Fletcher v. Bourgeois, (2004) 222 N.S.R.(2d) 224 (SC)

• Judge: Gass, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: February 24, 2004
• Jurisdiction: Nova Scotia
• Citations: (2004), 222 N.S.R.(2d) 224 (SC);2004 NSSF 26

Fletcher v. Bourgeois (2004), 222 N.S.R.(2d) 224 (SC);

 701 A.P.R. 224

MLB headnote and full text

Temp. Cite: [2004] N.S.R.(2d) TBEd. MY.003

Brenda Eileen Fletcher (petitioner/respondent) v. Daniel Alan Bourgeois (respondent/applicant)

(1201-38086; 2004 NSSF 26)

Indexed As: Fletcher v. Bourgeois

Nova Scotia Supreme Court

Gass, J.

March 22, 2004.

Summary:

A husband and wife divorced in 1987. The wife remarried in 1992 and in 1993 the husband signed a consent to adopt to permit the new husband to adopt his two children. No further child support was paid or sought notwithstanding the adoption was not completed until 1997. The wife and her new husband separated. One child was now an adult. The other was in university. The wife now sought to enforce support arrears for the period between the signing of the consent to adopt and the completion of the adoption, submitting that the husband's support obligation only terminated upon completion of the adoption. The husband sought a retroactive termination of support and cancellation of arrears.

The Nova Scotia Supreme Court allowed the husband's application. The support obligation terminated when the husband signed the consent to adopt, when his parental rights were terminated. All arrears were cancelled. Alternatively, arrears would not be enforced where the husband had a lawful excuse for not paying support, was financially unable to pay and it was unreasonable in the circumstances to expect him to pay.

Family Law - Topic 1677

Adoption - Effect of adoption - On maintenance obligations - A husband and wife divorced in 1987 - The wife remarried in 1992 and in 1993 the husband signed a consent to adopt to permit the new husband to adopt his two children - No further child support was paid or sought notwithstanding that, unknown to the husband, the adoption was not completed until 1997 - The wife and her new husband separated - One child was now an adult - The other was in university - The wife now sought to enforce support arrears for the period between the signing of the consent to adopt and the completion of the adoption, submitting that the husband's support obligation terminated only upon completion of the adoption - The husband sought a retroactive termination of support and cancellation of arrears - The Nova Scotia Supreme Court allowed the husband's application - The support obligation terminated when the husband signed the consent to adopt, which terminated his parental rights - All arrears were cancelled - Alternatively, arrears would not be enforced where the husband had a lawful excuse for not paying support, was financially unable to pay and it was unreasonable in the circumstances to expect him to pay.

Family Law - Topic 4050

Divorce - Corollary relief - Maintenance - Enforcement - Payment or cancellation of arrears of maintenance - [See Family Law - Topic 1677 ].

Cases Noticed:

Smith v. Smith (2002), 207 N.S.R.(2d) 5; 649 A.P.R. 5 (C.A.), refd to. [para. 12].

Wagstaff v. Wagstaff (1981), 48 N.S.R.(2d) 466; 92 A.P.R. 466 (Fam. Ct.), refd to. [para. 16].

Statutes Noticed:

Children and Family Services Act, S.N.S. 1990, c. 5, sect. 78(1)(b) [para. 19].

Counsel:

Shelley Hounsell, for Daniel Bourgeois.

This application was heard on February 24, 2004, at Halifax, N.S., before Gass, J., of the Nova Scotia Supreme Court, who delivered the following judgment on March 22, 2004.