VALARIE ANNE HALL (PARKS) Applicant -and – WILLIAM DAVID PARKS Respondent DECISION v. REASONS, 2016 NBQB 168

2016 NBQB 168 FDSJ-397-09 Registrar’s File 1301-60543 IN THE COURT OF QUEEN’S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF SAINT JOHN BETWEEN: VALARIE ANNE HALL (PARKS) Applicant -and – WILLIAM DAVID PARKS Respondent DECISION AND REASONS BEFORE: The Honourable Madam Justice M. Deborah Hackett DATES OF HEARING: August 10, 2016 DATE OF DECISION: September 26, 2016 APPEARANCES: Applicant – Erin Michelle Beam Respondent – W. Rodney MacDonald NATURE: Property Spousal Support HACKETT, J. INTRODUCTION

[ 1 ] This is the court’s decision on a Petition for Divorce filed on May 22, 2009. The parties have been following an Interim Order since 2009 which was varied by consent in 2011, in relation to child and spousal support. The matter proceeded to trial in August 2016. The primary issues for determination are claims by the petitioner for restitution in relation to the home the parties lived in as a family and the petitioner’s claim for spousal support. BACKGROUND FACTS Marriage [ 2 ] The parties married on April 27, 1991.

The petitioner moved in to the residence of the respondent, which was one unit of a duplex at 3 City Line, in Saint John, NB. The property was owned by his parents. Their child, Matthew, was born on January 19, 1992. [ 3 ] Neither the petitioner nor the respondent gave any oral evidence about the roles of each party as it related to the child, Matthew, during the marriage, or who was responsible for maintaining the home. [ 4 ] There is only one affidavit contained in the Trial Record. It is a “Supplementary Affidavit” of the petitioner sworn to August 18, 2009.

In it, the petitioner acknowledges the respondent did prepare some meals and take the child to appointments, but she states she did that as well. She says after 2001 she would commence meal preparation. She says both parties took their son to activities and she contributed to their cost. She says she was mainly responsible when Matthew was younger for bathing him and putting him to bed. [ 5 ] The petitioner states in the affidavit that the expenses in the home were shared between the parties. She also says she contributed to renovations and maintenance at 3 City Line and also at the family cottage.

Improvement to 3 City Line [ 6 ] Most of the oral evidence at trial related to the claim regarding the former family home at 3 City Line. According to the respondent, the parties paid his parents a preferential rent between $250.00 and $300.00 per month when they first began living there together. Between 1994 and 1996, the parties undertook significant renovations to the property, at their expense. [ 7 ] The petitioner provided receipts to the court that total over $50,000.00. She also testified the parties helped finance the renovations through a $39,000.00 collateral mortgage on the family cottage.

The respondent did not contest the value or scope of the renovations, or the fact that they took out the collateral mortgage to help pay for the renovations. [ 8 ] The petitioner testified that she had always understood, from conversations with the respondent, that the property would eventually be given to them by his parents. She says they would not have encumbered the cottage and done all the renovations if that were not the case. [ 9 ] The respondent says there was no promise that they would be given the property.

He says they lived in the premises during the marriage and paid the significantly reduced rent, in part because they undertook the renovations. [ 10 ] The respondent says he and the petitioner asked his parents if they could take the whole property over, when the tenant in the downstairs apartment died. The parties and the respondent’s parents agreed that if the parties did renovations, the parents would not raise the rent. The parties converted the two-unit property to a single family home.

The respondent testified that at this point they were paying $500.00 per month for two apartments while the going rate would have been $1400.00 per month. Events after Separation

[ 11 ] The parties separated on December 14, 2007. The petitioner remained in the home with the child. According to the supplementary affidavit of the petitioner, from December 2007 until November 2008 the respondent had little contact with Matthew and had infrequent overnight visits. The respondent was working in Bosnia for some of this period, and he returned to Saint John in November 2008. [ 12 ] In April 2009, the petitioner was given notice by the respondent’s parents that they were going to raise the rent substantially, to $1000.00 per month as of August, 2009.

The petitioner brought her Petition in May 2009 and claimed relief including joint custody of the parties’ child, child support, spousal support of $600.00 per month, equal division of marital property and marital debt and an order for interim exclusive possession of 3 City Line, owned by the respondent’s parents, where the parties resided as a family. [ 13 ] The petitioner also requested an order under the Family Services Act that the Respondent maintain life insurance of $100,000.00 to secure child support, as well as an order under

section 128 of the Act. She also requested sharing of

section 7 expenses for the child, and costs. [ 14 ] The respondent filed an Answer and Counter-Petition on July 17, 2009. He disputed the claim for primary care of the child with the mother and sought an order for custody or primary care of Matthew with him, and child support payable by the petitioner. He also sought sharing of special expenses. He disputed the claim for spousal support and he sought unequal division of marital and non-marital property. He also claimed costs. [ 15 ] The parties appeared before the court for an interim hearing in 2009.

