L.J.L., Applicant – v. –, 2023 NBKB 64

IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF MONCTON Neutral Citation Number: 2023 NBKB 064 File: FDM-707-2020 BETWEEN: L.J.L., Applicant – and – C.S.L., Respondent DECISION BEFORE: Madam Justice Colette d’Entremont AT: Moncton, New Brunswick DATES of hearing: March 1 and 2, 2023 DATE of decision: April 20, 2023 APPEARANCES: Daniel Gallant for the Applicant C.S.L., per se

D’ENTREMONT, J. INTRODUCTION [ 1 ] The Applicant father, L.J.L., is requesting the majority of the parenting time and sole decision-making responsibility with respect to two children. He is asking for the full table amount of child support from the mother and a proportionate sharing of special and extraordinary expenses. As well, Mr. L. is asking for one half of the equity in the jointly held marital home. Finally, he advances a request for an award of costs. [ 2 ] For her part, the Respondent mother, C.S.L., proposes an order reflecting a shared parenting arrangement and shared decision- making responsibility.

She proposes that the child support be calculated according to the shared parenting arrangement. She agrees that the special and extraordinary expenses should be shared proportionately. As to the division of the equity in the martial home, Ms. L. agrees that Mr. L. is entitled to this. However, she disputes the amount of money Mr. L. is asking from her and she argues that she and the children should be allowed to remain in the home until the children finish high school. Ms. L. is not agreeable to paying costs in favour of Mr.

L. [ 3 ] The matter is based on the Family Law Act , 2020, S.N.B., Chap. 23, the Marital Property Act , R.S.N.B., 2012, Chap. 107 and the Federal Child Support Guidelines , SOR/97-175 . FACTS [ 4 ] The parties met in 2006. Within four or five months, they commenced living together as a couple. By then, Ms. L. had a four- year-old child from a previous relationship named J. At the time, Mr. L. worked as a mechanic at Moncton Honda. [ 5 ] Shortly after, the parties were engaged and in 2009 they were married. [ 6 ] The oldest child from the relationship, H. was born in 2009.

Both parties were involved with the upbringing of the child. However, Ms. L. was at home and was not working at the time. When Mr. L. was home from work, he helped care for the child, the preparation of the child’s formula, and putting the child to bed. [ 7 ] Mr. L. spent time with J. He would engage in sports with J., especially with playing basketball. [ 8 ] In 2010, the young family moved from Moncton to Shediac. At the time, Ms. L. was employed at a special care home. She worked part-time and generally she worked evening shifts. As Mr. L. was available to care for the children while Ms.

L. worked, there was no requirement to hire childcare providers. [ 9 ] In 2012, the family moved to a triplex in Moncton. In April of that year, the couple’s second child, M., was born. Mr. L. continued to work as a mechanic in the Grand-Barachois area. [ 10 ] For her part, Ms. L. stayed at home for some time and cared for J., H., and M. When Mr. L. was at home, he would help with the care of the children by doing homework with the children, helping with the bedtime routine, and transporting the children, especially J. to the basketball games. [ 11 ] The family moved to another home in the Moncton area. Mr.

L. continued to work as a mechanic at different locations. Ms. L. continued to be a full-time parent at the house with the children. [ 12 ] Around 2014, Ms. L. started working as a personal support worker at the Birchmount Lodge. When Mr. L. was not working, he

would care for the children when Ms. L. was out working. Mr. L. and the children would go outdoors and play at local parks. Mr. L. continued to help the children with their homework. He was responsible for transportation. [ 13 ] In 2015, the family moved to another residence in Moncton. By then, Mr. L. continued to work as a mechanic. Around this time, he was employed at a the local Canadian Tire. As for Ms. L., she took on part-time shifts as a personal support worker at the Spencer Care Home. [ 14 ] Between 2015 and 2017, the couple’s relationship started to deteriorate. They had arguments, mostly due to Ms.

L. being gone for long hours during the evenings and nights. Ms. L. said she needed a girls’ night out. [ 15 ] By April of 2017, the family moved to another residence in Moncton. Mr. L. was still employed as a mechanic. Ms. L. worked at Spencer Manor in Riverview. [ 16 ] The family budget was tight, but they managed to make ends meet. By then, J. was 16 years old, H. was 8 years old, and M. was 3 years old. The younger children were at Ecole Le Sommet. Mr.

L. helped with the homework, and he attended the parent-teacher meetings. [ 17 ] In April of 2019, the parties bought their first home at 76 Mecca Drive in Moncton. The property was bought for $164,999. In order to finance the purchase, the parties took out a mortgage for $164,999 with the Bank of Nova Scotia. Tittle to the property was taken in joint tenancy. At the time of the trial on February 24, 2023, the outstanding amount on the mortgage was $164,143. [ 18 ] By the spring of 2019, Ms. L. was working as a personal support worker with Shannex on Morton Avenue in Moncton. Ms.

