RICHARD ALAN WATMORE Petitioner - v. –, 2003 NBQB 139

2003 NBQB 139 FDM 717-02 Court File No. 1301-47498 IN THE COURT OF QUEEN’S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF MONCTON BETWEEN: RICHARD ALAN WATMORE Petitioner - and – SYLVIE ANITA WATMORE Respondent DECISION BEFORE: Madam Justice Brigitte M. Robichaud AT: Moncton, New Brunswick DATE OF HEARING: March 18, 2003 POST- HEARING BRIEFS: Respondent’s brief filed March 31 st , 2003 Petitioner’s brief filed April 2 nd , 2003 DATE OF DECISION: April 3, 2003

APPEARANCES: Kenneth W. Martin, Esq., on behalf of the Petitioner Allen G. Doyle, Esq., on behalf of the Respondent ROBICHAUD, J. INTRODUCTION [ 1 ] These proceedings give rise to claims under the Divorce Act , R.S. 1985, c.3 and the Marital Property Act , 1981, S.N.B., c. M-1.1, following the breakdown of a 23-year marriage. FACTS [ 2 ] Mr. and Mrs. Watmore married on December 10, 1977 when they were 18 and 16 years of age respectively. They are the parents of three children, namely Richard, 24 years old, Gregory, 19 and Corey, 14. [ 3 ] The marriage broke down permanently in June of 2000 when Mr. and Mrs.

Watmore separated. They both agree that there is no possibility of reconciliation. [ 4 ] Mrs. Watmore was pregnant with the parties’ first child when she married at 16. She had not completed high school and was not working. Mr. Watmore had completed grade 7. The parties moved to North Bay, Ontario where Mr. Watmore obtained work as a truck driver. [ 5 ] Mrs. Watmore later enrolled in high school to complete a grade 10 equivalency in order to secure admission to Canadore College where she completed a cooking course around 1987 or 1988. [ 6 ] Upon graduation, the college hired Mrs.

Watmore as a cook in its cafeteria. She stopped working after the birth of the third child, Corey, who was born in July of 1988. Corey was diagnosed with cancer as an infant. He required full-time care and lengthy hospitalization periods preventing Mrs. Watmore from pursuing any employment outside the home for a period of two years. [ 7 ] While in Ontario, Mrs. Watmore also completed a course to qualify as a home support worker.

[ 8 ] In 1994 the family moved to Hampton, New Brunswick, to allow Mrs. Watmore to care after her sick mother. Mr. Watmore was able to secure employment as a truck driver in New Brunswick. Mrs. Watmore obtained part-time work with the VON and later part-time work with the Dr. V.A. Snow Centre Inc., a seniors’ housing complex. Her employment was interrupted for approximately 18 months in 1997 when she stayed at home as Mr. Watmore’s caregiver when he was diagnosed and treated for Hodgkin’s disease. [ 9 ] Mrs. Watmore remains employed at the seniors’ housing complex where she is assigned part-time hours. [ 10 ] Mr.

Watmore described Mrs. Watmore as a primary caregiver who stayed at home full time until 1988. He describes himself as a “workaholic” who saw his role as that of a breadwinner concerned with his family’s “shelter and food”. He testified he was constantly on the road and unable to be home to care for the children. [ 11 ] In June of 2000 Mr. Watmore left the marital home in Hampton and settled in Moncton where he took up cohabitation with a new partner with whom he still resides. [ 12 ] The two youngest children, Gregory and Corey, remained with their mother. They were then 16 and 11 years of age respectively.

The oldest child Richard was then 21 years old, employed and living independently of his parents. [ 13 ] Gregory had difficulty adjusting to his parents’ separation and he avoided his father initially. At the same time, he was diagnosed with agoraphobia, a condition that delayed his completion of high school. In September of 2001 Gregory moved in with his father until August of 2002. During that time he continued to visit Mrs. Watmore regularly. He has since returned to Hampton where he lives in an apartment. He is employed at a local grocery store.

He works the night shift in a less crowded setting – an adjustment that is essential because of his agoraphobia. Mrs. Watmore is no longer seeking support for Gregory. [ 14 ] The youngest child Corey is now 14 years old. He lives with Mrs. Watmore and visits with his father on weekends and holidays. [ 15 ] The parties have agreed to share joint legal custody of Corey, his primary residence remaining with his mother. Mr. Watmore is to have reasonable access to his son.

