Vaughan v. Vaughan, 2014 NBCA 6

• Judge: Larlee, Robertson and Quigg, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: September 16, 2013
• Jurisdiction: New Brunswick
• Citations: 2014 NBCA 6;(2014), 415 N.B.R.(2d) 286 (CA);415 NBR (2d) 286;[2014] CarswellNB 41

Vaughan v. Vaughan (2014), 415 N.B.R.(2d) 286 (CA);

    415 R.N.-B.(2e) 286; 1076 A.P.R. 286

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: [2014] N.B.R.(2d) TBEd. FE.038

Renvoi temp.: [2014] N.B.R.(2d) TBEd. FE.038

James Vaughan (respondent/appellant) v. Susan Amanda Vaughan (applicant/respondent)

(9-13-CA; 2014 NBCA 6)

Indexed As: Vaughan v. Vaughan

Répertorié: Vaughan v. Vaughan

New Brunswick Court of Appeal

Larlee, Robertson and Quigg, JJ.A.

February 20, 2014.

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. 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 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.

Family Law - Topic 2210

Maintenance of spouses and children - General principles - Calculation or attribution of income - [See Family Law - Topic 4001 and first Family Law - Topic 4021.4 ].

Family Law - Topic 2327

Maintenance of spouses and children - Maintenance of spouses - Time for determination of income of parties - [See Family Law - Topic 4001 ].

Family Law - Topic 2329

Maintenance of spouses and children - Maintenance of spouses - Considerations (incl. pensions) - [See Family Law - Topic 4034 ].

Family Law - Topic 2442

Maintenance of spouses and children - Evidence - Requirement of - [See Family Law - Topic 4001 ].

Family Law - Topic 3997

Divorce - Corollary relief - General - Economic self-sufficiency - [See Family Law - Topic 4001 ].

Family Law - Topic 4001

Divorce - Corollary relief - Maintenance and awards - Jurisdiction of a court to grant maintenance - 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 found that it was reasonable for the husband to retire from his current position, but not reasonable for him to entirely leave the workforce at that time - The judge imputed post-retirement income of $40,000/year to the husband and ordered him to pay spousal support of $1,300/month after he retired - The judge imputed income of $6,000/year to the wife - The New Brunswick Court of Appeal held that the judge erred in law in fixing a post-retirement spousal support award when there was no evidence before him to support the award - The proper time to decide an appropriate amount of spousal support was after the husband's income had changed - It was only then that all of the relevant factors could be put before the decision-maker - The judge also erred in law by imputing post-retirement income to the husband without a finding of fact that his potential retirement was unreasonable - There was also no evidence to support the imputation of income to the wife - She had suffered a substantial economic disadvantage from the marriage and its breakdown - She had been removed from the workforce for far too long to consider that she would ever establish any measure of self-sufficiency - The husband was ordered to pay spousal support of $6,500/month until he actually retired, at which point spousal support could be reviewed to determine the appropriate level of support based on the parties' actual incomes, the wife's need, the husband's ability to pay and the objectives of spousal support as set out in the Divorce Act - See paragraphs 9 to 22.

Family Law - Topic 4009.1

Divorce - Corollary relief - Maintenance and awards - Awards - Effect of retirement of spouse - [See Family Law - Topic 4001 ].

Family Law - Topic 4021.4

Divorce - Corollary relief - Maintenance and awards - Awards - Considerations - Ability to pay (incl. potential to earn income and calculation of income) - The parties separated after 38 years of marriage - In determining the husband's spousal support obligations, the trial judge included as income the disability payments that the husband received from the Canadian Forces due to his service-related injuries - The New Brunswick Court of Appeal dismissed the husband's appeal on this issue - Trial judges should endeavour to determine support payments based on the broad policy objectives contained in the Divorce Act - When fashioning a support order, the court was obligated to consider the "condition, means, needs and other circumstances of each spouse" - This included tax-free disability payments - See paragraphs 23 to 26.

Family Law - Topic 4021.4

Divorce - Corollary relief - Maintenance and awards - Awards - Considerations - Ability to pay (incl. potential to earn income and calculation of income) - [See Family Law - Topic 4001 ].

