Vaughan v. Vaughan, (2015) 436 N.B.R.(2d) 201 (FD)

• Judge: d'Entremont, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: April 01, 2015
• Jurisdiction: New Brunswick
• Citations: (2015), 436 N.B.R.(2d) 201 (FD);2015 NBQB 110

Vaughan v. Vaughan (2015), 436 N.B.R.(2d) 201 (FD);

    436 R.N.-B.(2e) 201; 1139 A.P.R. 201

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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. JN.034

Renvoi temp.: [2015] N.B.R.(2d) TBEd. JN.034

Susan Amanda Campbell (formerly Vaughan) (petitioner) v. James Edward Vaughan (respondent)

(FDM-649-10; 2015 NBQB 110; 2015 NBBR 110)

Indexed As: Vaughan v. Vaughan

Répertorié: Vaughan v. Vaughan

New Brunswick Court of Queen's Bench

Family Division

Judicial District of Moncton

d'Entremont, J.

May 22, 2015.

Summary:

Résumé:

The parties separated in 2010 after 38 years of marriage. They were presently in their early 60s. In March 2011, the husband was ordered to pay interim spousal support of $6,601/month. The husband wished to retire on December 31, 2012. On December 19, 2012, a trial judge ordered the husband to pay spousal support of $6,500 until he retired and $1,300/month after he retired (see [2012] N.B.R.(2d) Uned. 138). The trial judge imputed post-retirement income to both parties. The husband appealed, arguing that the trial judge erred in law by (1) imputing post-retirement income to him without a finding of fact that his anticipated retirement was unreasonable; (2) including his veterans disability payments as income in the computation of spousal support; (3) including pension income in the calculation of spousal support when the pension had been included in the equalization of marital property; and (4) including the pension income and the income generated from the marital property asset division in his calculation of the amount of life insurance required post-retirement.

The New Brunswick Court of Appeal, in a decision reported at (2014), 415 N.B.R.(2d) 286; 1076 A.P.R. 286, held that the trial judge erred in law in fixing a post-retirement spousal support award when the husband had not yet retired and there was no evidence before him to support the award. The trial judge also erred by imputing income to the parties. The court set aside the amount determined for post-retirement spousal support and confirmed the amount of $6,500 to be paid monthly until such time as the husband retired. At that time, either party could request a review of spousal support without the requirement of proving a change in circumstances. The court also set aside the portion of the decision where the trial judge imputed income to the parties. The court upheld the trial judge's decision on the second and third grounds of appeal. Since the court had set aside the portion of the order respecting the amount of spousal support payable if and when the husband retired, it was not necessary to address the fourth ground of appeal. As of March 2015, the husband had still not retired. The wife applied to vary spousal support and requested that the variation be made retroactive to January 2012. She also sought to have a health and dental insurance plan for her benefit be reinstated.

The New Brunswick Court of Queen's Bench, Family Division, dismissed the application.

Family Law - Topic 2210

Maintenance of spouses and children - General principles - Calculation or attribution of income - [See Family Law - Topic 4021.9 ].

Family Law - Topic 2211

Maintenance of spouses and children - General principles - Retrospective or retroactive orders - [See first Family Law - Topic 4001.1 and Family Law - Topic 4004 ].

Family Law - Topic 2234

Maintenance of spouses and children - Incidental matters - Insurance policies - Naming spouse or children beneficiaries - [See Family Law - Topic 4094 ].

Family Law - Topic 2326

Maintenance of spouses and children - Maintenance of spouses - Effect of income or potential income of claimant - [See Family Law - Topic 4021.9 ].

Family Law - Topic 2329

Maintenance of spouses and children - Maintenance of spouses - Considerations (incl. pensions) - [See Family Law - Topic 4021.9 ].

Family Law - Topic 2381

Maintenance of spouses and children - Variation - General - [See first Family Law - Topic 4021.5 ].

Family Law - Topic 2384

Maintenance of spouses and children - Variation of - Grounds (incl. changed circumstances) - The parties separated in 2010 after a 38 year marriage - A 2012 final order required the husband to pay spousal support of $6,500/month based on 2011 employment income of $157,868 - The husband's total income increased to $166,800 in 2012, $193,344 in 2013, and $184,489 in 2014 - The wife applied to vary the spousal support order - The New Brunswick Court of Queen's Bench, Family Division, held that the husband's significant increase in employment income in 2013 constituted a material change in circumstances for the purposes of s. 17(4.1) of the Divorce Act - See paragraphs 32 to 38.

Family Law - Topic 2384

Maintenance of spouses and children - Variation of - Grounds (incl. changed circumstances) - [See first Family Law - Topic 4017 ].

Family Law - Topic 3997

Divorce - Corollary relief - General - Economic self-sufficiency - [See Family Law - Topic 4021.9 ].

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance awards - Retroactive awards - The parties separated in 2010 - A December 2012 final order required the husband to pay spousal support based on his 2011 income - In January 2015, the wife applied to vary spousal support retroactive to January 2012 based on increases to the husband's income - The husband submitted that a variation, if any, should begin on the date the application was heard (March 2015) - The New Brunswick Court of Queen's Bench, Family Division, held that January 2015 would be the date from which a retroactive order would be effective in the event that spousal support was varied - See paragraphs 65 to 78.

