2011 NBCA 66, 2011 NBCA 66

COURT OF APPEAL OF NEW BRUNSWICK 71-10-CA KATHERINE ADAVILLA SMITH (Petitioner) APPELLANT - and - GEORGE JOHN SMITH (Respondent) RESPONDENT KATHERINE ADAVILLA SMITH (Requérante) APPELANTE - et - GEORGE JOHN SMITH (Intimé) INTIMÉ Smith v. Smith, 2011 NBCA 66 Smith c.

Smith, 2011 NBCA 66 CORAM: The Honourable Justice Larlee The Honourable Justice Quigg The Honourable Justice Green CORAM : L’honorable juge Larlee L’honorable juge Quigg L’honorable juge Green Appeal from decision of the Court of Queen’s Bench: April 26, 2010 Appel d’une décision de la Cour du Banc de la Reine : Le 26 avril 2010 History of the Case: Historique de la cause : Decision under appeal: 2010 NBQB 152 (Unreported) Décision frappée d’appel : 2010 NBBR 152 (Inédite) Preliminary or incidental proceedings: Unreported Procédures préliminaires ou accessoires : Inédite Appeal heard: February 16, 2011 Appel entendu : Le 16 février 2011 Judgment rendered July 21, 2011 Jugement rendu : Le 21 juillet 2011

Reasons for judgment by: The Honourable Justice Quigg Motifs de jugement : L’honorable juge Quigg Concurred in by: The Honourable Justice Larlee The Honourable Justice Green Souscrivent aux motifs : L’honorable juge Larlee L’honorable juge Green Counsel at the hearing: For the appellant: Sheila J. Cameron For the respondent: Allison Whitehead, Q.C. Avocats à l’audience : Pour l’appelante : Sheila J. Cameron Pour l’intimé : Allison Whitehead, c.r. THE COURT The appeal is allowed with costs of $2,000. LA COUR L’appel est accueilli avec dépens de 2 000 $. The judgment of the Court was delivered by QUIGG J.A. I.

Introduction [ 1 ] This appeal raises the question of whether a trial judge errs in law, if he or she disregards the range of payments that would apply if the Spousal Support Advisory Guidelines were followed, without providing an explanation as to why they were not followed. Mrs. Smith appeals the decision of a judge of the Court of Queen’s Bench, Family Division, following a trial on the issues of divorce and spousal support pursuant to the Divorce Act , R.S.C. 1985, c. 3 (2nd Supp.), as well as a division of marital property under the Marital Property Act , S.N.B. 1980, c. M-1.1.

Based on the trial judge’s misapprehension of the evidence, I would allow the appeal and award the amount of $1,709.50 per month in spousal support.

II. Factual and Procedural Background [ 2 ] The parties began cohabiting in Alberta in 1976, where Mr. Smith was posted with the RCMP. They married in New Brunswick on October 14, 1978. The respondent accepted a transfer to Nova Scotia in 1979. During this period the parties became the parents of two children. In 1980, after four years of service, Mr. Smith left the RCMP. The parties relocated to New Glasgow, Nova Scotia, in 1980, as Mr. Smith had accepted employment as an insurance adjuster. Mrs. Smith obtained her real estate agent’s licence. In 1984, Mr.

Smith undertook employment with a wholesale furniture warehouse distribution centre in New Glasgow. At this time, Mrs. Smith established a Benjamin Moore franchise and an interior decorating business with another individual. [ 3 ] In 1989, the parties returned to New Brunswick in order to purchase and operate a Greco Pizza franchise. The parties incorporated G.S. Pizza Ltd. to acquire the assets and franchise. The building and land where the restaurant was situated were acquired by a transfer of the title to the parties in joint tenancy. They then leased the property to G.S. Pizza Ltd. Mrs.

Smith worked in the restaurant for a period of one to two years. She obtained her New Brunswick real estate licence between 1989 and 1990, and began working as a real estate agent on a full time basis. Mrs. Smith worked in this field until 2005, earning an average annual salary of $15,000. She undertook further studies in order to obtain her New Brunswick Real Estate Appraiser licence, but did not complete the program. [ 4 ] In 1995, the parties expanded their pizza business and opened a second establishment. A numbered company, owned equally by Mr.

Smith and another business person, purchased a building, and G.S. Pizza Ltd. rented space in that building. This property was sold in 2005, and Mr. Smith netted $13,000 from the sale, which he deposited to an account referred to by the trial judge as a “general living account” (paras. 15-16). G.S. Pizza Ltd. continued to do business in this property as well as in the original premises. [ 5 ] From 1999 to 2001, Mr. Smith managed a wood products company. In August 2002, he began to work as an instructor at the New Brunswick Community College.

He continues to be employed in this position, and at the time of trial, was earning an annual salary of $62,500. In April 2005, Mrs. Smith became the manager of G.S. Pizza Ltd. and she worked full time in this position until May 2007, when she moved to Nova Scotia. Although she had ceased being the manager of G.S. Pizza Ltd., she remained on the payroll until December 2007. Mrs. Smith earned an annual salary of $30,000 between April 2005 and December 2007. [ 6 ] The parties separated in January 2007, after 28 years of marriage. Mrs. Smith is presently 52 years of age. Mr. Smith is currently 54 years of age.

Their two children are financially independent. After the separation, Mrs. Smith returned to Nova Scotia. She obtained her Nova Scotia real estate agent’s licence in 2008. Her gross commissions for 2008 were $7,372.50, and by May 2009, her real estate practice was in a deficit position. She therefore discontinued selling real estate. Mrs. Smith had no income between May and December 2009. At the time of the trial, she was working as a bookkeeper for $10 per hour, 30 hours per week, but this employment was uncertain as the business she worked for was for sale. [ 7 ] Mrs.

Smith filed a petition for divorce on June 29, 2009. Mr. Smith filed an answer to the petition on February 19, 2010. An order, dated December 7, 2009, provided interim spousal support was to be paid to Mrs. Smith in the amount of $2,000 per month, retroactive to September 1, 2009. The trial was heard on February 22 and 23, 2010. III. The Trial Decision [ 8 ] With respect to spousal support, Mr. Smith was ordered to pay Mrs. Smith $1,000 per month, retroactive to March 1, 2010.

The trial judge’s reasons are as follows: In the present circumstances as I assess the situation the request for payment of monthly spousal support of $2,300.00 per month as asked for is not justified and Mr. Smith does not have the income or ability to pay it in his present financial circumstances. The Spousal Support Guidelines are advisory only, there are exceptions. Many other relevant circumstances that exist in the present circumstances must be considered. This particular matter is somewhat different and as such it must be approached differently.

The parties enjoyed a good lifestyle, one obviously beyond their means. Mr. Smith has much debt, his earnings are subject to garnishment and he has very little left from the division of marital assets. He faces a risk of other claims as a result of the failure of the restaurant operations; personal bankruptcy has to be a consideration. In his unfortunate financial circumstances as is clear from the

evidence he is not able to pay monthly spousal support of $2,300.00. Mrs. Smith, as far as I know, enjoys good health, she has many job skills. She has a grade 12 education and worked throughout themarriage. She has experience as a real estate agent and as such in this area was successful. She managed the restaurant businesses. Shetook and completed all the necessary courses to qualify as a real estate appraiser. Should she complete the “demo”, which is not as Iunderstand it overly difficult and become qualified, there are many opportunities for work in the real estate appraisal field.

She holds areal estate agent license in the province of Nova Scotia. I do appreciate that after moving to that area she needed time to build up a clientele to generate a reasonable income from selling realestate. She did have clientele in this area before relocating to Nova Scotia. She should not have too much difficulty to complete herappraisal certification. She has a fairly significant amount of money from the proceeds of the sale of the marital home andreimbursement of other monies payable to her as above set out. This should relieve her from some economic hardship as a result of thebreakup.

It will also assist her in setting up a business as she has contemplated which should allow for self sufficiency. She hasexperience in business which should assist her in such endeavours. I do not see that her career nor employment opportunities were overlynegatively impacted by her lack of a post secondary education, childcare responsibilities or involvement in advancing her husband’scareer. [paras. 106-110] IV. Grounds of Appeal [9] Mrs. Smith raises two grounds of appeal: 1.

The Trial Judge committed an error in law in not applying the Spousal Support Advisory Guidelines to determine the appropriateamount of spousal support payable to [her], when entitlement to spousal support was admitted by [Mr. Smith]. 2. Alternatively, the Trial Judge committed an error in law in failing to determine the quantum of spousal support in accordance withthe factors and objectives of

section 15.2 of the Divorce Act. V. Standard of Review [10] In family matters, trial judges’ decisions are given considerable deference. In MacDonald v. MacDonald, 2011NBCA 25, [2011] N.B.J. No. 81 (QL), Larlee J.A. says: The standard of review that applies to family matters generally is that the judge’s decision must be given considerable deference. Anappellate court is empowered to set aside or vary a decision or order where it is the product of an error of law, an error in principle, asignificant misapprehension of the evidence or if it is clearly wrong (see Hickey v.

Hickey, (SCC), [1999] 2 S.C.R. 518,[1999] S.C.J. No. 9 (QL) para. 11; Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014; Savoie v. Levesque, 2009 NBCA 47,[2009] N.B.J. No. 282 (QL); Ms. P.H. v. Mr. P.H., 2008 NBCA 17, [2008] N.B.J. No. 52 (QL); Milton v. Milton, 2008 NBCA 87, 338N.B.R. (2d) 300, para. 14.; J.E.J. v. S.L.M., 2007 NBCA 33, [2007] N.B.J. No. 249 (QL), para. 35; S.H. v. V.B., 2007 NBCA 69, 321N.B.R. (2d) 314, para. 2). [para. 7] [11] The standard of review in spousal support cases is discussed in Milton v. Milton, 2008 NBCA 87, 338 N.B.R.(2d) 300, where Larlee J.A. stated:

[…] In addition we will only interfere with a support order where there has been an error in principle, a significant misapprehension ofthe evidence, or the award is clearly wrong (see Hickey v. Hickey, (SCC), [1999] 2 S.C.R. 518, [1999] S.C.J. No. 9(QL), at para. 11 and Pollock v. Rioux (2004), 278 N.B.R. (2d) 351, [2004] N.B.J. No. 467 (QL), 2004 NBCA 98, para. 27). [para. 14] [12] Richard J.A. discusses the standard of review respecting findings of fact in Lang v. Lang, [2007] N.B.J. No.348 (C.A.) (QL): The law is equally clear that the Court of Appeal cannot re-try a case.

The Court of Appeal may only overturn a trial judge's finding offact [if] it is the result of a palpable and overriding error, and may only interfere with a discretionary order if it is founded upon an errorof law, an error in the application of the governing principles or a palpable and overriding error in the assessment of the evidence (seeHousen v. Nikolaisen, 2002 SCC 33 , [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31 (QL), 2002 S.C.C. 33 and H.L. v. Canada(Attorney General), [2005] 1 S.C.R. 401, [2005] S.C.J. No. 24 (QL), 2005 SCC 25 with regard to findings of fact, and British Columbia(Minister of Forests) v.

Okanagan Indian Band, 2003 SCC 71 , [2003] 3 S.C.R. 371, [2003] S.C.J. No. 76 (QL), 2003 S.C.C. 71,at para. 43, with regard to discretionary orders). [para. 3] Therefore, in New Brunswick, although this deferential standard of review has been applied in spousal support cases, appellate courts caninterfere when a trial judge’s key findings rest upon palpable and overriding errors of fact. VI. Analysis [13] The Divorce Act provides for judicial discretion in the fashioning of spousal support orders: Spousal support order 15.2

(1) A court of competent jurisdictionmay, on application by either or both spouses,make an order requiring a spouse to secure orpay, or to secure and pay, such lump sum orperiodic sums, or such lump sum and periodicsums, as the court thinks reasonable for thesupport of the other spouse. Ordonnance alimentaire au profit d’un époux 15.2

(1) Sur demande des époux ou de l’und’eux, le tribunal compétent peut rendre uneordonnance enjoignant à un époux de garantirou de verser, ou de garantir et de verser, laprestation, sous forme de capital, de pensionou des deux, qu’il estime raisonnable pour lesaliments de l’autre époux. [14] Mrs. Smith’s first ground of appeal contends the trial judge committed an error in law by not applying theSpousal Support Advisory Guidelines in determining the amount of spousal support payable by Mr. Smith.

This ground of appealsuggests that a trial judge’s use of discretion in support awards, as per the Divorce Act, is constrained by the Guidelines. Therefore, notfollowing the Guidelines would constitute an error in law. It could also be argued that awarding spousal support in an amount lower thanthe Guidelines’ range is an error. [15] Mrs. Smith contends that the award was clearly wrong, as the amount ordered was much lower than the rangeprovided by the Guidelines, and no exceptional circumstances exist to explain this discrepancy.

