SOLANGE GUERRETTE Petitioner , - v. -, 2022 NBKB 215

2022 NBKB 215 Court File Number: FDB- 241-2021 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF BATHURST BETWEEN: SOLANGE GUERRETTE Petitioner , - and - ERIC MORIN Respondent . DECISION BEFORE: Justice Michelle Boudreau-Dumas

AT: Bathurst, New Brunswick DATES OF HEARINGS: August 24 and 25 and September 22, 2022 DATE OF DECISION: November 9, 2022 APPEARANCES: Rita Godin, K.C., on behalf of the petitioner; Martine Lanteigne, on behalf of the respondent. [TRANSLATION] Boudreau-Dumas, J. OVERVIEW 1 . Ms. Guerrette and Mr. Morin were married for over 36 years. 2 . Their shared plan of building a family became a reality. Four children were born of the parties’ marriage: Marc-Eric Morin, born January 23, 1985, Jolaine Morin, born March 21, 1987, Mathieu Morin, born April 10, 1989, and Alexandre Morin, born March 23, 1992. 3 .

Decisions made by the parties during their marriage were made as a couple, after consultation and with a view to the good of the children and the family. These are some examples: - Mr. Morin left his job in Edmundston to join his wife in Bathurst when they got married, because Ms. Guerrette’s job paid better; - Ms. Guerrette decided to work on a part-time or casual basis after the children were born to better care for them; - The family moved to Edmundston and back to Bathurst due to Mr. Morin’s job promotions; - Mr. Morin started a business and became an independent contractor for a period; and - Ms.

Guerrette went back to school when the children were almost all of school age in order to have better full-time employment prospects. 4 . Throughout their relationship, the spouses were involved to varying degrees in the care of the children and management of the household. Both parties invested time, effort and money in the family, making considerable sacrifices in order to realize their shared plan. Ms. Guerrette was mainly responsible for the family’s finances, the primary care of the children when they were young and the household chores.

Financial responsibility for the family rested with the father for many years, when he had to work outside the home at times. Because of his manual skills, Mr. Morin was responsible for renovations and improvements to the various houses and the camp owned by the couple, as well as the exterior maintenance of the properties. 5 . Over the years, the parties adjusted their personal and family responsibilities according to their availability and the family’s

needs. For example, when Ms. Guerrette was a stay-at-home mother, she took on more of certain tasks. When the mother went back to school, the father became more involved in these tasks. 6 . The couple was always good about financial management and the household lived within its means. As a result, the parties had no debts at the time of their separation. On the contrary, they had something of a financial cushion. 7 . The financial and other responsibilities associated with the children decreased as the children became independent.

The parties then decided to invest more in a Registered Retirement Savings Plan (RRSP) in Mr. Morin’s name because he did not have a pension fund through his employment like his wife. As Ms. Guerrette and Mr. Morin’s shared plan was coming to an end, their lives took different paths. 8 . The wife’s career was booming. She planned to continue working full time and traveling. The husband’s goal was to retire and work a little here and there. This would allow him to spend more time at the family camp in nature and hunting.

The difference in the parties’ future plans and their difficulty forgiving and forgetting each other’s past mistakes led to the couple’s permanent separation on January 7, 2019. 9 . Ms. Guerrette left the marital home, and they agreed that Mr. Morin would continue to live there. The ex-wife’s rent was paid out of the parties’ joint account for a period. 10 . The parties got along relatively well despite the circumstances, and they tried to reach an agreement between them.

However, it became clear during a meeting at the marital home in early January 2020 that the former spouses would not be able to settle their differences out of court. The contentious issue was Mr. Morin’s support claim. Negotiations then took place through the parties’ lawyers and divorce proceedings were ultimately commenced on May 12, 2021. 11 . The parties were able to resolve the issue of division of the marital property by signing a consent order dated August 15, 2022, and another transferring the marital home to the petitioner on October 24, 2022. A divorce was granted shortly after the trial began.

There are three outstanding issues, namely spousal support, occupation rent and costs. CREDIBILITY 12 . Before addressing the issues, I will deal with the credibility of the parties as an important aspect of any litigation. Abella, J. summarized the role of the trial judge as follows in Rick v . Brandsema 1 : “ It is inherent in disputes generally, and matrimonial conflicts in particular, that parties have inconsistent versions of the underlying events.

It is the trial judge’s job as judicial historian to sift through the record, watch and listen to the parties, and determine which version of disputed events is the most reliable. ” 13 . Ms. Guerrette has a very good memory and can recollect dates and details even after many years. Mr. Morin has more difficulty recalling distant facts. Nevertheless, he is candid in his answers. To their credit, neither party was overly concerned with demeaning or smearing the other, as is unfortunately often the case. I found Ms. Guerrette and Mr. Morin to be sincere and candid in most of their testimony.

However, their versions of certain situations or events differ and cannot be reconciled. A credibility determination must therefore be made. This applies to each party’s involvement in the life of the family, domestic violence, the existence of a secret bank account and determining whether Mr. Morin is responsible for the length of the proceedings . _____________________________________________________________________________ 1 Rick v. Brandsema, 2009 [SCC] 10, at para. 30 .

Each party’s involvement in the life of the family 14 . As B. Robichaud, J. wrote in A.F. v . N.D . 2 , where she discusses decision-making responsibilities: “Courts are mindful that human nature is such that each parent has a biased recollection of the significance of their role in parenting and their evidence becomes somewhat embellished as a result. This does not mean their credibility is undermined as a result or that they are being untruthful.

It remains a balancing act where the court is required to assess the overall relevant evidence and apply some common sense as to what is most likely to have been the parenting roles given all of the contextual circumstances.” 15 . In this case, the parties acknowledge that they were both involved in the care of the children and the management of the household. Ms. Guerrette maintains that she did more than her former spouse and that he shirked his responsibilities as a father while the children were growing up. Mr.

Morin contends that he was always there to take care of the children and the household when he was not working and when needed. He admits to having taken more time for himself by going to the camp, especially when the children were less interested in going. In addition, he checked up on the children, primarily through his former spouse, after they left home. 16 . There is no contest of responsibilities or determination of a percentage of involvement here. I find that both parties contributed to the care of the children and the management of the household during their marriage. As the children grew up, Ms.

Guerrette became more invested in her career while Mr. Morin focused more on his hobbies. ____________________________________________________________________________________________________________________________________ 2 A.F. v. N.D., 2021 NBQB 122 , at para. 133 This does not minimize the role of the parents in the lives of the children and the family. Domestic violence 17 . Considering her management of the family’s finances and the household’s saving and spending habits, as well as her greater emphasis on savings, I find that money is important to Ms. Guerrette.

It therefore seems obvious to me that she reacted badly when Mr. Morin told her at the January 2020 meeting that he was seeking spousal support. 18 . Ms. Guerrette maintains that she was assaulted at that meeting and during their relationship. I cannot come to the same conclusion. Instead, the facts reveal a united couple who made decisions together and with a shared vision for the family. I agree that there were some tense and less rosy moments (for instance, when Mr.

Morin was fired from his job and the family encountered financial difficulties because the parties were not working full time or at all, the couple struggled, especially before their separation, among other examples). At times like these, there is likely to be a negative atmosphere in the home, heated arguments between the parties and possibly times when the spouses have little patience or tolerance for each other or themselves.

This is very different from a relationship marked by family violence, as the term is defined in the Divorce Act . 3 ____________________________________________________________________________________________________________________________________ 3 Divorce Act, s. 16(4) . 19 . One thing is certain: Ms. Guerrette no longer felt comfortable returning to the marital home after that meeting in January 2020. Mr. Morin also no longer wanted to be alone with his former spouse after that incident. However, no police complaint was filed despite each party testifying to having been struck in the face by the other.

It is sufficient to conclude that their relationship was unfortunately no longer the same after that meeting. Existence of a secret bank account 20 . Ms. Guerrette maintains that she was concerned about her husband’s mental health when he was fired from his job in 2008. I am sure that Mr. Morin was not in peak form at the time considering everything he went through at his job. The fact that he unilaterally decided to buy himself a snowmobile was also out of character for this family.

