in 2009 - The trial judge's decision was a final one and was upheld on appeal - The New Brunswick Court of Queen's Bench, Family Division, held that the issue of the determination of the husband's income and the inclusion of all banked overtime, vacation time, and bonuses "is entirely and unquestionably res judicata. However, in my view that is not dispositive of the issue on this motion ... . Obviously, the fact that a portion of [the husband's] income is now characterized as income from dividends, as opposed to shareholders' bonuses, requires this court to undertake a new analysis in that respect. That issue is not res judicata." - See paragraphs 23 to 31.

Family Law - Topic 3997

Divorce - Corollary relief - General - Economic self-sufficiency - [See Family Law - Topic 4017 ].

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance awards - Retroactive awards - In December 2013, the mother filed this motion to retroactively increase child support granted in 2009 - It replicated a motion that had been filed by her early in 2012 - The motion judge, after ordering disclosure by the father of his income information, adjourned the hearing, without a date - The New Brunswick Court of Queen's Bench, Family Division, granted an order with retroactive effect back to January 2010 - Although there was some delay on the mother's part, it was not significant and she provided a reasonable explanation - There was some blameworthy conduct on the father's part due to his failure to provide his income information in a timely manner - There was no evidence of any hardship experienced by the child as a consequence of the father's payment of a lesser amount of support - The imposition of an award with retroactive effect would not impose a financial hardship on the father, given his present financial circumstances - See paragraphs 61 to 73.

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance awards - Retroactive awards - The wife requested an increase in spousal support granted in 2009, based on the increased income of the husband, retroactively to May 2011 - The motion was filed in December 2013 - The husband's "blameworthy" conduct was his tardiness in providing his annual income information - His income was determined to be $116,172; the wife's income was $20,803, exclusive of child and spousal support - Neither party discussed the tax implications - The New Brunswick Court of Queen's Bench, Family Division, held that the husband's present financial circumstances did not support an award with retroactive effect - To do so would create a windfall for the wife and would impose a significant financial hardship on the husband - An application of the Spousal Support Advisory Guidelines would generate arrears of spousal support (back to June 2011) in amounts ranging from $29,035 to $63,212 - Those were significant amounts, particularly when added to the retroactive child support ordered - To ignore the tax implications heightened the windfall and exacerbated the financial hardship - See paragraphs 81 to 105.

Family Law - Topic 4017

Divorce - Corollary relief - Maintenance awards - Variation of periodic payments or lump sum award - When the parties separated in 2005, they had been married for 16.5 years - They were divorced in 2009, and corollary relief was granted - In December 2013, the wife requested an increase in spousal support based on the increased income of the husband - In addition to the $110,880 that the wife had received as periodic spousal support since December 2009 ($1,848 monthly), an award of retroactive lump sum spousal support of $22,766 had been made - The husband's income was determined to be $116,172; the wife's income was $20,803, excluding child and spousal support - The New Brunswick Court of Queen's Bench, Family Division, increased spousal support to $2,000 monthly, effective December 1, 2013 - "In giving up her pursuit of an education degree to stay home and manage the household and raise the children, [the wife] suffered an economic disadvantage. The challenge for motions judges is often to attempt to determine when, or if, the spousal support paid has compensated for any economic disadvantages. There was no evidence or submission in this case on that point." - The wife had made no efforts to improve her economic self-sufficiency - The $2,000 monthly amount fell below the ranges generated by the Spousal Support Advisory Guidelines: (i) it recognized that the parties' standard of living at the date of separation was strained financially and was supported by an income less than what the husband earned in the past few years; (ii) it continued to recognize the compensatory nature of the wife's entitlement; (iii) it did not address in its entirety what the wife alleged was her present need; however, that was not the objective; (iv) a significant portion of the wife's financial situation was solely attributable to decisions that she had made since 2009 and her significant dissipation of capital - See paragraphs 106 to 129.

Family Law - Topic 4021.5

Divorce - Corollary relief - Maintenance awards - Support guidelines (incl. nondivorce cases) - [See Family Law - Topic 4017 ].

Family Law - Topic 4022

Divorce - Corollary relief - Maintenance awards - To wife - Considerations - [See Family Law - Topic 4017 ].