By Order dated September 29, 2009: the parties were granted joint and shared custody of the child, the respondent was ordered to pay $451.00 per month as child support, which was calculated based on a set-off of the parent’s respective table obligations under the Child Support Guidelines, the parties were ordered to share special expenses for the child, retroactive child support was ordered, the petitioner was granted interim spousal support and retroactive spousal support to June 2008, at the rate of $600.00 per month, and the petitioner was granted interim exclusive possession of the marital home on the following basis: “for the purpose of ensuring that the Respondent does not have the right of re-entry to the property while she is in possession of it.

This order is not intended as a protection against the lawful claims of the owners of the property, namely the respondent’s parents.” [ 16 ] As well, other orders were made regarding marital property, a non-harassment order was made under

section 128 of the Family Services Act and the respondent was ordered to pay the petitioner costs of $750.00. [ 17 ] The Interim Order made in 2009 indicates the respondent received a credit against arrears of child support for amounts he paid from separation until July 2008 towards the marital home expenses. [ 18 ] In 2009, after the interim support was ordered, the petitioner bought a three- bedroom home. The respondent moved back into the premises at 3 City Line and has lived there since.

Consent Order – February 21, 2011 [ 19 ] Although the matter had not proceeded to a final hearing, the respondent filed a Motion to Change in early 2011, seeking to terminate child support payable for Matthew, on the basis he was over 19 and not in school. By Order dated February 21, 2011, made on the consent of the parties, child support payable for Matthew was terminated effective January 1, 2011. The parties agreed the respondent would continue to pay $250.00 per month for child support arrears, until paid in full.

They also agreed the respondent would continue to pay spousal support of $600.00 per month, until further order of the Court, and $300.00 toward spousal support arrears until paid in full. [ 20 ] In January 2016, the matter returned to court after a Trial Record was filed by the respondent. The matter was heard on August 10, 2016. Only the parties testified.

Financial information - petitioner [ 21 ] The petitioner testified that she was financially dependent on the respondent during the marriage. The respondent acknowledges he always had a higher income than her. The petitioner worked throughout the marriage as an assessment officer with Worksafe NB, and continues to work in the same position. [ 22 ] The petitioner’s historical income is as follows: 2007: $37,904.00 2008 $42,948.00 2009: No tax return information is before the court.

Her sworn financial statement dated May 19, 2009 indicates $43,662.00 ($44,082.00 less union dues) 2010 $55,054.00 2011 $56,646.00 2012 $51,449.00 2013 $52,753.00 2014 $55,483.00 2015 $53,720.00 [ 23 ] From 2010 forward, spousal support would have been included in the petitioner’s income, above. Her employer, Worksafe NB, indicates in a letter dated January 25, 2016 that the petitioner’s annual salary as an assessment officer is $46,338.45. Financial information - respondent [ 24 ] The respondent’s historical income is as follows: 2008 $96,864.65 2009 No tax return information is before the court.

His sworn financial statement dated June 24, 2009 indicates $96,864.65. 2010 No information 2011 No information 2012 $100,364.00 2013 $101,803.58 2014 $104,729.00 2015 $111,763.31 ISSUES

Divorce [ 25 ] At the start of the hearing, the petitioner testified to the facts supporting the request for the divorce. I grant the divorce pursuant to subsection 8(1) and paragraph 8(2) (

a) of the Divorce Act . Custody, child support and special expenses [ 26 ] These matters are not in issue. Matthew has been independent since 2011. All payments of child support as ordered in 2009 were made. Property [ 27 ] The parties agree to the following division of property, as set out at paragraph 18 of the petitioner’s pre-trial brief as follows: Pensions [ 28 ] The petitioner’s Employment Pension with the Province of New Brunswick has a commuted value of $118,125.10 of which the respondent is entitled to $59,062.55, based on information provided by the plan administrator.

The respondent’s Employment Pension with the City of Saint John has a commuted value of $260,642.00 to which the petitioner is entitled to $130,321.00 based on information provided by the plan administrator. The respondent shall transfer to the petitioner a set-off of pension funds in the amount of $71,258.45 in order to effect equal division.

Timeshare [ 29 ] The timeshare at Grand Lake Resort, which was purchased by the parties in April 1998 for $3,500.00 U.S. dollars and was to be sold per the Interim Order in 2009, as well as any associated debt resulting from failure of the respondent to pay his share of the bills and expenses, shall be retained by the respondent.

Cottage [ 30 ] The family cottage at Lake Utopia, for which the market value was determined to be $84,500.00 shortly after separation shall be retained by the respondent, with an equalization payment to be made by the respondent to the petitioner in the amount of $29,500.00 which considers $25,000.00 in non-marital funds that the parties agree the respondent put into the property before cohabitation.

