Nancy Savoie Applicant v. Charles Savoie, 2023 NBKB 2

Savoie v. Savoie – 2023 NBKB 002 FDB-145-2016 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF BATHURST BETWEEN: Nancy Savoie Applicant -and- Charles Savoie Respondent

SUMMARY: Disclosure and sealing of financial information in a family matter BEFORE: The Honourable Justice Larry Landry AT: Bathurst, N.B. DATE OF HEARING: November 22, 2022 DATE OF DECISION: January 11, 2023 COUNSEL: Nancy Savoie, the moving party, is self-represented Guy Dumas, K.C., for Charles Savoie DECISION [TRANSLATION]

Landry J.: [ 1 ] Nancy Savoie filed a motion seeking a variation of the spousal support she receives from her former spouse, Charles Savoie. She also asks that Mr. Savoie disclose his income tax returns since 2019, but he refuses. [ 2 ] Charles Savoie currently pays monthly support in the amount of $11,200 to Nancy Savoie, in accordance with a decision of Justice Michel Robichaud of this Court handed down on April 24, 2020. 1 This decision was affirmed on appeal. 2 The parties have been divorced since May 21, 2020. [ 3 ] Mrs. Savoie’s motion for increased support will be heard next month.

The focus of this decision is essentially to determine the issue of the financial disclosure to be made by Mr. Savoie prior to the hearing of the motion to vary his support payments to Mrs. Savoie. [ 4 ] At the start of the hearing, Charles Savoie conceded that he was required to file a financial statement as well as his most recent tax return, as provided in Rule 72.22(2)(

b) of the Rules of Court , and Form 72J. However, he claimed that he has no obligation to disclose his tax returns for previous years. __________________________________ 1 Savoie v. Savoie , 2020 NBQB 132 . 2 Savoie v. Savoie , 2021 NBCA 20 . [ 5 ] In support of his position, Mr. Savoie cited cases including Arsenault v. Blanchard , 3 which deals with a similar issue. In her decision, Justice Tracey K. DeWare, as she then was, pointed out that the support order for which a variation was sought did not provide for the annual disclosure of income tax returns. This is also the case here. [ 6 ] In Arsenault v.

Blanchard , supra , this lack of disclosure was discussed in connection with determining whether the payor had engaged in blameworthy conduct. This issue becomes relevant where there is an application for retroactive variation. Because the payor spouse had no obligation to disclose his income each year, and the recipient spouse had never requested it after the original order, DeWare J. could not find that there had been blameworthy conduct. [ 7 ] Nonetheless, in order to decide the issue of the support variation application, the Court still needed financial disclosure.

It had to postpone the hearing and order such disclosure. 4 Indeed, it is clear from the decision that the Court had before it all the financial information necessary to decide the case. [ 8 ] The respondent also pointed to the different disclosure regimes that apply to child support and spousal support claims. 5 The __________________________________ 3 2018 NBQB 14 . 4 Ibid., at para. 4. 5 See, among others, Rules 72.14(1)(

a) and (b), 72.22.1 and 73.11 of the Rules of Court . requirements are more stringent with respect to children, especially when relying on the Federal Child Support Guidelines . 6 The Guidelines specifically require that income tax returns for the past three years be provided. There is no such requirement in spousal support cases. [ 9 ] Here, the moving party will first have to show that there has been a material change in circumstances in an attempt to satisfy the Court that she is entitled to an increase in the support payments made to her. She argues that

she needs her former spouse’s tax returns to do this. Such evidence is quite relevant. While there is no black-and-white requirement in the Rules of Court for such disclosure, this is evidence that is usually before the Court and its disclosure is entirely justified. [ 10 ] Nancy Savoie will therefore have the onus of showing that there has been a material change in circumstances. However, Charles Savoie contends that she has embarked on a fishing expedition and is trying once again to get issues that have already been decided brought back before the Court. He may be right.

Nevertheless, the disclosure of his income is necessary to make some potentially important factual determinations. __________________________________ 6 SOR/97-175, s. 21 . [ 11 ] Of course, even if his income were to have increased, this would not necessarily mean that Mrs. Savoie is entitled to an increase in support. This will remain to be argued at the hearing of her motion. [ 12 ] Accordingly, Charles Savoie must provide the Court and Nancy Savoie with copies of his income tax returns and notices of assessment for 2019, 2020 and 2021.

For 2022, if his tax return is not filed with the Canada Revenue Agency by the time the motion is heard, he will have to provide proof of his total income for 2022. Although the Rules of Court provide that a financial statement must be served two days before the hearing, 7 the Court may vary any time limit set out in the Rules . 8 Because the Notice of Motion was filed on April 19, 2022, and Mr. Savoie filed an initial responding document in August 2022, it would be fair in the circumstances for him to file and serve the required documents as soon as possible and no later than January 26, 2023.

Nancy Savoie will also be required to file and serve her 2021 tax return and Notice of Assessment, as well as her proof of income for 2022, by the same date. Sealing [ 13 ] Charles Savoie further asks that if he is required to disclose his tax returns, they be sealed to ensure confidentiality, as permitted under Rule 72.14(8) of the Rules . This is subject to the Court’s discretion. __________________________________ 7 Rule 72.22(2)(

b) of the Rules of Court . 8 Rule 3.02(1) of the Rules of Court . [ 14 ] A party making such an application must first satisfy the Court that public disclosure would probably create hardship for the party. Here, the evidence is unconvincing. Moreover, he has not filed a formal Notice of Motion in this regard. [ 15 ] Mr. Savoie claims that his employment contract with his employer is confidential and that his salary should not be disclosed to other employees of the company. He does not indicate that he has changed jobs since the divorce trial or whether he is bound by a new employment contract.

Yet the income he earned is published in the decisions of both Robichaud J. and the Court of Appeal. However, there is no indication that he applied at the time for this information to be sealed. [ 16 ] This is a less urgent issue, and it will have to be argued further at the hearing of the motion if the respondent files a Notice of Motion in this regard.

In the meantime, I am still ordering on an interim basis that Charles Savoie’s financial information be sealed once he has filed it, and I am also prohibiting the applicant from publishing it or transmitting it to anyone (except to a potential lawyer, who will be bound by the same ban), until the issue is decided following the hearing of the motion, if any.

January 11, 2023 Campbellton, N.B. Larry Landry, J.C.K.B.