Family Law - Topic 4045.1

Divorce - Corollary relief - Maintenance - Support guidelines - General - The New Brunswick Court of Queen's Bench, Family Division, considered whether the Spousal Support Advisory Guidelines should be applied in variation proceedings - The Court concluded that "motions judges should consider the Spousal Support Advisory Guidelines when considering requests to vary spousal support but they should not apply them unquestioningly. The jurisprudence is clear that the Guidelines do not usurp the statutory factors and objectives prescribed by the Divorce Act nor a trial judge's discretion." - See paragraphs 76 to 80.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Calculation or attribution of income - In 2013, the respondent received $37,354.28 as taxable dividend income as a result of his shareholdings - The actual amount of the dividend income was $28,555 - The New Brunswick Court of Queen's Bench, Family Division, used the actual amount of the dividend income received by the respondent, for the purpose of determining his child support obligation - Given the mandatory nature of s. 5 of Schedule III of the Federal Child Support Guidelines (adjustments to income), and the respondent's inability to control the dividend income in any fashion, the actual amount of dividend income received, rather than the taxable amount, was the appropriate number to use - The directive in s.16 of the Guidelines (to use the sources of income set out under the heading "Total income" in the T1 General form) was an imperative - The facts of the case did not lend themselves to the exercise of the court's discretion to impute income to the respondent under s. 19(1)(h) of the Guidelines - See paragraphs 32 to 48.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Calculation or attribution of income - The parties disputed the respondent's present annual income for the Child Support Guidelines calculations - His most current information was subject to fluctuations - If the year to date number was annualized, the result was an income of $99,632.04 (inclusive of the actual amount of dividends paid to date in 2014) - That amount was significantly lower than his earnings over the past four years - In his financial statement sworn on April 26, 2014, the respondent deposed that his total annual income would be $144,595 - Neither party suggested that an average of the last three years of income be used - The New Brunswick Court of Queen's Bench, Family Division, held that, given that the 2014 income would not be known until year end, the best approach was to use the Line 150 income for 2013, and add to it the actual dividend income received in 2014 - The end result was an income of $116,172 - See paragraphs 50 to 55.

Droit de la famille - Cote 3997

Divorce - Mesures accessoires - Indépendance économique - [Voir Family Law - Topic 3997 ].

Droit de la famille - Cote 4001.1

Divorce - Mesures accessoires - Ordonnances alimentaires - Ordonnances rétroactives - [Voir Family Law - Topic 4001.1 ].

Droit de la famille - Cote 4017

Divorce - Mesures accessoires - Ordonnances alimentaires - Modification d'une pension alimentaire ou d'une somme globale - [Voir Family Law - Topic 4017 ].

Droit de la famille - Cote 4021.5

Divorce - Mesures accessoires - Ordonnances alimentaires - Lignes directrices sur les pensions alimentaires (y compris les cas hors-divorce) - [Voir Family Law - Topic 4021.5 ].

Droit de la famille - Cote 4022

Divorce - Mesures accessoires - Ordonnances alimentaires - Ordonnance en faveur de l'épouse - Facteurs considérés - [Voir Family Law - Topic 4022 ].

Droit de la famille - Cote 4045.1

Divorce - Mesures accessoires - Ordonnances alimentaires - Lignes directrices sur les pensions alimentaires pour enfants (y compris les cas hors-divorce) - Généralités - [Voir Family Law - Topic 4045.1 ].

Droit de la famille - Cote 4045.5

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

Préclusion - Cote 386

Préclusion résultant de la chose jugée - Exception de la chose jugée opposée aux procédures ultérieures - Questions tranchées dans des procédures antérieures (y compris la validité des lois) - [Voir Estoppel - Topic 386 ].

Préclusion - Cote 394

Préclusion par chose jugée - Exception de la chose jugée opposée aux procédures ultérieures - En matière familiale - [Voir Estoppel - Topic 394 ].

Tribunaux - Cote 2284

Compétence - Empêchements - Chose jugée - [Voir Courts - Topic 2284 ].

Cases Noticed:

Brown v. Brown (2014), 354 B.C.A.C. 120; 605 W.A.C. 120; 2014 CarswellBC 1020; 2014 BCCA 152, refd to. [paras. 19, 42].

Purdue v. Purdue (2009), 351 N.B.R.(2d) 215; 904 A.P.R. 215; 2009 NBQB 303, reversed in part, 2011 CarswellNB 837 (C.A.), refd to. [para. 23].

Desrosiers v. Banque Nationale du Canada (1998), 201 N.B.R.(2d) 103; 514 A.P.R. 103; 1998 CarswellNB 188 (C.A.), refd to. [para. 27].

Fenerty v. Halifax (City) (1920), 50 D.L.R. 435 (N.S.S.C.), refd to. [para. 28].

Dugas (Bankrupt), Re (2012), 395 N.B.R.(2d) 265; 1023 A.P.R. 265; 2012 CarswellNB 586; 2012 NBCA 85, refd to. [para. 28].

Hoque v. Montreal Trust Co. et al. (1997), 162 N.S.R.(2d) 321; 485 A.P.R. 321; 1007 CarswellNS 427 (C.A.), refd to. [para. 29].

Henderson v. Casson, 2014 CarswellOnt 1259; 2014 ONSC 720, refd to. [para. 38].

Dand v. Dand (2014), 441 Sask.R. 251; 2014 SKQB 101; 2014 CarswellSask 210 (Fam. Div.), refd to. [para. 38].

Dand v. Ady - see/voir Dand v. Dand.

Vincent v. Vincent (2012), 321 B.C.A.C. 219; 547 W.A.C. 219; 2012 CarswellBC 1173; 2012 BCCA 186, refd to. [para. 39].

