2011 NBCA 46, 2011 NBCA 46

COURT OF APPEAL OF NEW BRUNSWICK 76-10-CA DALE YOUNG (Petitioner) APPELLANT - and - KAREN YOUNG (Respondent) RESPONDENT DALE YOUNG (Requérant) APPELANT - et – KAREN YOUNG (Intimé

e) INTIMÉE Young v. Young., 2011 NBCA 46 Young c. Young, 2011 NBCA 46 CORAM: The Honourable Justice Turnbull The Honourable Justice Quigg The Honourable Justice Green CORAM : L’honorable juge Turnbull L’honorable juge Quigg L’honorable juge Green Appeal from a decision of the Court of Queen’s Bench: May 11, 2010 Appel d’une décision de la Cour du banc de la Reine : Le 11 mai 2010 History of the Case: Historique de la cause : Decision under appeal: 2010 NBQB 173 Décision frappée d’appel : 2010 NBBR 173 Preliminary or incidental proceedings: Court of Appeal [2010] N.B.J.

No. 326 Procédures préliminaires ou accessoires : Cour d’appel [2010] A.N.-B. n o 326 Appeal heard: January 19, 2011 Appel entendu : Le 19 janvier 2011 Judgment rendered May 19, 2011 Jugement rendu : Le 19 mai 2011

Reasons for judgment by: The Honourable Justice Quigg Motifs de jugement : L’honorable juge Quigg Concurred in by: The Honourable Justice Turnbull The Honourable Justice Green Souscrivent aux motifs : L’honorable juge Turnbull L’honorable juge Green Counsel at the hearing: For the appellant: Dale Young appeared in person For the respondent: Norah J. Davidson-Wright Avocats à l’audience : Pour l’appelant : Dale Young a comparu en personne Pour l’intimée : Norah J. Davidson-Wright THE COURT The appeal is dismissed without costs. LA COUR Rejette l’appel avec dépens de 1 000 $.

The judgment of the Court was delivered by QUIGG J.A. I. Introduction [ 1 ] Mr. Young appeals the decision of a judge of the Court of Queen’s Bench, Family Division, 2010 NBQB 173 , 360 N.B.R. (2d) 11 , following a trial on the issues of divorce and spousal support pursuant to the Divorce Act, R.S.C. 1985, c. 3 (2 nd Supp.), as well as a division of marital property under the Marital Property Act , S.N.B. 1980, c. M-1.1. II. Factual and Procedural Background [ 2 ] The parties were married in 1999, separated in 2006 and divorced in 2010. There are no children of the marriage.

The trial which is the subject of this appeal was held on April 27, 2010. After granting a divorce, the trial judge determined Mrs. Young was entitled to an equal division of the marital property as well as a lump sum payment of spousal support in the amount of $9,000. She further awarded costs in the amount of $1,000, inclusive of HST and disbursements.

III. Issues on Appeal [3] Mr. Young relies on three grounds of appeal. He argues the following:

(1) There are many errors in the decision that are not supported by the record.

(2) The judge erred in the division of marital property.

(3) The judge erred in law in ordering the appellant to pay a lump sum spousal award. IV. Notice of Contention [4] Mrs. Young filed a Notice of Contention. She contends, among other things, that Mr. Young’s grounds ofappeal are “insubstantial and erroneous” and that there are no “gross, palpable or overriding errors” in the judgment. She further seeks anincrease in spousal support if the appellant is successful on any of his grounds of appeal. V. Standard of Review [5] In family matters, trial judge’s decisions are given considerable deference. In MacDonald v. MacDonald,2011 NBCA 25, [2011] N.B.J.

No. 81 (QL), Larlee J.A. says: […] An appellate court is empowered to set aside or vary a decision or order where it is the product of an error of law, an error inprinciple, a significant misapprehension of the evidence or if it is clearly wrong (see Hickey v. Hickey, (SCC), [1999] 2S.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, 2009NBCA 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 NBCA87, 338 N.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 69,321 N.B.R. (2d) 314, para. 2). [para. 7] [6] 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 error oflaw, 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] 2 S.C.R. 235, [2002] S.C.J. No. 31 (QL), 2002 SCC 33 and H.L. v. Canada (Attorney General), [2005] 1S.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] 3 S.C.R. 371, [2003] S.C.J. No. 76 (QL), 2003 SCC 71, at para. 43, with regard to discretionary orders).[para. 3] In New Brunswick, this deferential standard of review has generally been applied in spousal support situations. VI. Analysis A. Marital Property

[ 7 ] In New Brunswick, marital property is divided upon marriage breakdown pursuant to s. 3 of the Marital Property Act .

