C.C. Petitioner, v. E.G., 2023 NBKB 66

2023 NBKB 066 Court File Number: FDB-297-2021 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF BATHURST BETWEEN: C.C. Petitioner, -and- E.G. Respondent. DECISION BEFORE: The Honourable Justice Michel A. Robichaud AT : Bathurst, New Brunswick DATE OF HEARING : March 14, 16, 17, 20, 21, 22, 23 and 24, 2023. DATE OF DECISION : April 20, 2023 APPEARANCES: Carine Guignard, on behalf of the Petitioner E.G., per se . [TRANSLATION] M.A.

Robichaud, J. : Introduction [ 1 ] This is a Petition for Divorce filed by the Petitioner on November 12, 2021, in which the main issues are decision-making responsibility, parenting time, child support, support for the Petitioner and the division of property and debts. [ 2 ] The Respondent filed an Answer and Counter-Petition on or about February 25, 2022, which he amended on March 9, 2023. [ 3 ] The Petitioner filed an Answer to Counter-Petition on or about May 20, 2022.

Background [ 4 ] The Petitioner is 35 years of age, having been born on [...], 1987. She is currently a hairstylist and part-time janitor at The Brick, a store in Bathurst. [ 5 ] The Respondent is 40 years of age, having been born on [...], 1982. He is a social worker employed by Mi'Gmaq Child and Family Services of New Brunswick Inc. [ 6 ] The parties met in 2005.

They began cohabiting in July 2006, were married on August 5, 2011, and separated on May 19, 2020. [ 7 ] Two children were born to the parties: C.G., born on [...], 2007 (“C.G.”), and X.G., born on [...], 2010 (“X.G.”), “the children.” [ 8 ] The Respondent remained in the marital home following the parties’ separation. Issues: [ 9 ] The issues in this case are: (

a) Decision-making responsibility and parenting time; (

b) Child support; (

c) Support for the Petitioner; (

d) Division of property and debts; (

e) Division of the Respondent’s pensions; (

f) Health insurance; (

g) Costs. Credibility [ 10 ] The credibility of the parties became a deciding factor in these proceedings. [ 11 ] The Petitioner’s testimony was very credible and specific. Her statements were direct, and she answered without hesitation under cross-examination. I find that she was telling the truth. [ 12 ] I cannot say the same for the Respondent.

His testimony was less credible than that of the Petitioner, mainly because his testimony was generally complex, imprecise, vague, exaggerated, inconsistent and sometimes contradictory. [ 13 ] Under cross-examination, he often responded with a question rather than an answer. I am not questioning the truthfulness of his answers, as I accept that he believed he was telling the truth, but rather his general failure to appreciate the issues. [ 14 ] Where there was inconsistency in the evidence of the parties, especially on matters relating to the children, I prefer the Petitioner’s testimony.

Decision-making responsibility and parenting time Status quo [ 15 ] Since the separation in May 2020, the status quo has gone through two main phases, from May 2020 to April 2022 and from May 2022 until the trial. [ 16 ] During the first phase, from May 2020 to April 2022, decision-making responsibility was joint and parenting time was shared, alternating on a weekly basis, for both children.

[ 17 ] During the second phase, from May 2022 until the trial, decision-making responsibility was joint, but parenting time was shared, alternating on a weekly basis, for X.G., the younger child; C.G., the older child, decided not to go to her father’s house anymore. Since then, C.G. has refused to go to her father’s house and has been living with the Petitioner .

Parental alienation [ 18 ] The Respondent is convinced that the Petitioner is engaging in parental alienation and that she is encouraging C.G. not to go to his house. [ 19 ] The Petitioner testified that the main reason C.G. did not want to go to her father’s house was because she did not feel “at home” anymore. C.G. apparently told her that her “home” was now occupied by strangers. [ 20 ] It is important to note that the Respondent has remained in the marital home since the separation and that he began cohabiting with his new partner only a few months after the separation.

As a result, when C.G. went to her father’s house, she no longer felt “at home” and found herself sharing her former residence with the Respondent’s new partner and her children. [ 21 ] Having considered the totality of the evidence and the Respondent’s submissions, I cannot come to the same conclusion. In my view, there are several reasons why C.G. does not want to see her father or go to his home. In fact, she apparently gave him a written list (Exhibit 42) during a consultation with Dr. Frederick, the psychologist who treated her in 2022. Dr. Frederick [ 22 ] In June 2022, C.G. was referred to Dr.

Frederick, a psychiatrist at Chaleur Regional Hospital, because she was sometimes weak, lacked energy, had nausea and was losing weight. [ 23 ] In August 2022, during a session with Dr. Frederick, C.G. said that her father was forcing her to like his partner and her daughters. The Respondent said that C.G. was lying and that discussions between them about his partner turned into arguments. [ 24 ] In September 2022, C.G. was doing better, had continued to gain weight, was smiling, had no symptoms of anxiety and was not engaging in any problematic eating behaviours. Dr.

Frederick asked her to give “her list” to the Respondent. The Respondent and C.G. argued, and C.G. said she did not want to have any further contact with her father. [ 25 ] The Respondent asked to meet with Dr. Frederick alone, as he said that C.G. was not telling him the truth. Dr. Frederick was open to this suggestion provided that C.G. agreed. She refused, and the Respondent filed a complaint against Dr. Frederick. As a result of the Respondent’s complaint against him, Dr. Frederick closed his file. [ 26 ] The Petitioner considers it unfortunate that Dr.

Frederick is no longer able to see C.G., as the consultations with Dr. Frederick were positive for her. Decision-making responsibility [ 27 ] The Petitioner’s application changed three (3) times. Her Petition seeks exclusive decision-making responsibility for both children, her Brief seeks joint decision-making responsibility for X.G. and exclusive decision-making responsibility for C.G., and her closing remarks indicate that she would agree to joint decision-making responsibility for both children. [ 28 ] The Respondent’s application also changed twice.

His original Answer and Counter-Petition sought joint decision-making responsibility for both children, but his Amended Answer and Counter-Petition seeks joint decision-making responsibility for C.G., giving him veto power in the event of an impasse, and exclusive decision-making responsibility for X.G. He apparently declined the Petitioner’s offer to share decision-making responsibility jointly.

Parenting time [ 29 ] As with decision-making responsibility, the parties do not agree on parenting time. [ 30 ] The Petitioner seeks that it be shared, alternating on a weekly basis, for X.G. and that it be at C.G.’s discretion.

[ 31 ] The Respondent’s application in his Amended Answer and Counter-Petition is described as follows: [TRANSLATION] “ That each party have parenting time with respect to the said shared children, but that the child C.G. be in the care (Parenting Time) of the Petitioner at all times and that the child X.G. be in the care (Parenting Time) of the Respondent at all times, with due regard to the wishes of the children, and that parenting time for both the Petitioner and the Respondent be free and generous. ” Conclusion - Decision-making responsibility and parenting time [ 32 ] With respect to parenting time, I am satisfied, based on the status quo period between the date of separation and the trial, that parenting time for each of the children should be in their respective best interests. [ 33 ] In short, the children had parenting time with their parents every other week from May 2020 to April 2022.

This worked very well in the case of the younger child, X.G. However, the eldest, C.G., ran into difficulties around May 2022 when she decided not to go to her father’s house anymore, and she has not been there since. [ 34 ] C.G.’s case is serious in that she is firm in her decision not to spend a week with her father and his new partner. However, she says she wants to resume her relationship with her father on a voluntary, gradual and shorter-term basis. [ 35 ] I note three important factors with respect to C.G.’s wishes.

