Reid v. Gillingham, 2015 NBCA 27

• Judge: Larlee, Quigg and Baird, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: February 11, 2015
• Jurisdiction: New Brunswick
• Citations: 2015 NBCA 27;(2015), 435 N.B.R.(2d) 176 (CA)

Reid v. Gillingham (2015), 435 N.B.R.(2d) 176 (CA);

    435 R.N.-B.(2e) 176; 1134 A.P.R. 176

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: [2015] N.B.R.(2d) TBEd. MY.009

Renvoi temp.: [2015] N.B.R.(2d) TBEd. MY.009

Jacqueline Reid (appellant) v. Paul Gillingham (respondent)

(43-14-CA; 2015 NBCA 27)

Indexed As: Reid v. Gillingham

Répertorié: Reid v. Gillingham

New Brunswick Court of Appeal

Larlee, Quigg and Baird, JJ.A.

April 30, 2015.

Summary:

Résumé:

The Newfoundland and Labrador Supreme Court, Trial Division, in a decision reported as Gillingham v. Gillingham, [2006] Nfld. & P.E.I.R. Uned. 37, awarded the applicant wife $200 per month spousal support for an indefinite duration. The award was provisionally varied to $1,000 per month, subject to confirmation pursuant to s. 19 of the Divorce Act, as the respondent had relocated to New Brunswick and did not appear on the hearing. On the confirmation hearing, the respondent objected to an increase in spousal support, and sought termination of the original order.

The New Brunswick Court of Queen's Bench, Family Division, in a decision reported at (2013), 411 N.B.R.(2d) 382; 1069 A.P.R. 382, transmitted the provisional order back to Newfoundland and Labrador, to address the question: "What is the appropriate standard of living on which spousal support should be based?"

The Newfoundland and Labrador Supreme Court, Trial Division, sent the matter back to New Brunswick for continuation of the confirmation hearing. The issue was whether the applicant was entitled to benefit from the respondent's increase in income post separation.

The New Brunswick Court of Queen's Bench, Family Division, in a decision reported at (2014), 419 N.B.R.(2d) 138; 1090 A.P.R. 138, confirmed the provisional order, with variation. The result was a variation of spousal support from $1,000 per month to $625 per month for the period April 1 to December 31, 2013, and to $313 per month commencing January 1, 2014. The wife appealed on the grounds that: (1) she did not have notice of the confirmation hearing; (2) she should have had an opportunity to be present and give testimony at the hearing; and (3) the evidence given by the respondent was based upon "false information".

The New Brunswick Court of Appeal dismissed the appeal on all grounds.

Family Law - Topic 4047.2

Divorce - Corollary relief - Maintenance - Enforcement - Confirmation of provisional order - The applicant wife commenced proceedings in Newfoundland and Labrador, seeking to increase spousal support - The husband had relocated to New Brunswick - A judge varied support provisionally, under s. 18 of the Divorce Act - Pursuant to s. 19, a confirmation hearing was scheduled in New Brunswick - The applicant appealed the final order on the grounds that she did not have notice of the confirmation hearing - The New Brunswick Court of Appeal held that notice was not a requirement - A review of the jurisprudence "delineates the following: (1) the Act provides that once a provisional order is made notice of the confirmation hearing must be served on the respondent; (2) once that is done, the confirming court 'shall proceed with the hearing, in the absence of the applicant'. Therefore, where hearings are held to confirm provisional orders under the Act, notice is not required to be given to the applicant ... . There was no error on the part of the judge. He was merely following the provisions of the Act." - See paragraphs 28 to 30.

Droit de la famille - Cote 4047.2

Divorce - Mesures accessoires - Ordonnances alimentaires - Exécution - Confirmation de l'ordonnance conditionelle - [Voir Family Law - Topic 4047.2 ].

Cases Noticed:

B.P. v. A.T. (2014), 423 N.B.R.(2d) 99; 1103 A.P.R. 99; 2014 NBCA 51, refd to. [para. 4].

Krisko v. Krisko (2000), 137 O.A.C. 7 (C.A.), refd to. [para. 4].

Peck v. Peck (2000), 187 N.S.R.(2d) 193; 585 A.P.R. 193; 2000 NSCA 114, refd to. [para. 4].

Nykvist v. Nykvist (2004), 190 Man.R.(2d) 194; 335 W.A.C. 194; 2004 MBCA 170, refd to. [para. 4].

A.M.K.H. v. K.A.M. (2003), 259 N.B.R.(2d) 291; 681 A.P.R. 291; 2003 NBCA 33, refd to. [para. 4].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 5].

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. 5].

P.R.H. v. M.E.L. (2009), 343 N.B.R.(2d) 100; 881 A.P.R. 100; 2009 NBCA 18, refd to. [para. 5].

MacDonald v. MacDonald (2011), 372 N.B.R.(2d) 179; 961 A.P.R. 179; 2011 NBCA 25, leave to appeal denied (2011), 427 N.R. 398 (S.C.C.), refd to. [para. 5].

C.A.E. v. M.D. (2011), 368 N.B.R.(2d) 323; 949 A.P.R. 323; 2011 NBCA 17, refd to. [para. 16].

Waterman v. Waterman (2014), 357 N.S.R.(2d) 36; 1127 A.P.R. 36; 2014 NSCA 110, consd. [para. 22].

Albinet v. Albinet (2003), 170 Man.R.(2d) 308; 285 W.A.C. 308; 2003 MBCA 22, dist. [para. 26].

Statutes Noticed:

Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, sect. 19(2), sect. 19(5), sect. 19(6) [para. 19].

Counsel:

Avocats:

Jacqueline Reid, appellant, appeared in person;

Kenneth W. Martin, for the respondent.

This appeal was heard on February 11, 2015, before Larlee, Quigg and Baird, JJ.A., of the New Brunswick Court of Appeal. In reasons written by Quigg, J.A., the Court delivered the following decision, dated April 30, 2015, in both official languages.