Clarke v. Maharaj, (1996) 158 N.S.R.(2d) 270 (FC)

• Case Date: October 01, 1996
• Jurisdiction: Nova Scotia
• Citations: (1996), 158 N.S.R.(2d) 270 (FC)

Clarke v. Maharaj (1996), 158 N.S.R.(2d) 270 (FC);

    466 A.P.R. 270

MLB headnote and full text

Theresa-Ann Clarke (applicant) v. Mandat Maharaj (respondent)

(F.H. No. H96-174)

Indexed As: Clarke v. Maharaj

Nova Scotia Family Court

Dyer, J.F.C.

October 1, 1996.

Summary:

A couple separated after 12 years of mar­riage. There were two children of the mar­riage. The couple agreed that the mother would have custody of the children and the father would have access. The mother was to receive the father's equity in the matrimonial home as lump sum child support. There was to be no periodic child support. The agree­ment received court approval. The mother intended to move to Ontario. She sought a variation of the access provisions and peri­odic child support.

The Nova Scotia Family Court recom­mended that access be varied. The court recommended that the father pay periodic child support.

Family Law - Topic 3371

Separation agreements, domestic contracts and marriage contracts - Variation - [See Family Law - Topic 4006.1 ].

Family Law - Topic 4006.1

Divorce - Corollary relief - Maintenance awards - To children - Effect of agree­ments - After separation, a couple agreed that the father's share of the proceeds of the sale of the matrimonial home would be paid to the mother as lump sum child support - At the time of the agreement it was believed that the home would be sold for $270,000 and the father's equity would be $54,000 - The agreement specified that there would be no periodic child support - The arrangement received court approval - The home eventually sold for $170,000 and the father's equity was $19,300 - The mother applied to vary the agreement and sought periodic child support - The Nova Scotia Family Court held that both parties overestimated the market value of the matrimonial home - The court held that these circumstances permitted a variation of the agreement - See paragraphs 100 to 110.

Family Law - Topic 4014

Divorce - Corollary relief - Maintenance awards - To children - A couple separated after 12 years of marriage - The mother had custody of their two children - She intended to relocate to Ontario and antici­pated a gross income of $84,000 - The father earned approximately $60,000 - His fiancée did not contrib­ute to the household expenses - The father's $80,000 mortgage was amortized over only eight years - He purchased a new vehicle - He paid $147 per month for life insurance policies for the children and $250 per month for mutual funds for the children - The Nova Scotia Family Court stated that the father could reorgan­ize his finances and his fiancée should contribute to her own sup­port - The court recom­mended that the father pay $1,500/month child support until May 1997 at which time he would make pay­ments in accordance with the Federal child support guidelines - See paragraphs 59 to 134.

Family Law - Topic 4017

Divorce - Corollary relief - Maintenance awards - Variation of periodic payments or lump sum award - [See Family Law - Topic 4006.1 ].

Family Law - Topic 4021.5

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

Cases Noticed:

Richardson v. Richardson, [1987] 1 S.C.R. 857; 77 N.R. 1; 22 O.A.C. 1; 7 R.F.L.(3d) 304; 38 D.L.R.(4th) 699; 17 C.P.C.(2d) 699, refd to. [para. 26].

Boca v. Mendel (1989), 20 R.F.L.(3d) 421 (Ont. Fam. Ct.), refd to. [para. 26].

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) 161, refd to. [para. 26].

Delaney v. Delaney (1995), 140 N.S.R.(2d) 376; 399 A.P.R. 376 (S.C.), refd to. [para. 105].

Edwards v. Edwards (1994), 133 N.S.R.(2d) 8; 380 A.P.R. 8; 5 R.F.L.(4th) 321 (C.A.), refd to. [para. 113].

Briand v. Briand (1996), 153 N.S.R.(2d) 157; 450 A.P.R. 157 (S.C.), refd to. [para. 115].

Pelech v. Pelech, [1987] 1 S.C.R. 801; 76 N.R. 81; [1987] 4 W.W.R. 481; 7 R.F.L.(3d) 225; 14 B.C.L.R.(2d) 145; 38 D.L.R.(4th) 641; 17 C.P.C.(2d) 1, refd to. [para. 120].

Binns v. Binns (1985), 69 N.S.R.(2d) 205; 163 A.P.R. 205; 45 R.F.L.(2d) 369 (Fam. Ct.), refd to. [para. 120].

Jull v. Jull (1984), 56 A.R. 123; 42 R.F.L.(2d) 113 (C.A.), refd to. [para. 120].

Statutes Noticed:

Divorce Act, R.S.C. 1985 (2nd Supp.) c. 3, sect. 11(1)(b), sect. 17(4) [para. 103]; sect. 17(8) [para. 106].

Authors and Works Noticed:

Federal/Provincial/Territorial Family Law Committee's Report and Recommenda­tions on Child Support (1995), generally [para. 117].

Counsel:

Flora Buchan, for the applicant;

Anna Paton, for the respondent.

This case was heard at Halifax, Nova Scotia, before Dyer, J.F.C., of the Nova Scotia Family Court, who delivered the following decision on October 1, 1996.