L.’s shifts were four days on and four days off. Mr. L. continued to work as a mechanic, mostly from Monday to Friday, 8 a.m. to 5 p.m. By then, the children attended daycare after school. As for the oldest child, J., he was in high school. J. and H. continued to play basketball. Mr. L. was responsible for transporting the children to and from their activities. [ 19 ] When the children were ill, Mr. L. took them to appointments with the family doctor. [ 20 ] The relationship between the parties continued to deteriorate. There were disputes and aggressivity between the parents.

Both parties had relationships outside the marriage. In May of 2020, they started living separate and apart under the same roof. [ 21 ] In October of 2020, Ms. L. had arrived late one night, Mr. L. was upset. There were arguments and aggressiveness between the parties. As a result of which the RCMP attended at the home and Mr. L. was asked to leave, which he did. A restraining order was put in place such that the parties could not contact each other. Mr. L. would not return to the home afterwards.

The matter was resolved with a peace bond which had expired by the time of the trial. [ 22 ] Following the separation in the spring of 2020, Ms. L. had exclusive possession of the marital home on Mecca Drive. At the time of the trial in early March of 2023, she continued to have exclusive possession of the home. [ 23 ] When Mr. L. left the home, he took a few personal items with him. He claims he left behind tools worth $5,000 as well as personal items having sentimental value, such as things given to him by his mother and documents relating to a son who passed away at birth.

He has since asked for the items, but they were not returned to him. For her part, Ms. L. testified that she had sent three garbage bags of things to Mr. L. and that she told him to come get his tools. He did not come. In her direct testimony, Ms. L. testified there was nothing in the house that belongs to Mr. L. Then in cross-examination, Ms. L. said that Mr. L. could have his tools. [ 24 ] Following the separation, Mr. L. went to reside with the person who would become his present partner. [ 25 ] After leaving the marital home on various occasions, Mr. L. attempted to call the children.

However, his telephone calls were not answered. Around this time, the two youngest children were taken out of school by Ms. L.

[ 26 ] Eventually, J. would be asked to leave the home by Ms. L. as he had had a dispute with her. For some time, J. would move to where Mr. L. was living. With time, he returned to reside with his mother. [ 27 ] On December 18, 2020, Mr. L. filed the within Application requesting parenting time with the children, a determination as to child support and a division of marital assets and debts. [ 28 ] The children remained in the primary care of Ms. L. However, Mr. L.’s understanding was that once he found a suitable place to live, the parties would share parenting time with the children. [ 29 ] Eventually, Mr.

L. rented a large two-bedroom basement apartment on Kingston Avenue in Moncton. He would remain at this place until August of 2021. Around this time, Mr. L. moved in with his present partner, and her daughter. They rented a place in Saint- Antoine. [ 30 ] On February 16, 2021, the Case Management Master of the Court of King’s Bench issued an order relating to this family. [ 31 ] The interim order provided that the parents have joint decision-making responsibility regarding the children. Ms. L. had the majority of the parenting time with the children. Mr.

L.’s parenting time was to be exercised every second weekend from Friday at 6pm to Monday morning when the children were returned to school. On the alternate week, Mr. L. had parenting time with the children during one overnight. The children would be returned to school the following day. Later, the parenting time exercised by Mr. L. was changed to every second weekend from Thursday afternoon to Monday morning. The order of February 2021 provided that Mr. L. would have more parenting time upon reasonable notice, as mutually agreed to by the parties.

This extra parenting time hardly ever occurred. [ 32 ] At the time, Mr. L.’s gross annual income was determined to be $52,395 based on a filed financial statement, and Ms. L.’s gross annual income was determined to be $14,376 based on her 2020 T4 slip. [ 33 ] Mr. L. was ordered to pay monthly child support of $753 starting March 1, 2021. The child care expenses incurred for the benefit of the children were shared proportionately such that Mr. L. paid 78% and Ms. L. paid 22%. [ 34 ] In the months following the said interim order, Mr. L. tried to telephone the children. Ms.

L.’s residence had no land line therefore Mr. L. had to call Ms. L.’s cellular phone. Whenever he managed to talk to the children, Ms. L. was in the background controlling their conversations. [ 35 ] One evening, Mr. L. received a message from J. to the effect that M. was crying and wanted to talk to him. An audio message was played in the courtroom with respect to a phone call between Mr. L. and M. The child is crying as she wants to talk to her father before going to bed. Ms. L. is in the background yelling and not allowing the child to speak to her father. [ 36 ] While the no contact order was in place, Ms.