In my view, it is clear the trial judge’sreasons disclose a significant misapprehension of the evidence. [16] Some of the factual assumptions made by the judge concerning Mrs. Smith were as follows:

(1) Mrs. Smith has many job skills;

(2) She has been successful as a real estate agent;

(3) The “demo” portion of the real estate appraiser licensing process is not “overly difficult”;

(4) There are many opportunities for work in the real estate appraisal field;

(5) She has the means and experience to start her own business “which should allow for self-sufficiency”, and;

(6) Her career and employment opportunities were not overly negatively impacted by her lack of post-secondary education, child care responsibilities or involvement in advancing her husband’s career. [ 17 ] The difficulty with these findings of fact are as follows:

(1) Although Mrs. Smith has had various types of employment, there is nothing in the record detailing exactly what job skills she possesses;

(2) The trial judge noted Mrs. Smith was not “overly successful” in her real estate work, and her annual income during her real estate career bears that out;

(3) Because there was no evidence put forward at trial to suggest the “demo” for the real estate appraising license was not “overly difficult”, the judge could not take judicial notice of this proposition as a fact;

(4) Because there was no evidence at trial to suggest there are many opportunities for work in Nova Scotia in the real estate appraising field, the judge could not take judicial notice of this proposition as a fact, and;

(5) Mrs. Smith’s lack of success at entrepreneurial endeavours in the past certainly does not suggest she has the means and experience to start and maintain her own business, and thereby become self-sufficient;

(6) It is unclear what the trial judge meant when he found “her career and employment opportunities were not overly negatively impacted…” During this long term marriage, Mrs. Smith parented two children and moved on numerous occasions to allow Mr. Smith to make his various career changes. In my view, these findings of fact demonstrate Mrs. Smith’s career and employment opportunities were negatively impacted. [ 18 ] It is my view that the conditions, means and needs of Mrs. Smith at the time of trial did not accord with the trial judge’s findings. However, entitlement to spousal support was conceded by Mr.

Smith in this case. Therefore, the only issue outstanding is quantum. Determination of the appropriate quantum largely turned on Mr. Smith’s ability to pay. It is therefore the findings of fact regarding Mr. Smith’s financial situation that are most important in assessing whether there was a significant misapprehension of the evidence that constituted a reversible error of fact. [ 19 ] It is apparent, from paragraphs 106-110 of the trial judge’s decision, that he made an award lower than suggested by the Guidelines because of the following:

(1) Mr. Smith has much debt;

(2) Mr. Smith’s earnings are subject to garnishment;

(3) Mr. Smith faces a risk of further claims that would increase his indebtedness, and;

(4) Mr. Smith could possibly face bankruptcy as a result of his debts. [ 20 ] The difficulties I have with these findings of fact are:

(1) The Respondent’s debts, as listed in paragraph 71 of the Trial Judgment, included an amount that was not truly a debt of the Respondent; other amounts related to a debt incurred after separation of the parties; and a further amount for a debt that was not documented in evidence.

(2) The Respondent’s earnings would no longer be subject to garnishment, as the Trial Judge noted that the parties agreed that HST amount owing of $12,831.28 was a joint responsibility, and should be paid from funds held in trust by the Appellant’s solicitor (Trial Judgment at paragraph 79).

(3) The finding that the Respondent faces a “risk” of further claims that would increase his indebtedness is purely speculative (Trial Judgment at paragraph 72). If further indebtedness actually occurs, it may constitute a material change in circumstances, and the Respondent would be free to apply for a variation of the spousal support award.

(4) The risk of “possible” bankruptcy is again speculative and seemingly contingent upon debts that may or may not accrue in the future. [ 21 ] The trial judge made a palpable and overriding error by considering Mr. Smith’s possible future debt to be present-day actual debt. This was pure conjecture on his part. His decision is therefore reviewable, and the quantum of spousal support may be adjusted by this Court. [ 22 ] The standard of review for an error of fact has been met in the case at bar. However, Mrs.

Smith has raised an issue regarding the appropriate standard of review in cases involving spousal support awards. This issue must be addressed. Mrs. Smith refers to the British Colombia Court of Appeal case of Redpath v. Redpath , 2006 BCCA 338 , [2006] B.C.J. No. 1550 (QL) , in order to suggest that the standard of review should be reformulated if the amount of spousal support awarded at trial level is substantially outside the Guidelines’ range and no exceptional circumstances exist to justify the departure.

In Redpath , the Court states: Cases such as Hickey , however, were decided prior to the introduction of the Advisory Guidelines.

Now that they are available to provide what is effectively a "range" within which the awards in most cases of this kind should fall, it may be that if a particular award is substantially lower or higher than the range and there are no exceptional circumstances to explain the anomaly, the standard of review should be reformulated to permit appellate intervention. […] [para. 42] [Emphasis in original.] [ 23 ] Although the Court in Redpath did not specifically state that such an unjustified departure from the Guidelines would constitute an error of law, Mrs. Smith suggests that it should.

