2012 NBCA 50, 2012 NBCA 50

COURT OF APPEAL OF NEW BRUNSWICK 1-12-CA SARAH ELIZABETH BROOKS (Respondent) APPELLANT SARAH ELIZABETH BROOKS (Intimé

e) APPELANTE - and - - et - COLIN DAVID BROOKS (Petitioner) RESPONDENT COLIN DAVID BROOKS (Requérant) INTIMÉ Brooks v. Brooks, 2012 NBCA 50 Brooks c.

Brooks, 2012 NBCA 50 CORAM: The Honourable Justice Larlee The Honourable Justice Robertson The Honourable Justice Richard CORAM : L’honorable juge Larlee L’honorable juge Robertson L’honorable juge Richard Appeal from a decision and Order of the Court of Queen’s Bench: December 12, 2011 Appel d’une décision et ordonnance de la Cour du Banc de la Reine : Le 12 décembre 2011 History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : Inédite Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : S.O.

Appeal heard: April 12, 2012 Appel entendu : Le 12 avril 2012 Judgment rendered: June 7, 2012 Jugement rendu : Le 7 juin 2012

Counsel at hearing: For the appellant: Sarah Elizabeth Brooks appeared in person For the respondent: Colin David Brooks appeared in person Avocats à l’audience : Pour l’appelante : Sarah Elizabeth Brooks a comparu en personne Pour l’intimé : Colin David Brooks a comparu en personne THE COURT The appeal is allowed in part without costs. The motion judge’s decision dismissing both Ms. Brooks’ motion and Mr. Brooks’ response for variation of spousal support is set aside and a new hearing is ordered, but one restricted to the issue of prospective changes to the spousal support provisions of the Consent Order. LA COUR L’appel est accueilli en

partie sans dépens. La Cour annule la décision du juge saisi de la motion portant rejet à la fois de la motion de M me Brooks et de la réponse de M. Brooks en vue d’obtenir la modification des aliments au profit de l’épouse et ordonne la tenue d’une nouvelle audience, mais d’une audience limitée à la question de la modification, pour l’avenir, des dispositions alimentaires de l’ordonnance par consentement prévoyant le versement d’aliments au profit de l’épouse.

The following is the judgment delivered by THE COURT [ 1 ] Sarah Elizabeth Brooks and Colin David Brooks were divorced in August 2008 after almost 20 years of marriage. Consent Orders providing for matters including custody of the two children of the marriage, child support and spousal support were incorporated in an Order for Corollary Relief. Since the divorce, Ms. Brooks has twice sought to have the Order for Corollary Relief varied to increase spousal support, and, each time, Mr.

Brooks responded with his own request for a variation to reduce the amount to reflect the fact that he is now the primary caregiver of their two children. On both occasions, judges of the Court of Queen’s Bench refused to interfere with the spousal support provision of the Consent Order. It is the last of these refusals that is the subject of Ms. Brooks’ appeal. [ 2 ] The original Consent Order is dated June 5, 2008. It was later complemented by another one because the original Order failed to include a provision regarding prospective spousal support for Ms. Brooks.

For the purposes of this decision, both of these orders together will be referred to as “the Consent Order”. Clause 25 of the Consent Order provides that “[e]ither party may apply for a review of the spousal support provisions contained herein after 2 full years from the effective date of this order [and that] [t]here is no requirement for a material change in circumstances to occur before requesting a review pursuant to this order.” On August 27, 2009, Ms. Brooks filed a motion to vary the Order for Corollary Relief. The motion was heard on June 3, 2010, but, for medical reasons, Ms. Brooks did not attend.

Ultimately, her motion was dismissed in a decision that was not appealed. In any event, that motion could not have given effect to Clause 25 of the Consent Order, since it was filed and heard before two full years had expired. [ 3 ] On May 24, 2011, Ms. Brooks filed the motion that is the underlying subject of this appeal. In fact, she filed more than one notice of motion, but the motion judge treated them as one and we will do the same. Ms. Brooks essentially advanced two arguments in support of her request for an increase in spousal support.