Looking at the situation from the outside, this was not an excessive expense ($8,000) considering the couple’s financial situation and their family circumstances (i.e., the house was paid off, Ms.

Guerrette had a good job and the children were older). Nevertheless, Ms. Guerrette’s response was to close the couple’s line of credit and open a bank account without her husband’s knowledge, in which she deposited the proceeds of her work expense claims. 21 . While this decision was justified given the circumstances, keeping this information from her husband for many years was not. The evidence shows that Mr. Morin recovered his health quite quickly and decisions continued to be made as a couple. Because of Ms.

Guerrette’s past actions, the ex-husband remains convinced that the mother of his children is still hiding funds and/or financial information from him. The financial institution’s inability to find the control card for the couple’s safety deposit box does not help the ex-husband’s suspicions. 22 . I am not convinced of the allegations against Ms. Guerrette. It is true that the couple managed to invest rather large amounts of money for Mr. Morin’s retirement in the last few years before their separation. The main reason that they were unable to do so before is not because Ms.

Guerrette hid money but rather because the couple still had one or more dependent children at home or in school, including the financial responsibilities that this entails. Whether Mr. Morin is responsible for the length of the proceedings 23 . When the couple separated, they tried to settle their affairs on their own. Ms. Guerrette obtained some financial information and prepared balance sheets/proposals in order to reach an agreement. In light of Mr. Morin’s support claim, it became clear that they would not be able to work things out. Each party retained counsel and negotiations were initiated. 24 . Ms.

Guerrette argues that Mr. Morin is making good on his threats to drag out the proceedings so that they end up losing almost everything. It is true that over three and a half years have passed since the couple separated and not everything has been settled yet. However, I do not share Ms. Guerrette’s position. Mr. Morin has changed lawyers three times during these proceedings but through no fault of his own. The explanations given in this regard are credible and plausible. In addition, Ms. Guerrette took a long time to provide the consents required for Mr. Morin to access certain banking information.

Given his former spouse’s past actions, I can understand Mr. Morin’s requests for information. ISSUES 1 . Is Mr. Morin entitled to spousal support given the length of the marriage, the children born into it, the role each party played during the relationship and the respective incomes and assets of the parties? If so, what should be the terms of the order, i.e., the amount, start date and duration of the support? 2 . Is Ms. Guerrette entitled to occupation rent considering that Mr.

Morin lived in the paid-off marital home from the date of separation until the house could be sold while she had to pay rent for her accommodation? 3 . Is either Ms. Guerrette or Mr. Morin entitled to costs? LAW Entitlement to support 1 . Is Mr. Morin entitled to spousal support given the length of the marriage, the children born into it, the role each party played

during the relationship and the respective incomes and assets of the parties? If so, what should be the terms of the order, i.e., the amount, start date and duration of the support? 25 . The legislative framework for the entitlement to support in this matter is set out in the Divorce Act . 4 The relevant factors are listed in s. 15.2(4) 5 : 15.2(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, 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. 26 . With respect to the objectives of a support order, these are listed in s. 15.2(6) 6 : 15.2(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should (

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

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

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

d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. 27 . The late Walsh, J. summarized these objectives by citing the relevant doctrine at para. 144 of his decision 7 : ____________________________________________________________________________________________________________________________________ 4 Divorce Act , at ss. 15.2(1) and (3). 5 Divorce Act , at s. 15.2(4) 6 Divorce Act , at s. 15.2(6) 7 J.D.L. v. R.J.J.L., 2012 NBQB 378 Spousal support serves two purposes in Canadian family law.

Firstly it seeks to compensate the lower-earning spouse for sacrifices in earning power which he or she made during the relationship. This is the “compensatory” purpose of spousal support ... Secondly, if the lower-earning spouse is in financial need, and if the other spouse has the ability to pay, spousal support seeks to address the need. This is sometimes referred to as the “non-compensatory” purpose of spousal support ... While in many cases a single order of spousal support will be intended to both compensate and relieve need, the two purposes are conceptually distinct.

