r v. Sangster, 2014 NBCA 14

COURT OF APPEAL OF NEW BRUNSWICK 75-13-CA ALEXANDER ALFRED SANGSTER APPELLANT ALEXANDER ALFRED SANGSTER APPELANT - and - - et - CECILIA MARY SANGSTER RESPONDENT CECILIA MARY SANGSTER INTIMÉE Sangster v. Sangster, 2014 NBCA 14 Sangster c.

Sangster, 2014 NBCA 14 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 a decision of the Court of Queen’s Bench: June 12, 2013 Appel d’une décision de la Cour du Banc de la Reine : le 12 juin 2013 History of Case: Historique de la cause : Decision under appeal: 2013 NBQB 201 Décision frappée d’appel : 2013 NBBR 201 Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o.

Appeal heard: February 18, 2014 Appel entendu : le 18 février 2014 Judgment rendered: March 20, 2014 Jugement rendu : le 20 mars 2014

Reasons for judgment by: The Honourable Justice Larlee Motifs de jugement : l’honorable juge Larlee Concurred in by: The Honourable Justice Quigg The Honourable Justice Green Souscrivent aux motifs : l’honorable juge Quigg l’honorable juge Green Counsel at hearing: Alexander Alfred Sangster appeared in person For the respondent: Howard T. Myatt Avocats à l’audience : Alexander Alfred Sangster a comparu en personne Pour l’intimée : Howard T. Myatt THE COURT The appeal is dismissed with costs.

The judgment of the Court was delivered by LARLEE, J.A. [ 1 ] Cecilia Sangster and Alexander Sangster were married on July 5, 1980, and divorced on December 18, 2005. On that date, the parties entered into a consent order that included specific terms for the payment of spousal support. Mrs. Sangster was awarded one-half of Mr. Sangster’s severance benefits, half of his pension and spousal support of $1,300 a month. On January 2, 2013, Mr. Sangster, 56, took early retirement from the Canadian Armed Forces. As a result, his annual income was reduced from $74,875.55 to $39,538.14.

On May 27, 2013, a judge of the Court of Queen’s Bench, heard a motion pursuant to the Divorce Act , R.S.C. 1985, c. 3 (2nd Supp.) in which Mr. Sangster sought variation or termination of the spousal support based on this change in circumstances: the reason for his decision to retire was that he was at the end of his career, and he wanted to avoid a transfer out of the province. Mrs. Sangster opposed the motion and sought an increase in spousal support. The motion judge held there was no evidence to suggest Mr.

Sangster’s decision to retire was truly motivated by a desire to avoid a transfer, implying there were other motives at play. As Mrs. Sangster also failed to advance sufficient evidence of a material change in circumstances, the motion was dismissed and the consent order remains undisturbed. [ 2 ] There is one issue to be resolved on appeal: whether the motion judge made a palpable and overriding error in deciding there had not been a material change in circumstances.

[3] The standard of review to be followed in family matters dictates that the judge’s decision willbe given considerable deference. In Lang v. Lang, [2007] N.B.J. No. 348 (C.A.) (QL), Richard J.A. discussed the standard with respectto findings of fact: 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 anerror of law, an error in the application of the governing principles or a palpable and overriding error in the assessment of the evidence(see Housen 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] See also: P.R.H. v. M.E.L., 2009 NBCA 18, [2009] N.B.J. No. 77 (QL), MacDonald v. MacDonald, 2011 NBCA 25, 372 N.B.R. (2d)179; Smith v. Smith, 2011 NBCA 66, 375 N.B.R. (2d) 208; Grant v. Grant, 2012 NBCA 101, 397 N.B.R. (2d) 254; and Simon v. Adey,2012 NBCA 63, 391 N.B.R. (2d) 189. [4] At the appeal hearing Mr. Sangster presented a motion for fresh evidence which he arguedwould establish his reasons for leaving the military.