L. came to Mr. L.’s apartment. This occurred in March of 2021. Mr. L. called the RCMP so that Ms. L. would leave the premises. Ms. L. is of the view that she and Mr. L. cannot communicate with one another. However, according to text messages entered into evidence, they communicate electronically. The communication is better now than when they separated. [ 37 ] Ms. L. testified that she takes the children on vacations throughout the Maritime provinces. She allows the children’s friends to come to her home. Ms. L. does activities with M. such as colouring, dancing, playing, and doing each other’s hair. Ms.

L. takes the children to Hop, Skip and Jump. They go bowling, four wheeling, biking, and roller blading. As well, they play cards and board games. [ 38 ] A Comparative Market Analysis was carried out on February 24, 2023, by Alexandre Maltais, real estate agent, with respect to 76 Mecca Drive in Moncton. According to Mr. Maltais, the market statistics relating to this property indicate an average selling price of $343,300, a high selling price of $374,900, a median selling price of $349,000 and a low selling price of $295,000. Further, Mr.

Maltais concludes that after comparing the subject property to similar properties that were on the market that recently sold and that failed to sell,

his analysis suggests a listing price of $339,900. Further, the New Brunswick real property assessment value as of January 1, 2023 indicates that the property is assessed at $243,500. [ 39 ] After Mr. L. moved out of the marital home, Ms. L. paid the monthly mortgage payments and the real property taxes. However, the principal amount of the mortgage has barely gone down. Ms. L. would like to remain in the house until the children finish high school. Presently, the house is five minutes from the children’s elementary school. [ 40 ] Mr.

L. now lives in a home in Saint-Antoine with his new partner, her daughter, as well as his partner’s mother and spouse. Mr. L. testified that this house can accommodate H. and M. and that he is willing to have the care of the children anytime. His partner helps transport the children to and from his home to Ms. L.’s residence. [ 41 ] Mr. L. is requesting that the children live primarily with him and visit Ms. L. every second weekend. On the other hand, Ms. L. proposes a shared parenting regime with a weekly rotation with the exchange being on Monday. [ 42 ] Presently, Mr.

L. earns $29 per hour working as a mechanic. His most recent financial documents indicate he earned $47,857 per year. [ 43 ] Ms. L. works full-time and earns $24 per hour. She works four days on and has four days off. She works primarily on weekends. Her most recent financial documents indicate she earned about $40,857 in the previous year. VOICE OF THE CHILD ASSESSMENT [ 44 ] Social worker, Elaine Howell, carried out a Voice of the Child Assessment with respect to the children, H. and M. Given her education, work history, and professional association, Ms.

Howell was qualified as an expert in the field of Voice of the Child Assessments and was allowed to give opinion evidence in this field at the trial. Her report dated February 23, 2023 was entered as evidence. Ms. Howell’s testimony was very much in line with her report. [ 45 ] At the time of the interview, M. was about 10 years old and was in grade 5 at a local school. She disclosed to Ms. Howell that she wanted to spend more time at her father’s house than the present

schedule of every second extended weekend visits which she and her brother were following. M. revealed that she did not get to see her father often enough and that things were better at her father’s house. M. wanted the visiting

schedule to be changed such that she would spend the majority of her time with her father and visit her mother on weekends. M. described that her father and his partner did activities with them, that they helped with homework, and joined the children when they were playing. M. also enjoyed the animals at her father’s residence. She liked the big backyard and the nearby woods. Regarding Mr. L.’s new partner, M. described her as nice and that the partner did activities with her and her brother.

M. also disclosed that she got along well with her father’s partner’s 11-year-old daughter. [ 46 ] With respect to her mother’s house, M. disclosed that she lived there with H., her older brother J., her mother, her mother’s partner, N. and N.’s 7-year-old daughter. M. revealed that at her mother’s house, she is usually alone, that there is not a lot to do at her mother’s house. M. explained that her mother works a lot and is very busy, and that her mother does not help with homework. [ 47 ] During her discussion with Ms. Howell, M. stated that her mother says negative things about her father.

M. said that her mom yelled and swore at her. In contrast, M. said if there was a dispute at her father’s residence, they would sit down, talk about it, and work things out. [ 48 ] M. did like the animals at her mother’s house. Finally, M. said that although she has a phone, she is not allowed to take her phone at her father’s house, nor is she allowed to call her father while at her mother’s house. [ 49 ] When Ms. Howell questioned H., he was 13 years old and in grade 8. H. explained that he liked the animals at his father’s house and the calmness of the country. H. disclosed to Ms.

Howell that he wanted to live at his father’s house as he was much happier there. [ 50 ] According to H., his mother did not do a lot of activities with him and that she was often on the phone, as she is always busy. H.

said he spent a lot of his time alone at Ms. L.’s home and he played a lot of video games at his mom’s house. He disclosed that he was not allowed to telephone his father when he was at Ms. L.’s residence. [ 51 ] Generally, H. felt safer at his father’s house as opposed to his mother’s house where he was sometimes afraid and stressed. [ 52 ] H. explained that at his father’s home, there was no swearing, mocking or ignoring and that people were kind at his father’s house. H. felt he was allowed to believe in God at his father’s house, but not at his mother’s house. [ 53 ] When asked to describe Ms.

