B.K.W.R. Applicant - and- N.V.R. Respondent DECISION, 2023 NBKB 17

FDSJ-561-2019 2023 NBKB 017 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF SAINT JOHN BETWEEN: B.K.W.R. Applicant - and- N.V.R. Respondent DECISION BEFORE: The Honourable Madam Justice M. Deborah Hackett DATES OF HEARING: January 17 and 18, 2023 DATE OF DECISION: February 13, 2023 APPEARANCES: Applicant – Joshua D. Adams Respondent – Per se NATURE : Child Support /In loco parentis Spousal support

Marital property Hackett, J.: I. INTRODUCTION [ 1 ] The parties were divorced by affidavit effective December 2019. [ 2 ] The applicant alleges that upon separation, the parties made a verbal agreement with respect to spousal support and a piece of property they had acquired during the marriage, and in whose joint names title remains. The applicant takes the position he fulfilled the verbal agreement and he has no further financial obligation to the respondent.

He asks that the property be transferred out of the respondent’s name. [ 3 ] The respondent denies there was any verbal agreement regarding the property and she requests an order the property in dispute be transferred into her name alone. She also claims, among other relief, an order for child support for her daughter and ongoing spousal support payable by the applicant. II. OVERVIEW [ 4 ] The applicant is now almost 70 years old. He has three adult sons from his first marriage and several grandchildren. [ 5 ] The applicant is an accountant.

He began an accounting business (referred to herein as “R. and Associates Accounting Ltd.”) several years ago. [ 6 ] The applicant says in 2008, after he went through a divorce with his first wife, the applicant’s son, M.R., took over R. and Associates Accounting Ltd. [ 7 ] The applicant says he basically retired at the end of December 2022, and intends to apply for CPP and OAS in April 2023. [ 8 ] The respondent is now 45 years old. She resided in Russia before the parties married and subsequently came to Canada with the applicant.

She was trained as a veterinarian and hairdresser in Russia. [ 9 ] The respondent has two children from prior relationships. Her son, D.A.G. (referred to herein as “D.”) was born in 1999. Her daughter N.V.D. (referred to herein as “N.”) was born in 2004. N. is now 18 and lives with the respondent. The parties’ relationship [ 10 ] The parties met online. They married in Russia on December 28, 2010.

The respondent and D. and N. then immigrated to Canada and lived with the applicant until separation. [ 11 ] The applicant says after his son took over R. and Associates Accounting Ltd., he continued to work for the business as an employee, doing accounting work. [ 12 ] The respondent did some work for R. and Associates Accounting Ltd., although the parties disagree on the extent of the work she did. She also painted nails for friends. [ 13 ] The applicant testified he did very little in terms of household responsibilities while he and the respondent were together.

He said the respondent did the cleaning and meal preparation. [ 14 ] The parties disagree on the applicant’s role with the children. The respondent says the applicant acted as a father to the children. The applicant denies this. Land acquired by the parties [ 15 ] During the marriage the parties acquired a piece of land with PID 30306575 (herein after referred to as “the property”). Title to the property is in the name of both the applicant and the respondent. [ 16 ] The parties had planned to build a marital home on the property.

They were approved for a mortgage of over $350,000, but according to the applicant, funds were never advanced, as they did not get around to building the home. Events leading to separation [ 17 ] In 2017 the respondent went to Russia to care for her grandmother. The timeline is not clear, however, according to the applicant, the respondent returned to the marital home for a period of about eight weeks. In June 2018 the respondent went back to Russia until March 2019.

On both occasions D. and N. remained with the applicant. [ 18 ] The applicant says the parties’ separation took place in June 2018, when the respondent went back to Russia. [ 19 ] The respondent says the date of separation was March 30, 2019, when she returned from Russia to be advised by the applicant that the marriage was over.

The parties’ divorce [ 20 ] The Court does not know the date, but at some point the applicant filed for divorce. The respondent says she was served with the application for divorce through her son D. not long after she had returned from Russia at the end of March 2019. She did not file an answer to the divorce application. [ 21 ] The applicant filed a trial record requesting a divorce by affidavit evidence on October 29, 2019. The Court granted the divorce by order dated November 14, 2019, effective December 15, 2019.

There is no order for corollary relief. [ 22 ] The respondent says that she did not receive a copy of the divorce order. She says she found out she was divorced in 2021 after making inquiries.

The alleged agreement [ 23 ] In his affidavit filed with the application in September 2020, the applicant claims he and the respondent had a verbal agreement upon separation that he would pay her $40,000 representing her share of the “net equity” in the property, which he says would have been approximately $26,000, and the rest representing spousal support. [ 24 ] The applicant made payments to the respondent totalling $46,044 between April 2019 and March, 2021.

Some of the money was paid by the applicant through her son D. and other funds were released by the applicant’s former solicitor. [ 25 ] The respondent says any amounts paid by the applicant were for support only. She denies there ever was an agreement with respect to the property, or an agreement that he would pay spousal support for a period of two years only.

Pleadings/position of the parties [ 26 ] In the application filed September 2, 2020 the applicant requests an order that the property be transferred to him in accordance with the agreement he says the parties made regarding support and division of marital assets. [ 27 ] The respondent filed an answer on February 1, 2021.

In it, she denied there was any agreement regarding the property and requested, among other relief, an order that the applicant be removed from ownership of the property and an order “to support of $1,700 per month of his family.” [ 28 ] The respondent filed an amended answer on October 19, 2021 in which she requested an order for the transfer of the property to her in her name alone, or in the alternative, an order for the sale of the land for fair market value, and not in an amount less than that reflected on the property tax assessment, with the proceeds to be divided evenly between the parties.

She also requested an extension of the limitation period under the Marital Property Act for division of marital property. [ 29 ] As well, the respondent requested: • an order for ongoing monthly spousal support retroactive to the date of separation • an order for child support for N. retroactive to the date of separation • an order that the applicant pay special expenses for N. pursuant to

section 7 of the Child Support Guidelines • an order that the applicant be ordered to maintain her and N. on his dental and medical insurance for as long as they are eligible; and • an order that the applicant obtain $200,000 in life insurance to secure support. [ 30 ] The applicant did not file a reply. [ 31 ] At the hearing the respondent requested that the applicant be ordered to pay her $1,700 a month as spousal support for a period of nine years, in addition to the ongoing child support for N. retroactive to the date of separation. [ 32 ] The respondent stated at the hearing she does not seek the alternative relief pled in her amended answer with respect to the property (that the property be listed for sale and the net proceeds divided equally).

The Court understands that her request is to keep the property. [ 33 ] The respondent also requested at the hearing (and in her affidavit sworn January 10, 2023) that the applicant be ordered to pay half of her car insurance payment for three years (2019 to 2021).

However, she took the position if he paid the $1,700 per month for nine years she would not be seeking this reimbursement. [ 34 ] The respondent also requested an order the applicant pay for brake repairs of $5,000 on the car on the basis he broke the brakes when he was driving the car. [ 35 ] The applicant takes the position that there are issues with the timing of the claim for child support. [ 36 ] The applicant also takes the position he has already paid out to the respondent her share of the net equity in the property. [ 37 ] While he conceded the respondent was entitled to spousal support, the applicant disputes the amount of support and duration claimed by the respondent.

He submits that his age, health and plan with respect to retirement mean he does not have the ability to pay further support to the respondent, and he submits the Court should take into account the amounts he has already paid the respondent in any order for support.

[ 38 ] He disputes the additional claims with respect to insurance premiums and repairs to the car. The applicant’s circumstances [ 39 ] As noted, the applicant is an accountant. He denies he continued to own the accounting business after his son M.R. took over ownership of the business.

