Walsh v. Walsh, (2006) 254 Nfld. & P.E.I.R. 338 (NLFC)

• Judge: Cook, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: February 06, 2006
• Jurisdiction: Newfoundland and Labrador
• Citations: (2006), 254 Nfld. & P.E.I.R. 338 (NLFC)

Walsh v. Walsh (2006), 254 Nfld. & P.E.I.R. 338 (NLFC);

    764 A.P.R. 338

MLB headnote and full text

Temp. Cite: [2006] Nfld. & P.E.I.R. TBEd. FE.009

Augustine (Gus) Walsh (applicant) v. Sharon Walsh (respondent)

(1993026809; 2006 NLUFC 7)

Indexed As: Walsh v. Walsh

Newfoundland and Labrador Supreme Court

Unified Family Court

Cook, J.

February 6, 2006.

Summary:

The parties separated after 21 years of marriage and were now divorced. The father/ husband paid monthly child support of $569 for two children and monthly spousal support of $341. He sought to have child support determined on the basis of shared custody, to determine special and extraordinary expenses, and to terminate spousal support. The mother/wife opposed the application and sought solicitor and client costs.

The Newfoundland and Labrador Supreme Court, Unified Family Court, held that the father did not have custody of the children for 40 per cent of the time and increased monthly child support to $731. The court resolved the issues respecting extraordinary and special expenses and declined to terminate spousal support to the wife. The court awarded the mother/wife party and party costs.

Family Law - Topic 3997

Divorce - Corollary relief - General - Economic self-sufficiency - The parties separated after a 21 year traditional marriage and were now divorced - The wife worked before the marriage - She had a Grade 11 education - She raised four children - She worked outside the home intermittently - The wife obtained a $10,000 lump sum payment from the husband which helped her acquire a high school diploma - She currently received monthly spousal support of $341 - She had only secured full time employment in the last two years - She earned $18,927 - She was 50 years old and had some health problems - She had a partner who made limited contributions to her household - The husband earned $56,289 in 2004 - The husband sought to terminate spousal support, arguing that the wife had increased her education and become self-sufficient - The Newfoundland and Labrador Supreme Court, Unified Family Court, ordered spousal support to continue indefinitely - The wife was still entitled to both compensatory and non-compensatory spousal support - The goal of making the wife self-sufficient had not been met - See paragraphs 72 to 88.

Family Law - Topic 4022.1

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

Family Law - Topic 4039

Divorce - Corollary relief - Maintenance and awards - Spousal support - Suspension or termination of - [See Family Law - Topic 3997 ].

Family Law - Topic 4045.7

Divorce - Corollary relief - Maintenance - Support guidelines - Shared custody (at least 40% of time with each parent) - A father sought to have child support determined on the basis of shared custody provisions of s. 9 of the Federal Child Support Guidelines - The father was required to show that he had exercised access or had physical custody for not less than 40 per cent of the time over the course of a year - The father sought to discount the extensive time that one son was away for soccer games and tournaments - The Newfoundland and Labrador Supreme Court, Unified Family Court, rejected this approach as it would, in effect, decrease the number of days in a year and thus allow the father to artificially calculate a higher percentage - See paragraph 32.

Family Law - Topic 4181

Divorce - Practice - Costs - Solicitor and client costs - A father/husband sought to have child support determined on the basis of shared custody, to determine special and extraordinary expenses, and to terminate spousal support - The mother/wife opposed the application and sought solicitor and client costs given the father's alleged history of improper and unnecessary acts and omissions - The Newfoundland and Labrador Supreme Court, Unified Family Court, stated that the Supreme Court of Canada's position in Young v. Young on awarding solicitor and client costs only where there had been reprehensible, scandalous or outrageous conduct appeared consistent with rule 56A.26.(1) of the Family Law Rules, where there was a specific reference to a party behaving unreasonably or in bad faith - The court declined to award solicitor and client costs as it found no such conduct or bad faith by the father/husband in this case - See paragraphs 89 to 95.

Cases Noticed:

Sumner v. Wadden - see Sumner v. Sumner.

Sumner v. Sumner (1999), 181 Nfld. & P.E.I.R. 114; 550 A.P.R. 114 (Nfld. T.D.), refd to. [para. 20].

Keefe v. Thomas, [2004] Nfld. & P.E.I.R. Uned. 25 (N.L.U.F.C.), refd to. [para. 21].

Mosher v. Martin (1998), 166 Nfld. & P.E.I.R. 97; 511 A.P.R. 97 (Nfld. U.F.C.), refd to. [para. 22].

P.A.B. v. T.K.B., [2004] B.C.T.C. Uned. 33 (S.C.), refd to. [para. 27].

Pitcher v. Pitcher (2004), 239 Nfld. & P.E.I.R. 102; 709 A.P.R. 102 (N.L.U.F.C.), refd to. [para. 55].

Chamberlain v. Chamberlain (2002), 247 N.B.R.(2d) 258; 641 A.P.R. 258 (C.A.), refd to. [para. 75].

Bracklow v. Bracklow (1999), 236 N.R. 79; 120 B.C.A.C. 211; 196 W.A.C. 211; 44 R.F.L.(4th) 1 (S.C.C.), 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. 77].

Bacon v. Bacon (1989), 24 R.F.L.(3d) 179 (N.B.Q.B.), refd to. [para. 79].

Bettles v. Bettles (1996), 138 Nfld. & P.E.I.R. 70; 431 A.P.R. 70 (P.E.I.T.D.), refd to. [para. 79].

King v. King (2001), 207 Nfld. & P.E.I.R. 1; 620 A.P.R. 1 (Nfld. T.D.), refd to. [para. 90].

Foulis et al. v. Robinson (1978), 21 O.R.(2d) 769 (C.A.), refd to. [para. 91].

Young v. Young et al., [1993] 4 S.C.R. 3; 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161, refd to. [para. 92].

Authors and Works Noticed:

McLeod, James G., and Mamo, Alfred A., Annual Review of Family Law (2005), p. 154 [para. 23].

Counsel:

W. Les Thistle, for the applicant;

Heidi Marshall, for the respondent.

This application was heard at St. John's, Newfoundland and Labrador, by Cook, J., of the Newfoundland and Labrador Supreme Court, Unified Family Court, who released the following decision on February 6, 2006.