Her argument is that the correctness standard should apply. In Redpath , the Court held the trial judge considered the appropriate factors and did not misapprehend the evidence, yet the spousal support awarded was too low in relation to the Guidelines range (see para. 42). [ 24 ] Mrs. Smith asserts the circumstances enunciated by the trial judge fail to meet the accepted list of exceptions set out by the Guidelines and the jurisprudence.

This argument is flawed in that it suggests an exhaustive list of legitimate exceptions exists, which can be relied upon when calculating the support range pursuant to the Guidelines . No such exhaustive list exists in the Guidelines . The authors of the Guidelines have stated: “We recognize that any list of itemized exceptions will not be exhaustive” (Rogerson, Carol and Thompson, Rollie, Spousal Support Advisory Guidelines , Department of Justice Canada, July 2008, s. 12). More importantly, no such list exists at law. [ 25 ] Mrs.

Smith’s written submission refers to a number of appellate court decisions, from this Court, as well as other jurisdictions, in arguing that when entitlement to spousal support exists, courts must determine if there are any exceptional circumstances that would justify an amount other than those included in the Guidelines range, and if no such exceptional circumstances exist, the court must order support as per the Guidelines range. I would point out that this Court did not find that courts are bound by the Guidelines range, unless exceptional circumstances exist, in any of the cases referred to by Mrs.

Smith in her written submission. [ 26 ] In D.L.M. v. J.A.M ., 2008 NBCA 2 , 326 N.B.R. (2d) 111 , this Court held that judges “should” apply the Guidelines : Spousal support raises another issue. A judge must first determine entitlement, and then, if entitlement exists, should apply the federal Spousal Support Advisory Guidelines . Yemchuk v. Yemchuk (2005), 215 B.C.A.C. 193 , [2005] B.C.J.

No. 1748 (QL) , 2005 BCCA 406 , at paras. 63 and 64 , illustrates the need to do a thorough analysis of entitlement before any consideration of the Federal Spousal Advisory Guidelines : It is also important to note that the Advisory Guidelines do not deal with entitlement to support, but are only relevant to issues of quantum and duration of support once entitlement has been resolved. Nor do they address situations in which there are prior agreements between the parties dealing with spousal support.

It should also be stressed that the Advisory Guidelines are intended to reflect the current law, rather than to change it. They were drafted

by the authors after extensive analyses of the authorities regarding spousal support across the country, particularly the Moge, (SCC), [1992] 3 S.C.R. 813, and Bracklow, (SCC), [1999] 1 S.C.R. 420, decisions and those followingthereafter. As recently as July 2005, in the recent decision of W. v. W., 2005 BCSC 1010, [2005] B.C.J. No. 1481, Madam JusticeMartinson reviewed numerous decisions in British Columbia following Moge and Bracklow and stated (at para. 25) that in her view, theAdvisory Guidelines were in accordance with those authorities.

While decisions can undoubtedly be found in which the result would notaccord with the Advisory Guidelines, I am satisfied that their intention and general effect is to build upon the law as it exists, rather thanto present an entirely new approach to the issue of spousal support. For that reason, like Madam Justice Martinson and many otherjudges, I have no hesitation in viewing the Advisory Guidelines as a useful tool to assist judges in assessing the quantum and duration ofspousal support.

They do not operate to displace the courts' reliance on decided authorities (to the extent that relevant authorities areforthcoming) but to supplement them. In that regard, they do not constitute evidence, but are properly considered as part of counsels'submissions. This Court endorsed this approach at para. 6 of Crosman v. Crosman (2006), 299 N.B.R. (2d) 334, [2006] N.B.J. No. 186 (QL), 2006NBCA 46. Since the analysis regarding entitlement was not done in the case at bar, I would remit the matter of spousal support to thetrial judge for consideration. [para. 45] [27] Mrs. Smith also contends that in S.C. v.

J.C., 2006 NBCA 46, 299 N.B.R. (2d) 334, this Court held that a trialjudge “must” utilize the Guidelines when determining quantum of spousal support. This assertion is erroneous. At paragraph 6 of S.C. v.J.C., Larlee J.A. quotes Yemchuk to the effect that the Guidelines “[…] do not operate to displace the court’s reliance on decidedauthorities […] but are properly considered as part of counsel’s submissions”. There is a great difference between demanding that a courtorder support as per the Guidelines and suggesting that the Guidelines may be properly considered by a court.

