McMillan v. McMillan, (1983) 1 O.A.C. 106 (CA)

• Judge: Dubin, Zuber and Grange, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: May 18, 1983
• Jurisdiction: Ontario
• Citations: (1983), 1 O.A.C. 106 (CA)

McMillan v. McMillan (1983), 1 O.A.C. 106 (CA)

MLB headnote and full text

McMillan v. McMillan

Indexed As: McMillan v. McMillan

Ontario Court of Appeal

Dubin, Zuber and Grange, JJ.A.

November 28, 1983.

Summary:

A wife petitioned for divorce from her husband. She attacked the validity of a separation agreement between the parties and applied for increased maintenance from that provided in the agreement and subsequently supplemented by the husband. The trial judge granted the divorce, increased the amount of maintenance from $1,250 to $3,000 monthly, and awarded the wife $175,000 lump sum maintenance. The husband appealed respecting the lump sum.

The Ontario Court of appeal allowed the appeal and set aside the lump sum maintenance award.

Family Law - Topic 4011

Divorce - Corollary relief - Maintenance awards - Lump sum - A trial judge increased a husband's maintenance obligation from $1,250 to $3,000 monthly, largely because of his increased standard of living - In addition, the judge awarded the wife $175,000 lump sum maintenance to provide her financial security after 1984, the date upon which periodic maintenance would cease - The husband had ample funds to provide the lump sum - The Ontario Court of Appeal set aside the lump sum award, because it was wrongly used to divide assets, the wife was capable of contributing to her own support, a lump sum should not be used to guard against future contingencies, and the claim was inconsistent with the parties' separation agreement - See paragraphs 29 to 42.

Family Law - Topic 4011

Divorce - Corollary relief - Maintenance awards - Lump sum - The Ontario Court of Appeal stated that it was improper to use a lump sum award to effect a division of assets under the guise of maintenance - see paragraph 31.

Cases Noticed:

Messier v. Delage (1984), 50 N.R. 16 (S.C.C.), refd to. [para. 20].

Krause v. Krause (1976), 23 R.F.L. 219, refd to. [para. 30].

Main v. Main (1979), 5 R.F.L.(2d) 1, refd to. [para. 30].

Carmichael v. Carmichael (1977), 27 R.F.L. 325, refd to. [para. 32].

Statutes Noticed:

Family Law Reform Act, R.S.O. 1980, c. 152, sect. 15 [para. 35].

Divorce Act, R.S.C. 1970, c. D-8, sect. 11 [para. 31].

Counsel:

A. Burke Doran, Q.C., and Jennifer Leddy, for the appellant;

Malcolm C. Kronby, Q.C., for the respondent.

This appeal was heard before Dubin, Zuber and Grange, JJ.A., of the Ontario Court of Appeal, on May 18, 1983. The decision of the Court of Appeal was delivered by Dubin, J.A., and released on November 28, 1983.