L.’s partner, N., H. revealed that he gets grumpy and frustrated in the morning, that he vapes in the house, and swears around the children when he speaks. As for Mr. L.’s partner, H. said he liked her and said she was a good person. Generally, H. wanted to see his father more and wanted to live full-time at Mr. L.’s house. [ 54 ] Ms. Howell reported that Ms. L. attempted to influence M.’s views as to where she wanted to live. Both children were clear that they wanted to live with their father. Ms. Howell concluded that the children’s views were clearly expressed. Ms.

Howell described the children as articulate and mature. ISSUES [ 55 ] The issues in this matter include the following:

a) What should be the parenting order pertaining to the decision-making responsibility and the parenting time arrangement regarding the two children, H. and M.?

b) What should be the child support obligation?

c) What are the special and extraordinary expenses and how should they be apportioned between the parents?

d) What is the equity in the marital home and how should it be divided?

e) Should there be an award of costs? PARENTING ORDER [ 56 ] The request for a parenting order is governed by

section 50 of the Family Law Act 2020, S.N.B., Chap. 23, which provides that when the Court makes such an order, the Court should take into consideration only the best interests of the children. In determining the best interests of the children, the Court should consider all factors outlined in paragraphs 50(2)(

a) to (k), which read as follows: 50(2)In determining the best interests of the child, the Court shall consider all factors related to the circumstances of the child, including (

a) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including First Nations upbringing and heritage, (

b) the child’s needs, including the need for stability, given the child’s age and stage of development, (

c) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life, (

d) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent, (

e) the history of care of the child, (

f) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained, (

g) any plans for the child’s care, (

h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child, (

i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child, (

j) any family violence and its impact on, among other things,

(

i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child, and (

k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. [ 57 ] When considering these factors, the Court shall give primary consideration to the child’s physical, emotional, and psychological safety, security, and well-being. Subsection 50(4) of the Act provides that when analysing the impact of family violence under paragraph 2(j), the Court should take into consideration the factors outlined in paragraphs 50(4) (

a) to (h). [ 58 ] According to subsection 50(5) of the Act , when determining what is in the best interests of the children, the Court should not consider past conduct of an individual unless the conduct is relevant to the exercise of parenting time or the decision-making responsibilities.

Pursuant to subsection 50(6) of the Act , when allocating parenting time, the Court shall give effect to the principle that a child should have as much time with each parent in respect of whom the order would apply as is consistent with the best interests of the children. [ 59 ] Referring to the factors outlined in subsection 50(2) of the Act , and referencing the facts in this case, the following is my analysis. [ 60 ] As to the children’s cultural, linguistic, religious, and spiritual upbringing and heritage, including First Nations upbringing and heritage, the only two topics that were raised in relation to these factors are the children’s linguistic heritage and the religious upbringing.

Regarding the children’s linguistic heritage, the children attend a school where the language of teaching is the French language. I am not sure what language the family spoke at home, but in the audio recording and in some messages, the parties speak to each other in English or in French. As to the religious upbringing, H. told Ms.

Howell that he believed in God and that at his father’s home, he felt free to follow his beliefs. [ 61 ] Regarding the children’s needs, including the need for stability, given their ages and stages of development, I conclude that both parents are able to meet the children’s basic needs of housing, food, clothing, and nurturing. As to the need for stability, while the children were growing up, this young family moved numerous times, renting different residences in different communities. The family stopped relocating when the marital home was bought. Ms. L. still lives in this home. As for Mr.

L., he and his partner have been residing in Saint-Antoine for a number of years. By now, the children should be comfortable in his home as they have visited him many times at this residence. Regardless of the outcome of this matter, the children will continue to attend the same schools. [ 62 ] With respect to the nature and strength of the children’s relationship with each parent, each of the children’s siblings and grandparents and any other person who plays an important role in their lives, I will address all of these relationships.

In my view, the children, H. and M., have a strong relationship with each parent. They have a good relationship with each other. As well, they have a good relationship with their stepbrother, J., who also resides at their mother’s house. The children appear to have a good relationship with their parents’ new live-in partners. The partners appear to be quite involved with the children. Mr. L.’s partner is responsible for doing a lot of the transportation of the children. Ms. L.’s new partner described himself as a live-in babysitter as he was responsible for the children when Ms.

L. went to work. [ 63 ] The next criteria to consider is each parent’s willingness to support the development and the maintenance of the children’s relationship with the other parent. The evidence discloses that Ms. L. was unwilling to allow the children to call Mr. L. when the children were in her care. When they were finally allowed to call their father, Ms. L. was hovering in the background and limiting the children’s ability to speak with their father. Up to the beginning of the within trial, Ms. L. was opposing Mr.

