TIMOTHY ROGER CARR, Applicant (Moving Party), KAREN ANKETELL, – v. –, 2022 NBKB 187

IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF MONCTON Carr v. Anketell 2022 NBKB 187 FDM-374-2013 2022/10/06 BETWEEN: TIMOTHY ROGER CARR, Applicant (Moving Party), KAREN ANKETELL, – and – Respondent (Responding Party). DECISION BEFORE: Madam Justice Brigitte M. Robichaud AT: Moncton, New Brunswick

DATE OF HEARING: March 15-16, and September 15, 16 and 23, 2022 DATE OF DECISION: October 6, 2022 APPEARANCES: Timothy Roger Carr, on his own behalf Karen Anketell, on her own behalf Robichaud, J. INTRODUCTION [ 1 ] Following the breakdown of their 31-year marriage in 2012, the parties were granted a divorce judgment effective February 26, 2015, in which Timothy Carr was ordered to pay indefinite spousal support to his ex-spouse Karen Anketell, on both a compensatory and a non-compensatory basis, in the amount of $725 per month commencing on January 1, 2015, based on Mr. Carr’s imputed annual income of $52,621.

The judgment also set the spousal support arrears due by Mr. Carr at a total of $19,212. [ 2 ] Mr. Carr now moves to vary the divorce judgment to permanently cancel his spousal support obligations. While he had originally sought to have the arrears rescinded as well, he withdrew that claim mid-hearing as he had managed to pay off the arrears through several federal interceptions on a garnishment order. [ 3 ] Mr. Carr argues he can no longer afford to pay spousal support. He says his current income level at age 61 is not significantly higher than Ms.

Anketell’s and further pleads she has been adequately compensated for her role in the marriage. Mid-hearing, he narrowed his claim asking that his support obligations cease as of September 15, 2022. [ 4 ] Ms. Anketell argues she has not been fully compensated for the sacrifices she made and the family responsibilities she assumed during the course of the marriage where she was the primary caregiver of the parties’ three children. She further argues she remains entitled to spousal support on both a compensatory and non-compensatory basis.

CREDIBILITY [ 5 ] Prior to dealing with the facts as I find them, it is necessary to deal with the issue of credibility of the parties. In

summary, I found the testimony of Ms. Anketell much more credible than Mr. Carr’s. Ms. Anketell testified in a clear, consistent, coherent and well- organized manner. She refrained from hazarding guesses, and she described facts and events without overreaching in irrelevant information or making vague and broad sweeping statements. Her testimony relating to past events were most often corroborated by timelines that coincided with milestone events such as a child’s birth, a child’s medical procedures, the schooling timelines, her employment history and characteristics of same. [ 6 ] On the contrary, Mr.

Carr’s testimony was replete with very doubtful versions of past events. On the important aspects of the history of the care of their three children since their births, he initially embellished and exaggerated his participation as a shared caregiver. Through his own testimony later on, he maligned the fact he had always worked long hours since the beginning of the 31-year marriage. For instance, his evidence was that he worked 40, 50, 80 and sometimes 100 hours per week during weekdays. And then, after hours and weekends, he worked as a carpenter or at odd jobs for third parties.

Common sense dictates that he was not the available parent he claimed. [ 7 ] Mr. Carr not only contradicted himself on many aspects including his income over the years, but he also testified in an incoherent and inconsistent manner. I will give some examples. He often used qualifiers like: “I think…”, “… maybe …”, “probably …”, “I believe …”, “… whatever …”, “but… not quite sure …”. He indicated he was “guessing” when testifying on certain aspects of Ms. Anketell’s past employment. This in my view undermines his power of recollection.

[ 8 ] There were other examples of contradictions or outright misleading statements from Mr. Carr. When asked when he last worked for cash, his first answer was: “I can’t remember.” After pondering over his answer, he replied he was not sure and that likely his last cash job was a deck construction some 20 years ago for a cash payment of either $300 or $400. When pressed further in cross- examination, he added he worked at helping friends and relatives since, but only got a “meal” out of it. Also on cross-examination, he was reminded he had helped build a garage for a friend in 2009.

