Frost v. Frost, (1999) 216 N.B.R.(2d) 134 (CA)

• Judge: Ayles, Ryan and Turnbull, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: June 25, 1999
• Jurisdiction: New Brunswick
• Citations: (1999), 216 N.B.R.(2d) 134 (CA)

Frost v. Frost (1999), 216 N.B.R.(2d) 134 (CA);

    216 R.N.-B.(2e) 134; 552 A.P.R. 134

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[French language version follows English language version]

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

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Temp. Cite: [1999] N.B.R.(2d) TBEd. JL.006

David Cecil Frost (applicant/appellant) v. Katherine Ann (Frost) Lord (respondent/respondent)

(88/97/CA)

Indexed As: Frost v. Frost

New Brunswick Court of Appeal

Ayles, Ryan and Turnbull, JJ.A.

June 25, 1999.

Summary:

A husband and wife separated. The wife applied for an accounting of marital assets and debts and a division of marital property under the Marital Property Act. Subse­quent­ly, the wife petitioned for a divorce. The husband applied for child support. The actions were consolidated for trial.

The New Brunswick Court of Queen's Bench, Family Division, in a judgment reported 176 N.B.R.(2d) 263; 447 A.P.R. 263, granted the divorce, divided the marital property and awarded the husband child support. The husband appealed. The wife cross-appealed.

The New Brunswick Court of Appeal, in a judgment reported 183 N.B.R.(2d) 73; 465 A.P.R. 73, dismissed the appeal and the cross-appeal. The wife was in arrears of child support. The husband, now bankrupt, had a judgment against him in favour of the wife. The trial judge made an order directing Manulife Financial (holder of $72,397 of the husband's R.R.S.P.s) to pay $26,193.23 in trust for the wife. Other than the bare order itself, there was no record in the Court of Queen's Bench and nothing to indicate how the matter came before the court. The hus­band appealed the order.

The New Brunswick Court of Appeal allowed the appeal and remitted the matter to the trial judge for a hearing to determine whether Manulife should be ordered to pay over R.R.S.P. funds to satisfy the judgment.

Practice - Topic 5412

Judgments and orders - General - Condi­tions precedent - Spouses divorced - The wife was in arrears of child support - The husband, now bankrupt, had an unsatisfied judgment against him in the wife's favour - Manulife held $72,397 in R.R.S.P.s for the husband - A trial judge ordered that Manulife pay over $26,193.23 in trust to the wife to satisfy the judgment - There was no record in the Court of Queen's Bench - Although the order contained several recitations, there was no accom­panying affidavit and no evidence on file to show on what evidence or exactly how the matter came before the trial judge - Other than the bare order, there was no record - The New Brunswick Court of Appeal held that this was unsatisfactory - The court set aside the order and remitted the matter to the trial judge for a hearing on whether an order should be issued.

Practice - Topic 6252

Judgments and orders - Setting aside or­ders - Grounds for - [See Practice - Topic 5412 ].

Counsel:

John C. Friel, Q.C., for the appellant;

No one appearing for the respondent.

This appeal was heard on June 23, 1999, before Ayles, Ryan and Turnbull, JJ.A., of the New Brunswick Court of Appeal.

On June 25, 1999, the following judg­ment was delivered by the court.