The law with respect to the admissibility of fresh evidence in the criminal lawcontext is set out in Palmer v. The Queen, (SCC), [1980] 1 S.C.R. 759, [1979] S.C.J. No. 126 (QL), followed by thisCourt in Walsh (Re), 2008 NBCA 33, 335 N.B.R. (2d) 1, para. 42. As Bell J. A. points out in L.T.G. v. C.J.G., 2011 NBCA 12, 369N.B.R. (2d) 202: […] Subject to minor modifications those principles apply to family and other civil matters.

In order to be admitted, the evidence mustnot have been reasonably discoverable prior to trial by the application of due diligence, would probably have an influence upon theresult, and must be apparently credible, although it need not be incontrovertible: Workers' Compensation Board v. McCarthy (1982), (NB CA), 42 N.B.R. (2d) 160, [1982] N.B.J. No. 309 (C.A.) (QL), paras. 4-6; Ryan v. Law Society of New Brunswick[2000] N.B.J. No. 540 (C.A.) (QL), para. 13; P.R.H. v. M.E.L., 2009 NBCA 18, 343 N.B.R. (2d) 100, para. 40, and cases cited therein.[…] [para. 9] [5] As in L.T.G. v.

C.J.G., I am of the view the evidence the appellant seeks to produce on appealwas fully discoverable before trial. It could have been tendered at trial, and I would dismiss the motion to admit fresh evidence. [6] The question the motion judge had to answer was whether Mr. Sangster’s retirement from themilitary brought about a material change in circumstances. The motion judge finds: There is little documentary evidence of the reasons Mr. Sangster decided to leave his job. He informed the Court he decided to retirebecause he was scheduled for transfer out of New Brunswick.

With 35 years in the Forces and at age 56, he elected to take earlyretirement to stay in New Brunswick. Mr. Sangster provided no proof of his assertions about the notice of transfer, the timing of themove from the Province, or whether he had any options to refuse this order. [para. 7] [7] The motion judge reviews the law with respect to whether voluntary retirement is sufficient todetermine if there has been a material change in circumstances: LeMoine v. LeMoine (1997), (NB CA), 185 N.B.R.(2d) 173, [1997] N.B.J. No. 31 (C.A.) (QL), para. 10 and Vennels v. Vennels, [1987] B.C.J. No. 2120 (B.C.S.C.) (QL).

He concludes: Mr. Sangster has testified that his purpose in obtaining his early retirement was to avoid a pending transfer from the Province of NewBrunswick. He has alleged this to be the situation and the onus is upon him to establish this as a fact. I am not convinced he has satisfiedthat onus. Indeed, the only evidence proffered in this instance would tend to suggest that, if there was an imminent move, it was not theprimary reason for Mr. Sangster’s retirement. [para. 37] [8] The motion judge determined Mr.

Sangster failed to establish a material change incircumstances sufficient to justify a variation of the consent order. In reviewing his decision, I do not encounter any errors in principle, ora serious misrepresentation of the evidence. In short, I find the motion judge's decision to be free of reversible error.

[ 9 ] Although the fresh evidence was not admissible and is not determinative of the appeal, we are alive to the current situation: Mr. Sangster’s partner is now ill, he will not be able to do supplementary work because he will need to fulfill a caregiver role, and his partner’s salary has been reduced since she will be in receipt of a disability pension. These facts, and Mrs. Sangster’s lawyer conceded this point, seem to have overtaken the decision under appeal (see B.G.E. v. D.E. , 2012 NBCA 1 , 382 N.B.R. (2d) 318, para. 5 ). Mr.

Sangster’s situation today may warrant another assessment at the trial level to determine whether there has been a material change in circumstances, if the parties cannot reach an agreement with respect to spousal support. [ 10 ] For these reasons I would dismiss the appeal and award costs of $1,000. ______________________________ M.E.L. LARLEE, J.A. WE CONCUR: _________________________________ KATHLEEN A. QUIGG, J.A. __________________________________ BRADLEY V. GREEN, J.A.