Robar v. Robar, (2010) 353 N.B.R.(2d) 262 (FD)

• Jurisdiction: New Brunswick
• Judge: Baird, J.
• Neutral Citation: 2009 NBQB 8
• Citation: (2010), 353 N.B.R.(2d) 262 (FD),2009 NBQB 8,353 NBR(2d) 262,(2010), 353 NBR(2d) 262 (FD),353 N.B.R.(2d) 262
• Date: 23 December 2009
• Court: Court of Queen's Bench of New Brunswick (Canada)

Robar v. Robar (2010), 353 N.B.R.(2d) 262 (FD);

    353 R.N.-B.(2e) 262; 910 A.P.R. 262

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Temp. Cite: [2010] N.B.R.(2d) TBEd. JA.025

Renvoi temp.: [2010] N.B.R.(2d) TBEd. JA.025

Tasha Marie Robar (applicant) v. Andrew Paul Robar (respondent)

(1301-58862; FDF-256-08; 2009 NBQB 8; 2009 NBBR 8)

Indexed As: Robar v. Robar

Répertorié: Robar v. Robar

New Brunswick Court of Queen's Bench

Family Division

Judicial District of Fredericton

Baird, J.

January 12, 2010.

Summary:

Résumé:

A couple married in 1993 and separated in 2008. Both sought a divorce judgment. Spousal support and child support were also in issue.

The New Brunswick Court of Queen's Bench, Family Division, found that the wife was not ordinarily resident in the Province when she signed her petition and granted the parties a divorce on the husband's counterpetition. The court determined the remaining issues accordingly.

Family Law - Topic 966

Husband and wife - Actions between husband and wife - Practice - Costs - Separated spouses both sought a divorce - Spousal and child support were also in issue - The New Brunswick Court of Queen's Bench, Family Division, granted a divorce and determined the remaining issues - The trial lasted one day - The wife was represented by counsel at trial - The husband, although he had counsel throughout the proceedings, represented himself at trial - The court referred to Rademaker v. Rademaker (2002 NBCA) which cautioned judges against making cost awards in family matters - The court was also mindful of Tibbets v. Newman (2005 NBCA), which expressed reservation over granting costs to self-represented litigants - The court considered that both sides had incurred legal expenses; the issues were not complex; there were no witnesses other than the parties; and neither party unnecessarily prolonged the proceedings - The court awarded the wife $1,500 costs - The award acknowledged that she had successfully obtained an interim court order and was partially successful at trial - It also acknowledged the fact that the parties reached agreement on the marital property issues - See paragraphs 96 to 106.

Family Law - Topic 3542

Divorce - Jurisdiction - Domicile, etc. - Residence - "Ordinarily resident" - The New Brunswick Court of Queen's Bench, Family Division, stated that s. 3 of the Divorce Act required that the ordinary residence of either spouse must be for one year in the Province where the proceedings were commenced - It was the "sole basis for jurisdiction for divorce." - It was settled law that a person was ordinarily resident in the place where the person "regularly, normally or customarily" lived - These statutory requirements were substantive, and failure to establish residency was fatal to the proceeding - See paragraphs 12 to 14.

Family Law - Topic 3542

Divorce - Jurisdiction - Domicile, etc. - Residence - "Ordinarily resident" - A couple married in 1993 and separated in 2008 - Both sought a divorce judgment - The wife filed her petition on May 16, 2008 - An answer and counterpetition was filed by the husband by documents dated December 1, 2009 - The New Brunswick Court of Queen's Bench, Family Division, found that when the wife filed her petition she had not permanently resided in the Province of New Brunswick for at least one year - Her petition failed as the court lacked jurisdiction on that basis - However, the husband was ordinarily resident in the Province when he signed the counterpetition and the court had jurisdiction to grant a divorce to the husband on his counterpetition - Clearly, both parties had accepted the court's jurisdiction; both parties wanted their divorce judgment - To do otherwise would create further unnecessary expense and delay for the parties, and would be unreasonable - See paragraphs 1 to 19.

Family Law - Topic 3542

Divorce - Jurisdiction - Domicile, etc. - Residence - "Ordinarily resident" - A couple married in 1993 and separated in 2008 - Both sought a divorce judgment - The wife filed her petition on May 16, 2008 - An answer and counterpetition was filed by the husband by documents dated December 1, 2009 - The New Brunswick Court of Queen's Bench, Family Division, held that the wife's petition failed as she had not permanently resided in the Province of New Brunswick for at least one year when she signed her petition and the court lacked jurisdiction on that basis - However, the husband was ordinarily resident in the Province when he signed the counterpetition and the court had jurisdiction to grant a divorce to the husband on his counterpetition - The basis then for the corollary relief order was the counterpetition, as the wife did not file an answer to the counterpetition - The jurisdictional issue of residency was a substantive issue and not just a procedural irregularity - Therefore, there was no claim before the court for future spousal support - See paragraphs 22 to 28.