First, she is stressed and concerned about the wording of the Interim Order that requires her to spend a week with her father notwithstanding that she does not want to. This statement was made as part of the Petitioner’s testimony. [ 36 ] The second factor is the incident with Dr. Frederick. This incident shows that C.G. would like to reconnect with her father, but he is not receptive to her suggestions. At a consultation where both the Petitioner and the Respondent were present, C.G. wanted to give her father a written list telling him why she did not want to see him.

Instead of reading and listening to her reasons, the Respondent dug in his heels with her and Dr. Frederick. The Respondent’s reaction was to file a complaint against Dr. Frederick. [ 37 ] The third factor arose when she told her father she wanted to rebuild their relationship gradually. Unfortunately, the Respondent did not accept her invitation.

In his view, it was a week or nothing at all, if I understood his testimony and reasoning correctly. [ 38 ] These three factors weighed heavily in my decision about parenting time with C.G. [ 39 ] Considering the totality of the evidence in the context of the definition of “ best interests of the child ” as set out in the Divorce Act , the age of the children, the proximity of the parties’ residences, the tension between the parties and the tension between C.G. and the Respondent, it is my decision that:

a) the Petitioner and Respondent are granted joint decision-making responsibility with respect to X.G. and the Petitioner’s decision will be final in the event of an impasse between the parties;

b) the Petitioner is granted exclusive decision-making responsibility with respect to C.G.;

c) the Petitioner and Respondent will share parenting time for X.G., alternating on a weekly basis;

d) the exchange for X.G. will be on Fridays at 5:00 p.m.;

e) the Petitioner is granted a majority of parenting time with respect to C.G.; and

f) considering C.G.’s age, as well as the totality of the evidence, the parenting time allocated to the Respondent with respect to C.G. will be liberal and general, but according to C.G.’s wishes. [ 40 ] My determinations with respect to C.G. should relieve the stress she was experiencing because of her obligation to go to her father’s house pursuant to the Interim Order of May 16, 2022, enable her to resume her therapies with Dr. Frederick and allow her to reassess her position on gradually and progressively returning to parenting time with her father.

[ 41 ] To facilitate the understanding and enforcement of parenting time, to prescribe parenting time for important days and to provide some corollary details, I will make an order in this regard dated the date hereof. Child support [ 42 ] The Petitioner seeks child support retroactive to the date of separation.

The Respondent seeks the same child support relief. [ 43 ] Following the separation, the Respondent paid the Petitioner two hundred dollars ($200) every two weeks for a total of eight thousand four hundred dollars ($8,400) between 2020 and 2022 for the support of the children. [ 44 ] The Interim Order of May 16, 2022, as amended on November 21, 2022, requires the Respondent to pay the Petitioner one thousand and twenty-one dollars ($1,021) monthly for the support of the children.

Petitioner’s income [ 45 ] The Petitioner’s income on line 150 for 2020 to 2022 is as follows: Year Income 2020 $15,283 2021 $13,619 2022 $19,997 ($22,624 - $2,627 in support) 2023 $13,619 (anticipated and without support) Respondent’s income [ 46 ] The Respondent’s income on line 150 for 2020 to 2022 is as follows: Year Income 2020 $97,928 2021 $95,521 2022 $127,523 2023 $84,000 (anticipated) [ 47 ] The Respondent explained the fluctuation in his income in 2022 and 2023 as follows under cross-examination:

a) In 2022, he received a cumulative salary increase of thirty thousand dollars ($30,000) retroactive to 2018; and

b) In 2023, he has been on partial sick leave and cannot be “on call”; therefore he is earning less. [ 48 ] The effect of the fluctuation in the Respondent’s income in 2022 is that his income for the years between 2020 and 2022 must be adjusted.

This adjustment is calculated by first reducing his income for 2022 by thirty thousand dollars ($30,000), to ninety-seven thousand five hundred and twenty-three dollars ($97,523), adding six thousand dollars (thirty thousand dollars ($30,000) divided by five (5), this being the period over which the increase applies (2018 to 2022)), and adding six thousand dollars ($6,000) to the years 2020 and 2021. [ 49 ] Based on the above calculation, the Respondent’s adjusted income for 2020 to 2022 is as follows: Year Income 2020 $103,928 (adjusted) 2021 $101,521 (adjusted)

2022 $103,523 (adjusted: $127,523 - $30,000 + $6,000) 2023 $84,000 (anticipated) The tables [50] Under the Federal Child Support Guidelines, the amounts payable by the Petitioner for the children, with the above parenting time, would be asfollows: a) $164.13 per month from June 1, 2020, to December 1, 2020, inclusive; b) $103.65 per month from January 1, 2021, to December 1, 2021, inclusive; and c) $308.33 per month from January 1, 2022, to April 1, 2022, inclusive. [51] Under the Federal Child Support Guidelines, the amounts payable by the Respondent for the children, with the above parenting time, would be asfollows: a) $1,453.32 per month from June 1, 2020, to December 1, 2020, inclusive; b) $1,423.25 per month from January 1, 2021, to December 1, 2021, inclusive; c) $1,448.37 per month from January 1, 2022, to April 1, 2022, inclusive; and d) $1,198.00 commencing May 1, 2022.

Retroactivity [52] The leading case law on the issue of retroactivity comes from the Supreme Court of Canada decisions in D.B.S. v. S.R.G. (2006) 2006 SCC 37, 351 N.R. 201 (SCC) and Colucci v. Colucci 2021 SCC 24 , [2021] S.C.J.

No. 24. [53] The factors identified in D.B.S., and confirmed in Colucci, to justify the retroactive variation of an order are summarized as follows: first, a materialchange in circumstances must be established; ➢ If there is a change, consider: o The reasons for the delayed application; o The payor’s conduct; o The circumstances of the children; o Hardship arising from the retroactivity. ➢ Next, the court must: o Determine the date of retroactivity; o The applicable amount; o Limit the period to three years, save in exceptional circumstances. ➢ Once all of this has been analyzed and determined, the court must consider whether such an order would cause undue hardship to the payor. [54] Change in circumstances: This factor does not apply in this case, as this is an original application. [55] Reasons for the delayed application: The parties separated on May 19, 2020, and the Petition was filed on November 12, 2021.

In my view, thisdoes not constitute an unreasonable delay in this case. [56] Payor’s conduct: The Petitioner says that the Respondent paid her two hundred dollars ($200) every two weeks between May 2020 and April 2022.I find that he acknowledges his obligation to support the children and has done so from the date of separation. [57] Circumstances of the child: D.B.S. asks the court to analyze the effect of a retroactive order on the children’s lives, i.e., their current standard of

living compared to their standard of living on the date of retroactivity. This case involves two children for whom parenting time was shared, alternating on a weekly basis, between 2020 and 2022. The Respondent earned an average of one hundred thousand dollars ($100,000), rounded, and the Petitioner earned an average of sixteen thousand dollars ($16,000), rounded, during that period.

Clearly, the children had financial needs that the Petitioner had difficulty meeting because of her insufficient income. [ 58 ] Hardship arising from the retroactivity : In this case, the Respondent is seeking a reduction in the amount because he has two more children with his partner. The case law does not support this approach unless there is abundant and complete evidence of the parties’ family circumstances in the context of an undue hardship application.

This issue will be discussed below. [ 59 ] Date of the application: This factor is not relevant, as the Respondent was paying support voluntarily. [ 60 ] Applicable amount: The evidence in this case is that the Respondent’s gross annual income for 2020 was $103,928.00. The applicable monthly support amount for two children is therefore $1,453.32 under the Guidelines .

