Baker v. Baker, (2003) 218 N.S.R.(2d) 221 (SC)

• Judge: Stewart, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: September 16, 2003
• Jurisdiction: Nova Scotia
• Citations: (2003), 218 N.S.R.(2d) 221 (SC);2003 NSSC 203

Baker v. Baker (2003), 218 N.S.R.(2d) 221 (SC);

 687 A.P.R. 221

MLB headnote and full text

Temp. Cite: [2003] N.S.R.(2d) TBEd. NO.019

Robert Stanford Baker (applicant/petitioner) v. Sandra Ann MacDonald (Baker) (respondent)

(File No. 1201-10647; 2003 NSSC 203)

Indexed As: Baker v. Baker

Nova Scotia Supreme Court

Stewart, J.

September 16, 2003.

Summary:

Spouses divorced in 1976 after 9.5 years' marriage. The husband was ordered to pay $600 per month combined child and spousal support (four children). He paid nothing since 1978, having moved to British Columbia, then Oregon, without disclosing his location. In 1985, judgment was entered against him for $43,000 in arrears. The children were now adults. After the wife located him and commenced enforcement proceedings in Oregon, the husband applied to vary the support provisions of the divorce decree. Before his court appearance, he attempted to rearrange his finances to become judgment-proof (including a sham divorce from his current wife).

The Nova Scotia Supreme Court dismissed the husband's application. None of the support arrears were forgiven and provision was made, including security, for their payment. The wife's application for spousal support was allowed.

Family Law - Topic 4022.1

Divorce - Corollary relief - Maintenance awards - To spouse - Extent of obligation - Spouses divorced in 1976 - The husband disappeared to British Columbia and then Oregon, leaving his unemployed wife to care for their four children - The husband paid no support since 1978 - The wife located him and commenced enforcement proceedings in Oregon - The wife financially struggled to raise the children alone, relying on friends and family and living a meagre existence - Now, 26 years after the divorce, the 57 year old wife sought spousal support - The Nova Scotia Supreme Court awarded the wife $500 per month spousal support (grossed up 24% for income tax) - The court declined to make the order time-limited - See paragraphs 17 to 28.

Family Law - Topic 4050

Divorce - Corollary relief - Maintenance - Enforcement - Payment or cancellation of arrears of maintenance (incl. interest) - Spouses divorced in 1976 after 9.5 years' marriage - The husband was ordered to pay $600 per month combined child and spousal support (four children) - He paid nothing since 1978, having moved to British Columbia, then Oregon, without disclosing his location - In 1985, judgment was entered against him for $43,000 in arrears - The children were now adults - After the wife located him and commenced enforcement proceedings in Oregon, the husband applied to vary the support provisions of the divorce decree - Before his court appearance, he attempted to rearrange his finances to become judgment-proof (including a sham divorce from his current wife) - The Nova Scotia Supreme Court ordered the payment of all arrears, being the $45,000 fixed by the court as of 1985 and $130,200 accumulated since that time - The wife consistently sought to locate the husband and enforce payment - The husband's ability to pay, his wilful noncompliance with court orders and his blatant attempts to become judgment-proof militated against forgiving any of the arrears - The arrears were to be paid at a rate of $500 per month (U.S.) - The husband was to give security and was ordered to be imprisoned for six months unless arrears of $70,000 (Cdn) "are sooner paid" - See paragraphs 1 to 16.

Family Law - Topic 4054.5

Divorce - Corollary relief - Maintenance - Enforcement - Imprisonment - [See Family Law - Topic 4050 ].

Cases Noticed:

Smith v. Smith (2002), 207 N.S.R.(2d) 5; 649 A.P.R. 5 (C.A.), refd to. [para. 2].

Young v. Young (1976), 17 N.S.R.(2d) 375; 19 A.P.R. 375 (C.A.), refd to. [para. 6].

Kellar v. Wallbank (1993), 142 A.R. 214 (Q.B.), refd to. [para. 6].

Ryan v. Ryan (1992), 114 N.S.R.(2d) 255; 313 A.P.R. 255 (C.A.), refd to. [para. 8].

Reid v. Reid (1992), 12 B.C.A.C. 67; 23 W.A.C. 67; 68 B.C.L.R.(2d) 258 (C.A.), refd to. [para. 9].

Arsenault v. Arsenault (1995), 146 N.S.R.(2d) 67; 422 A.P.R. 67 (Fam. Ct.), refd to. [para. 10].

Jensen v. Jensen (1991), 106 N.S.R.(2d) 247; 288 A.P.R. 247 (T.D.), affd. (1992), 109 N.S.R.(2d) 106; 297 A.P.R. 106 (C.A.), refd to. [para. 12].

Connolly v. Connelly (1974), 9 N.S.R.(2d) 48; 47 D.L.R.(3d) 535 (C.A.), refd to. [para. 15].

Linton v. Linton (1990), 42 O.A.C. 328; 30 R.F.L.(3d) 1 (C.A.), refd to. [para. 15].

Sefa v. Sefa (1985), 31 Man.R.(2d) 252; 44 R.F.L.(2d) 328 (C.A.), refd to. [para. 16].

Moge v. Moge, [1992] 3 S.C.R. 813; 145 N.R. 1; 81 Man.R.(2d) 161; 30 W.A.C. 161, refd to. [para. 17].

Bracklow v. Bracklow (1999), 236 N.R. 79; 120 B.C.A.C. 211; 196 W.A.C. 211 (S.C.C.), refd to. [para. 17].

Huggins v. Huggins (2000), 183 N.S.R.(2d) 194; 568 A.P.R. 194 (C.A.), refd to. [para. 17].

Brockie v. Brockie (1987), 46 Man.R.(2d) 33 (Q.B.), refd to. [para. 24].

Gillis v. Gillis (1994), 130 N.S.R.(2d) 112; 367 A.P.R. 112; 3 R.F.L.(4th) 128 (S.C.), refd to. [para. 24].

MacIsaac v. MacIsaac (1996), 150 N.S.R.(2d) 321; 436 A.P.R. 321 (C.A.), refd to. [para. 26].

Counsel:

Patrick Burke, for the applicant;

Franceen Romney, for the respondent.

This application was heard on July 16-17, 2003, at Bridgewater, N.S., and on September 3, 4 and 11, 2003, at Lunenburg, N.S., before Stewart, J., of the Nova Scotia Supreme Court, who delivered the following judgment orally on September 16, 2003.