Canada Savings Bonds [ 31 ] At trial the court was advised that the parties agree to transfer to their son, Matthew Parks, the entirety of the Canada Savings Bonds purchased during the marriage by the petitioner, with the intention they would go to Matthew to support his post-secondary education. The total face value of these bonds is $6500.00. Remaining issues for determination

[32] The following issues are outstanding: 1. Is the petitioner entitled to restitution from the respondent for unjust enrichment in relation to the property at 3 CityLine? 2. Spousal Support

a) Is the petitioner entitled to spousal support?

b) If so, what is the appropriate amount and duration?

c) Is the petitioner entitled to arrears of spousal support from 2011 to the date of trial?

d) Should the respondent be required to maintain life insurance to secure spousal support? 3. Should costs be awarded? LAW AND ANALYSIS Issue 1: Is the petitioner entitled to restitution from the respondent for unjust enrichment in relation to the property at 3City Line? [33] The parties were married. Issues of division of property fall under the Marital Property Act. The family home at 3 City Linewas not marital property. Neither party owned it. The respondent’s parents owned it. The parties paid rent as tenants.

The petitionercannot claim division of this property under the Marital Property Act. [34] The petitioner argues she should be entitled to a monetary award from the respondent, based on the common law principle ofunjust enrichment. The Supreme Court of Canada in Kerr v.

Baranow, 2011 SCC 10 , [2011] 1 S.C.R. 269, summarizes the lawof unjust enrichment as follows: 3…In order to successfully prove a claim for unjust enrichment, the claimant must show that the defendant has been enriched, theclaimant suffered a corresponding detriment, and there is no “juristic” reason for the enrichment. [35] The petitioner argues that because she and the respondent put over $50,000.00 of their own money into improvements to theproperty, and because the respondent stands to benefit from the petitioner’s contributions to the property, if the mother conveys theproperty to him at a later date, she has unjustly enriched the respondent. [36] The respondent has lived in the property since the petitioner moved out in 2009.

He testified he currently pays his mother rent of$740.00 per month. He says this rent is significantly subsidized and that in return for this, he does all the maintenance on his mother’sproperties. [37] The respondent testified that if his mother eventually goes into a nursing home, then it is possible the property will be sold. He

says there is no plan, as far as he is aware, to give him the home. [ 38 ] The problem with the petitioner’s claim is that it is based on a hypothetical enrichment to the respondent. The respondent does not own the property. The owner of the property is not a party to this proceeding. [ 39 ] Even if the court could find the petitioner conveyed some benefit to the respondent, which he currently enjoys, as a result of her contribution to the renovations, the court has to consider that there was mutual conferral of benefits between the petitioner and the respondent.

In the Kerr case, above, Cromwell, J. for the Supreme Court of Canada states at paragraph 101: As discussed earlier, the unjust enrichment analysis in domestic situations is often complicated by the fact that there has been a mutual conferral of benefits; each party in almost all cases confers benefits on the other: Parkinson, at p. 222. Of course, a claimant cannot expect both to get back something given to the defendant and retain something received from him or her: Birks, at p. 415.

The unjust enrichment analysis must take account of this common sense proposition… [ 40 ] There is no dispute that the parties jointly undertook the renovations to 3 City Line. The petitioner enjoyed the benefit of these renovations for a period of several years. [ 41 ] The petitioner participated in the renovations, knowing that the property was owned by the respondent’s parents. The parties received consideration for the renovations, being a lower rent than they would otherwise have paid for a property of a similar size.

It is questionable whether any enrichment could be considered unjust in these circumstances. [ 42 ] I therefore find that the petitioner is not entitled to recover from the respondent any amount in relation to the former family home at 3 City Line Road. Issue 2: Spousal Support [ 43 ] The petitioner seeks an order for spousal support for an indefinite period.

She appears to agree the respondent’s retirement would constitute a material change in circumstances that would allow for a review of spousal support. [ 44 ] The petitioner seeks support at the mid-range of the Spousal Support Advisory Guidelines (“ the SSAG’s”) using an averaged income for the respondent that would take into account his earnings in the year of separation and his current income. [ 45 ] The petitioner also asks the Court to retroactively adjust spousal support to January 1, 2011.

She argues that when the respondent stopped paying child support, he then should have started paying a higher amount of spousal support because the “without child support formula” under the SSAG’s would have become applicable, and would have generated a higher amount of spousal support. [ 46 ] The respondent disputes there is an ongoing entitlement to spousal support or a basis for a retroactive adjustment of spousal support paid.

a) Is the petitioner entitled to spousal support? [ 47 ] The Court has authority to make an order for spousal support under

Section 15.2 of the Divorce Act , R.S.C., 1985, c. 3 (2nd Supp.). [ 48 ] Pursuant to subsection 15.2(4) the Court is required to consider 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. [48] Subsection 15.2(6) sets out the objectives an order for spousal support should serve. These are to: (

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 anyobligation 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. [49] As stated for the Supreme Court of Canada, by Justice McLachlin, as she then was, in Bracklow v. Bracklow, [1999] 1 S.C.R.420, (SCC), at paragraphs 34 to 37: The Divorce Act and the provincial support statutes are intended to deal with the economic consequences of the marriage breakdown forboth parties. See, e.g., Family Law Act, R.S.O. 1990, c. F.3,

preamble, which characterizes its purpose as “to provide in law for theorderly and equitable settlement of the affairs of the spouses upon the breakdown of the partnership”. The statutes require a fair andequitable distribution of resources to alleviate these consequences, regardless of gender. See C. Martin, “Unequal Shadows: NegotiationTheory and Spousal Support Under Canadian Divorce Law” (1998), 56 U.T. Fac. L. Rev. 135, at p. 139 (identifying increased equity indistribution as a “primary objective” of the new Divorce Act).