Given the shared parenting time during this period, this amount can be reduced by an amount attributable to the Petitioner of $164.13 , based on her income of $15,283 in 2020; the difference between the two is $1,289.22 monthly. [ 61 ] The same scenario occurs in 2021 and 2022, until April 1, 2022. [ 62 ] Limit the period to three years, save in exceptional circumstances: In this case, a period of seventeen (17) months passed between the date of separation and the filing of the Petition.

Conclusion on retroactive child support [ 63 ] The Petitioner’s application for child support retroactive to June 1, 2020, is allowed for the above reasons.

Section 9 [ 64 ]

Section 9 of the Guidelines reads as follows: Shared parenting time 9 If each spouse exercises not less than 40% of parenting time with a child over the course of a year, the amount of the child support order must be determined by taking into account (

a) the amounts set out in the applicable tables for each of the spouses; (

b) the increased costs of shared parenting time arrangements; and (

c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought. [ 65 ] In S.A.H. v. K.A.H . [1] , Baird, J.A. of the Court of Appeal had the following to say about s. 9 of the Guidelines : 23 In some cases, it is only one parent who buys or primarily buys the school supplies and pays for the lunches at school, the clothing and the extracurricular expenses, or perhaps the uninsured portion of dental and medical expenses.

In that case, the obligation on a judge to consider the increased costs of shared parenting and “the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought” may cause the judge to deviate from the straight set-off.

Section 9 has been described as a “vexing”

section for lawyers and judges because it sets out a two-step process to the analysis, but it allows for a deviation from a straight set-off as a matter of discretion. In J.C.M. v. M.J.M. , 2018 NBCA 42 , [2018] N.B.J. No. 158 (QL) , the Court wrote: In my opinion, this ground of appeal has merit.

Section 9 is a vexing

section for both lawyers and courts alike. In 2005, the Supreme Court attempted to

answer some of the questions concerning its applicability. In Contino[2], Bastarache J. set out a framework for the analysis when there is a finding theparents have a shared custody arrangement (para. 43). In doing so, Bastarache J. stated the following: These objectives create a palpable tension in the Guidelines (Rogerson, at pp. 59 and 93). At para. 40 in Francis v. Baker [ (SCC), [1999]3 S.C.R. 250, [1999] S.C.J.

No. 52], I wrote that the proper construction of a provision “requires that the objectives of predictability, consistency andefficiency on the one hand, be balanced with those of fairness, flexibility and recognition of the actual ‘condition[s], means, needs and other circumstancesof the children’ on the other”. Like s. 4 in that case, s. 9 must here be interpreted with these objectives in mind.

Parliament, in adopting s. 9, deliberatelychose to emphasize the objectives of fairness, flexibility and recognition of the actual conditions, means, needs and other circumstances of each spouse andof any child for whom support is sought, even if to the detriment of predictability, consistency and efficiency to some degree. The legislator recognized in s.9 that there is a wide range of situations of shared custody depicting the reality of different families. The British Columbia Court of Appeal, in the samevein, observed that there is a myriad of fact patterns which come under the application of s. 9: Green v.

Green, [2000 BCCA 310, [2000] B.C.J. No. 1001],at para. 34. The specific language of s. 9 warrants emphasis on flexibility and fairness. The discretion bestowed on courts to determine the child support amount inshared custody arrangement calls for the acknowledgment of the overall situation of the parents (conditions and means) and the needs of the children. Theweight of each factor under s. 9 will vary according to the particular facts of each case. [...]

Section 9(

c) vests the court a broad discretion for conducting an analysis of the resources and needs of both the parents and the children. As mentionedearlier, this suggests that the Table amounts used in the simple set-off are not presumptively applicable and that the assumptions they hold must be verifiedagainst the facts, since all three factors must be applied. Here again, it will be important to keep in mind the objectives of the Guidelines mentioned earlier,requiring a fair standard of support for the child and fair contributions from both parents.

The court will be especially concerned here with the standard ofliving of the child in each household and the ability of each parent to [absorb] the costs required to maintain the appropriate standard of living in thecircumstances. [paras. 33, 39, 68] [paras. 30-31] 25 An analysis under s. 9 is more complex than a simple set-off calculation. It is clear that a s. 9 analysis also requires consideration of the increased costsof shared parenting and a comparison of the household standards of living, the rationale being that children should expect to enjoy comparable standardsof living in each parental household.

A simple calculation based on a straight set-off between the incomes of the parents was described by Bastarache J. inContino v. Leonelli-Contino, 2005 SCC 63, [2005] 3 S.C.R. 217, as the “starting point” (para. 44). It is then incumbent upon each parent to provide child-focussed budgets in which they particularize the expenses they incur for the children. He eschewed a strict formulaic approach (paras. 37-39 and 82). 26 In G.F. v. J.A.C.F., 2016 NBCA 21, 449 N.B.R. (2d) 34, the Court wrote: Julien D. and Marilyn A.

Payne in their text, Child Support Guidelines in Canada, 2015 (Toronto: Irwin Law, 2015) state: The language of

section 9 is imperative in that its provisions are to be applied if the 40 percent criterion is satisfied. A court has no discretion to departfrom the 40 percent minimum threshold, although a discretion exists with respect to the quantification of child support under sections 9(a), (b), and (

c) ofthe Guidelines. These criteria are conjunctive; they must all be considered. [page 308] See also Payne, Julien D. and Marilyn A., Canadian Family Law, 6th ed. (Toronto: Irwin Law, 2015) pp. 411-412. [para. 13] 27 There are a number of considerations that flow from the above and explain the trial judge’s decision not to order a straight set-off under s. 9. He foundthat, even though C. was alternating his time between the two households, it was the mother who continued to pay most of his expenses.

In addition, hefound the father offered no evidence that his household expenses had increased because of C.’s presence, as contemplated in s. 9(b). In addition, the fatherhad not complied with the interim court order with respect to the s. 7 expenses, and the father did not file any child-focussed budgets (see Contino, at paras.31-33). 28 There is discretion to deviate from a straight set-off, with reasons. The judge exercised his discretion in this case, and he laid out why he thought theexisting child support order was fair for the reason C. continued to be in the primary care of his mother.

As an aside, I would observe that, because of theinadequate financial disclosure, it would not have been possible for the judge to conduct a detailed s. 9 analysis in any event (see A.S.L. v. L.S.L., 2020NBCA 15, [2020] N.B.J. No. 63 (QL); G.F. v. J.A.C.F.; J.C.M. v. M.J.M.; F.M. v. T.H., 2016 NBCA 29, 449 N.B.R. (2d) 240). 29 I adopt what Bastarache J. wrote in Contino:

The determination of an equitable division of the costs of support for children in shared custody situations is a difficult matter; it is not amenable to simple solutions. Any attempt to apply strict formulae will fail to recognize the reality of various families. A contextual approach which takes into account all three factors enunciated by Parliament in s. 9 of the Guidelines must be applied. 30 It is my view the judge turned his mind to ss. (a), (

b) and (

c) of s. 9. The father’s overall conduct affected the outcome because he did not provide evidence of increased expenses associated with C. and the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought, informed his analysis. I would dismiss this ground of appeal . [ 66 ] While applying the evidence in this case to the three (3) considerations in s. 9, I find that:

a) To begin with, the amounts payable under the applicable tables are reasonable, especially using the differential between the two respective amounts;

b) The parties had the same housing, clothing and food costs for the children because of the shared parenting time arrangement in place until April 2022, in contrast to the less than 40% parenting time split after May 2022; and

c) Without finding undue hardship, the Respondent’s precarious financial situation is difficult to resolve in the short term because he retained the vast majority of the couple’s debts.

