Cormier v. Cormier, (1989) 102 N.B.R.(2d) 13 (CA)

• Judge: Stratton, C.J.N.B., Hoyt and Rice, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: November 29, 1989
• Jurisdiction: New Brunswick
• Citations: (1989), 102 N.B.R.(2d) 13 (CA)

Cormier v. Cormier (1989), 102 N.B.R.(2d) 13 (CA);

    102 R.N.-B.(2e) 13; 256 A.P.R. 13

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Bertha Cormier (applicant/appellant) v. Arthur Joseph Cormier (respondent)

(209/88/CA)

Indexed As: Cormier v. Cormier

New Brunswick Court of Appeal

Stratton, C.J.N.B., Hoyt and Rice, JJ.A.

November 29, 1989.

Summary:

A husband and wife divorced in 1958. The husband was ordered to pay $100.00 per month maintenance for his wife and children. The wife continued to reside in the marital home until 1962, when she left. The wife made no legal claim for maintenance or against the marital home for 26 years. The wife then applied for partition and sale of the marital home and claimed occupation rent. The wife also claimed $24,840.00 in maintenance arrears. The husband counterclaimed for a declaration of exclusive ownership of the marital home.

The New Brunswick Court of Queen's Bench, Family Division, in a judgment reported 90 N.B.R.(2d) 431; 228 A.P.R. 431, dismissed the wife's application for partition and sale and her claim for occupation rent. The court allowed her claim for maintenance arrears, but only for $1,200.00 (the one year rule). The court allowed the husband's counterclaim, because the husband and his present wife acquired title by adverse possession. The wife appealed.

The New Brunswick Court of Appeal, Rice, J.A., dissenting in part, allowed the appeal in part. The court affirmed the dismissal of the wife's claim for occupation rent and the awarding of one year's maintenance arrears. The court held that the husband and his present wife did not acquire title by adverse possession; the wife was entitled to 50% of the 1962 value of the property.

Equity - Topic 2061

Equitable defences - Laches - General - A husband and wife divorced in 1958 - From 1958 to 1962 both remained in the marital home - In 1962 the wife left - The wife made no claim to the marital home for the next 26 years, nor did she contribute to its maintenance and costs - The wife claimed occupation rent from her husband - The New Brunswick Court of Queen's Bench, Family Division, dismissed the claim - The court stated that aside from the Limitation of Actions Act, the work done by the husband in the 26 years would offset any occupation rent that might be awarded - The court also stated that the wife's laches, by itself, would be sufficient cause to deny her relief - The New Brunswick Court of Appeal, although holding that the Limitation of Actions Act and laches did not apply, affirmed that the wife was not entitled to occupation rent.

Family Law - Topic 627

Husband and wife - Marital property - Matrimonial home - Occupation by one spouse - Claim for occupation rent - [See Equity - Topic 2061].

Family Law - Topic 966

Husband and wife - Actions between - Costs - A husband and wife divorced in 1958 - The wife remained in the marital home until 1962, then left - For the next 26 years the wife made no claim against the marital home and failed to enforce the husband's obligation to pay maintenance - In 1988 she applied for an order for partition and sale of the marital home, occupation rent and maintenance arrears - The New Brunswick Court of Queen's Bench, Family Division, awarded the husband $1,000.00 costs because the wife achieved so little of the relief she claimed - The New Brunswick Court of Appeal stated that "on that basis he was correct" - On appeal, because of the wife's partial success, the court allowed her costs of $1,500.00 throughout.

Family Law - Topic 761

Husband and wife - Actions between - Property - Action for partition and sale - Bars - Limitation period - A husband and wife divorced in 1958 - From 1958 to 1962 the husband and wife remained in the marital home - In 1962 the wife left - The wife made no legal claim to any interest in the marital home for the next 26 years, nor did she contribute to its maintenance or costs - The wife applied for an order for partition and sale - The New Brunswick Court of Queen's Bench, Family Division, held that the wife's application, being one for the recovery of land, was barred by s. 29 of the Limitation of Actions Act - The New Brunswick Court of Appeal held that the wife's claim was not statute barred; the husband had no intention of excluding his co-owner (wife) from possession, therefore the required "animus possidendi" was not present - Additionally, by virtue of a 1971 deed to the husband and wife as joint tenants, the earliest the 20 year prescription period could run would be 1991.

