S.L.A. v. B.A.A.,

• Jurisdiction: New Brunswick
• Judge: Morrison, J.
• Neutral Citation: 2013 NBQB 372
• Citation: (2013), 413 N.B.R.(2d) 318 (FD),2013 NBQB 372,413 NBR(2d) 318,(2013), 413 NBR(2d) 318 (FD),413 N.B.R.(2d) 318
• Date: 19 November 2013
• Court: Court of Queen's Bench of New Brunswick (Canada)

S.L.A. v. B.A.A. (2013), 413 N.B.R.(2d) 318 (FD);

    413 R.N.-B.(2e) 318; 1072 A.P.R. 318

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]

.........................

Temp. Cite: [2014] N.B.R.(2d) TBEd. JA.033

Renvoi temp.: [2014] N.B.R.(2d) TBEd. JA.033

S.L.A. (petitioner) v. B.A.A. (respondent)

(FDW/17/07; 2013 NBQB 372; 2013 NBBR 372)

Indexed As: S.L.A. v. B.A.A.

Répertorié: S.L.A. v. B.A.A.

New Brunswick Court of Queen's Bench

Family Division

Judicial District of Woodstock

Morrison, J.

November 19, 2013.

Summary:

Résumé:

The parties married in 1989 and had three children. In 2004, the wife had an affair with another man which resulted in the birth of a child (DEA) in January 2006. The parties separated in November 2006 when the husband learned that he was not DEA's biological father. At issue in these divorce proceedings was (a) custody and access respecting DEA and the parties' 15 year old daughter; (b) child support; (c) division of marital property; (d) liability for a child tax benefit overpayment; (e) division of a business asset (the family farm); (f) spousal support; and (g) costs.

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

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 877

Husband and wife - Marital property - Distribution orders - Business, commercial or non-family assets - The parties married in 1989 - The husband and his two brothers worked on the family farm that was owned by their father - The father died in 1996 and left the farming operation to his sons - The farm was operated as an equal three-way partnership since that time - It grew by a factor of three between 1995 and when the parties separated in 2006 - Many household expenses, such as mortgage payments, vehicles, groceries and children's hockey expenses were paid through the farm business account - In divorce proceedings, the wife argued that the farming operation was a "family asset" as defined in s. 1 of the Marital Property Act - The New Brunswick Court of Queen's Bench, Family Division, found that the farming operation was used principally in the course of business and primarily for an entrepreneurial purpose - The fact that family expenses were paid out of the farm account did not transform it from a business asset into marital property - The primary function of the farm account was operational and entrepreneurial and not a device for tax or estate planning purposes - The funding of certain personal expenses was merely incidental - Further, the farm account was not "absolutely subordinate" to the husband, since his brothers also used it in a similar fashion - The husband's interest in the farming operation was not marital property - See paragraphs 54 to 60.

Family Law - Topic 877

Husband and wife - Marital property - Distribution orders - Business, commercial or non-family assets - The parties married in 1989 - The wife stayed at home with the parties' children and assumed the lion's share of responsibilities for childcare, cleaning, cooking and general household management - The husband worked long hours on the family farm that was owned by his father - The father died in 1996 and left the farming operation to his three sons - The farm was operated as an equal three-way partnership since that time - It grew by a factor of three between 1995 and when the parties separated in 2006 - The wife contributed her labour to the farming operation by participating in haying, baling, driving the tractor and other chores - The wife argued that she was entitled to share in the husband's interest in the farming operation pursuant to s. 8 of the Marital Property Act - The New Brunswick Court of Queen's Bench, Family Division, held that the wife made a significant contribution to the success of the farming business - By taking over primary responsibility for child rearing and household management, the wife enabled the husband to dedicate his time and energy to the farming operation - In addition, she made a direct contribution in labour that was not negligible - The wife was entitled to 25% of the husband's interest in the farming operation - See paragraphs 61 to 75.

Family Law - Topic 883

Husband and wife - Marital property - Considerations in making distribution orders - Contributions of parties (incl. unequal contributions) - [See second Family Law - Topic 877 ].