As this Court pointed out in Moge, supra, per L’Heureux-Dubé J., theDivorce Act is premised on the doctrine of the equitable sharing of the economic consequences of the marriage and its breakdown. It isnot confined to one type of marriage or one type of support. Moge, supra, sets out the method to be followed in determining a support dispute.

The starting point is the objectives which the DivorceAct stipulates the support order should serve: (1) recognition of economic advantage or disadvantage arising from the marriage or itsbreakdown; (2) apportionment of the financial burden of child care; (3) relief of economic hardship arising from the breakdown of themarriage, and (4) promotion of the economic self-sufficiency of the spouses: s. 15.2(6). No single objective is paramount; all must beborne in mind. The objectives reflect the diverse dynamics of the many unique marital relationships.

Against the background of these objectives the court must consider the factors set out in s. 15.2(4) of the Divorce Act. Generally, thecourt must look at the “condition, means, needs and other circumstances of each spouse”. This balancing includes, but is not limited to,the length of cohabitation, the functions each spouse performed, and any order, agreement or arrangement relating to support. Depending on the circumstances, some factors may loom larger than others. In cases where the extent of the economic loss can bedetermined, compensatory factors may be paramount.

On the other hand, “in cases where it is not possible to determine the extent of theeconomic loss of a disadvantaged spouse . . . the court will consider need and standard of living as the primary criteria together with theability to pay of the other party”: Ross v. Ross (1995), (NB CA), 168 N.B.R. (2d) 147 (C.A.), at p. 156, perBastarache J.A. (as he then was). There is no hard and fast rule. The judge must look at all the factors in the light of the stipulatedobjectives of support, and exercise his or her discretion in a manner that equitably alleviates the adverse consequences of the marriagebreakdown.

The Divorce Act and Family Relations Act, through their various provisions, accommodate both models of marriage and marriagebreakdown outlined above. While the law has evolved to accept compensation as an important basis of support and to encourage theself-sufficiency of each spouse when the marriage ends, where compensation is not indicated and self-sufficiency is not possible, asupport obligation may nonetheless arise from the marriage relationship itself.

Turning to the specific provisions, the factors judgesmust consider in resolving support issues reveal the three different conceptual bases for spousal support obligations -- contractual,compensatory, and non-compensatory. The judge must consider them all, and any or all of them may figure in the ultimate order, as maybe appropriate in the circumstances of the case.

[ 50 ] In this case, the parties were married for almost 17 years. They had one child together. Matthew was 15 years old when the parties separated. After separation, he resided primarily with the petitioner for about one year. He then resided with both parents on a shared basis. He became independent within 4 years of the parties’ separation. [ 51 ] At separation the petitioner was 49 years old. She was 58 at trial. She has worked at Worksafe NB since 1976. She has held the same position, assessment officer, since before the parties married.

She has accumulated a pension with Worksafe NB. [ 52 ] The respondent was 48 at separation. He was 57 at trial. He has been a police officer with the city of Saint John since at least 1980. He now holds the rank of Inspector and is in charge of the patrol services division. He has been paying into a pension plan with the Saint John Police force since June 1980. He testified he intends to retire, but did not indicate when that will be. [ 53 ] Both parties worked throughout the marriage. Both contributed to household expenses. The respondent was always the primary income earner.

The petitioner testified she was financially dependent on the respondent. [ 54 ] The limited evidence before the court with respect to contributions made to household tasks and childcare during the marriage indicates both parties were involved in some activities, such as preparing meals. Both appear to have been involved in caring for Matthew. Both took Matthew to activities. [ 55 ] The parties enjoyed a comfortable marital standard of living. The combined incomes of the parties at separation would have been over $100,000.00.

They were paying a subsidized rent, and were living in a residence they had improved significantly through renovations. [ 56 ] The petitioner gave evidence that the breakdown of the marriage was hard on her, and she had help from other people. She remained in the family home at 3 City Line with Matthew and she was his primary caregiver, until he began living with both parents. [ 57 ] At separation, the petitioner was the economically disadvantaged spouse. Her annual income was approximately $43,000.00, less than half the respondent’s.

The petitioner’s financial difficulties following separation is borne out by the events that followed. She received a notice from the owners of the property, the respondent’s parents, dated April 20, 2009, that as of August 1, 2009 the rent at 3 City Line would be increased to $1000.00 per month. Her financial statement filed with the Petition in May 2009 indicates she was paying $600.00 per month as rent when notified the rent would increase. [ 58 ] The petitioner came to court shortly after receiving this notice and requested child and spousal support from the respondent.

