Hemeon v. Cross, (1978) 29 N.S.R.(2d) 554 (CA)

• Judge: MacKeigan, C.J.N.S., Coffin and Cooper, JJ.A.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: November 01, 1978
• Jurisdiction: Nova Scotia
• Citations: (1978), 29 N.S.R.(2d) 554 (CA)

Hemeon v. Cross (1978), 29 N.S.R.(2d) 554 (CA);

    45 A.P.R. 554

MLB headnote and full text

Hemeon v. Cross

Indexed As: Hemeon v. Cross

Nova Scotia Supreme Court

Appeal Division

MacKeigan, C.J.N.S., Coffin and Cooper, JJ.A.

November 1, 1978.

Summary:

This case arose out of an interlocutory application by a wife for leave to issue execution against her former husband for payment of maintenance arrears of $6,190.00. The wife applied pursuant to Civil Procedure Rule 52.04(1)(a). The Nova Scotia Supreme Court, Trial Division, granted the wife's application to the extent of granting leave to issue execution for $500.00. The wife appealed to the Nova Scotia Court of Appeal.

The Nova Scotia Court of Appeal dismissed the appeal and affirmed the order of the Trial Division. The Court of Appeal stated that "the so-called one year rule is not a rule of law and should be considered merely as a guide" (see paragraph 22).

The Court of Appeal stated that the application by the wife should have been brought under Rule 101 of the Divorce Court Rules (1948). The Court of Appeal stated that Rule 101 requires judicial approval for any execution of a divorce order (see paragraph 10).

Family Law - Topic 4050

Divorce - Corollary relief - Maintenance - Enforcement - Payment of arrears of maintenance - A wife applied for leave to issue execution against her former husband for payment of maintenance arrears of $6,190.00 - The Nova Scotia Court of Appeal affirmed the order of the trial judge which granted leave for execution for the arrears to the extent of $500.00 - The Court of Appeal stated that "the so-called 1 year rule is not a rule of law and should be considered merely as a guide" (see paragraph 22).

Family Law - Topic 4052

Divorce - Corollary relief - Maintenance - Enforcement - Requirement of judicial approval for execution of divorce order - The Nova Scotia Court of Appeal held that Rule 101 of the Divorce Court Rules (1948) requires judicial approval for any execution of a divorce order (see paragraph 10).

Cases Noticed:

Bickerton v. Bickerton (1975), 22 R.F.L. 189 (Ont. H.C.), refd to. [para. 4].

Ormandy v. Ormandy et al. (1974), 18 R.F.L. 256 (Ont. H.C.), refd to. [para. 4].

Lear v. Lear (1974), 51 D.L.R.(3d) 56 (Ont. C.A.), refd to. [para. 4].

R. v. MacDonald (1976), 26 R.F.L. 204 (Ont. H.C.), refd to. [para. 4].

MacDonald v. MacDonald, [1964] P. 1 (C.A.), refd to. [para. 9].

W. v. W., [1962] P. 131, refd to. [para. 9].

Wright v. Wright, [1955] O.W.N. 405, refd to. [para. 11].

Campbell v. Campbell, [1922] P. 187, refd to. [para. 19].

Statutes Noticed:

Civil Procedure Rules (N.S.), rule 52.04(1)(a) [para. 1].

Divorce Court Rules (N.S.) (1948), rule 101 [para. 10].

Divorce Act, R.S.C. 1970, c. D-8, sect. 19 [paras. 13, 14].

Authors and Works Noticed:

Tolstoy on Divorce (6th Ed.), p. 326 [para. 20].

Kramer, The Enforcement of Support Arrears: A History of Alimony, Maintenance and the Myth of the One-Year Rule, 19 R.F.L. 129 [para. 22].

Counsel:

E. Anthony Ross, for the appellant wife;

Donald H. Oliver, for the respondent.

This appeal was heard by MacKEIGAN, C.J.N.S., COFFIN and COOPER, JJ.A., of the Appeal Division of the Nova Scotia Supreme Court at Halifax, Nova Scotia on October 23, 1978.

The judgment of the Nova Scotia Court of Appeal was delivered by MacKEIGAN, C.J.N.S., at Halifax, Nova Scotia on November 1, 1978.