Keller v. Keller, (1987) 83 A.R. 313 (QB)

• Judge: Lutz, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: July 15, 1987
• Citations: (1987), 83 A.R. 313 (QB)

Keller v. Keller (1987), 83 A.R. 313 (QB)

MLB headnote and full text

Kevin John Lee Keller (applicant) v. Kimberley Ann Keller (respondent) and Attorney General for Alberta (intervenor)

(Action No. 8713002049)

Indexed As: Keller v. Keller

Alberta Court of Queen's Bench

Judicial District of Fort McMurray

Lutz, J.

July 15, 1987.

Summary:

A husband and wife separated. The husband was ordered to pay child maintenance under the Domestic Relations Act. The husband and wife later divorced. The decree was silent on maintenance. The husband applied for a declaration that the provision for maintenance under the provincial legislation was inoperative following the granting of the divorce.

The Alberta Court of Queen's Bench held that where maintenance was not dealt with under the Divorce Act, maintenance ordered under provincial legislation continued to be operative. The court held that until maintenance was dealt with under the Divorce Act the doctrine of paramountcy did not apply to render the provincial maintenance order inoperative.

Constitutional Law - Topic 3504

Paramountcy of federal statutes - Requirement of conflict or repugnancy - Prior to being divorced a husband was ordered to pay maintenance under the Domestic Relations Act - The divorce decree was silent on maintenance - An issue arose as to whether maintenance ordered under the provincial legislation survived the granting of the divorce - The Alberta Court of Queen's Bench held that the provincial order remained operative until such time as maintenance was dealt with under the Divorce Act - Until that time the provincial order neither collided with nor was repugnant to the federal legislation - Absent such conflict the doctrine of paramountcy did not apply to render the provincial order inoperative.

Constitutional Law - Topic 6416

Federal jurisdiction - Constitution Act, s. 91 - Marriage and divorce - Divorce Act - Effect on provincial legislation respecting maintenance - [See Constitutional Law - Topic 3504 above].

Family Law - Topic 2244

Maintenance of wives and children - Jurisdiction - Of Provincial Court following divorce proceedings in Supreme Court - [See Constitutional Law - Topic 3504 above].

Cases Noticed:

Radke v. Radke (1971), 4 R.F.L. 318 (Alta. C.A.), consd. [para. 12].

Zacks v. Zacks, [1973] S.C.R. 891; 10 R.F.L. 53, refd to. [para. 13].

Lapointe v. Klint, [1975] 2 S.C.R. 539; 2 N.R. 545; 20 R.F.L. 307, refd to. [para. 13].

Goldstein v. Goldstein (1976), 23 R.F.L. 206 (Alta. C.A.), consd. [para. 13].

Skjonsby v. Skjonsby (1975), 18 R.F.L. 95 (Alta. C.A.), refd to. [para. 13].

Hughes v. Hughes (1976), 30 R.F.L. 199 (B.C.C.A.), consd. [para. 15].

MacDonald v. MacDonald (1985), 60 A.R. 53; 44 R.F.L.(2d) 316 (Q.B.), refd to. [para. 16].

Multiple Access Limited v. McCutcheon, Lowry, Craig, Gibbs and Jarvis (1982), 44 N.R. 181; 138 D.L.R.(3d) 1 (S.C.C.), refd to. [para. 17].

Lamb v. Lamb and Attorney General of Canada et al. (1985), 59 N.R. 166; 46 R.F.L.(2d) 1 (S.C.C.), refd to. [para. 19].

Pointmeier v. Pointmeier, [1982] 3 W.W.R. 505; 37 A.R. 5 (C.A.), refd to. [para. 20].

Statutes Noticed:

Divorce Act, R.S.C. 1970, c. D-8, generally.

Domestic Relations Act, R.S.A. 1980, c. D-37, sect. 27 [para. 1].

Judicature Act, R.S.A. 1980, c. J-1, Part 3 [para. 10].

Maintenance Enforcement Act, S.A. 1985, c. M-0.5 [para. 8].

Authors and Works Noticed:

Hogg, Peter W., Constitutional Law of Canada (2nd Ed. 1985), p. 545 [para. 19].

Counsel:

Terrence A. Cooper, for the applicant;

Robert L.J. Bouvier, for the respondent;

R.C. Maybank, for the intervenor.

This application was heard before Lutz, J., of the Alberta Court of Queen's Bench, Judicial District of Fort McMurray, who delivered the following judgment on July 15, 1987.