PART I DIVISION OF MARITAL PROPERTY AND DEBTS 3

(1) Where (

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, each spouse, upon application to the Court, is entitled to have the marital property divided in equal shares. 3

(2) Subject to subsection (4), no application shall be made under subsection (1) later than sixty 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.

PARTIE I RÉPARTITION DES BIENS MATRIMONIAUX ET DETTES MATRIMONIALES 3

(1) Chacun des conjoints a droit, sur demande adressée à la Cour, à une répartition égale des biens matrimoniaux si

a) un jugement de divorce a été prononcé,

b) le mariage a été déclaré nul,

c) les conjoints vivent séparés et qu’il n’y a aucun espoir raisonnable de reprise de la cohabitation, ou

d) le mariage s’est brisé et qu’il n’y a aucun espoir raisonnable de réconciliation, que les conjoints vivent séparés ou non. 3

(2) Sous réserve du paragraphe (4), nulle demande ne peut être faite sous le régime du paragraphe (1) s’il s’est écoulé plus de soixante jours depuis la perte de la qualité de conjoint en raison d’un divorce ou d’une déclaration de nullité du mariage. 3

(3) Pour l’application du présent article, la personne dont le mariage est déclaré nul est réputée avoir eu qualité de conjoint pendant la période courant entre l’apparente célébration du mariage et la déclaration de nullité.

3(4) Where a person is prevented (

a) by lack of knowledge of the granting of adivorce or a declaration of nullity, or of thedate thereof, or (

b) by circumstances reasonably beyond hiscontrol, from making an application within thelimitation period fixed in subsection (2), theCourt may extend the limitation period bysuch length of time and upon such terms as itconsiders just. 2005, c.12, s.1. 3(4) Lorsqu’une personne ne peut présenterune demande dans le délai fixé au paragraphe(2) en raison

a) de son ignorance du prononcé d’unjugement de divorce ou d’une déclaration denullité du mariage ou de leur date, ou

b) de circonstances raisonnablementindépendantes de sa volonté, la Cour peut proroger le délai pour la durée etaux conditions qu’elle estime justes. 2005, c.12, art.1. [8] With respect to division of property, I can find no error made by the trial judge in her determination. Sheundertook a thorough review of the assets owned by the parties at the time of separation, the assets that each party took upon separation,and makes clear findings of fact regarding the same. The judge made a determination concerning the value of the marital property basedon the evidence.

She stated that the total value of the personal property was above $7,725, the estimated value of goods retained by Mrs.Young was $2,025, and she equally divided the value of a lawn mower and snow blower, both of which were unaccounted for. The trialjudge determined that each party should receive $3,862 as an equalization of the marital property. As a result, Mr. Young owed Mrs.Young $1,837.50. This ground of appeal is without merit. B. Spousal Support [9] In Pollock v.

Rioux, 2004 NBCA 98, 278 N.B.R. (2d) 351, Richard J.A. states: In MacLean, this Court had occasion to consider the approach governing adjudication of spousal support applications.

The Court at para.29 explained that “[i]n Moge, at paras. 77 and 78, the Supreme Court of Canada recognized that the best approach to resolving spousalsupport issues is to vest in trial courts ‘an overriding discretion’ to be exercised considering ‘the particular facts of each case, havingregard to the factors and objectives designated in the Act’ in order ‘to achieve equitable sharing of the economic consequences ofmarriage or marriage breakdown’”. [para. 59] [10] After reviewing the trial judge’s reasons for decision, it is clear that she also undertook a proper analysisregarding spousal support.