He initially denied it was a cash job. After Ms. Anketell pressed him on it, he admitted receiving cash. He also conceded he had built a stage for a campground owner in 2011 and had again received cash. After originally denying another cash job he performed in 2012 when he built a deck for a friend, he was forced to agree with Ms. Anketell’s assertion. As to a more recent timeline, he also conceded that, indeed, less than nine months ago in 2022 he had built shelves for a trailer and had been paid with a gift card. [ 9 ] As to the testimony of Ms.

Anketell, her power of observation and recollection was far superior to Mr. Carr’s. Her version of events was consistent and was not undermined on cross-examination. Her testimony was plausible and corroborated by documentary evidence and the record. [ 10 ] Regarding the testimony of each party, when their evidence conflicts on substantive matters, I prefer the evidence of Ms. Anketell for the reasons explained above. FACTS [ 11 ] The parties married in July 1981. They lived with Ms. Anketell’s parents for the next three years until they obtained an apartment.

In 1986, they moved into a new home they built for themselves. Upon their marriage, both former spouses were working, Ms. Anketell in retail part-time, and Mr. Carr with a lumber company full-time. [ 12 ] The parties raised three children: a daughter, A.C., born in 1982, a second daughter, G.C., born in 1984, and a son, J.C., born in 1988. The second child, G.C., was born with a club foot. Her medical needs required many consultations with specialists at a Montreal hospital. Ms. Anketell travelled with G.C. to Montreal at least six times a year over the course of ten years.

G.C. underwent multiple surgeries to correct her medical issue. On each occasion, the aftercare included a cast. [ 13 ] After the birth of each child, Ms. Anketell took maternity leaves from her employment. Afterwards, she returned to work on a part-time basis intermittently. In 1989, after the maternity leave for the youngest child J.C., Ms. Anketell quit working outside the home in order to care for the three children.

To add to this babysitting role, she took in up to four neighborhood children for either full days of babysitting or for after-school care. [ 14 ] When the parties’ son J.C. was less than one year of age, Ms. Anketell enrolled in night school to upgrade her education as she had plans to launch into a nursing career. By the time J.C. was nearing his kindergarten year, all of her prerequisites were completed (including pre-admission testing) for admission to the two-year practical nursing program offered locally by the A.J. McMaster School of Nursing.

When J.C. entered kindergarten, the two-year course was changed to a four-year undergraduate degree program through the University of New Brunswick. Ms. Anketell says that her plans of a nursing career abruptly ended because of her family responsibilities and their financial circumstances. [ 15 ] In 1992, Ms. Anketell added a second job to her babysitting duties. She commenced working the night shift (9 p.m. to 5 a.m.) five days a week as a baker for a local coffee shop.

By 1995, she was feeling overwhelmed with juggling daytime babysitting and night-time employment, and she resigned from the latter. [ 16 ] Later in the same year, Ms. Anketell enrolled in a nine-month computer course sponsored by the Government of Canada. In May of 1996, she commenced work with UPS on a part-time basis and, seven years later, she moved into a full-time position on the day shifts. [ 17 ] While working at UPS, Ms. Anketell took on a second job at a country store from 2011 to 2013 where she worked three evenings per week and weekends. She lost this employment when the owner sold the business.

Two years later, in 2015, she again took on a second part-time job with Bass Pro working 13 hours per week. She pursued advancement with this latter employer and, as will be seen later, she finally became a full-time employee of theirs in the summer of 2021. [ 18 ] In January of 2021, Ms. Anketell’s full-time employment with UPS came to an end when the courier business outsourced

overseas. She received a severance package in the order of $57,000 calculated at the rate of 2.4 weeks of employment per year of service. She testified that from that sum she rolled an amount of $30,000 into an RRSP and used the balance to pay off her Visa credit card and at least $9,000 in income taxes on the cashed-in portion of the severance. She testified that by the time of this hearing she was left with approximately $1,000 from the severance.

