2011 NBCA 25, 2011 NBCA 25

COURT OF APPEAL OF NEW BRUNSWICK 90-10-CA DUANE DOUGLAS MacDONALD APPELLANT DUANE DOUGLAS MacDONALD APPELANT - and - - et - KIMBERLEY DAWN MacDONALD RESPONDENT KIMBERLEY DAWN MacDONALD INTIMÉE MacDonald v. MacDonald, 2011 NBCA 25 MacDonald c.

MacDonald, 2011 NBCA 25 CORAM: The Honourable Justice Larlee The Honourable Justice Quigg The Honourable Justice Green CORAM : L’honorable juge Larlee L’honorable juge Quigg L’honorable juge Green Appeal from a decision of the Court of Queen’s Bench: June 6, 2010 Appel d’une décision de la Cour du Banc de la Reine : Le 16 juini 2010 History of Case: Historique de la cause : Decision under appeal: 2010 NBQB 215 Décision frappée d’appel : 2010 NBBR 215 Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : S.O.

Appeal heard: February 22, 2011 Appel entendu : Le 22 février 2011 Judgment rendered: March 24, 2011 Jugement rendu : Le 24 mars 2011

Reasons for judgment by: The Honourable Justice Larlee Motifs de jugement : L’honorable juge Larlee Concurred in by: The Honourable Justice Quigg The Honourable Justice Green Souscrivent aux motifs : L’honorable juge Quigg L’honorable juge Green Counsel at hearing: Duane Douglas MacDonald appeared in person Kimberley Dawn MacDonald appeared in person Avocats à l’audience : Duane Douglas MacDonald, a comparu en personne Kimberley Dawn MacDonald, a comparu en personne THE COURT The appeal is dismissed without costs. LA COUR L’appel est rejeté sans dépens.

The judgment of the Court was delivered by LARLEE, J.A. [1] This appeal arises from prolonged and bitter family litigation lasting seven years, one year longer than themarriage itself. The parties signed two consent orders. The order under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) settled all issuesrelating to custody, access, and child support. The order pursuant to the Marital Property Act, S.N.B. 1980, c. M-1.1, settled the divisionof marital property and debts.

The motion judge found there had not been a material change in circumstances since the making of theorder relating to the custody of the children, and therefore refused to vary the order. She also refused to set aside the order dealing withmarital property; more particularly, she refused to reimburse the appellant a portion or all of the pension funds paid by his employer tothe respondent. [2] The parties were self-represented at trial and at the appeal.

Before us, the appellant applied to admitnumerous documents as fresh evidence in support of his contention that the consent orders were fundamentally unfair to him, and that heentered into them under duress and with inequality of bargaining power. In the panel’s view, the material proffered as fresh evidence didnot meet the test for admissibility (see R. v. Palmer, (SCC), [1980] 1 S.C.R. 759, [1979] S.C.J. No. 126 (QL); D.L.M. v.J.A.M., 2008 NBCA 2, 326 N.B.R (2d) 111; P.R.H. v.

M.E.L., 2009 NBCA 18, 343 N.B.R. (2d) 100, paras. 39-42). [3] In particular, we were not satisfied the evidence in question would have affected the outcome. We, therefore,dismissed the motion to adduce fresh evidence.

[4] The appellant and respondent were married in 1997, separated in 2004, and divorced in 2008. They have twochildren aged 9 and 11. In 2004, a judge of the Court of Queen’s Bench granted an interim order giving primary physical custody of thechildren to the respondent, with scheduled access to the appellant. The parties agreed to a consent order (signed January 2008) whichdealt with custody, access, child support, and contributions to special and extraordinary expenses. A second consent order signed by theparties (effective October 29, 2004) dealt with marital property and debts.

There have been numerous proceedings in the Court ofQueen’s Bench since the execution of the orders. [5] The motion which is the subject of this appeal was heard in June 2010. The hearing lasted three days.