On the other hand, the Petitioner's lower income relative to the Respondent’s income makes it difficult for her to provide for the children. [ 67 ] Considering the evidence and the specific parenting time in this case, I find that s. 9 applies in this instance. [ 68 ] However, an analysis of all the evidence will be necessary to determine the final amount of child support in this case. [ 69 ] That said, I can think of only two (2) possible adjustments to the table amounts in this case that might apply under s. 9. [ 70 ] The first is a differential between one hundred percent (100%) of the table amount and a fifty percent (50%) reduction of the table amount plus the differential, because each party had the children half the time. [ 71 ] Here is what that looks like monthly for each of these two scenarios for the period from June 2020 to April 2022 for two shared children, and from May 2022 to the present for one shared child: Two children shared equally a) 100% - June 2020: $1,453.32 - $164.13 = $1,289.19; b) 50%: $726.66 - $82.07 = $644.59; c) 100% - January 2021: $1,423.25 - $103.65 = $1,319.60; d) 50%: $711.63 - $51.83 = $659.98; e) 100% - January 2022: $1,448.37 - $308.33 = $1,140.04; f) 50%: $724.19 - $154.17 = $570.02; One child shared equally g) 75%/25%- May 2022: $1,086.28 - $77.08 = $1,009.20;

h) 75%/25% - January 2023: $898.50 - $25.91 = $872.59. [ 72 ] I note a couple of significant factors in these two scenarios, for the period from June 1, 2020, to April 1, 2022: first, the 50%/50% scenario is too far removed from the tables and generates an inadequate amount; and second, the amount in the 100% scenario with a differential is more in line with the tables and the amount is more representative of the children’s needs. [ 73 ] With respect to the period from May 1, 2022, to the present, I have the same comments, which is to say that the 75%/25% scenario is too far removed from the tables and generates an inadequate amount, especially given the fact that the Petitioner will have more parenting time cumulatively than the Respondent and that her income is much lower than that of the Respondent; the amount in the 100% scenario without a differential is more in line with the tables and the amount is more representative of the children’s needs. [ 74 ] Therefore, the application of s. 9 will not result in a table adjustment in this case, except for the differential for the period from June 1, 2020, to April 1, 2022, inclusively.

Undue hardship [ 75 ] The Respondent argues that he is experiencing undue hardship because he has taken on the vast majority of the couple’s debts and because he expects his income to drop to $84,000 in 2023 as a result of his partial sick leave. [ 76 ] A payor can plead “undue hardship,” but this requires a great deal of evidence and analysis in relation to the family income of both parties, evidence that is not on the record in this case. [ 77 ] The burden is on the Respondent.

Although he has not produced any evidence of his new partner’s income, I can nevertheless find that she is not working without pay and that the remuneration for her position should be significant. [ 78 ] Without having his partner’s income and expenses in evidence, compared with those of the Petitioner, who lives alone with her children, the Respondent has an enormous financial advantage over the Petitioner. [ 79 ] Considering the evidence in this regard, I find that the Respondent has not met his burden of satisfying me that there is sufficient “undue hardship” to deviate from the amount of child support prescribed by the Guidelines .

Conclusion on child support [ 80 ] Considering the status quo, the Guidelines , s. 9, s. 10 and the totality of the evidence, I find that the support payable by the parties in this case will be consistent with the Guidelines , without deviation and with a differential from June 1, 2020, to April 1, 2022. Retroactively [ 81 ] The Respondent is required to pay the Petitioner retroactive monthly support for the children as follows:

a) one thousand four hundred fifty-three dollars and thirty-two cents ($1,453.32) on the first day of each month from June 1, 2020, to December 1, 2020. This amount is based on his adjusted annual income of $103,928 for 2020;

b) one thousand four hundred twenty-three dollars and twenty-five cents ($1,423.25) on the first day of each month from January 1, 2021, to December 1, 2021. This amount is based on his adjusted annual income of $101,521 for 2021;

c) one thousand four hundred forty-eight dollars and thirty-seven cents ($1,448.37) on the first day of each month from January 1, 2022, to December 1, 2022. This amount is based on his adjusted annual income of $103,523 for 2022; and

d) one thousand one hundred and ninety-eight dollars ($1,198) on the first day of each month from January 1, 2023, to April 1, 2023. This amount is based on his anticipated annual income of $84,000 for 2023.

[ 82 ] The Petitioner is required to pay the Respondent retroactive monthly support for the children as follows:

a) one hundred sixty-four dollars and thirteen cents ($164.13) on the first day of each month from June 1, 2020, to December 1, 2020. This amount is based on her annual income of $15,283 for 2020;

b) one hundred and three dollars and sixty-five cents ($103.65) on the first day of each month from January 1, 2021, to December 1, 2021. This amount is based on her annual income of $13,619 for 2021; and

c) three hundred and eight dollars and thirty-three cents ($308.33) on the first day of each month from January 1, 2022, to April 1, 2022. This amount is based on her annual income of $19,997 for 2022. [ 83 ] In view of the Respondent’s higher income, and to facilitate support enforcement, the Office of Support Enforcement is authorized to collect from the Respondent only the difference between the support he is required to pay and the support the Petitioner is required to pay.

Prospectively [ 84 ] The Respondent is required to pay the Petitioner prospective monthly child support in the amount of one thousand one hundred and ninety-eight dollars ($1,198) on the first day of each month commencing May 1, 2023, and continuing until otherwise ordered by this Court.

This amount is based on his anticipated annual income of $84,000 for 2023. [ 85 ] All support amounts payable hereunder shall be paid to the New Brunswick Office of Support Enforcement (OSE). [ 86 ] The parties are required to file with the Court of King’s Bench, Judicial District of Bathurst, their previous year’s income tax return and Notice of Assessment on or before June 1st of each year starting in 2024. [ 87 ] The above support is set out in the table in

Schedule “A,” attached. Arrears [ 88 ] Based on the foregoing, the arrears of child support payable by the Respondent to the Petitioner, as of the end of April 2023, total twenty-six thousand one hundred sixty-seven dollars and sixty-five cents ($26,167.65), as set out in the table in

Schedule “A.” [ 89 ] Of this amount, the Respondent is entitled to a credit of $8,400 plus all amounts paid pursuant to the Interim Order of May 16, 2022, as amended on November 21, 2022, in this matter. This credit is reflected in the above-mentioned table. [ 90 ] To facilitate the understanding and enforcement of the above child support, including the arrears, I will issue an order of even date containing greater detail in this regard.

Special expenses [ 91 ] The parties will share the children’s special expenses under s. 7 of the Guidelines in proportion to their respective incomes on line 150 of their income tax returns for the year in question. [ 92 ] To facilitate the understanding and enforcement of the children’s special expenses, I will issue an order of even date containing greater detail in this regard. Support for the Petitioner

[93] The Divorce Act sets out the criteria to be applied when the Court is asked to determine spousal support. [94] Below are the provisions of s. 15.2 of the Divorce Act: Objectives Spousal Support Orders 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 secureand 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.

(2) Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring a spouseto 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 supportof the other spouse, pending the determination of the application under subsection (1).

(3) The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified eventoccurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just.

(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needsand 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.