She explained she had to utilize a portion of the funds to cover some unpaid leave or some partial-paid leave when she took compassionate leave to care for a terminally ill brother and then her gravely ill mother. [ 19 ] To further assist with the cost of these leaves, Ms. Anketell cashed in the sum of $18,000 from an RRSP. In addition to taxes that were withheld on this transaction, she paid a 2021 tax bill of $18,895. [ 20 ] In July of 2021, Ms. Anketell’s part-time hours with Bass Pro became full-time hours. She remains in that capacity to this day.

Her rate of pay is $14 per hour with a 40-hour work week. [ 21 ] Ms. Anketell testified that in 2022 she received 26 weeks of employment insurance compassionate benefits from March to September when she was given leave to care for her gravely ill mother. As E.I. was her only source of income, this is a period where she had to dip into some of the savings from her severance pay. [ 22 ] The work history of Mr. Carr during the marriage involved full-time employment at a lumber company for 11 years. In the course of same, he obtained a Class 1 driver’s licence.

In 1991, he obtained part-time work with Day and Ross becoming full-time in 1992. He remained there for three or four years and obtained an additional Class 3 licence. His shift work involved shunting trailers and working approximately 40 hours per week. [ 23 ] From 1995 to 2011, Mr. Carr launched into self-employment as a broker. He purchased his own truck and worked at shunting trailers throughout the city. His work week consisted of 80 hours. In 2011, he shifted to an employee status working 40 hours per week at a cabinet and countertop business.

This lasted a total of three months. [ 24 ] In August of 2012, Mr. Carr went to work in Western Canada operating trucks and water tankers. The Class 1 and Class 3 licences he held were a mandatory prerequisite. After a couple of months out West, Mr. Carr quit his job and returned to New Brunswick where he obtained work with a local contractor commencing in 2013. His work week generally consisted of 50 to 55 hours in the warmer months and 24 hours per week in the winter when he plowed snow. [ 25 ] After eight months with this latter employer, Mr. Carr claimed employment insurance for approximately six months.

In 2014, he obtained work with another trucking outfit shunting trailers locally. The original part-time hours increased to full-time full-year hours until he moved on to another employer in 2019 again in the construction trade, specifically framing. He worked full week at the rate of 50 hours per week until 2021. [ 26 ] In the early part of 2022, from January to the end of May, Mr. Carr received E.I. benefits. During this period, he also started working as a truck driver with OSCO Concrete where he currently works.

When he was in receipt of E.I., any income from work at OSCO led to a downward adjustment of his E.I. benefits. Since May 8, 2022, Mr. Carr works full time at OSCO earning some overtime pay as well. He testified he recently renewed his Class 1 driver’s licence in April of 2022 after successfully completing his annual medical. [ 27 ] Throughout the marriage, Mr. Carr was always the higher income earner. Not only was he a salaried employee, he also regularly collected cash for carpentry jobs.

In fact, that was in part the basis of the income imputation determined by Walsh, J. of this Court in the decision dated February 26, 2015, the very decision Mr. Carr asks this Court to vary in order to terminate his spousal support obligations permanently. ISSUES [ 28 ] The following are the issues before the Court: 1. Has Mr. Carr proven a change in circumstances warranting a variation of his spousal support obligations?

2. Costs. LAW AND ANALYSIS 1. Variation of spousal support [ 29 ] The Court’s authority to vary a spousal support order is set out in

section 17 of the Divorce Act , R.S.C. 1985, c.3 (2 nd Suppl .) as amended. It requires a two-step approach. Firstly, the Court must find the existence of a material change in circumstances occurring since the last support order. Then, secondly, if that threshold has been met, the Court must assess the objectives relating to a variation of a spousal support order in light of the change. The relevant subsections of the Act provide as follows: Variation order 17(1) A court of competent jurisdiction may make an order varying, rescinding or suspending, retroactively or prospectively, (

a) a support order or any provision of one, on application by either or both former spouses; (…) Conditions of order

(3) The court may include in a variation order any provision that under this Act could have been included in the order in respect of which the variation order is sought, and the court has the same powers and obligations that it would have when making that order. (…) Factors for spousal support order

(4.1) Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration. (…) Objectives of variation order varying spousal support order

(7) A variation order varying a spousal support order should (

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

b) apportion between the former 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 former spouses arising from the breakdown of the marriage; and (

d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time. [30] As set out in subsection 17(4.1), the Court’s authority on this variation hearing is premised upon it finding that a change hasoccurred in the condition, means, needs or other circumstances of either spouse since the making of the February 26, 2015, spousalsupport order. Mr.

