Ralph v. Ralph, (1994) 122 Nfld. & P.E.I.R. 153 (NFTD)

• Judge: Green, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: April 14, 1994
• Jurisdiction: Newfoundland and Labrador
• Citations: (1994), 122 Nfld. & P.E.I.R. 153 (NFTD)

Ralph v. Ralph (1994), 122 Nfld. & P.E.I.R. 153 (NFTD);

    379 A.P.R. 153

MLB headnote and full text

Kenneth Ralph (applicant) v. Celyne Ralph (respondent)

(St. J. No. 02414)

Indexed As: Ralph v. Ralph

Newfoundland Supreme Court

Trial Division

Green, J.

June 30, 1994.

Summary:

A wife obtained a divorce in Ontario in 1993 in the husband's absence. The husband, ordinarily resident in Newfoundland, was ordered to pay $750 per month maintenance for each of two children and $500 per month spousal maintenance. The husband applied in Newfoundland to vary maintenance and eliminate or reduce arrears.

The Newfoundland Supreme Court, Trial Division, provisionally terminated spousal maintenance, varied child maintenance to $300 per month maintenance for the youngest child and forgave all arrears except $7,878.

Conflict of Laws - Topic 2222

Family law - Maintenance - Jurisdiction of court - In 1993 a wife obtained a divorce in Ontario - The husband, who lived in Newfoundland since 1987, was ordered to pay spousal and child mainte­nance - The husband applied in New­found­land to vary maintenance under the Divorce Act - The wife did not appear, but filed an affidavit in opposition to the application, claiming the case should be transferred to Ontario, which was the more appropriate forum - The Newfoundland Supreme Court, Trial Division, denied the request - The court had jurisdiction and the husband, being ordinarily resident in Newfoundland, had the right to have the matter heard in Newfoundland - See para­graphs 6 to 8.

Family Law - Topic 4017

Divorce - Corollary relief - Maintenance awards - Variation of periodic payments - In a 1993 Ontario divorce judgment a husband earning $60,000 per year was ordered to pay $500 per month spousal main­tenance and $750 per month child main­tenance for each of two children - The husband was now unemployed, earn­ing $17,600 per year (net) - The wife earned $15,170 per year - The husband assumed a new relationship and they had a new child - The husband used his sav­ings to repair his companion's house (dam­aged by fire) and replace his personal belongings - His 19 year old son, who had lived with him, was now institu­tionalized in a psychiatric hospital and out of the wife's care - The Newfoundland Supreme Court, Trial Divi­sion, held that there was a sufficient change in the hus­band's cir­cumstances to justify varying maintenance - The court made a provi­sional order terminating spousal mainten­ance and re­ducing child maintenance to $300 per month for the youngest child - See para­graphs 15 to 28.

Family Law - Topic 4018

Divorce - Corollary relief - Maintenance awards - Variation of - Jurisdiction - [See Conflict of Laws - Topic 2222 ].

Family Law - Topic 4047.3

Divorce - Corollary relief - Maintenance - Enforcement - Provisional v. final orders - In 1993 a wife obtained a divorce in Ontario - The husband, who lived in Newfoundland since 1987, was ordered to pay spousal and child maintenance - The husband applied in Newfoundland to vary maintenance under the Divorce Act - The wife was served with the application, but did not appear, although she did file an affidavit opposing the application and claiming Ontario was the more appropriate forum - The Newfoundland Supreme Court, Trial Division, stated that the wife did not accept the jurisdiction of the New­foundland court (s. 18(2)(a)), did not con­sent to the application (s. 17.1) and did not specifically request a provisional hearing - The court held that even if it had a discre­tion to make a final variation order, it would not do so - Any order would be provisional subject to confirmation by Ontario courts under s. 19 - See para­graphs 9 to 14.

