Bedard v. Bedard, (1996) 153 N.S.R.(2d) 81 (SC)

• Judge: Stewart, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: July 30, 1996
• Jurisdiction: Nova Scotia
• Citations: (1996), 153 N.S.R.(2d) 81 (SC)

Bedard v. Bedard (1996), 153 N.S.R.(2d) 81 (SC);

    450 A.P.R. 81

MLB headnote and full text

Richard Joseph Bedard (petitioner) v. Catherine Marie Bedard (respondent)

(File No. 1206-002427)

Indexed As: Bedard v. Bedard

Nova Scotia Supreme Court

Stewart, J.

July 30, 1996.

Summary:

A couple separated after five years of marriage. They had three children together. The wife had two children from previous marriages and the husband had three children from a previous marriage. The husband petitioned for divorce. Each parent sought custody of the three children of the marriage. The wife sought child support for her two children from previous marriages. She also sought lump sum spousal mainte­nance. Child maintenance for the children of the marriage was also in issue.

The Nova Scotia Supreme Court granted the divorce. The court awarded the mother sole custody of the children of the marriage and specified access for the father. The court held that the husband was not required to pay support for the wife's two children from previous relationships. The court ordered the father to pay $3,000 per month child support for the children of the marriage.

Family Law - Topic 1891

Custody and access - Considerations in awarding custody - Conduct of parents - A couple separated after five years of marriage - The mother had interim cus­tody of their three children - The mother interfered with the exercise of the father's access rights although such incidents became less frequent - The parties could not communicate and confrontations occurred between the mother and the father and his new partner - The mother seemed unwilling to facilitate the father's parental role and wanted his access reduced - The father sought sole custody, alleging that the mother's conduct raised questions as to her fitness as the custodial parent - The Nova Scotia Supreme Court awarded sole custody to the mother and specified access for the father - See para­graphs 8 to 52.

Family Law - Topic 2006.2

Custody and access - Access - Access order - Noncompliance - Termination of custody - [See Family Law - Topic 1891 ].

Family Law - Topic 2203

Maintenance of wives and children - General principles - Persons obligated to support children - In loco parentis - A couple separated after five years of mar­riage - The wife had two daughters prior to the marriage aged 20 and 16 - The wife sought child support for the two daughters, claiming that they were "children of the marriage" because the husband stood in loco parentis - After the separation of the wife and the husband the daughters had little contact with the husband - They testified that they disliked and resented him - The husband had no intention of promoting any type of relationship - The Nova Scotia Supreme Court held that any relationship the husband and the daughters had in the past had ceased by mutual consent - The court refused to award child support to the two daughters - See para­graphs 53 to 62.

Family Law - Topic 3382

Separation agreements, domestic contracts and marriage contracts - Grounds for setting aside - Material nondisclosure - A couple executed a separation agreement in May 1992 - They had moved into separate accommodations in March - The wife claimed that the separation agreement was a sham because she had no particulars of the husband's finances and was under the illusion created by the husband that they were living separate and apart only for financial reasons and because of their inability to find a home large enough for the entire family - She claimed that they never separated until August 1994 - The wife had independent legal advice - The Nova Scotia Supreme Court held that the separation agreement was not void by reason of fraudulent inducement, naivety or material nondisclosure of income - See paragraphs 63 to 70.

Family Law - Topic 3390

Separation agreements, domestic contracts and marriage contracts - Grounds for setting aside - Fraud - [See Family Law - Topic 3382 ].

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance awards - Retroactive awards - Upon separation a father verbally agreed to pay $1,600/month child support and $140/week for food - The husband failed to pay the $140/week for 24 weeks - The Nova Scotia Supreme Court awarded retroactive periodic support of $140/week for those 24 weeks - See paragraph 91.

Family Law - Topic 4011

Divorce - Corollary relief - Maintenance awards - Lump sum - A couple separated after five years of marriage - They executed a separation agreement whereby the husband agreed to pay $500/month spousal support - The wife sought lump sum maintenance, alleging that she suf­fered from economic hardship and needed the money for, inter alia, a down payment to purchase a home for her and her children - The Nova Scotia Supreme Court held that the separation agreement was valid and precluded any claim for lump sum maintenance - See paragraph 74 - The court held that even if there was no separation agreement, a lump sum payment was not appropriate because the evidence failed to establish a specific or immediate need - See paragraphs 72 to 76.

