2014 NBCA 29, 2014 NBCA 29

COURT OF APPEAL OF COUR D’APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 3-13-CA SARAH ELIZABETH BROOKS APPELLANT SARAH ELIZABETH BROOKS APPELANTE - and - - et - COLIN DAVID BROOKS RESPONDENT COLIN DAVID BROOKS INTIMÉ Brooks v. Brooks, 2014 NBCA 29 Brooks c.

Brooks, 2014 NBCA 29 CORAM: The Honourable Justice Larlee The Honourable Justice Bell The Honourable Justice Green CORAM : l’honorable juge Larlee l’honorable juge Bell l’honorable juge Green Appeal from a decision of the Court of Queen’sBench: December 6, 2012 Appel d’une décision de la Cour du Banc de la Reine: le 6 décembre 2012 History of Case: Historique de la cause : Decision under appeal: 2012 NBQB 401 Décision frappée d’appel : 2012 NBQB 401 , 2012 NBBR 401 Preliminary or incidental proceedings: Court of Appeal: 2012 NBCA 50 [2013] N.B.J.

No. 284 Procédures préliminaires ou accessoires : Cour d’appel: 2012 NBCA 50 [2013] A.N.-B. no 284 Appeal heard: March 13, 2014 Appel entendu : le 13 mars 2014

Judgment rendered: May 8, 2014 Jugement rendu : le 8 mai 2014 Reasons for judgment by: The Honourable Justice Larlee Motifs de jugement : l’honorable juge Larlee Concurred in by: The Honourable Justice Bell The Honourable Justice Green Souscrivent aux motifs : l’honorable juge Bell l’honorable juge Green Counsel at hearing: Sarah Elizabeth Brooks appeared in person Colin David Brooks appeared in person Avocats à l’audience : Sarah Elizabeth Brooks a comparu en personne Colin David Brooks a comparu en personne THE COURT The appeal is dismissed without costs.

The judgment of the Court was delivered by LARLEE, J.A. [ 1 ] The appellant, Sarah Elizabeth Brooks, contests the amount of spousal support payable by her ex-husband, Colin David Brooks, pursuant to an order rendered by a judge of the Court of Queen's Bench, under s. 15.2 of the Divorce Act , R.S.C. 1985, c. 3 (2nd Supp.) (the Act ). The motion judge's decision is published at 2012 NBQB 401 , 397 N.B.R. (2d) 361 . [ 2 ] The parties married on September 24, 1988, separated in June 2006, and were divorced by Divorce Judgment dated July 4, 2008, effective August 4, 2008.

They have two sons, who are presently 22 and 19 years of age. Both reside with Mr. Brooks and attend university in Fredericton full-time. Both Mr. and Ms. Brooks are presently 54 years of age. [ 3 ] Following their separation, the parties retained counsel and participated in a judicial settlement conference. This resulted in a Consent Order, dated June 5, 2008, which formed part of the Divorce Order as corollary relief. The Consent Order provided for a review in two years’ time.

[4] On August 27, 2009, Ms. Brooks filed a motion to vary the Consent Order. That motion wasultimately dismissed, and the decision was not appealed. [5] On May 24, 2011, Ms. Brooks filed another motion seeking, mainly, an increase in spousalsupport, arguing that the Spousal Support Advisory Guidelines calculations carried out by the motion judge were flawed. On December12, 2011, that motion was also dismissed. [6] Ms.

Brooks appealed, and on April 12, 2012, this Court allowed the appeal in part, ordering anew hearing (to be carried out in accordance with the review clause from the Consent Order, but limited to the issue of prospectivechanges to the spousal support provisions of the Order: 2012 NBCA 50, 390 N.B.R. (2d) 94). [7] On December 6, 2012, the motion judge determined the spousal support obligation shouldremain unchanged and ordered that there be a further review no earlier than June 2016, unless “the circumstances warrant it”. Ms.Brooks appeals that decision. [8] Ms. Brooks relies on 19 grounds of appeal.