The court made the interim order for child and spousal support effective August 31, 2009. [ 59 ] According to the petitioner’s financial statement filed with her petition in May 2009, her income at that time was $44,082.00 which included $42,822.00 in employment income plus $105.00 per month in “other income”, not specified. Taking off union dues of $420.00 per year her gross income was $43,662.00, or $3638.00 per month. Her actual monthly expenses as set out in the financial statement were $4,479.82.

Her proposed monthly expenses were $4879.82, which would take into account increased housing costs. [ 60 ] The petitioner testified that her current sources of income are her salary and spousal support. She pays the bills, but does not have a lot left over. She testified her mortgage, power bill, telephone bill, property taxes, water bill, insurance and car payment typically run $1900.00 per month. She has approximately $700.00 per month left after paying her recurring expenses. This goes toward groceries, gas, and clothing. She owes about $1000.00 on her Visa.

She testified she relies on the respondent’s spousal support payment to meet her needs. [ 61 ] The respondent argues the petitioner has not demonstrated economic hardship. The petitioner did not file an updated financial statement. However, the respondent did not contradict her oral evidence regarding her current financial situation. There is no suggestion she has other sources of income she has not acknowledged. I am not aware of any prior division of property she would have received. Her stated monthly living expenses are not unreasonably high.

Without the spousal support she receives, she would have about $100.00 per month left after paying regular monthly bills. In my view, she has an ongoing need for support.

[62] The respondent also argues the petitioner should have taken steps to get a better paying job following separation, in order tobecome self-sufficient. With respect to the objective of self-sufficiency, it is clear from the case law that it has no primacy over the otherobjectives of spousal support as set out in

section 15.2 of the Divorce Act. It must be balanced with them. [63] Furthermore, becoming self-sufficient is not a duty or requirement. As stated by Justice Binnie of the Supreme Court of Canadain Leskun v. Leskun 2006 SCC 25 at paragraphs 26 and 27:

Section 15.2(6)(

d) of the Divorce Act provides that one of the objectives of the spousal support order is to, “in so far as practicable,promote the economic self-sufficiency of each spouse within a reasonable period of time”. This Court has rejected characterizing thisobjective as a duty, see Moge v. Moge, (SCC), [1992] 3 S.C.R. 813, at p. 853, and Bracklow v. Bracklow, (SCC), [1999] 1 S.C.R. 420, at paras. 31-32, 35-36 and 43. The respondent advanced a number of reasons why, despite allegedefforts, she had been unable to return to the workforce. She was believed.

Failure to achieve self-sufficiency is not breach of “a duty” and is simply one factor amongst others to be taken into account. As statedin Moge and repeated in Bracklow: At the end of the day . . ., courts have an overriding discretion and the exercise of such discretion will depend on the particular facts ofeach case, having regard to the factors and objectives designated in the Act. (Moge, at p. 866; Bracklow, at para. 53) [64] The petitioner testified she had no skills or education to fall back on to find more remunerative work after separation.

She takesthe position she is as self-sufficient as she can be. [65] The petitioner had been working for over 30 years for the same employer, and held the same position at the time of separation asshe did throughout the marriage. The petitioner was able to accumulate a pension with this employer. She was almost 50 years old onmarriage breakdown. In my view it would be unreasonable and unrealistic to expect her to have left this employment at separation, to tryto find a better paying job. As stated by Walsh, J of this Court in Betts v.

Betts, 2015 NBQB 19 at paragraph 40: Before turning to the thornier question of quantifying the wife’s entitlement and assessing the husband’s ability to pay, I pause to notethat another objective of the Divorce Act is to “in so far as practicable, promote the economic self-sufficiency of each spouse within areasonable period of time” (s. 15.2 (6) (d)). The wife’s economic self-sufficiency is not a goal that is practical here for the reasonsalluded to earlier, i.e. her age, state of health, level of education and limited outside employment history.

Nor is a legal duty imposed tobecome self-sufficient (See: Leskun v. Leskun, 2006 SCC 25 ). It has been observed that: … in most long-term marriages, particularly in traditional long term ones, the parties’ merger of economic lifestyles creates a jointstandard of living that the lower-income spouse cannot hope to replicate, but upon which he or she has become dependent. In suchcircumstances, the spousal support analysis typically will not give priority to self-sufficiency because it is an objective that simplycannot be attained. (Fisher v.

Fisher, (2008) 2008 ONCA 11 , 88 [66] With respect to the respondent’s ability to pay support, his financial statement filed with his Answer and Counter-Petition in2009 shows he had a gross monthly income of approximately $8000.00 per month and monthly expenses of approximately $8200.00. Hemade payments of $450.00 per month for child support, from 2009 until 2011, and $600.00 per month as interim spousal support. Heagreed to continue paying $600.00 per month as spousal support in 2011, along with amounts for arrears.

