Rondeau v. Rondeau, (2011) 299 N.S.R.(2d) 244 (CA)

• Judge: Oland, Hamilton and Fichaud, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: January 14, 2011
• Jurisdiction: Nova Scotia
• Citations: (2011), 299 N.S.R.(2d) 244 (CA);2011 NSCA 5

Rondeau v. Rondeau (2011), 299 N.S.R.(2d) 244 (CA);

    947 A.P.R. 244

MLB headnote and full text

Temp. Cite: [2011] N.S.R.(2d) TBEd. JA.026

Judith Karen Rondeau (appellant) v. Ronald Lorne Rondeau (respondent)

(CA 323131; 2011 NSCA 5)

Indexed As: Rondeau v. Rondeau

Nova Scotia Court of Appeal

Oland, Hamilton and Fichaud, JJ.A.

January 14, 2011.

Summary:

The parties separated in November 1998, after almost 28 years of marriage. They entered into a separation agreement that was incorporated into their March 25, 2003 corollary relief judgment. The husband applied for a variation of spousal support.

The Nova Scotia Supreme Court, in a decision reported at [2009] N.S.R.(2d) Uned. 181, allowed the application. The wife appealed.

The Nova Scotia Court of Appeal allowed the appeal, holding that the trial judge erred in finding that there had been a material change of circumstances in the parties' circumstances as required by s. 17(4.1) of the Divorce Act.

Family Law - Topic 4017

Divorce - Corollary relief - Maintenance and awards - Awards - Variation of periodic payments - The parties separated in November 1998, after almost 28 years of marriage - They entered into a separation agreement that was incorporated into their March 25, 2003 corollary relief judgment - The husband successfully applied for a variation of spousal support - The wife appealed - The Nova Scotia Court of Appeal allowed the appeal - The trial judge erred in finding that there had been a material change of circumstances in the parties' circumstances as required by s. 17(4.1) of the Divorce Act - The judge's reasons suggested that he found a change in circumstances on at least three bases: (1) the mere passage of time (having paid spousal support for nine years), (2) the husband's health problems, (3) his age, and perhaps a fourth basis, the husband's wish to save for retirement - However, the evidence before the judge was that the husband's present income was significantly higher than his income in 2003 when the amount of spousal support was originally set, despite his health issues - On the other hand, the wife's income had barely increased.

Family Law - Topic 4018

Divorce - Corollary relief - Maintenance and awards - Awards - Variation of - Jurisdiction - [See Family Law - Topic 4017 ].

Cases Noticed:

Hickey v. Hickey, [1999] 2 S.C.R. 518; 240 N.R. 312; 138 Man.R.(2d) 40; 202 W.A.C. 40, refd to. [para. 9].

MacLennan v. MacLennan (2003), 212 N.S.R.(2d) 116; 665 A.P.R. 116; 2003 NSCA 9, refd to. [para. 9].

Willick v. Willick, [1994] 3 S.C.R. 670; 173 N.R. 321; 125 Sask.R. 81; 81 W.A.C. 81, refd to. [para. 13].

L.G. v. G.B., [1995] 3 S.C.R. 370; 186 N.R. 201, refd to. [para. 13].

Rushton v. Rushton, [2002] A.R. Uned. 566; 2002 ABQB 1074, refd to. [para. 16].

White v. White, [2006] B.C.T.C. Uned. 378 (S.C.), refd to. [para. 17].

Armstrong v. Armstrong, [1992] O.J. No. 3094, refd to. [para. 18].

LeBlanc v. LeBlanc (1995), 163 N.B.R.(2d) 192; 419 A.P.R. 192 (Fam. Div.), refd to. [para. 19].

Kearney v. Kearney (1988), 54 Man.R.(2d) 42 (Q.B. Fam. Div.), refd to. [para. 25].

Tait v. Tait (1994), 8 R.F.L.(4th) 18 (Ont. Gen. Div.), refd to. [para. 25].

LeMoine v. LeMoine (1997), 185 N.B.R.(2d) 173; 472 A.P.R. 173 (C.A.), dist. [para. 30].

Messier v. Delage, [1983] 2 S.C.R. 401; 50 N.R. 16, refd to. [para. 31].

Casey v. Casey, [2008] N.S.R.(2d) Uned. 47; 2008 NSSC 56, refd to. [para. 31].

Meade v. Meade (1990), 99 N.S.R.(2d) 13; 270 A.P.R. 13 (Fam. Ct.), refd to. [para. 31].

Skelly v. Skelly, [2007] B.C.T.C. Uned. D30; 2007 BCSC 810, refd to. [para. 31].

Counsel:

Tanya G. Nicholson, for the appellant;

M. Ann Levangie and Jeremy P. Smith (Articled Clerk), for the respondent.

This appeal was heard by Oland, Hamilton and Fichaud, JJ.A., of the Nova Scotia Court of Appeal. Hamilton, J.A., delivered the following reasons for the court on January 14, 2011.