She maintained: (1) her post-divorce health deterioration should yield increased support payments; and (2) miscalculations in the spousal support provisions contained in both the June 1, 2007 Interim Consent Order and the June 5, 2008 Consent Order resulted in an undervaluation of spousal support and should now be rectified. In addition, Ms. Brooks alleged fraud and cover-up by her ex-husband, his lawyer and her own lawyer and sought various orders for contempt of court.

[ 4 ] The motion judge dismissed Ms. Brooks’ motion. With regard to spousal support, he dismissed it on the ground that she was effectively trying to re-litigate the issues that had been raised in the motion that was heard on June 3, 2010. In addition, the motion judge ruled that there was no merit to the allegations of fraud and that the Consent Order was a reflection of the will of the parties. The motion judge also dismissed the various requests for relief Ms. Brooks was seeking. He disposed of these as follows: 1. A request Mr. Brooks be held in contempt for refusing to send Ms.

Brooks certain specific information. Dismissed, as there is no order of this Court directed to Mr. Brooks to provide such information; 2. A request that Mr. Brooks be required to accept correspondence from Ms. Brooks on the issues raised in these motions. Denied, as there is no requirement for anyone to receive correspondence in the normal course of litigation. Service of process is provided pursuant to the Rules of Court and so this request cannot be fulfilled; 3. A request that Mr. Brooks be found in contempt for refusing to accept registered mail on the issues before the Court.

Dismissed, as there is no law that requires Mr. Brooks to accept correspondence. Correspondence that must be conveyed in a litigation file must either be served in accordance to the Rules or submitted under appropriate process and, receipt may be deemed under the Rules. Actually ordering Mr. Brooks to receive documents is not within the mandate of this Court in these circumstances; 4. A request that Mr. Brooks be ordered to provide certain documents to facilitate the claim against him. Denied, as being outside the scope of this process.

There are certain, limited, cases in which the Court may order someone to produce specific documents. That is not what is being sought here. Ms. Brooks is seeking a blanket requirement to produce all documents she considers necessary. This is not the proper means to discover the case for the other side. 5. A request the Court create a compensation fund for Ms. Brooks' benefit to "facilitate a fair resolution to the on-going and unsatisfactory Divorce litigations …” Denied. This is one of the specific claims for relief in the third motion and should not be inappropriately presented here.

In addition, the claim for relief is not specifically supported by evidence sufficient to prove the claim; 6. A request the Court determine Mr. Brooks to be in contempt for failing to reveal all the evidence necessary for the defending party to meet the case against him. Denied. Ms. Brooks is the moving party and, as such has to define the parameters for the litigation. Mr. Brooks is under no compulsion to provide any, or any specific evidence in response. If he does not provide the appropriate evidence in the appropriate format, the consequence for him might be the loss of the motion; 7.

A request the Court strike the whole of Mr. Brooks' responding document as malicious and demeaning and require Mr. Brooks to be required to give viva voce evidence in respect to the matters to be heard. Denied. Mr. Brooks has submitted a responding document with affidavit attached. Before I make any determination about the nature of that document, I must hear the argument. A determination the document is malicious and demeaning may well justify a remedy in costs or otherwise. It does not warrant striking the entirety of the document with no actual review of the contents; 8.

A request the responding documents be struck and Mr. Brooks be held in contempt of this Court because his response does not respond to the matters set out to be heard. Dismissed. Again, the consequence of an inappropriately drafted response is not usually the removal of the document on grounds of relevance. Instead the poorly crafted response is detrimental to the responding party in determination of the matters at issue; 9.

A request to order the appearance of two counsel in respect of their alleged contempt and further in respect of an interim motion of May 2007 and their alleged falsification of figures in the consent order disposing of collateral issues in the divorce. Denied. Counsel in proceedings from four years ago who are not parties to this matter cannot be summarily brought forward to reply to allegations that are not relevant to the matters immediately before this Court. 10. A second request to order the appearance of the two counsel for their alleged contempt in forcing Ms.

Brooks to consent to orders she says resulted in her being trapped in an unconscionable situation. Denied. For the reasons set out above, I cannot order non-parties to appear and face allegations that are outside the Rules of Court. Further, other than Ms. Brook's [sic] calculations and her steadfast belief, there has been no proof presented to support the claims.