These amounts have been paid.His financial statement filed in 2016 shows a gross monthly income of approximately $9000.00. He shows monthly expenses ofapproximately $11,000.00. These expenses include significant monthly credit card payments of $1000.00 per month. However, there isno evidence these expenditures are related to debts arising from the marriage. His expenses also include relatively high discretionaryspending on gifts, vacation and entertainment/recreation. I find the respondent has the ability to pay spousal support. Finding on entitlement

[67] The petitioner has proven entitlement to spousal support primarily on a non-compensatory basis, in light of her need, which isongoing, the loss of the marital standard of living, and the respondent’s ability to pay.

b) What is the appropriate amount and duration of spousal support? [68] Having determined entitlement, it is appropriate to consider the SSAG’s to ascertain the appropriate amount and duration ofspousal support. The interim spousal support order appears to have taken into consideration the SSAG’s, or at least the amount orderedfell between the low and mid-range of support generated by the SSAG’s.

Using Divorcemate software, and using the parties’ 2008incomes as their incomes at separation ($96,865.00 for the respondent and $42,948.00 for the petitioner), and accounting for a sharedcustody arrangement for Matthew, the range under the SSAGs would have been a low of $389.00 per month to a high of $1265.00 permonth, with a mid-range amount of $784.00. The duration of support under the SSAG’s would have been indefinite (unspecified) subjectto variation and possible review. [69] In early 2011, the parties agreed to terminate the child support payment.

Had the “without child support formula” under theSSAG’s been applied to the parties’ incomes at separation, the quantum of spousal support would have ranged between a low of $1078.00 and a high of $1438.00 per month with a mid-point of $1258.00 per month. The duration would have been indefinite (unspecified), subject to variation and possible review. [70] For reasons not before the Court, the parties agreed to continue spousal support at $600.00 per month in 2011.

The respondentargues that, should I find the petitioner is entitled to spousal support, it should remain at that amount. [71] The petitioner, on the other hand, argues that she should receive $1376.00 per month as spousal support. This is the mid-point ofthe SSAG’s, using an average of the respondent’s income at separation and currently. [72] The respondent’s income has increased by approximately $15,000.00 since separation. The petitioner’s income has gone upslightly.

The petitioner suggests that averaging the respondent’s income at separation with his current income takes into account the longdelay between the interim order for spousal support and the final hearing. This would amount to a partial sharing of the respondent’sincome increases since separation. [73] To share in these increases, the petitioner must demonstrate some link or causal connection between the marriage and theincrease in the payor’s income. (See for example, Black v. Black, 2015 NBCA 63 ).

The petitioner gave no evidence as to thecontributions she may have made to the respondent’s career and his post-separation increases in earnings. The fact that the parties had achild together may suggest that there were such contributions, but without any supporting evidence from the petitioner, I cannot makethat assumption. [74] However, to continue to use $600.00 per month, as the respondent requests, would be a significant deviation from the ranges ofspousal support generated by the SSAG’s, using the “without child support formula”. This is the appropriate formula to use now.

Childsupport has not been payable since 2011. [75] The New Brunswick Court of Appeal has stated the following regarding the use of the Spousal Support Advisory Guidelines inSmith v. Smith, 2011 NBCA 66 , at paragraph 47: The Guidelines can enhance the legitimacy of a spousal support award, as they promote consistency, and therefore aid in the avoidanceof arbitrary decision-making. Certainty and predictability are hallmarks of the rule of law (see R. v. Ferguson, 2008 SCC 6 ,[2008] 1 S.C.R. 96, at para. 69).

However, trial judges should retain discretion to award spousal support either above or below the levelsset in the Guidelines. Spousal support awards demand the use of discretion on the part of the trial judge applied to the facts on a case bycase basis. The exceptional circumstances listed in s. 12 of the Guidelines do not constitute an exhaustive list. [76] The exceptional circumstances set out in

section 12 of the Guidelines include:

(1) Compelling financial circumstances in the interim period

(2) Debt payment

(3) Prior support obligations

(4) Illness and disability

(5) Compensatory exception in shorter marriages without children

(6) Property division: reapportionment of property (B.C.), high property awards?

(7) Basic needs/hardship: without child support, custodial payor formulas

(8) Non-taxable payor income

(9) Non-primary parent to fulfil parenting role under the custodial payor formula

(10) Special needs of child

(11) Section 15.3: small amounts, inadequate compensation under the with child support formula ( Spousal Support Advisory Guidelines , July 2008, Professor Carol Rogerson and Professor Rollie Thompson, at pages 116 and 117) [ 77 ] The respondent does not rely on any of these exceptions, nor does he raise any other special circumstance that would justify setting support at an amount below the ranges generated by the SSAG’s . [ 78 ] I therefore find it is appropriate to use the range of spousal support generated by applying the SSAG’s to the parties’ incomes at separation.

As noted earlier, the quantum generated by the SSAG’s is between $1078.00 per month and $1438.00 per month with a mid- point of $1258.00 per month. What is the appropriate amount of spousal support? [ 79 ] The petitioner was the primary caregiver of Matthew at separation and for a period of time afterward. Very little evidence was given about the roles of the parties during the marriage, in regards to childcare and maintaining the home. The petitioner has not made out a strong compensatory claim. However, she has made out a claim for spousal support on a non-compensatory basis.

