Jones v. Jones, (1980) 27 A.R. 503 (QB)

• Judge: Hetherington, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: August 08, 1980
• Citations: (1980), 27 A.R. 503 (QB)

Jones v. Jones (1980), 27 A.R. 503 (QB)

MLB headnote and full text

Jones v. Jones

(No. 4810 - 00567)

Indexed As: Jones v. Jones

Alberta Court of Queen's Bench

Judicial District of Red Deer

Hetherington, J.

August 8, 1980.

Summary:

The husband and wife entered into an agreement prior to divorce, which was incorporated into the decree nisi, whereby the wife waived any claim for alimony or maintenance except for the payment of $3,000.00 upon the sale of the matrimonial home. The wife subsequently brought an application to increase the amount payable under the decree nisi. The husband earned $9,597.00 at the time of divorce and his only asset was $6,000.00 equity in the matrimonial home. At the time of the application, the husband had remarried and earned $24,141.00 per year and had assets of $25,000.00 in addition to the home, the equity of which was $40,000.00.

The Alberta Court of Queen's Bench dismissed the wife's application. While the husband's increased income may have been reason to direct periodic payments, it was no reason to direct a larger lump sum payment.

Family Law - Topic 4017

Divorce - Corollary relief - Maintenance awards - Variation of lump sum award - The husband and wife made an agreement, which was incorporated into the decree nisi, whereby the wife waived any claim for maintenance except for $3,000.00 upon sale of the matrimonial home - The husband's income and assets increased considerably - The wife applied to increase the amount payable - The Alberta Court of Queen's Bench dismissed the wife's application - The Court stated, while the husband's increased income may have been reason to direct periodic payments, it was no reason to direct a larger lump sum payment - See paragraphs 17 to 20.

Family Law - Topic 4018

Divorce - Corollary relief - Maintenance awards - Variations - Jurisdiction - The husband and wife made an agreement, which was incorporated into the decree nisi, whereby the wife waived any claim for maintenance except for $3,000.00 upon sale of the matrimonial home - The wife subsequently applied to increase the sum payable - The Alberta Court of Queen's Bench held that the payment was intended to be for the wife's maintenance and it was therefore within the jurisdiction of the court to provide for it in the decree nisi - The court held that it had jurisdiction to subsequently vary the award - See paragraph 11.

Cases Noticed:

Gillett v. Gillett (1979), 9 Alta. L.R.(2d) 238; 18 A.R. 1, consd. [para. 10].

Brodytsch v. Brodytsch (1977), 7 A.R. 541 (Alta. C.A.), consd. [para. 18].

Krause v. Krause, [1976] 2 W.W.R. 622 (Alta. C.A.), refd to. [para. 18].

Statutes Noticed:

Divorce Act, R.S.C. 1970, c. D-8, sect. 11(2) [para. 12].

Counsel:

R.H.G. Scammell, for the petitioner;

H. Fielding, for the respondent.

This case was heard before HETHERINGTON, J., of the Alberta Court of Queen's Bench, Judicial District of Red Deer.

The judgment of HETHERINGTON, J., was delivered on August 8, 1980.