Ivey v. Muir, (1989) 93 N.S.R.(2d) 347 (FC)

• Case Date: October 30, 1989
• Jurisdiction: Nova Scotia
• Citations: (1989), 93 N.S.R.(2d) 347 (FC)

Ivey v. Muir (1989), 93 N.S.R.(2d) 347 (FC);

              242 A.P.R. 347

MLB headnote and full text

Sheila E. Ivey (applicant) v. Donald R. Muir (respondent)

(F.H. No. 78-839)

Indexed As: Ivey v. Muir

Nova Scotia Family Court

Moir, J.F.C.

November 14, 1989.

Summary:

In 1979 an unmarried mother was awarded lump sum maintenance from the father under the Children of Unmarried Parents Act. In 1989 the mother applied to vary the lump sum maintenance order and sought periodic maintenance under the Family Maintenance Act. The father submitted that the court had no jurisdiction to vary lump sum maintenance by providing for periodic maintenance.

The Nova Scotia Family Court held that it had jurisdiction to vary the order and to award periodic maintenance under the Family Maintenance Act. The court reserved for trial whether the court would vary the order in this case.

Civil Rights - Topic 5660.6

Equality rights - Children of unmarried parents legislation - In 1979 an unmarried mother was awarded lump sum maintenance from the father under the Children of Unmarried Parents Act - In 1989 the mother applied to vary the order and to obtain periodic maintenance for the child under the Family Maintenance Act - The Nova Scotia Family Act stated that "to deny that the lump sum payment agreed upon in 1979 could not be varied, where, if the mother had been married to the father, it could be varied, is in direct contravention of his and his mother's constitutional rights under s. 15 of the Charter of Rights and Freedoms" - See paragraph 45.

Infants - Topic 2566

Illegitimate children - Support - Award - Variation - In 1979 an unmarried mother was awarded lump sum maintenance from the father under the Children of Unmarried Parents Act - In 1989 the mother applied to vary the order and to obtain periodic maintenance for her child under the Family Maintenance Act - The Nova Scotia Family Court held that it had jurisdiction under s. 36 of the Family Maintenance Act to vary the lump sum order and award periodic maintenance - The court noted that the lump sum award was not final and that the right to support was personal to the child, not the mother.

Cases Noticed:

Shingoose v. Zadorawski (1977), 2 R.F.L.(2d) 332 (Sask. Q.B.), refd to. [para. 15].

Hayre v. Hayre (No. 2) (1978), 5 R.F.L.(2d) 85 (B.C.S.C.), affd. 8 B.C.L.R. 161 (C.A.), refd to. [paras. 16, 28].

Earle v. Hillier (1975), 8 Nfld. & P.E.I.R. 194; 8 A.P.R. 194 (Nfld. S.C.), refd to. [para. 19].

Rivera v. Rivera (1979), 30 N.S.R.(2d) 656; 49 A.P.R. 656, refd to. [para. 20].

Currie v. Currie (1986), 75 N.S.R.(2d) 539; 186 A.P.R. 539 (C.A.), refd to. [para. 20].

Pelech v. Pelech, [1987] 1 S.C.R. 801; [1987] 4 W.W.R. 481; 76 N.R. 81; 7 R.F.L.(3d) 225, consd. [para. 22].

Richardson v. Richardson, [1987] 1 S.C.R. 857; 77 N.R. 1; 22 O.A.C. 1; 7 R.F.L.(3d) 304, consd. [para. 22].

Caron v. Caron, [1987] 1 S.C.R. 892; 75 N.R. 36; 2 Y.R. 246; 7 R.F.L.(3d) 274 (S.C.C.), consd. [para. 22].

Silverman v. Silverman (1978), 79 N.S.R.(2d) 282; 196 A.P.R. 282 (C.A.), refd to. [para. 23].

Binns v. Binns (1985), 69 N.S.R.(2d) 205; 163 A.P.R. 205; 45 R.F.L.(2d) 269 (F.C.), refd to. [para. 30].

Stevens v. Stevens (1985), 45 R.F.L. (2d) 19 (Sask. F.C.), refd to. [para. 31].

D.S.W. v. R.H. (1988), 71 Sask.R. 66 (C.A.), refd to. [para. 37].

Gorzen v. Litz, [1988] 4 W.W.R. 763; 66 Sask.R. 211, refd to. [para. 41].

P.A.D. v. L.G. (1988), 89 N.S.R.(2d) 7; 227 A.P.R. 7 (F.C.), refd to. [para. 43].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 1 [para. 52]; sect. 15 [para. 40].

Children of Unmarried Parents Act, R.S.N.S. 1967, c. 32.

Divorce Act, R.S.C. 1970, c. D-8, sect. 11(2) [para. 17].

Divorce Act, S.C. 1986, c. 4, sect. 15(2), sect. 17(1) [para. 34].

Family Maintenance Act, S.N.S. 1980, c. 6, sect. 36, sect. 53, sect. 54 [para. 14].

Counsel:

Yvonne R. LaHaye, for the applicant;

B. Lynn Reierson, for the respondent.

This application was heard on October 30, 1989, before Moir, J.F.C., of the Nova Scotia Family Court, who delivered the following judgment on November 14, 1989.