Roch v. Payne et al., (1999) 25 B.C.T.C. 200 (SCM)

• Court: Supreme Court of British Columbia (Canada)
• Case Date: September 17, 1999
• Jurisdiction: British Columbia
• Citations: (1999), 25 B.C.T.C. 200 (SCM)

Roch v. Payne (1999), 25 B.C.T.C. 200 (SCM)

MLB headnote and full text

Temp. Cite: [1999] B.C.T.C. TBEd. DE.126

Diane Susan Roch also known as Diane Susan Payne (plaintiff) v. Kevin James Payne and 355363 B.C. Ltd. carrying on business as Low Cost Tire & Muffler also known as Tire Craft (defendant)

(08458)

Indexed As: Roch v. Payne et al.

British Columbia Supreme Court

Prince George

Baker, Master

November 15, 1999.

Summary:

At issue in this application was whether the plaintiff was a spouse of the defendant within the meaning of s. 1 of the Family Relations Act. The defendant argued that the cessation of the parties' cohabitation in 1996/97 constituted a separation and that the parties commenced a new cohabitation there­after. As a consequence, he argued that the parties did not cohabit for the requisite 24 months and the application was brought more than one year after the parties' separ­ation in April 1996 and the plaintiff did not come within the definition of spouse. The plaintiff argued that the cessation of cohabi­tation in 1996/97 did not constitute a separ­ation.

A Master of the British Columbia Supreme Court found that when the parties ceased to cohabit in 1996/97, they did not do so with the intent of terminating their relationship. The Master held that the plaintiff remained within the term "spouse" within s. 1 of the Act and ordered the defendant to pay interim spousal maintenance of $1,200 per month.

Family Law - Topic 1002

Common law relationships - Spouse - Meaning of - See paragraphs 1 to 23.

Family Law - Topic 2325

Maintenance of wives and children - Main­tenance of wives - Spouse - What consti­tutes - See paragraphs 1 to 23.

Cases Noticed:

Haensgen v. Karpuchin (1999), 18 B.C.T.C. 64 (S.C. Master), refd to. [para. 7].

Kolia v. Kolia et al., [1981] 5 W.W.R. 540 (B.C.S.C.), refd to. [para. 7].

Smart v. Wiewior (1986), 5 R.F.L.(3d) 20 (B.C.S.C.), refd to. [para. 9].

Olender v. Olender, [1992] B.C.J. No. 1073 (S.C. Master), refd to. [para. 12].

Gostlin v. Kergin (1986), 3 B.C.L.R.(2d) 264 (C.A.), refd to. [para. 12].

Peacock v. Glynes (1999), 21 B.C.T.C. 1 (S.C.), refd to. [para. 15].

Counsel:

P. Schmit, for the plaintiff;

D. McGaughey, for the defendant.

This matter was heard on September 17, 1999, at Prince George, British Columbia, before Baker, Master, of the British Colum­bia Supreme Court, who delivered the fol­lowing decision on November 15, 1999.