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance awards - Retroactive awards - [See Family Law - Topic 4004 ].

Family Law - Topic 4004

Divorce - Corollary relief - Maintenance awards - Considerations - Income tax - The New Brunswick Court of Queen's Bench, Family Division, stated "[I]f a retroactive periodic spousal support order is made, it is not necessary to adjust such award for income tax consequences." - See paragraphs 84 to 88.

Family Law - Topic 4017

Divorce - Corollary relief - Maintenance awards - Variation of periodic payments or lump sum award - The parties separated in 2010 after a 38 year marriage - A 2012 final order required the husband to pay spousal support of $6,500/month based on 2011 employment income of $157,868 - The husband's income increased to $166,800 in 2012, $193,344 in 2013, and $184,489 in 2014 - The wife applied to vary the spousal support order - The New Brunswick Court of Queen's Bench, Family Division, dismissed the application - There had been a material change in circumstances and the wife was entitled to benefit from a post-separation increase in the husband's income - However, when the Spousal Support Advisory Guidelines were applied to the parties' current financial circumstances, the proposed mid-range of support was $6,598 - This was very close to the initial award - A variation was not warranted - See paragraphs 81 to 83.

Family Law - Topic 4017

Divorce - Corollary relief - Maintenance awards - Variation of periodic payments or lump sum award - [See first Family Law - Topic 2384 and first Family Law - Topic 4021.5 ].

Family Law - Topic 4021.5

Divorce - Corollary relief - Maintenance awards - Support guidelines - The New Brunswick Court of Queen's Bench, Family Division, held that the Spousal Support Advisory Guidelines were applicable in the context of an application to vary spousal support - See paragraphs 79 and 80.

Family Law - Topic 4021.5

Divorce - Corollary relief - Maintenance awards - Support guidelines - [See first Family Law - Topic 4017 ].

Family Law - Topic 4021.9

Divorce - Corollary relief - Maintenance awards - Considerations - Pension income - The parties separated in 2010 after a 38 year marriage - The husband retired from the military in 1996 and then began working in the private sector - A 2012 order awarded the wife spousal support of $6,500/month and $299,728 from a division of the husband's military pension - She also received RRSP's of $210,000 as part of the equalization of marital assets - In a variation application by the wife, the husband argued that his military pension should not be included as income for the purpose of calculating spousal support because it had already been divided and would amount to "double-dipping" - He also argued that some income should be attributed to the wife because she could have used the money she received from the division of property to generate revenue - The New Brunswick Court of Queen's Bench, Family Division, agreed - Given that the husband retired from the military before the separation, and there was no pension accumulated following separation, his monthly pension benefits would not be used to determine his income for support purposes as this would amount to double recovery - The wife had an obligation to attempt to generate economic self-sufficiency by using her property to generate income - The court imputed income of $20,000 from the assets held by the wife - See paragraphs 55 to 64.

Family Law - Topic 4022

Divorce - Corollary relief - Maintenance awards - To spouse - Considerations - The parties separated in 2010 after a 38 year marriage - The husband was in the military until 1996 and then began working in the private sector - The wife had been responsible for the parties' children and maintaining the home - A 2012 final order required the husband to pay spousal support of $6,500/month based on 2011 employment income of $157,868 - The husband's income increased to $166,800 in 2012, $193,344 in 2013, and $184,489 in 2014 - The wife applied to vary spousal support, asserting that she was entitled to benefit from the husband's post-separation increase in income - The New Brunswick Court of Queen's Bench, Family Division, agreed - Given the parties' numerous relocations as a result of the husband's career, it would have been difficult for the wife to follow any career plans of her own - Her claim for spousal support was on a compensatory basis - The husband's post-separation advancement occurred with the same employer at the same place of employment that he had been with during the parties' relationship, and it occurred less than one year after separation - In these circumstances, the wife was entitled to benefit from the post-separation increase in income - See paragraphs 39 to 54.

Family Law - Topic 4027

Divorce - Corollary relief - Maintenance awards - Effect of income or potential income of claimant - [See Family Law - Topic 4021.9 ].

Family Law - Topic 4034

Divorce - Corollary relief - Maintenance awards - Effect of division of matrimonial property - [See Family Law - Topic 4021.9 ].

Family Law - Topic 4094

Divorce - Corollary relief - Incidental matters - Insurance policies, pension plans or health plans naming spouse or children beneficiaries - The parties separated in 2010 - The husband retired from the military in 1996 and then began working in the private sector - A 2012 final order provided that the wife was entitled to spousal support of $6,500/month and $299,728 from a division of the husband's military pension - She also received RRSP's of $210,000 - The wife applied for an order requiring the husband to reinstate health coverage for her benefit with the military's insurer (Sun Life) - The New Brunswick Court of Queen's Bench, Family Division, dismissed the application - Sun Life was clear that the wife could not benefit from its policy once the parties were divorced - The wife benefited from health coverage held by the husband's present employer - Given this and the wife's financial situation, it would be unfair to ask the husband to request coverage from a second insurance company - Nor would the court order the husband to make additional payments to reimburse medical and dental expenses incurred by the wife - See paragraphs 93 to 97.