Carr, being the party seeking a termination or variation of the indefinite order, has the onus of proving a materialchange in circumstances, defined by the Supreme Court of Canada in Willick v Willick (SCC), [1994] 3 S.C.R. 670 (atpara. 21), as: “… a change, such that, if known at the time, would likely have resulted in different terms.” (See also B.(G.) v G.(L.) (SCC), [1995] 3 S.C.R. 370 applying the same test to spousal support variations.) [31] In assessing whether a change has occurred, the Court is required to identify the basis upon which the existing spousal supportorder was granted in the first place, namely, was it the compensatory model or the non-compensatory model or both. [32] The background facts alluded to earlier establish that the mother, Ms.

Anketell, was the primary caregiver of the three childrenduring the cohabitation. She saw to their needs while infants, toddlers or school aged. She arranged and accompanied them to all theirmedical appointments and juggled those roles while also working mostly part time outside the home, often at two jobs, including attimes a night shift job back-to-back with a daytime job. She managed the household and saw to the needs of the children ensuring theyhad adequate daycare as needed and were well equipped and outfitted for school. The evidence also establishes that Ms.

Anketell gaveup hopes of pursuing a nursing career for the sake of the family. [33] The evidence also establishes that Mr. Carr occasionally contributed to the care of the children, but certainly not to the extent ofalways “being there” that he tried to claim. The parties agreed he accompanied their son to hockey practices and games through thecourse of a few years. There is ample evidence that Mr. Carr had the freedom to pursue a career as a full-time tractor trailer driver andheavy equipment operator. Often times, he worked 50, 60 or 80 hours per week at his leisure as Ms.

Anketell was managing the bulk ofthe household and childcare responsibilities. Through his various employments, he also received training and certifications for Class 1and Class 3 licenses that positioned him to seek out trucking employment opportunities wherever he saw fit. The evidence alsoestablishes that on weekends and after hours, Mr. Carr took on carpentry projects for third parties where he was nearly always paid incash.

He expressed in his testimony that he was always the high-income earner in the family. [34] With this background of the roles held by the parties during their 31-year marriage, it is of no surprise that in two previousrulings, two of my colleagues concluded Ms.

Anketell was entitled to spousal support on both a compensatory and a non-compensatorybasis. (See the interim decision of d’Entremont J. dated November 13, 2013, at Carr v Anketell 2013 NBQB 367, and the final decisionon the divorce judgment issued by Walsh J. dated February 26, 2015, at Carr v Anketell 2015 NBQB 51.) [35] On the evidence before me, I also conclude that the basis of Ms. Anketell’s entitlement to spousal support continues to exist onboth a compensatory and non-compensatory basis. – The position of the parties [36] Mr. Carr argues the spousal support order should be terminated immediately.

He believes the following changes exist: Ms.Anketell earned more income than him in a one-off year meaning she could earn more than she earns actually, he is now 61 years of ageand looks forward to retiring, and, Ms. Anketell has a new partner since 2019. Alternatively, he says the support should be reduced byfifty percent and definitively terminated in May of 2026 when he turns 65. [37] Ms. Anketell asks the Court to dismiss Mr. Carr’s motion on the grounds that he has not established a material change incircumstances to justify varying the current order.

She dismisses the notion that she is able to earn as much as him as he suggests. Shealso says she has not yet been fully compensated for the sacrifices she made during the 31-year marriage and the roles she played inraising three children, running a household, and additionally, contributing financially to the family. She says her re-partnering is nodifferent than Mr. Carr’s situation; he remarried in 2019. Ms. Anketell also argues that spousal support should continue at the currentlevel ($725 per month) and she agrees that it be terminated in December of 2026 when she reaches age 65.