Lightle v. Kotar (2014), 352 B.C.A.C. 39; 601 W.A.C. 39; 2014 CarswellBC 428; 2014 BCCA 69, refd to. [para. 40].

Kopp v. Kopp (2012), 319 B.C.A.C. 55; 542 W.A.C. 55; 2012 CarswellBC 867; 2012 BCCA 140, refd to. [para. 40].

Mayer v. Mayer, [2013] O.T.C. Uned. 7099; 2012 CarswellOnt 18598; 2013 ONSC 7099, refd to. [para. 40].

D.E. v. L.E. (2014), 426 N.B.R.(2d) 284; 1110 A.P.R. 284; 2014 NBCA 67, refd to. [para. 41].

D.B.S. v. S.R.G. (2006), 351 N.R. 201; 391 A.R. 297; 377 W.A.C. 297; 2006 CarswellAlta 976, refd to. [para. 61].

Ferguson v. Thorne (2007), 316 N.B.R.(2d) 18; 816 A.P.R. 18; 2007 CarswellNB 67; 2007 NBQB 66 (Fam. Div.), refd to. [para. 62].

McNeil v. McNeil (2013), 412 N.B.R.(2d) 303; 1070 A.P.R. 303; 2013 CarswellNB 606; 2013 NBCA 65, refd to. [para. 75].

Flieger v. Adams (2012), 387 N.B.R.(2d) 322; 1001 A.P.R. 322; 2012 CarswellNB 219; 2012 NBCA 39, refd to. [para. 76].

Gray v. Gray (2014), 325 O.A.C. 117; 2014 CarswellOnt 13066; 2014 ONCA 659, refd to. [para. 77].

Allaire v. Lavergne, 2014 CarswellOnt 10320 (Sup. Ct.), refd to. [para. 78].

Beninger v. Beninger (2007), 249 B.C.A.C. 193; 414 W.A.C. 193; 2007 CarswellBC 2984; 2007 BCCA 619, refd to. [para. 78].

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 CarswellBC 240; 2011 SCC 10, refd to. [para. 82].

Hanrahan-Cox v. Cox (2011), 303 N.S.R.(2d) 124; 957 A.P.R. 124; 2011 CarswellNS 303; 2011 NSSC 182, refd to. [para. 83].

Reid v. Gillingham (2014), 419 N.B.R.(2d) 138; 1090 A.P.R. 138; 2014 CarswellNB 177; 2014 NBQB 79 (Fam. Div.), refd to. [para. 85].

Scott v. Jabora-Scott (2011), 368 N.B.R.(2d) 281; 949 A.P.R. 281; 2011 NBCA 7, refd to. [para. 85].

Bracklow v. Bracklow (1999), 236 N.R. 79; 120 B.C.A.C. 211; 196 W.A.C. 211; 1999 CarswellBC 532 (S.C.C.), refd to. [para. 86].

B.P. v. A.T. (2014), 423 N.B.R.(2d) 99; 1103 A.P.R. 99; CarswellNB 382; 2014 NBCA 51, refd to. [para. 101].

Samoilova v. Mahnic, [2014] A.R. Uned. 36; 2014 CarswellAlta 224; 2014 ABCA 65, refd to. [para. 102].

P.M. v. S.M. (2012), 393 Sask.R. 229; 546 W.A.C. 229; 2012 CarswellSask 930; 2012 SKCA 55, refd to. [para. 103].

Statutes Noticed:

Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, sect. 17(4.1) [para. 81].

Divorce Act Regulations (Can.), Federal Child Support Guidelines, SOR/97-175, sect. 16 [para. 34]; sect. 19(1)(h) [para. 36]; Schedule III, sect. 5 [para. 35].

Federal Child Support Guidelines - see Divorce Act Regulations (Can.).

Authors and Works Noticed:

Canada, Department of Justice, Spousal Support Advisory Guidelines (July 2008) - see Rogerson, Carol, and Thompson, Rollie, Spousal Support Advisory Guidelines.

Payne, Julien D., and Payne, Marilyn A., Canadian Family Law (3rd Ed. 2008), p. 299 [para. 84].

Payne, Julien D., and Payne, Marilyn A., Child Support Guidelines in Canada (2012), pp. 131 [para. 38]; 143 [para. 19].

Rogerson, Carol, and Thompson, Rollie, Spousal Support Advisory Guidelines (July 2008), sect. 14.3 [para. 79].

Spencer-Bower and Turner, The Doctrine of Res Judicata (2nd Ed. 1969), pp. 1, 2 [para. 19].

Counsel:

Avocats:

Charles Bird, for the petitioner;

Joseph FitzPatrick, for the respondent.

This motion was heard on June 11, 2014, before Wooder, J., of the New Brunswick Court of Queen's Bench, Family Division, Judicial District of Fredericton, who delivered the following decision, dated December 3, 2014.