Cooper v. Cooper, (2001) 198 Nfld. & P.E.I.R. 1 (NFCA)

• Judge: Wells, C.J.N., Cameron and Green, JJ.A.
• Court: Court of Appeal (Newfoundland)
• Case Date: January 19, 2001
• Jurisdiction: Newfoundland and Labrador
• Citations: (2001), 198 Nfld. & P.E.I.R. 1 (NFCA)

Cooper v. Cooper (2001), 198 Nfld. & P.E.I.R. 1 (NFCA);

    595 A.P.R. 1

MLB headnote and full text

Temp. Cite: [2001] Nfld. & P.E.I.R. TBEd. JA.035

Nathaniel Cooper (appellant) v. Brenda Cooper (respondent)

(98/128; 2001 NFCA 4)

Indexed As: Cooper v. Cooper

Newfoundland Supreme Court

Court of Appeal

Wells, C.J.N., Cameron and Green, JJ.A.

January 19, 2001.

Summary:

A husband applied to terminate his month­ly spousal support payment of $1,800 to his wife pursuant to an amended consent order. The wife had a long term sexual relationship with another man. The issue was whether the wife resided with another man, as husband and wife, which was a ground for variation in the consent order.

The Supreme Court of Newfoundland, Unified Family Court, in a decision reported at 168 Nfld. & P.E.I.R. 58; 517 A.P.R. 58, dismissed the application because the hus­band did not establish that the wife resided with another man as husband and wife. The husband appealed.

The Newfoundland Court of Appeal, dis­missed the appeal.

Family Law - Topic 314

Marriage - Common law marriage - What constitutes - A husband applied to termin­ate spousal support payments pursuant to a consent order - The order provided that payments would cease if the wife resided with another man as husband and wife - The wife was in a long term sexual rela­tionship with another man - She stayed at his Florida residence each winter and at his new home in Newfoundland for 1/2 of the summer in 1998 - They participated together in social activities - The wife maintained a separate apartment and, more recently, a bedsitting room - Generally, the wife maintained her financial independence - The trial judge held that the relationship was not a husband and wife relationship - The Newfoundland Court of Appeal affirmed the decision - See paragraphs 1 to 28.

Family Law - Topic 1001

Common law or same-sex relationships - What constitutes common law relationship - [See Family Law - Topic 314 ].

Family Law - Topic 4017

Divorce - Corollary relief - Maintenance and awards - Awards - Variation of peri­odic payments or lump sum award - [See Family Law - Topic 314 ].

Practice - Topic 8800

Appeals - Duty of appellate court regard­ing findings of fact by a trial judge - The Newfoundland Court of Appeal stated that "in declining to interfere in a trial decision an appellate court applies self-imposed restraints that promote certain broad prin­ciples that underlie the judicial system. These include the policy of promotion of finality of litigation. ... the fact that the trial judge may be in a superior position to assess the evidence by virtue of being able to see and hear the witnesses is not the only underlying rationale for appellate deference. ... the principle of finality of litigation, buttressed by the presumption of judicial fitness, with the appellant having the burden to establish otherwise in a given case, will nevertheless restrict appel­late review. ... A non-interventionist approach ... has been emphasized in a number of cases in the Supreme Court of Canada ... interference with a trial judge's treatment of the evidence will only be justified where it can be shown that he or she made a 'palpable or overriding error' or manifest error, in the assessment and appreciation of the evidence." - See para­graphs 14 to 20.

Cases Noticed:

Moge v. Moge, [1992] 3 S.C.R. 813; 145 N.R. 1; 81 Man.R.(2d) 161; 30 W.A.C. 161; 43 R.F.L.(3d) 345, refd to. [para. 2, footnote 1].

Bracklow v. Bracklow, [1999] 1 S.C.R. 420; 236 N.R. 79; 120 B.C.A.C. 211; 196 W.A.C. 211, refd to. [para. 2, foot­note 1].

Soper v. Soper (1985), 67 N.S.R.(2d) 49; 155 A.P.R. 49; 44 R.F.L.(2d) 308 (C.A.), refd to. [para. 4].

Cann v. Huxley (1987), 78 N.S.R.(2d) 422; 193 A.P.R. 422 (Fam. Ct.), refd to. [para. 4].

McBride v. McBride (1994), 155 N.B.R.(2d) 273; 398 A.P.R. 273 (Q.B. Fam. Div.), refd to. [para. 4].

Reniewick v. Reniewick (1985), 49 R.F.L.(3d) 437 (Ont. Prov. Ct. Fam. Div.), refd to. [para. 4].

