Cooper v. Cooper, (1998) 168 Nfld. & P.E.I.R. 58 (NFFC)

• Judge: L.D. Barry, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: August 18, 1998
• Jurisdiction: Newfoundland and Labrador
• Citations: (1998), 168 Nfld. & P.E.I.R. 58 (NFFC)

Cooper v. Cooper (1998), 168 Nfld. & P.E.I.R. 58 (NFFC);

    517 A.P.R. 58

MLB headnote and full text

Temp. Cite: [1998] Nfld. & P.E.I.R. TBEd. NO.006

Nathaniel Cooper (petitioner) and Brenda Cooper (respondent)

(Divorce Registry No. 92/05999)

Indexed As: Cooper v. Cooper

Newfoundland Supreme Court

Unified Family Court

L.D. Barry, J.

August 26, 1998.

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, dismissed the application because the husband did not establish that the wife resided with another man as husband and wife.

Family Law - Topic 4017

Divorce - Corollary relief - Maintenance and awards - Awards - Variation of periodic payments or lump sum award - Pursuant to a consent order a husband paid monthly spousal support of $1,800 to his wife - The consent order's grounds for variation of spousal support included the wife residing with another man, as husband and wife - The wife was in a long term sexual relationship with another man - She stayed at his residence in Florida each winter and at his new home in Newfoundland for 1/2 of the summer in 1998 - They participated together socially - The Newfoundland Supreme Court, Unified Family Court, held that it was not a husband and wife relationship - The wife maintained her own: living accommodations; independence and freedom; finances; and ownership of property - The application was dismissed

Cases Noticed:

Soper v. Soper (1985), 67 N.S.R.(2d) 49; 155 A.P.R. 49; 44 R.F.L.(2d) 308 (C.A.), consd. [para. 14].

Cann v. Huxley (1987), 78 N.S.R.(2d) 422; 193 A.P.R. 422 (Fam. Ct.), dist. [para. 17].

Deering v. Deering (1986), 60 Nfld. & P.E.I.R. 230; 181 A.P.R. 230 (Nfld. T.D.), dist. [para. 21].

Reniewick v. Reniewick (1985), 49 R.F.L.(2d) 437 (Ont. Prov. Ct. Fam. Div.), refd to. [para. 22].

Moge v. Moge, [1992] 3 S.C.R. 813; 145 N.R. 1; 81 Man.R.(2d) 161; 30 W.A.C. 161; [1993] 1 W.W.R. 481; 99 D.L.R. (4th) 456; 43 R.F.L.(3d) 345, refd to. [para. 22].

McBride v. McBride (1994), 155 N.B.R.(2d) 273; 398 A.P.R. 273 (Fam. Div.), consd. [para. 24].

Tulk v. Tulk, [1907] V.L.R. 64, refd to. [para. 24].

Bellis v. Innes (1980), 21 R.F.L.(2d) 40 (B.C. Co. Ct.), refd to. [para. 26].

Molodowich v. Penttinen (1970), 17 R.F.L.(2d) 376 (Ont. Dist. Ct.), refd to. [para. 27].

Counsel:

Gillian D. Butler, Q.C., for the petitioner;

Ernest L. Gittens, for the respondent.

This application was heard on August 18, 1998, by L.D. Barry, J., of the Newfoundland Supreme Court, Unified Family Court, who delivered the following judgment on August 26, 1998.