L.’s request for additional parenting time. [ 64 ] As to the history of the care of the children, when they were little, Ms. L. was at home with them when she was not employed outside the home. As they became older, she commenced working part-time on evenings and weekends such that Mr. L. was the person who cared for the children. Eventually, when the children attended school, Ms. L. returned to work and the children were in daycare after the school hours. As for Mr. L., he was employed when the children were growing up. His work hours were mostly 8 am to 5 pm from Monday to Friday.

When he was home, he helped with the care of the children. [ 65 ] With respect to the children’s views and preferences, given the testimony of Ms. Howell, I am satisfied that they are old enough

and mature enough to give their views on these topics. In this regard, the children have both said that they want to see their father more often, and they would like to live with him full-time and visit Ms. L. [ 66 ] As to the plans for the children’s care, the oldest child, H., is 13 years old and M. is 10 years old. Presently, while at their mother’s house, they are cared for by her new partner if Ms. L. is working shiftwork, otherwise, she is at home to care for the children. [ 67 ] As for Mr.

L.’s schedule, he works an 8 to 5 shift on weekdays and is mostly present for the children when they are at home. [ 68 ] As to the parents’ ability and willingness to care for and meet the needs of the children, I conclude that both parents can meet the basic needs of housing, food, clothing, nurturing and education of the children. They are also both willing to meet these needs. [ 69 ] As to the parents’ ability and willingness to communicate and cooperate with one another on matters affecting the children, I believe they can communicate electronically with each other.

They have difficulty speaking to one another; however, I believe that communication and cooperation has improved since the happening of the events surrounding the separation a number of years ago. [ 70 ] As to the family violence, the evidence discloses that in the months leading to the separation in 2020, there were arguments and aggressiveness on the part of both. This was also at a time when the parties were living separate and apart under the same roof. The events leading to the physical separation in October of 2020 resulted in Mr. L. being asked to leave the residence by the RCMP.

The parties were then restrained from having contact with each other. Eventually, the matter was resolved with a peace bond. [ 71 ] Since the event of late 2020, the parties have remained apart. The friction has settled down and there have not been any further incidents, other than Mr. L. calling the RCMP when Ms. L. went to his residence. Despite these events, I conclude that both parents can care for and meet the needs of the children.

I do not believe that the children’s safety is in danger or that they fear for their safety. [ 72 ] Regarding civil or criminal proceedings, orders, conditions, or measures relevant to the children’s safety, security and well-being, there are no longer any such orders in place. The restraining order and peace bond previously in place have both expired. [ 73 ] In the end, I conclude that both parents are equally capable of caring for the children and ensuring that their needs are met, that they are nurtured, that they go to school and become productive members of society.

When the initial interim order was made in February of 2021, Mr. L. had no residence that would accommodate the children. Consequently, the order provided that Ms. L. have the vast majority of the parenting time. Since then, Mr. L. has found a residence which is appropriate for him, the children, his partner and her child. [ 74 ] I recognize that the children have voiced that they would like to live mostly with Mr. L. However, the views and preferences of the children is but one factor in the analysis of the best interests of the children.

Changing the living arrangements of the children from living primarily with Ms. L., to living primarily with Mr. L. is too much of a change for the children at this juncture. [ 75 ] The ultimate criteria is what is in the best interests of the children. Considering my conclusions in the previous paragraphs, Ms. L. and Mr. L. are equally capable of caring for the children and contributing to their development and upbringing.

It is in the best interests of the children that they be in an arrangement whereby the parents have equal parenting time with the children and the parents share decision making responsibilities. [ 76 ] Next I must determine the parenting time schedule. Mr. L. works from 8 am to 5 pm on weekdays and Ms. L. works four days on and four days off, she works days and nights and sometimes on weekends. Initially, I had considered imposing a

schedule following Ms. L.’s work schedule, such that on the four days that she is not working, the children would be in her care. I mention this as both parties are delegating too much of their parental responsibilities to their new partners. The parent who has parenting time should be present as much as possible. I understand that this is difficult given the various work schedules of the parties. Given the ages of the children, 13 and 10 years of age, I have concluded that they should spend seven days at one parent’s house followed by seven days at the other parent’s home.

The exchange will be on Monday morning at school. In the event that there is no school on Monday, then the exchange will be at 9 am at each parent’s home. The receiving parent will be responsible for transporting the children. When attending at the other parent’s home, to pick up the children, the parent will remain inside his or her motor vehicle.

