MacDonald v. MacDonald, (1985) 60 A.R. 53 (QB)

• Judge: Montgomery, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: February 28, 1985
• Citations: (1985), 60 A.R. 53 (QB)

MacDonald v. MacDonald (1985), 60 A.R. 53 (QB)

MLB headnote and full text

MacDonald v. MacDonald

Indexed As: MacDonald v. MacDonald

Alberta Court of Queen's Bench

Judicial District of Calgary

Montgomery, J.

February 28, 1985.

Summary:

A wife registered an Ontario maintenance order in Alberta under s. 5 of Reciprocal Enforcement of Maintenance Orders Act. The parties subsequently divorced and maintenance was awarded under the Divorce Act. The husband applied under s. 17 of the Alimony Orders Enforcement Act to reduce both the monthly maintenance and the arrears under the foreign order.

The Alberta Court of Queen's Bench held that it had jurisdiction to hear the application under s. 17. The court eliminated the monthly maintenance, effective on the date upon which the first maintenance payment under the Divorce Act became payable. The court reduced the arrears from $4,475 to $2,475.

Family Law - Topic 2242

Maintenance of wives and children - Jurisdiction - Courts - Where divorce proceedings pending - The Alberta Court of Queen's Bench stated that the jurisdiction of any superior or inferior court over maintenance under provincial legislation was not ousted by the filing of a petition for divorce - The court stated that there was no reason why there could not be concurrent jurisdiction by the Court of Queen's Bench and the Provincial Court under provincial legislation until an order for maintenance was made under s. 10 or 11 of the Divorce Act - See paragraphs 13 to 23.

Family Law - Topic 2543

Maintenance of wives and children - Enforcement - Foreign orders - Jurisdiction - The Alberta Court of Queen's Bench referred to the rule that Alberta courts have no jurisdiction to vary a final foreign maintenance order that has been registered under the Alberta Reciprocal Enforcement of Maintenance Orders Act - The court held that the rule did not apply where the application to vary maintenance was made under s. 17 of the Alimony Orders Enforcement Act - See paragraphs 7 to 12.

Cases Noticed:

Hinkley v. Hinkley (1984), 52 A.R. 80; 7 D.L.R.(4th) 385, (C.A.), dist. [para. 5].

Prendergast v. Prendergast and Stilwell, [1972] 2 W.W.R. 239 (Alta. C.A.), appld. [para. 5].

Goldstein v. Goldstein, [1976] 4 W.W.R. 646 (Alta. C.A.), consd. [para. 17].

McCutcheon v. McCutcheon (1977), 2 A.R. 387; 2 Alta. L.R.(2d) 121, consd. [para. 17].

P.L.A. v. P.J.K. (1983), 23 Alta. L.R.(2d) 280 (Prov. Ct., F.D.), disagreed with [para. 17].

Hughes v. Hughes (1977), 30 R.F.L. 199 (B.C.C.A.), ref'd to. [para. 20].

Miller v. Graves (1983), 45 A.R. 232; 33 R.F.L.(2d) 150, ref'd to. [para. 21].

Statutes Noticed:

Alimony Orders Enforcement Act, R.S.A. 1980, c. A-40, sect. 15(1), sect. 17 [para. 9].

Counsel:

R.A. Mackie, for the applicant;

No one appearing for the respondent.

This application was heard before Montgomery, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following judgment on February 28, 1985: