Snelgrove v. Butler, (2014) 349 Nfld. & P.E.I.R. 189 (NLTD(F))

Judge:Dunn, J.
Court:Supreme Court of Newfoundland and Labrador, Trial Division
Case Date:May 05, 2014
Jurisdiction:Newfoundland and Labrador
Citations:(2014), 349 Nfld. & P.E.I.R. 189 (NLTD(F))
 
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Snelgrove v. Butler (2014), 349 Nfld. & P.E.I.R. 189 (NLTD(F));

    1085 A.P.R. 189

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Temp. Cite: [2014] Nfld. & P.E.I.R. TBEd. MY.001

Claire Louise Butler (applicant) v. Norman Graham Snelgrove (respondent)

(200702U0996; 2014 NLTD(F) 11)

Indexed As: Snelgrove v. Butler

Newfoundland and Labrador Supreme Court

Trial Division (Family)

Dunn, J.

May 5, 2014.

Summary:

Parents separated. An interim order granted them joint custody of their three young children with the children's primary residence being with the mother with reasonable access to the father. The father was ordered to pay $1,283 per month interim child support. At issue was custody and access and the mother's application to relocate to the United Kingdom with the children.

The Newfoundland and Labrador Supreme Court, Unified Family Court, in a decision reported at 297 Nfld. & P.E.I.R. 146; 918 A.P.R. 146, concluded that joint custody and a sharing of parenting responsibilities was in the children's best interest. The court dismissed the mother's application to relocate. The court granted the parties leave to file a consent parenting arrangement in line with the court's decision. Once the mother had determined whether she would stay or relocate without the children, if the parties could not agree on a suitable parenting arrangement, they were to notify the court and an order would be prepared. The mother relocated to the United Kingdom and the parties were unable to reach a consensual parenting arrangement.

The Newfoundland and Labrador Supreme Court, Unified Family Court, in a decision not reported in this series of reports, granted the father sole custody and primary residence of the three children. The court granted the mother generous access to the children. The order also provided for web cam and telephone access at specified times. Divorce judgment was pronounced and became effective on October 4, 2010. Frequent applications for modifications, enforcement and interpretation of the court's order, resulted in further orders. The mother applied for, inter alia, a division of property, retroactive and prospective child support, and retroactive spousal support. The father applied for, inter alia, a retroactive cessation of the interim spousal support and an adjustment for interim spousal support.

The Newfoundland and Labrador Supreme Court, Trial Division (Family), determined the issues.

Family Law - Topic 627

Husband and wife - Marital property - Matrimonial home - Occupation by one spouse - Claim for occupation rent - The parties divorced - The husband claimed occupational rent for the period that the wife had continued to reside with the parties' children in the matrimonial home - An interim order had required her to vacate the property - The Newfoundland and Labrador Supreme Court, Trial Division (Family), stated that "Whether or not occupation rent is ordered is a discretionary matter. In the present case [the wife] was not in receipt of spousal support but was completely dependent upon [the husband] to meet all her financial needs other than amounts being received by her for child support and child tax credits or benefits. In such a circumstance it is not appropriate to make an order for occupation rent without making a coincidental order for spousal support over the same period of time. In this case, I decline to make either order. This was a transitional period for both. Although there may have been some dispute between the two as to whether [the wife] should have had gainful employment over this period of time, the fact is she did not." - See paragraphs 50 to 52.

Family Law - Topic 865

Husband and wife - Marital property - Distribution orders - Matrimonial home - The parties divorced - The husband was granted sole custody and primary residence of the three children - The Newfoundland and Labrador Supreme Court, Trial Division (Family), held that this was an appropriate case for an unequal division of the matrimonial assets - The parties had resided together as husband and wife for less than three years - The history and evolution of their relationship was tumultuous throughout - The matrimonial home was purchased with a significant amount of the husband's pre-marital cash investments - More importantly, he continued to bear a larger part of the burden of providing for the children's needs - It would be grossly unjust to allow for an equal division of the matrimonial home - The court ordered the home's equity to be divided 70% to the husband and 30% to the wife - See paragraphs 8 to 49.

Family Law - Topic 875

Husband and wife - Marital property - Distribution orders - Statutes requiring equal division - Exceptions - Judicial reapportionment - [See Family Law - Topic 865 ].