[ 77 ] The parties shall share parenting time with the children on holidays such as Christmas Day, the Christmas break from school, the Easter period, and the March Break. The children will spend Mother’s Day with their mother and Father’s Day with their father. CHILD SUPPORT [ 78 ] As for the child support obligation, given that this is a shared parenting time arrangement,

section 9 of the Federal Child Support Guidelines is applicable. It reads as follows: 9 Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account (

a) the amounts set out in the applicable tables for each of the spouses; (

b) the increased costs of shared custody arrangements; and (

c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought. [ 79 ] I am also cognizant of the principles enunciated by the Supreme Court of Canada in Contino v. Leonelli-Contino , 2005 SCR 63, in relation to how to determine the quantum of child support in the context of a shared parenting arrangement. [ 80 ] The decision Travis John Wetsch v. Holli Anne Kuski , 2017 SKCA 77 , contains a good description as to how to carry out the determination of child support in the context of a shared parenting order.

Paragraph 121 is helpful in this regard and it reads as follows: In Tonita v Fenske , 2009 SKQB 443 , 78 RFL (6th) 84 , Gunn J. helpfully summarised the approach to be taken under s. 9 in light of the analysis called for in Contino : [31] In Professor Rollie Thompson’s annotation to the Contino decision he summarizes the step-by-step analysis laid out by Justice Bastarache as follows:

(1) Determine the Simple Set-Off Amount . ...

(2) Review the Child Expense Budgets . A court must look at the parents’ actual spending patterns, based upon child expense budgets, and not just make assumptions about spending. Further, a court should look at all the expenses of both parents under s. 9 (b); not just the additional expenses resulting from an increase in access, not just the variable or fixed expenses, not just the expenses of the recipient parent. Under s. 9(b), a court has two concerns: (

i) the overall increased total costs of child-rearing for both parents, especially duplicated costs; and (ii) any disproportionate assumption of spending by one parent or the other (paras. 52-53). These expenses should be “apportioned between the parents in accordance with their respective incomes” (para. 53), to “verify” the setoff (para. 77) and to determine “the need for significant adjustments to the set-off amounts” (para. 78).

(3) Consider the Ability of Each Parent to Bear the Increased Costs of Shared Custody and the Standard of Living for the Children in Each Household. The consideration of these two factors lies at the heart of the s. 9(

c) analysis, set out at paras. 54-72, especially paras. 69-70. In assessing each parent’s ability to bear the increased costs of shared custody, a court should look at the income levels of each parent, the disparity in incomes, and the assets and liabilities of each. The child’s standard of living in each household is “particularly useful for the exercise of discretion in a predictable manner” (para. 70). The children should not experience “a significant variation in the standard of living ... as they move from one household to another” (para. 51). As the term “household” is used, the incomes and resources of new partners in each household would presumably be relevant.

(4) Distinguish Between Initial Orders or Agreements and Variations . “An application that represents a variation of a prior support arrangement will usually raise different considerations from a s. 9 application where no prior order or agreement exists.” (para. 55) A recipient parent “may have validly incurred expenses based on legitimate expectations about how much child support would be provided”, especially for fixed costs (para. 55).

[ 81 ] Firstly, with respect to paragraph 9 (

a) of the Federal Child Support Guidelines , I should consider the amounts set out in the applicable tables while taking into consideration the annual incomes of the parties. Ms. L. has an annual income of $40,857. According to the applicable tables, her child support obligation for two children would be $593 per month. Mr. L.’s annual income is $47,857. His child support obligation for two children would be $692 per month. The difference between these amounts is $99 per month. [ 82 ] Regarding paragraph 9(

b) of the Federal Child Support Guidelines , I must look at the increased cost of a shared parenting arrangement. At this stage, the residence of the mother as well as the residence of the father can accommodate the children. Each home has bedrooms and beds for the children. Both parties have clothing for the children in their respective homes. During the trial, neither party raised the issue of elevated cost relating to a shared parenting arrangement. [ 83 ] Paragraph 9 (

c) of the Federal Child Support Guidelines requires that I consider the condition, means, needs and other circumstances of each spouse and of any child for whom support is sought. In the within matter, there were no child focus budgets filed by the parties, contrary to what is required. However, I have looked at the incomes of the parties and their respective budgets as provided in their filed Financial Statements. [ 84 ] Taking into consideration the analysis required under

section 9 of the Federal Child Support Guidelines , I am of the view that the monthly sum of $99, derived by the set-off analysis, is appropriate in the circumstances. Therefore, starting on May 1, 2023, and on the first day of every month thereafter, Mr. L. shall pay $99 per month in favour of Ms. L. as child support for the benefit of the two children. SPECIAL OR EXTRAORDINARY EXPENSES [ 85 ] There are no special or extraordinary expenses identified during the trial. Ms. L. argues that she did not register the children in community sport activities as Mr. L. would not pay for these expenses.