Family Law - Topic 4014

Divorce - Corollary relief - Maintenance awards - To children and children defined - A couple divorced after five years of marriage - They had three children of the marriage - The father had earned approxi­mately $190,000/year but because of a new schedule of employment his income was estimated to drop to $110,000/year - He contributed to the university education of his three children from a previous marriage - The mother had custody of the children and earned $46,637.91/year - The father's new common law partner earned $47,570/year - The Nova Scotia Supreme Court considered the child support guidelines, the needs of the children and the parent's ability to pay and ordered that the father pay $3,000/month child support - See paragraphs 77 to 90.

Family Law - Topic 4014

Divorce - Corollary relief - Maintenance awards - To children and children defined - [See Family Law - Topic 2203 ].

Family Law - Topic 4021.4

Divorce - Corollary relief - Maintenance awards - Considerations - Ability to pay - [See first Family Law - Topic 4014 ].

Family Law - Topic 4021.5

Divorce - Corollary relief - Maintenance awards - Considerations - Support tables - [See first Family Law - Topic 4014 ].

Family Law - Topic 4025.1

Divorce - Corollary relief - Maintenance awards - Effect of income of respondent's spouse - Common law spouse - [See first Family Law - Topic 4014 ].

Family Law - Topic 4055

Divorce - Corollary relief - Custody of children - [See Family Law - Topic 1891 ].

Cases Noticed:

Rose v. Rose (1989), 98 A.R. 42; 22 R.F.L.(3d) 72 (Q.B.), refd to. [para. 20].

Tremblay v. Tremblay (1987), 82 A.R. 24; 10 R.F.L.(3d) 166 (Q.B.), refd to. [para. 20].

Hayes v. Hayes (1990), 82 Nfld. & P.E.I.R. 299; 257 A.P.R. 299 (Nfld. U.F.C.), refd to. [para. 20].

Gagne v. Gagne (1987), 42 Man.R.(2d) 231 (Q.B. Fam. Div.), refd to. [para. 20].

Carignan v. Carignan (1990), 61 Man.R.(2d) 66 (C.A.), refd to. [para. 57].

Timmerman v. Timmerman, [1976] 4 W.W.R. 296 (Man. Q.B.), refd to. [para. 57].

Connors v. Rector (1993), 118 N.S.R.(2d) 44; 327 A.P.R. 44 (Co. Ct.), refd to. [para. 58].

Barcley v. Santacci, [1994] O.J. No. 2803 (U.F.C.), refd to. [para. 59].

Willick v. Willick, [1994] 3 S.C.R. 670; 173 N.R. 321; 125 Sask.R. 81; 81 W.A.C. 81; 6 R.F.L.(4th) 162; 119 D.L.R.(4th) 405, refd to. [para. 65].

MacNeil v. MacNeil (1994), 129 N.S.R.(2d) 284; 362 A.P.R. 284 (C.A.), refd to. [para. 72].

Mosher v. Mosher (1995), 140 N.S.R.(2d) 40; 399 A.P.R. 40 (C.A.), refd to. [para. 73].

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. 73].

Hemming v. Hemming (1983), 58 N.S.R.(2d) 65; 123 A.P.R. 65 (C.A.), refd to. [para. 73].

Elliot v. Elliot (1994), 65 O.A.C. 241; 15 O.R.(3d) 265 (C.A.), refd to. [para. 73].

Statutes Noticed:

Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, sect. 2(1) [para. 8]; sect. 2(2) [para. 56]; sect. 8(2) [para. 6]; sect. 15(2) [para. 72].

Authors and Works Noticed:

Federal/Provincial/Territorial Family Law Committee's Report and Recommenda­tions on Child Suppport (Guidelines) (1995), generally [para. 89].

Counsel:

Theresa O'Leary and Gerald MacDonald, for the petitioner;

Hugh R. MacLeod, for the respondent.

This case was heard in Sydney, Nova Scotia, before Stewart, J., of the Nova Scotia Supreme Court, on June 24, 25, 26, 27 and 28, 1996, and on July 2, 3, 4 and 5, 1996. The following judgment was delivered on July 30, 1996.