Jenkins v. Jenkins, 2008 MBQB 271

• Judge: Thomson, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: October 16, 2008
• Jurisdiction: Manitoba
• Citations: 2008 MBQB 271;(2008), 243 Man.R.(2d) 301 (QBFD)

Jenkins v. Jenkins (2008), 243 Man.R.(2d) 301 (QBFD)

MLB headnote and full text

Temp. Cite: [2009] Man.R.(2d) TBEd. AU.022

Kathleen Joan Jenkins (petitioner) v. Donald Thomas Jenkins (respondent)

(FD 06-01-80061; 2008 MBQB 271)

Indexed As: Jenkins v. Jenkins

Manitoba Court of Queen's Bench

Family Division

Winnipeg Centre

Thomson, J.

October 16, 2008.

Summary:

The parties separated after a 15.5 year marriage. The wife applied for spousal support under the Family Maintenance Act. The husband sought to rely upon the terms of a marriage agreement which precluded the wife's claim to spousal support.

The Manitoba Court of Queen's Bench, Family Division, exercised its discretion to effect a judicial override of the waiver of spousal support contained in the agreement.

Family Law - Topic 3270

Separation agreements, domestic contracts and marriage contracts - Enforcement - Maintenance - [See Family Law - Topic 3356 ].

Family Law - Topic 3356

Separation agreements, domestic contracts and marriage contracts - Effect of agreement - Maintenance - The parties separated after a 15.5 year marriage - The wife, age 62, applied for spousal support under the Family Maintenance Act - The husband, age 81, sought to rely upon the terms of a marriage agreement which precluded the wife's claim to spousal support - Both parties had been married before and had adult children - The wife was struggling financially when the parties wed - She had no savings or assets - The husband was well established, had a sizeable annual income, but planned to retire in a few years - The wife initially refused to sign the agreement but later received independent legal advice and signed the agreement after negotiating the inclusion of some advantageous terms in the final form of the agreement - The agreement provided, inter alia, that the wife would obtain a half interest in what would become the marital home, the husband would roll over $5,000 in RRSPs to her and that she would be entitled to a lump sum of $10,000 spousal support if the parties separated - It was understood that she would not work during the marriage and would be wholly supported by the husband at an elevated lifestyle - After the separation, the wife had very few assets, aside from what remained of her share of the proceeds received for her share of the family home - She was unemployed and at risk of becoming a "public charge" - The Manitoba Court of Queen's Bench, Family Division, exercised its discretion to effect a judicial override of the waiver of spousal support contained in the agreement - The enforcement of the spousal support clause did not reflect the original intention of the parties - They assumed that each would be self-sufficient if the relationship ended or would be capable of achieving self-sufficiency within a reasonably short time thereafter - The agreement was no longer in substantial compliance with the objectives of the Divorce Act - The terms benefiting the wife now appeared "scanty" - The disadvantages arising out of the marriage or its breakdown were not properly compensated for - The lump sum support provided to relieve the economic hardship arising from the marriage breakdown was wholly insufficient.

Family Law - Topic 3384

Separation agreements, domestic contracts and marriage contracts - Grounds for setting aside - Inequitable result or unfairness - [See Family Law - Topic 3356 ].

Cases Noticed:

Miglin v. Miglin, [2003] 1 S.C.R. 303; 302 N.R. 201; 171 O.A.C. 201; 34 R.F.L.(5th) 255; 2003 CarswellOnt 1374, refd to. [para. 3].

Butty v. Butty, [2008] O.T.C. Uned. A50; 2008 CarswellOnt 2918 (Sup. Ct.), refd to. [para. 56].

Hartshorne v. Hartshorne, [2004] 1 S.C.R. 550; 318 N.R. 1; 194 B.C.A.C. 161; 317 W.A.C. 161; 2004 SCC 22, refd to. [para. 58].

Counsel:

S. Norman Rosenbaum, for the petitioner;

Douglas E. Johnston, for the respondent.

This matter was heard before Thomson, J., of the Manitoba Court of Queen's Bench, Family Division, Winnipeg Centre, who delivered the following judgment on October 16, 2008.