[5] Ms. Brooks, who was self-represented at the hearing of her motion and again before us, brings a motion tointroduce fresh evidence consisting of 10 documents. None of those documents has a direct bearing on the principal issue this Court mustdecide: whether the motion judge erred in refusing to increase the amount of spousal support presently being paid. Accordingly, themotion to adduce fresh evidence must be dismissed. [6] The appellant’s Notice of Appeal and written submission outline 28 grounds of appeal.

Some of the groundschallenge the motion judge’s impartiality in deciding the matter and are simply frivolous. Many of the grounds challenge the dismissalof the various forms of relief Ms. Brooks was seeking, in addition to the increase in spousal support (that is those enumerated inparagraph 4 above). Those grounds effectively invite us to retry factual issues or substitute our discretion for that of the trial judge. However, as has been stated many times before, this is not the role of a court of appeal. As stated in Doucet and Société ÉnergieNouveau-Brunswick v.

LeBlanc, 2010 NBCA 13, 354 N.B.R. (2d) 117, at para. 1, and repeated in Mills v. Mills, 2010 NBCA 20, 356N.B.R. (2d) 351, at para. 10: “[i]t is now an elementary statement of law that an ‘appellate court must not retry a case and must notsubstitute its views for the views of the trial judge according to what the appellate court thinks the evidence establishes on its view of thebalance of probabilities’.” [7] The Supreme Court of Canada has been very clear in delineating the roles of the respective courts. This isexpressed in the following recent decision of this Court in MacDonald v.

MacDonald, 2011 NBCA 25, 372 N.B.R. (2d) 179: The standard of review that applies to family matters generally is that the judge's decision must be given considerable deference. Anappellate court is empowered to set aside or vary a decision or order where it is the product of an error of law, an error in principle, asignificant misapprehension of the evidence or if it is clearly wrong [para. 7] [8] Specifically with regard to findings of fact and discretionary relief, which formed the basis for many of therulings enumerated above, the standard of review was again explained in Yorke v.

Yorke, 2011 NBCA 79, 378 N.B.R. (2d) 141, leave toappeal dismissed [2011] S.C.C.A. No. 520 (QL): An appellate court must show considerable deference to a trial judge's decision on a family law matter (T.M.A.H. v. J.J.G., 2010 NBCA4, [2010] N.B.J. No. 21 (QL)). In Milton v.

Milton, 2008 NBCA 87, 338 N.B.R. (2d) 300, at para. 14, this Court reiterated that withregard to the standard of review applicable to an appeal from a division of assets made pursuant to the Marital Property Act (legislationconferring discretion on a judge to divide property), we can intervene and review the facts only if the trial judge has misdirected herselfor himself or if the decision is "so clearly wrong as to amount to an injustice" (see Elsom v. Elsom, (SCC), [1989] 1S.C.R. 1367, [1989] S.C.J. No. 48 (QL), at 1375). In N.L. v.

R.L., File Number 127/07/CA, December 14, 2007 (N.B.C.A.), Richard J.A. summed up the standard of review in a familycase: 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 can [sic] if it is the result of a palpable and overriding error, and may only interfere with a discretionary order if it is founded uponan error of law, an error in the application of the governing principles or a palpable and overriding error in the assessment of the evidence(see Housen v. Nikolaisen, 2002 SCC 33 , [2002] 2 S.C.R. 235, [2002] S.C.J.

No. 31 (QL), 2002 SCC 33 and H.L. v. Canada(Attorney General), 2005 SCC 25 , [2005] 1 S.C.R. 401, [2005] S.C.J. No. 24 (QL), 2005 SCC 25 with regard to findings offact, and British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71 , [2003] 3 S.C.R. 371, [2003] S.C.J.No. 76 (QL), 2003 SCC 71, at para. 43, with regard to discretionary orders). [para. 3] [paras. 8 and 9] [9] We simply do not see any error of the type that would allow appellate interference with any of the rulings thatare enumerated in paragraph 4 above. Thus, there is no basis for intervention.