(5) In making an order under subsection (1) or an interim order under subsection (2), the court shall not take into consideration any misconduct of aspouse in relation to the marriage.

(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 thesupport 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. [95] No single factor should take precedence over the others; we must consider each one separately. Entitlement to support [96] The following passages from Bracklow v. Bracklow, (SCC), [1999] S.C.J.

No. 14, [1999] 1 S.C.R. 420, are particularly relevantand warrant inclusion here: 15 The lower courts implicitly assumed that, absent a contractual agreement for post-marital assistance, entitlement to support could only be foundedon compensatory principles, i.e., reimbursement of the spouse for opportunities foregone or hardships accrued as a result of the marriage. I conclude,however, that the law recognizes three conceptual grounds for entitlement to spousal support: (1) compensatory; (2) contractual; and (3) non-compensatory.

These three bases of support flow from the controlling statutory provisions and the relevant case law, and are more broadly animated bydiffering philosophies and theories of marriage and marital breakdown. 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 theeconomic 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 dynamicsof 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 lookat the “condition, means, needs and other circumstances of each spouse”. This balancing includes, but is not limited to, the length of cohabitation, thefunctions each spouse performed, and any order, agreement or arrangement relating to support. Depending on the circumstances, some factors may loomlarger 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 livingas the primary criteria together with the ability to pay of the other party”: Ross v. Ross (1995), (NB CA), 168 N.B.R. (2d) 147 (C.A.), atp. 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 ofsupport, and exercise his or her discretion in a manner that equitably alleviates the adverse consequences of the marriage breakdown. [97] Bracklow offers a very broad basis for support. In many cases, an entitlement to support can be established on more than one basis. [98] At the age of 19, the Petitioner became pregnant with C.G. while she was training to be a hairstylist. Following C.G.’s birth, the Petitioner opened ahair salon in the basement of the marital home while caring for C.G.

When she became pregnant with X.G. in 2009, the parties agreed that the Petitionerwould care for the children until C.G. started school, when she temporarily stopped doing hair due to the costs of daycare versus the Petitioner’s potentialincome. The Respondent continued to work outside the home as a social worker and at other jobs from time to time. [99] During the marriage, the Petitioner spent a few months working in a nursing home and in daycare.

She pursued administration training in 2015 butreturned to work as a hairstylist in the marital home from July 1, 2016, until the separation, while continuing to care for the children when they came homefrom school. [100] The Respondent was responsible for the couple’s finances.

The Petitioner was financially dependent on the Respondent throughout their marriage, astheir income disparity was significant. [101] Following their separation, the Petitioner went to live with her parents in Saint-Sauveur, in the parties’ camping trailer for the summer and then in thebasement of her parents’ home until she secured an affordable house through the New Brunswick Housing Corporation in Saint-Sauveur on October 1,2021. Her rent is based on her income. [102] The Petitioner continued to do hair at the marital home, where her salon was located, in the summer of 2020 following the parties’ separation.

Shealso looked after the children and brought the children’s lunches and snacks. She was then unemployed for a few months, worked as a hairstylist in 2021 byrenting a chair in a salon and then got a job as a cleaner at The Brick store to secure an income, as hairstyling was difficult.

Her hours were then reduced atthe store, and she began to do hair again for a few hours per week in September 2022 at a salon in Bathurst where she rents a chair and must establish aclient base. [103] Considering the totality of the evidence, I find that the Petitioner is entitled to support on a non-compensatory basis primarily due to her annualincome of approximately $15,600, averaged over the years from 2020 to 2023, and her monthly budget of $3,500 to $4,000.

Application of the Guidelines [104] Having found that the Petitioner is entitled to support, all that remains is to apply the Spousal Support Advisory Guidelines. The Court must use theGuidelines as a guide in calculating the quantum and duration of support (see D.L.M. v. J.A.M., 2008 NBCA 2). Period of cohabitation [105] The parties cohabited from 2006 to 2011, married in 2011 and separated in 2020; that is fourteen (14) years of cohabitation in total. [106] The period of cohabitation in this case is therefore fourteen (14) years.

Income of the parties [107] The determination of the parties’ income in this matter must take into account the parties’ gross annual income indicated on line 150. [108] The Respondent’s income for the years from 2020 to 2022 was adjusted in the “Child support”

section above. [109] Below is a table of the parties’ income from 2017 to 2023: Year Petitioner Respondent 2017 $11,128 $58,873

2018 $12,578 $78,822 (plus $6,000) 2019 $12,220 $95,539 (plus $6,000) 2020 $15,283 $103,928 (adjusted) 2021 $13,619 $101,521 (adjusted) 2022 $19,997 $103,523 (adjusted) 2023 $13,619 $84,000 (anticipated) Date of calculation – Case law [ 110 ] To make the calculation, there is a question of law as to the proper time when or from which year the Court should determine the income of the parties, especially the Respondent’s income, for the purpose of calculating spousal support in this case. [ 111 ] The case law is not consistent on the question of law, a fact confirmed by the authors of the Spousal Support Advisory Guidelines , at

Chapter 6.7. In fact, Professors Thompson and Rogerson state that the date of hearing, which is normally close to the date of separation, is the standard, except in exceptional circumstances such as where there is a substantial change in the parties’ income between the separation and the hearing, which there is not in this case. [ 112 ] Professors Thompson and Rogerson discuss this further in

Chapter 6(

b) and

Chapter 15 of the Revised Guidelines published in February 2016. Potential dates and calculations in this case [ 113 ] According to the case law, there are two potential dates in this case, the date of separation and the trial date, which was two (2) years and ten (10) months after the separation. Either of these dates is acceptable, then, being so close together. Ranges [ 114 ] Below are the ranges (low end, midpoint, high end) of support calculated by DivorceMate as at the trial date with two shared children and as at the trial date with only one shared child:

a) June 2020 : The Respondent’s income of $103,928 and the Petitioner’s income of $15,283: $751 /$1,023/$1,342;

b) May 2023 : The Respondent’s income of $103,523 and the Petitioner’s income of $19,997: $621/$914/$1,292. [ 115 ] The range as of the trial date is based on the parties’ 2022 income, adjusted for the Respondent, rather than on “anticipated” 2023 income for the reasons discussed in the “ Child support ”

section above. Locations within the range [ 116 ] According to the authors of the Revised Guidelines , once the range has been determined, then the amount of support within the range must be determined. These are the factors to be considered:

a) The size of any compensatory claim;

b) The recipient’s needs;

c) The age, number and needs of any children;

d) The ability to pay of the payor;

e) Work incentives for the payor;

f) The ultimate division of property and debts; and

g) The financial self-sufficiency of the recipient.

a) The size of the compensatory claim [ 117 ] In this case, the basis for the Petitioner’s claim is primarily non-compensatory, along with need.

b) The needs of the Petitioner [ 118 ] The Petitioner filed in evidence one

(1) Financial Statement (Form 72J), which she updated when she testified at trial. Her actual and proposed expenses (needs). [ 119 ] The Petitioner’s Financial Statement sworn on November 8, 2021, and her testimony both describe monthly expenses of between $3,500 and $4,000, in round numbers.

c) Age, number and needs of any children [ 120 ] The children are 15 and 12 years old respectively and their needs are within the average range for children their age. They have no significant special needs.

d) Payor’s ability to pay [ 121 ] There is no doubt that the Respondent has the ability to pay reasonable support to the Petitioner, although he claims undue hardship, regardless of the range chosen between the two scenarios. [ 122 ] According to his testimony, his income will be approximately $30,000 lower in 2023 because of his medical condition.

