Jull v. Jull, (1984) 56 A.R. 123 (CA)

• Judge: Lieberman, Stevenson and Kerans, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: October 15, 1984
• Citations: (1984), 56 A.R. 123 (CA)

Jull v. Jull (1984), 56 A.R. 123 (CA)

MLB headnote and full text

Jull v. Jull

(No. 15880)

Indexed As: Jull v. Jull

Alberta Court of Appeal

Lieberman, Stevenson and Kerans, JJ.A.

October 15, 1984.

Summary:

A husband and wife divorced in 1981. The spouses agreed on custody, division of the marital property and maintenance for the children. The self-employed wife waived her right to maintenance. After the wife's business failed, she applied under s. 11 of the Divorce Act to increase the maintenance for the children and to provide maintenance for herself.

The Alberta Court of Queen's Bench, in a judgment not reported in this series of reports, increased maintenance for the children, but refused to disturb the wife's waiver of her right to maintenance. The wife appealed.

The Alberta Court of Appeal allowed the appeal and varied the decree nisi to provide $550 per month maintenance for the wife.

Family Law - Topic 4006

Divorce - Corollary relief - Maintenance - Settlements - Effect of - A wife waived her right to maintenance in an agreement entered into at the time of divorce - The Alberta Court of Appeal, in deciding whether to award maintenance notwithstanding the agreement, discussed two conflicting approaches, the fairness approach (whether it was fit and just that the husband pay maintenance) and the freedom approach (where agreements entered into freely with proper legal advice and full knowledge of the circumstances should be enforced) - The court stated that one solution to the conflict was a compromise between the two approaches - See paragraphs 16 to 21.

Family Law - Topic 4006

Divorce - Corollary relief - Maintenance - Settlements - Effect of - In a settlement agreement a wife waived her right to maintenance and the spouses agreed on maintenance for the children - The wife later applied to increase the children's maintenance and for maintenance for herself - The Alberta Court of Appeal, compromising between respecting the agreement and doing what was fair and just, varied the decree nisi to provide $550 a month maintenance for the wife - The court held that depriving the wife of the maintenance would have deprived the children of the support they needed - See paragraphs 16 to 25.

Cases Noticed:

Goldstein v. Goldstein, [1976] 4 W.W.R. 646, refd to. [para. 14].

Messier v. Delage (1984), 50 N.R. 16; 2 D.L.R. (4th) 1, refd to. [para. 14].

Hyman v. Hyman, [1929] A.C. 601 (H.L.), refd to. [para. 14].

Beach v. Beach (1977), 2 A.R. 561 (Alta. S.C.T.D.), refd to. [para. 17].

Collins v. Collins (1982), 10 A.R. 214, refd to. [para. 18].

Farquar v. Farquar (1983), 35 R.F.L. (2d) 287 (Ont. C.A.), refd to. [para. 19].

Webb v. Webb (1984), 5 O.A.C. 161 (C.A.), refd to. [para. 20].

Statutes Noticed:

Divorce Act, R.S.C. 1970, c. D-8, sect. 11(1) [para. 7].

Authors and Works Noticed:

Wilson, Family Law: Dimensions of Justice, p. 48 [paras. 23, 24].

Counsel:

Neil v. German, Q.C., for the appellant (petitioner and counter-respondent);

Jay Straith, for the respondent (respondent and counter-petitioner).

This appeal was heard before Lieberman, Stevenson and Kerans, JJ.A., of the Alberta Court of Appeal.

On October 15, 1984, Kerans, J.A., delivered the following judgment for the Court of Appeal.