Lye v. Lye, (1986) 44 Man.R.(2d) 204 (QBFD)

• Judge: Helper, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: December 17, 1986
• Jurisdiction: Manitoba
• Citations: (1986), 44 Man.R.(2d) 204 (QBFD)

Lye v. Lye (1986), 44 Man.R.(2d) 204 (QBFD)

MLB headnote and full text

Lye v. Lye

(Suit No. 85-01-02692)

Indexed As: Lye v. Lye

Manitoba Court of Queen's Bench

Family Division

Helper, J.

December 17, 1986.

Summary:

A wife petitioned for divorce and sought maintenance. She argued that a separation agreement which provided her with monthly maintenance for one year only should be set aside by the court.

The Manitoba Court of Queen's Bench, Family Division, granted the divorce, but refused to award maintenance to the wife, because of the existence of a valid separation agreement.

Family Law - Topic 3381

Separation agreements - Grounds for setting aside - General - A couple entered a separation agreement which provided that the wife was to receive $1,500 monthly maintenance for a year - It was expected that she would take a nursing refresher course and find employment during the year - The wife did not complete the course - When the couple divorced the wife sought maintenance, arguing that the court should ignore the one year clause in the separation agreement - The Manitoba Court of Queen's Bench, Family Division, refused to set aside the separation agreement where, inter alia, the wife had independent legal advice, she was the one who had the one year clause inserted in the separation agreement, she had no good reason for not taking the refresher course, she was not likely to become a public charge, and there was no evidence of fraud, coercion or undue influence.

Cases Noticed:

Blanchette v. Blanchette (1984), 40 R.F.L.(2d) 20 (Sask. Q.B.), dist. [paras. 12, 17].

Bischoff v. Bischoff (1984), 41 R.F.L.(2d) 131 (Ont. S.C.), consd. [paras. 12, 18].

Webb v. Webb (1984), 5 O.A.C. 161; 39 R.F.L.(2d) 113 (Ont. C.A.), consd. [paras. 12, 14, 18, 20].

McMillan v. McMillan (1983), 44 O.R.(2d) 1 (Ont. C.A.), consd. [paras. 12, 14].

Katz v. Katz and Scott (1982), 15 Man.R.(2d) 435 (Man. C.A.), consd. [paras. 12, 14].

Ross v. Ross and Howe; Ross v. Ross and Aysan (1984), 26 Man.R.(2d) 122; 39 R.F.L.(2d) 51 (Man. C.A.), consd. [paras. 12, 14].

Farquar v. Farquar (1983), 1 D.L.R.(4th) 244 (Ont. C.A.), consd. [paras. 12, 18, 24].

Spilchuk v. Spilchuk (1986), 40 Man.R.(2d) 117 (Man. Q.B.F.D.), dist. [paras. 12, 22].

Campbell v. Campbell (1978), 7 R.F.L.(2d) 285 (Ont. C.A.), dist. [paras. 12, 21].

Lay v. Lay (1985), 34 Man.R.(2d) 69 (Man. Q.B.F.D.), dist. [paras. 12, 23].

Kelly v. Kelly (1986), 2 R.F.L.(3d) 1 (Ont. S.C.), refd to. [para. 12].

Statutes Noticed:

Divorce Act, R.S.C. 1970, c. D-8, sect. 11(1) [paras. 13, 14]; sect. 11(2) [para. 14].

Counsel:

William G. Percy, for the petitioner;

A.A. Rich, Q.C., for the respondent.

This petition was heard before Helper, J., of the Manitoba Court of Queen's Bench, Family Division, who delivered the following judgment on December 17, 1986: