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MAINTENANCE AND SUPPORT - Spousal support - Calculation or attribution of income - Considerations - Effect of benefits from third parties - Effect of potential of claimant

Wednesday, June 28, 2017 @ 8:48 AM  


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Appeal by the husband from a ruling in respect of spousal support. The parties lived together for several years prior to marrying in 2002. They separated in August 2012. Their child, born in 2003, resided primarily with the wife. A September 2013 interim order required the husband to pay monthly child support of $813 and monthly spousal support of $2,125 based on a deemed income of $93,400. The husband made all payments. The parties agreed that the husband's current income for support purposes was $120,000 with a corresponding monthly obligation of $1,037. The wife sought child and spousal support retroactive to the date of separation. The trial judge concluded that no income was imputable to the wife on the basis of underemployment or undisclosed income in the form of monetary gifts from family members and her new partner. Throughout the parties' 15 years together, the wife was the child's primary caregiver while the husband was the family's sole income earner. She suffered ongoing health issues following treatment of breast cancer prior to separation. The wife was entitled to spousal support on a compensatory and non-compensatory basis from August 2013 onward for 11 years. The facts supported an award between the low and mid-range of the Guidelines, totaling $2,100 per month. Arrears totaled $1,400. The husband appealed the aspects of the judgment related to refusal to impute income for spousal support purposes.

HELD: Appeal dismissed. The trial judge did not err in concluding the evidence did not support a finding that the wife was intentionally unemployed. Given the wife's ongoing health problems arising from her numerous surgeries for breast cancer, there was little evidentiary basis for the husband's request to impute an annual income of $30,000. The trial judge did not err in declining to impute income to the wife based on her receipt of monetary gifts. The family gifts were originally advanced as loans made in the aftermath of separation, designed to ease the financial impact on the wife. Although the financial assistance provided by the wife's new partner was relevant to assessing the level and duration of spousal support, the trial judge properly found it did not provide a basis for imputing income. No basis for appellate interference was established.

J.N. v. A.L., [2017] N.B.J. No. 132, New Brunswick Court of Appeal, M.E.L. Larlee, B.V. Green and R.T. French JJ.A., June 8, 2017. Digest No. TLD-June262017005