The grounds of appeal relating to those rulings aretherefore dismissed. We do, however, add an observation with respect to the first of those rulings, that is the one which addressed therelief sought that Mr. Brooks be held in contempt for refusing to send Ms. Brooks certain specific information. There was an obligationpursuant to the 2008 Consent Order for the parties to exchange income tax information each year by a specified date. Ms. Brooksdeposed that Mr. Brooks had not complied with this but also admitted that she had not either, explaining that illness had prevented herfrom doing so.

Although this was not addressed in his affidavit, Mr. Brooks explained to us that he had provided the tax information eachyear to his lawyer. In the circumstances, we make no determination of fact or credibility but we rather dispose of that issue by theexercise of our discretion not to find any contempt because both parties, for reasons of their own, might not have strictly complied withthe wording of the Consent Order in regard to the exchange of tax information. This ruling does not, however, relieve either party of theirfuture obligation to comply.

[ 10 ] The balance of the grounds of appeal relate to the motion judge’s ruling regarding spousal support. The principal reason for dismissing Ms. Brooks’ motion is stated to be “because of the fact it is the second attempt to deal with the same issue.” With respect, we see error in this statement. In the Consent Order, the parties specifically provided for a review of spousal support after the expiry of two full years after the effective date of the order without the need for a material change in circumstances. When Ms.

Brooks filed her first motion for a variation of spousal support, on August 27, 2009, and when her motion was heard on June 3, 2010, two years had not expired. Thus, the ruling made pursuant to that motion could not be one as contemplated in Clause 25 of the Consent Order. When Ms. Brooks filed the motion, the decision of which is the subject of this appeal, she became entitled to a review of the spousal support provisions in the original Consent Order, without regard to the usual need for a material change in circumstances.

This is what the parties had agreed to and that is what the judge had ordered in the Consent Order. By rejecting her motion without a fresh adjudication of spousal support issues, the motion judge deprived not only Ms. Brooks of the benefit of Clause 25 of the original Consent Order, but also Mr. Brooks of the same, since, in his response, he too was seeking a review of the spousal support provisions. In our view, it was an error in law for the motion judge not to have determined anew the spousal support obligations of the parties.

The appropriate relief to correct this error is to return the matter to the Court of Queen’s Bench for adjudication of the issue of spousal support. [ 11 ] This said, the motion judge rejected Ms. Brooks’ argument that she would be entitled to a retroactive variation of the spousal support provisions because of “fraud or unconscionable conduct by her ex-husband and a number of lawyers in submitting erroneous computerized calculations to the Courts.” As the judge explained, the judge who signed the Consent Order “is not tied to the attached SupportMate calculations” that formed part of the Order.

The Consent Order was the result of settlement discussions between the parties and their respective counsel, as both were represented at the time. It is not the role of the judge to go behind any compromise reached by the parties and their counsel, where the judge considers the Order to be appropriate in the circumstances. The fact remains that Ms. Brooks indicated her personal consent and signed the Consent Order. Neither the original Order, nor the subsequent one that made a correction to it, were ever appealed. Ms. Brooks cannot now renege on her consent and seek a retroactive variation of spousal support.

In our view, the motion judge did not err in rejecting a claim for retroactive variation on the basis of fraud or unconscionable conduct. [ 12 ] In

summary, the appeal should be allowed, but only as it relates to Ms. Brooks’ claim for a prospective increase in spousal support to be adjudicated in accordance with Clause 25 of the Consent Order. Correspondingly, Mr. Brooks’ response seeking a reduction in the amount also requires adjudication. In other respects, the rulings of the motion judge are upheld for the reasons given above. Paragraph 5 of the motion judge’s Order, relating to existing pensions, was not raised as a matter on this appeal and remains unaltered. [ 13 ] It follows that the appeal is allowed in part.

Pursuant to Rule 62.21(8) of the Rules of Court, the motion judge’s decision dismissing both the motion and Mr. Brooks’ response for variation of spousal support is set aside. A new hearing is ordered, but one limited to the issue of prospective changes to the spousal support provisions of the Consent Order in accordance with Clause 25 of that Order. No costs are allowed. ___________________________________ M.E.L. LARLEE, J.A. ___________________________________ J.T. ROBERTSON, J.A. ___________________________________ J.C. MARC RICHARD, J.A.