Department of Social Services v. Martin, (1983) 49 N.B.R.(2d) 330 (CA)

• Judge: Ryan, Stratton and La Forest, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: September 20, 1983
• Jurisdiction: New Brunswick
• Citations: (1983), 49 N.B.R.(2d) 330 (CA)

N.B. v. Martin (1983), 49 N.B.R.(2d) 330 (CA);

    49 R.N.-B.(2e) 330; 129 A.P.R. 330

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Department of Social Services v. Martin

(No. 130/83/CA)

Indexed As: Department of Social Services v. Martin

Répertorié: Department of Social Services v. Martin

New Brunswick Court of Appeal

Ryan, Stratton and La Forest, JJ.A.

September 22, 1983.

Summary:

Résumé:

A husband and wife separated after less than two years of marriage and one child. The wife received lump sum maintenance under a separation agreement, which was soon exhausted, forcing her to rely on social assistance. The Department of Social Services applied under s. 115(5) of the Child and Family Services and Family Relations Act to set aside the maintenance provisions in the agreement and obtain maintenance for the wife.

The New Brunswick Provincial Court, Family Division, in a decision reported in (1983), 48 N.B.R.(2d) 213; 126 A.P.R. 213, allowed the application and ordered the husband to pay the wife periodic maintenance. The husband appealed.

The New Brunswick Court of Appeal dismissed the appeal.

Family Law - Topic 2484

Maintenance of wives and children - Awards - Periodic payments - A husband and wife separated after less than two years of marriage and one child - The wife received a $6,000.00 lump sum upon separation, which was quickly depleted - She was not employed and living on social assistance - The husband had $30,000.00 per year at his disposal, after taxes - The New Brunswick Court of Appeal affirmed that the husband should pay the wife $650.00 monthly maintenance for 25 months, until she could reestablish herself - See paragraphs 6 to 7.

Family Law - Topic 3385

Separation agreements - Grounds for setting aside - Improvident bargain - The New Brunswick Court of Appeal held that although the fact that a wife was dependent on social assistance did not necessarily warrant setting aside a separation agreement, the agreement should be set aside where it provided only a lump sum to the wife (since depleted), was improvident and would inevitably lead to the need for social assistance, and the husband was well able to support the wife - The court held that it was therefore unnecessary to consider whether the agreement was unconscionable - See paragraphs 6 to 8.

Cases Noticed:

Zunti v. Zunti (1977), 77 D.L.R.(3d) 139, refd to. [para. 6].

Statutes Noticed:

Child and Family Services and Family Relations Act, S.N.B. 1980, c. C-2.1, sect. 115(5) [para. 4]; sect. 115(5)(a) [paras. 5 to 6]; sect. 115(5)(b) [paras. 6 to 7].

Counsel:

Pierre W. Arsenault, for the appellant;

Lucien Leblanc, for the respondent.

This appeal was heard before Ryan, Stratton and La Forest, JJ.A., of the New Brunswick Court of Appeal, on September 20, 1983. The decision of the Court of Appeal was delivered on September 22, 1983.