Gallagher v. Stark, (1983) 59 N.S.R.(2d) 376 (CoCt)

• Case Date: July 28, 1983
• Jurisdiction: Nova Scotia
• Citations: (1983), 59 N.S.R.(2d) 376 (CoCt)

Gallagher v. Stark (1983), 59 N.S.R.(2d) 376 (CoCt);

    125 A.P.R. 376

MLB headnote and full text

Gallagher v. Stark

(C.H. 39535)

Indexed As: Gallagher v. Stark

Nova Scotia County Court

District Number One

O Hearn, C.C.J.

July 28, 1983.

Summary:

A woman applied under the Family Maintenance Act for maintenance from her common-law husband. The Nova Scotia Family Court, in a decision reported in (1983), 56 N.S.R.(2d) 361; 117 A.P.R. 361, awarded the woman $1500.00 monthly maintenance for eighteen months, and $20,000.00 lump sum maintenance, payable at the expiration of the eighteen months. The husband appealed to the County Court.

The Nova Scotia County Court dismissed the appeal.

Courts - Topic 6081

Provincial courts - Nova Scotia - County Court - Jurisdiction - General - The Nova Scotia County Court held that it has no jurisdiction under the Family Maintenance Act to give a judgment that recognizes a resulting or constructive trust - See paragraph 45.

Courts - Topic 6164

Provincial Courts - Nova Scotia - Family Court - Jurisdiction - General - The Nova Scotia County Court affirmed that the Nova Scotia Family Court has no jurisdiction under the Family Maintenance Act to give a judgment that recognizes a resulting or constructive trust - See paragraph 45.

Family Law - Topic 2323

Maintenance of wives and children - Maintenance of wives - Status to apply - Common-law wife - A man and woman cohabited as husband and wife for one year, separated for one year and resumed cohabitation in November, 1979 until August, 1980 - The woman applied for maintenance under the Family Maintenance Act - Under s. 2(m) of the Act, only common-law spouses who lived together for one year could apply - The Nova Scotia County Court discussed whether the woman had status to apply under the Act and held that she was a spouse within the meaning of s. 2(m) - See paragraphs 8 to 34.

Family Law - Topic 2406

Maintenance of wives and children - Practice - Application - Limitation period - The Nova Scotia County Court held that a spouse's application for maintenance under the Family Maintenance Act must be brought within six months of the other spouse's failure to maintain the applicant adequately - See paragraphs 2 to 7.

Family Law - Topic 2485

Maintenance of wives and children - Awards - Periodic payments and lump sum - A 48 year old woman applied under the Family Maintenance Act for maintenance from a 43 year old man with whom she lived common-law for approximately two years, with a year's separation - She contributed her time, labour and some money in the building of his house - She also performed various domestic tasks - She was unable to work because of health problems - The Nova Scotia County Court affirmed periodic maintenance of $1500.00 per month for eighteen months and lump sum maintenance of $20,000.00, payable at the expiration of the eighteen months - See paragraphs 35 to 53.

Cases Noticed:

Hirji v. Hirji (1976), 30 R.F.L. 56 (Ont. P.C.), refd to. [para. 7].

Jansen v. Montgomery (1982), 54 N.S.R.(2d) 267; 112 A.P.R. 267, dist. [para. 13].

Re Stoikiewicz and Filas (1978), 21 O.R.(2d) 717; 7 R.F.L. (2d) 366; 92 D.L.R. (3d) 129, refd to. [para. 14].

Croft v. Wiseman (1982), 54 N.S.R.(2d) 263; 112 A.P.R. 263, consd. [para. 15].

Sanderson v. Russell (1979), 9 R.F.L. (2d) 82 (Ont. C.A.), refd to. [para. 30].

Dicks v. Zavitz (1979), 13 R.F.L. (2d) 179 (Ont. P.C.), refd to. [para. 30].

Connelly v. Connelly (1974), 9 N.S.R.(2d) 48, refd to. [para. 46].

Johnson v. Johnson (1974), 10 N.S.R.(2d) 625; 2 A.P.R. 625, refd to. [para. 46].

Colbert v. Colbert (1979), 31 N.S.R.(2d) 590; 52 A.P.R. 590, refd to. [para. 46].

Dupuis v. Dupuis (1978), 25 N.S.R.(2d) 444; 36 A.P.R. 444, refd to. [para. 46].

Cox v. Cox (1982), 52 N.S.R.(2d) 298; 106 A.P.R. 298; 28 R.F.L. (2d) 98, refd to. [para. 46].

Statutes Noticed:

Family Maintenance Act, S.N.S. 1980, c. 6, sect. 2(m) [paras. 8, 12, 16]; sect. 3 [paras. 4, 6, 12, 20]; sect. 4 [paras. 6, 27 to 28, 42, 46]; sect. 5 [para. 6]; sect. 6 [para. 6]; sect. 6(2)(b) [para. 10]; sect. 6(3) [para. 11]; sect. 21(1) [para. 5].

Family Court Act, R.S.N.S. 1967, c. 98, sect. 3(2) [paras. 15, 17]; sect. 5A(3) [para. 4].

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 721(2) [paras. 5, 7, 12].

Interpretation Act, R.S.N.S. 1967, c. 151, sect. 8(1) [para. 15]; sect. 8(5) [paras. 14, 22, 24].

Counsel:

Robert W. Newman, for the appellant;

Mary E. Meisner, for the respondent.

This appeal was heard before O Hearn, C.C.J., of the Nova Scotia County Court, District Number One.

The decision of O Hearn, C.C.J., was delivered on July 28, 1983.