Family Law - Topic 4021.9

Divorce - Corollary relief - Maintenance and awards - Considerations - Pension income - [See Family Law - Topic 4034 ].

Family Law - Topic 4034

Divorce - Corollary relief - Maintenance and awards - Awards - Effect of division of matrimonial property - The parties separated after 38 years of marriage - The husband was ordered to pay spousal support - He appealed, arguing that the trial judge erred by including pension income in the calculation of spousal support when the pension had been included in the equalization of marital property - The New Brunswick Court of Appeal held that the trial judge did not err in fashioning the spousal support order as he did - This case was one in which an exception to the rule against double dipping applied - The spousal support order was based on need and the wife continued to suffer economic hardship from the breakdown of the marriage - See paragraphs 27 to 29.

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 2327

Entretien des conjoints et des enfants - Entretien des conjoints - Moment de détermination du revenu des parties - [Voir Family Law - Topic 2327 ].

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 2442

Entretien des conjoints et des enfants - Preuve - Nécessité d'une preuve - [Voir Family Law - Topic 2442 ].

Droit de la famille - Cote 3997

Divorce - Mesures accessoires - Généralités - Indépendance financière - [Voir Family Law - Topic 3997 ].

Droit de la famille - Cote 4001

Divorce - Mesures accessoires - Ordonnances alimentaires - Compétence du tribunal - [Voir Family Law - Topic 4001 ].

Droit de la famille - Cote 4009.1

Divorce - Mesures accessoires - Ordonnances alimentaires - Effet de la retraite d'un conjoint - [Voir Family Law - Topic 4009.1 ].

Droit de la famille - Cote 4021.4

Divorce - Mesures accessoires - Ordonnances alimentaires - Facteurs considérés - Capacité de payer - [Voir Family Law - Topic 4021.4 ].

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 4034

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

Cases Noticed:

Messier v. Delage, [1983] 2 S.C.R. 401; 50 N.R. 16, refd to. [paras. 1, 41].

LeBlanc v. LeBlanc (2013), 401 N.B.R.(2d) 334; 1041 A.P.R. 334; 2013 NBCA 22, refd to. [para. 7].

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. 7].

Smith v. Smith (2011), 375 N.B.R.(2d) 208; 969 A.P.R. 208; 2011 NBCA 66, refd to. [para. 7].

Doiron v. Wilcox (2012), 393 N.B.R.(2d) 183; 1017 A.P.R. 183; 2012 NBCA 70, refd to. [para. 7].

C.M.H. v. J.R.H. (2012), 393 N.B.R.(2d) 154; 1017 A.P.R. 154; 2012 NBCA 71, refd to. [para. 7].

MacLean v. MacLean (2004), 274 N.B.R.(2d) 90; 718 A.P.R. 90; 2004 NBCA 75, refd to. [para. 8].

Hickey v. Hickey, [1999] 2 S.C.R. 518; 240 N.R. 312; 138 Man.R.(2d) 40; 202 W.A.C. 40, refd to. [para. 8].

J.E.J. v. S.L.M. (2007), 318 N.B.R.(2d) 119; 821 A.P.R. 119; 2007 NBCA 33, refd to. [para. 8].

Milton v. Milton (2008), 338 N.B.R.(2d) 300; 866 A.P.R. 300; 2008 NBCA 87, refd to. [para. 8].

Scott v. Jabora-Scott (2011), 368 N.B.R.(2d) 281; 949 A.P.R. 281; 2011 NBCA 7, refd to. [para. 8].

Grant v. Grant (2012), 397 N.B.R.(2d) 254; 1028 A.P.R. 254; 2012 NBCA 101, refd to. [para. 8].

McKay v. McKay, [1970] M.J. No. 155 (Q.B.), refd to. [para. 11].

Butler v. Butler (1998), 195 N.B.R.(2d) 156; 499 A.P.R. 156 (C.A.), refd to. [para. 13].

O'Donnell v. O'Donnell, [2002] N.B.R.(2d) Uned. 39; 2002 NBQB 148, refd to. [para. 13].

Clark v. Cooper-Clark, [2002] N.B.R.(2d) (Supp.) No. 3; 2002 NBQB 26, refd to. [para. 13].