Family Law - Topic 1994

Custody and access - Access - Considerations in awarding access - Conduct of parents - The parties married in 1989 and had three children - In 2004, the mother began to have an affair with HB which resulted in the birth of a child (DEA) in January 2006 - The parties separated in November 2006 when the father learned that he was not DEA's biological father - The three older children chose to live with the father and became estranged from their mother - HB had access to DEA every second weekend and the father had access on alternating Sundays - In divorce proceedings, the father requested one full weekend per month - The mother resisted expanding the father's access because she feared that the father would alienate DEA from her, and because it would result in the mother having only one weekend per month with DEA - The New Brunswick Court of Queen's Bench, Family Division, found that the father's inability to overcome his hurt and anger had perpetuated the hostile relationship between the three older children and their mother - Enhancing the father's access at this time posed a serious risk that DEA would be alienated as well - Further, it would be unreasonable and not in DEA's best interests to only spend one weekend per month in his mother's care - The father would continue to have access to DEA on alternating Sundays - See paragraphs 19 to 27.

Family Law - Topic 2002

Custody and access - Access - Access to teenagers - The parties divorced after it was disclosed that the mother had been having an affair for the past two years - The parties' children chose to live with the father and became estranged from the mother - The mother sought joint custody of their 15 year old daughter, and liberal and general access - The New Brunswick Court of Queen's Bench, Family Division, held that joint custody was the appropriate regime given the daughter's age - The practical reality was that the daughter would largely determine the timing and extent of access to her mother - Nonetheless, it was in the daughter's best interests that an order respecting access be issued - The mother was to have reasonable access at reasonable times - See paragraphs 17 and 18.

Family Law - Topic 2004

Custody and access - Access - Grounds for refusal, restriction or variation of access - [See Family Law - Topic 1994 ].

Family Law - Topic 2072

Custody and access - Joint custody - When available - [See Family Law - Topic 2002 ].

Family Law - Topic 2203

Maintenance of spouses and children - General principles - Persons obligated to support children (in loco parentis) - [See Family Law - Topic 4045.10 ].

Family Law - Topic 2204

Maintenance of spouses and children - General principles - Parent defined - [See Family Law - Topic 4045.10 ].

Family Law - Topic 2329

Maintenance of spouses and children - Maintenance of spouses - Considerations - [See Family Law - Topic 4021.1 ].

Family Law - Topic 2346.1

Maintenance of spouses and children - Maintenance of children - Concurrent obligations of natural parent and other "parent" - [See Family Law - Topic 4045.10 ].

Family Law - Topic 2482

Maintenance of spouses and children - Awards - Considerations - [See Family Law - Topic 4021.1 ].

Family Law - Topic 4021.1

Divorce - Corollary relief - Maintenance and awards - Awards - Considerations - Financial consequences of child care and household responsibilities - The parties married in 1989 when the wife was 18 years old - The wife's entire married life was spent on the family farm where her primary task was child rearing and housekeeping - The parties separated in 2006 - The wife moved out of the marital home - She was diagnosed with breast cancer in 2009 and underwent treatment for two years - She was now 42 years old and unemployed - She had a grade 12 education and no post-secondary education or training - The husband's annual income was $60,000 and his ongoing child support obligation was $114/month - In divorce proceedings, the wife sought spousal support - The New Brunswick Court of Queen's Bench, Family Division, held that the wife was entitled to spousal support on both a compensatory and non-compensatory basis - A mid-range Guideline amount of $1,500/month was appropriate - The court denied the husband's request to have spousal support reviewed in 3.5 years - It was not reasonable to contemplate that the wife would achieve economic self-sufficiency within the timeframe suggested by the husband - Her cancer treatments undoubtedly hampered her efforts at self-sufficiency and might impair her future efforts - The award would be for an indefinite period - See paragraphs 108 to 113.

Family Law - Topic 4022.1

Divorce - Corollary relief - Maintenance and awards - Awards - To spouse - Extent of obligation - [See Family Law - Topic 4021.1 ].

Family Law - Topic 4045.10

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. non divorce cases) - Persons obligated to support children (in loco parentis) - The parties married in 1989 - In 2004, the mother began to have an affair with HB which resulted in the birth of a child (DEA) in January 2006 - The parties separated in November 2006 when the father learned that he was not DEA's biological father - The mother had sole custody of DEA - HB paid child support for DEA in the amount of $403/month based on an income of $47,845 - The mother sought child support from the father - The father argued that he did not stand in loco parentis to DEA - The New Brunswick Court of Queen's Bench, Family Division, noted that the father had requested liberal access to DEA, and testified that he loved DEA and thought of him as his own child - The father was a parent within the meaning of s. 2 of the Divorce Act and therefore was obligated to pay child support - The father's income ($60,000) was an appropriate approximation of the amount required to equalize the standard of living between the two households - He would be required to "top up" to that level ($517/month) after considering HB's contribution, resulting in a payment of $114/month - See paragraph 28 to 40.