He agreed that he and his son had an agreement that profits would be split equally between them. (See Exhibit B to the respondent’s affidavit sworn January 10, 2023, pages 277-279 of the record.) [ 40 ] The applicant testified after his son took over the business, he continued to do accounting work and received a monthly salary which was approximately $2,400 per month. His evidence in his affidavit sworn July 22, 2021 is that he was receiving $2,400 per month net, which approximates to $3,600 in gross income.

This equates to a gross annual income of $43,200. [ 41 ] In 2018, the applicant had line 150 income of $41,180. [ 42 ] In 2019 the applicant’s line 150 income was $43,843. [ 43 ] In 2020 the applicant’s line 150 income was $38,073. [ 44 ] The applicant has not provided a 2021 tax return. However, his 2021 notice of reassessment indicates the applicant’s income was $60,810. The applicant testified his 2021 income was from accounting work and working at a self storage business, which is owned by R. and Associates Accounting Ltd. He testified he did managerial work for the storage business.

He would sit at the desk and answer the phones and deal with people who came in. [ 45 ] The applicant testified the storage business began renting out storage units in approximately 2021. The applicant thought he probably started working there in 2021 and worked two days a week from 9:00 a.m. until 5:00 p.m. and Saturday mornings. He testified he was paid a monthly salary of $600 to $800 a month from the storage business in 2021. [ 46 ] The applicant said he also received some money from “Aegean.” This company built the storage units. His responsibility was to coordinate the workers.

He said he did this work in the period between 2018 and 2022 and would have been paid approximately $8,000 to $10,000 for the work. It is not clear if this was an annual amount or total amount paid for the two year period. [ 47 ] The respondent makes allegations the applicant receives undisclosed cash payments from clients. She did not make a request for an imputation of income to the applicant on this basis in her pleadings.

However, I do not find there is sufficient evidence to impute income to the applicant on this basis, in any event. [ 48 ] I accept the respondent’s line 150 income for 2019, 2020 and 2021 represents the income he received those years. [ 49 ] The applicant, who is an accountant and who was represented by counsel, provided no tax information or year-end pay stubs for 2022. He testified in 2022 much of his work was at the self storage business, and it was more full-time than in 2021.

He said he worked at the self storage business Mondays, Wednesdays and Fridays from 9:00 a.m. to 5:00 p.m. and Saturday mornings from 9:00 a.m. to 12:00 p.m. as well as Tuesdays and Thursdays from 1:00 p.m. to 5:00 p.m. He said he received approximately $2,000 a month from this work and was still doing some accounting work for which he probably received $300 to $400 a month. [ 50 ] The applicant also testified he would have had about $2,000 or $3,000 in RRSP income. However, this RRSP income reflected repayments to the home buyers plan. The parties withdrew $22,811 from RRSPs in 2014 (page 267 of the record).

The applicant said they used it to get a mortgage for the property. [ 51 ] The applicant testified in 2022 he was “back to” approximately $2,400 per month in income. Prior to this he testified that after his son took over the business, he was receiving a monthly take-home salary of approximately $2,400 from the accounting business. As noted, in his affidavit sworn July 22, 2021 he deposed that he received $2,400 per month in net income which was approximately $3,600 a month in gross income.

I find for 2022 the applicant’s gross income was $3,600 per month or $43,200. [ 52 ] The applicant indicates in his financial statement filed January 5, 2023 his current income is $24,024. This is based on him only receiving CPP and Old Age Security benefits when he turns 70 in April 2023. [ 53 ] The applicant testified he is now “basically retired”.

He deposes in his affidavit sworn January 5, 2023 that he retired as of December 2022 so he could spend more time with his family and due to his health. [ 54 ] In his direct testimony the applicant described in detail health issues he had in 2022 related to low blood pressure. This evidence indicates he has issues standing up for long periods of time. [ 55 ] He had day surgery in August 2022 and had complications afterwards and ended up in the hospital for a week with clotting in both lungs. He was injected with blood thinners and discharged.

When he got home he continued to have issues with the leaking of fluids from his leg, which had a hole in it. He was readmitted to hospital and stabilized after a week.

His protein count was very low and he had to change his diet to address that. [ 56 ] The applicant testified extra mural nurses came to check on him for several weeks into September or maybe October 2022. [ 57 ] He testified every Friday he goes to the medical clinic for testing which tells the doctors if he needs to increase or decrease his warfarin levels. [ 58 ] The applicant testified it seemed like a good time to retire (at the end of December 2022) because he is turning 70 in March 2023.

[ 59 ] The applicant testified he no longer works a set schedule, however, he is still available for any work that might come up. When asked to explain, he testified that his background in accounting and management means it is a lot easier for him to do work seated at a desk. He would have issues if he had to stand or needed to be walking or mobile. [ 60 ] On cross-examination the respondent asked the applicant who would rent her a storage unit if she went to the storage business today. The applicant said it could be him.

He agreed he continues to work for the storage unit business and that his son can hire him as needed. When asked if he therefore has a good income, he said it could be the case. [ 61 ] On cross-examination the respondent also asked the applicant if she could assume 50 percent of the business and income from R. and Associates Accounting Ltd. was the applicant’s. The applicant said no. However, he acknowledged there was an equal profit sharing agreement between him and his son made in September 2015.

He did not indicate that this agreement was terminated or changed. [ 62 ] I accept that at almost 70 years of age it is reasonable for the applicant to not work full-time. However, his evidence is that he “basically retired” as of December 2022. Despite his health issues, he is still available for accounting work that might come up and in fact he is still working at the storage business.

I conclude the applicant’s income will not be limited to CPP and OAS as of April 2023. [ 63 ] In my view it is reasonable to use $33,000 as an annual income for the applicant in 2023, which is an average of what he would receive from CPP and OAS and his 2022 income as determined by the Court. [ 64 ] The applicant now resides by himself. He testified he lives in a three-bedroom apartment in a building owned by a storage business, which in turn is owned by R. and Associates Accounting Ltd. [ 65 ] In his financial statement filed January 5, 2023, the applicant’s monthly expenses are stated to be $2,125.

He pays no rent or mortgage, nor does he show payment for property insurance, property tax, electricity, heating or water and sewage. [ 66 ] The only property he lists is the disputed property, which he values at $40,600, and a 2009 Lexus automobile that he estimates has a value of $6,000. He says he has cash of $100 and no other savings or pensions. [ 67 ] In terms of debt he indicates he has a mortgage guarantee in the amount of $150,000 regarding borrowed money, payable to his son M.R. However, he does not show any debt payments in his calculation of monthly expenses.

He also shows property taxes of $1,800 owing. This appears to relate to the property in dispute. [ 68 ] His prior financial statement sworn July 22, 2021 showed monthly expenses of $2,208, again with no rent or other housing expenses. At that time he had an automobile valued at $1,200, and $100 in cash. He listed the mortgage guarantee of 150,000 as debt. [ 69 ] The applicant testified he has no access to credit because he declared bankruptcy. When asked when that was, he said it was right around the time of the divorce (the end of 2019).

I note in his affidavit sworn July 22, 2021, he said he declared bankruptcy in 2018. He testified he thought he was discharged sometime in 2021. [ 70 ] When asked why he declared bankruptcy, he said that all his credit cards were maxed out because the respondent was in Russia needing money and her children here needed things and his income was not enough to sustain everything. The respondent’s circumstances [ 71 ] The respondent is not licensed to work as a veterinarian or hairdresser in New Brunswick. [ 72 ] The respondent testified that she had no time during the marriage to learn English.

She said the applicant would speak for her when they were together. She said now that she is responsible for herself and her children she has learned more and can explain and speak for herself. She testified she has been going to the YMCA for English lessons but is having difficulty finishing her current level of English because she goes from place to place for work. [ 73 ] On cross-examination she agreed she prepared her affidavits in this matter.

