Nash v. Nash, (1974) 2 N.R. 271 (SCC)

• Judge: Laskin, C.J.C., Judson, Spence, Beetz and de Grandpré, JJ.
• Court: Supreme Court (Canada)
• Case Date: June 28, 1974
• Jurisdiction: Canada (Federal)
• Citations: (1974), 2 N.R. 271 (SCC);16 RFL 295;[1974] SCJ No 111 (QL);[1975] 2 SCR 507;1974 CanLII 1360 (SCC);47 DLR (3d) 558;46 DLR (3d) 237;1974 CanLII 169 (SCC);[1975] 2 SCR 271;1974 CanLII 22 (SCC);2 NR 271;[1974] SCJ No 96 (QL)

Nash v. Nash (1974), 2 N.R. 271 (SCC)

MLB headnote and full text

Nash v. Nash

Indexed As: Nash v. Nash

Supreme Court of Canada

Laskin, C.J.C., Judson, Spence, Beetz and de Grandpré, JJ.

June 28, 1974.

Summary:

This case arose out of a petition for divorce on the grounds of separation. The trial court granted the decree nisi and directed a husband to pay $10,000 per annum to his wife in equal quarterly installments of $2,625.00. The wife appealed the maintenance order to the Ontario Court of Appeal. The Ontario Court of Appeal granted an order which provided that the husband secure in the sum of $100,000 the maintenance payments of $10,500 per annum. The Ontario Court of Appeal made the issue of the decree nisi conditioned upon the previous provision of the security of $100,000 by the husband - see paragraph 2. In addition, the order made by the Ontario Court of Appeal did not provide that the periodic payments for maintenance of $10,500 per annum be paid out of the security of $100,000.

On appeal to the Supreme Court of Canada the appeal was allowed and the order of the Ontario Court of Appeal was set aside.

The Supreme Court of Canada held that a decree nisi cannot be conditioned upon the previous provision of security - see paragraphs 4 to 11. The Supreme Court of Canada stated that maintenance should be assured by withholding the decree absolute - see paragraph 6.

The Supreme Court of Canada stated that section 11 of the Divorce Act authorized a court to make the following orders with respect to maintenance:

1. An order to secure a lump sum.

2. An order to pay a lump sum.

3. An order to secure periodic sums.

4. An order to pay periodic sums. The Supreme Court of Canada stated that a court is not restricted to the making of only one of the types of orders referred to above - see paragraphs 17 and 18.

However, the Supreme Court of Canada stated that section 11 did not authorize a court to order a husband to make periodic payments and to concurrently order a husband to provide security without directing that the periodic payments be paid out of the security - see paragraphs 12 to 23. Beetz and de Grandpré, JJ., in the Supreme Court of Canada, dissenting in part, stated that it was unnecessary in the present case to decide whether a court had the power to make an order for periodic payments and concurrently make an order to provide security without directing that the periodic payments be paid out of the security - see paragraph 26.

Family Law - Topic 4001

Divorce on grounds of separation - Maintenance - Jurisdiction of court respecting maintenance orders - Order to secure the payment of an award - Whether a decree nisi can be made conditional upon the previous provision of security for payment of the maintenance order - The Supreme Court of Canada held that a decree nisi cannot be conditioned upon the previous provision of security - See paragraphs 4 to 11 - The Supreme Court of Canada stated that maintenance should be assured by withholding the decree absolute - See paragraph 6.

Family Law - Topic 4001

Divorce - Maintenance - Jurisdiction of a court respecting maintenance orders - Whether section 11 of the Divorce Act authorized a court to order a husband to make periodic payments and to concurrently order the husband to provide security without directing that the periodic payments be paid out of the security - The Supreme Court of Canada held that section 11 did not authorize such concurrent orders - See paragraphs 12 to 23.

Cases Noticed:

Lachman v. Lachman, [1970] 3 O.R. 29, not folld. [para. 5].

Zacks v. Zacks, [1973] S.C.R. 891, folld. [para. 7].

Shearn v. Shearn, [1931] P. 1, folld. [paras. 13, 14].

Kumpas v. Kumpas (1969), 71 W.W.R. 317; [1970] S.C.R. 438n, folld. [para. 17].

Switzer v. Switzer (1969), 7 D.L.R.(3d) 638, folld. [paras. 17, 22].

Raffin v. Raffin, [1972] 1 O.R. 173, folld. [para. 17].

Maynard v. Maynard, [1951] S.C.R. 346, folld. [para. 20].

McColl v. McColl, [1953] O.R. 1017, folld. [para. 20].

Johnstone v. Johnstone, [1969] 2 O.R. 765, folld. [para. 21].

Statutes Noticed:

Divorce Act, R.S.C. 1970, c. D-8, sect. 11, sect. 12 [para. 12]; sect. 13(3).

Counsel:

Peter C.P. Thompson, for the appellant;

John R. Sigouin and Bryan Carroll, for the respondents.

This appeal was heard by the Supreme Court of Canada on May 8 and 9, 1974. Judgment was delivered on June 28, 1974, and the following reasons for judgment were filed:

LASKIN, C.J.C. - see paragraphs 1 to 24. de GRANDPRE, J. - see paragraphs 25 to 27;

JUDSON and SPENCE, JJ., concurred with LASKIN, C.J.C.

BEETZ, J., concurred with de GRANDPRÉ, J.