Brody v. Brody, (1976) 1 A.R. 470 (TD)

• Judge: Brennan, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: November 26, 1976
• Citations: (1976), 1 A.R. 470 (TD)

Brody v. Brody (1976), 1 A.R. 470 (TD)

MLB headnote and full text

Brody v. Brody

Indexed As: Brody v. Brody

Alberta Supreme Court

Trial Division

Judicial District of Calgary

Brennan, J.

November 26, 1976.

Summary:

This case arose out of several claims by a wife against her former husband for maintenance and for the return of personal property transferred to the husband during the marriage. In addition, the husband commenced an action for the partition and sale of the matrimonial home.

The Trial Division ordered the husband to pay $1,500.00 per month for the support of his former wife and two children and in addition the Trial Division ordered the husband to pay to his wife a lump sum for maintenance of $31,000.00 - compare Connelley v. Connelly, 9 N.S.R.(2d) 48 (N.S.C.A.).

The Trial Division also ordered the partition and sale of the matrimonial home on the grounds of the wife's financial inability to maintain the matrimonial home.

The Trial Division dismissed two claims by the wife for the return of money transferred to the husband during marriage on the grounds that the spouses did not intend legal consequences to flow from the transfers - see paragraphs 33 to 36.

Family Law - Topic 651

Husband and wife - Property rights during marriage - Transfers between spouses during marriage for the benefit of the family - During a marriage a wife gave to the husband $17,000.00 which was used by the husband to reduce his debts - The Trial Division dismissed an action by the wife who claimed she loaned the $17,000.00 to the husband - The Alberta Supreme Court, Trial Division, stated that the spouses did not intend legal consequences to flow from the transfer by the wife to the husband of the $17,000.00 - See paragraphs 33 to 35.

Family Law - Topic 651

Husband and wife - Property rights during marriage - Transfers between spouses during marriage for the benefit of the family - During a marriage a wife pledged her $15,000.00 savings certificate at a bank as security for a loan to her husband - The loan was used by the husband to reduce his debts - The Alberta Supreme Court, Trial Division, dismissed an action by the wife for the return of her $15,000.00 savings certificate - The Trial Division stated that the spouses did not intend legal consequences to flow, as between themselves, from the pledge of the $15,000.00 savings certificate - See paragraph 36.

Family Law - Topic 763

Husband and wife - Actions between husband and wife - Property - Action for the partition and sale of the matrimonial home - Grounds for granting an application - The husband, a dentist, lived in British Columbia and his former wife and two children, aged five and ten, lived in the matrimonial home in Calgary, Alberta - The matrimonial home was owned jointly by the husband and wife - The wife's monthly mortgage and maintenance payments with respect to the home totalled $885.00 - The husband paid his former wife for maintenance $1,500.00 per month - The Alberta Supreme Court, Trial Division, ordered the sale of the matrimonial home because of the wife's financial inability to maintain the matrimonial home - See paragraphs 37 to 45.

Family Law - Topic 4012

Divorce - Corollary relief - Maintenance - Divorce Act, s. 11 - Maintenance award of both a lump sum and periodic payments - The husband, a dentist, earned $48,000.00 per annum - The Alberta Supreme Court, Trial Division, ordered the husband to pay $1,500.00 per month for the support of his former wife and two children, aged five and ten, and in addition the court ordered the husband to pay to the wife a lump sum for maintenance of $31,000.00 - See paragraphs 46 to 54.

Cases Noticed:

Trueman v. Trueman, [1971] 2 W.W.R. 688 (Alta. C.A.), dist. [para. 28].

Rathwell v. Rathwell, [1976] 5 W.W.R. 148 (Sask. C.A.), dist. [para. 28].

Balfour v. Balfour, [1919] 2 K.B. 571, folld. [para. 34].

Clark (Clarke) v. Clarke, [1974] 5 W.W.R. 274, folld. [para. 38].

Krause v. Krause, [1976] 2 W.W.R. 622, folld. [para. 47].

Statutes Noticed:

Divorce Act, R.S.C. 1970, c. D-8, sect. 11 [para. 46].

Counsel:

A.D. Hunter, for Esther Brody;

R.A. Miles, for Irwin John Brody.

Judgment was delivered by BRENNAN, J., at Calgary, Alberta, on November 26, 1976.