In Redpath, the Courtstated: “I do not read Yemchuk as indicating that the Guidelines must as a matter of law be used by a judge in determining support” (para.38) (emphasis in original). [28] Mrs. Smith submits the Court in Redpath found that, if an award of spousal support is substantially lower orhigher than the range, and if there are no exceptional circumstances to explain the discrepancy or spread, the standard of review shouldbe reformulated. In fact, the Court in Redpath found no such thing.

The Court in Redpath held “[…] it may be that if a particular award issubstantially lower or higher than the range and there are no exceptional circumstances to explain the anomaly, the standard of reviewshould be reformulated to permit appellate intervention” (para. 42). [29] Mrs. Smith’s written submission also relies on Fisher v. Fisher, 2008 ONCA 11, [2008] O.J. No. 38 (QL), tobolster her argument that courts must order support per the Guidelines when no exceptional circumstances exist.

However, the Court inFisher noted: “[…] The parties, their lawyers, and the courts are not required to employ [the Guidelines]” (para. 95). The Court alsonoted the Guidelines “[…] will not help in atypical cases” (para. 96). This is not an argument for mandatory application of Guidelinesranges by courts. [30] Mrs. Smith also contends that the decision Cassidy v. McNeil, 2010 ONCA 218, [2010] O.J. No. 1158 (QL),suggests that “[…] not only must the Guidelines be respected, selection of the support amount within the ranges must be explained”.However, the Court in Cassidy did not impose any such obligation.

The Court held the trial judge was required to consider variousfactors mandated by the Divorce Act, but had not. As the trial judge had attempted to use the Guidelines range in calculating the award, itis only logical that the Court of Appeal would do so when varying the award. This does not entail mandatory application of Guidelinesranges. [31] In the case before us, we need not consider whether the common law should be adapted to provide that aspousal support award which does not follow the Guidelines gives rise to an error of law.

This appeal succeeds based on an error of fact.However, it is worthwhile to briefly comment on the judicial role in adapting the common law. Justice Iacobucci, speaking for theSupreme Court in R. v. Salituro, (SCC), [1991] 3 S.C.R. 654, [1991] S.C.J. No. 97 (QL), stated: [...] The courts are the custodians of the common law, and it is their duty to see that the common law reflects the emerging needs andvalues of our society. [para. 54] [32] However, the Court in Salituro also cautioned against courts being overly quick in reshaping the common law:

[...] Judges can and should adapt the common law to reflect the changing social, moral and economic fabric of the country. Judges should not be quick to perpetuate rules whose social foundation has long since disappeared. Nonetheless, there are significant constraints on the power of the judiciary to change the law.

As McLachlin J. indicated in Watkins , supra , in a constitutional democracy such as ours it is the legislature and not the courts which has the major responsibility for law reform; and for any changes to the law which may have complex ramifications, however necessary or desirable such changes may be, they should be left to the legislature.

The judiciary should confine itself to those incremental changes which are necessary to keep the common law in step with the dynamic and evolving fabric of our society. [para. 37] [Emphasis added.] [ 33 ] While it is within the jurisdiction of this Court to make incremental changes to the common law, such action should be taken with great care. [ 34 ] Although the Guidelines are not law per se , following them can enhance the legitimacy of a spousal support award, as the Guidelines promote consistency and therefore aid in the avoidance of arbitrary decision-making.

However, while the Guidelines had been considered in over 350 reported decisions nationwide by 2008 (see Rogerson, Carol & Thompson, Rollie, Spousal Support Advisory Guidelines: Report on Revisions , July 2008, Department of Justice Canada), they are still a relatively recent development. Constraining the discretion conferred upon judges by the Divorce Act with regard to spousal support awards is best left to Parliament. [ 35 ] The Guidelines are intended to promote consistency but are not meant to usurp the discretionary powers of trial judges.

Indeed, it is too early to know whether an over-dependence on the Guidelines may present problems. The Guidelines have not been subjected to the rigorous debate to which legislation is typically subjected, nor have they been in use by courts long enough to warrant their incorporation into the common law. [ 36 ] This is not to say that the Guidelines may not be included at some point in the legislation, or incorporated into the common law. Certainty of outcome is an important principle in law. The Guidelines can help promote these values. As Larlee J.A. wrote in S.C. v.

J.C concerning the Guideline s: [...] [T]heir use, through the available software, will help in the long run to bring consistency and predictability to spousal support awards. Not only will they foster settlement, they will also allow spouses to anticipate their support responsibilities at the time of separation. [para. 5] [ 37 ] While the Guidelines help to promote consistency in judgments, and therefore a greater measure of certainty in law, they do not constitute law.

