2015 NBCA 27, 2015 NBCA 27

COURT OF APPEAL OF COUR D'APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 43-14-CA JACQUELINE REID APPELLANT JACQUELINE REID APPELANTE - and - - et - PAUL GILLINGHAM RESPONDENT PAUL GILLINGHAM INTIMÉ Reid v. Gillingham, 2015 NBCA 27 CORAM: The Honourable Justice Larlee The Honourable Justice Quigg The Honourable Justice Baird Reid c.

Gillingham, 2015 NBCA 27 CORAM : l’honorable juge Larlee l’honorable juge Quigg l’honorable juge Baird Appeal from a decision of the Court of Queen’s Bench: April 2, 2014 Appel d’une décision de la Cour du Banc de la Reine: le 2 avril 2014 History of Case: Historique de la cause : Decision under appeal: 2014 NBQB 079 Décision frappée d’appel : 2014 NBBR 079 Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o. Appeal heard: February 11, 2015 Appel entendu : le 11 février 2015 Judgment rendered: April 30, 2015 Jugement rendu : le 30 avril 2015

Reasons for judgment: The Honourable Justice Quigg Concurred in by: The Honourable Justice Larlee The Honourable Justice Baird Counsel at hearing: Jacqueline Reid appeared in person For the respondent: Kenneth W. Martin Motifs de jugement : l’honorable juge Quigg Souscrivent aux motifs : l’honorable juge Larlee l’honorable juge Baird Avocats à l'audience : Jacqueline Reid a comparu en personne Pour l’intimé : Kenneth W. Martin THE COURT The appeal is dismissed with costs of $500. LA COUR L’appelante est déboutée et condamnée à des dépens de 500 $. The judgment of the Court was delivered by QUIGG, J.A. I.

Introduction [ 1 ] This is an appeal from a decision of a judge of the Court of Queen’s Bench, Family Division, confirming, with variation, a Provisional Order from the Supreme Court of Newfoundland and Labrador, Family Division, pursuant to s.19 of the Divorce Act , R.S.C. 1985, c.3 (2nd Supp.) (the Act ). II. Motion for Fresh Evidence [ 2 ] Before us, the appellant, Ms. Reid, applied to admit numerous documents as fresh evidence in support of her contention that Mr. Gillingham had given “false information” at the confirmation hearing. [ 3 ] Ms.

Reid, by way of motion, sought to adduce further evidence pursuant to Rule 62.21(2)(

c) of the Rules of Court . Her “fresh” evidence included documents relating to the finances of the parties and the respondent’s education. A thorough examination of this evidence leads to the inevitable conclusion that, by due diligence, it could have been adduced at trial.

[4] Generally, an appellate court will admit fresh evidence only if that evidence was not available at the priorhearing and will be critical to the determination of an issue on appeal (see B.P. v. A.T., 2014 NBCA 51, 423 N.B.R. (2d) 99, at para. 6;Krisko v. Krisko, [2000] O.J. No. 3941 (C.A.) (QL), at para. 12; and also Peck v. Peck, 2000 NSCA 114, [2000] N.S.J. No. 323 (QL), atparas. 11-12). In principle, truly “new” evidence should be used on an application to vary, and not on an appeal. Fresh evidence might beadmitted on an application if it was truly not adducible previously by due diligence (see Nykvist v.

Nykvist, 2004 MBCA 170, [2004] M.J.No. 411 (QL), at para. 30). This issue was raised before this Court in A.M.K.H. v. K.A.M., 2003 NBCA 33, 259 N.B.R. (2d) 291, at para.24, and although the Court indicated the evidence could be admitted, the case was remitted for a rehearing. [5] In my view, the material proffered as fresh evidence does not meet the test for admissibility (see Palmer v.The Queen, (SCC), [1980] 1 S.C.R. 759, [1979] S.C.J. No. 126 (QL); D.L.M. v. J.A.M., 2008 NBCA 2, 326 N.B.R. (2d)111, at para. 10; P.R.H. v. M.E.L., 2009 NBCA 18, 343 N.B.R. (2d) 100, at paras. 39-42; and MacDonald v.

