Donald v. Donald, (1991) 103 N.S.R.(2d) 322 (CA)

• Judge: Jones, Hallett and Chipman, JJ.A.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: May 16, 1991
• Jurisdiction: Nova Scotia
• Citations: (1991), 103 N.S.R.(2d) 322 (CA);1991 CanLII 2563 (NS CA);33 RFL (3d) 196;103 NSR (2d) 322;282 APR 332

Donald v. Donald (1991), 103 N.S.R.(2d) 322 (CA);

    282 A.P.R. 322

MLB headnote and full text

Wallace Owen Donald (appellant) v. Carol Leigh Donald (respondent)

(S.C.A. No. 02396)

Indexed As: Donald v. Donald

Nova Scotia Supreme Court

Appeal Division

Jones, Hallett and Chipman, JJ.A.

May 16, 1991.

Summary:

A husband and wife separated after 27 years' marriage. The husband petitioned for divorce. The wife applied for an unequal division of matrimonial property and spousal and child maintenance.

The Nova Scotia Supreme Court, Trial Division, in a judgment reported 98 N.S.R.(2d) 77; 263 A.P.R. 77, granted the divorce, unequally divided matrimonial property in the wife's favour and awarded maintenance for five years. The court also awarded the wife "arrears" of support and ordered the husband to pay $5,000 per year into an R.R.S.P. for the wife until she reached 65. The husband appealed the unequal division, the R.R.S.P. order and the support "arrears". The wife cross-appealed the five year limitation on maintenance.

The Nova Scotia Supreme Court, Appeal Division, allowed the appeal in part and allowed the cross-appeal. The court ordered an equal division of matrimonial property, affirmed the "arrears" order, struck the R.R.S.P. order and struck the maintenance time limitation.

Family Law - Topic 874

Husband and wife - Marital property - Distribution orders - Statutes requiring equal division - A 48 year old dentist and his 46 year old wife divorced after 27 years' marriage - Traditional marriage - Wife raised three children and worked sporadically in the husband's business and elsewhere - The wife was university educated - The Nova Scotia Court of Appeal held that an equal division of matrimonial property was justified - The court stated that great disparity in earning power and, accordingly, the ability to plan for the future, was relevant to maintenance, but not relevant to the division of matrimonial property - See paragraphs 19 to 27.

Family Law - Topic 875

Husband and wife - Marital property - Distribution orders - Statutes requiring equal division - Exceptions - [See Family Law - Topic 874].

Family Law - Topic 3997

Divorce - Corollary relief - Obligation to achieve financial independence - A 48 year old dentist with a lucrative practice divorced his 46 year old wife after 27 years' marriage - The wife worked part-time ($8,800 per year) and the husband earned in excess of $134,000 per year - The wife had a university degree, but had a lower earning capacity and ability to accumulate retirement savings than her husband - The trial judge awarded $3,000 per month spousal and child maintenance for a five year period - The Nova Scotia Court of Appeal struck the time limitation - The trial judge overemphasized self-sufficiency and underemphasized the factors in s. 15(5) of the Divorce Act - See paragraphs 46 to 56.

Family Law - Topic 4001

Divorce - Corollary relief - Maintenance awards - Jurisdiction of court to grant maintenance - Retroactive support - A husband and wife separated in 1986 - The wife received no interim maintenance, but supported herself with $4,200 per month from the husband's company - The husband cut off the payments in May 1989 - The trial judge awarded the wife "arrears" of maintenance from June 1, 1989 to July 1, 1990 (trial) - The Nova Scotia Court of Appeal held that s. 15 of the Divorce Act gave the trial judge jurisdiction to make such an order for support the husband should have paid in the past - The court stated that use of the term "arrears" was inappropriate - See paragraphs 28 to 40.

Family Law - Topic 4022

Divorce - Corollary relief - Maintenance awards - To wife - Considerations - [See Family Law - Topic 3997].

Family Law - Topic 4022.1

Divorce - Corollary relief - Maintenance awards - To wife - Extent of obligation - [See Family Law - Topic 3997].

Family Law - Topic 4093

Divorce - Corollary relief - Incidental matters - Contribution to spouse's R.R.S.P. - A husband and wife divorced after 27 years' marriage - The 46 year old wife had a significantly lower earning capacity and ability to accumulate retirement savings - The trial judge ordered the husband to contribute $5,000 per year to an R.R.S.P. for his wife until age 65 - The Nova Scotia Court of Appeal set aside the order - The court stated that "ordering the payments into the R.R.S.P. for the [wife] to age 65 was looking far too distantly into the future" - See paragraphs 41 to 45.

Cases Noticed:

Heinemann v. Heinemann (1989), 91 N.S.R.(2d) 136; 233 A.P.R. 136; 20 R.F.L.(3d) 236 (C.A.), refd to. [para. 16].

Lynk v. Lynk (1989), 92 N.S.R.(2d) 1; 237 A.P.R. 1; 21 R.F.L.(3d) 337 (C.A.), refd to. [para. 16].

Archibald v. Archibald (1981), 48 N.S.R.(2d) 361; 92 A.P.R. 361 (T.D.), refd to. [para. 20].

Harwood v. Thomas (1981), 45 N.S.R.(2d) 414; 86 A.P.R. 414 (C.A.), refd to. [para. 20].

Briggs v. Briggs (1984), 64 N.S.R.(2d) 40; 143 A.P.R. 40 (T.D.), refd to. [para. 23].

Arthur v. Arthur (1985), 67 N.S.R.(2d) 323; 155 A.P.R. 323, refd to. [para. 26].

Nightingale v. Nightingale (1986), 5 R.F.L.(3d) 175, refd to. [para. 34].

Benson v. Benson (1985), 45 R.F.L.(2d) 169, refd to. [para. 34].

Richardson v. Richardson (1984), 43 R.F.L.(2d) 132, refd to. [para. 34].

Chadderton v. Chadderton (1972), 31 D.L.R.(3d) 656, refd to. [para. 34].

Magne v. Magne (1990), 65 Man.R.(2d) 241; 26 R.F.L.(3d) 364 (Q.B.), refd to. [para. 38].

Ambrose v. Ambrose (1990), 24 R.F.L.(3d) 353 (Man. C.A.), refd to. [para. 39].

Hemming v. Hemming (1983), 58 N.S.R.(2d) 65; 123 A.P.R. 65, refd to. [para. 44].

MacGregor v. MacGregor (1985), 65 N.S.R.(2d) 103; 147 A.P.R. 103, refd to. [para. 44].

Messier v. Delage (1983), 50 N.R. 16; 35 R.F.L.(2d) 337 (S.C.C.), refd to. [para. 44].

Linton v. Linton (1990), 42 O.A.C. 328; 1 O.R.(3d) 1 (C.A.), refd to. [para. 50].

Statutes Noticed:

Divorce Act, R.S.C. 1970, c. D-8, sect. 10, sect. 11 [para. 35]; sect. 12 [para. 36].

Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, sect. 13 [para. 19]; sect. 15(2), sect. 15(3), sect. 15(4), sect. 15(5), sect. 15(7) [para. 28].

Counsel:

William L. Ryan, Q.C., for the appellant;

Leslie J. Dellapinna, for the respondent.

This appeal and cross-appeal were heard on April 9, 1991, before Jones, Hallett and Chipman, JJ.A., of the Nova Scotia Supreme Court, Appeal Division.

On May 16, 1991, Chipman, J.A., delivered the following judgment for the Court of Appeal.