She said her teacher at the YMCA helped her with her first affidavit. [ 74 ] The respondent’s evidence is that she worked for R. and Associates Accounting Ltd. during the marriage, inputting information about clients into the computer. She included as Exhibit B-2 to her January 10, 2023 affidavit a copy of a signed agreement between the applicant and the respondent and the applicant’s son and his wife, dated September 22, 2015.

It states the respondent’s duties at the accounting business consisted of the following: • … primarily of reviewing the preliminary information on worksheets and in some instances the preparation of income statements and other worksheets and forms as needed in preparation for this data to be entered into the income tax database; • sometimes entering the preliminary data information into the tax computer database or assisting those responsible for this work; • sometimes meeting with clients who may be dropping off information or picking up their income tax work and receipts; other work as required. [ 75 ] The agreement further states that the respondent would carry out this work from approximately the middle of February to the end of April each year, comprising an average of 20 hours per week, and that the respondent would receive approximately $10,000 to $12,500 per tax season for the work. [ 76 ] The applicant testified that the respondent’s tasks at the accounting firm were to greet people when they came in, obtain some files and file things away.

He said she never entered information on the computer because it was very technical and sensitive and required complete accuracy. He said the document describing the respondent’s duties was prepared because the parties were applying for a mortgage and it was important to show that she had some income.

[ 77 ] On cross-examination the applicant agreed that the respondent could have inputted information into the computer, under supervision. [ 78 ] At some point after separation the respondent purchased a home in Millville, N.B. in which she resides with N., now 18 years old. [ 79 ] She testified she has purchased another property It was an abandoned home and she is renovating it. Her plan is to sell it and use the proceeds to build a home on the property in dispute in this matter. [ 80 ] The respondent testified that since 2019 she has had work painting houses, cleaning houses and doing roofing work.

When asked how many hours she works cleaning houses, the respondent said it could be one hour in one week. [ 81 ] With respect to the roofing work, the respondent’s evidence is that she earns approximately $3,000 to $4,000 annually from the roofing work, which takes place over a three to four-month period, including the summer. [ 82 ] The respondent did not file a copy of her T1 general tax return for any tax years.

However, according to the respondent’s notice of assessment, she had line 150 income of $3,885 in 2018. [ 83 ] According to her notice of reassessment, in 2019 the respondent’s line 150 income was $17,194. However, the applicant deducted $15,300 in support payments on his 2019 income tax return. I therefore conclude the respondent claimed the same amount as spousal support on her tax return. Deducting this amount from the respondent’s line 150 income leaves $1,894. I determine this was her income in 2019. [ 84 ] The respondent’s 2020 tax assessment shows total income of $39,850.

However, the applicant deducted $20,400 in support payments on his 2020 tax return, and again I conclude the respondent claimed the same amount as spousal support on her tax return.

Deducting this amount from the respondent’s line 150 income leaves $19,450 which I determine was the respondent’s income in 2020. [ 85 ] It appears some of the respondent’s 2020 income was from the Canada Emergency Response Benefit and/or the Canada Recovery Benefit, as she states at paragraph three of her affidavit sworn May 18, 2021 that to receive CRB, she “worked on the roof.” [ 86 ] There is no tax information from the respondent for 2021. Her financial statement sworn October 18, 2021 indicated total annual income of $11,760 from social assistance benefits of $980 a month.

She testified she did some roofing work in 2021 for about three months and would have earned around $3,000 or $4,000. I accept these were her sources of income in 2021. [ 87 ] There is also no tax information from the respondent for 2022. She testified she received $930 per month from social assistance or $11,120. She said she also would have earned around $3,800 from roofing work over a three or four-month period in 2022.

I accept these were her sources of income in 2022. [ 88 ] The respondent continues to be in receipt of social assistance of $930 per month. [ 89 ] The respondent’s financial statement filed October 19, 2021 shows monthly expenses of $5,064.49. She shows a mortgage payment at $720 a month and property taxes of $2,400 a year, as well as property insurance, electricity, heating and repair and maintenance costs. She shows loan payments of $550 a month and credit card payments of $70 a month. [ 90 ] In terms of property she lists the two houses she owns.

She values the home she is living in at $26,000 and values the other property she has purchased at $18,000. She has a 2016 Mazda CX-5 she says is worth $4,500. She has no savings or RRSPs or pensions. [ 91 ] The respondent indicates she has debts totaling $8,405 for auto financing ($6,165.51 owing) and an amount owing on her credit card ($2,239). Credibility [ 92 ] I found the applicant’s evidence was self-serving and lacked believability. He did not provide documentary evidence to support his claims, for example, that he had paid a significant portion of the taxes on the land in dispute.

Most of the documentation that is in evidence was submitted by the respondent and the draft “agreements” the applicant had prepared after separation do not support his claim there was an agreement with respect to the property. He made several admissions on cross-examination that call into question the credibility of his evidence. [ 93 ] I believe the respondent has exaggerated events to some degree in order to paint the applicant in a negative light, for example alleging that the storage business is used to launder money.

However, she did provide documentary evidence to support most of her claims, for example that she paid a significant portion of the property taxes on the land. Her voluminous affidavit evidence was not greatly challenged on cross-examination. [ 94 ] Where the parties’ evidence conflicts on important issues, I prefer the respondent’s evidence. III. ISSUES [ 95 ] The issues the Court must decide are the following: 1. What was the date of separation? 2. Did the parties have an enforceable agreement regarding spousal support and the property? 3. What amounts were paid by the applicant to the respondent?

4. Can the court make an order for child and spousal support? 5. The respondent’s claim for child support for N. (

a) Is N. a child of the marriage? (

b) Should child support be ordered for the period pre-dating the respondent’s claim? (

c) What is the appropriate amount of child support? 6. What is the amount and duration of spousal support, if any, to which the respondent is entitled? 7. Request for an order for sharing of special expenses for N. 8. Request that the respondent and N. be added to the applicant’s health and dental coverage. 9. Request that the applicant obtain life insurance to secure support. 10. The property:

a) If there was no agreement regarding the property are the parties barred from seeking relief with respect to the property by thelimitation period in the Marital Property Act?

b) If not, what relief should be granted regarding the property? 11. Should the Court grant the respondent’s other claims for relief? IV. LAW AND ANALYSIS Issue 1: What was the date of separation? [96] Section 8(3)(

a) of the Divorce Act states: Spouses shall be deemed to have lived separate and apart for any period during which they lived apart and either of them had theintention to live separate and apart from the other. [97] In N.M. v. S.M., (NB CA), the Court of Appeal stated: There is no definition in the Marital Property Act to assist the Court in determining the separation date. The governing sections ofthe Act with respect to the issue before us nevertheless use the words "cohabitation" and "separate and apart". I believe this lastexpression must be given the same

interpretation as that in subsection 8(3) of the Divorce Act, dealing with the calculation of the periodof separation. Subsection 8(3) (

a) reads:

(3) For the purposes of paragraph (2)(a), (

a) spouses shall be deemed to have lived separate and apart for any period during which they lived apart and either of them had theintention to live separate and apart from the other; and ... It is clear from this definition that what is required is a physical separation and a recognition by one of the parties that the marriage is atan end. This

interpretation was adopted in Lachman v. Lachman (1970), (ON CA), 3 O.R. 29 at p.33, 12 [98] In his application, the applicant states the parties separated in June 2018. In his testimony, he said the marriage could havebeen over in June 2018, or even in 2017, when the respondent went to Russia the first time. [99] The respondent denies there was any indication the applicant believed the parties were separated until she returned fromRussia in 2019. She deposes in her affidavit sworn February 1, 2021 that when she returned on March 30, 2019 she was shocked todiscover that the applicant wanted a divorce.