[ 38 ] It bears repeating that the threshold test of a change in circumstances that Mr. Carr must establish as the Moving Party is defined as a change that, if known at the time of the February 26, 2015 order, would likely have resulted on different terms. – The incomes of the parties [ 39 ] From the undisputed evidence, and excluding the spousal support received by Ms. Anketell, the employment and Employment Insurance incomes of the parties dating back to 2019 are as follows: Year Mr. Carr Ms.

Anketell 2019 $54,656 $42,213 2020 $29,835 $50,249 2021 $45,961 $31,667 2022 $52,581 (estimated) $23,089 (estimated) [ 40 ] It can readily be seen over the last four years, that except for the year 2020, Mr. Carr has a pattern of earning more income than Ms. Anketell. However, in assessing whether there is a continued entitlement to spousal support, income is not the only factor. The history of the relationship and how the roles played by Ms. Anketell disadvantaged her economically and generated hardships for her following the breakdown of the marriage are very relevant. As for Mr.

Carr, during the marriage and after the breakdown, he maintained the role of the main income earner. Throughout he had the freedom of working in his chosen fields. His choice of work was never impeded by family responsibilities nor by childcare requirements. Further he used his spare time as he chose including pursuing cash jobs mostly through carpentry projects for third parties.

Recall that his access to cash income, his past under-employment and the credibility issues are in part what brought Walsh, J. to impute to him an income of $25,971 in 2015 in addition to the reported income of $26,650 (combined seasonal employment of $18,850 and E.I. of $7,800) for an income in the order of $52,621 on which the spousal support order was based. [ 41 ] Like Walsh, J., I find that Mr. Carr is continuing to earn cash income from carpentry projects for third parties. In his testimony, he boasted he was a hard worker all his life working 50, 60 and even 100 hours per week.

He alluded to cash jobs in carpentry, although he tried to recant that, unsuccessfully, in my view. As mentioned previously, Ms. Anketell listed in her testimony and in cross- examination of Mr. Carr, a number of cash carpentry projects he had completed over the years. He contradicted himself repeatedly in his responses, vacillating from agreeing to her assertions to disagreeing with her all in the same breath. I have previously ruled that where the evidence of the parties on the existence of cash income earned by Mr. Carr conflicts, I prefer Ms. Anketell’s testimony and I believe that Mr.

Carr has continued his pursuit of cash projects since the parties separated in 2012 and even as recently as early 2022. [ 42 ] Because of the ruling I will be making on the variation issue, it is not necessary for me to actually quantify the extra cash income earned annually by Mr. Carr. I do however find that he continues to earn more income than what he reports in his tax returns. And currently, without factoring any imputed income, he earns more than twice the income of Ms. Anketell. [ 43 ] As mentioned earlier, the onus is on Mr.

Carr to provide evidence that a change in the “condition, means, needs, or other circumstances of either former spouse has occurred since the making of the spousal support order” and that knowledge of the existence of that change in 2015 would likely have led Walsh, J. to grant a spousal support Order containing different terms. [ 44 ] At paragraph 21 of Willick , the Supreme Court defined “material change” as follows: In deciding whether the conditions for variation exist, it is common ground that the change must be a material change of circumstances.

This means a change, such that, if known at the time, would likely have resulted in different terms. The corollary to this is that if the matter which is relied on as constituting a change was known at the relevant time it cannot be relied on as the basis for variation. [ 45 ] In my view, what was known at the time of the 2015 Order is that the parties were likely to continue to work in the same or similar capacity as during their 31-year marriage (Mr. Carr full-time and Ms. Anketell, some full-time and some part-time) and that, eventually, they would age into retirement. It was also known that Ms.

Anketell had always worked at lesser paying jobs than Mr. Carr.