MacDonald, 2011 NBCA25, 372 N.B.R. (2d) 179, at paras. 2-3, leave to appeal refused [2011] S.C.C.A. No. 237 (QL)). III. Background [6] The parties married on August 26, 1985, in Newfoundland and Labrador. There are four children of themarriage; the youngest is presently 22 years of age. In 2006, the parties divorced and an order of corollary relief awarded spousalsupport to Ms. Reid in the amount of $200 per month for an indefinite duration. This amount was calculated on the “With Child Support”formula of the Spousal Support Advisory Guidelines (SSAG). At the time of the original order, Ms.

Reid’s annual income was $31,500and Mr. Gillingham’s was $55,069. The basis of the entitlement was that of financial need (economic hardship) and compensation(economic disadvantage). The judge also awarded child support. [7] In 2013, Ms. Reid filed a motion in the Supreme Court of Newfoundland and Labrador, Family Division,seeking to increase spousal support. Mr. Gillingham had relocated to New Brunswick by that time. An order was made by a judge unders.18 of the Act, which provisionally varied the amount of spousal support to be paid.

The judge determined there had been a materialchange in circumstances since the original order; firstly, because there were no longer any “children of the marriage” for child supportpurposes and secondly, because there had been changes in income. The judge also found that Ms. Reid’s original grounds of entitlementremained. Based on incomes of $45,000 for Ms. Reid and $90,000 for Mr. Gillingham, the judge determined spousal support shouldrange between $1125 per month (low range) and $1500 per month (high range).

He concluded that a prospective amount of $1000 permonth should be paid, slightly below the low range amount under the SSAG “Without Child Support” formula. [8] The provisional order was then forwarded to the Court of Queen’s Bench, Family Division, Judicial Districtof Saint John. A confirmation hearing was held October 3, 2013, at which Mr. Gillingham represented himself. His primary argumentwas that Ms. Reid should not be entitled to a share of his increase in income since the date of the original order.

The court in NewBrunswick adjourned the hearing, according to the Act, and transmitted the provisional order to the Supreme Court of Newfoundland andLabrador, Family Division, under s. 19(6) of the Act in order for the court to address the specific question of “what is the appropriatestandard of living on which the spousal support should be based?”. Because the judge in Newfoundland and Labrador had made theoriginal order, including having decided the initial and continuing entitlement of Ms.

Reid, the New Brunswick judge considered theNewfoundland judge to be in a better position to address that specific question (see his reasons for transmitting the order back toNewfoundland in Reid v. Gillingham, 2013 NBQB 338, 411 N.B.R. (2d) 382). [9] Unfortunately, the original judge in Newfoundland and Labrador retired in the interim. On the transmittalback, the provisional hearing was continued before another justice of the Supreme Court of Newfoundland and Labrador, FamilyDivision. She received additional evidence from Ms.

Reid respecting the question posed, but decided she would not revisit theprovisional order nor make any particular recommendations given the circumstances. The new sworn evidence of Ms. Reid wasforwarded to the Court of Queen’s Bench of New Brunswick, Family Division, for continuation of the confirmation hearing. Mr.Gillingham was represented by counsel at the further hearing on March 21, 2014, and he gave additional evidence. The judge reserveddecision at that time. IV.

Judge’s decision [10] In the end, the judge was not satisfied there was a sufficient causal or temporal connection to rebut theprinciple that a spouse is not automatically entitled to increased spousal support post-divorce when the other spouse’s income increases.He found that any connection was both too remote and too weak. In the decision he states:

As set out earlier, our Court of Appeal has stated that “generally speaking, support should not be based on a reallocation of income according to the payer’s current ability to pay”.

Put in terms of what the Divorce Act attempts to achieve through its statutory objectives, I am not satisfied in the circumstances of this case that the applicant is entitled to an “equitable sharing” because I am not satisfied that the respondent’s post-separation increase in income is an “economic consequence of the marriage or its breakdown”. [para. 25] [ 11 ] The judge found no nexus between entitlement and post-divorce increases in income in the circumstances of this case: This does not mean that the applicant is not entitled to increased spousal support; just not based on the respondent’s increased income.

The learned justice who made the provisional order found that there was a material change in circumstances because there were no longer children of the marriage requiring child support. He also found that the applicant remained entitled to spousal support and had at the time of the initial award determined that she was entitled to indefinite support given the length of the marriage.