No evidence was adduced to indicate that this is a permanent condition. [ 123 ] As I understand it, he said that his medical condition is related to the stress he is under because of his divorce, his support obligations and the debts he has assumed, and as a result he is working fewer hours. [ 124 ] It seems to me that this logic is inverted, because if he worked more hours “on call” he would earn $30,000 more per year and that would enable him to meet his financial obligations, which should relieve his stress.

e) Work incentives for the payor [ 125 ] The Respondent has a stable, promising job. He has a master’s degree in social science and is employed full time as a social worker. In a year without a medical condition, he can earn over $100,000 per year. [ 126 ] The Respondent is in a relationship with a school psychometrist employed by the Francophone Nord-Est school district, a French-language school board in the northeastern part of the province, who most likely earns a substantial income.

f) Role of the division of property and debts in the calculation [ 127 ] The table setting out the division of the above-mentioned property and debts in

Schedule “B” indicates that the Petitioner will be receiving a deficit amount in the division of property and debts and that she will be receiving a modest amount in the consolidated reconciliation of the parties’ property and debts. The amount of her support does not require a reduction in relation to the division of property and debts.

g) Petitioner’s financial self-sufficiency

[128] In this case, support is required to ensure the Petitioner’s short, medium and long-term financial self-sufficiency, considering her potential to earnmore in the future and all the other factors listed above.

Duration [129] In this case, the period of cohabitation being fourteen (14) years, the duration of support suggested by DivorceMate is between seven (7) and[fourteen] (14) years. [130] Considering the significant difference between the parties’ respective incomes since their marriage, the needs of the Petitioner, the Petitioner'smodest income and the age of the children, I find that the duration should be the maximum duration, or fourteen (14) years, beginning May 1, 2022.

Retroactivity [131] The Petitioner asks that her support be paid from the date of separation. [132] An application for retroactive spousal support is not guaranteed except in the case of an application for retroactive child support. I quote a passagefrom the Honourable Justice Thomas E. Cyr in M.L. v. S.L., 2015 NBQB 64, where he considered a similar application: In Kerr v. Baranow, 2011 SCC 10 , [2011] [S.C.J.] No 10, the Supreme Court of Canada establishes that spousal support has a different legalfoundation than child support.

Although the principles outlined in D.B.S. are relevant, specifically factors including the needs of the recipient, the conductof the payor, the reason for the delay in seeking support and any hardship the retroactive award may occasion on the payor spouse, the analysis is differentin the case of retroactive spousal support. The following passage from Kerr v. Baranow warrants particular attention: 208 (…) In contrast, there is no presumptive entitlement to spousal support and, unlike child support, the spouse is in general not under any legalobligation to look out for the separated spouse’s legal interests.

Thus, concerns about notice, delay and misconduct generally carry more weight in relationto claims for spousal support: see, e.g., M. L.

Gordon, “Blame Over: Retroactive Child and Spousal Support in the Post-Guideline Era” (2004-2005), 23C.F.L.Q. 243, at pp. 281 and 291-92. [133] In this case, the Petitioner’s need is clear from the date of separation based on the fact that she had to live in a camping trailer, in her parents’basement and in subsidized housing from New Brunswick Housing, with the children. [134] Nevertheless, I find that an order retroactive to the date of separation would cause financial hardship to the Respondent when I consider the arrearsof child support, the equalization amount for property and debts that he is required to pay to the Petitioner and his current financial situation.

Conclusion on support for the Petitioner [135] Having denied the request for retroactivity to the date of separation, I will therefore use the trial date for the calculation. [136] That said, I note that the parties’ 2023 incomes are “anticipated” and not confirmed. [137] The Respondent’s “anticipated” income for 2023 is the exception, not the norm, as he has not filed any medical evidence to the effect that he hasstopped working or permanently reduced how much he works. [138] The Petitioner’s income is also “anticipated” for 2023. [139] Given that the Petitioner began receiving interim support in May 2022 in accordance with the Interim Order of May 16, 2022, and that the partiesfiled in evidence a copy of their 2022 income tax returns, their 2022 annual income tax returns are the best evidence of their incomes as at the trial date forcalculation purposes. [140] Using $103,523 as the Respondent’s gross annual income in 2022 and the Petitioner’s gross annual income of $19,997 in 2022, the locations withinthe range are therefore $621 at the low end, $914 at the midpoint and $1,292 at the high end.

[ 141 ] Considering the Petitioner’s age and health, the significant difference in the parties’ incomes, the Petitioner’s actual needs, the ability of the Respondent to pay reasonable support to the Petitioner, the Revised Guidelines and the case law, I find that the Respondent must pay monthly support to the Petitioner, based on the midpoint in the range, in the amount of nine hundred and fourteen dollars ($914). [ 142 ] The Respondent is therefore required to pay the Petitioner monthly support in the amount of nine hundred and fourteen dollars ($914) on the first day of each month commencing May 1, 2022, for a period of fourteen (14) years ending April 1, 2036.

This amount is based on the parties’ respective gross annual incomes in 2022, being $103,523 for the Respondent and $19,997 for the Petitioner, in round numbers . [ 143 ] I note that there are arrears of three thousand one hundred and fifty-five dollars ($3,155) for the Petitioner’s support as of today’s date, according to the statement of account from the Office of Support Enforcement. [ 144 ] The cumulative arrears of support payable by the Respondent to the Petitioner as of the end of April 2023 total six thousand nine hundred and sixty- one dollars ($6,961), according to the table in

Schedule “C.” [ 145 ] To facilitate the understanding and enforcement of the Petitioner’s support, I will make a more specific order in this regard dated the date hereof. Division of property and debts [ 146 ] The Petitioner seeks an equal division and the Respondent an unequal and equitable division of property and debts. [ 147 ] The marital home is the primary focus of the Respondent's claim for an unequal division. Marital Property Act [ 148 ] The following are the relevant provisions of the Marital Property Act in this case. 3

(1) Each spouse, on application to the Court, is entitled to have the marital property divided in equal shares if (

a) a judgment granting a divorce is rendered, (

b) a marriage is declared a nullity, (

c) the spouses are living separate and apart and there is no reasonable prospect of the resumption of cohabitation, or (

d) a marriage has broken down and there is no reasonable prospect of reconciliation, whether or not the spouses are living separate and apart. 3

(2) Subject to subsection (4), no application shall be made under subsection (1) later than 60 days after a spouse ceases to be a spouse by reason of a divorce or declaration of nullity. 3

(3) For the purposes of this section, a person whose marriage is declared a nullity shall be deemed to have been a spouse during the period between the purported solemnization of marriage and the declaration of nullity. 3

(4) The Court may extend the limitation period by such length of time and on such terms as it considers just, if a person is prevented from making an application within the limitation period fixed in subsection (2) by (

a) lack of knowledge of the granting of a divorce or a declaration of nullity, or of the date of it, or