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance and awards - Retroactive awards - A couple married in 1993 and separated in May 2008 - At issue was the wife's entitlement to and the quantum of retroactive spousal support for May 2008 to November 2008, the date of an interim order - The New Brunswick Court of Queen's Bench, Family Division, found entitlement - This was a long term traditional marriage, and the wife, due to her domestic and child rearing responsibilities, enabled her husband to advance in his career - The wife was unable to work in any long term meaningful capacity and suffered economic disadvantage as a result - The wife's income at the time she filed her petition was $0 and the husband's was approximately $74,000 - The husband voluntarily paid $1,500 monthly spousal support - At that time, his child support obligation should have been $1,033 monthly - The wife maintained the home and cared for the children following separation - The funds she received from the husband on a voluntary basis were applied to the child support obligation that the husband had at the time, and maintenance of the marital home, an asset which was eventually sold with the equity equally shared between the parties - The mortgage payment alone was $1,089.33 monthly - The wife had a monthly shortfall - Like the motion judge on the interim order, the court assessed an additional $600 monthly in spousal support for the period in issue, discounted as the husband would not receive a tax advantage because it was lump sum support - See paragraphs 68 to 84.

Family Law - Topic 4021.1

Divorce - Corollary relief - Maintenance and awards - Awards - Considerations - Financial consequences of child care and household responsibilities - [See Family Law - Topic 4001.1 ].

Family Law - Topic 4021.2

Divorce - Corollary relief - Maintenance and awards - Awards - Considerations - Leaving labour market for family responsibilities - [See Family Law - Topic 4001.1 ].

Family Law - Topic 4139

Divorce - Practice - General - Counterpetition - [See second and third Family Law - Topic 3542 ].

Family Law - Topic 4175

Divorce - Practice - Costs - General (incl. considerations) - [See Family Law - Topic 966 ].

Practice - Topic 7030

Costs - Party and party costs - Entitlement to party and party costs - Where success or fault divided - [See Family Law - Topic 966 ].

Practice - Topic 7050

Costs - Party and party costs - Entitlement to party and party costs - Successful party not represented by counsel - [See Family Law - Topic 966 ].

Droit de la famille - Cote 966

Mari et femme - Poursuites entre mari et femme - Procédure - Dépens - [Voir Family Law - Topic 966 ].

Droit de la famille - Cote 3542

Divorce - Juridiction - Domicile, etc. - Résidence - "Ordinairement résident" - [Voir Family Law - Topic 3542 ].

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 4021.1

Divorce - Mesures accessoires - Ordonnances alimentaires - Considérations - Conséquences financières du soin des enfants et des responsabilités domestiques - [Voir Family Law - Topic 4021.1 ].

Droit de la famille - Cote 4021.2

Divorce - Mesures accessoires - Ordonnances alimentaires - Facteurs considérés - Quitter le marché du travail pour se consacrer à sa famille - [Voir Family Law - Topic 4021.2 ].

Droit de la famille - Cote 4139

Divorce - Procédure - Généralités - Demande reconventionnelle - [Voir Family Law - Topic 4139 ].

Droit de la famille - Cote 4175

Divorce - Procédure - Dépens - Généralités (y compris facteurs considérés) - [Voir Family Law - Topic 4175 ].

Procédure - Cote 7030

Dépens - Dépens entre parties - Droit aux dépens entre parties - Faute ou succès partagés - [Voir Practice - Topic 7030 ].

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:

Quigley v. Willmore, [2008] N.S.R.(2d) Uned. 26; 2008 CarswellNS 169; 2008 NSCA 30, additional reasons (2008), 264 N.S.R.(2d) 293; 847 A.P.R. 293; 2008 NSCA 33, refd to. [para. 13].

Lietz v. Lietz (1990), 111 N.B.R.(2d) 128; 277 A.P.R. 128; 30 R.F.L.(3d) 293 (Fam. Div.), refd to. [para. 13].

Druet v. Druet (2002), 253 N.B.R.(2d) 317; 660 A.P.R. 317 (C.A.), dist. [para. 23].

Rademaker v. Rademaker (2002), 251 N.B.R.(2d) 177; 654 A.P.R. 177; 2002 CarswellNB 217; 2002 NBCA 47, consd. [para. 97].

Newman v. Tibbetts (2005), 283 N.B.R.(2d) 63; 740 A.P.R. 63; 2005 NBCA 37, consd. [para. 101].

Counsel:

Avocats:

Charles Kingston, for the petitioner;

Andrew Paul Robar, per se.

This application was heard on December 23, 2009, by Baird, J., of the New Brunswick Court of Queen's Bench, Family Division, Judicial District of Fredericton, who delivered the following decision on January 12, 2010.