Beach v. Beach, (1977) 2 A.R. 561 (TD)

• Judge: McDonald, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: February 24, 1977
• Citations: (1977), 2 A.R. 561 (TD)

Beach v. Beach (1977), 2 A.R. 561 (TD)

MLB headnote and full text

Beach v. Beach

Indexed As: Beach v. Beach

Alberta Supreme Court

Trial Division

Judicial District of Calgary

McDonald, J.

February 24, 1977.

Summary:

This case arose out of a wife's claim to a divorce from her husband. The wife left the matrimonial home in 1972, after conduct of the husband consisting of frequent use of vulgar language and physical striking of the wife and daughter. At that time the wife signed a separation agreement in which she accepted a lump sum settlement of $42,400.00 and waived her claim for more. The wife brought a petition for divorce on the ground of cruelty against her husband. At the trial in 1975 the wife's assets totalled $113,600.00 and she earned a gross income of $10,600.00. The husband's assets had increased substantially and totalled $493,000.00 plus a large income from his business.

The Alberta Supreme Court, Trial Division, allowed the petition and held that the husband's conduct constituted cruelty - see paragraph 2.

The Trial Division awarded the wife an additional $17,600.00 to make up $60,000.00 lump sum maintenance award for the purpose of purchasing a home - see paragraphs 5 to 40.

Family Law - Topic 3650

Divorce - Grounds - Cruelty - What constitutes cruelty - Divorce Act, R.S.C. 1970, c. D-8. s. 3(d) - Conduct of husband consisting of frequent use of vulgar language and physical striking of wife and daughter - Conduct affected the wife so that she could not sleep and was losing weight - The Alberta Supreme Court, Trial Division, held that the husband's conduct constituted cruelty - See paragraph 2.

Family Law - Topic 3865

Divorce - Bars - Condonation - What constitutes condonation - The wife brought a petition for divorce on the grounds of cruelty against her husband - The wife had sexual relations with her husband after alleged cruel acts - The Alberta Supreme Court, Trial Division, found that the cruelty was not condoned by the wife, because she was not a willing participant in sexual relations and had no intention of forgiving her husband his cruelty - See paragraph 3.

Family Law - Topic 3868

Divorce - Bars - Condonation - Whether public interest would be better served by granting decree - Divorce Act, R.S.C. 1970. c. D-8, s. 9(1)(c) - The wife brought a petition for divorce on the grounds of cruelty against her husband - She had sexual relations with her husband after the alleged cruel acts - The Alberta Supreme Court, Trial Division, found that the cruelty was not condoned by the wife - The Trial Division stated that, even if the wife condoned the husband's cruelty, the condonation should not bar the petition, because the public interest would be better served by granting the petition, where the marriage had broken down - See paragraph 3.

Family Law - Topic 4000

Divorce - Corollary relief - Maintenance - Time for evaluation of parties assets - The Alberta Supreme Court, Trial Division, stated that the date which the court should decide what a maintenance award should be is the date of trial - The Trial Division stated that the assets of the parties should be evaluated as of the date of trial and not the date of separation - See paragraph 32.

Family Law - Topic 4001

Divorce - Corollary relief - Maintenance award - Lump sum payment - A husband, aged 49, and his wife, aged 48, were divorced in 1975 - They separated in 1972 and the wife agreed to accept a lump sum settlement of $42,400.00 - At the date of trial the wife's assets totalled $113,000.00 and she earned a gross annual income of $10,600.00 - The husband's assets totalled $493,000.00 plus a large income from his business - The Alberta Supreme Court, Trial Division, awarded the wife an additional $17,600.00 to make up a $60,000.00 lump sum maintenance award for the purpose of purchasing a home of her own - See paragraphs 5 to 40.

Family Law - Topic 4006

Divorce - Corollary relief - Maintenance - Effect of separation agreement - A wife signed a separation agreement in 1972, in which she agreed to waive any claim for alimony or maintenance except as provided in the agreement - The wife had legal counsel and was under no duress, fraud or misrepresentation about the respect of assets of herself and her husband - The parties were divorced in 1975 at which time the husband's position had improved substantially - The wife claimed maintenance - The Alberta Supreme Court, Trial Division, stated that the separation agreement did not prevent the court from considering the question of maintenance - The Trial Division held that the onus was on the wife to satisfy the court that at the time of trial the circumstances were such that it was fit and just that an award of maintenance be made other than provided in the agreement - The Trial Division held that the wife discharged the onus and awarded the wife an additional amount of maintenance, because the maintenance provided by the separation agreement was not adequate at the time of the agreement and the wife needed an additional amount to keep herself in a reasonable fashion - See paragraphs 37 to 40.

Cases Noticed:

Lauder v. Lauder, [1969] P. 277; [1949] 1 All E.R. 76, appld. [para. 2].

Anderson v. Anderson, [1972] 6 W.W.R. 53; 8 R.F.L. 299 (Alta. App. Div.), appld. [para. 2].

Knoll v. Knoll, [1970] 2 O.R. 169; 1 R.F.L. 141; 10 D.L.R.(3d) 199, consd. [para. 2].

Statutes Noticed:

Divorce Act, R.S.C. 1970, c. D-8, sect. 3(d) [para. 2]; sect. 9(1)(c) [para. 3].

Counsel:

J.D. Rooke and Miss B.E. Romaine, for the petitioner;

H. Guild, for the respondent.

This case was heard at Calgary, Alberta, before McDONALD, J., of the Alberta Supreme Court, Trial Division, Judicial District of Calgary.

On February 24, 1977, McDONALD, J., delivered the following judgment: