This Month in New Brunswick Family Law – April 2023

This Month in New Brunswick Family Law – April 2023

May 19, 2023

GM v JG, 2023 NBKB 57

Justice Danys R.X. Delaquis

Subject Matter: Parenting Orders | Jurisdiction

The parties have a 5-year-old child, who was born in New York. The Applicant is a Canadian citizen living in Saint John and the Respondent is an American citizen living in New York. The child has dual citizenship.

The parties were never married and separated in June 2019.  The family lived in New Brunswick prior to separation. They signed an Agreement for the child to alternate monthly between Saint John and the United States. The Respondent initially relocated to Bangor, Maine and later to New York City. This Agreement was set to expire December 21, 2022, as it would need to be revisited for the child’s schooling.

On December 5, 2022, the Respondent filed a Petition for Custody in New York and proceeded to withhold the child on the advice of her New York counsel.

On December 30, 2022, the Applicant filed an Application in New Brunswick and a Petition for Custody in New York.

The issues at the hearing were whether the New Brunswick Court had jurisdiction, pursuant to section 68 of the Family Law Act (“the FLA”), to make or vary a Parenting Order regarding the child and whether the Court should decline to exercise jurisdiction over the matter pursuant to section 70 of the FLA.

The Court noted that this appeared to be a novel point in terms of whether a child could have dual residences under the FLA.

By the end of the hearing, the parties agreed that Justice Delaquis either had concurrent jurisdiction or that the child had two habitual residences. However, the Respondent submitted that the Court should decline to exercise jurisdiction pursuant to section 70 of the FLA.

In accordance with section 70, the Court may decline to exercise its jurisdiction if it is of the opinion that it is more appropriate for jurisdiction to be exercised outside the province.

The Court did not decline to exercise jurisdiction.

The Respondent argued that she filed her Petition in New York before the Applicant.  However, the Court found that the decision to decline jurisdiction should not be based on who races to the Court to file first.  The Court views were that this approach may equate for “forum shopping” in some cases and refused to condone this approach.

The Respondent also argued that the Applicant attorned to New York jurisdiction by filing his Petition and the Court disagreed.  The Applicant had not consented and specifically contested jurisdiction in his pleadings.

No weight was given to the forum clause in the Agreement as it had expired.

The convenient forum was essentially a stalemate, according to the Court. The child had extended family and siblings in both jurisdictions and was enrolled to attend Kindergarten in both jurisdictions. The fact that helped tilt the balance according to Justice Delaquis was that the child had spent more time in New Brunswick than New York since her birth because of the Respondents travels in the United States for work.

RG v GG, 2023 NBKB 60

Justice Robichaud

Subject Matter: Spousal Support | Termination | Change in Circumstances

The parties separated on December 1, 2015, after 20 years of cohabitation.

Throughout the relationship, the Applicant was the clear breadwinner while the Respondent was primarily responsible for maintaining the household, as well as raising

her two daughters from a previous relationship. She had ceased working in 2020 because of complex mental health issues.  Her only source of income was CPP disability.

The Applicant was ordered to pay support in the amount of $776 per month commencing December 2016.

In July 2020, the Applicant quit his employment and relocated to British Columbia to be with his family.  He had not secured employment in the area to date and his only source of income was CPP.  He did not advise the Respondent of his intention to terminate support.

The Applicant filed a Motion to Change to terminate his spousal support obligations effective September 1, 2020, and to cancel all existing arrears.

The Court found that the Applicant made a number of unilateral choices in an effort to sidestep his financial responsibilities. Justice Robichaud found that his actions cannot be relied upon to create a change in circumstances warranting the variation.

The Court also reduced the spousal support payable to $454 per month as of March 2023, but only because the Respondent generously proposed to reduce the amount payable until she attains the age of 65.

Justice Robichaud ordered that the arrears be enforced by the Office of Support Enforcement.

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