Lobello v. Lobello, (1976) 1 A.R. 280 (TD)

JudgeMoshansky, J.
CourtCourt of Queen's Bench of Alberta (Canada)
Case DateOctober 27, 1976
Citations(1976), 1 A.R. 280 (TD)

Lobello v. Lobello (1976), 1 A.R. 280 (TD)

MLB headnote and full text

Lobello v. Lobello

Indexed As: Lobello v. Lobello

Alberta Supreme Court

Trial Division

Moshansky, J.

October 27, 1976.

Summary:

This case arose out of a wife's petition for divorce. After a divorce hearing the Trial Division awarded the wife a lump sum maintenance award of $19,000.00 to be secured by the matrimonial home. Subsequently, the wife brought an application under the Partition Act, 1868(Imp.), 30 & 31 Vict., c. 40, for an order that the property be conveyed to her. The Trial Division allowed the application. The Trial Division found that the equities of the husband and wife in the matrimonial property were equal. The Trial Division ordered the husband to convey the matrimonial home to the wife in satisfaction of the lump sum award, notwithstanding that the husband's equity in the matrimonial home was less than the lump sum award.

Family Law - Topic 760

Husband and wife - Actions between husband and wife - Property - Actions for partition and sale of land - General - The Alberta Supreme Court, Trial Division, awarded a wife a lump sum maintenance award of $19,000.00, where the equities of the husband and wife in the matrimonial property were equal - Each had an equity in the matrimonial home of $16,500.00 - The Trial Division ordered the husband to convey the matrimonial home to the wife in satisfaction of the lump sum award, notwithstanding that the husband's equity in the matrimonial home was less than the lump sum award - See paragraphs 11 to 15.

Family Law - Topic 766

Husband and wife - Actions between husband and wife - Property - Actions for partition and sale of land - Practice - Rules of Court, Rules 495, 496, which give the Supreme Court the discretion to order property sold or partitioned - Where applicable - On a wife's petition for divorce the Trial Division awarded the wife a lump sum maintenance award secured by the matrimonial home and ordered that the conveyance of the matrimonial home to the wife would satisfy the lump sum award - Subsequently, the wife brought an application styled in the matter of the Domestic Relations Act, R.S.A. 1970, c. 113, and the Partition Act, 1868(Imp.), 30 & 31 Vict., c. 40, and the Rules of Court for an order that the property be conveyed to her - The Alberta Supreme Court, Trial Division, held that for Rules 495 and 496 to be applicable the application must be made under the Partition Act - The Trial Division held that the situation was not one where relief sought would be under the Domestic Relations Act and that it was properly an application under the Partition Act - The Trial Division held that Rules 495 and 496 were applicable and ordered the conveyance of the property to the wife - See paragraphs 8 to 10.

Cases Noticed:

Morasch v. Morasch (1962), 40 W.W.R. 50 (Alta.), appld. [para. 5].

Wagner v. Wagner (1970), 73 W.W.R. 474, appld. [para. 9].

Clark (Clarke) v. Clark, [1974] 5 W.W.R. 274, appld. [para. 13].

Statutes Noticed:

Domestic Relations Act, R.S.A. 1970, c. 113 [para. 9].

Partition Act, 1868(Imp.), 30 & 31 Vict., c. 40, sect. 3, sect. 4, sect. 5 [para. 13].

Rules of Court (Alta.), rule 495, rule 496 [para. 8].

Counsel:

P.L. Sveen, for the applicant;

J. De Paoli, for the respondent.

This case was heard before MOSHANSKY, J., of the Alberta Supreme Court, Trial Division, who delivered the following judgment on October 27, 1976.

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