However, for the purposes of this analysis I am ofthe opinion that the issues can be summarized as follows: (1) did the motion judge err in law in her application of s. 15.2 of the Act?; (2)did she err in her application of the Spousal Support Advisory Guidelines?; and (3) did she err in her assessment of the evidence? [9] In family law matters, this Court takes the view that it must show considerable deference to thedecisions in first instance. In MacDonald v. MacDonald, 2011 NBCA 25, 372 N.B.R. (2d) 179, leave to appeal to S.C.C. refused, [2011]S.C.C.A.

No. 237, the Court stated the following: 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] This principle has been iterated in our decisions: P.R.H. v. M.E.L., 2009 NBCA 18, 343 N.B.R. (2d) 100, at paras. 8 and 9; Smith v.Smith, 2011 NBCA 66, 375 N.B.R. (2d) 208, at para. 10; Doiron v.

Wilcox, 2012 NBCA 70, 393 N.B.R. (2d) 183, at paras. 9 to 11;C.M.H. v. J.R.H., 2012 NBCA 71, 393 N.B.R. (2d) 154, at para. 8; and Sangster v. Sangster, 2014 NBCA 14, [2014] N.B.J. No. 60 (QL),at para. 3. In MacLean v.

MacLean, 2004 NBCA 75, 274 N.B.R (2d) 90, the Court explained the standard when reviewing supportorders: Despite the ostensibly wide powers conferred upon appellate courts by s. 21(5) [of the Divorce Act], the proper approach to appellatereview of spousal support orders requires that an appellant court give considerable deference to the decision of the trial judge. [...] Thus,appellate courts are instructed that they "should not overturn support orders unless the reasons disclose an error in principle, a significantmisapprehension of the evidence, or unless the award is clearly wrong": see Hickey at para. 11. […] [para. 18] [10] At the appeal hearing, Ms.

Brooks presented a motion for fresh evidence, specifically, thedocumentation that had been used at a status hearing and filed with the Court in 2013. The law with respect to the admissibility of freshevidence in the family law context is explained by Bell J. A. in L.T.G. v. C.J.G., 2011 NBCA 12, 369 N.B.R. (2d) 202: […] In order to be admitted, the evidence must not have been reasonably discoverable prior to trial by the application of due diligence,would probably have an influence upon the result, and must be apparently credible, although it need not be incontrovertible: Workers'Compensation Board v.

McCarthy (1982), (NB CA), 42 N.B.R. (2d) 160, [1982] N.B.J. No. 309 (C.A.) (QL), paras.4-6; Ryan v. Law Society of New Brunswick [2000] N.B.J. No. 540 (C.A.) (QL), para. 13; P.R.H. v. M.E.L., 2009 NBCA 18, 343 N.B.R.(2d) 100, para. 40, and cases cited therein. […] [para. 9] See, as well, Sangster v. Sangster. The evidence Ms. Brooks seeks to produce on appeal was reasonably discoverable before the hearingand would probably not have had an influence upon the result. I would dismiss the motion to admit fresh evidence.

[11] As stated, this case was referred to the Court of Queen’s Bench for a new adjudication for aprospective increase in spousal support in accordance with Clause 25 of the Consent Order, which allowed for a review of the spousalsupport provisions with no requirement for a change in circumstances to occur. The motion judge did an analysis of the present financialsituation of the parties taking into consideration the condition, means, needs and other circumstances of each spouse, including theenumerated factors in s. 15.2(4) of the Act: (

a) the length of the cohabitation; (

b) the functions performed by the parties duringcohabitation; and (

c) the Consent Order. She also considered the objectives of a spousal support order as enunciated in s. 15.2(6) of theAct, including the one stressed by Ms. Brooks at the hearing before us, the promotion of “economic self-sufficiency of each spousewithin a reasonable period of time”.

The motion judge concluded the provisions of the Consent Order continue to meet the objectives ofthe Act taking into account these statutory provisions. [12] In this case, the motion judge, quite appropriately in my view, approves the use of the SpousalSupport Advisory Guidelines as a “reasonable measure and reference” on a review of maintenance, particularly since they had been usedfor the establishment of the quantum of support in the original Consent Order. She relies on the following jurisprudence in coming to thisconclusion: S.C. v.