She made numerous findings of fact respecting both parties: their contributions to the marriage, Mrs. Young’shealth issues, how they divided property at the time of separation, and their respective incomes. [11] With respect to spousal support, the judge refers to Moge v. Moge, (SCC), [1992] 3 S.C.R.813, [1992] S.C.J. No. 107 (QL), as “the starting point for any analysis of a claim for spousal support”. (Although para. 54 of her

decision identifies s. 15 as the starting point, L’Heureux-Dubé J. writing for the SCC in Moge instructed trial judges to begin theiranalysis with an examination of the four objectives in s. 15.2(6).) She reviews s. 15.2 of the Divorce Act. The judge determined that thiswas a marriage of short duration, and although there was no evidence concerning the functions of each spouse during the marriage, themarriage “would not be considered traditional” (para. 59). [12] The trial judge reviewed the objectives of s. 15.2(6) of the Divorce Act and found that: (

i) I am not able to determine from the evidence whether there were economic advantages or disadvantagesarising from the breakdown of the marriage; (ii) The financial consequences arising from the care of a child of the marriage do not apply; (iii) I am not able to determine if Mrs. Young needs relief from economic hardship arising from the breakdownof the marriage; (iv) The promotion of economic self sufficiency within a reasonable period of time is a reasonable objective onthe evidence and facts of this case. [para. 61] [13] The trial judge then reviewed Bracklow v.

Bracklow, (SCC), [1999] 1 S.C.R. 420, [1999]S.C.J. No. 14 (QL), where McLachlin J. (as she then was) introduced the notion of non-compensatory support. She says: […] The same reasons, however, made it clear that compensatory considerations were not the only basis for support. Judges mustexercise their discretion in light of the objectives of spousal orders as set out in s. 15.2(6), and after having considered all the factors setout in s. 15.2(4) of the Divorce Act.

By directing that the judge consider factors like need and ability to pay (as explored below), the newDivorce Act left in place the possibility of non-compensatory, non-contractual support. [para. 18] [14] The judge is accurate in saying that the Supreme Court changed the focus from the role-based modeldelineated in Moge and began to consider the needs and means of the parties. The trial judge determined the Supreme Court of Canadathus “opened the door to spousal support, even in those cases where the traditional entitlement based model is not there” (para. 70).

Thejudge then reviewed the Spousal Support Advisory Guidelines and the approach taken by this Court in MacLean v. MacLean, 2004NBCA 75, 274 N.B.R. (2d) 90, where Richard J.A. stated: In Bracklow, the Court recognized at para. 1 that “it is now well-settled law that spouses must compensate each other for foregonecareers and missed opportunities during the marriage upon the breakdown of the union.” What was not settled before Bracklow waswhether the entitlement to support was to be founded solely on compensatory principles.

Divergent theories and philosophies wereconsidered, and, in settling the issue, the Supreme Court concluded at para. 49 that “the statutes and the case law suggest threeconceptual bases for entitlement to spousal support: (1) compensatory; (2) contractual; and (3) non-compensatory.” The Courtemphasized that the overriding objective is to arrive at a just solution for the parties. At para. 32, Justice McLachlin [as she then was]explains that courts must: ... consider not only compensatory factors, but the “needs” and “means” of the parties. It is not a question of either one model or theother.

It is rather a matter of applying the relevant factors and striking the balance that best achieves justice in the particular case beforethe court. See also Hickey, at para. 23. [para. 35] [Emphasis in original.] [15] In this case, the judge referred to the length of cohabitation, Mrs. Young’s medical history, and her historical

employment earnings. The judge also considered the needs and the standard of living of the parties as well as Mr. Young’s ability to pay, the pertinent statutory provisions, and then applied the proper principles to the facts of this case. In so doing, she made no reversible error when she determined that Mrs. Young was entitled to spousal support based on the needs and means, non-compensatory model of support. This disposition reflects a correct application of the law to the facts as determined by the trial judge. Applying the standard of review as stated above, there is no basis for intervention on appeal. C.

Factual Mistatements [ 16 ] Finally, although the judge did make some mistakes with respect to the ages of the parties, the date of their marriage, and dates regarding when the parties resided at certain addresses, these mistakes were of little consequence and had no bearing upon the final determination of the issues before the judge. VII. Disposition [ 17 ] For these reasons, I would dismiss the appeal with costs of $1,000. ____________________________ KATHLEEN A. QUIGG, J.A. WE CONCUR: ___________________________________ WALLACE S. TURNBULL, J.A. ___________________________________ BRADLEY V. GREEN, J.A.