Family Law - Topic 4050

Divorce - Corollary relief - Maintenance - Enforcement - Payment or cancellation of arrears - A 1993 Ontario divorce judg­ment fixed maintenance arrears at $21,500 and ordered the husband to pay $500 per month spousal maintenance and $750 per month maintenance for each of two children - The Newfoundland Supreme Court, Trial Division, made a provisional order under the Divorce Act terminating spousal maintenance and reducing child maintenance - The husband also sought cancellation or reduction of the arrears - The wife did nothing from 1982 to 1991 to enforce arrears - The husband tried to comply with maintenance orders - Main­tenance was increased, subsequent to the divorce, several times in Ontario in the husband's absence - He could not afford to go to Ontario or retain Ontario counsel - The husband often received delayed notice of the variations - The husband was now unemployed, with a new family and lacked the ability to pay the arrears - The court provisionally forgave all arrears except $7,878, payable at a rate of $100 per month - See paragraphs 29 to 42.

Cases Noticed:

Newfoundland v. Reid (1989), 79 Nfld. & P.E.I.R. 338; 246 A.P.R. 338; 19 R.F.L.(3d) 385 (Nfld. C.A.), refd to. [para. 3].

Murphy v. Murphy and Newfoundland (Attorney General) (1981), 35 Nfld. & P.E.I.R. 407; 99 A.P.R. 407; 127 D.L.R.(3d) 473 (Nfld. C.A.), refd to. [para. 3].

Picco v. Picco (1987), 65 Nfld. & P.E.I.R. 279; 199 A.P.R. 279 (Nfld. U.F.C.), refd to. [para. 4].

Mahar v. Mahar (1987), 83 N.B.R.(2d) 373; 212 A.P.R. 373; 10 R.F.L.(3d) 276 (N.B. Fam. Div.), refd to. [para. 10].

Maximitch v. Maximitch (1987), 48 Man.R.(2d) 302; 8 R.F.L.(3d) 54 (Q.B. Fam. Div.), refd to. [para. 10].

Walker v. Walker (1987), 8 R.F.L.(3d) 270 (N.S.T.D.), refd to. [para. 10].

Martell v. Height (1993), 111 Sask.R. 279; 45 R.F.L.(3d) 344 (Q.B.), refd to. [para. 11].

Gartner v. Gartner (1993), 146 A.R. 84 (Q.B.), refd to. [para. 11].

Burt v. Burt (1990), 81 Nfld. & P.E.I.R. 241; 255 A.P.R. 241 (Nfld. U.F.C.), refd to. [para. 21].

Farrell v. Farrell (1993), 109 Nfld. & P.E.I.R. 52; 343 A.P.R. 52 (Nfld. T.D.), refd to. [para. 21].

Kellar v. Wallbank (1993), 142 A.R. 214 (Q.B.), refd to. [para. 30].

Adam v. Adam (1993), 89 Man.R.(2d) 275; 50 R.F.L.(3d) 216 (Q.B. Fam. Div.), refd to. [para. 31].

Tremblett v. Tremblett (1988), 75 Nfld. & P.E.I.R. 175; 234 A.P.R. 175 (Nfld. U.F.C.), refd to. [para. 34].

Belcourt v. Belcourt (1987), 77 A.R. 347; 6 R.F.L.(3d) 396 (Q.B.), refd to. [para. 34].

Statutes Noticed:

Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, sect. 5(1)(a) [para. 6]; sect. 17(1) [para. 30]; sect. 17(4) [para. 5]; sect. 17(7), sect. 17(8) [para. 24]; sect. 17.1, sect. 18(2) [para. 10]; sect. 19 [para. 14].

Family Law Act, S.N. 1988, c. 60, sect. 47 [para. 3].

Family Law Reform Act, R.S.O. 1980, c. 152, generally [para. 3].

Reciprocal Enforcement of Support Orders Act, S.N. 1988, c. 59, sect. 4, sect. 8(7) [para. 3].

Authors and Works Noticed:

McLeod, James G., Annotation, 10 R.F.L.(3d) 276, generally [para. 10].

Counsel:

Annette Scott, for Kenneth Ralph;

Celyne Ralph not appearing.

This application was heard on March 22 and April 14, 1994, before Green, J., of the Newfoundland Supreme Court, Trial Divi­sion, who delivered the following judgment on June 30, 1994.