J.B.P. v. L.J.S., (2008) 263 N.S.R.(2d) 192 (CA)

• Judge: Cromwell, Oland and Fichaud, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: February 07, 2008
• Jurisdiction: Nova Scotia
• Citations: (2008), 263 N.S.R.(2d) 192 (CA);2008 NSCA 19

J.B.P. v. L.J.S. (2008), 263 N.S.R.(2d) 192 (CA);

    843 A.P.R. 192

MLB headnote and full text

Temp. Cite: [2008] N.S.R.(2d) TBEd. MR.016

L.J.S. (appellant) v. J.B.P. (respondent)

(CA 276228; 2008 NSCA 19)

Indexed As: J.B.P. v. L.J.S.

Nova Scotia Court of Appeal

Cromwell, Oland and Fichaud, JJ.A.

March 6, 2008.

Summary:

A mother applied to vary a court order and asked for spousal support and child support for the parties' two children.

The Nova Scotia Family Court, in a decision reported at [2006] N.S.R.(2d) Uned. 108, determined the issues. The court imputed an annual income to the father of $40,000 for the purpose of the Child Maintenance Guidelines under the Maintenance and Custody Act, and ordered the father to pay the table amount of $579 per month as maintenance for two children. He ordered the father to pay spousal maintenance of $2,200 by December 31, 2006 and $2,500 by February 28, 2007, "in full satisfaction of the spousal support claim" under the Act. Some seven months after the decision, the mother applied for an order extending the time to file a notice of appeal.

The Nova Scotia Court of Appeal, per Oland, J.A., in a decision reported at 253 N.S.R.(2d) 54; 807 A.P.R. 54, allowed the application. The appeal proceeded.

The Nova Scotia Court of Appeal dismissed the appeal as it related to child maintenance. Respecting spousal maintenance, the court allowed the appeal by adding to the existing spousal support obligations the requirement that the father pay spousal maintenance of $214 per month beginning April 1, 2007 and continuing indefinitely, subject to any future variation order.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Family Law - Topic 2213

Maintenance of wives and children - General principles - Extent of duty to support - The parties separated after a 10 year common law relationship - They had two sons - The mother sought, inter alia, spousal maintenance - The trial judge ordered the father to pay spousal maintenance of $2,200 by December 31, 2006 and $2,500 by February 28, 2007, "in full satisfaction of the spousal support claim" under the Maintenance and Custody Act - The Nova Scotia Court of Appeal allowed the mother's appeal - The court's concern was the trial judge's ruling that the lump sums "be in full satisfaction of the spousal support claim" - The decision did not explain why spousal maintenance should terminate in February 2007 - None of the factors to be considered (the mother's assumption of the heavier financial load, her lesser or non-existent income, her wish to re-educate toward self-sufficiency, the children's ongoing care, the stress of the litigation and family dynamics and her absence from employment due to stress leave) justified a truncation of spousal maintenance - This was an appropriate case for indefinite periodic spousal maintenance - The court ordered the father to pay spousal maintenance of $214 per month beginning April 1, 2007 and continuing indefinitely, subject to any future variation order - See paragraphs 20 to 30.

Family Law - Topic 2328

Maintenance of wives and children - Maintenance of wives - Effect of wife's ability to work - [See Family Law - Topic 2213 ].

Family Law - Topic 2329

Maintenance of wives and children - Maintenance of wives - Considerations (incl. pensions) - [See Family Law - Topic 2213 ].

Cases Noticed:

Hickey v. Hickey, [1999] 2 S.C.R. 518; 240 N.R. 312; 138 Man.R.(2d) 40; 202 W.A.C. 40, refd to. [para. 9].

Pettigrew v. Pettigrew (2006), 246 N.S.R.(2d) 298; 780 A.P.R. 298; 2006 NSCA 98, refd to. [para. 9].

D.B.S. v. S.R.G., [2006] 2 S.C.R. 231; 351 N.R. 201; 391 A.R. 297; 377 W.A.C. 297, refd to. [para. 13].

Wilcox v. Snow (1999), 181 N.S.R.(2d) 92; 560 A.P.R. 92; 1999 NSCA 163, refd to. [para. 13].

Moge v. Moge, [1992] 3 S.C.R. 813; 145 N.R. 1; 81 Man.R.(2d) 161; 30 W.A.C. 161, refd to. [para. 24].

Bracklow v. Bracklow, [1999] 1 S.C.R. 420; 236 N.R. 79; 120 B.C.A.C. 211; 196 W.A.C. 211, refd to. [para. 24].

Boileau v. Spriggs, [1999] N.S.J. No. 510 (S.C.), refd to. [para. 26].

Nugent v. Nugent, [2005] N.S.R.(2d) Uned. 139 (S.C.), refd to. [para. 26].

Robicheau v. Earle, [2004] N.S.R.(2d) Uned. 52 (Fam. Ct.), refd to. [para. 26].

Authors and Works Noticed:

Payne, Julien D., and Payne, Marilyn A., Canadian Family Law (2nd Ed. 2006), p. 412 [para. 26].

Counsel:

Johanne L. Tournier, for the appellant;

J.B.P., representing himself as the respondent.

This appeal was heard on February 7, 2008, at Halifax, N.S., by Cromwell, Oland and Fichaud, JJ.A., of the Nova Scotia Court of Appeal. The following judgment of the Court of Appeal was delivered by Fichaud, J.A., on March 6, 2008.