2014 NBCA 63, 2014 NBCA 63

COURT OF APPEAL OF NEW BRUNSWICK COUR D’APPEL DU NOUVEAU-BRUNSWICK 136-13-CA MARC DOUCET APPELLANT MARC DOUCET APPELANT - and - - et - PAULINE DOUCET RESPONDENT PAULINE DOUCET INTIMÉE Doucet v. Doucet, 2014 NBCA 63 Doucet c.

Doucet, 2014 NBCA 63 CORAM: The Honourable Justice Larlee The Honourable Justice Richard The Honourable Justice Bell CORAM : l’honorable juge Larlee l’honorable juge Richard l’honorable juge Bell Appeal from a decision of the Court of Queen’s Bench: November 19, 2013 Appel d’une décision de la Cour du Banc de la Reine : le 19 novembre 2013 History of case: Decision under appeal: 2013 NBQB 371 Preliminary or incidental proceedings: N.A. Historique de la cause : Décision frappée d’appel : 2013 NBBR 371 Procédures préliminaires ou accessoires : s.o.

Appeal heard: September 10, 2014 Appel entendu : le 10 septembre 2014 Judgment rendered: October 16, 2014 Jugement rendu : le 16 octobre 2014

Counsel at hearing: For the appellant: Terence Richard Connelly For the respondent: Nadine M.L. Losier THE COURT The appeal is allowed without costs. The length of spousal support is established at 8 years. Avocats à l’audience : Pour l’appelant : Terence Richard Connelly Pour l’intimée : Nadine M.L. Losier LA COUR L’appel est accueilli sans dépens. La durée de la pension alimentaire au profit de l’épouse est fixée à huit ans.

The following is the judgment delivered by THE COURT [ 1 ] From our perspective, this appeal illustrates how reasonable people, with reasonable and competent lawyers, can resolve their differences in unfortunate circumstances created by an obviously erroneous trial decision rendered with insufficient reasons. The matter involves a divorce proceeding in which both parties sought certain corollary relief.

On November 15, 2013, a judge of the Court of Queen’s Bench, Family Division, filed a decision granting the divorce and issued orders addressing access, child and spousal support, the division of marital property and marital debts and life insurance. Mr. Doucet filed a notice of appeal, raising several grounds relating to child and spousal support. The appeal first came up for hearing on June 23, 2014, but was adjourned on that date so the parties could avail themselves of Rule 62.1 and request a settlement conference before a judge of this Court.

In effect, the parties made good use of the settlement conference rule. When the matter returned before us on September 10, 2014, we were advised they had resolved all but one very narrow issue. As a result, we signed a consent order varying judgment of the Court of Queen’s Bench. [ 2 ] The consent order acknowledges the trial judge committed no less than four errors of law in calculating the amounts of child and spousal support. [ 3 ] The one remaining issue relates to the duration of spousal support.

Even on this point, both parties agree the trial judge committed a palpable and overriding error in making a critical finding of fact. The evidence clearly established that the parties had started dating in 1997 and cohabiting in 1999, and the judge even remarked during argument that there was agreement on the date cohabitation began, being January 1, 1999. Yet, in rendering his decision, the judge says the cohabitation began in January 1997, and ostensibly uses this date for the purposes of his calculations, although he fails to explain in his decision how he reaches various conclusions.

On the question of insufficiency of reasons, the parties also agree. [ 4 ] Thus, the trial decision is laden with error and all agree it is not owed any deference. It therefore falls upon us to determine the one remaining issue. [ 5 ] The trial judge established the duration of the spousal support at 10 years. Mr. Doucet claims it should be 5 years because the marriage, including the cohabitation, did not quite reach the level of 10 years to qualify as a longer marriage. In fact, the period was 9 years and 10 months.

He acknowledges that, were the marriage/cohabitation to be considered a longer marriage, the upper limit of the duration of spousal support would be 10 years and the lower limit 5 years under the applicable guideline. He also argues the judge should have considered a period of two years during separation when the husband was in fact making some contribution to support his wife. For her part, Ms. Doucet recognizes the judge erred in establishing the duration of spousal support at 10 years.

She claims it should be 8 years, based primarily on the date on which the younger of two children will finish high school, in order to provide her and the children a stable economic situation.

[ 6 ] The Spousal Support Advisory Guidelines provide two formulae, in addition to other factors, which should be taken into consideration in determining the length of spousal support. The first is a function of the years the parties cohabited. In the case of a longer marriage, the Guidelines recommend a maximum of one year per year of cohabitation and a minimum of 6 months per year of cohabitation. Although, in this case, the period of cohabitation was just under 10 years, the application of that factor would result in a minimum of approximately 5 years’ support and a maximum of 10.

The second formula relates to the age of the youngest child of the marriage and maximizes the support to the date that child will finish high school. In the present case, the youngest child will finish high school after 8 years of spousal support. [ 7 ] Ms. Doucet interrupted her career for approximately 3 years to care full-time for her children. She presently works the night shift at the local hospital on a part-time basis. She devotes the remainder of her time to caring for her children. Ms. Doucet recognizes her responsibility to become economically independent following the breakdown of her marriage.

Her desire for economic stability until her youngest child finishes high school is not unreasonable, and, is certainly in his best interests. [ 8 ] The facts of this case are straightforward. We are of the view no useful purpose would be served by referring the matter back to the Court of Queen’s Bench for determination of the appropriate length of spousal support. Given Ms.

Doucet’s age, education, employment history, career interruption during the marriage, ongoing child care responsibilities and the length of the marriage, we are of the view that 8 years of spousal support is appropriate in the circumstances. [ 9 ] We allow the appeal and order that spousal support be payable for a period of 8 years from September 1, 2010 to August 1, 2018. In the circumstances there will be no costs payable by either party. ____________________________ M.E.L. LARLEE, J.A. _____________________________ J.C. MARC RICHARD, J.A. _____________________________ B. RICHARD BELL, J.A.