Consequently, a “cross over between formulas” is necessary here, as the provisional hearing justice recognized, so as to recalculate the amount of spousal support, ie. a cross over from the “with child support formula” to the “without child support formula” (See: SSAG User’s Guide, supra.,

Chapter 14.5). The learned justice also found a material change in circumstances by reason of a change in the applicant’s income since the time of the initial award. So that too must be factored in. [para. 26] [ 12 ] He goes on to say: The provisional order was made prospectively effective April 1, 2013, not retroactively. At that time the applicant was on disability insurance which the learned justice “grossed up to an equivalent of a line 150 income of $34,434”.

Because the judge was unsure of when the applicant would return to work (expected to be later in 2013) he attributed to her some employment income, resulting in, as mentioned before, a total, partially imputed, annual income of $45,000. The advantage I now have that the learned justice did not is the more recent evidence that the applicant returned to work in November of 2013 and that her “top scale” income is $45,688. However, I am not prepared to speculate that she will or can work the overtime hours earned in other years.

Nor, more generally, is there any reason to question her efforts towards economic self-sufficiency. [para. 28] [ 13 ] Ultimately, the judge varied the provisional order by adjusting Ms. Reid’s income for 2013 from $45,000 to $36,306.33 (i.e. grossed up disability income of $2869.17 times 10 months plus employment income of $3807.33 times two months), and using Mr. Gillingham’s income at the time of separation ($55,069). He applied the SSAG “Without Child Support Formula” and inputted the readjusted incomes. The resulting range was a low of $469 per month to a high of $625 per month with a midpoint of $547.

He also adjusted Ms. Reid’s income for 2014, and similarly recalculated the range using the readjusted income and Mr. Gillingham’s income from the time of separation. He concludes: Therefore, spousal support for the period April 1, 2013 to December 31, 2013 is varied to $625 per month. The appropriate support enforcement authorities are directed to make the necessary adjustments. Any arrears so calculated are payable by the respondent forthwith. Commencing January 1, 2014 I would adjust the applicant’s income from $45,000 to $45,688.

The range under the SSAG changes, from a low of $235 per month to a high of $313 per month with the midpoint of $274 per month. For the same reasons as above, I adopt the high range. Therefore, spousal support is varied commencing January 1, 2014 to $313 per month. The appropriate support enforcement authorities are directed to make the necessary adjustments and any arrears created are to be paid by the respondent forthwith. [paras. 31-33] [ 14 ] Therefore, the result of the confirmation hearing was a variation of spousal support from $1000 per month to $313 per month going forward. V.

Grounds of appeal [ 15 ] Ms. Reid appeals this decision on three grounds:

1) she did not have notice of the March 2014 hearing; 2) she should have had an opportunity to be present and give testimony at the March 2014 hearing; and 3) the evidence given by Mr. Gillingham was based upon “false information”. VI. Standard of Review [16] In C.A.E. v. M.D., 2011 NBCA 17, 368 N.B.R. (2d) 323, this Court discusses the standard of review respectingprovisional orders: In P.R.H. v.

M.E.L., 2009 NBCA 18, 343 N.B.R. (2d) 100, Larlee J.A. discusses the standard of review applicable in family law cases: The appropriate standard of review to be applied in an appeal of this nature is discussed in Van de Perre v. Edwards, [2001] 2 S.C.R.1014, [2001] S.C.J. No. 60 (QL), 2001 SCC 60. The Supreme Court of Canada set out a standard of considerable deference for thedecisions of trial courts in cases of family law.

Intervention on appeal requires that there have been a material error, a seriousmisapprehension of the evidence, or an error of law. [Emphasis in original.] [...] [...] See this Court's decisions on the application of the deferential standard: MacLean v. MacLean (2004), 274 N.B.R. (2d) 90, [2004]N.B.J. No. 363 (QL), 2004 NBCA 75 at para. 18; J.P. v. R.R. (2004), 278 N.B.R. (2d) 351, [2004] N.B.J. No. 467 (QL), 2004 NBCA 98at para. 27; Scott v. Scott (2004), 278 N.B.R. (2d) 61, [2004] N.B.J. No. 468 (QL), 2004 NBCA 99 at para. 32 and Boudreau v. Brun(2005), 293 N.B.R. (2d) 126, [2005] N.B.J.

