Colp v. Colp, (1994) 128 N.S.R.(2d) 132 (CA)

• Judge: Hallett, Hart and Roscoe, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: January 26, 1994
• Jurisdiction: Nova Scotia
• Citations: (1994), 128 N.S.R.(2d) 132 (CA)

Colp v. Colp (1994), 128 N.S.R.(2d) 132 (CA);

  359 A.P.R. 132

MLB headnote and full text

Ishbell Davida Colp (Silmarie) (appellant) v. Borden Parker Colp (respondent)

(C.A. No. 02901)

Indexed As: Colp v. Colp

Nova Scotia Court of Appeal

Hallett, Hart and Roscoe, JJ.A.

January 26, 1994.

Summary:

Minutes of settlement incorporated into a 1981 divorce decree ordered the husband to pay $350/month spousal maintenance "until further order of the court". The husband applied to terminate maintenance. The wife applied for an increase.

The Nova Scotia Supreme Court, in a judgment not reported in this series of reports, held that there was not a sufficient change in circumstances to justify varying the order. The court ordered that mainte­nance continue at $350/month until Decem­ber 1994, when it would terminate unless continued by the court on the basis of changed circumstances. The wife appealed. The husband cross-appealed.

The Nova Scotia Court of Appeal allowed the appeal and dismissed the cross-appeal. The court varied maintenance to $550/month, with no termination date.

Family Law - Topic 4017

Divorce - Corollary relief - Maintenance awards - Variation of periodic payments - Minutes of Settlement incorporated into a 1981 divorce decree ordered the husband to pay $350/month spousal maintenance "until further order of the court" - The husband's income increased from $40,000 to $90,000 since 1981 - The 59 year old wife was unemployed and suffered health problems - The wife's income was limited to the $350/month maintenance and $433/month from babysitting - The wife had attained the degree of self-sufficiency that was reasonable, given her age, skills and health problems - The Nova Scotia Court of Appeal allowed an appeal from the trial judge's decision not to vary maintenance and terminate it effective December 1994 - The court increased maintenance to $550/month without any time limitation.

Family Law - Topic 4017

Divorce - Corollary relief - Maintenance awards - Variation of periodic payments - The Nova Scotia Court of Appeal stated that "where parties entered into a final settlement agreement the level of support payments to the wife should not be increased unless there has been a radical change in her circumstances and that the change is a result of a pattern of economic dependency generated by the marriage relationship" - Minutes of Settlement incorporated into a 1981 divorce decree fixed maintenance at $350/month "until further order of the court" - The court stated that since there was no final agree­ment on maintenance, maintenance could be varied and the test was the factors in s. 17(7) of the Divorce Act - The wife was not required to establish a radical change in circumstances or a pattern of economic dependency generated by the marriage relationship - Variation was governed by the Moge case and not the trilogy of Pelech, Caron and Richardson.

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.(2d) 145; 38 D.L.R.(4th) 641; 17 C.P.C.(2d) 1, not appld. [para. 10].

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, not appld. [para. 10].

Caron v. Caron, [1987] 1 S.C.R. 892; 75 N.R. 36; 2 Y.R. 246; [1987] 4 W.W.R. 522; 7 R.F.L.(3d) 274; 38 D.L.R.(4th) 735; 14 B.C.L.R.(2d) 186, not appld. [para. 10].

Del Santo v. Del Santo (1975), 21 R.F.L. 117 (B.C.S.C.), refd to. [para. 12].

Sherwood v. Sherwood (1980), 18 R.F.L.(2d) 200 (Ont. U.F.C.), refd to. [para. 12].

Newman v. Newman (1980), 4 Man.R.(2d) 50; 19 R.F.L.(2d) 122; 114 D.L.R.(3d) 517 (C.A.), refd to. [para. 12].

Farquar v. Farquar (1983), 35 R.F.L.(2d) 287 (Ont. C.A.), refd to. [para. 12].

Moge v. Moge (1992), 145 N.R. 1; 81 Man.R.(2d) 161; 30 W.A.C. 161; 99 D.L.R.(4th) 456 (S.C.C.), appld. [para. 14].

Statutes Noticed:

Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, sect. 17(4), sect. 17(7) [para. 9].

Counsel:

M. Elizabeth Wood, for the appellant;

Diana M. Musgrave, for the respondent.

This appeal was heard at Halifax, N.S., on January 17, 1994, before Hallett, Hart and Roscoe, JJ.A., of the Nova Scotia Court of Appeal.

On January 26, 1994, Hallett, J.A., delivered the following judgment for the Court of Appeal.