Bellis v. Innes (1980), 21 R.F.L.(2d) 40 (B.C. Co. Ct.), refd to. [para. 4].

Molodowich v. Penttinen (1980), 17 R.F.L.(2d) 376 (Ont. Dist. Ct.), refd to. [para. 4].

Hunt v. Hunt (1997), 155 Nfld. & P.E.I.R. 212; 481 A.P.R. 212 (Nfld. C.A.), refd to. [para. 8].

White v. White (1999), 172 Nfld. & P.E.I.R. 233; 528 A.P.R. 233 (Nfld. C.A.), refd to. [para. 8].

Martin v. Martin (1998), 168 Nfld. & P.E.I.R. 181; 517 A.P.R. 181 (Nfld. C.A.), refd to. [para. 8].

Hickey v. Hickey, [1999] 2 S.C.R. 518; 240 N.R. 312; 138 Man.R.(2d) 40; 202 W.A.C. 40, refd to. [para. 9].

Lensen v. Lensen, [1987] 2 S.C.R. 672; 79 N.R. 334; 64 Sask.R. 6, refd to. [para. 10].

Laurentide Motels Ltd. et al. v. Beauport (Ville) et al., [1989] 1 S.C.R. 705; 94 N.R. 1; 23 Q.A.C. 1, refd to. [para. 10].

Hodgkinson v. Simms et al., [1994] 3 S.C.R. 377; 171 N.R. 245; 49 B.C.A.C. 1; 80 W.A.C. 1, refd to. [para. 10].

Dorval v. Bouvier, [1968] S.C.R. 288, refd to. [para. 10].

Hayes v. Bryant (1997), 151 Nfld. & P.E.I.R. 261; 471 A.P.R. 261 (Nfld. C.A.), refd to. [para. 12].

Demarco Agencies Ltd. v. Merlo (1987), 62 Nfld. & P.E.I.R. 248; 190 A.P.R. 248 (Nfld. C.A.), refd to. [para. 12].

Squires v. Corner Brook Pulp and Paper Ltd. and Manuel (1999), 175 Nfld. & P.E.I.R. 202; 537 A.P.R. 202 (Nfld. C.A.), refd to. [para. 12].

Brant (Joseph) Memorial Hospital v. Koziol - see Kolesar Estate v. Brant (Joseph) Memorial Hospital and Malette.

Kolesar Estate v. Brant (Joseph) Memorial Hospital and Malette, [1978] 1 S.C.R. 491; 15 N.R. 302, refd to. [para. 12].

Schreiber Brothers Ltd. v. Currie Products Ltd. and Gulf Oil Canada Ltd., [1980] 2 S.C.R. 78; 31 N.R. 335, refd to. [para. 13].

Pardy et al. v. Dobbin et al. - see Sports Villas Resort Inc., Re.

Sports Villas Resort Inc., Re (2000), 185 Nfld. & P.E.I.R. 281; 562 A.P.R. 281 (Nfld. C.A.), refd to. [para. 14, footnote 4].

Stein Estate v. Ship Kathy K, [1976] 2 S.C.R. 802; 6 N.R. 359, refd to. [paras. 14, 32, footnote 4].

Van Mol et al. v. Ashmore (1999), 116 B.C.A.C. 161; 190 W.A.C. 161; 168 D.L.R.(4th) 637 (C.A.), agreed with [para. 18].

Minister of National Revenue v. Schwartz, [1996] 1 S.C.R. 254; 193 N.R. 241, refd to. [paras. 19, 38].

Goodman Estate v. Geffen, [1991] 2 S.C.R. 353; 127 N.R. 241; 125 A.R. 81; 14 W.A.C. 81, refd to. [paras. 19, 38].

R. v. Harper, [1982] 1 S.C.R. 2; 40 N.R. 255, refd to. [para. 39].

Authors and Works Noticed:

Kerans, Roger P., Standards of Review Employed by Appellate Courts (1994), generally [para. 14, footnote 4].

Counsel:

Gillian Butler, Q.C., for the appellant;

Derrick White, for the respondent.

This appeal was heard on September 24, 1999, by Wells, C.J.N., Cameron and Green, JJ.A., of the Newfoundland Court of Appeal.

The decision of the Court of Appeal was delivered on January 19, 2001, and the following opinions were filed:

Green, J.A. (Cameron, J.A., concurring) - see paragraphs 1 to 28;

Wells, C.J.N. - see paragraphs 29 to 43.