Either one, in the absence of the other, can be a sufficient basis for a spousal support award. If neither is present in a given fact pattern, there is unlikely to be any entitlement to spousal support found. (Wilton and MacDonald, Spousal Support in Canada , Carswell, 2012, at p. 1)

28. In their report, Professors Rogerson and Thompson8 identified markers of compensatory and non-compensatory spousal supportclaims. The relevant compensatory markers in this case are: - being home with children full-time or part-time; - being a secondary earner; - moving for the payor’s career; and - supporting the payor’s education or training. 29. The evidence shows that Mr. Morin took more care of the children while he was out of work or unemployed, while Ms.

Guerrettewas pursuing her studies and after his wife secured her permanent job with the Vitalité Health Network, which required her to travel. ____________________________________________________________________________________________________________________________________ 8Spousal Support Advisory Guidelines: The Revised User’s Guide, April 2016, Professor Carol Rogerson and Professor RollieThompson 30. While Mr.

Morin was the household’s primary breadwinner in the early years of the marriage and when the children were young,he became an equal or secondary source of family income from about the 2000s onwards. 31. Ms. Guerrette was supported by her husband in all aspects of her return to school. The goal was to improve her chances of gettinga full-time job. Mr. Morin took on more of the childcare and household chores. He was also more present while operating his businessfrom home.

Even though he moved to Bathurst when the parties married, this does not have much bearing on his entitlement to supportbecause that decision is over three decades old. 32. Ms. Guerrette would certainly have had a strong claim to compensatory support because she put her career on hold for a numberof years in order to care for the couple’s children. Nonetheless, I find that Mr. Morin meets the required markers and has met his burdenof proof to establish his entitlement to support based on a mid- to low-range compensatory claim. 33.

Non-compensatory support has become dominant since Bracklow9 and offers a very expansive basis for entitlement to spousal support.10 The markers to be considered, as _____________________________________________________________________________ 9Bracklow v.

Bracklow, (SCC), [1999] 1 SCR 420 10Spousal Support Advisory Guidelines: The Revised User’s Guide, April 2016, Professor Carol Rogerson and Professor RollieThompson. described by the eminent professors, can be summarized as follows:11 - the length of the relationship; - the drop in standard of living for the claimant after separation; and - economic hardship experienced by the claimant.

34. I agree that the income disparity between the parties is not sufficient to establish an entitlement to support, as argued by Ms.Guerrette. However, this factor becomes important if the income disparity is significant at the time of separation or when divorce proceedings are commenced. Thus, a claim based on the loss of the marital standard of living is established.12 35.

As McLaughlin, J. pointed out as far back as 1992 in Moge13: “[…] As marriage should be regarded as a joint endeavour, the longer the relationship endures, the closer the economicunion, the greater will be the presumptive claim to equal standards of living upon its dissolution […]” 36. In this case, Mr. Morin and Ms. Guerrette were married for approximately 36 years. They had four children. The evidenceshows that from the beginning of their marriage, the couple were a team. Among other things, the parties’ incomes were combined.

Payments for family expenses and purchases were made primarily through a joint account. Investment and other decisions were madejointly and the spouses discussed their retirements. The disparity in the parties’ incomes is remarkable, approaching or ____________________________________________________________________________________________________________________________________ 11Spousal Support Advisory Guidelines: The Revised User’s Guide, April 2016, Professor Carol Rogerson and Professor RollieThompson. 12Ibid. 13Moge v. Moge, (SCC), [1992] 3 SCR 813 exceeding 50% in recent years. 37. As Ms.

Guerrette gained more experience at her job, her income increased as a result. Since this job is the same as, or arose outof, the full-time job she secured with her employer when she completed her studies, her increased income or the loss of this benefit byMr. Morin as a result of the separation can be linked to the marriage. The case law is clear that Ms. Guerrette’s current income can beconsidered in the computation of any amount of support for Mr. Morin. 38. Mr. Morin’s employment situation, including his salary, is unfortunately not as promising as that of Ms. Guerrette.