At all relevant times, Mr. L. was paying the table amount of child support. I remind the parties that the monthly child support amount has a component built in to cover the cost relating to the participation of children in community sports. [ 86 ] The special and extraordinary expenses are governed by

section 7 of the Federal Child Support Guidelines . Subsection 7(2) provides that special and extraordinary expenses are shared by the spouses in proportion to their respective annual incomes after deducting from the expense, the contribution, if any, from the child. [ 87 ] Taking into consideration an annual income of $47,857 for Mr. L. and an annual income of $40,122 for Ms. L., the proportionate sharing formula is the following: $47,857 X 100% = $47,857 X 100% = 54% $47,857 + $40,122 $87,979 [ 88 ] Therefore, Mr. L. shall pay 54% of any future special or extraordinary expenses. For her part, Ms.

L. shall pay 46% of the same. MARITAL HOME AND MARITAL DEBTS [ 89 ] The parties agree that the equity in the jointly held marital home should be divided equally. The evidence as to the value of the marital home includes the provincial assessed value produced by the Province of New Brunswick and the comparative Market Analysis produced by Alexandre Maltais. The provincial assessment indicates that the latest assessed value of the property was $243,500. The Comparative Market Analysis indicates that a realistic list price for the property is $339,900. [ 90 ] The decision of LeBouthillier v. LeBouthillier

(1992) CanLII 4211 NBCA, indicates that in some cases, the property assessment produced by the Province of New Brunswick may be used when determining the value of a residence in the context of a division of marital assets. However, generally, the provincial property assessment does not reflect the true market value of real property. A property appraisal carried out by an independent professional appraiser produces a better determination of the true value of real estate. In this case, I am of the view that the Comparative Market Analysis produces a more accurate value of the marital home. [ 91 ] In L.T.G. v.

C.J.G. , 2011 NBCA 12 , the New Brunswick Court of Appeal dealt with the valuation date and the value of the

marital home to be used when dividing marital assets and debts. In paragraph 8 of the said decision, the Court recognized that a proper approach was to use the evidence of the appraiser as of the date of the trial and then subtract the cost of renovations carried out on the property after the separation. [ 92 ] In the within matter, the value to be attributed to the house is that which was produced by the Comparative Market Analysis. It indicated a value of $339,900.

There is no evidence of renovations carried out after the date of separation. [ 93 ] The outstanding balance on the mortgage has not changed very much from the date of the purchase of the property to the date of the trial. For the purposes of this calculation, I will use the outstanding balance of $164,143. [ 94 ] Applying these numbers, the following depicts my calculation in relation to the equity in the marital home. Value of home: $339,900 Less outstanding mortgage: $164,143 $175,757 Divided by two: $ 87,879 [ 95 ] Therefore, I have determined that Mr. L.’s share of the marital home is $87,879. [ 96 ] Ms.

L. has indicated that she would like to remain in the house for some time. Therefore, Ms. L. has thirty days from this decision to buy out Mr. L.’s interest in the home and to have the bank discharge Mr. L. from all obligations flowing from the mortgage registered against the property. [ 97 ] In the event that the said amount of $87,879 is not paid to Mr. L. within 30 days of this decision, then the property, located at 76 Mecca Drive, shall be listed for sale and sold for a reasonable price. Following the sale of the said property, Mr.

L.’s share as determined in the above paragraphs shall be paid from the proceeds of the sale. OTHER ITEMS [ 98 ] During his testimony, Mr. L. requested that Ms. L. return personal items received from his mother and relating to a deceased son. As well, he is asking that she return his tools. During cross-examination, Ms. L. agreed to return the tools. [ 99 ] Therefore, I order that Ms. L. return the tools to Mr. L. In the event that Mr. L.’s said personal items still exist, these shall also be returned to Mr. L. COSTS [ 100 ] Mr.

L. requested an award of costs in the event that he was successful. [ 101 ] Rule 59 of the Rules of Court of New Brunswick deals with the issue of costs. This rule reads as follows: 59.01 Authority of the Court

(1) Subject to any Act and these rules, the costs of a proceeding or a step in a proceeding are in the discretion of the court and the court may determine by whom and to what extent costs shall be paid.

(2) Nothing in this rule shall be construed so as to interfere with the authority of the court (

a) to fix the costs of a proceeding, or a step in a proceeding, with or without reference to a tariff, instead of requiring assessment of the costs, (

b) to allow or refuse costs in respect of a particular issue or part of a proceeding, (

c) to order costs to be assessed on a solicitor and client basis, or (

d) where parties are entitled to costs from each other, to order set-off of the costs. 59.02 Costs of a Proceeding In fixing costs, the court may consider (

a) the amount claimed and the amount recovered, (

b) the apportionment of liability, (

c) the complexity of the proceeding, (

d) the importance of the issues, (

e) the conduct of any party which tended to shorten or unnecessarily lengthen the duration of the proceeding, (

f) the manner in which the proceeding was conducted, (

g) any step in the proceeding which was improper, vexatious, prolix or unnecessary, (

h) any step in the proceeding which was taken through over-caution, negligence or mistake, (

i) the neglect or refusal of any party to make an admission which should have been made, (

j) whether or not two or more defendants or respondents should be allowed more than one set of costs, where they have defended the proceeding by different solicitors, or where, although they defended by the same solicitor, they separated unnecessarily in their defence, (

k) whether two or more plaintiffs, represented by the same solicitor, initiate separate actions unnecessarily, and (

l) any other matter relevant to the question of costs.