No. 501 (QL), 2005 NBCA 106 at para. 5. [paras. 8-9] This is consistent with Richard J.A.'s comments in J.E.J. v. S.L.M., 2007 NBCA 33, 318 N.B.R. (2d) 119: I am mindful of the standard of review that governs appeals in custody, access and support matters, pursuant to which the decision infirst instance must be given considerable deference. However, an appellate court is nevertheless empowered to set aside or vary adecision or order in these types of cases where it is the product of an error of law, an error in principle, a significant misapprehension ofthe evidence or if it is clearly wrong: see Hickey v.

Hickey, (SCC), [1999] 2 S.C.R. 518, [1999] S.C.J. No. 9 (QL) atpara. 11 and Van de Perre v. Edwards, [2001] 2 S.C.R. 1014, [2001] S.C.J. No. 60 (QL), 2001 SCC 60. [para. 35] [paras. 11-12] [17] Therefore, deference is owed unless the judge has made a material error, has seriously misapprehended theevidence, or made an error of law. VII. Analysis A. Statutory Framework [18] The case before us was commenced in Newfoundland and Labrador under ss. 18 and 19 of the Act.

Theseprovisions allow a bifurcated process where former spouses, who reside in different provinces, are able to file applications for variationof existing orders made pursuant to the Act in the province where they reside. When the responding spouse does not attend or participatein the hearing of the application, the judge may make a provisional order. This provisional order must then be forwarded to the province

where the respondent resides, and the order is subject to confirmation, confirmation with variation, or refusal of confirmation. Thisprocess is described in C.A.E.: […] in LeParque v. LeParque, 2005 NSCA 127, [2005] N.S.J. No. 388 (QL) as follows: [...] It is a cumbersome, expensive and time consuming process, aptly described by Handrigan J. in Lynch v. Lundrigan (2002), (NL SC), 215 Nfld. & P.E.I.R. 62; [2002] N.J. No. 185 (Q.L.) (S.C., U.F.C.), aff'd (2004), 2004 NLCA 35 , 237Nfld. & P.E.I.R. 304; [2004] N.J.

No. 195 (Q.L.) (C.A.) as "awkward and ungainly" but "structured to ensure that each party has theopportunity to be fully heard before a final determination is made" (at para. 30). [para. 5] [para. 15] [19] The pertinent provisions of s. 19 of the Act that describe the process to be followed in the receiving jurisdictionin a case such as this are: 19.

(2) Subject to subsection (3), wheredocuments have been sent to a court pursuantto subsection (1), the court shall serve on therespondent a copy of the documents and anotice of a hearing respecting confirmation ofthe provisional order and shall proceed withthe hearing, in the absence of the applicant,taking into consideration the certified orsworn document setting out or summarizingthe evidence given to the court that made theprovisional order.

(5) In a proceeding under this section, therespondent may raise any matter that mighthave been raised before the court that madethe provisional order.

(6) Where, in a proceeding under this section,the respondent satisfies the court that for thepurpose of taking further evidence or for anyother purpose it is necessary to remit thematter back to the court that made theprovisional order, the court may so remit thematter and adjourn the proceeding for thatpurpose. [Emphasis added.] 19.

(2) Sous réserve du paragraphe (3), surréception des documents visés au paragraphe(1), le tribunal en signifie au défendeur unecopie et un avis l’informant qu’il va êtreprocédé à l’instruction de l’affaire concernantla confirmation de l’ordonnanceconditionnelle et procède à l’instruction, enl’absence du demandeur, en tenant compte dudocument certifié conforme ou attesté sousserment où sont énoncés ou résumés leséléments de preuve présentés devant letribunal qui a rendu l’ordonnanceconditionnelle.

(5) Dans le cadre de la procédure prévue auprésent article, le défendeur peut soulevertout point qui aurait pu l’être devant letribunal qui a rendu l’ordonnanceconditionnelle.

(6) Lorsque le défendeur démontre autribunal que le renvoi de l’affaire au tribunalqui a rendu l’ordonnance conditionnelles’impose pour faire recueillir tout élémentsupplémentaire de preuve ou à toute autre fin,le tribunal peut renvoyer l’affaire enconséquence et suspendre la procédure à cettefin. [C’est moi qui souligne.] [20] As this court has said before, the process is meant to ensure that while both parties have a full opportunity to beheard before the final order is made, the Act dispenses with the need for parties to leave their province to attend hearings and the costsassociated with so doing.