Counsel for the parties have agreed that any of the issues settled by consent in whole or in part would be submitted to the Court by way of a consent order. Income of the parties [ 16 ] Mrs. Watmore’s income has ranged between $6,000.00 and $14,000.00 per year since the family moved to Hampton. The upper limit of $14,000.00 was a one time event when she was given an opportunity to fill in during a co-worker’s stress leave.

I accept her evidence that this is unlikely to occur again and that part-time hours at a rate of approximately 11 hours per week is generally the option available to her at the nursing home where she is currently employed. Mrs. Watmore is paid $13.90 per hour generating annual earnings of approximately $8,300.00. [ 17 ] Mrs. Watmore also maintains that she is unable to work more hours. She has been on intermittent sick leave since separation suffering from stress and anxiety. On two occasions she has lived off income assistance for periods of two months each. Mrs.

Watmore consults a psychologist and a therapist to address her symptoms. She describes her mental health as fragile and cannot foresee the day when she could hold down a full-time job. [ 18 ] As an additional impediment to full-time work, Mrs. Watmore described her need to be present and available to manage Corey as a result of his occasional out of control behavior due to his Attention Deficit Hyperactivity Disorder (ADHD). [ 19 ] On the other hand, Mr. Watmore is a career truck driver. He has now been employed for the same firm for at least three years.

His salary has increased by four to five thousand dollars annually. He proposes that his income be determined at $60,000.00 per year. Mrs. Watmore does not take issue with this.

[ 20 ] For the support of Corey, Mr. Watmore has agreed to pay $484.00 per month in accordance with the Federal Child Support Guidelines . The parties agree that the child support shall be retroactive to March 1, 2003 with credit to Mr. Watmore of the sum of $250.00 paid in March. The parties have agreed that these provisions will be incorporated in the consent order as well. The assets and debts [ 21 ] The net worth of the parties was negligible when they separated. They resided in a home subject to a lease to own agreement.

They fell into arrears on the lease and property tax instalments and eventually they surrendered title to the original vendors in exchange for a full release of their outstanding liabilities on this agreement. Mrs. Watmore maintains that the equity at the time was $2,000.00 while Mr. Watmore says $1,000.00. Mrs. Watmore wants one-half of this equity paid to her because she maintains that title was surrendered when Mr.

Watmore was not providing adequate financial assistance to her and the children. [ 22 ] The parties also owned a 1988 Dura Van valued at $750.00, a 1988 Mazda Cab Plus later sold for $600.00, a travel trailer valued at $2,000.00 and their household furnishings. They had minimal investments in Canada Savings Bonds, which were subsequently divided. As well Mr. Watmore held an RRSP valued in excess of $4,000.00 that he has agreed to divide equally with Mrs. Watmore. [ 23 ] At separation Mrs. Watmore retained possession of a leased Chrysler Neon with the understanding that she would maintain the payments.

After months of default on the lease, Mr. Watmore recovered the vehicle. In order to make the lease payments current, he sold the Mazda for $600.00 and applied those proceeds against the arrears. [ 24 ] As to the trailer, Mrs. Watmore says she gave it as payment in kind to carpenters who had done repairs to the marital home that she occupied after separation. Mr. Watmore claims an equal share of the value of this trailer. He disputes Mrs. Watmore’s claim that repairs to the home were necessary. THE ISSUES [ 25 ] In addition to the granting of the divorce judgment, the court must determine Mrs.

Watmore’s entitlement to spousal support. If this is established, then quantum and duration need to be addressed. Under the Marital Property Act , the division of the remaining property and debts require adjudication. ANALYSIS A. Judgement for divorce [ 26 ] The uncontradicted evidence establishes that the parties reside separate and apart since June of 2000. They have not resumed cohabitation and there is no possibility of reconciliation. A judgment for divorce was granted to the Petitioner at the hearing pursuant to paragraph 8(2) (

a) of the Divorce Act . B. Spousal Support [ 27 ] The legislative authority for the granting of an order for spousal support is found in subsection 15.2(1) of the Divorce Act , which reads: 15.2

(1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse. [ 28 ] The factors that a court must consider in respect of a claim for spousal support are set out in subsection 15.2(4) of the Act . It reads:

(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including (

a) the length of time the spouses cohabited; (

b) the functions performed by each spouse during cohabitation; and (

c) any order, agreement or arrangement relating to support of either spouse. [ 29 ] The evidence establishes that Mrs. Watmore’s gainful employment during the marriage consisted of part-time work for less than 10 of a 23-year marriage. [ 30 ] Her role as a housewife and mother of three children restricted her ability to obtain and retain full-time work.

