Ludlow v. McGraw, (1987) 79 N.B.R.(2d) 10 (CA)

• Judge: Angers, Rice and Ayles, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: January 21, 1987
• Jurisdiction: New Brunswick
• Citations: (1987), 79 N.B.R.(2d) 10 (CA)

Ludlow v. McGraw (1987), 79 N.B.R.(2d) 10 (CA);

    79 R.N.-B.(2e) 10; 201 A.P.R. 10

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[French language version follows English language version]

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

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Edmond McGraw (respondent-appellant) v. Alice Ludlow (applicant-respondent)

128/85/CA

Indexed As: Ludlow v. McGraw

Répertorié: Ludlow v. McGraw

New Brunswick Court of Appeal

Angers, Rice and Ayles, JJ.A.

April 29, 1987.

Summary:

Résumé:

A husband and wife separated in 1971 after 23 years of marriage. In 1971 their marital property was worth $48,000. The husband and wife were divorced in 1977 and the wife was paid a lump sum of $7,500 for maintenance. In 1984 the wife applied for a division of marital property and at the trial date in 1985 the husband had property worth $340,955. The trial judge awarded the wife 25% of $340,955 - See 64 N.B.R.(2d) 372; 165 A.P.R. 372. The husband appealed.

The New Brunswick Court of Appeal allowed the appeal and dismissed the wife's application for a division of marital property.

Equity - Topic 2061

Equitable defences - Laches - General - The New Brunswick Court of Appeal referred to the purpose of the development of the doctrine of laches (see paragraph 20).

Family Law - Topic 621

Husband and wife - Marital property - General - The New Brunswick Court of Appeal stated that the doctrine of trusts must be applied to those cases not anticipated by the Marital Property Act (see paragraph 16).

Family Law - Topic 744

Husband and wife - Actions between husband and wife - Defences - Laches - A husband and wife were divorced in 1977 and the wife received a lump sum of $7,500 for maintenance - In 1984 the wife applied for a division of marital property - The New Brunswick Court of Appeal dismissed the application - The court applied the doctrine of laches because the parties acquiesced in the status quo following the divorce (see paragraph 35).

Family Law - Topic 941

Husband and wife - Marital property - Distribution orders - Practice - General - The New Brunswick Court of Appeal referred to circumstances where a wife was precluded from applying under s. 42 of the Marital Property Act for a division of marital property (see paragraph 12).

Cases Noticed:

Rathwell v. Rathwell, [1978] 2 S.C.R. 436; 19 N.R. 91, refd to. [para. 9].

McLellan v. McLellan (1983), 50 N.B.R.(2d) 432; 131 A.P.R. 432, refd to. [para. 10].

Becker v. Pettkus, [1980] 2 S.C.R. 834; 34 N.R. 384, refd to. [para. 13].

Wassell v. Leggatt, [1896] 1 Ch. 554, refd to. [para. 14].

Fraser v. Fraser (1983), 47 N.B.R.(2d) 364; 124 A.P.R. 364, dist. [para. 18].

Ampthill Peerage Case, [1976] 2 All E.R. 411, refd to. [para. 20].

Statutes Noticed:

Marital Property Act, S.N.B. 1980, c. M-1.1, sect. 42(1), sect. 42(4), sect. 44(1), sect. 44(2) [para. 11].

Limitation of Actions Act, R.S.N.B. 1973, c. L-8, sect. 56(1) [para. 22].

Authors and Works Noticed:

Bissett-Johnson and Holland, Matrimonial Property Law in Canada, p. I-30 [para. 16].

Williams, Limitation of Actions in Canada, pp. 3 [para. 21]; 30 [para. 25]; 32 [para. 26]; 36 [para. 36].

Anglin, Trustees, Limitations of Actions and Other Relief, p. 39 [para. 23].

Counsel:

J.M. Denis Lavoie, for the appellant;

Brigitte M. Robichaud, for the respondent.

This appeal was heard by Angers, Rice and Ayles, JJ.A., of the New Brunswick Court of Appeal on January 21, 1987. The decision of the Court of Appeal was delivered by Angers, J.A., on April 29, 1987.