Department of Social Services v. Martin, (1983) 48 N.B.R.(2d) 213 (PC)

• Judge: Dumas, J.
• Court: Provincial Court of New Brunswick (Canada)
• Case Date: May 04, 1983
• Jurisdiction: New Brunswick
• Citations: (1983), 48 N.B.R.(2d) 213 (PC)

N.B. v. Martin (1983), 48 N.B.R.(2d) 213 (PC);

    48 R.N.-B.(2e) 213; 126 A.P.R. 213

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[La version française vient à la suite de la version anglaise]

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Department of Social Services v. Martin

(No. 820049)

Indexed As: Department of Social Services v. Martin

Répertorié: Department of Social Services v. Martin

New Brunswick Provincial Court

Family Division

District of Campbellton

Dumas, J.

May 4, 1983.

Summary:

Résumé:

A husband and wife separated after less than two years of marriage. The wife received social assistance after her lump sum maintenance under a separation agreement was exhausted. The Department of Social Services applied under s. 115(3) of the Child and Family Services and Family Relations Act to set aside the maintenance provision in the agreement and award the wife maintenance.

The New Brunswick Provincial Court, Family Division, allowed the application.

Family Law - Topic 3386

Separation agreements - Grounds for setting aside - Unconscionable bargain - A husband's and wife's separation agreement provided that the wife receive a lump sum of $6,000.00 and $175.00 per month maintenance for their child - The wife was unemployed and on welfare, while the husband earned $60,000.00 - $70,000.00 per year - The husband told his wife to agree to the maintenance or go to court - The wife's lawyer advised her to accept it - The New Brunswick Provincial Court, Family Division, set aside the maintenance provision, because the agreement was unconscionable, where its provisions were improvident and the wife was in an unequal bargaining position - See paragraphs 17 to 25.

Family Law - Topic 3381

Separation agreements - Grounds for setting aside - General - The Department of Social Services applied under s. 115(3) of the Child and Family Services and Family Relations Act to set aside the maintenance provisions in a separation agreement - The wife was dependent upon social assistance - The New Brunswick Provincial Court, Family Division, stated that the fact that the spouse was dependent upon social assistance, by itself, was not grounds for setting aside maintenance provisions in a separation agreement and awarding maintenance to the wife - See paragraph 18.

Family Law - Topic 2484

Maintenance of wives and children - Awards - Periodic payments - A husband and wife separated after less than two years marriage, with the wife having custody of their child - The wife quit work when they got married and was now unemployed and on social assistance - The husband earned $60,000.00 - $70,000.00 per year - The New Brunswick Provincial Court, Family Division, awarded the wife maintenance of $650.00 per month for 25 months for herself, $175.00 per month for their child, and the costs of leaving the child in a daycare - The court held that the husband had a duty to support his wife until she became financially independent - See paragraph 26.

Cases Noticed:

Toussaint v. Toussaint (1982), 40 N.B.R.(2d) 541; 105 A.P.R. 541, folld. [para. 20].

Mundinger v. Mundinger, [1968] 1 O.R. 606, consd. [para. 20].

Zunti v. Zunti (1977), 77 D.L.R.(3d) 139, appld. [para. 26].

Murphy v. Murphy (1980), 28 Nfld. & P.E.I.R. 451; 79 A.P.R. 451; 9 R.F.L. 235, appld. [para. 30].

Statutes Noticed:

Child and Family Services and Family Relations Act, S.N.B. 1980, c. C-2.1, sect. 115(5) [para. 18].

Counsel:

Lucien LeBlanc, for the applicant;

Pierre Arseneault, for the respondent.

This case was heard before Dumas, J., of the New Brunswick Provincial Court, Family Division, who delivered the following judgment on May 4, 1983.