Bastarache v. Bastarache, (1975) 11 N.B.R.(2d) 564 (QB)

• Judge: Stevenson, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: September 16, 1975
• Jurisdiction: New Brunswick
• Citations: (1975), 11 N.B.R.(2d) 564 (QB)

Bastarache v. Bastarache (1975), 11 N.B.R.(2d) 564 (QB);

    11 R.N.-B.(2e) 564; 7 A.P.R. 564

MLB headnote and full text

Sommaire et texte intégral

Bastarache v. Bastarache

Indexed As: Bastarache v. Bastarache

Répertorié: Bastarache v. Bastarache

New Brunswick Court of Queen's Bench

Stevenson, J.

September 22, 1975.

Summary:

Résumé:

This case arose out of an application for maintenance by a wife following the granting of a divorce. On April 17, 1975 at the conclusion of the divorce trial the court ordered the husband to pay a lump sum of $70,000 for the maintenance of his wife and child. The husband had a net worth of approximately $200,000. The husband's net worth was comprised almost entirely of equity in several houses and apartment buildings. The sale by the husband of any of his real estate holdings would have resulted in substantial income tax liability for the husband arising out of capital gains tax and recaptured depreciation. Accordingly, the husband applied to the New Brunswick Court of Queen's Bench for a variance of the maintenance order.

The New Brunswick Court of Queen's Bench granted the application and ordered the payment of $30,000 on or before September 30, 1975 and the payment of $40,000 on or before September 30, 1980. In lieu of interest the Court of Queen's Bench ordered the husband to pay $400 monthly until the $40,000 lump sum was paid. In addition, the Court of Queen's Bench ordered the husband to provide security for payment of the $40,000 in the form of a real estate mortgage in favour of the wife - see paragraph 11.

Family Law - Topic 4011

Divorce - Corollary relief - Maintenance award - Lump sum - The New Brunswick Court of Queen's Bench ordered payment of a lump sum maintenance award of $70,000 against the husband for the support of a wife and child - The husband had a net worth of approximately $200,000 - The Court of Queen's Bench ordered payment of $30,000 on or before September 30, 1975 and payment of $40,000 on or before September 30, 1980 - In lieu of interest the Court of Queen's Bench ordered the husband to pay $400 monthly until the $40,000 lump sum was paid - In addition, the Court of Queen's Bench ordered the husband to provide security for the payment of the $40,000 in the form of a real estate mortgage in favour of the wife - See paragraph 11.

Family Law - Topic 4015

Divorce - Corollary relief - Maintenance award - Enforcement - A wife issued a writ of execution against a husband to enforce a lump sum maintenance award - The New Brunswick Court of Queen's Bench set aside the execution issued by the wife because of the wife's failure to apply for leave of the court as required by the Divorce Act Regulations, rule 31a - See paragraph 13.

Cases Noticed:

Gullison v. Gullison (1973), 7 N.B.R.(2d) 21, folld. [para. 10].

Sullivan v. Sullivan (1973), 8 N.B.R.(2d) 690, folld. [para. 10].

Nash v. Nash (1974), 2 N.R. 271, 47 D.L.R.(3d) 558, folld. [para. 10].

Dexter v. Dexter, 11 N.B.R.(2d) 11, folld. [para. 10].

Statutes Noticed:

Divorce Act Regulations, 1970, Regulations 70-1, rule 31A [para. 13].

Counsel:

A.G. Warwick Gilbert, for the respondent;

Francis E. Atkinson, Q.C., for the petitioner.

This application was heard by Stevenson, J., at St. John, N.B., on September 16, 1975. Judgment was delivered by Stevenson, J., on September 22, 1975.