Themotion judge found no basis on which to set aside or vary either consent order. [6] The appellant submits the motion judge erred in not: (1) recognizing that he signed the October 29, 2004consent order and the January 2, 2008 consent order under duress, and while under undue influence and in circumstances reflectingunconscionability and inequality in bargaining power; (2) recognizing that a material change in circumstances has occurred since thesigning of both consent orders in order to allow a variation in custody; and (3) awarding him the sum of $32,728.65 due to an unequaldivision of assets.

Finally the appellant argues the motion judge erred by giving unfair assistance to the respondent at the hearing. [7] The standard of review that applies to family matters generally is that the judge’s decision must be givenconsiderable deference. An appellate court is empowered to set aside or vary a decision or order where it is the product of an error oflaw, an error in principle, a significant misapprehension of the evidence or if it is clearly wrong (see Hickey v. Hickey, (SCC), [1999] 2 S.C.R. 518, [1999] S.C.J. No. 9 (QL) para. 11; Van de Perre v.

Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014; Savoie v.Levesque, 2009 NBCA 47, [2009] N.B.J. No. 282 (QL); Ms. P.H. v. Mr. P.H., 2008 NBCA 17, [2008] N.B.J. No. 52 (QL); Milton v.Milton, 2008 NBCA 87, 338 N.B.R. (2d) 300, para. 14.; J.E.J. v. S.L.M., 2007 NBCA 33, [2007] N.B.J. No. 249 (QL), para. 35; S.H. v.V.B., 2007 NBCA 69, 321 N.B.R. (2d) 314, para. 2). [8] From the motion judge’s reasons for decision, it is clear she understood the law with respect to duress andundue influence regarding separation agreements: she relied on Lietz v. Lietz (1990), (NB KB), 111 N.B.R. (2d) 128(Q.B.), [1990] N.B.J.

No. 1003 (QL), in which Riordon J. dealt with a similar situation. She considered the following facts: the appellanthad a lawyer at various times during the periods following the separation, he had the intelligence to appreciate the nature andsignificance of the agreement reflected in the consent order, and he had a job with the federal government (he worked for the past 15years for Public Works and Government Services Canada, Pension Division). The motion judge found there was no evidence of anyduress or the exercise of undue influence on the appellant by the respondent.

The motion judge was of the view that the financial stressthe appellant found himself under following separation was no different than most others in the same situation. She concluded he was notunder duress or undue influence when he signed the consent order. The motion judge made findings of fact which were open to her tomake on the evidence, and she came to a conclusion that is untainted by any reversible error (see Hartshorne v. Hartshorne, 2004 SCC22, [2004] 1 S.C.R. 550 in which Bastarache J. cautions courts to be reluctant to second-guess the arrangement on which parties arereasonably expected to rely).

Competent negotiation skills on the part of the respondent’s lawyer cannot be confused with the legalnotions of undue influence and inequality of bargaining power. I would not disturb the trial judge's findings and, therefore, the division ofthe pension and other marital property contained in the consent order must stand. [9] With respect to the consent order dealing with custody, the motion judge found the threshold had not beenmet to demonstrate a material change in the circumstances of the children, or the parents’ ability to meet their needs, since the signing ofthe January 2008 consent order.

Accordingly, there was no requirement to embark on a fresh inquiry as to the “best interests of thechildren”. This disposition reflects a correct application of the law to the facts as found by the motion judge (see Gordon v. Goertz, (SCC), [1996] 2 S.C.R. 27, [1996] S.C.J. No. 52 (QL)). In my view the motion judge’s reasons adequately address thepertinent criteria.

Applying the standard of review enunciated in Van de Perre, there is no basis for intervention on appeal. [10] Finally, there is nothing in the record, including the transcript of the three-day hearing, to persuade me theappellant was denied a fair trial. This ground of appeal must fail. [11] For these reasons, I would dismiss the appeal without costs. ____________________________________ M.E.L. LARLEE, J.A.

WE CONCUR: ____________________________________ KATHLEEN A. QUIGG, J.A. _____________________________________ BRADLEY V. GREEN, J.A.