I will now address the issues raised by Ms. Reid. B. Grounds One and Two: No Notice of Hearing/ Ms. Reid should have had an opportunity to be present and give testimony at theMarch 2014 hearing

[ 21 ] Ms. Reid submits she was not given notice of the hearing in New Brunswick, which was held in March 2013. The provisions of the Act do not provide for or mandate such notice; the Act does not require notice to the respondent prior to the issuance of a provisional order: s. 18(2) . [ 22 ] In a recent Interjurisdictional Support Orders Act (ISO) case, Waterman v. Waterman , 2014 NSCA 110 , [2014] N.S.J. No. 652 (QL), the Nova Scotia Court of Appeal found there to be a notice requirement.

The facts involved an appeal by a husband from the dismissal of his application to vary spousal support pursuant to the ISO. The wife had obtained an order for spousal support in Ontario and subsequently moved to Nova Scotia. The application was processed in Ontario and forwarded to Nova Scotia where it was served on the wife with notice of a hearing date. The wife retained counsel and appeared at the hearing. The husband did not appear at the hearing, as he did not receive notice of the hearing date or a copy of the wife’s materials.

The judge dismissed the husband’s application on the basis that missing information impacted the issue of quantum of support and the husband failed to establish a material change since the issuance of the Ontario order. The husband appealed. He submitted that the judge erred in failing to find a material change in circumstances and erred in failing to adjourn the proceedings due to missing information.

He further submitted that he was denied natural justice. [ 23 ] A majority of the Nova Scotia Court of Appeal found there was no merit to his grounds that related to the issue of material change or whether an adjournment was justified. The Court said that nothing in the ISO imposes a mandatory obligation on a Nova Scotia judge to seek further information or documents necessary to consider a variation order. However, the Court found that the husband was denied natural justice due to the absence of notice and the opportunity to be heard.

The ISO legislative scheme does not expressly, or through necessary implication, authorize the application judge to hold a hearing without notice and a meaningful opportunity for the husband to be heard. The Court found that absent statutory authority to the contrary, the process was flawed. The application judge’s order was quashed and the husband’s application was remitted for determination before a different judge, upon proper notice to the parties. Beveridge J.A. states: Although not determinative, I am reinforced in my view by reference to the procedure for varying support obligations under the Divorce Act .

The process is more fully described by the Prince Edward Island Court of Appeal in R.Z. v. D.Z. , 2013 PECA 2 at paras 26-30 . For our purposes, it is sufficient to note that the applicant can bring an application in his or her province of residence. The respondent, who lives elsewhere, need not submit to the court's jurisdiction. In which case, the most relief the applicant can obtain is a provisional order, which must then be confirmed by the court in the province where the respondent lives.

The respondent knows that he or she will have a full opportunity to respond at the confirmation hearing to the provisional support variation order. The Divorce Act , like the ISO legislation, provides that notice of the confirmation hearing must be served on the respondent. It goes on to say that the court "shall proceed with the hearing in the absence of the applicant". This clearly implies that notice need not be given to the applicant.

Section 19(2) of the Divorce Act reads as follows: 2) Subject to subsection (3), where documents have been sent to a court pursuant to subsection (1), the court shall serve on the respondent a copy of the documents and a notice of a hearing respecting confirmation of the provisional order and shall proceed with the hearing, in the absence of the applicant , taking into consideration the certified or sworn document setting out or summarizing the evidence given to the court that made the provisional order. [Emphasis in original.] […] But in the case at bar, the applicant had no notice of the hearing in Nova Scotia, no opportunity to participate, nor any opportunity to respond to the respondent's submissions, either orally or in writing.

As discussed earlier, this was not a provisional hearing, but a final hearing at which his application to vary would be determined. With respect, the process, absent statutory authority, was flawed. [paras. 96-98, 106] [ 24 ] I prefer the dissent of Hamilton J.A. in this case where she states: I am fortunate to have had the opportunity to read the reasons of Justice Beveridge. I agree with him that the first two grounds of appeal should be dismissed but disagree with his conclusion that when a court has a hearing in response to an application under the ISO Act from

an applicant in another jurisdiction, the applicant must be given notice of the hearing and of the respondent's materials. In para 70 of his reasons, Justice Beveridge sets out a quote from Chief Justice McLachlin in Ocean Port . The Chief Justice states: "It is not open to a court to apply a common law rule in the face of clear statutory direction." The rule of procedural fairness that the applicant should be given notice of the hearing and of the respondent's materials, are such common law rules.