Family Law - Topic 4086

Divorce - Corollary relief - Incidental matters - General - The parties separated in 2006 - They had four children - The two oldest children lived with the father following separation, and the third child began living with the father in 2010 - The Canada Revenue Agency (CRA) required the mother to repay $13,035 in overpayments that she received in connection with child tax benefits and other benefits regarding the children - In divorce proceedings, the mother sought recovery of this amount from the father - She submitted that the father reported her to CRA for claiming the benefits notwithstanding that he had agreed she could claim the benefits for all four children in exchange for dropping her claim to spousal support at the hearing of a motion in 2007 - The New Brunswick Court of Queen's Bench, Family Division, rejected the mother's claim - Apart from her testimony, there was no evidence of such an agreement between the parties - The interim order arising from the 2007 hearing did not reference the agreement or spousal support - Even if there was an agreement, the court would refuse to grant the mother's request on public policy grounds - The mother failed to meet the positive obligation on her to advise CRA if any information in her application for benefits was inaccurate or had changed - She continued to receive benefits at the expense of the taxpayer for children who were not in her care - Even if the father had acquiesced to the arrangement, the mother could not transfer her liability to him - See paragraphs 49 to 52.

Family Law - Topic 4175

Divorce - Practice - Costs - General (incl. considerations) - The parties separated after 17 years of marriage - At issue in their divorce proceedings was custody and access, child and spousal support, and a division of property - The biggest issue was the wife's entitlement to an interest in the husband's farming operation and its valuation for which several experts were called - The trial lasted five days - The parties filed pre-trial briefs and post-trial submissions - The wife was found to be entitled to a 25% interest in the farming operation - She asked that costs be awarded at Scale 5 of Tariff A based on the husband's conduct - She argued that he willfully underpaid his child and spousal support, alienated the children, and denied her contribution to the success of the farming operation - The New Brunswick Court of Queen's Bench, Family Division, rejected the wife's arguments - The husband paid child and spousal support generally in accordance with the interim orders that were issued in the course of the proceedings - Both parties were to blame for the current abysmal relationship between the mother and her children - While the husband diminished the wife's contribution to the farm, the wife also embellished her contribution - There was no reason to deviate from Scale 3 of the Tariff - As the wife had been successful in asserting her claim with respect to the single largest financial issue involved, she was entitled to costs of $14,188 (based on an amount involved of $327,103 which was comprised of $29,915 in retroactive child support, $79,587 in marital property, and $224,294 for the wife's interest in the farming operation) - See paragraphs 114 to 117.

Family Law - Topic 4182

Divorce - Practice - Costs - Lump sum or fixed costs - [See Family Law - Topic 4175 ].

Droit de la famille - Cote 877

Mari et femme - Biens matrimoniaux - Ordonnances de répartition - Actifs commerciaux ou non-familiaux - [Voir Family Law - Topic 877 ].

Droit de la famille - Cote 883

Mari et femme - Biens matrimoniaux - Facteurs considérés lors du prononcé de l'ordonnance de répartition - Apport respectif des parties (y compris un apport inégal) - [Voir Family Law - Topic 883 ].

Droit de la famille - Cote 1994

Garde et accès - Accès - Facteurs considérés lors de l'attribution de l'accès - Conduite des parents - [Voir Family Law - Topic 1994 ].

Droit de la famille - Cote 2002

Garde et accès - Accès - Accès aux adolescents - [Voir Family Law - Topic 2002 ].

Droit de la famille - Cote 2004

Garde et accès - Accès - Motifs de refus, restriction ou modification des droits d'accès - [Voir Family Law - Topic 2004 ].

Droit de la famille - Cote 2072

Garde et accès - Garde conjointe - Conditions d'ouverture - [Voir Family Law - Topic 2072 ].

Droit de la famille - Cote 2203

Entretien des conjoints et des enfants - Principes généraux - Personnes tenues de fournir les aliments des enfants (in loco parentis) - [Voir Family Law - Topic 2203 ].

Droit de la famille - Cote 2204

Entretien des conjoints et des enfants - Principes généraux - Parent, définition - [Voir Family Law - Topic 2204 ].

Droit de la famille - Cote 2329

Entretien des conjoints et des enfants - Entretien des conjoints - Facteurs à considérer (y compris pensions) - [Voir Family Law - Topic 2329 ].