He did not hesitate to remind the Court that he had done his share in the marriage as he had always been the higher income earner. [ 46 ] On the basis of the evidence before me, I find that Mr. Carr has not satisfied the requirements of a material change in circumstances. I am also satisfied that if the changes upon which he is relying had been before Walsh, J. at the time he rendered the spousal support Order, he would have issued the same terms as in the Divorce Judgment, namely an indefinite award of spousal support of $725 per month. [ 47 ] Referencing section 17(7) of the Act , I find Ms.

Anketell continues to suffer economic disadvantages arising from the parties’ marriage and its breakdown. I also find that the economic hardships generated from the marital breakdown continue to be felt by her. Further, I find she has been unable to attain economic self-sufficiency and not for want of trying. [ 48 ] Turning to the repartnering/remarriage for Ms. Anketell and Mr. Carr respectively, I conclude that the financial benefits from these new relationships are neutral and not particularly relevant to this debate. Each of these third parties have limited income. [ 49 ] The evidence establishes that Ms.

Anketell’s new partner earned $26,896 in 2019 and $27,305 in 2020 while in receipt of Canada Pension Plan (CPP) disability benefits. His 2021 income totaled $26,453 with the disability benefits being paid until October when he turned 65 and then the regular CPP pension benefits for the rest of the year together with Old Age Security (OAS) benefits. In 2022, his CPP benefits amount to approximately $970 per month and his OAS comes in at approximately $793 per month for projected annual earnings of $21,156. [ 50 ] In the case of Mr. Carr’s wife, she retired in 2021 from Canada Post.

In that year she earned a total of $37,133. Her estimated income for 2022 is in the order of $23,022 which reflects a monthly pension of $1,919 from Canada Post; it includes a bridging amount of $671 until she reaches age 65 when CPP benefits would be accessed. [ 51 ] The evidence was clear that in the parties’ respective households, Mr. Carr and Ms. Anketell shared their living expenses with their spouses. [ 52 ] Considering the whole of the evidence and taking into consideration the relevant provisions of

section 17 of the Act , I conclude Mr. Carr has not met the onus of proving a material change in circumstances since the making of the 2015 Order of Walsh, J. His motion is accordingly dismissed. [ 53 ] As mentioned earlier, the parties conceded that if this Court declined to vary the spousal support order, or to reduce it, the ongoing obligation should terminate in 2026, the year when they both reach age 65. Mr. Carr wants to set the end date in May of 2026 when he turns 65. Ms. Anketell wants it to end in December when she reaches the same milestone. In my view, considering that the motion of Mr.

Carr to immediately terminate his spousal support obligation was unsuccessful as he could not demonstrate the requisite change in circumstances, and further considering that the concession of Ms. Anketell to prescribe a termination date in 2026 was a generous one as it avoids future litigation of the issue, I conclude that the date proposed by Ms. Anketell (December 2026) is the most reasonable termination date for Mr. Carr’s obligations. [ 54 ] Accordingly, I order that Mr. Carr shall, in accordance with the Divorce Judgment of Walsh, J. effective February 25, 2015, continue to pay to Ms.

Anketell the sum of $725 per month by way of spousal support in two instalments of $362.50 each on the 1 st and 15 th of each month up to and inclusive of the instalment due December 15, 2026, upon which the support obligations of Mr. Carr shall terminate. 2. Costs [ 55 ] The parties self-represented. In the circumstances each shall bear his or her own costs. DISPOSITION

[ 56 ] The following is the order of the Court:

a) The Motion to Change filed by Timothy Roger Carr on February 27, 2020 is dismissed.

b) With the consent of the parties that this Court set a termination date for the payment of spousal support for the benefit of Karen Joan Anketell, Timothy Roger Carr shall, in accordance with the Divorce Judgment of Walsh, J. effective December 25, 2015, continue to pay to Karen Joan Anketell spoupsal support in the amount of $725 per month in two instalments of $362.50 each on the 1 st and 15 th of each month up to and inclusive of the instalment due December 15, 2026, upon which the spousal support obligations of Timothy Roger Carr shall terminate.

c) Each party shall bear his or her own costs. DATED at Moncton, N.B., this 6 th day of October 2022. _______________________________________ Brigitte M. Robichaud Justice of the Court of King’s Bench of New Brunswick