It is only when faced with silent or ambiguous legislation that a court is to infer that the Legislature intended the process provided for in the statute to comport with principles of natural justice, para 21 Ocean Port . The intention of the Legislature when it introduced the ISO Act was to implement the model uniform legislation that had been developed by a standing committee of officials from the federal, provincial, and territorial governments for the purpose of facilitating the interjurisdictional recognition, variation and enforcement of support orders made in family proceedings.

It was part of a nationwide effort, with similar legislation enacted across the country except in Quebec. Its object was to reduce the delay that arose from the procedures in place at that time. The ISO Act provides, for variation applications made in another province and forwarded to Nova Scotia: Variation application from another jurisdiction 34

(1) Where the designated authority receives a support-variation application from an appropriate authority in a reciprocating jurisdiction with information that the respondent habitually resides in the Province, it shall serve on the respondent, in accordance with the regulations, (

a) a copy of the support-variation application; and (

b) a notice requiring the respondent to appear at a place and time set out in the notice and to provide the information or documents required by the regulations. ... Notice of hearing 35 When the Nova Scotia court receives a support-variation application under

Section 34, the clerk shall serve on the respondent, in accordance with the regulations, (

a) a copy of the support-variation application; and (

b) a notice requiring the respondent to appear at a place and time set out in the notice and to provide the prescribed information or documents. Information to be considered by court 36

(1) In dealing with a support-variation application, the Nova Scotia court shall consider (

a) the evidence provided to the Nova Scotia court; and (

b) the documents sent from the reciprocating jurisdiction.

(2) Where the Nova Scotia court needs further information or documents from the applicant to consider making a support variation order, the Nova Scotia court shall (

a) send the designated authority a direction to request the information or documents from the applicant or the appropriate authority in the reciprocating jurisdiction; and (

b) adjourn the hearing.

(3) When the Nova Scotia court acts under subsection (2), it may also make an interim support-variation order.

(4) Where the Nova Scotia court does not receive the information or documents requested under subsection (2) within twelve months after the request is made, it may dismiss the support-variation application and terminate any interim support-variation order made under subsection (3).

(5) The dismissal of the application under subsection (4) does not preclude the applicant from commencing a new support-variation application. [Emphasis in original.] Considering the wording of ss. 34(1)(

b) and 35(

b) in the context of the whole statute, the intention of the Legislature and the object of the ISO Act , in my opinion the legislation is clear and unambiguous. It specifically addresses the issue of who is to be given notice of the hearing. It states that notice is to be given to the person responding to the application and makes no similar provision for notice to be given to the applicant. Had the Legislature intended that the applicant be given notice, it would have stated this requirement.

I am satisfied the ISO Act provides clear and unambiguous statutory direction that no notice is required to be given to the applicant, Mr. Waterman in this case. The procedure specified by the Legislature must be respected (unless contrary to the Charter , which was not an issue raised in this appeal), even if contrary to the rules of procedural fairness that generally govern court procedures. [paras. 111-116] [ 25 ] Hamilton J.A. is of the opinion, as am I, that the judge did not err in adjudicating the matter without providing notice to the husband. Hamilton J.A. would have dismissed the appeal.

I believe this view to be more appropriate in the case before us as it is based on the purpose of legislation that is very similar to the sections which pertain to provisional orders in the Act . [ 26 ] Aside from notice, Albinet v. Albinet , 2003 MBCA 22 , [2003] M.J. No. 44 (QL) discusses participation rights in these types of proceedings under the Act . In that case, the husband lived in British Columbia, and the wife resided in Manitoba. The husband applied, in British Columbia, for a variation of child support due to an alleged change in circumstances.

The British Columbia Court made a provisional order cancelling arrears and relieving him of his obligation to provide support. The documents and evidence from the provisional court hearing were forwarded to Manitoba for a confirmation hearing. Counsel for the husband prepared additional affidavit evidence, and served it upon the wife. Counsel for the husband attended the confirmation hearing in an attempt to have the information in the affidavit introduced, and to make submissions. The motion judge, relying on s. 19(2) of the Act , refused him standing at the hearing, and the provisional order was varied.