(

b) circumstances reasonably beyond his or her control. 1980, c. M-1.1, s. 3 ; 2005, c. 12, s. 1 6 If marital property to be divided under

section 3 or 4 includes a family asset that was acquired before the spouses married, or by one spouse as a gift from the other spouse or as a gift, devise or bequest from any other person, the Court may exclude that family asset from the division of marital property if, in the discretion of the Court, it would be unfair and unreasonable to the owner to include the family asset in the division of marital property, taking into account the circumstances of the case as well as one or more of the following considerations: (

a) that there was no substantial contribution by the non-owning spouse to the acquisition, management, maintenance, operation or improvement of the family asset; (

b) that the cohabitation of the spouses was of short duration; and (

c) that the spouses had an agreement, arrangement or understanding that the use of the family asset by the non-owning spouse or any of their children would not prejudice any rights of the owning spouse to the family asset, even though this was not expressed in a domestic contract. 1980, c. M-1.1, s. 6 7 Despite sections 2, 3 and 4, the Court may make a division of marital property resulting in shares that are not equal if the Court is of the opinion that a division of the marital property in equal shares would be inequitable, having regard to (

a) any agreement other than a domestic contract, (

b) the duration of the period of cohabitation under the marriage, (

c) the duration of the period during which the spouses have lived separate and apart, (

d) the date when the property was acquired, (

e) the extent to which property was acquired by one spouse by inheritance or by gift, or (

f) any other circumstances relating to the acquisition, disposition, preservation, maintenance, improvement or use of property rendering it inequitable for the division of marital property to be in equal shares. 1980, c. M-1.1, s. 7 8 In determining any application for a division of marital property, the Court may make a division of any property of either spouse that is not marital property if (

a) a spouse has, through transfer, indebtedness, mismanagement or other means, unreasonably impoverished the marital property, or (

b) the result of the division of marital property would be inequitable in the circumstances having regard to (

i) the considerations set out in paragraphs 7(

a) to (f), and (ii) the effect of the assumption by one spouse of any of the responsibilities set out in

section 2 on the ability of the other spouse to acquire, manage, maintain, operate or improve property that is not marital property. 1980, c. M-1.1, s. 8 9 In an application under

section 3 or 4, the Court, in dividing property, shall effect a fair and equitable division of marital debts and shall take into

account any tax consequences that might arise from the division of property by Court order. 1980, c.

M-1.1, s. 9 Marital home [ 149 ] The parties do not dispute that the property identified by PID 20528717, located in Allardville, N.B., is registered exclusively in the Respondent’s name and that it was used as their marital home during their marriage. [ 150 ] Notwithstanding the foregoing, the Respondent seeks to have this property excluded from division and, in the alternative, an unequal division under ss. 6 and 7 of the Act. [ 151 ] The Respondent received this property as a gift from his father in 2007, before he married the Petitioner (2011) but after the parties began cohabiting (2006). [ 152 ] Considering the totality of the evidence, I find that s. 3 (marital property) of the Act applies in this case and that this property is divisible in equal shares subject to s. 6 (exclusions) and s. 7 (unequal division).

Accordingly, s. 8 does not apply to this property because the marital home is marital property.

Section 6 [ 153 ] So, can the marital home, having been acquired before marriage, be excluded from division under s. 6 of the Act? [ 154 ] Considering that there is no domestic contract in this case, s. 6(

c) does not apply in this case. [ 155 ] The parties cohabited for fourteen (14) years, from 2006 to 2020. I find that this was not a cohabitation of short duration and therefore s. 6(

b) of the Act does not apply in this case. [ 156 ] Subsection 6(

a) contains several qualifiers relating to a spouse's contribution to the acquisition, management, maintenance, operation or improvement of the family asset, namely the marital home. [ 157 ] The evidence on this issue (6(a)) is not extensive, but there is some evidence to support the finding that the marital home cannot be excluded from the division of property under s. 6(

a) notwithstanding the fact that the Petitioner did not contribute financially towards the acquisition of that property. [ 158 ] I arrive at this conclusion in view of the fact that the parties cohabited for fourteen (14) years; that the marital home was renovated two or three times; that the Petitioner joined as a mortgagor in three (3) mortgages during their marriage, that the last mortgage was granted in 2017 for the approximate sum of one hundred thousand dollars ($100,000), that the Petitioner was obliged to sign as "Guarantor" in addition to signing as "Spouse of the mortgagor" in order for the Respondent to qualify for the loan; that the Petitioner paid for certain renovations during their marriage; and that the Petitioner was responsible for keeping the marital home clean in addition to providing her domestic [services].

Section 7 [ 159 ]

Section 7 of the Act allows the Court to make an unequal division if it is of the opinion that a division of the marital property in equal shares would be inequitable, having regard to the six criteria described in that section. [ 160 ] In this case, there is no domestic contract, the parties cohabited for fourteen (14) years, they have been separated for almost three (3) years, and the Respondent acquired the property as a gift from his father before the parties married. [ 161 ] The last criterion (7(f)), circumstances relating to acquisition, disposition, preservation, maintenance, improvement or use rendering it inequitable for the division to be in equal shares, is highly relevant in this case. [ 162 ] This criterion is very similar to the one in s. 6(

a) above (exclusion). The fact that I found under s. 6(

a) that the marital home should not be excluded does not necessarily mean that it should not be divided in unequal shares.

[ 163 ] While the evidence for the s. 6(

a) analysis is similar to that for the s. 7(

f) analysis, certain details must be weighed differently in this analysis. Value of the marital home [ 164 ] The evidence does not disclose the objective value of the marital home in 2007 when it was conveyed to the Respondent. The Respondent’s father testified that he declined a third-party offer of forty-five thousand dollars ($45,000) before deeding it to the Respondent.

In addition, he testified that he had imposed a condition on his son that if he sold the property, he had to pay him twenty thousand dollars ($20,000). [ 165 ] The Respondent could and should have submitted in evidence the value of the provincial property tax assessment [3] to provide proof of value in 2007, but he chose instead to submit the “agreement” to pay $20,000 and his father’s oral evidence that he had declined an offer of $45,000.

Neither piece of evidence is objective. [ 166 ] Even so, I recognize that the marital home had a value, albeit undetermined, in 2007 for the purposes of its division. [ 167 ] The parties jointly filed a market valuation of the marital home as at the date of separation in the amount of one hundred and fifty-five thousand dollars ($155,000). [ 168 ] Although the Act does not specify the date at which the property valuation is to be made, the case law favours the date of separation and/or the trial date if the trial took place within a reasonable time after separation.

In this case, the trial date is acceptable and the value for these purposes is therefore one hundred and fifty-five thousand dollars ($155,000). [ 169 ] The evidence shows that the balance of the mortgage on the marital home at the date of separation was ninety-seven thousand four hundred ninety- nine dollars and seventy-nine cents ($97,499.79). [ 170 ] The fact that supports an unequal division is the transfer of title prior to the marriage, however not knowing the objective value of the marital home in 2007 renders it difficult to include it in the analysis.

Having said that, I nevertheless recognize that the marital home had a value, albeit an undetermined one, in 2007. [ 171 ] However, an unequal division in this case must take into account the duration of the period of cohabitation, the parties’ shared expenses in relation to renovations and mortgages, the income of both parties, the parties’ joint bank account and the Petitioner’s domestic services. [ 172 ] Considering the totality of the evidence, I find that it would be inequitable to divide the marital home in equal shares and consequently I will divide it as follows: sixty percent (60%) in favour of the Respondent and forty percent (40%) in favour of the Petitioner, less amounts owing to mortgagees and the property taxes as at the date of separation.

This finding takes into account that the marital home had an undetermined value in 2007. [ 173 ] Accordingly, the Respondent will be the sole owner of the marital home but will be required to release and indemnify the Petitioner from and against all debts in connection with the marital home as soon as practicable.