I am satisfied that her pregnancy and marriage at 16, the raising of three children mostly on her own, together with the four years spent as a full time caregiver when her son and husband were both treated for cancer significantly contributed to her state of dependency. [ 31 ] Mrs. Watmore currently generates annual earnings of approximately $8,300.00 from part-time work. She has unsuccessfully looked for other employment. She says she is unable to work full-time because of her current mental health, including anxiety, stress and panic attacks requiring consultations with psychologists and therapists.

As well she insists on being available for Corey when he arrives from school. She testified that he needs some structure that she can provide to best manage his occasional out of control behavior related to his ADHD. I conclude that her willingness to make herself available for this care and supervision for a child in need is reasonable in the circumstances. The demands this places on her time as well as her current health make full-time work unreasonable for the time being. [ 32 ] Mr. Watmore maintains that Mrs. Watmore lives common law and any order for her support should reflect that fact and be time limited.

Mrs. Watmore denies that she lives common law. She readily admits that she had an on and off live-in relationship with another man; she testified they no longer live together. She added that when they lived together this partner earned little income. I believe her. [ 33 ] Subsection 15.2(4) of the Act also requires a consideration of Mr. Watmore’s means. The undisputed evidence establishes that he earns approximately $60,000.00 per year as a truck driver.

His employment in that field has been stable throughout the marriage and only interrupted for 18 months in 1997 when he was treated for Hodgkin’s disease. [ 34 ] A determination of Mr. Watmore’s means must also factor in the financial benefits that he derives from sharing living expenses with his new partner who is employed full time at a Tim Horton’s outlet and earning approximately $12,000.00 per year. [ 35 ] Subsection 15.2(6) of the Divorce Act defines the four objectives of a spousal support order. It reads:

(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should (

a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (

b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; (

c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (

d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. [ 36 ] The statutory provisions relating to the factors and objectives of spousal support orders have been the subject of

interpretation by the Supreme Court of Canada in Moge vs Moge 1992 CanLII 25 (SCC) , [1992] S.C.J. No. 107 and Bracklow vs Bracklo w 1999 CanLII 715 (SCC) , [1999] S.C.J. No. 14. In Bracklow , McLachlin, C.J. wrote at paragraphs 34 to 36: ¶ 34 The Divorce Act and the provincial support statutes are intended to deal with the economic consequences of the marriage breakdown for both parties. See, e.g., Family Law Act, R.S.O. 1990, c. F.3 ,

preamble, which characterizes its purpose as "to provide in law for the orderly and equitable settlement of the affairs of the spouses upon the breakdown of the partnership". The statutes require a fair and equitable distribution of resources to alleviate these consequences, regardless of gender. See C. Martin, "Unequal Shadows: Negotiation Theory and Spousal Support Under Canadian Divorce Law" (1998), 56 U.T. Fac. L. Rev. 135, at p. 139 (identifying increased equity in distribution as a "primary objective" of the new Divorce Act ). As this Court pointed out in Moge , supra, per

L'Heureux-Dubé J., the Divorce Act is premised on the doctrine of the equitable sharing of the economic consequences of the marriage and its breakdown. It is not confined to one type of marriage or one type of support. ¶ 35 Moge, supra, sets out the method to be followed in determining a support dispute.

The starting point is the objectives which the Divorce Act stipulates the support order should serve: (1) recognition of economic advantage or disadvantage arising from the marriage or its breakdown; (2) apportionment of the financial burden of child care; (3) relief of economic hardship arising from the breakdown of the marriage, and (4) promotion of the economic self-sufficiency of the spouses: s. 15.2(6) . No single objective is paramount; all must be borne in mind.