The husband appealed, claiming the judge had erred in law in denying him the opportunity to participate. The Court of Appeal unanimously agreed. Steel J.A., for the Court, concluded: I agree with the

interpretation of s. 19(2) adopted in these cases. The provisional hearing and the confirmation hearing are fundamentally different. Rights are not affected by the provisional order, but they are by the confirmation order. Therefore, the principles of natural justice, while always important, are especially so in the confirmation hearing, and the applicant should be allowed standing unless the language of the statute explicitly prohibits it. The language in s. 19(2) does not explicitly prohibit it, but, rather, is permissive.

It allows the hearing to proceed in the absence of the applicant in order to fulfil the function of that section, which is to provide relief to litigants separated by distance who, for a variety of reasons, cannot or choose not to take advantage of s. 17.1. There is no reason to prevent an applicant from being heard on a confirmation hearing if he or she becomes aware of it and chooses to appear.

An obvious advantage of hearing the applicant on a confirmation hearing is that it might well eliminate the necessity of referring the matter back to the court that made the provisional order for further evidence. [paras. 20-21] [Emphasis added.] [ 27 ] Albinet is different from the case before us as the husband, unlike Ms. Reid, somehow became aware of the hearing, was present at it and wished to participate.

This fact was emphasized by Steel J.A., who ultimately reaches the same conclusion as Hamilton J.A. in Waterman with respect to notice: I wish to make clear that I am not dealing with issues of notice or service. There is no requirement to serve the applicant with notice of the confirmation hearing. Since there is no requirement for notice there is no requirement to serve any material on the applicant before the hearing may proceed. I am simply dealing with a situation where the applicant becomes aware of the confirmation hearing and chooses to appear. [para.22] [ 28 ] In this case, Ms.

Reid was the applicant and commenced proceedings in Newfoundland and Labrador under s. 18 of the Act . A judge of the Supreme Court of Newfoundland and Labrador, Family Division, varied support

provisionally. The provisional order was forwarded to New Brunswick under s. 18(3) of the Act. Pursuant to s. 19(1) a hearing was scheduled in New Brunswick for October 3, 2013. Proper notice was given to the respondent, Mr. Gillingham. Ms. Reid did not attend (see s. 19(2) of the Act ), although Family Crown Counsel was present as amicus curiae . The respondent represented himself. On that date, the judge determined that he required further evidence and adjourned the hearing pursuant to s. 19(6) of the Act.

As such, the matter was remitted to the Supreme Court of Newfoundland and Labrador, Family Division so that Ms. Reid could give further evidence under s. 18(5). Ms. Reid appeared in the Supreme Court of Newfoundland and Labrador, Family Division, on February 13, 2014. At that time the judge advised her: The Court: […] So for the record because of course Walsh J., when we remit this back to him again, is going to be relying on the transcript from today to determine exactly what happened here.

So the original hearing that was held in Corner Brook was before Judge Seaborne and Judge Seaborne has now fully retired so he’s not in a situation where he can be called back to receive the new evidence so we’ve checked on the circumstances for that and we’re satisfied that another judge can receive evidence because we are only taking evidence for the purposes of remitting it to Walsh J., so what we’re going[sic] to do now is were going[sic] to get you sworn in and will take the additional evidence to the extent that we believe is covered by what the judge in Nova Scotia – it is Nova Scotia is it? Ms.

Reid : New Brunswick. The Court : New Brunswick wants and then will remitted back again so you know from my perspective I apologize for any delay is just one of those things but with provisional and confirmatory process the provisional and confirmatory process you know we take the good with the bad.

There are sometimes significant delays associated with it but if we didn’t have this process there would be no ability to make an order at all if we had people into different jurisdictions. […] [ 29 ] This new evidence was forwarded to the Court of Queen’s Bench of New Brunswick, Family Division, under s.18(6) of the Act and the judge continued the confirmation hearing on March 21, 2014. At that time, Mr. Gillingham was represented by counsel and again, Family Crown counsel appeared as amicus curiae . Ms. Reid was not given notice as it is not a requirement in the Act .