She says she and the applicant had just talked on the phone a few hours previously andeverything seemed fine. [100] On cross-examination the respondent asked the applicant if he had mentioned separation in any of their online conversationswhile she was in Russia. He said possibly not. [101] I do not find the applicant’s evidence that he intended to end the marriage in June 2018 to be credible. He did not tell therespondent the marriage was over if she went back to Russia. He did not communicate to her that he felt the marriage was over in theirconversations while she remained in Russia.

He continued to care for the respondent’s children while the respondent was in Russia. [102] I therefore accept the respondent’s evidence that the date of separation was March 30, 2019, when the applicant communicatedto the respondent his intention to end the marriage. Issue 2 - Did the parties have an agreement regarding spousal support and property? [103] In his affidavit filed July 23, 2021 the applicant expands on what he says the parties’ verbal agreement encompassed.

He saysthe $40,000 payable to the respondent was broken down into $1,200 per month towards her interest in the land and $500 per month asspousal support and when the $40,000 was paid, the land was to be transferred into his son M.R.’s name. He says this was the parties’intention upon separation.

[104] The Marital Property Act provides at

section 36: Two persons who cohabited and are living separate and apart or who are cohabiting and agree to live separate and apart may enter into aseparation agreement in which they agree on their respective rights and obligations, including (

a) ownership in or division of property, (

b) support obligations, (

c) the right to parenting time or decision-making responsibility with respect to their children, and (

d) any other matter in the settlement of their affairs. [105]

Section 37 states: A domestic contract and any agreement to amend or rescind a domestic contract shall be in writing, shall be signed by the parties to bebound and shall be witnessed. [106] After separation and after the divorce was granted, the applicant made attempts to have the respondent sign various“agreements” related to support and the property.

For example, the applicant sent the respondent a document dated April 3, 2019, that hehad signed. (A copy is attached the respondent’s affidavit sworn January 10, 2023.) [107] This document states: I, [B.R.], the husband of [N.R.], hereby notify you that this Agreement was met and agreed to an alimony payment and schedule. The amount to be paid to [N.R.] by [B.R.] is an amount of One Thousand Seven Hundred Dollars ($1,700.00) as a minimum monthlypayment. This monthly payment can be increased.

The total amount of Alimony paid is to be Forty Thousand Dollars ($40,000.00) this isto commence and be effective as of April 1, 2019. This Alimony Agreement is hereby acknowledged and accepted. [108] As well, as set out in the applicant’s July 23, 2021 affidavit, he had his former solicitor draw up a document. The applicantdeposes this was a separation agreement reflecting the parties’ arrangement. I note this draft “separation agreement” is dated March 2,2020, after the parties were already divorced. [109] This document states at paragraph 7(

a) that the parties acknowledge the property shall be the sole and exclusive property of thehusband, however, the document makes no reference to monthly payments of $1,200 a month, or any amount paid by the applicant, tobuy out the respondent’s interest in the land. Similar to the “agreement” of April 2019, it says at paragraph six that the husband shall paythe wife in the form of spousal support, a total of $40,800. [110] The respondent did not sign these “agreements” and she made it clear in writing that there was no agreement regarding theproperty.

Clearly there was no written agreement as contemplated by the Marital Property Act. [111] The evidence does not support a finding there a verbal agreement, as claimed by the applicant. The applicant gave no evidenceabout when or where the purported verbal agreement with the respondent was reached. The “agreements” he prepared make no referenceto the applicant paying any amount to buy out the respondent’s share of the equity in the property.

The wording indicates the amountspaid were “alimony” or spousal support. [112] The applicant also did not treat the amounts he paid the respondent as being broken down into $500 per month for support and$1,200 per month towards the respondent’s share of the property. As noted earlier in this decision, the applicant’s tax returns for 2019and 2020 indicate he deducted a total of $35,700 in spousal support payments for those years.

That equates to $1,700 per month over theperiod between April 2019 and December 2020. [113] Even the applicant’s own testimony does not support a finding there was a verbal agreement between the parties regarding theproperty. He testified he came up with the amount he paid the respondent based on some of the things he was aware the respondentneeded to pay such as rent, car payment and electricity bill. [114] On cross-examination, the respondent asked the applicant the following: So amount being raised to pay [the respondent] is around $40,000.00 for the spousal support.

When it started to be coming in your mindthat it’s could be reverse – not reverse but convert the spousal support to the payments for the land? [115] The applicant answered: I am not sure, but I just felt in my mind and – that what I was doing to at least help you – that this would carry you through for a coupleof years with – with basic expenses – would help you to get established with what you would want to do, whether it’s getting a job at – atsay a – a Tim Hortons, or at the – like a supermarket – things like that. There were possibilities, and I just thought that, ya know, thatcould work out for you.

Rather than just say, “I’m out of here and good luck.” Ya know, just… [116] I simply do not find the applicant credible in his evidence that the parties had an agreement that he would pay the respondent$500 a month as spousal support and $1,200 a month towards the property over the course of 24 months. [117] Even if there was a basis to find there was such an agreement between the parties, I note Colson v Beauregard, 2014 NBQB155 , where Baird, J., as she then was, stated:

[98] In L.(J.) v. B.(R.) , 2010 Carswell NB 626 , this Court summarized Rick v. Brandsema (supra) as follows: [55] In acknowledging that in this situation there is a verbal agreement, not a domestic contract, it is my respectful opinion that the principles are the same, i.e. before any agreement can be enforced, there must be a finding based on the foundational principles surrounding the preparation and execution of contracts, be they marital or otherwise. [56] Those foundational principles are the following: 1.

There must be a level playing field; in other words, the parties must negotiate from a place of equality, free from economic or psychological oppression; 2. There must be full and honest financial disclosure; 3. Each party should be fully informed of their rights and obligations; 4. The agreement must not be inequitable. [ 118 ] In this case the respondent had returned from Russia to be told that the marriage was over. Her first language was not English. She did not have legal counsel. She had no significant source of income and depended on the applicant for support.

There is no evidence the applicant gave financial disclosure. The playing field was not level for the purposes of any negotiations between the parties. [ 119 ] I do not find there was any agreement regarding the property and spousal support on the terms the applicant claims. Issue 3 – What amounts were paid by the applicant to the respondent? [ 120 ] As noted, after separation the applicant made payments to or on behalf of the respondent totalling $46,044.

The applicant recorded these amounts as follows: • Monthly payment to the respondent of $1,700 between April 2019 and March 2021 ($40,800); • Monthly payments for a storage unit for the respondent between April 2019 and December 2021 ($3,864 in total) • Monthly payments for the respondent’s cell phone between April 2019 and March 2020 ($1,380 in total). (See Exhibit D to the applicant’s affidavit sworn July 22, 2021 at page 163 of the record.) [ 121 ] The respondent agreed at the hearing those amounts were paid to her.

However, she relied heavily on her affidavits as her evidence in this matter. [ 122 ] In her affidavit sworn February 1, 2021 the respondent deposed that while the applicant gave her $1,700 a month after separation, he was not actually paying the full amount out-of-pocket, as she says the applicant was receiving her Canada child benefit (“CCB”) and GST tax credit amounts. [ 123 ] The applicant denied he received the respondent’s CCB.

He testified that to his knowledge it would have been direct deposited into the respondent’s bank account. [ 124 ] With respect to the respondent’s GST payments, the applicant testified he probably was receiving these payments until the divorce because Revenue Canada paid it out to one spouse. He said he used it to basically run the family and pay bills like any normal family. [ 125 ] The respondent also says the applicant was including the car loan payment of $670 per month as part of what the $1,700 was covering.