Therefore, while judges would be wise to follow the Guidelines , and usually do so, they should not be mandated to do so even when their reasons for decision do not bring into play an exception listed in ch. 12 of the Guidelines . VII.

Section 15.2 of the Divorce Act [ 38 ] Mrs. Smith says that the trial judge made an error of law in misapplying

section 15.2 of the Divorce Act . It is my view that Mrs. Smith is incorrect in framing the trial judge’s findings as an error in law. The error is one of mixed law and fact. In Housen , the Court states: Where the legal principle is not readily extricable, then the matter is one of "mixed law and fact" and is subject to a more stringent standard. The general rule, as stated in Jaegli Enterprises, supra , is that, where the issue on appeal involves the trial judge's

interpretation of the evidence as a whole, it should not be overturned absent palpable and overriding error. [para. 36] [ 39 ] In regard to the case before us, the following statement from Housen is most apposite:

However, where the error does not amount to an error of law, a higher standard is mandated. Where the trier of fact has considered all theevidence that the law requires him or her to consider and still comes to the wrong conclusion, then this amounts to an error of mixed lawand fact and is subject to a more stringent standard of review: Southam, supra, at paras. 41 and 45. [para. 28] [40]

Section 15.2(4) of the Divorce Act states that courts must take the means of each spouse into consideration. Inthe case at bar, the judge considered the appropriate facts, but misapprehended them. The issue in the second ground of appeal involvesthe trial judge’s

interpretation of the evidence and its application to the Divorce Act. The issue on appeal is therefore a matter of mixedfact and law, and the standard of review is that of palpable and overriding error. [41] A trial judge’s application of

section 15.2 of the Divorce Act involves broad discretion. In order to avoid theappearance of arbitrary decision-making, reasons must be given when exercising discretion. However, as the Supreme Court noted inHickey: When family law legislation gives judges the power to decide on support obligations based on certain objectives, values, factors, andcriteria, determining whether support will be awarded or varied, and if so, the amount of the order, involves the exercise of considerablediscretion by trial judges.

They must balance the objectives and factors set out in the Divorce Act or in provincial support statutes withan appreciation of the particular facts of the case. It is a difficult but important determination, which is critical to the lives of the partiesand to their children. Because of its fact-based and discretionary nature, trial judges must be given considerable deference by appellatecourts when such decisions are reviewed. [para. 10] [Emphasis added.] [42]

Section 15.2(6)(

d) of the Divorce Act requires that spousal support orders promote the economic self-sufficiency of the parties.

Section 15.2(6) of the Divorce Act states in part: Objectives of spousal support order 15.2(6) An order made under subsection (1)or an interim order under subsection (2) thatprovides for the support of a spouse should […] (

d) in so far as practicable, promote theeconomic self-sufficiency of each spousewithin a reasonable period of time. [Emphasisadded.] Objectifs de l’ordonnance alimentaire auprofit d’un époux 15.2(6) L’ordonnance ou l’ordonnanceprovisoire rendue pour les aliments d’unépoux au

titre du présent

article vise : […]

d) à favoriser, dans la mesure du possible,l’indépendance économique de chacun d’euxdans un délai raisonnable. [Je souligne.] [43] In S.C. v. J.C., Larlee J.A. states: Self-sufficiency is but one of four factors that must be examined. However as Bastarache J.A. pointed out in Ross v. Ross (1995), (NB CA), 168 N.B.R. (2d) 147 (C.A.), at para. 12: "[s]elf-sufficiency is nonetheless a goal to be pursued by both spouses.Spousal support is essentially designed to alleviate the economic burden of the disadvantaged spouse during the period required to attainself-sufficiency, if at all possible." [para.12] [Emphasis added.]

[ 44 ] Promotion of economic self-sufficiency is one of the objectives of a spousal support order, as per s. 15.2(6) (

d) of the Divorce Act . This objective of spousal support could not be met due to palpable and overriding error in the trial judge’s view of Mrs. Smith’s circumstances. [ 45 ]

Section 15.2(4) of the Divorce Act provides in part: Factors 15.2(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 […] [Emphasis added.] Facteurs 15.2(4) En rendant une ordonnance ou une ordonnance provisoire au

titre du présent article, le tribunal tient compte des ressources , des besoins et, d’une façon générale, de la situation de chaque époux […] [Je souligne] [ 46 ] The trial judge misapprehended, in a palpable and overriding way, the evidence relating to Mr. Smith’s means. It follows that he did not properly consider those means as required by s. 15.2(4) of the Divorce Act . VIII. Conclusion [ 47 ] The Guidelines can enhance the legitimacy of a spousal support award, as they promote consistency, and therefore aid in the avoidance of arbitrary decision-making.

