Murphy v. Murphy, (2009) 277 N.S.R.(2d) 73 (SC)

• Judge: Warner, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: April 30, 2009
• Jurisdiction: Nova Scotia
• Citations: (2009), 277 N.S.R.(2d) 73 (SC);2009 NSSC 138

Murphy v. Murphy (2009), 277 N.S.R.(2d) 73 (SC);

    882 A.P.R. 73

MLB headnote and full text

Temp. Cite: [2009] N.S.R.(2d) TBEd. MY.001

Walter William Murphy (petitioner) v. Vera Ada Murphy (respondent)

(1201-41756; 2009 NSSC 138)

Indexed As: Murphy v. Murphy

Nova Scotia Supreme Court

Warner, J.

April 30, 2009.

Summary:

The parties married in 1955 and separated in 1977. In 1988, the husband sued for divorce. The parties entered into a settlement agreement that was incorporated into a 1990 corollary relief judgment. In 2009, the wife applied for a division of the husband's military pension under the Pension Benefits Division Act or the Canadian Forces Superannuation Act for the period 1955 to 1977.

The Nova Scotia Supreme Court dismissed the application.

Family Law - Topic 880.28

Husband and wife - Marital property - Distribution orders - Particular property - Pensions - The parties married in 1955 and separated in 1977 - In 1988, the husband sued for divorce - He was retired from the military and receiving a military pension of $800 per month - The parties entered into a settlement agreement that was incorporated into a 1990 corollary relief judgment - The husband was to pay $400 per month to the wife as spousal support - The judgment provided that the amount paid to the wife was to increase as the husband's pension payment increased - At that time, the Pension Benefits Division Act (PBDA) did not exist - In 1990, the wife agreed to temporarily accept $200 per month - In 2009, the wife applied for a division of the husband's military pension under the PBDA or the Canadian Forces Superannuation Act (CFSA) for the period 1955 to 1977 - The Nova Scotia Supreme Court dismissed the application - Entitlement to pension benefits was determined under the Matrimonial Property Act, not the PBDA or CFSA, which were mechanisms for division at source and did not govern entitlement - The wife's application was not sustainable - The wife's application was dismissed without prejudice to her ability to apply to vary the judgment regarding spousal support to seek whatever remedy was available to her under the Divorce Act - A plain reading of the parties' minutes of settlement and judgment showed that their intent was to divide equally the benefit of the husband's pension - The husband appeared not to have complied with the provisions of the judgment - On that basis, it would be unfair to award costs against the wife - See paragraphs 25 to 43.

Family Law - Topic 966

Husband and wife - Actions between husband and wife - Practice - Costs - [See Family Law - Topic 880.28 ].

Cases Noticed:

Morash v. Morash (2004), 221 N.S.R.(2d) 115; 697 A.P.R. 115; 2004 NSCA 20, appld. [para. 12].

MacPhail v. MacPhail (1985), 75 N.S.R.(2d) 205; 186 A.P.R. 205; 1985 CarswellNS 321 (T.D.), refd to. [para. 12].

Angle v. Minister of National Revenue, [1975] 2 S.C.R. 248; 2 N.R. 397, refd to. [para. 19].

Danyluk v. Ainsworth Technologies Inc. et al., [2001] 2 S.C.R. 460; 272 N.R. 1; 149 O.A.C. 1; 2001 SCC 44, refd to. [para. 22].

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321, refd to. [para. 26].

Hunt v. Carey Canada Inc. - see Hunt v. T & N plc et al.

Guarantee Co. of North America v. Gordon Capital Corp., [1999] 3 S.C.R. 423; 247 N.R. 97; 126 O.A.C. 1, refd to. [para. 27].

Croitor v. Croitor (2001), 192 N.S.R.(2d) 26; 599 A.P.R. 26; 2001 NSCA 37, appld. [para. 33].

LaPierre v. General Accident Assurance Co. of Canada et al. (2007), 250 N.S.R.(2d) 304; 796 A.P.R. 304; 2007 NSSC 9, refd to. [para. 36].

Reid (J. and P.) Developments Ltd. v. Branch Tree Nursery and Landscaping Ltd. (2006), 247 N.S.R.(2d) 131; 785 A.P.R. 131; 2006 NSSC 226, refd to. [para. 36].

Authors and Works Noticed:

Fridman, Gerald Henry Louis, The Law of Contract in Canada (5th Ed. 2006), c. 14 [para. 36].

Patterson, Jack B., Pension Division and Valuation - Family Lawyer's Guide (2nd Ed. 1995), pp. 46, 47 [para. 12].

Swan, John, Canadian Contract Law (1st Ed. 2006), c. 8, 9 [para. 36].

Thompson, D.A. Rollie, Annotation to Morash v. Morash, 2004 CarswellNS 42, generally [paras. 31, 32].

Counsel:

Jane Lenehan, for Walter William Murphy;

H. Heidi Foshay Kimball, for Vera Ada Murphy.

This application was heard by correspondence by Warner, J., of the Nova Scotia Supreme Court, who delivered the following judgment on April 30, 2009.