Brubacher v. Brubacher, (1988) 84 N.S.R.(2d) 343 (FC)

• Case Date: December 15, 1987
• Jurisdiction: Nova Scotia
• Citations: (1988), 84 N.S.R.(2d) 343 (FC)

Brubacher v. Brubacher (1988), 84 N.S.R.(2d) 343 (FC);

    213 A.P.R. 343

MLB headnote and full text

Simone Marie Brubacher v. Ward Daniel Brubacher

(S.C.O. No. 00673/84)

Indexed As: Brubacher v. Brubacher

Nova Scotia Family Court

White, J.F.C.

February 26, 1988.

Summary:

A husband and wife divorced in 1985. The husband was ordered to pay $200.00 per month maintenance for his two children. Maintenance was never paid. In 1987 the wife applied to enforce the arrears. The husband applied to vary maintenance, but withdrew the application.

The Nova Scotia Family Court recommended that the application to enforce the arrears be allowed. The court fixed the amount of arrears and recommended that a guardian be appointed to ensure that the children receive the arrears and future maintenance.

Family Law - Topic 4050

Divorce - Corollary relief - Maintenance - Enforcement - Arrears - A husband and wife divorced in 1985 - The husband's agreement to pay $200.00 per month maintenance for his two children was incorporated into the decree nisi - No maintenance was paid - The husband was unemployed and had remarried and convinced his wife that he was unable to pay maintenance - The wife took no steps to enforce his maintenance obligation until 1987, when she sought to enforce arrears -The husband claimed financial inability to pay and that he was misled into believing his maintenance obligation was forgiven - The Nova Scotia Family Court fixed the amount of the arrears and recommended that they be paid - The court held that the wife's failure to enforce maintenance for her children and the husband's new family obligations could not be set up by the husband to avoid his agreed moral and financial obligation to support his children - The court also stated that the one year guide respecting enforcement of arrears did not apply to child maintenance.

Cases Noticed:

Caron v. Caron, [1987] 1 S.C.R. 892; 75 N.R. 36; 2 Y.R. 246; 7 R.F.L.(3d) 274, consd. [para. 13].

Pelech v. Pelech, [1987] 1 S.C.R. 801; [1987] 4 W.W.R. 481; 76 N.R. 81; 7 R.F.L.(3d) 225, consd. [para. 13].

Richardson v. Richardson, [1987] 1 S.C.R. 857; 77 N.R. 1; 22 O.A.C. 1; 7 R.F.L.(3d) 304, consd. [para. 13].

McLean v. McLean (1985), 14 N.B.R.(2d) 64; 15 A.P.R. 64; 26 R.F.L.(2d) 115 (N.B.Q.B.), refd to. [para. 19].

Fahey v. Fahey (1987), 79 N.S.R.(2d) 254; 196 A.P.R. 254 (T.D.), refd to. [para. 22].

Lake v. Lake (1987), 82 N.S.R.(2d) 357; 207 A.P.R. 357 (C.A.), refd to. [para. 25].

Statutes Noticed:

Divorce Act, S.C. 1986, c. 4, sect. 11(1)(b), sect. 15(8) [para. 11].

Counsel:

Patricia Fricker, for the petitioner;

N.M. Scaravelli and Elizabeth Van den Eynden, A/C, for the respondent.

This application was heard on November 17 and December 15, 1987, and January 5, 1988, before White, J.F.C., of the Nova Scotia Family Court, who delivered the following judgment on February 26, 1988.