Family Law - Topic 868.2

Husband and wife - Marital property - Distribution orders - Debts - The parties divorced - The husband asserted that he had an outstanding indebtedness to his parents of $75,000, representing monies advanced to him commencing in 1987 (an estimate of $29,050.02), together with interest thereon - He testified that in 2005, while purchasing a home (the soon-to-be matrimonial home), he decided to make good on the debt to his parents - He transferred $76,000 of his savings into his father's brokerage account - The money was then loaned back to him for purposes of investing in the home - A second mortgage in favour of the husband's parents together with a signed promissory note were put in place to secure their investment - He stated that his plan was to pay down the first mortgage then re-amortize the second and pay back the debt over a period of time - The Newfoundland and Labrador Supreme Court, Trial Division (Family), concluded that the debt was not properly proven and could not be considered part of the marital debt for the following reasons - First, the debt was arrived at based solely on the husband's estimates - There was no documentary basis for the estimates - Second, the husband had not provided an adequate explanation as to why he delayed so long in providing any payment on the debt - Third, the credibility of the husband and his father on their intentions regarding the debt was undermined by the father having received a truck loan from the husband and having repaid it in full approximately 10 years subsequent to the husband's borrowings from the parents - The timing of the husband's payment of the $76,000 coincidental with the acquisition of the soon-to-be matrimonial home was suspect - The husband's testimony when coupled with the parties' tumultuous pre-marital history led to the probable conclusion that he might have been attempting to secure his investment in the home - See paragraphs 8 to 31.

Family Law - Topic 2020

Custody and access - Access - Access awards - Costs of exercising - Liability for - On April 21, 2010, Fry, J., denied the wife's application for custody of the parties' children and denied permission for her to relocate to the United Kingdom - Fry, J., gave the wife the option of remaining in the province with a co-parenting arrangement - The wife relocated to the United Kingdom - The husband was granted sole custody and primary residence of the children - The wife requested that the husband continue to pay half of the children's travel costs to enable her to exercise access in the United Kingdom - The Newfoundland and Labrador Supreme Court, Trial Division (Family), stated that the wife chose to reside away from the children and had to assume responsibility for any costs of access to them - Therefore, the wife was to pay for the cost of access arrangements subsequent to the summer of 2011 - She was also to reimburse the husband for her share of a change fee incurred when the children's travel to the United Kingdom had to be postponed in order to complete the trial - See paragraph 71.

Family Law - Topic 3997

Divorce - Corollary relief - General - Economic self-sufficiency - In December 2007, after two years of marriage, the parties separated - During the marriage the husband provided the primary financial support for the family, the wife having left her employment in Bermuda as a senior piano teacher to come and live in Canada - An interim order dated July 30, 2009, required the husband to pay $800 a month in spousal support - The wife began living with a man who, in March 2011, became her husband - Her current husband had an income of $81,416.54 Cdn - In the fall of 2010, the wife resumed working as a teacher assistant in the United Kingdom - She took steps to return to economic self-sufficiency - A divorce was issued - The wife sought spousal support, including retroactive support for January 1, 2008 to July 31, 2009, in the amount of $800 per month - The husband contested the claims and sought retroactive cessation of support back to November 1, 2010 - The Newfoundland and Labrador Supreme Court, Trial Division (Family), concluded that the wife became financially independent on March 1, 2011(the month of her remarriage), and that spousal support should have ceased as of that date - The court refused to adjust the $800 payment downward where it was tax deductible, and the wife, upon having to vacate the matrimonial home, had been financially dependent on the husband as a result of the marriage and the birth of their children - A short interim transitional payment was in order - Conversely, the husband's net income was such that the wife's retroactive claims were not sustainable - During that period of time, the husband was responsible for the payment of virtually all of the bills, and the support of the wife and children - The court refused the wife's request for a contribution towards retraining - She had failed to prove that she had adequately explored opportunities for employment in her field - Her choice of career and the opportunity for employment pertaining thereto did not arise from, or had not been significantly impacted by, the brief marriage - See paragraphs 72 to 86.

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance awards - Retroactive awards - [See Family Law - Topic 3997 ].

Family Law - Topic 4004

Divorce - Corollary relief - Maintenance awards - Considerations - Income tax - [See Family Law - Topic 3997 ].

Family Law - Topic 4010

Divorce - Corollary relief - Maintenance awards - Periodic payments - [See Family Law - Topic 3997 ].

Family Law - Topic 4021.2

Divorce - Corollary relief - Maintenance awards - Considerations - Leaving labour market for family responsibilities - [See Family Law - Topic 3997 ].

Family Law - Topic 4022.1

Divorce - Corollary relief - Maintenance awards - To spouse - Extent of obligation - [See Family Law - Topic 3997 ].

Family Law - Topic 4025

Divorce - Corollary relief - Maintenance awards - Effect of income of claimant's spouse - [See Family Law - Topic 3997 ].

Family Law - Topic 4045.4

Divorce - Corollary relief - Maintenance - Child support guidelines (incl. nondivorce cases) - Special or extraordinary expenses - The parties divorced - The husband was granted sole custody and primary residence of the parties' three children - The husband sought contribution for daycare costs and enrolment in swimming, gymnastics and skating - The Newfoundland and Labrador Supreme Court, Trial Division (Family), stated that it was satisfied that child care expenses represented an expense which was intended to be covered by s. 7 of the Federal Child Support Guidelines and the wife was to contribute to that expense on a prorated basis - However, the wife was not consulted on the children's enrolment in swimming, gymnastics and skating - Because of the wife's modest income, the court declined to make a s. 7 order respecting those activities - See paragraphs 68 to 70.

Cases Noticed:

C.O. v. O.N.C. (2007), 264 Nfld. & P.E.I.R. 24; 801 A.P.R. 24; 2007 NLCA 11, refd to. [para. 34].

Fotheringham v. Fotheringham (1999), 181 Nfld. & P.E.I.R. 55; 550 A.P.R. 55 (Nfld. C.A.), refd to. [para. 34].

Franey v. Franey (1997), 148 Nfld. & P.E.I.R. 181; 464 A.P.R. 181 (Nfld. C.A.), refd to. [para. 34].

Clouston v. Clouston (1986), 60 Nfld. & P.E.I.R. 294; 181 A.P.R. 294 (Nfld. C.A.), refd to. [para. 34].

Wade v. Wade (1983), 44 Nfld. & P.E.I.R. 19; 130 A.P.R. 19 (Nfld. C.A.), refd to. [para. 35].

Salter v. Salter (2002), 216 Nfld. & P.E.I.R. 263; 647 A.P.R. 263 (N.L.U.F.C.), refd to. [para. 35].

Kennedy v. Kennedy (1990), 88 Nfld. & P.E.I.R. 326; 274 A.P.R. 326 (Nfld. U.F.C.), refd to. [para. 36].

Hiscott v. Hall (2013), 340 Nfld. & P.E.I.R. 245; 1057 A.P.R. 245; 2013 NLTD(F) 28, refd to. [para. 37].

Fitzgerald v. Fitzgerald (1990), 84 Nfld. & P.E.I.R. 56; 262 A.P.R. 56 (Nfld. T.D.), refd to. [para. 39].

Penney v. Penney (1988), 71 Nfld. & P.E.I.R. 201; 220 A.P.R. 201 (Nfld. T.D.), refd to. [para. 40].

Krone v. Krone (2011), 305 Nfld. & P.E.I.R. 96; 948 A.P.R. 96; 2011 NLTD(F) 7, refd to. [para. 41].

Murphy v. Murphy (2005), 250 Nfld. & P.E.I.R. 170; 746 A.P.R. 170; 2005 NLUFC 29, refd to. [para. 51].

Newhook v. Newhook (2002), 222 Nfld. & P.E.I.R. 181; 663 A.P.R. 181; 119 A.C.W.S.(3d) 455 (N.L.U.F.C.), dist. [para. 56].

D.B.S. v. S.R.G., [2006] 2 S.C.R. 231; 351 N.R. 201; 391 A.R. 297; 377 W.A.C. 297; 2006 SCC 37, refd to. [para. 62].

Collins v. Collins (2008), 281 Nfld. & P.E.I.R. 1; 863 A.P.R. 1; 2008 NLUFC 31, refd to. [para. 76].

Moge v. Moge, [1992] 3 S.C.R. 813; 145 N.R. 1; 81 Man.R.(2d) 161; 30 W.A.C. 161, refd to. [para. 76].

Bracklow v. Bracklow, [1999] 1 S.C.R. 420; 236 N.R. 79; 120 B.C.A.C. 211; 196 W.A.C. 211, refd to. [para. 76].

Counsel:

Clair Butler, self-represented;

Stephanie Newell, Q.C., for Norman Snelgrove.

This application was heard at St. John's, N.L., by Dunn, J., of the Newfoundland and Labrador Supreme Court, Trial Division (Family), who delivered the following decision on May 5, 2014.

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