MacDonald v. MacDonald, 2004 NSCA 153

JudgeBateman, Oland and Hamilton, JJ.A.
CourtCourt of Appeal of Nova Scotia (Canada)
Case DateNovember 09, 2004
JurisdictionNova Scotia
Citations2004 NSCA 153;(2004), 229 N.S.R.(2d) 52 (CA)

MacDonald v. MacDonald (2004), 229 N.S.R.(2d) 52 (CA);

 725 A.P.R. 52

MLB headnote and full text

Temp. Cite: [2004] N.S.R.(2d) TBEd. DE.040

Florence Marie MacDonald (appellant) v. Charles Arthur MacDonald (respondent)

(CA 219531; 2004 NSCA 153)

Indexed As: MacDonald v. MacDonald

Nova Scotia Court of Appeal

Bateman, Oland and Hamilton, JJ.A.

December 15, 2004.

Summary:

The parties married in 1976 and separated in 1996. The wife appealed from an order which reduced the monthly spousal support payable to her from $750 to $500 and terminated spousal support as of March 15, 2005.

The Nova Scotia Court of Appeal allowed the appeal in part. The court ordered that the husband continue to pay spousal support of $500 per month. Either party could apply for a review of spousal support without the need to prove a change of circumstances, but such application was not to be heard before June 15, 2006. If a change of circumstances occurred prior to that time, an application for variation could be brought on the normal basis.

Family Law - Topic 3997

Divorce - Corollary relief - General - Self-sufficiency - The parties married in 1976 and separated in 1996 - The wife had stopped working to care for the parties' three children - A separation agreement incorporated into a corollary relief judgment required the husband to pay spousal support of $750 per month - On an application to vary in 2004, the trial judge reduced spousal support to $500 per month and terminated support as of one year later - The wife appealed - The Nova Scotia Court of Appeal allowed the appeal in part - The trial judge erred in focusing on self-sufficiency to the exclusion of the other factors set out in the Divorce Act and by considering the husband's payment of matrimonial debt, when the separation agreement which had set spousal support at $750 had provided that he pay that debt - The trial judge also significantly misapprehended the evidence as to the amount of spousal support paid by the husband since separation and he appeared to have failed to consider the economic disadvantages to the wife arising from the marriage or its breakdown - The court ordered that the spousal support continue at $500 per month - Either party could apply for a review without a change of circumstances, but such application was not to be heard before June 15, 2006 - If a change of circumstances occurred before then, an application to vary could be brought on the normal basis.

Family Law - Topic 4021.2

Divorce - Corollary relief - Maintenance and awards - Awards - Considerations - Leaving labour market for family responsibilities - [See Family Law - Topic 3997 ].

Family Law - Topic 4022

Divorce - Corollary relief - Maintenance and awards - Awards - To wife - Considerations - [See Family Law - Topic 3997 ].

Family Law - Topic 4022.1

Divorce - Corollary relief - Maintenance and awards - Awards - To spouse - Extent of obligation - [See Family Law - Topic 3997 ].

Family Law - Topic 4039

Divorce - Corollary relief - Maintenance and awards - Spousal support - Suspension or termination of - [See Family Law - Topic 3997 ].

Cases Noticed:

Hickey v. Hickey, [1999] 2 S.C.R. 518; 240 N.R. 312; 138 Man.R.(2d) 40; 202 W.A.C. 40, refd to. [para. 17].

Phinney v. Phinney (2002), 211 N.S.R.(2d) 135; 662 A.P.R. 135 (C.A.), refd to. [para. 22].

Moge v. Moge, [1992] 3 S.C.R. 813; 145 N.R. 1; 81 Man.R.(2d) 161; 30 W.A.C. 161; 99 D.L.R.(4th) 456, refd to. [para. 22].

MacLean v. MacLean (2004), 274 N.B.R.(2d) 90; 718 A.P.R. 90; 2004 NBCA 75, refd to. [para. 23].

Counsel:

Kathy A. Briand, for the appellant;

Roseanne Skoke, for the respondent.

This appeal was heard on November 9, 2004, before Bateman, Oland and Hamilton, JJ.A., of the Nova Scotia Court of Appeal. The following judgment of the Court of Appeal was delivered by Hamilton, J.A., on December 15, 2004.