Droit de la famille - Cote 2346.1

Entretien des conjoits et des enfants - Entretien des enfants - Obligations concomitantes d'un parent naturel et d'un beau-parent (y compris répartition) - [Voir Family Law - Topic 2346.1 ].

Droit de la famille - Cote 2482

Entretien des conjoints et des enfants - Prestations - Facteurs considérés - [Voir Family Law - Topic 2482 ].

Droit de la famille - Cote 4021.1

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

Droit de la famille - Cote 4022.1

Divorce - Mesures accessoires - Ordonnances alimentaires - En faveur du conjoint - Étendue de l'obligation - [Voir Family Law - Topic 4022.1 ].

Droit de la famille - Cote 4045.10

Divorce - Mesures accessoires - Ordonnances alimentaires - Lignes directrices sur le pensions alimentaires pour enfants (y compris les cas hors-divorce) - Personnes tenues de fournir les aliments des enfants (in loco parentis) - [Voir Family Law - Topic 4045.10 ].

Droit de la famille - Cote 4086

Divorce - Mesures accessoires - Aspects incidents - Généralités - [Voir Family Law - Topic 4086 ].

Droit de la famille - Cote 4175

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

Droit de la famille - Cote 4182

Divorce - Procédure - Dépens - Somme globale - [Voir Family Law - Topic 4182 ].

Cases Noticed:

Chartier v. Chartier, [1999] 1 S.C.R. 242; 235 N.R. 1; 134 Man.R.(2d) 19; 193 W.A.C. 19, refd to. [para. 29].

C.S. v. M.S. (2009), 349 N.B.R.(2d) 239; 899 A.P.R. 239; 2009 NBCA 66, refd to. [para. 36].

Bolvin v. Smith, 2013 CarswellOnt 11005, refd to. [para. 38].

U.V.H. v. M.W.H. (2008), 254 B.C.A.C. 183; 426 W.A.C. 183; 2008 BCCA 177, refd to. [para. 39].

Milton v. Milton (2008), 338 N.B.R.(2d) 300; 866 A.P.R. 300; 2008 NBCA 87, refd to. [para. 55].

MacElwain v. MacElwain (2006), 294 N.B.R.(2d) 111; 765 A.P.R. 111 (Fam. Div.), refd to. [para. 57].

Khoury v. Khoury (1994), 149 N.B.R.(2d) 1; 381 A.P.R. 1 (Fam. Div.), refd to. [para. 64].

Bergman v. Bergman (1979), 7 R.F.L.(2d) 201, refd to. [para. 65].

Fraser v. Fraser (1983), 47 N.B.R.(2d) 364; 124 A.P.R. 364 (C.A.), refd to. [para. 65].

Hansen v. Hansen (2005), 281 N.B.R.(2d) 68; 736 A.P.R. 68; 2005 NBQB 96, refd to. [para. 74].

Fox v. Fox (1993), 133 N.B.R.(2d) 361; 341 A.P.R. 361 (Fam. Div.), affd. (1994), 153 N.B.R.(2d) 1; 392 A.P.R. 1 (C.A.), refd to. [para. 74].

Young v. Moncton (City) (2002), 248 N.B.R.(2d) 360; 646 A.P.R. 360; 2002 NBCA 26, refd to. [para. 99].

Moge v. Moge (1992), 145 N.R. 1; 81 Man.R.(2d) 161; 30 W.A.C. 161; 1992 CarswellMan 143 (S.C.C.), refd to. [para. 109].

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. 109].

J.D.E.C. v. S.N.C. - see/voir Crosman v. Crosman.

Crosman v. Crosman (2006), 299 N.B.R.(2d) 334; 778 A.P.R. 334; 2006 NBCA 46, refd to. [para. 110].

Leskun v. Leskun, [2006] 1 S.C.R. 920; 349 N.R. 158; 226 B.C.A.C. 1; 373 W.A.C. 1; 2006 SCC 25, refd to. [para. 111].

Quinn-Eusanio v. Eusanio (2003), 255 N.B.R.(2d) 70; 668 A.P.R. 70; 2003 NBCA 1, refd to. [para. 112].

Counsel:

Avocats:

A. Gordon Shepard, for S.L.A.;

Ian S. Purvis, Q.C., for B.A.A.

This matter was heard on August 15-17, 2012, and June 13 and 14, 2013, before Morrison, J., of the New Brunswick Court of Queen's Bench, Family Division, Judicial District of Woodstock, who delivered the following decision on November 19, 2013.