J.C., 2006 NBCA 46, 299 N.B.R. (2d) 334, leave to appeal to S.C.C. refused, [2006] S.C.C.A. No. 246, andCavanaugh v. Cavanaugh, 2008 NBQB 387, 341 N.B.R. (2d) 166. She reviews the formulae to be applied in this situation anddetermines the appropriate one to be used is the hybrid described in s. 8.9 of the Spousal Support Advisory Guidelines, which permits areduction of the payor's income by the grossed up notional table amount of child support. She then does an analysis of Mr.

Brooks’income, which fluctuates from year to year, and uses an average of the past three years as suggested in s. 17(1) of the Child SupportGuidelines “Pattern of Income”. As a result of her analysis, she concludes the monthly amount of $1,584.00 presently being paid asspousal support falls between the low and middle ranges if an income average of $87,983.67 is used. The motion judge explains: […] Further, if Mr.

Brooks' income this year is on track with his actual year to date, and a higher income number is the result, theamount presently being paid is still slightly in excess of the lowest monthly amount of spousal support. Leaving the support as is wouldconstitute no departure from the Spousal Support Advisory Guidelines. It is not apparent from a reading of the Consent Order why thesupport was fixed using the mid-range of the numbers generated at that time.

Therefore it cannot safely be said that to leave the amountof support unchanged would effectively vary the basis on which the support was originally fixed. [13] Finally the trial judge answers the question of whether the quantum of spousal support shouldchange. Ms. Brooks insists she be awarded compensatory support, which according to Bracklow v. Bracklow, (SCC),[1999] 1 S.C.R. 420, [1999] S.C.J. No. 14 (QL), para. 39, is intended to recognize, monetarily, the economic advantage or disadvantagearising from the marriage or its breakdown. In other words, Ms.

Brooks wants to be compensated for having sacrificed her own careerand financial security and having her health impaired by fulfilling a caregiver role for the sons and following Mr. Brooks’ career choicesand venue changes. After commenting that the strength of Ms. Brooks’ compensatory claim cannot be measured on the basis of theevidence presented, the motion judge confirms a non-compensatory award because Ms. Brooks continues to demonstrate need and Mr.Brooks has the ability to pay.

The motion judge goes on to explain that spousal support is intended to address only the economicconsequences of marriage and its breakdown, and not social or emotional ones (Moge v. Moge, (SCC), [1992] 3 S.C.R.813, [1992] S.C.J. No. 107 (QL)), and that equalization of standards of living is not the objective (Ross v. Ross, (1995), (NB CA), 168 N.B.R. (2d) 147, [1995] N.B.J. No. 463 (C.A.) (QL)). [14] In

summary, the motion judge does not vary the amount of spousal support payable under theConsent Order for the following reasons: Given that: • the amount of support fixed in the Consent Order falls within the ranges generated by the Spousal Support Advisory Guidelines; • Ms. Brooks' circumstances do not appear to be different than they were in 2008; • Ms. Brooks' continues to demonstrate need; Mr. Brooks continues to have an ability to pay; • Mr. Brooks now has the financial responsibility for both boys; • the period of time for which support has been paid is less than the minimum prescribed by the Guidelines; • there were no identifiable reasons or parameters for the review;

in my view it is reasonable to leave the spousal support obligation unaltered. [para. 52] [ 15 ] In reviewing the motion judge's decision, I cannot discern any errors in principle, or any misapprehension of the evidence. The motion judge exercised her judgment in balancing the objectives, factors and criteria set out in s. 15.2 of the Act , and in applying them to the particular facts of this case. There has been no error in assessing the parties' needs and means and the judge made a finding, within her discretion, to maintain the amount of support payable under the Consent Order.

The determination of spousal support by a motion judge is, ultimately, an exercise in reasoned discretion informed by the Act , the jurisprudence and the Spousal Support Advisory Guidelines . It is owed deference. In short, I find the motion judge's decision to be free of reversible error. [ 16 ] I would dismiss the appeal and award no costs since both parties were self-represented. ____________________________________ M.E.L. LARLEE, J.A. WE CONCUR: ___________________________________ B. RICHARD BELL, J.A. ____________________________________ BRADLEY V. GREEN, J.A.