The objectives reflect the diverse dynamics of the many unique marital relationships. ¶ 36 Against the background of these objectives the court must consider the factors set out in s. 15.2(4) of the Divorce Act . Generally, the court must look at the "condition, means, needs and other circumstances of each spouse". This balancing includes, but is not limited to, the length of cohabitation, the functions each spouse performed, and any order, agreement or arrangement relating to support. Depending on the circumstances, some factors may loom larger than others.

In cases where the extent of the economic loss can be determined, compensatory factors may be paramount. On the other hand, "in cases where it is not possible to determine the extent of the economic loss of a disadvantaged spouse . . . the court will consider need and standard of living as the primary criteria together with the ability to pay of the other party": Ross v. Ross (1995), 1995 CanLII 6228 (NB CA) , 168 N.B.R. (2d) 147 (C.A.) , at p. 156, per Bastarache J.A. (as he then was). There is no hard and fast rule.

The judge must look at all the factors in the light of the stipulated objectives of support, and exercise his or her discretion in a manner that equitably alleviates the adverse consequences of the marriage breakdown. [ 37 ] Having considered the condition and needs of Mrs. Watmore and the means of Mr. Watmore and taking into consideration the length of cohabitation, the role assumed by both parties, the economic disadvantages flowing to Mrs. Watmore as a result of the marriage and its breakdown, I conclude she is entitled to an award of spousal support.

In this case, an order of spousal support is the only way to effect an equitable sharing of the economic consequences of the marriage and its breakdown and alleviate some of the economic losses sustained by Mrs. Watmore who stands as the disadvantaged spouse. [ 38 ] In my view the quantum of spousal support should be such as to assist Mrs. Watmore in maintaining a reasonable standard of living while taking into consideration her income potential that I estimate at a maximum of $10,000.00 per year.

I will add that there is no evidence upon which I could conclude that self-sufficiency is reasonably attainable at this time or within a defined period. Relying on the principles established in MacLennan vs MacLennan 2003 NSCA 9 (CanLII) , 2003 N.S.C.A. 9, I decline to limit the duration of the support or impose a review date. [ 39 ] I fix the obligation of periodic spousal support payable by Mr. Watmore to Mrs. Watmore at $800.00 per month commencing March 1, 2003, until further order of the Court. [ 40 ] As additional relief under the Divorce Act , Mrs. Watmore claimed an order requiring Mr.

Watmore to share into special expenses pursuant to

section 7 of the Federal Child Support Guidelines . In her pleadings she claimed unspecified expenses for the “children’s illnesses and education”, in her pre-trial brief, for “some medical problems and special expenses” , and in the post-trial brief, for “special or extraordinary expenses incurred in relation to the children’s health and /or any child care”. No evidence, whether viva voce or documentary, was lead with respect to the particulars of this claim. In the circumstances, I decline to make any order. [ 41 ] The evidence does however establish that some medical expenses were processed on Mr.

Watmore’s health plan for Mrs. Watmore’s and Corey’s counselling. I order Mr. Watmore to maintain all medical and dental coverage for Corey for as long as the current or a replacement plan is available to Mr. Watmore through his work and for as long as Corey continues to qualify as a dependant within the terms of the plan. C. Outstanding issues under the Marital Property Act Marital Property [ 42 ] Considering the evidence before the Court, I make the following findings with respect to the disputed marital property.

The 1988 Dura Van is valued at $750.00, the 1988 Mazda Cab Plus at $600.00 and the travel trailer at $2,000.00.

[ 43 ] I accept the evidence of Mrs. Watmore that the value of the travel trailer was offset against labour and materials charges for repairs to the marital home. She has gained no direct benefit from this and I decline to make any further division of this asset, particularly where she did not receive adequate support since separation. [ 44 ] With respect to any equity alleged to remain in the marital home, the evidence establishes that the home valued at $70,000.00 was surrendered to the vendors when the parties owed them $69,000.00.

They were spared the cost of real estate fees and legal fees on a sale and both were released from any further personal liability on the aborted transaction. I decline to effect any further division of this asset given the circumstances surrounding its transfer to the vendors. [ 45 ] The parties also had minimal investments in Canada Savings Bonds. These were cashed since separation. Although Mr. Watmore may have remitted $500.00 to Mrs. Watmore rather than $600.00, he says that he was paying the balance on marital debts.

