Lague v. Rosenberg, (1996) 182 N.B.R.(2d) 57 (CA)

• Judge: Hoyt, C.J.N.B., Ryan and Bastarache, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: October 08, 1996
• Jurisdiction: New Brunswick
• Citations: (1996), 182 N.B.R.(2d) 57 (CA)

Lague v. Rosenberg (1996), 182 N.B.R.(2d) 57 (CA);

    182 R.N.-B.(2e) 57; 463 A.P.R. 57

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Marjorie Ellen Lague (applicant/appellant) v. Peter Werner Rosenberg (respondent/respondent)

(86/96/CA)

Indexed As: Lague v. Rosenberg

New Brunswick Court of Appeal

Hoyt, C.J.N.B., Ryan and Bastarache, JJ.A.

October 8, 1996.

Summary:

In 1991, a woman gave birth to a child in Manitoba. The father acknowledged paternity. In 1993, the mother sought child sup­port from the father. The father received notice of the hearing two days before his departure from Manitoba. The father was not represented at the hearing.

The Manitoba Court of Queen's Bench ordered the father to pay $350 per month. The order was made retroactive and the arrears were assessed at $9,450. The order was a final order under Manitoba law. The order was forwarded to New Brunswick for enforcement pursuant to the Reciprocal Enforcement of Maintenance Orders Act. A hearing was ordered where the father could show cause why the order should not be enforced. The father consented to an interim order to pay monthly support of $350. Prior to the hearing, the father requested a vari­ance of the final order issued in Manitoba. Notice of the variance application was served on counsel appointed by the Attorney General to represent the mother but was not served on her personally. Because of the lack of notice, the mother failed to respond to the variation application.

The New Brunswick Court of Queen's Bench, Family Division, converted the final order from Manitoba into a provisional order because the father did not have an op­portunity of presenting evidence regarding the arrears. There was no dispute regarding the regular support order, only the arrears. However, because the mother had not re­ceived notice of the variation hearing, there was no evidence before the New Brunswick Court to indicate how the arrears had been determined. Therefore, the court reduced the quantum of arrears from $9,450 to $1,000. The mother appealed claiming that the court should have obtained evidence from Manitoba before exercising its discre­tion.

The New Brunswick Court of Appeal allowed the appeal, ordered a new hearing and continued the interim support order of $350 per month pending the new hearing.

Family Law - Topic 2547

Maintenance of wives and children - Enforcement - Foreign orders - Variation - A mother applied to have a child support order enforced in New Brunswick - The father opposed the arrears portion of the order - He claimed that he had not been given an opportunity to be heard in that he was given notice of the hearing two days before leaving the foreign jurisdiction - The father applied for a variation - The mother did not receive notice of the vari­ation application - The New Brunswick Court of Queen's Bench, Family Division, converted the final foreign order to a provi­sional order and reduced the arrears to $1,000 - The mother appealed on the ground, inter alia, that the court should have received evidence from the foreign jurisdiction before exercising its discretion - The New Brunswick Court of Appeal allowed the appeal and ordered a new hearing.

Family Law - Topic 2553

Maintenance of wives and children - Enforcement - Foreign orders - Procedure - [See Family Law - Topic 2547 ].

Statutes Noticed:

Reciprocal Enforcement of Maintenance Orders Act, S.N.B. 1985, c. R-4.01, sect. 3 [para. 12]; sect. 5(2) [para. 13]; sect. 7(5) [para. 1]; sect. 7(7)(d) [para. 9]; sect. 7(8) [para. 7].

Counsel:

Barbara L. Baird, for the appellant;

R. Leslie Jackson, Q.C., for the respon­dent.

This appeal was heard on September 26, 1996, before Hoyt, C.J.N.B., Ryan and Bastarache, JJ.A., of the New Brunswick Court of Appeal.

On October 8, 1996, Bastarache, J.A., delivered the following judgment for the Court of Appeal.