From what I can understand the respondent believes that the applicant should not be credited for this amount because the car loan was taken out by the applicant. [ 126 ] However, the evidence indicates the respondent kept the car after separation, although the applicant borrowed it on occasion. I do not find any amount should be deducted from what the applicant paid the respondent, for the car loan. [ 127 ] The respondent’s evidence is that she only found out she was entitled to the CCB in December 2019. She says she learned about the GST tax credit in October 2019.

She indicates the CCB amount was $496.49 per month and the GST credit was $336.75 (Exhibit A- 12 to the respondent’s February 1, 2021 affidavit.) [ 128 ] The respondent says the applicant had her bank account numbers and passwords and controlled all her finances. She indicates when she learned about the CCB and GST she called the banks to change all of her information. [ 129 ] The applicant denied he could transfer monies out of the respondent’s bank account.

However, Exhibit A-13 to the respondent’s February 1, 2021 affidavit is a message from the applicant to the respondent in October 2019 where he tells her went to RBC and her card number [15 digit number] and password [XXXXX] did not work. [ 130 ] In a text message attached as Exhibit A-10 to the respondent’s February 1, 2021 affidavit, the respondent tells the applicant she does not see N.’s money and asks what kind of card has N.’s money. [ 131 ] In a further exchange attached as Exhibit F-6 to the same affidavit, the applicant advises the respondent, it would appear in late November 2019, the government had stopped her monthly payment for N. [ 132 ] I find that it is more likely than not the applicant was in receipt of or had access to both the CCB and the respondent’s GST tax

credit after separation, until some time towards the end of 2019, when the respondent changed her banking information. N. was residingsolely with the respondent after separation. I will therefore deduct from the amount of support paid to the respondent an amountrepresenting eight months of CCB ($496 x 8 = $3,968) and three payments of GST for April, July, October, 2019 ($337 x 3 = $1,011) fora total deduction $4,979. [133] I therefore conclude the respondent has paid as support to or on behalf of the applicant the amount of $41,065 ($46,044 -$4,979).

Issue 4 - Can the Court make an order for child and spousal support? [134] The applicant raised an issue with the timing of the request for child support and the fact the respondent’s claim for corollaryrelief was only brought a couple of years after the divorce was granted. [135] As stated by James MacDonald and Ann Wilton in The 2021 Annotated Divorce Act (Toronto: Thompson Reuters, 2020) atpage 182: The right to corollary relief comes into existence at the time of divorce, but a claim for that relief need not be joined with a claim fordivorce, and need not be heard at the time of the divorce.

It may be made in a proceeding independent of the divorce and may becommenced some time after the date on which the divorce is obtained. [136] The authors point out that the definition of “spouse” for the purpose of the child support and spousal support provisions of theDivorce Act includes a former spouse. [137] Section 4 (1) of the Divorce Act provides that a corollary relief proceeding may be brought in any province in which eitherformer spouse is ordinarily resident at the time of the commencement of the proceedings. [138] Both parties were habitually resident in New Brunswick at the time the respondent made her claim in 2021.

The Court thereforehas jurisdiction to make an order for child and/or spousal support. Issue 5 - the respondent’s claim for child support for N.

a) Is N. a child of the marriage? [139] In her affidavit sworn February 1, 2021 the respondent says the applicant wanted to take care of her children when theymarried, and they became like his children. [140] The applicant deposes in his January 4, 2023 affidavit he did not intend to be a parent to the respondent’s children. [141] Section 2(1) of the Divorce Act defines a “child of the marriage” to mean a child of two spouses or former spouses who, at thematerial time, (

a) is under the age of majority and who has not withdrawn from their charge, or (

b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from theircharge or to obtain the necessaries of life. [142] Section 2(2) of the Divorce Act states: For the purposes of the definition child of the marriage in subsection (1), a child of two spouses or former spouses includes (

a) any child for whom they both stand in the place of parents; and (

b) any child of whom one is the parent and for whom the other stands in the place of a parent. [143] The Court of Appeal of New Brunswick stated in M.S. v. C.S., 2009 NBCA 66 at paragraphs 13 and 14: The first ground of appeal is that the trial judge erred at law by determining that M.S. stands in the place of a parent to the child. In thiscase, the trial judge considered the leading Supreme Court decision of Chartier v. Chartier, (SCC), [1999] 1 S.C.R.242, [1999] S.C.J.

No. 79 (QL), in which Bastarache J. sets out the test to determine whether or not the person (M.S. in this case) standsin the place of a parent as follows: Whether a person stands in the place of a parent must take into account all factors relevant to that determination, viewed objectively.What must be determined is the nature of the relationship. The Divorce Act makes no mention of formal expressions of intent. The focuson voluntariness and intention in Carignan was dependent on the common law approach discussed earlier. It was wrong.

The court mustdetermine the nature of the relationship by looking at a number of factors, among which is intention. Intention will not only be expressedformally. The court must also infer intention from actions, and take into consideration that even expressed intentions may sometimeschange. The actual fact of forming a new family is a key factor in drawing an inference that the step-parent treats the child as a memberof his or her family, i.e., a child of the marriage.

The relevant factors in defining the parental relationship include, but are not limited to,whether the child participates in the extended family in the same way as would a biological child; whether the person providesfinancially for the child (depending on ability to pay); whether the person disciplines the child as a parent; whether the person representsto the child, the family, the world, either explicitly or implicitly, that he or she is responsible as a parent to the child; the nature orexistence of the child's relationship with the absent biological parent.

The manifestation of the intention of the step-parent cannot bequalified as to duration, or be otherwise made conditional or qualified, even if this intention is manifested expressly. Once it is shown

that the child is to be considered, in fact, a "child of the marriage", the obligations of the step-parent towards him or her are the same as those relative to a child born of the marriage with regard to the application of the Divorce Act . The step-parent, at this point, does not only incur obligations. He or she also acquires certain rights, such as the right to apply eventually for custody or access under s. 16(1) of the Divorce Act . [para. 39] In his decision, the trial judge provides many examples of how D.M. could be considered a “child of the marriage”:

(1) M.S. provided financially for D.M.;

(2) D.M. participated extensively in events with M.S.’s extended family;

(3) M.S. represented to the outside world and to D.M. herself that he was responsible for her as a parent; (4) the trial judge was also satisfied that M.S. looked upon D.M. as his daughter; and (5) there was evidence establishing that M.S. spent a great deal of time with D.M. both at home and in the community. The trial judge also considered the age of the child during the period of the parties’ relationship. The trial judge further found that the possibility of M.S. adopting D.M. had been discussed. It is clear the trial judge applied the appropriate principles and the jurisprudence germane to this situation.

This finding is based on sound findings of fact. I am of the view that the trial judge did not make any error in determining that M.S. had assumed the role of a parent. I would not disturb his finding in that respect. [ 144 ] N. would have been six years old when the parties married at the end of 2010. D. would have been 11 years old. [ 145 ] The fathers of both N. and D. signed declarations authorizing the children to immigrate with their mother to Canada.

The applicant himself deposes in his affidavit sworn July 22, 2021 that in signing these documents, the biological fathers recognized they might never see their children again after they immigrated. [ 146 ] The respondent attached as Exhibit A-4 to her affidavit sworn February 1, 2021 a copy of a Specific Consent to Adoption – Parent (Form 14) under the Family Services Act that was signed by the father of D. on January 13, 2012. (See page 47 of the record.) [ 147 ] While the applicant deposes in his affidavit sworn January 4, 2023 that he and the respondent mutually decided he would not adopt the children, he testified at one point he thought it would be interesting to see about adopting the children in Canada, as he thought they could be a nice family.

