Plourde v. Plourde, (1994) 151 N.B.R.(2d) 20 (FD)

• Judge: Athey, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: March 01, 1994
• Jurisdiction: New Brunswick
• Citations: (1994), 151 N.B.R.(2d) 20 (FD)

Plourde v. Plourde (1994), 151 N.B.R.(2d) 20 (FD);

    151 R.N.-B.(2e) 20; 387 A.P.R. 20

MLB headnote and full text

[French language version follows English language version]

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

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Louise Berthe Plourde (applicant) v. Claude Jean-Pierre Plourde (respondent)

(FDF-666-92)

Indexed As: Plourde v. Plourde

New Brunswick Court of Queen's Bench

Family Division

Judicial District of Fredericton

Athey, J.

August 5, 1994.

Summary:

A husband and wife separated in 1992 after eight years' marriage. The wife applied for a division of marital and nonmarital property, seeking to have a domestic contract declared invalid.

The New Brunswick Court of Queen's Bench, Family Division, held that the do­mestic contract was unenforceable and that division of property was governed by the Marital Property Act. The court divided the value of the marital home 60% to the hus­band and 40% to the wife and equally divided the balance of marital assets and debts.

Estoppel - Topic 1163

By conduct - Representation by conduct - Practice or course of conduct - [See Fam­ily Law - Topic 3394 ].

Family Law - Topic 627

Husband and wife - Marital property - Matrimonial home - Occupation by one spouse - Claim for occupation rent - A husband and wife married in 1984 and separated in 1992 - The wife remained in the marital home and her boyfriend later moved in - The husband rented accom­modations - The mortgage was paid by rental income from a jointly owned apart­ment building - The husband paid the property taxes and insurance - The New Brunswick Court of Queen's Bench, Fam­ily Division, ordered that the wife pay $150/month occupation rent to the husband from the date of separation to the end of August 1994 ($3,900) - See paragraph 22.

Family Law - Topic 865

Husband and wife - Marital property - Distribution orders - Matrimonial home - A husband paid a substantial portion of the purchase price of the marital home before mar­riage - The funds were accumulated by him prior to cohabiting with his wife - The spouses resided in the home and shared family responsibilities for the next 10 years - The New Brunswick Court of Queen's Bench, Family Division, held that the gross disparity in their respective con­tributions to the purchase of the home justified an unequal division of the value of the home 60% in the husband's favour and 40% to the wife - See paragraphs 18 to 21.

Family Law - Topic 875

Husband and wife - Marital property - Distribution orders - Statutes requiring equal division - Exceptions - [See Family Law - Topic 865 ].

Family Law - Topic 877

Husband and wife - Marital property - Distribution orders - Business, commercial or nonfamily assets - A husband was gifted shares in the family business by his mother - The husband worked in the business, as did the wife for part of the time during the marriage - Most of the time the wife received a substantial salary - The New Brunswick Court of Queen's Bench, Family Division, rejected the wife's claim to an interest in the husband's share­holdings under either s. 8(b) or s. 42 of the Marital Property Act - See paragraphs 35 to 45.

Family Law - Topic 3394

Separation agreements, domestic contracts and marriage con­tracts - Grounds for setting aside - Lack of binding intent - A husband and wife entered a domestic contract days before their 1984 marriage - Notwithstanding the contract, the spouses conducted their fi­nancial affairs as if no contract existed - The New Brunswick Court of Queen's Bench, Family Division, stated that "this confirms that the parties did not intend that the contract would have any binding effect as between themselves. In my view [the husband] is now estopped from relying on the contract. ... I find that the domestic contract is not enforceable." - See para­graphs 11 to 17.

Cases Noticed:

Richard v. Richard (1993), 137 N.B.R.(2d) 271; 351 A.P.R. 271 (C.A.), refd to. [para. 12].

Schweiger v. Schweiger (1984), 52 N.B.R.(2d) 158; 137 A.P.R. 158; 40 R.F.L.(2d) 246 (C.A.), refd to. [para. 13].

Picard v. Picard (1991), 119 N.B.R.(2d) 251; 300 A.P.R. 251 (C.A.), refd to. [para. 19].

Irving v. Irving (1986), 80 N.B.R.(2d) 274; 202 A.P.R. 274 (Fam. Div.), refd to. [para. 22].

Garnhum v. Garnhum (1994), 144 N.B.R.(2d) 249; 368 A.P.R. 249 (Fam. Div.), refd to. [para. 22].

Elliott v. Elliott (1985), 56 Nfld. & P.E.I.R. 110; 168 A.P.R. 110; 48 R.F.L.(2d) 407 (Nfld. U.F.C.), refd to. [para. 22].

McLellan v. McLellan (1983), 50 N.B.R.(2d) 432; 131 A.P.R. 432 (C.A.), refd to. [para. 43].

Statutes Noticed:

Marital Property Act, S.N.B. 1980, c. M-1.1, sect. 6 [para. 43]; sect. 7 [para. 20]; sect. 8(b) [para. 39]; sect. 19 [para. 15]; sect. 41 [para. 11]; sect. 42(1), sect. 42(2), sect. 42(3), sect. 42(8) [para. 42].

Counsel:

R. Leslie Jackson, Q.C., for the applicant;

Anne D. Wooder, for the respondent.

This application was heard on February 28 and March 1, 1994, before Athey, J., of the New Brunswick Court of Queen's Bench, Family Division, Judicial District of Fredericton, who delivered the following judgment on August 5, 1994.