[102] With respect to costs, the following passages found in Rademaker v. Rademaker, 2002 NBCA 47, give some guidance on thequestion of costs in family matters. Paragraphs 27 and 28 read as follows: 27 The only remaining issue is that of costs. In Simms v. Simms (1996), (NB CA), 182 N.B.R. (2d) 362 therespondent cross-appealed the award of costs.

The trial judge had awarded costs of $10,000.00 in addition to suit money of$7,500.00, which the respondent submitted were inordinately low considering the length of the trial, the interlocutoryproceedings, the complexity of the issues and particularly, the amount of marital property involved. $707,314.00. Hoyt C.J.N.B.made the following comment at para. 14: The trial lasted four days. Apart from two consent orders contained in the Appeal Book, we were not made aware of thenumber or nature of the pre-trial application. Mrs. Simms did not call direct expert evidence about the most complex issue,valuation.

I can see no reason to invoke Tariff A of Rule 59 of the Rules of Court to determine costs at trial in family matters. Itsuse might often upset an otherwise delicate division of marital property. Frequently, as here, not all marital property or its valueis in issue. Most important, however, is the nature of the resolution of family disputes. Rules 72, 73 and 74 recognize that familymatters are considered under a different regime than most other civil disputes. I can see no reason to introduce the rigidity ofTariff A of Rule 59 to marital property disputes.

In my view, costs of $17,500.00 for this four-day trial are reasonable. 28 In the case before us the trial judge made no award as to costs after the four-day hearing even though there was aconsiderable amount of property involved. Furthermore he gave no reasons for not allowing costs. I agree that in cases involvingfamily disputes regarding the custody and access of children and child and spousal maintenance orders awarding costs underRule 59 may generally not be appropriate.

However in cases where division of property is at issue and an amount involved iseasily determined, as in a civil case, then it is appropriate to apply the Tariff under Rule 59. [103] This was a two-day trial. The contentious issue was the parenting time and decision-making responsibility relating to the twochildren and prospective child support. The other issue included the division of the equity in the marital home. [104] All in all, I am of the view that both parties had some success, however, Mr. L. had more success. This is because since theInterim Consent Order, Mr.

L. has tried to get more parenting time with the children. This was opposed by Ms. L. until thecommencement of the trial. As well, since the separation, Mr. L. has tried to get one-half of the equity in the marital home, which is astraightforward calculation. Ms. L. did not cooperate in this regard. [105] The determination of costs is at the discretion of the trial judge. Given that Mr. L. has had more success in this matter, he isentitled to an award of costs of $2,500. DISPOSITION [106] I order as follows:

a) The parties shall have joint decision-making responsibility regarding the children, H. and M. The parties shall have shared parentingtime regarding the children with the children rotating from one home to the other on a weekly basis. The exchange shall be on Mondaymorning at the children’s school or at each other’s residence when there is no school. The receiving parent shall be responsible fortransporting the children to his or her home. When attending at the other parent’s home, to pick up the children, the parent will remaininside his or her vehicle.

b) Mr. L. shall pay child support of $99 per month in favour of Ms. L. starting May 1, 2023, and payable on the first day of every monththereafter until further order of the court.

c) Mr. L. shall pay 54% of any special or extraordinary expenses. Ms. L. shall pay 46% of any special or extraordinary expenses.

d) Ms. L. shall pay the sum of $87,879 in favour of Mr. L. resulting from the division of the marital home and outstanding mortgage onthe property. This amount shall be paid to Mr. L. within 30 days of this decision. In the event that the said amount is not paid, the maritalhome located at 76 Mecca Drive in Moncton shall be listed for sale and sold for a reasonable price. Mr. L. shall then receive his share of$87,879, from the proceeds of the sale.

e) Ms. L. shall provide Mr. L. with his tools, the personal items which he received from his mother, and the documents relating to the couple’s deceased son.

f) The parenting time with the children during the holidays, such as Christmas, Christmas break, March break, and Easter shall be shared by the parties. The children shall spend Mother’s Day with their mother and they shall spend Father’s Day with their father.

g) The parties shall exchange their income tax returns every year on the last day of May, starting May of 2023, so long as there is an obligation to pay child support.

h) Given that Mr. L. has had more success in this matter, he is entitled to an award of costs of $2,500. DATED at Moncton, New Brunswick this 20 th day of April 2023. ___________________________________ Colette d’Entremont Justice of the Court of King’s Bench New Brunswick, Family Division