On balance and considering the evidence, I am satisfied that the division of the bonds was equitably resolved between the parties. There is no reliable evidence before the Court to justify an order for any further division. [ 46 ] The only taxable asset owned by the parties consists of an RRSP in the name of Mr. Watmore and valued at $4,000.00. Mr. Watmore has agreed to divide it equally with Mrs. Watmore. Within 30 days, Mr. Watmore shall remit to her the necessary forms as approved by Canada Customs and Revenue Agency in order to effect a transfer of one-half of its value to an RRSP plan in the name of Mrs.

Watmore. Marital Debts [ 47 ] The evidence sets out a limited number of disputed debts. Mrs. Watmore paid repair charges to the home at $2,000.00 by offsetting this with the transfer of the trailer of same value. Mr. Watmore sold the Mazda for $600.00 and used the proceeds to pay the arrears on the leased Neon in the possession of Mrs. Watmore after separation. All of these offset each other and will be taken into account in the calculation of the equalization payment. [ 48 ] Mr. Watmore also claims a refund for one-half of payments he made to NB Power, NBTel and the TD Bank totalling approximately $760.00.

I accept the submissions of Mrs. Watmore that these were not all repayments of marital debts and a portion consisted of charges for installation of utility accounts in Mr. Watmore’s household after separation. The documents submitted to the Court showing balances owing and amounts paid were dated 2 to 4 months post-separation. No evidence was lead on the balances at the time of separation. I decline to further apportion this liability given the lack of evidence and the fact that Mr. Watmore was making insufficient contributions to Mrs.

Watmore forcing her to rely on income assistance for at least 4 months since separation. [ 49 ] I order the division of marital property and apportionment of the marital debts that are at issue as follows: Assets to be retained by Mr. Watmore Contents in his possession nil 1988 Dura Van $750.00 1988 Mazda Cab Plus $600.00 TOTAL $1,350.00 Assets to be retained by Mrs. Watmore Contents in her possession nil Travel trailer $2,000.00 TOTAL $2,000.00 Debts paid Mr. Watmore Arrears on Neon lease $600.00 Debts paid by Mrs. Watmore Repairs to home $2,000.00

Net property of Mr. Watmore $750.00 Net property of Mrs. Watmore Nil Equalization amount to be paid by Mr. Watmore $375.00 Equalization amount to be received by Mrs. Watmore $375.00 [ 50 ] To settle the division of property and debts, the equalization amount of $375.00 payable by Mr. Watmore to Mrs. Watmore shall be paid by May 15 th , 2003. DISPOSITION A. Judgement for divorce [ 51 ] A judgment for divorce is granted to the Petitioner pursuant to paragraph 8(2) (

a) of the Divorce Act , effective as of the date of the hearing. B. Custody and Child Support [ 52 ] Custody of the child Corey Watmore, access, and support for him shall be in accordance with the consent order to be filed by the parties, until further order of the Court. C. Medical and Dental Coverage [ 53 ] Mr. Watmore shall maintain all medical and dental coverage for Corey for as long as the current or a replacement plan is available to Mr. Watmore through his work and for as long as Corey continues to be eligible within the terms of the plan, until further order of the Court. D. Spousal Support [ 54 ] Mr.

Watmore shall pay periodic spousal support to Mrs. Watmore in the amount of $800.00 per month commencing March 1, 2003, until further order of the Court. E. Division of the RRSP [ 55 ] Within 30 days of these reasons, Mr. Watmore shall remit to Mrs. Watmore the necessary forms as approved by Canada Customs and Revenue Agency in order to effect a transfer of one-half of the value of his RRSP (approximate value at separation and before division of $4,200.00) to an RRSP plan in the name of Mrs. Watmore. F. Outstanding issues under the Marital Property Act

[ 56 ] I order the division of the remaining property and apportionment of the marital debts that are at issue in accordance with paragraph 49 of these reasons. Accordingly, Mr. Watmore shall pay to Mrs. Watmore, the equalization amount of $375.00 by May 15 th , 2003. COSTS [ 57 ] Mrs. Watmore has had carriage of the action and has been successful on most of her claims. The general rule that costs follow the event applies. I award her costs in the amount of $700.00 all inclusive of disbursements and HST. DATED at Moncton, New Brunswick this 3 rd day of April, 2003. ____________________________________ Brigitte M. Robichaud JCQB