Droit de la famille - Cote 2210

Entretien des conjoints et des enfants - Principes généraux - Calcul ou attribution du revenu - [Voir Family Law - Topic 2210 ].

Droit de la famille - Cote 2211

Entretien des conjoints et des enfants - Principes généraux - Ordonnances rétrospectives ou rétroactives - [Voir Family Law - Topic 2211 ].

Droit de la famille - Cote 2234

Entretien des conjoints et des enfants - Affaires incidentes - Polices d'assurance - Désignant l'épouse ou les enfants bénéficiaires - [Voir Family Law - Topic 2234 ].

Droit de la famille - Cote 2326

Entretien des conjoints et des enfants - Entretien des épouses - Effet du revenu actuel ou éventuel du requérant - [Voir Family Law - Topic 2326 ].

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 2381

Entretien des conjoints et des enfants - Modification de l'ordonnance d'entretien - Généralités - [Voir Family Law - Topic 2381 ].

Droit de la famille - Cote 2384

Entretien des conjoints et des enfants - Modification de l'ordonnance d'entretien - Motifs (y compris changement de circonstances) - [Voir Family Law - Topic 2384 ].

Droit de la famille - Cote 3997

Divorce - Mesures accessoires - Généralités - Indépendance financière - [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 4004

Divorce - Mesures accessoires - Ordonnances alimentaires - Effet d'une conséquence fiscale - [Voir Family Law - Topic 4004 ].

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 - [Voir Family Law - Topic 4021.5 ].

Droit de la famille - Cote 4021.9

Divorce - Mesures accessoires - Ordonnances alimentaires - Considérations - Revenu de pension - [Voir Family Law - Topic 4021.9 ].

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 4027

Divorce - Mesures accessoires - Ordonnances alimentaires - Effet du revenu réel ou éventuel du demandeur - [Voir Family Law - Topic 4027 ].

Droit de la famille - Cote 4034

Divorce - Mesures accessoires - Ordonnances alimentaires - Ordonnances - Effet de la répartition des biens matrimoniaux - [Voir Family Law - Topic 4034 ].

Droit de la famille - Cote 4094

Divorce - Mesures accessoires - Affaires incidentes - Polices d'assurance ou régimes de retraite et de santé désignant l'épouse ou les enfants bénéficiaires - [Voir Family Law - Topic 4094 ].

Cases Noticed:

L.M.P. v. L.S. (2011), 424 N.R. 341; 2011 SCC 64, refd to. [para. 37].

Reid v. Gillingham (2014), 419 N.B.R.(2d) 138; 1090 A.P.R. 138; 2014 NBQB 79 (Fam. Div.), refd to. [para. 41].

Purdue v. Purdue (2014), 431 N.B.R.(2d) 23; 1124 A.P.R. 23; 2014 NBQB 262, refd to. [para. 41].

Thompson v. Thompson, [2013] O.T.C. Uned. 5500; 2013 ONSC 5500, appld. [para. 41].

Boston v. Boston, [2001] 2 S.C.R. 413; 271 N.R. 248; 149 O.A.C. 50; 2001 SCC 43, refd to. [para. 58].

Pettigrew v. Pettigrew, [2005] N.S.R.(2d) Uned. 162; 2005 NSSC 219, affd. (2006), 246 N.S.R.(2d) 298; 780 A.P.R. 298; 2006 NSCA 98, refd to. [paras. 61, 62].

Bremer v. Bremer, [2005] O.A.C. Uned. 86 (C.A.), refd to. [para. 67].

Kerr v. Baranow, [2011] 1 S.C.R. 269; 411 N.R. 200; 300 B.C.A.C. 1; 509 W.A.C. 1; 274 O.A.C. 1; 2011 SCC 10, refd to. [para. 68].

Gray v. Gray (2014), 325 O.A.C. 117; 2014 ONCA 659, refd to. [para. 79].

G.M. v. M.R. (2015), 434 N.B.R.(2d) 277; 1132 A.P.R. 277; 2015 NBQB 79, refd to. [para. 87].

Authors and Works Noticed:

Canada Revenue Agency, Income Tax Folio S1-F3-C3 (March 5, 2015), paras. 3.33 [para. 85]; 3.44, 3.45 [para. 86].

Payne, Julien, and Payne, Marilyn, Canadian Family Law (3rd Ed. 2008), p. 299 [para. 70].

Rogerson, Carol, and Thompson, Rollie, Spousal Support Advisory Guidelines (July 2008), generally [para. 7].

Counsel:

Avocats:

Sheila J. Cameron, Q.C., on behalf of the petitioner;

Kenneth W. Martin, on behalf of the respondent.

This application was heard on March 19 and April 1, 2015, before d'Entremont, J., of the New Brunswick Court of Queen's Bench, Family Division, Judicial District of Moncton, who delivered the following decision on May 22, 2015.