Newman v. Newman, (1980) 4 Man.R.(2d) 50 (CA)

• Judge: Monnin, Matas and O'Sullivan, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: July 18, 1980
• Jurisdiction: Manitoba
• Citations: (1980), 4 Man.R.(2d) 50 (CA);1980 CanLII 2594 (MB CA);114 DLR (3d) 517;19 RFL (2d) 122;4 Man R (2d) 50

Newman v. Newman (1980), 4 Man.R.(2d) 50 (CA)

MLB headnote and full text

Newman v. Newman

Indexed As: Newman v. Newman

Manitoba Court of Appeal

Monnin, Matas and O'Sullivan, JJ.A.

July 18, 1980.

Summary:

This case arose out of an action for divorce and a claim by a wife against her husband for maintenance. The trial judge awarded the wife periodic maintenance of $550.00 per month. The wife appealed to the Manitoba Court of Appeal on the ground that the monthly maintenance was inadequate.

The Manitoba Court of Appeal allowed the appeal and increased the monthly maintenance to the wife from $550.00 per month to $650.00 per month.

O'Sullivan, J.A., dissenting, in the Manitoba Court of Appeal, would have dismissed the appeal on the ground that in the circumstances the wife should have been bound by her agreement to accept monthly maintenance of $450.00 per month.

Family Law - Topic 4006

Divorce - Corollary relief - Maintenance awards, effect of separation agreement - The Manitoba Court of Appeal stated that while a court should not lightly disturb the terms of a separation agreement, a court has the power under s. 11 of the Divorce Act to provide for the proper maintenance of a spouse or children and the court is not bound by the terms of a separation agreement - See paragraphs 4 and 5.

Family Law - Topic 4010

Divorce - Corollary relief - Maintenance awards - Periodic payments - A husband and wife were divorced after 23 years of marriage - All children of the marriage were self-supporting - The husband earned $31,100.00 per year as a bank auditor - The Manitoba Court of Appeal ordered the husband to pay his wife for support $650.00 per month - See paragraph 7.

Cases Noticed:

Hyman v. Hyman, [1929] A.C. 601, refd to. [paras. 5, 12].

Horoshok v. Horoshok (1965), 53 W.W.R. 482, refd to. [paras. 5, 12, 30].

Divinsky v. Divinsky (1971), 13 D.L.R.(3d) 717, refd to. [para. 5].

McKay v. McKay (1971), 2 R.F.L. 398, refd to. [paras. 5, 12, 29].

Lee v. Lee, [1972] 3 W.W.R. 214, refd to. [para. 5].

Harris v. Harris (1973), 8 R.F.L. 75, refd to. [para. 5].

Tresoor v. Tresoor (1973), 9 R.F.L. 105, refd to. [para. 5].

LaBrash v. LaBrash (1973), 10 R.F.L. 308, refd to. [para. 5].

Thompson v. Thompson and Spence (1975), 16 R.F.L. 158, refd to. [paras. 5, 38].

Nador v. Nador (1978), 19 O.R.(2d) 728, aff. (1979), 22 O.R.(2d) 685, refd to. [para. 5].

Dal Santo v. Dal Santo (1976), 21 R.F.L. 117, refd to. [para. 14].

Gandy v. Gandy (1882), 7 P.D. 168, refd to. [para. 26].

Smith v. Smith, [1955] O.R. 695, refd to. [para. 26].

Waldock v. Waldock, [1943] 3 W.W.R. 177; 51 Man. R. 203, refd to. [para. 28].

Stern v. Sheps et al. (1967), 58 W.W.R. 612, affd. [1968] S.C.R. 834; 64 W.W.R. 749; 69 D.L.R.(2d) 76, refd to. [para. 35].

Statutes Noticed:

Divorce Act, R.S.C. 1970, c. D-8, sect. 11 [para. 4].

Counsel:

A.A. Rich, Q.C., for the petitioner/appellant;

W.C. Kushneryk, for the respondent/respondent.

This appeal was heard by MONNIN, MATAS and O'SULLIVAN, JJ.A., of the Manitoba Court of Appeal on June 3, 1980.

The judgment of the Court of Appeal was delivered on July 18, 1980 and the following opinions were filed:

MONNIN, J.A. - see paragraphs 1 to 8;

O'SULLIVAN, J.A., dissenting - see paragraphs 9 to 40.

MATAS, J.A., concurred with MONNIN, J.A.