Ferguson v. Ferguson (2001), 237 N.B.R.(2d) 330; 612 A.P.R. 330 (Fam. Div.), refd to. [para. 13].

LeMoine v. LeMoine (1997), 185 N.B.R.(2d) 173; 472 A.P.R. 173 (C.A.), refd to. [paras. 13, 33].

Rondeau v. Rondeau (2011), 299 N.S.R.(2d) 244; 947 A.P.R. 244; 2011 NSCA 5, refd to. [paras. 13, 41].

S.F. v. L.S. (2004), 276 N.B.R.(2d) 183; 724 A.P.R. 183; 2004 NBCA 70, refd to. [para. 14].

Flieger v. Adams (2012), 387 N.B.R.(2d) 322; 1001 A.P.R. 322; 2012 NBCA 39, refd to. [para. 15].

Hoar v. Toner (2010), 361 N.B.R.(2d) 94; 931 A.P.R. 94; 2010 NBQB 167 (Fam. Div.), refd to. [paras. 21, 44].

Manuge v. Canada (2012), 411 F.T.R. 76; 2012 FC 499, refd to. [para. 23].

Storey v. Simmons (2013), 559 A.R. 42; 2013 ABQB 168, not folld. [para. 23].

Darlington v. Moore (2013), 330 N.S.R.(2d) 47; 1046 A.P.R. 47; 2013 NSSC 103, folld. [para. 24].

Ste-Marie v. Ste-Marie (2013), 413 N.B.R.(2d) 203; 1072 A.P.R. 203; 2013 NBQB 375, refd to. [para. 26].

Boston v. Boston, [2001] 2 S.C.R. 413; 271 N.R. 248; 149 O.A.C. 50; 2001 SCC 43, refd to. [paras. 27, 35].

Chamberlain v. Chamberlain (2003), 259 N.B.R.(2d) 309; 681 A.P.R. 309; 2003 NBCA 34, refd to. [para. 27].

Brown v. Brown, 2013 NBQB 369, refd to. [para. 40].

LeBlanc v. LeBlanc (1995), 163 N.B.R.(2d) 192; 419 A.P.R. 192 (Fam. Div.), affd. (1995), 167 N.B.R.(2d) 375; 427 A.P.R. 375 (C.A.), refd to. [para. 41].

Vennels v. Vennels et al., [1993] B.C.T.C. Uned. 278 (S.C.), refd to. [para. 45].

Ross v. Ross (1994), 48 B.C.A.C. 151; 78 W.A.C. 151 (C.A.), refd to. [para. 46].

Caverhill v. Caverhill (2013), 401 N.B.R.(2d) 155; 1041 A.P.R. 155; 2013 NBQB 69, refd to. [para. 48].

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. 48].

Ross v. Ross (1995), 168 N.B.R.(2d) 147; 430 A.P.R. 147 (C.A.), refd to. [para. 48].

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. 48].

Francis v. Logan, [2008] B.C.T.C. Uned. 660; 2008 BCSC 1028, refd to. [para. 51].

Bullock v. Bullock, [2004] O.T.C. 227 (Sup. Ct.), refd to. [para. 52].

Scory v. Scory (1999), 180 Sask.R. 152; 205 W.A.C. 152 (C.A.), refd to. [para. 53].

Szczerbaniwicz v. Szczerbaniwicz, [2010] B.C.T.C. Uned. 421; 2010 BCSC 421, refd to. [para. 56].

Gajdzik v. Gajdzik, [2008] B.C.T.C. Uned. A40; 2008 BCSC 160, refd to. [para. 56].

Beaudoin v. MacDonald, [2004] N.B.R.(2d) Uned. 18; 2004 NBQB 56 (Fam. Div.), refd to. [para. 58].

Counsel:

Avocats:

Kenneth W. Martin, for the appellant;

Sheila J. Cameron, Q.C., for the respondent.

This appeal was heard on September 16, 2013, before Larlee, Robertson and Quigg, JJ.A., of the New Brunswick Court of Appeal. The following judgment was rendered in both official languages on February 20, 2014, and included the following opinions:

Quigg, J.A. (Larlee, J.A., concurring) - see paragraphs 1 to 32;

Robertson, J.A., concurring - see paragraphs 33 to 63.