Family Law - Topic 4050

Divorce - Corollary relief - Maintenance - Enforcement - Payment of arrears - A husband and wife divorced in 1958 - The husband was ordered to pay $100.00 per month maintenance for his wife and children - The husband and wife remained in the marital home until 1962, when the wife left with the children - The wife's only attempt to enforce maintenance over the next 26 years was her obtaining a 1968 order for the payment of arrears to that date - The youngest child was now 37 years old - The wife claimed $24,840.00 in maintenance arrears - The New Brunswick Court of Appeal affirmed limiting the wife's recovery of arrears to one year's maintenance ($1,200.00).

Limitation of Actions - Topic 4144

Recovery of land - Application of limitation period - Action for partition and sale - [See Family Law - Topic 761].

Real Property - Topic 5646

Title - Extinguishment of title - Limitation of actions - Adverse possession - Possession - Possessory title - Establishment of - A husband and wife divorced in 1958 - The wife remained in the marital home until 1962, then left - For the next 26 years the wife made no legal claim against the marital home and in no way contributed to the costs of maintaining it - The husband remarried in 1967 and conveyed his interest to his new wife in 1975 - The New Brunswick Court of Queen's Bench, Family Division, held that the husband and his new wife acquired title to the marital home by adverse possession, because they had open, continuous, notorious and exclusive possession for over 20 years without any claim by the wife - The New Brunswick Court of Appeal held that the wife's claim was not statute barred; the husband had no intention of excluding his co-owner (wife) from possession, therefore the required "animus possidendi" was not present - Additionally, by virtue of a 1971 deed to the husband and wife as joint tenants, the earliest the 20 year prescription period could run would be 1991.

Cases Noticed:

Lacombe v. Pelletier (1984), 54 N.B.R.(2d) 81; 140 A.P.R. 81, refd to. [para. 7].

Re Strong and Colby et al. (1978), 20 O.R.(2d) 356, refd to. [para. 7].

Ludlow v. McGraw (1987), 79 N.B.R.(2d) 10; 201 A.P.R. 10, refd to. [para. 21].

Tolosnak v. Tolosnak (1957), 10 D.L.R.(2d) 186, refd to. [para. 37].

Smith v. Lloyd, 9 Exch. 562, refd to. [para. 37].

Pflug and Pflug v. Collins, [1952] O.R. 519; [1952] 3 D.L.R. 681, affd. [1953] O.W.N. 140; [1953] 1 D.L.R. 841, refd to. [para. 38].

Paradise Beach et al. v. Price-Robinson et al., [1968] 1 All E.R. 530, refd to. [para. 40].

Re Appleby (1983), 42 N.B.R.(2d) 427; 110 A.P.R. 427, refd to. [para. 40].

Anderson v. Anderson (1906), 37 N.B.R. 432, refd to. [para. 41].

Hamilton v. The King (1917), 35 D.L.R. 226; 54 S.C.R. 331, refd to. [para. 41].

Statutes Noticed:

Limitation of Actions Act, R.S.N.B. 1973, c. L-8, sect. 29 [para. 6].

Authors and Works Noticed:

Anger and Honsberger, Law of Real Property (2nd Ed. 1985), pp. 1496 [para. 34]; 1500-1501 [paras. 35, 39]; 1542 [para. 41].

Black's Law Dictionary (4th Ed. 1951) [para. 37].

Williams, Limitations of Actions in Canada.

Counsel:

T. Arthur Barry, for the appellant;

David N. Rogers, for the respondent.

This appeal was heard on March 23, 1989, before Stratton, C.J.N.B., Hoyt and Rice, JJ.A., of the New Brunswick Court of Appeal.

On November 29, 1989, the judgment of the Court of Appeal was delivered and the following opinions were filed:

Hoyt, J.A. (Stratton, C.J.N.B., concurring) - see paragraphs 1 to 31;

Rice, J.A., dissenting in part - see paragraphs 32 to 43.