She has shown a continued need for spousal support. She will be receiving the proceeds of the property division which will assist her in meeting her needs, but she is not required to rely exclusively on her share of the property division for her support. [ 80 ] In the circumstances, I find the low end of the range is appropriate. The respondent shall therefore pay the petitioner $1078.00 per month as spousal support, commencing September 1, 2016. What is the appropriate duration of spousal support? [ 81 ] The SSAG’s generate an indefinite duration.

The age of the petitioner at separation (49) plus the number of years of marriage (16) meet the “rule of 65.” As explained by Professor Carol Rogerson and Professor Rollie Thompson in the Spousal Support Advisory Guidelines , July 2008, at

section 7.5.3: The without child support formula provides that indefinite (duration not specified) support will be available even in cases where the marriage is shorter than 20 years if the years of marriage plus the age of the support recipient at the time of separation equals or exceeds 65. In a shorthand expression, we described this as the "rule of 65".

Thus, if a 10 year marriage ends when the recipient is 55, indefinite (duration not specified) support will be available because years ofmarriage (10) plus age (55) equals 65. Note that this is only a "rule" about duration, as the amount of support would be limited by thelength of the marriage, i.e. 1.5 to 2 per cent per year or 15 to 20 per cent of the gross income difference in a 10-year marriage. In reality, given the ages of the parties in the cases covered by the rule of 65, there will likely be significant changes in the amount ofsupport ordered upon the retirement of one or both of the spouses.

This refinement to the formula for duration is intended to respond tothe situation of older spouses who were economically dependent during a medium length marriage and who may have difficultybecoming self-sufficient given their age. [82] The respondent argued, in the alternative, that if he was required to continue to pay spousal support, it should be ordered thatsupport terminate on his retirement. The Court of Appeal in Vaughan v. Vaughan, 2014 NBCA 6 overturned such an order.

Atparagraph 1, Quigg, J.A. for the Court states: This case presents an interesting question: whether a judge possesses the authority to issue an advance ruling with respect to spousalsupport in circumstances where the payor spouse announces “an intention to retire”. At the divorce hearing, Mr. Vaughan requested apre-determination of spousal support as he wished to retire. At that time, he was still engaged in full-time employment, earning a six-figure salary. A judge of the Family Division granted the request by fixing an amount of spousal support payable if and when Mr.Vaughn retires.

At the appeal hearing, counsel were asked whether the judge possessed the authority to make the advance ruling. Bothparties were given the opportunity to submit post-hearing briefs and both parties did in fact make submissions having regard to theSupreme Court decision Messier v. Delage, (SCC), [1983] 2 S.C.R. 401, [1983] S.C.J. No. 80 (QL). In thecircumstances of this case, the response has to be “no”. Quigg, J.A. further states at paragraphs 11 and 12: In this case, the judge erred in making a determination regarding spousal support as Mr.

Vaughan had not retired at the time of trial.Therefore, any order made with respect to post-retirement support was premature and in conflict with Messier. Furthermore, the judge’simputation of income for both parties post-retirement lacked any evidentiary foundation. In Messier, the Court, quoting McKay v.McKay, (MB KB), [1970] M.J.

No. 155 (QB) (QL), continues: [...] it is the financial position of the parties as it exists today that governs, and not as it might exist a year or a year and a half from now.Any changes in circumstances can be dealt with at the appropriate time. [page 416] The Supreme Court determined the trial court erred in speculating and disregarding the actual circumstances of the parties at the time ofthe hearing.

The Supreme Court is clear that courts should make support determinations based upon actual income. [83] The Court in Vaughan found that it would be appropriate to impose a review hearing on the payor’s retirement. [84] In the case before me, I find it is appropriate that the duration of spousal support remain indefinite. This takes into account thepetitioner’s age at separation, the length of the marriage, the evidence of the petitioner’s ongoing need and the respondent’s ongoingability to pay support.

It also takes into account the fact that for the past five of the eight years the respondent has paid spousal support,he has been paying a lower amount than the ranges would have generated in 2011, had the “without child support formula” been appliedat that time. [85] However, as in Vaughan, I accept that the respondent will retire at some point in the future, and that a review is appropriateupon the respondent retiring. He shall not be required to prove a material change in circumstances.

Such a review will consider bothparties’ means, needs and circumstances, and all information from both parties in relation to their respective financial situations shall berequired for the review, at that time.

c) Is the petitioner entitled to arrears from 2011 to the date of trial? [ 86 ] The decision of the Supreme Court of Canada in Kerr , cited above, discussed retroactive claims for spousal support. At paragraph 208, the Court states : In contrast [to child support], there is no presumptive entitlement to spousal support and, unlike child support, the spouse is in general not under any legal obligation to look out for the separated spouse’s legal interests.

Thus, concerns about notice, delay and misconduct generally carry more weight in relation to claims for spousal support... [ 87 ] The Court continues at paragraph 212: ... The focus of concern about conduct must be on conduct broadly relevant to the support obligation, for example concealing assets or failing to make appropriate disclosure ... Consideration of the circumstances of the spouse seeking support, by analogy to the D.B.S. analysis, will relate to the needs of the spouse both at the time the support should have been paid and at present.

The comments of Bastarache J. at para. 113 of D.B.S. may be easily adapted to the situation of the spouse seeking support: “A [spouse] who underwent hardship in the past may be compensated for this unfortunate circumstance through a retroactive award. On the other hand, the argument for retroactive [spousal support] will be less convincing where the [spouse] already enjoyed all the advantages she would have received [from that support]”.

As for hardship, there is the risk that a retroactive award will not be fashioned having regard to what the payor can currently afford and may disrupt the payor’s ability to manage his or her finances. However, it is also critical to note that this Court in D.B.S. emphasized the need for flexibility and a holistic view of each matter on its own merits; the same flexibility is appropriate when dealing with “retroactive” spousal support. [ 88 ] In this case, the petitioner agreed to an amount of $600.00 per month as interim support in 2011, until further order of the court.

She did not ask the Court to further review support before this trial. This suggests she was able to meet her needs in the interim period. [ 89 ] The petitioner has not presented evidence of blameworthy conduct on the part of the respondent. The petitioner did not have counsel when the parties entered into the Consent Order in 2011, but that did not mean the respondent was under an obligation to look out for the petitioner’s legal interests with respect to the application of the SSAG’s.

There is no evidence the respondent was hiding his income from her. [ 90 ] I acknowledge a higher amount of spousal support would have been generated by applying the “without child support formula” in 2011. However, I have taken this factor into consideration in my determination of ongoing spousal support. In the circumstances, I dismiss the request for a retroactive variation of spousal support paid by the respondent.

d) Should the respondent be required to maintain life insurance to secure spousal support? [ 91 ] The petitioner seeks an order that life insurance in the range of $200,000.00 be maintained by the respondent to secure spousal support. The petitioner has not pled this. In her Petition she asked for both child and spousal support, but only asked for an order that the respondent maintain life insurance to secure child support. There is no ongoing order for child support. The respondent was not in a position to respond to this claim in the absence of an amended pleading. I therefore dismiss this claim.

Issue 3 – Should costs be awarded ? [ 92 ] Costs are within the discretion of the Court. The petitioner seeks costs of $2500.00 in addition to the costs of $750.00 ordered in 2009. [ 93 ] Although the petitioner testified she had attempted many times to resolve the issues between the parties, the matter only proceeded forward because the respondent filed a Trial Record, seven years after the Petition was filed. [ 94 ] The matter was not overly complex, with only the parties testifying. The trial took less than a half day. The petitioner was successful in her claim that support continue.

The respondent owes costs of $750.00 to the petitioner from the interim hearing in 2009.

These should have been paid many years ago. I therefore order the respondent to pay costs of $1500.00 to the petitioner, plus reasonable disbursements. This is inclusive of the $750.00 costs ordered in 2009.

SUMMARY [ 95 ] In

summary, the Court makes the following Order: On consent: 1 . The parties are granted a divorce pursuant to subsection 8(1) and paragraph 8(2) (

a) of the Divorce Act . 2 . There shall be a set-off transfer of pension funds in the amount of $71,258.45 by the respondent to the petitioner in order to effect equal division of the commuted values of the parties’ respective pension from employment for the period of the marriage, April 27, 1991 to December 14, 2007. 3 .

The timeshare at Grand Lake Resort, which was purchased by the parties in April 1998 for $3,500.00 U.S. dollars and was to be sold per the Interim Order in 2009, as well as any associated debt resulting from failure of the respondent to pay his share of the bills and expenses, shall be retained by the respondent. 4 .

The family cottage at Lake Utopia, for which the market value was determined to be $84,500.00 shortly after separation shall be retained by the respondent, with an equalization payment to be made by the respondent to the petitioner in the amount of $29,500.00 which considers $25,000.00 in non-marital funds that the parties agree the respondent put into the property before cohabitation. 5 . The Canada Savings Bonds purchased by the petitioner with the intention they would go to the parties' son, Matthew Parks, to support his post-secondary education, shall be transferred to Matthew Parks in their entirety.

As determined by the Court: 6 . The petitioner’s claim for restitution from the respondent with respect to the property at 3 City Line is dismissed. 7 . Commencing September 1, 2016, t he Respondent shall pay the Applicant spousal support in the amount of $1078.00 per month, which is the low end of the range using the petitioner’s income of $42,948.00 and the respondent’s income of $96,865.00 at separation . 8 . The respondent shall be entitled to a review of his spousal support obligation upon his retirement from employment. 9 .

The petitioner’s claim for a retroactive variation of spousal support is dismissed. 10 . The petitioner’s request that the respondent be ordered to secure life insurance to secure spousal support is dismissed. 11 . The Respondent shall pay the Applicant costs of $1500.00, and reasonable disbursements, which costs are inclusive of the $750.00

cost award ordered in 2009. DATED at the City of Saint John, New Brunswick this ____ day of September, 2016. ________________________________ M. Deborah Hackett Justice of the Court of Queen’s Bench Family Division