His income,opportunities for advancement and earning power have been stagnant for some time. This is mostly due to the ex-husband’s age, thephysical and concentration demands of his job and the market. I cannot conclude that he is choosing to be underemployed, especiallysince Mr. Morin has continued to work for the same employer for a number of years. In addition, he did not retire as anticipated prior tohis break-up with Ms. Guerrette. There is also nothing to suggest that his future will improve before he stops working. 39. The parties’ financial statements reveal that Ms.

Guerrette continued to put money aside following the separation, thus enrichingherself. Mr. Morin, on the other hand, had to sell some assets and live modestly to get by financially. The only reason he was able toinvest like in an RRSP in 2019 is because the funds had already been set aside before the separation. Otherwise, it would not have beenpossible. 40. I am satisfied that Mr. Morin would have had a difficult time getting by financially if he had had to pay rent or make mortgagepayments, despite his simple lifestyle.

Of course, he could not maintain a lifestyle similar to the one he enjoyed when the couple weretogether. 41. I agree with Ms. Guerrette’s position that the marital property and debts must be divided before a decision is made on spousalsupport. In addition, a substantial award of property from the division of family assets can in rare situations offset the need for support.Indeed, Ms. Guerrette argues in part that the property Mr. Morin received from the division (or the income it could generate) is sufficientto offset any entitlement he might have to spousal support.

I reject this assertion, as the facts of this case are very different from the case law in which this principle has been accepted (e.g., Chutter14, Halliwell15 and Mason16). The claimants in those cases received propertyworth $1 million or more. This is far from the case here.

___________________________________________________________________________________________________________________________________ 14 Chutter v. Chutter, 2008 BCCA 507 15 Halliwell v. Halliwell, 2017 ONCA 506 16 Mason v. Mason, 2016 ONCA 725 42 . Mr. Morin’s share of the marital home is valued at $125,000, according to the terms of a consent order reached following the trial. He will have to use those funds to either pay rent or buy a property. Either way, he will need those funds to find housing. 43 . With respect to the other property from the division, Mr.

Morin’s share is approximately $300,000 and consists of RRSPs and his share of Ms. Guerrette’s pension fund. Since the ex-husband is still working, I can conclude that he will be penalized in income tax terms if he decides to cash in his savings and/or receive an annuity. If he has to dip into his assets before he retires, there will be less (if any) left when he stops working. Without support, he will continue to grow poorer and have a much lower standard of living than when he lived with Ms. Guerrette . 44 . Ms. Guerrette, on the other hand, will not have to dip into her savings.

According to her position and the evidence presented, she will continue her career, earn an increasing income and be enriched by not having to support her former spouse. This is certainly not how the parties envisioned their future during their marriage. 45 . Counsel for Ms. Guerrette argues that Mr. Morin should have taken steps to find out how much he would receive if he purchased a life annuity from his RRSPs and how much income he would receive from his share of his former spouse’s pension fund. This information would have been instructive.

On the other hand, it could just as easily have been obtained and provided to the Court by Ms. Guerrette. This information is not essential, however, considering my decision that Mr. Morin is entitled to spousal support both on a compensatory and a non-compensatory basis. In addition, his share of the marital property is not nearly large enough to offset or meet his needs. Finally, Ms. Guerrette has the ability to pay. Amount of support 46 . Having determined that Mr. Morin is entitled to spousal support, I must now determine the amount. 47 . Counsel for Mr.

Morin maintains that I should fix her client’s support based on the mid-range of the Spousal Support Advisory Guidelines : The Revised User’s Guide . 17 I do not agree with this position. 48 . Professors Rogerson and Thompson have identified factors to assist in determining the location of the support amount within the ranges. 18

_____________________________________________________________________________ 17 Spousal Support Advisory Guidelines: The Revised User’s Guide, April 2016, Professor Carol Rogerson and Professor Rollie Thompson) . 18 Ibid . Those applicable to the facts of this case are as follows: - strength of any compensatory claim; - recipient’s needs; - needs and ability to pay of payor; - property division and debts; - self-sufficiency incentives. 49 . Walsh, J. determined that the amount of support payable to Ms. Brown 19 would be at the lower end of the range given her non- compensatory claim.