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5 practice notes
  • Spousal Support on or After Divorce
    • Canada
    • Irwin Books Canadian Family Law - Ninth edition
    • July 25, 2022
    ...49; Majeed v Chaudry, 2018 ONSC 4758; Riley v Riley, [2009] SJ No 142 (QB). 338 Kibsey v Kibsey, 2019 MBQB 61; MacDonald v MacDonald, 2004 NSCA 153. 339 Armstrong v Armstrong, 2012 BCCA 166 at para 69; Aquila v Aquila, 2016 MBCA 340 Smyth v Smyth (1993), 48 RFL (3d) 280 (Alta QB); Kibsey v ......
  • Spousal Support on or after Divorce
    • Canada
    • Irwin Books Archive Canadian Family Law. Eighth Edition
    • August 3, 2020
    ...49; Majeed v Chaudry, 2018 ONSC 4758; Riley v Riley, [2009] SJ No 142 (QB). 335 Kibsey v Kibsey, 2019 MBQB 61; MacDonald v MacDonald, 2004 NSCA 153. 336 Armstrong v Armstrong, 2012 BCCA 166 at para 69; Aquila v Aquila, 2016 MBCA 337 Smyth v Smyth (1993), 48 RFL (3d) 280 (Alta QB); Kibsey v ......
  • Wilkie v. Wilkie, (2009) 333 Sask.R. 48 (FD)
    • Canada
    • Saskatchewan Court of Queen's Bench of Saskatchewan (Canada)
    • March 31, 2009
    ...v. Moge , supra; Linton v. Linton (1990), 30 R.F.L.(3d) 1 ('top up' support to enure appropriate lifestyle); MacDonald v. MacDonald , 2004 NSCA 153, 10 R.F.L.(6th) 88 (the wife had to try but it was not unreasonable that she had not yet achieved self-sufficiency after a 20-year marriage tha......
  • Bailey v. Bailey, (2006) 283 Sask.R. 275 (FD)
    • Canada
    • Saskatchewan Court of Queen's Bench of Saskatchewan (Canada)
    • September 7, 2006
    ...637 (C.A.) ('top up' support to ensure appropriate lifestyle); MacDonald v. MacDonald , 2004 CarswellNS 522; 10 R.F.L.(6th) 88; 229 N.S.R.(2d) 52; 725 A.P.R. 52; 2004 NSCA 153 (C.A.) (the wife had to try but it was not unreasonable that she had not yet achieved self-sufficiency after a 20-y......
  • Request a trial to view additional results
3 cases
  • Wilkie v. Wilkie, (2009) 333 Sask.R. 48 (FD)
    • Canada
    • Saskatchewan Court of Queen's Bench of Saskatchewan (Canada)
    • March 31, 2009
    ...v. Moge , supra; Linton v. Linton (1990), 30 R.F.L.(3d) 1 ('top up' support to enure appropriate lifestyle); MacDonald v. MacDonald , 2004 NSCA 153, 10 R.F.L.(6th) 88 (the wife had to try but it was not unreasonable that she had not yet achieved self-sufficiency after a 20-year marriage tha......
  • Bailey v. Bailey, (2006) 283 Sask.R. 275 (FD)
    • Canada
    • Saskatchewan Court of Queen's Bench of Saskatchewan (Canada)
    • September 7, 2006
    ...637 (C.A.) ('top up' support to ensure appropriate lifestyle); MacDonald v. MacDonald , 2004 CarswellNS 522; 10 R.F.L.(6th) 88; 229 N.S.R.(2d) 52; 725 A.P.R. 52; 2004 NSCA 153 (C.A.) (the wife had to try but it was not unreasonable that she had not yet achieved self-sufficiency after a 20-y......
  • Mills v. Mills, [2012] N.S.R.(2d) Uned. 344 (FC)
    • Canada
    • March 20, 2012
    ...in Nova Scotia a spouse is not automatically disentitled to support because she or he obtains employment. (See MacDonald v. MacDonald , 2004 NSCA 153.) [72] In the present case, it was submitted on behalf of the wife that she has established a strong case for spousal support over and beyond......
2 books & journal articles
  • Spousal Support on or After Divorce
    • Canada
    • Irwin Books Canadian Family Law - Ninth edition
    • July 25, 2022
    ...49; Majeed v Chaudry, 2018 ONSC 4758; Riley v Riley, [2009] SJ No 142 (QB). 338 Kibsey v Kibsey, 2019 MBQB 61; MacDonald v MacDonald, 2004 NSCA 153. 339 Armstrong v Armstrong, 2012 BCCA 166 at para 69; Aquila v Aquila, 2016 MBCA 340 Smyth v Smyth (1993), 48 RFL (3d) 280 (Alta QB); Kibsey v ......
  • Spousal Support on or after Divorce
    • Canada
    • Irwin Books Archive Canadian Family Law. Eighth Edition
    • August 3, 2020
    ...49; Majeed v Chaudry, 2018 ONSC 4758; Riley v Riley, [2009] SJ No 142 (QB). 335 Kibsey v Kibsey, 2019 MBQB 61; MacDonald v MacDonald, 2004 NSCA 153. 336 Armstrong v Armstrong, 2012 BCCA 166 at para 69; Aquila v Aquila, 2016 MBCA 337 Smyth v Smyth (1993), 48 RFL (3d) 280 (Alta QB); Kibsey v ......

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