He said he spoke to legal counsel about adopting the children. The information provided was that it would be difficult if not impossible to adopt the children, so he did not follow through with the adoption process. [ 148 ] In his affidavit sworn January 4, 2023 the applicant acknowledges he performed some parenting tasks for the children. He deposed he would take them to the doctor. [ 149 ] He deposes that the respondent put clear limits on parental tasks he did with the children.

He did not provide examples of limits that she placed on his parenting. [ 150 ] In his direct examination the applicant testified he would take D. and N. to church and to school activities. He said they were involved with the youth program at church. He said that N. liked reading and D. like computers. [ 151 ] The applicant testified he did not discipline the children and he left that up to the respondent. [ 152 ] When the respondent was in Russia between 2017 and 2019, D. and N. remained with the applicant. The applicant testified that at this point in time N. and D. were teenagers and were very independent.

N. would have turned 14 in September 2018, while D. was 19 in February 2018. He said he would ask them about homework and would buy them what they needed for their lunches. They would prepare their own food. He continued to drive them to school and their activities. [ 153 ] On cross-examination the respondent asked the applicant who was responsible to make sure the children went to school and to discipline them or punish them when she was away. The applicant said he was. [ 154 ] The applicant agreed there was a time when N. did not want to go to school.

He said he suggested she go to school and talk to her guidance counsellors.

He agreed he supported her and tried to help her. [ 155 ] I note in the agreement signed September 2015 between the applicant and respondent and the applicant’s son M.R. and his wife R.R. with respect to the accounting business (page 278 of the record) it states that the applicant and the respondent’s dependent children were D. and N. for the purpose of payments from the business in the event of the death of the applicant and the respondent. [ 156 ] I also note the applicant’s evidence that he used the applicant’s GST money he received during the marriage for the “family”. [ 157 ] The respondent included as Exhibit A-2 to her January 10, 2023 affidavit a letter written by N. where she makes statements about the nature of her relationship with the applicant.

Although no objection was raised by the applicant to the inclusion of this letter as part of the evidence, I have not put weight on the letter, as it is hearsay evidence and is not sworn evidence from N. [ 158 ] I acknowledge there is little information before the Court as to how the applicant treated the respondent’s children when at family gatherings, for example.

I also acknowledge that the applicant testified N. and D. called him by his first name. [ 159 ] However, it is apparent the applicant was involved in ordinary parenting tasks like taking the children to school, church group and doctor’s appointments. [ 160 ] The applicant provided for the children financially.

He indicated the children were to be treated as his dependents and would be supported through income from the accounting business in the event of the death of himself and the respondent. [ 161 ] N. lived with the applicant for over eight years, from age six until she was 14. [ 162 ] The applicant contemplated adopting the children and he was aware that by marrying the respondent and assisting her and the children to immigrate to Canada, it was unlikely their biological fathers who would see them again.

There is no evidence that N. has an ongoing relationship with her biological father, who presumably remains in Russia.

[163] In my view the respondent has established on a balance of probabilities that upon the parties’ marriage, she, the applicant andher children formed a new family. I find that the applicant demonstrated a settled intention to treat the respondent’s children as his ownand stood in the place of a parent to N. [164] It appears there is no ongoing relationship between the applicant and N., because the applicant ceased the relationship when heleft the marriage in March 2019.

At paragraph 36 of the decision in Chartier, referenced above, the Supreme Court of Canada states: 36 It is clear that the court must address the needs of the child as of the date of the hearing or order. The existence of the parentalrelationship under s. 2(2)(

b) of the Divorce Act must however be determined as of the time the family functioned as a unit. [165] The Supreme Court continues: 44 The Court of Appeal, by relying on Carignan, made a distinction between children born of both parents and stepchildren. Asmentioned earlier, the Act does not make such a distinction.

Once it is determined that a child is a “child of the marriage” within themeaning of the Divorce Act, he or she must be treated as if born of the marriage. … 45 Even if a relationship has broken down after a separation or divorce, the obligation of a person who stands in the place of a parent tosupport a child remains the same. Natural parents, even if they lose contact with their children, must continue to pay child support. [166] N. is under the age of majority. I accept that she remains under the charge of her mother.

I therefore conclude that the applicanthas a child support obligation towards N., on the basis that he stood in the place of a parent to her during the marriage.

b) Should child support be ordered for the period pre-dating the respondent’s claim? [167] The respondent made a specific claim for child support for N. in her amended answer filed in October 2021. [168] The request is for child support to be determined and ordered retroactive to the date of separation, March 30, 2019. The Courtmust assess whether it is appropriate to order support for the period predating the respondent’s claim for support. [169] In D.B.S. v.

S.R.G. 2006 SCC 37 , [2006] 2 S.C.R. 231 (S.C.C), the Supreme Court indicates that generally, childsupport is payable from the date of “effective notice.” This is the date when the topic of child support was first raised with the potentialpayor.

If the claimant did not give effective notice before “formal notice” was given, in other words before the claim for child supportwas filed with the court and served on the potential payor, then normally, the commencement date for child support is the date of formalnotice. [170] Even if effective notice of a claim for child support in this case was not given until October 2021, the Court has discretion to goback further if the result would otherwise be unfair. In making this determination, the Court is to consider: 1. The reasons for the delay in bringing the application on the part of the recipient 2.

The conduct of the payor 3. The circumstances of the child 4. Hardship to the payor resulting from an order pre-dating the filing of the application [171] With respect to reasons for delay in bringing the application for child support, the respondent was not represented by counsel.The applicant was providing money to her over the course of 24 months after separation.

It is reasonable to conclude that she may nothave made the distinction between spousal support and child support at the time of separation or in the period when she was receivingsupport. [172] With respect to the conduct of the applicant, it is apparent he took the position he did not stand in place of a parent to N.However, he was well aware the respondent was in need of support at separation for herself and N. He alone decided how much moneyhe was going to provide the respondent.

There is no evidence he provided financial disclosure to the respondent at any point. [173] With respect to the circumstances of the child, I accept the respondent’s evidence that she and the children experiencedfinancial difficulty in 2019 after the marriage ended. She has attached emails and texts in November and December 2019 and again inMarch 2020 in which she is asking the applicant for money.

She indicates he would withhold the payments he was making to try to gether to sign an agreement. [174] As for any hardship to the applicant that might result from an order being made for the period predating the claim in October2021, the applicant’s evidence is that he is now retired and his income is expected to be from CPP and OAS only as of April 2023. Healso says he has no access to credit. [175] However, he also conceded he can continue to work and earn income as needed. He lives rent free and does not pay for utilities.He does not have a car payment.

He continues to be entitled to half the net profits of the accounting business he says he turned over tohis son. [176] I am not convinced that there would be such hardship occasioned on the applicant that the Court should not make an order forchild support for N. predating the date of the claim. [177] I therefore find that the applicant’s child support obligation should commence as of April 1, 2019.

c) What is the appropriate amount of child support?

[178]

Section 5 of the Federal Child Support Guidelines states: Where the spouse against whom a child support order is sought stands in the place of a parent for a child, the amount of a child supportorder is, in respect of that spouse, such amount as the court considers appropriate, having regard to these Guidelines and any otherparent’s legal duty to support the child. (underlining added) [179] There is no evidence that N.’s biological father provides any support for N. The Court is unaware of any proceedings againstN.’s biological father with respect to support.

Practically speaking, it is highly unlikely any order for support made against N.’s fathercould be enforced. [180] I find the appropriate amount of child support is therefore the table amount pursuant to the Federal Child Support Guidelines. [181] In 2019 the applicant’s total income at line 150 of his T1 general tax form was $43,843, which results in a child support tableamount for one child of $364 per month.

For the nine months from April to December 2019 child support payable was $3,276. [182] In 2020 the applicant’s line 150 income was $38,073, which results in a child support table amount for one child of $308 permonth. Total child support payable for 2020 was therefore $3,696. [183] In 2021 the applicant’s line 150 income was $60,810, which results in a child support table amount for one child of $525 permonth. Total child support payable for 2021 was therefore $6,300. [184] Based on an income of $43,200 for 2022, as determined by the Court, the applicant’s child support table obligation was $358per month.

For 2022 the applicant therefore should have paid child support of $4,296. [185] For 2023, based on an income of $33,000 as determined by the Court, the table amount of child support is $261 per month. [186] Therefore for January and February 2023, child support payable was $522. [187] In total, the applicant should have paid child support of $18,090 for the period April 2019 to February 2023 inclusive.

Ongoing child support [188] Commencing March 1, 2023 the applicant shall pay the respondent child support for N.V.D., born […], 2004 in the amount of$261 per month based on an estimated income of $33,000, payable on the first day of each month thereafter until further order of theCourt. Exchange of financial information [189] Both parties shall exchange their income tax returns (T1 General tax return and notice of assessment or reassessment) on anannual basis, commencing June 30, 2023.

Issue 6– The respondent’s claim for spousal support [190] The Supreme Court of Canada has provided guidance on the objectives of spousal support in Bracklow v. Bracklow, (SCC), [1999] S.C.J. No. 14 and Moge v. Moge, (SCC), [1992] 3 S.C.R. 813, [1992] S.C.J. No. 107. [191] As stated in Bracklow 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 stipulated

objectives of support, and exercise his or her discretion in a manner that equitably alleviates the adverse consequences of the marriage breakdown. The Divorce Act and Family Relations Act, through their various provisions, accommodate both models of marriage and marriage breakdown outlined above. While the law has evolved to accept compensation as an important basis of support and to encourage the self-sufficiency of each spouse when the marriage ends, where compensation is not indicated and self-sufficiency is not possible, a support obligation may nonetheless arise from the marriage relationship itself.

Turning to the specific provisions, the factors judges must 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 may be appropriate in the circumstances of the case. [ 192 ] With respect to any agreements related to support, the applicant provided financial assistance to the respondent, however, I do not find there was an enforceable agreement on the amount and duration of support. [ 193 ] As noted, the parties’ period of cohabitation/marriage was a little over eight years.

This is a relatively short-term marriage. [ 194 ] In terms of the parties’ respective functions during the marriage, the primary income earner was the applicant. The respondent says the applicant had her bank account number and password and controlled all the money. I accept the respondent was dependent on the applicant financially. [ 195 ] The respondent was primarily responsible for maintaining the home, making meals and cleaning the house, until she went to Russia in 2017.

She did some work for R. and Associates Accounting Ltd. and also did some work painting nails. [ 196 ] It appears both the applicant and the respondent were involved with the children. The applicant cared for the children in the respondent’s absence. [ 197 ] Looking at economic advantages and disadvantages arising from the marriage or its breakdown, I accept the respondent’s work around the house and meal preparations contributed to the applicant’s ability to work full time.

The respondent also cared for the applicant after he had a stroke in 2015. [ 198 ] According to the respondent’s evidence, she was living in one small room with the children and they were sleeping on the floor and had no money for food or other necessities when the applicant found her in Russia. The respondent did enjoy a better standard of life during the marriage. [ 199 ] On separation the respondent had financial hardship, primarily in 2019, according to her evidence.

I find she suffered a loss of standard of living she and the applicant enjoyed during the marriage. [ 200 ] At the end of the marriage the parties had not accumulated savings or any real property other than the property in dispute. [ 201 ] The respondent kept the vehicle the parties used during the marriage, although the applicant borrowed it after separation. [ 202 ] With resect to the objective of self-sufficiency, the applicant testified he suggested the respondent apply for jobs, for example at the local Tim Hortons or at a grocery store, during the marriage.

However, he felt she had no real desire to find work and she did not go out to look for jobs. [ 203 ] The respondent said she did work for the accounting business during the marriage and she painted nails for friends. She says she could not be licensed as a hairdresser in New Brunswick because the applicant would say it cost too much to go to hairdresser school. [ 204 ] When asked on cross-examination what jobs she had applied for since separation, the respondent testified she feels she is capable of doing office work.

However, she says that because the applicant did not record her as an employee, she cannot obtain a record of her employment in the years she worked at the accounting business, and this has made it difficult for her to apply for that type of job. [ 205 ] She also testified she took some interpreter courses through the YMCA. However, she needed to work and did roofing work. [ 206 ] According to the applicant when they met in 2010 the respondent was able to communicate and had a basic background in English.

I accept the respondent’s evidence that her English was more limited during the marriage than it is now. [ 207 ] However, it appears the respondent’s ability to communicate and read and write in English is more than basic at this point in time. While I accept that the respondent wants to continue to improve her language skills, this does not seem to be her primary reason for not seeking full-time employment. Her evidence indicates because she trained as a veterinarian in Russia and feels she can do office work, she should not have to take minimum-wage employment. [ 208 ] The respondent is 45 years old.

She is still relatively young. She clearly is intelligent and has managed to acquire two properties that she values at $18,000 and $26,000 respectively. [ 209 ] While she deposes in response to the applicant’s evidence about his health problems that she has health issues as well, I do not find she is unable to work full-time. In my view the respondent is in a position at this point to obtain more remunerative full-time employment. [ 210 ] The applicant is now almost 70 years old. He testified to a great extent about his medical issues.

While he says he has “basically retired,” he continues to work, although he says less frequently than before. [ 211 ] I accept it is reasonable he would work less than before in light of his age. However, I also do not believe that he will be limited to CPP and OAS as of April 2023, and I have taken this into account in setting his income at $33,000 for 2023.

Amount/duration of support under SSAGs [ 212 ] The Spousal Support Advisory Guidelines (“the SSAGs ”) provide guidance to the Court with respect to the appropriate amount and duration of spousal support payable. [ 213 ] In the absence of any calculations from counsel for the applicant, I have run DivorceMate calculations to apply the SSAGs using the with-child formula, based on the parties’ incomes at separation and each year following to 2023. [ 214 ] The length of the marriage until separation was eight years and three months.

The SSAGs formula results in an indefinite (unspecified) duration due to the fact that child support is also payable. The minimum duration under the SSAGs would be four years and the maximum duration would be eight years from the date of separation. [ 215 ] In my view the respondent’s entitlement to support is primarily needs based or non-compensatory.

I do not find this an exceptional case where the SSAGs would not be applicable in considering duration or amount of support. [ 216 ] In terms of ranges of support the SSAGs indicate the following: 2019 Inputting the applicant’s 2019 income of $43,843 and the respondent’s 2019 income of $1,894, with child support for N. of $364 per month, the range of spousal support under the SSAGs is : Low Mid High $680/month $803/month $928/month Spousal support payable from April 2019 to December 2019 would therefore range from $6,120 to $8,352. 2020 Inputting the applicant’s 2020 income of $38,073 and the respondent’s 2020 income of $19,450, with child support for N. of $308 per month, the range of spousal support under the SSAGs is : Low Mid High $0/ month $0/month $0/ month Spousal support payable in 2020 therefore would be $0. 2021 Inputting the applicant’s 2021 income of $60,810 and the respondent’s 2021 income of $4,000 from employment and $11,760 from social assistance, with child support for N. of $525 per month, the range of spousal support under the SSAGs is: Low Mid High $964/ month $1,131/month $1,296/ month Spousal support payable in 2021 would therefore range from $11,568 to $15,552. 2022 Inputting $43,200 as the applicant’s income and $3,800 in income from employment and $11,160 in social assistance benefits for the respondent, with child support for N. of $358 per month, the range of spousal support under the SSAGs is: Low Mid High $1,028/ month $1,172/month $1,322/month Spousal support payable in 2022 would therefore range from $12,336 to $15,864. 2023 Inputting $12,000 from CPP, $12,000 from OAS and $9,000 from employment as the applicant’s 2023 income and inputting $3,800 from employment and $11,160 in social assistance benefits for the respondent with a child support obligation of $261 per month, the range of support generated by the SSAG’s is: Low Mid High $884/month $972/month $1,060/month For the three month period January 1, 2023 to March 2023 the range of support would be

$2,652 to $3,180. [217] Considering the length of the relationship, the ages of the parties at separation and currently, the age of N. (turning 19 in 2023),and the level of need of the respondent, I find that spousal support for a period of four years from separation at the high end of the rangeis appropriate. Using the high end of the range, based on the parties’ incomes in the 48 months after separation, as set out above, I findthe appropriate amount of support payable is $42,948. [218] The applicant paid $41,065 as support to or on behalf of the respondent in the 48 months after separation.