Certainty and predictability are hallmarks of the rule of law (see R. v. Ferguson , 2008 SCC 6 , [2008] 1 S.C.R. 96, at para. 69 ). However, trial judges should retain discretion to award spousal support either above or below the levels set in the Guidelines. Spousal support awards demand the use of discretion on the part of the trial judge applied to the facts on a case by case basis. The exceptional circumstances listed in s. 12 of the Guidelines do not constitute an exhaustive list. [ 48 ] The spousal support award in this case was not founded upon a correct appreciation of the facts.

While it is true that a lack of reasons for judgment suggests arbitrary decision-making, the trial judge did give reasons and relied upon the facts, as he found them, to come to his decision. It was therefore not arbitrary decision-making that caused the trial judge to order an inappropriate support award. It was an error of mixed fact and law in applying the Divorce Act to misapprehended facts that caused him to order an inappropriate support award. [ 49 ] To summarize, findings of fact by a trial judge are to be given deference by an appellate court.

Such findings are not to be overturned, unless palpable and overriding error is clearly present. Such an error must be plainly discernable. The Guidelines are not law, and this Court should not be quick to limit a judge’s discretionary powers as provided for by the Divorce Act . However, in order to avoid the appearance of arbitrary decision-making, a trial judge should give reasons for spousal support awards above or below the Guideline amounts. Failing to give reasons or giving reasons based on erroneous fact-finding subjects trial decisions to appellate review.

In this case, the trial judge’s decision was unsupported by the evidence, and the result of palpable and overriding errors of fact. The context provided by the trial judge’s decision, along with the trial transcripts, allows us to determine a more appropriate result without having to order a new trial. [ 50 ] In order to promote consistency in spousal support awards generally and provide fairness in the case at bar, this Court should look to the Guidelines when ordering a new spousal support award, just as the trial judge did, even though he erroneously settled upon an award outside the Guidelines range.

In this case, counsel for Mrs. Smith provided the Guidelines range based upon Mr. Smith’s income of $62,500, Mrs. Smith having no income and a marriage of 31 years. Those Guideline amounts are as follows: a. Low: $1,965 per month

b. Middle: $2,293 per month c. High: $2,511 per month Counsel for Mr. Smith argued the Guidelines are “advisory only”. As such, it was not necessary to fall “squarely within one of the exceptions in order to set the spousal support range in a range that differs from these guidelines”. [ 51 ] The trial judge decided Mr. Smith could not pay spousal support according to the Guidelines and ordered a payment of $1,000 per month.

There is an obligation upon the judge to undertake an analysis to explain why he rejected the amounts suggested in the Guidelines. [ 52 ] I have undertaken a calculation utilizing the “Without Children Support Formula” of the Guidelines . Using Mr. Smith’s annual income of $62,500, Mrs. Smith’s annual income at the time of trial, $15,600 (30 hours/week x $10/hour x 52 weeks), the length of co-habitation (31 years) and Mrs. Smith’s age, 52, the resulting Guidelines ranges are: a. Low: $1,465 per month b. Middle: $1,709.50 per month c. High: $1,954 per month Considering that Mrs.

Smith did have income at the time of trial (contrary to what was utilized in her calculation) I would award the amount of $1,709.50 per month (middle range in the Guidelines ). [ 53 ] The marriage of the parties lasted well over 20 years. Therefore, indefinite (without specified duration) support is appropriate, as per s. 7.1 of the Guidelines . The Guidelines’ recommendations concerning indefinite support also reflect New Brunswick jurisprudence in long-term marriages. (See Boudreau v. Brun, 2005 NBCA 106 , 293 N.B.R. (2d) 126, Adams v. Adams, 2003 NBCA 10 , 256 N.B.R. (2d) 136, and exceptions Mills v.

Mills , 2010 NBCA 20 , 356 N.B.R. (2d) 351, S.C. v. J.C. ). IX. Disposition [ 54 ] For these reasons, I would allow the appeal, set aside the order made in the court below and set the amount of spousal support payable in the amount of $1,709.50 per month. I would order costs in the amount of $2,000. ____________________________ KATHLEEN A. QUIGG, J.A. WE CONCUR: _____________________________ M.E.L. LARLEE, J.A.

_____________________________ BRADLEY V. GREEN, J.A.