Vehicles [ 174 ] There are two vehicles, a Dodge Ram truck and a Dodge Dart car. [ 175 ] The parties did not file any evidence in the form of a commercial valuation from a car dealer to determine the value of their vehicles. [ 176 ] The Petitioner retained the Dodge Ram and the Respondent the Dodge Dart following their separation. [ 177 ] The Financial Statements (Form 72J) of both parties indicate that the value of the Dodge Ram is five thousand dollars ($5,000). [ 178 ] The Respondent’s Financial Statement (Form 72J) indicates that the value of the Dodge Dart is four thousand dollars ($4,000), while the Petitioner’s Financial Statement (Form 72J) indicates that the value is to be determined.

[ 179 ] The Respondent traded in the Dodge Dart against the purchase of a new vehicle. The bill of sale (Exhibit 43) indicates a trade-in value of six thousand one hundred and fifty dollars ($6,150). [ 180 ] In view of the foregoing, and for the reasons set out above, I assign the values of these vehicles, for the purpose of dividing the parties’ property as at the date of separation, as follows: five thousand dollars ($5,000) for the Dodge Ram; and six thousand one hundred and fifty dollars ($6,150) for the Dodge Dart.

Other property and debts [ 181 ] There is insufficient evidence for me to assign a value to the parties’ other personal property. [ 182 ] However, the parties seem to agree on the respective values of their other property and debts. Since the parties do not object to an equal division, I order that their other property and debts be divided equally in accordance with the table in

Schedule “B” attached. [ 183 ] The equalization amount is five thousand one hundred nineteen dollars and eight cents ($5,119.08) as per the table in

Schedule “B” attached. [ 184 ] The parties remain the sole owners of the other property and debts in their own name and possession. Respondent’s pensions [ 185 ] The Respondent has two pension plans and consents to an equal division of those plans, including interest accrued as at the date of separation, May 19, 2020. [ 186 ] These are his pension plan with Mi'Gmaq Child and Family Services of New Brunswick Inc. and his plan with IRONWORKER LOCAL UNION 842.

Health insurance [ 187 ] At trial, the Respondent said that he agreed to have the children and the Petitioner, if they were eligible, named as beneficiaries of the health insurance he receives through his employment. Dispositions [ 188 ] The divorce is granted. [ 189 ] Decision-making responsibility is allocated as follows:

a) jointly to the parties for X.G., with the final decision resting with the Petitioner; and

b) exclusively in favour of the Petitioner for C.G. [ 190 ] Parenting time is allocated as follows:

a) alternating weeks between the parties for X.G.; and

b) mostly to the Petitioner with be liberal and general parenting time to the Respondent in accordance with C.G.’s wishes [ 191 ] The Respondent is required to pay the Petitioner retroactive monthly child support as follows:

a) one thousand four hundred fifty-three dollars and thirty-two cents ($1,453.32) on the first day of each month from June 1, 2020, to December 1, 2020. This amount is based on his adjusted annual income of $103,928 for 2020;

b) one thousand four hundred twenty-three dollars and twenty-five cents ($1,423.25) on the first day of each month from January 1, 2021, to December 1, 2021. This amount is based on his adjusted annual income of $101,521 for 2021;

c) one thousand four hundred forty-eight dollars and thirty-seven cents ($1,448.37) on the first day of each month from January 1, 2022, to December 1, 2022. This amount is based on his adjusted annual income of $103,523 for 2022; and

d) one thousand one hundred and ninety-eight dollars ($1,198) on the first day of each month from January 1, 2023, to April 1, 2023. This amount is based on his anticipated annual income of $84,000 for 2023. [ 192 ] The Petitioner is required to pay the Respondent retroactive monthly child support as follows:

a) one hundred sixty-four dollars and thirteen cents ($164.13) on the first day of each month from June 1, 2020, to December 1, 2020. This amount is based on her annual income of $15,283 for 2020;

b) one hundred and three dollars and sixty-five cents ($103.65) on the first day of each month from January 1, 2021, to December 1, 2021. This amount is based on her annual income of $13,619 for 2021;

c) three hundred and eight dollars and thirty-three cents ($308.33) on the first day of each month from January 1, 2022, to April 1, 2022. This amount is based on her annual income of $19,997 for 2022; and

d) she has no support payable after April 1, 2022. [ 193 ] In view of the Respondent’s higher income, and to facilitate support enforcement, the Office of Support Enforcement is authorized to collect from the Respondent only the difference between the support he is required to pay and the support the Petitioner is required to pay. [ 194 ] The arrears of child support payable by the Respondent , as of the end of April 2023, total twenty-six thousand one hundred sixty-seven dollars and sixty-five cents ($26,167.65), as set out in the table in

Schedule “A.” Enforcement of these arrears shall be collected by the Office of Support Enforcement . [ 195 ] The Respondent is required to pay the Petitioner prospective monthly child support in the amount of one thousand one hundred and ninety-eight dollars ($1,198) on the first day of each month commencing May 1, 2023, and continuing until otherwise ordered by this Court. This amount is based on the Respondent’s anticipated annual income of $84,000 for 2023.

Enforcement of this support shall be collected by the Office of Support Enforcement . [ 196 ] The parties shall share the children’s special expenses under s. 7 of the Guidelines in proportion to their respective incomes on line 150 of their income tax returns for the year in question.

Enforcement of special expenses shall be collected by the Office of Support Enforcement upon the submission of receipts for such expenses . [ 197 ] The Respondent is required to pay the Petitioner monthly support in the amount of nine hundred and fourteen dollars ($914) on the first day of each month commencing May 1, 2022, for a period of fourteen (14) years ending April 1, 2036. This amount is based on the parties’ respective gross annual incomes on line 150 in 2022, being $103,523 for the Respondent and $19,997 for the Petitioner, in round numbers.

Enforcement of this support shall be collected by the Office of Support Enforcement. [ 198 ] The cumulative arrears of support payable by the Respondent to the Petitioner as of the end of April 2023 total six thousand nine hundred and sixty- one dollars ($6,961), according to the table in

Schedule “C” attached. Enforcement of these arrears shall be collected by the Office of Support Enforcement.

[ 199 ] The Respondent shall pay the Petitioner the sum of five thousand one hundred nineteen dollars and eight cents ($5,119.08) for the division of the parties’ property and debts , as set out in the table in

Schedule “B,” attached, by July 1, 2023. [ 200 ] Considering that the Respondent is the sole owner of the marital home, he shall release and indemnify the Petitioner from and against all mortgage debt as soon as practicable. [ 201 ] Each party remains the sole owner of the other property and debts in the party’s own name and possession. [ 202 ] The Respondent shall promptly make a request to the administrators of his pension funds to transfer half, as at the date of separation, to the Petitioner. [ 203 ] The Respondent shall maintain the children and the Petitioner as beneficiaries of his health insurance if they are eligible. [ 204 ] The parties are required to file with the Court of King’s Bench, Judicial District of Bathurst, their previous year’s income tax return and Notice of Assessment on or before June 1st of each year starting in 2024. [ 205 ] To facilitate the enforcement and administration of this decision, I will issue an order reflecting the provisions of this decision in greater detail, as required.

Costs [ 206 ] This matter took eight (8) hearing days. The parties also had to prepare pre-trial briefs. The litigation centred on decision-making responsibility for the children, parenting time with the children, child support, support for the Petitioner and the division of property and debts. [ 207 ] The dispute between the parties involved large amounts of money, and success on various contentious issues was split, but the main dispute was decided in the Petitioner’s favour.

Accordingly, she is entitled to costs. [ 208 ] The Respondent shall therefore pay the Petitioner costs in the amount of five thousand five hundred dollars ($5,500), plus allowable disbursements in accordance with Rule 59, by July 1, 2023. ________________________________________ Michel A. Robichaud, J.C.K.B.