In the instant situation, I determine that Mr. Morin has a moderate to low compensatory claim. However, he also has a non-compensatory claim. 50 . Mr. Morin’s needs are true given his income and expenses as well as the lower standard of living to which he had to become accustomed following his separation. However, they are not critical, as the couple lived modestly while saving for their retirement and he continued to work despite his intention to retire. 51 . Ms. Guerrette is in good health and motivated by her career. Her plans are certainly not to stop working anytime soon.

The evidence shows that, unlike her former spouse, she continued to invest and save following their separation. _____________________________________________________________________________ 19 Brown v. Brown, 2013 NBQB 369 52 . The property division was finalized following the trial when the marital home was purchased by Ms. Guerrette. I must therefore consider the burden that this transaction will place on the ex-wife (paying Mr. Morin’s $125,000 share). On the other hand, she inherits a property worth twice as much. 53 . The goal of achieving self-sufficiency is not so important in this case. Mr.

Morin is still employed by the same employer on a permanent basis and has been for a number of years. It is not reasonable to expect any changes in this regard, given his age and work experience. 54 . For all these reasons, I find that an amount of support in the low to mid range would be sufficient to meet Mr. Morin’s needs without creating any particular financial hardship for Ms. Guerrette. Start date and duration 55 . The Supreme Court of Canada has reviewed the issue of the retroactivity of spousal support awards. 20 It was decided that the

principles established by the highest court in the land with respect to retroactive child support awards 21 apply. However, because these claims involve adults, “concerns about notice, delay and misconduct generally _____________________________________________________________________________ 20 Kerr v. Baranov, 2011 SCC 10 21 D.B.S. v. S.R.G,, 2006 SCC 37 carry more weight in relation to claims for spousal support.” 22 56 . Mr. Morin did not apply for interim support. Furthermore, he did not notify his former spouse of his claim until they met at the marital home in January 2020.

I am therefore fixing the start of the ex-husband’s support as of that date. To allow the claim and make it retroactive to the date of separation would be unfair to Ms. Guerrette, as she was never notified of this claim when the couple separated. 57 . I will not fix a specific duration or review date for Mr. Morin’s support, primarily because of the age of the parties and the fact that they do not have many more years left to work. A variation application may be made when either of them believes there has been a material change in circumstances. 58 .

The amount of retroactive and prospective support due and payable shall be calculated as follows: year her income his income amount total 2020 $101,107 $37,280 $2,162 $25,944 ____________________________________________________________________________________________________________________________________ 22 Kerr v. Baranov , 2011 SCC 10 , at para. 208 year her income his income amount total 2021 $102,422 $41,850 $2,040 $24,480 2022 $102,422 $41,850 $2,040 $22,440 Total arrears: $72,864 2 . Is Ms. Guerrette entitled to occupation rent considering that Mr.

Morin lived in the paid-off marital home from the date of separation until the house could be sold while she had to pay rent for her accommodation?

59 . Occupation rent is a discretionary common-law remedy that is now legislated in the Marital Property Act . 23 My colleague Bélanger-Richard, J. recently discussed the relevant factors to be considered in this regard. 24 She also cited the late Walsh, J. writing in Betts 25 in her decision. 60 . I am required to follow the reasoning of my colleagues and the New Brunswick case law. Accordingly, Ms. Guerrette is awarded occupation rent based on the following facts: - Mr.

Morin occupied the residence from the date of separation (January 2019) until the beginning of October 2022 (under the terms of the Agreement of Purchase and Sale); - Ms. Guerrette had to pay rent starting in May 2019; - Mr. Morin did not have to make any mortgage payments on the house; - The parties agreed to share the cost of the property taxes and insurance on their house; _____________________________________________________________________________ 23 Marital Property Act, s. 23(1) 24 Beaudoin v. Beaudoin, 2021 NBQB 103 25 Betts v.