A review of the above jurisprudence delineates the following: 1) the Act provides that once a provisional order is made notice of the confirmation hearing must be served on the respondent; 2) once that is done, the confirming court “shall proceed with the hearing, in the absence of the applicant”. [ 30 ] Therefore, where hearings are held to confirm provisional orders under the Act , notice is not required to be given to the applicant, in this case, Ms. Reid. There was no error on the part of the judge. He was merely following the provisions of the Act . C. Ground three: the evidence given by Mr.

Gillingham was based upon “false information” [ 31 ] Ms. Reid submits that Mr. Gillingham gave false testimony at the New Brunswick hearing. Pursuant to s. 19(5) of the Act , Mr. Gillingham could raise any issue that might have been raised before the judge in Newfoundland and Labrador. When Mr. Gillingham raised the issues respecting his new employment and the effort it took for him to achieve his new status and increased income, he did so with a view to indicate to the judge that this increase in income was due to employment which only occurred after the divorce.

As the judge phrased it: […] In my view, the only questions remaining following my earlier decision ( Reid v. Gillingham , ibid) are whether the applicant is entitled to benefit from all or any portion of the respondent's increase in income post separation and what, if any, variation in spousal support is appropriate? [para.7] [ 32 ] At the hearing in New Brunswick, Mr. Gillingham testified that he had commenced work in a local gypsum manufacturing plant immediately following his graduation from high school in Newfoundland and Labrador. In 1996 he became a

production supervisor, which he described as being the equivalent of a foreman or lead hand. Mr. Gillingham worked shifts and when the plant closed in 2007 (one year after the parties divorced) he obtained employment as a production supervisor at a gypsum production plant in Saint John, New Brunswick. He continued to do the same work, in the same position for approximately 18 months for an income equivalent to that which he had earned when working in Newfoundland. He was then promoted to production manager, a salaried day position. As a result, his income rose exponentially. Mr.

Gillingham explained to the Court that as a production manager he reports directly to the plant manager, and his new position is fundamentally different from what he did while employed as a production supervisor in Newfoundland and Labrador. He is no longer on the floor working but is responsible for budgeting, planning, and efficiency initiatives. Approximately 50 employees report to Mr. Gillingham, including three production supervisors. He testified he learned the responsibilities associated with his new position only after moving to New Brunswick. He worked his way up to the new position.

The judge concluded: In the end, after considering and weighing the objectives of the Divorce Act , the principles and factors identified in the law and the circumstances of this case, I have concluded that the applicant is not entitled to share in any part of the respondent's increase in income, notwithstanding the length of the marriage and her compensatory grounds of entitlement to spousal support.

The strength of the applicant's compensatory entitlement is diluted by reason that the respondent contributed during the marriage to the applicant's present occupation as an LPN and that this occupation permitted her to earn income for several years following separation that exceeded the income earned by the respondent at the time of separation and continues to permit her to earn a reasonable income.

This is coupled to the fact that the respondent's increase in income did not closely nor necessarily follow after separation and does not involve the context of consideration of an initial award but, rather, a variation application heard some seven years after the initial order was made. Nor did the increase(

s) in income reasonably flow from the respondent's continued employment with the same employer or even from the same position. There were intervening events. He was required by financial circumstances to leave his province and through later fortuitous circumstances and hard work earned a promotion to a job that did not principally involve the skills and experience he had acquired in previous years.

In other words I am not satisfied that there is a sufficient causal or temporal connection to rebut the principle that "a spouse is not automatically entitled to increase spousal support when [the other] spouse's post separation income increases". Any connection is both too remote and too weak. [paras. 23-24] [ 33 ] A review of the record does not indicate that Mr. Gillingham provided false information. His testimony does not conflict with the evidence given by Ms. Reid. There being no basis for appellate review, I would dismiss this ground of appeal. VIII. Disposition [ 34 ] The judge heard Mr.

Gillingham’s testimony, made findings of fact and applied the correct jurisprudence to those facts. The findings of fact were supported by the evidence and his reasons disclose that he considered the relevant legal principles. In conclusion, I would dismiss the appeal, confirm the order and award nominal costs of $500. __________________________ KATHLEEN A. QUIGG, J.A. WE CONCUR: _________________________ M.E.L. LARLEE, J.A. _________________________ BARBARA B. BAIRD, J.A.