He therefore owes therespondent $1,883 as spousal support. Issue 7 - Should there be an order for sharing of special expenses for N.? [219] The respondent made a claim for sharing of special expenses, retroactive to the date of separation in her amended answer filedin October 2021. She indicates in her financial statement sworn October 18, 2021 that the net cost of special expenses claimed arehealth-related expenses (mental health services) of $3,120 and extraordinary primary or secondary school costs (for online studies) of$2,109.

No receipts or invoices were provided by the respondent for either of these claimed amounts. [220] The applicant did not respond to the claim for special expenses. I acknowledge the Court may treat the failure to respond to theclaim as a deemed admission, and may make an order for sharing of a special expense based on an estimate (See M.R. v. J.R., 2018NBCA 12 .) However, the onus is on the parent who seeks reimbursement for s. 7 expenses to provide proof to support theexpense. [221] In her affidavit sworn January 10, 2023 the respondent indicates that N. developed depression after the applicant left.

She saysshe cut her skin a lot and tried to commit suicide in 2019. She says she worked closely with the doctor and she has improved. [222] However, the respondent gave no evidence about the nature of the medical expense claimed, for example whether it was forcounselling, and if so with whom and when it occurred.

There is no evidence she raised the issue with the applicant. [223] The respondent did not provide any evidence about the claimed online learning costs. [224] In the circumstances I find there is an insufficient evidence to find that the claimed expenses should be ordered to bereimbursed on a pro rated basis.

Order for special expenses going forward [225] Commencing March 1, 2023, if there are expenses for N. while she remains a child of the marriage for which the respondentseeks reimbursement, she shall advise the applicant, and he shall pay his pro rata share of reasonable and necessary special expenses forN. as contemplated by

section 7 of the Federal Child Support Guidelines upon provision by the respondent of receipts to support theexpenses. [226] Using DivorceMate software and based on a current annual income for the applicant of $12,000 from CPP, $12,000 from OASand $9,000 in employment income as estimated by the Court, and an income for the respondent of $3,800 from employment and $11,160from social assistance, the applicant’s current pro rata share is 68.5 percent and the respondent’s share is 31.5 percent.

Issue 8 - Request that the respondent and N. be added to the applicant’s health and dental coverage [227] The respondent requests in the amended answer filed October 2021 an order that she and N. be maintained on the applicant’shealth and dental coverage plan. [228]

Section 6 of the Federal Child Support Guidelines states: In making a child support order, where medical or dental insurance coverage for the child is available to either spouse through his or heremployer or otherwise at a reasonable rate, the court may order that coverage be acquired or continued. [229] The Court does not know if the respondent and /or N. are eligible to be added to the applicant’s health coverage.

As is the casewith the special expenses, the applicant did not provide any response to this claim. [230] I shall order that the applicant add the respondent and N. to any medical and dental insurance coverage health coverage he has,and maintain them on it as long as they are eligible. [231] The additional cost to the applicant of adding N. to his medical/ dental plan is a special expense to be shared on a pro rata basisbetween the parties upon the applicant providing to the respondent proof of the additional cost to add N.

Issue 9 - Request that the applicant obtain life insurance to secure support [232] The respondent requests an order that the applicant maintain life insurance naming the respondent as the irrevocable beneficiaryof an amount not less than $200,000 to secure future spousal and child support payments. [233] While the Court has discretion to order a spouse to obtain life insurance to secure support, the Court should proceed carefullyand have evidence of the payor’s insurability, and the amount and cost of available insurance. (See Katz v.

Katz, 2014, ONCA 606CANLII.) [234] The applicant indicates in his financial statement sworn January 4, 2023 that he has no life insurance policies. The Court has noevidence as to the applicant’s insurability or the cost of available insurance. The amount requested, $200,000, would be substantiallyhigher than what would be required to secure support.

[ 235 ] I therefore dismiss the claim with respect to life insurance to secure support. Issue 10 - The property [ 236 ] The PAN information for the property in dispute is attached as Exhibit D to the applicant’s affidavit sworn September 2, 2020. It indicates the property was acquired for $1 in 2014. In 2019, 2020 and 2021 the property was assessed by SNB at $34,800.

The 2023 Service New Brunswick assessment is $40,600. [ 237 ] The applicant deposes in his affidavit sworn July 22, 2021 that the property does not have public access or rights of way. [ 238 ] In his January 4, 2023 affidavit the applicant deposes he and the respondent acquired the property from his son M.R.

He says it is very rocky and is surrounded by property owned by his son, with no access to road frontage. [ 239 ] The applicant says very little work was done to the property during the marriage. [ 240 ] The respondent’s evidence is that work was done to the land, including the removal of trees, and a hole was dug for a foundation. She deposes in her affidavit sworn February 1, 2021 a long gravel driveway was built up to the property. [ 241 ] The respondent says she and her children assisted with clearing the land, burning brush, etcetera. The applicant agreed this was the case.

Property taxes on the property [ 242 ] In his affidavit sworn September 2, 2020 the applicant deposes he paid $5,000 on the property tax since separation and there was still over $3,600 owing. He attaches a tax certificate dated September 2, 2020 as Exhibit C to his affidavit.

It indicates the 2020 levy was $881.73 and $3,618.60 was owing. [ 243 ] In response, the respondent deposed in her February 1, 2021 affidavit that on May 6, 2020 the applicant’s former counsel sent correspondence to the respondent indicating that property tax in an amount over $7,000 was owing on the property, and if it was not soon transferred to the applicant’s son, the property would be taken by the province for tax arrears.

The applicant’s former counsel wrote: …You had advised that you had no problem transferring it to [the applicant’s son M.R.] If this is true please contact me and we can arrange for you to sign the transfer to prevent the Tax sale. (See Exhibit D-6 to the respondent’s affidavit sworn February 1, 2021.) [ 244 ] The respondent continues in her affidavit evidence sworn February 1, 2021 that after she received the May 6, 2020 correspondence from the applicant’s lawyer and realized how much was owing in property tax, she made a payment of $3,000 on July 9, 2020 towards the amount owing.

She also arranged to pay a monthly amount of $321 towards the property taxes owing. She deposes as of February 2021 she paid $5,247 on the property taxes owing. [ 245 ] The respondent includes at Exhibit D-7 to her February 1, 2021 affidavit a copy of the receipt for payment of New Brunswick property tax of $3,000, dated July 9, 2020. She also attached to the affidavit copies of bank statements showing payments of $321 on August 5, 2020, September 8, 2020, October 5, 2020, November 5, 2020, December 7, 2020 and January 5, 2021. I accept these receipts and bank statements relate to the property. [ 246 ] In her am

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