Betts, 2015 NBQB 19 - There were no major expenses or costs for repairs and/or renovations to the house while Mr. Morin occupied it; - Ms. Guerrette has been ordered to pay support for Mr. Morin and the marital property has been divided equally; - Ms. Guerrette left the marital home voluntarily. However, Mr. Morin agreed to pay her rent out of the joint account for a few months. Therefore, he acquiesced to his former spouse’s decision; - Mr. Morin agrees that any amount ordered as occupation rent should be applied against the arrears of spousal support. 61 .

With respect to the amount of the occupation rent, I am of the view that one-half the amount paid by Ms. Guerrette for the period between May 1, 2019 (when the ex-wife began paying rent) and the end of September 2022 (when the Agreement of Purchase and Sale was signed for the marital home) would be reasonable. The calculation takes into account that the heating cost claimed by Ms. Guerrette in her financial statement is substantially the same as Mr. Morin’s (despite the fact that the ex-wife was heating an apartment and the ex- husband a house).

I cannot consider what the parties could have collected in rent for their house, as no evidence was presented to that effect. 62 . The total amount owed by Mr. Morin is: $38,518.50 x 50% = $19,259.25. 63 . I will concur with Mr. Morin’s position that the amount he owes in occupation rent be deducted from the amount of arrears owed by Ms. Guerrette, which is $72,864 - $19,259.25 = $53,604.75. 3. Is either Ms. Guerrette or Mr. Morin entitled to costs? 64 . Rule 59 of the New Brunswick Rules of Court 26 gives the Court broad discretion to make an order as to costs.

Factors to be considered are also identified. 27 65 . In discussing costs, Bell, J.A. wrote 28 : It is trite law that costs normally follow the cause. Should a trial judge decide to depart from that rule he or she is required to justify the departure: Dupuis v. Moncton (City) , 2005 NBCA 47 , 284 N.B.R. (2d) 97 , para. 40 . In Orkin, The Law of Costs (Toronto: Canada Law Book Ltd., 1965), the author states:

The fundamental principles of costs as between party and party is that they are given by the court as an indemnity to the person entitled to them; they are not imposed as punishment on the person who must pay them. Party and party costs are in effect damages awarded to the successful litigant as compensation for the expense to which he has been put by reason of the litigation. [p. 14] (Emphasis added) 66 . I agree with Orkin. In this case, Mr. Morin has been successful across the board. In no way did Ms. Guerrette even consider, in taking her position, that she had to pay support for her former spouse.

This position necessitated a three-day trial. _____________________________________________________________________________ 26 New Brunswick Rules of Court , Rule 59.01 27 New Brunswick Rules of Court , Rule 59.02 28 L.T.G. v. C.J.G., 2011 NBCA 12 . 67 . Mr. Morin, on the other hand, was more conciliatory, going so far as to agree to pay occupation rent to his former spouse. 68 . Accordingly, I exercise my discretion and order Ms. Guerrette to pay Mr. Morin $3,500, inclusive, for costs and disbursements. DISPOSITION 1 . A divorce order was granted to Ms. Guerrette shortly after the start of the trial. 2 . Ms.

Guerrette shall pay spousal support to Mr. Morin in the amount of $2,040 per month starting on December 1, 2022, and continuing on the first of each month thereafter until further order of the Court. 3 . The amount of retroactive support for Mr. Morin is fixed at $72,864. 4 . The amount owed to Ms. Guerrette by Mr. Morin for occupation rent is $19,259.25. 5 . In

summary, Ms. Guerrette owes Mr. Morin $53,604.75. 6 . Ms. Guerrette shall make payment arrangements acceptable to Mr. Morin within one month. Failing that, Mr. Morin may take any necessary steps with the Office of Support Enforcement or others to recover his money.

7 . Ms. Guerrette shall pay Mr. Morin costs in the amount of $3,500, inclusive. ____________________________________________________ Michelle Boudreau-Dumas, Judge of the Court of King's Bench