Carter v. Carter, (1991) 2 B.C.A.C. 241 (CA)

• Judge: Hutcheon, Taylor and Proudfoot, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: April 26, 1991
• Jurisdiction: British Columbia
• Citations: (1991), 2 B.C.A.C. 241 (CA);1991 CanLII 819 (BC CA);58 BCLR (2d) 45;34 RFL (3d) 1;2 BCAC 241;[1991] BCJ No 2209 (QL);5 WAC 241

Carter v. Carter (1991), 2 B.C.A.C. 241 (CA);

    5 W.A.C. 241

MLB headnote and full text

Gregory Francis Carter (petitioner/appellant) v. Margaret Mary Carter (respondent/respondent)

(V00770)

Indexed As: Carter v. Carter

British Columbia Court of Appeal

Hutcheon, Taylor and Proudfoot, JJ.A.

June 27, 1991.

Summary:

A divorced husband applied to vary or terminate his maintenance obligation to his former wife. The trial judge dismissed the application. The husband appealed.

The British Columbia Court of Appeal allowed the appeal to the extent of ordering the wife to provide the husband with itemized statements of assets and liabilities. The husband was at liberty to have the matter set down for a rehearing.

Family Law - Topic 4017

Divorce - Corollary relief - Maintenance and awards - Awards - Variation of periodic payments - A husband and wife divorced after 29 years of marriage - Husband paying monthly maintenance pursuant to a separation agreement incorporated in the decree nisi - Husband retired and income dropped - The husband argued that his retirement and an inheritance by his ex-wife justified varying his maintenance obligation - The British Columbia Court of Appeal held that this case was governed by s. 17(4) of the Divorce Act and therefore to justify a variation there should be a change in circumstances that is substantial, unforeseen and of a continuing nature - The court made no decision on the merits pending the filing of further information by the wife.

Family Law - Topic 4017

Divorce - Corollary relief - Maintenance and awards - Awards - Variation of periodic payments - A divorced husband applied to vary his maintenance obligation - It was argued that because the application was brought by the payor (rather than the payee as in Pelech v. Pelech), the payor should be treated differently - The British Columbia Court of Appeal rejected this argument - See paragraph 25.

Cases Noticed:

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; 14 B.C.L.R. 145; 38 D.L.R.(4th) 641, refd to. [para. 12 et seq.].

Matthews v. Matthews (1990), 29 R.F.L.(3d) 381, refd to. [para. 24].

Story v. Story (1990), 23 R.F.L.(3d) 225, refd to. [para. 24].

Statutes Noticed:

Divorce Act, R.S.C. 1985, c. D-8, sect. 17(4) [paras. 13, 14]; sect. 17(10) [para. 16].

Counsel:

J.N. Rogers, for the appellant;

   M.G. Coleman, for the respondent.

This appeal was heard on April 26, 1991, in Victoria, B.C., before Hutcheon, Taylor and Proudfoot, JJ.A., of the British Columbia Court of Appeal. The following decision of the court was delivered on June 27, 1991.