Ross v. Ross and Howe, (1984) 26 Man.R.(2d) 122 (CA)

• Judge: Monnin, C.J.M., Hall, Matas, O'Sullivan and Huband, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: November 17, 1983
• Jurisdiction: Manitoba
• Citations: (1984), 26 Man.R.(2d) 122 (CA);1984 CanLII 2924 (MB CA);6 DLR (4th) 385;39 RFL (2d) 51;26 Man R (2d) 122

Ross v. Ross (1984), 26 Man.R.(2d) 122 (CA)

MLB headnote and full text

Ross v. Ross and Howe

Ross v. Ross and Aysan

(Suit No. 223/83)

Indexed As: Ross v. Ross and Howe

Manitoba Court of Appeal

Monnin, C.J.M., Hall, Matas, O'Sullivan and Huband, JJ.A.

February 16, 1984.

Summary:

A husband petitioned for divorce. His wife counter-petitioned and applied for maintenance. The Manitoba Court of Queen's Bench, in a decision reported in (1983), 21 Man.R.(2d) 203, granted the divorce decree. The court also ordered that the husband pay the wife an $18,000 lump sum as maintenance under the Divorce Act, notwithstanding that there had been a maintenance settlement in a separation agreement. The husband appealed.

The Manitoba Court of Appeal, Huband, J.A., dissenting, dismissed the appeal and held that this was a proper case for the court to exercise its discretion to award maintenance beyond the maintenance provided for in the separation agreement.

Family Law - Topic 4006

Divorce - Corollary relief - Maintenance awards - Separation agreement - Effect of - Section 11(1) of the Divorce Act gave the court power to grant maintenance - The Manitoba Court of Appeal stated that the presence of a separation agreement was an important circumstance for the court to take into account when awarding maintenance under s. 11(1), and the court should not lightly disturb the terms of a duly negotiated agreement - The court stated, however, that where there existed an unbalanced and unfair settlement, the court was justified in awarding maintenance beyond that provided for in a separation agreement - See paragraphs 1 to 62.

Family Law - Topic 4011

Divorce - Corollary relief - Maintenance awards - Lump sum - A wife agreed to accept $12,000 in lieu of maintenance or property claims against her husband - The parties cohabited 9.5 years - The husband, aged 48, was the general manager of a car dealership and earned approximately $52,000 annually - The wife, aged 34, was the manager of a clothing boutique and earned $11,000 gross per year - The Manitoba Court of Appeal affirmed an order directing the husband to pay an additional lump sum of $18,000 for maintenance under the Divorce Act - See paragraphs 1 to 62.

Cases Noticed:

Katz v. Katz and Scott (1982), 15 Man.R.(2d) 435 (Man. Q.B.), varied 21 Man.R.(2d) 1 (Man. C.A.), clarified 25 Man.R.(2d) 57 (Man. C.A.), consd. [paras. 11, 26, 39 to 42, 84 to 87].

Newman v. Newman (1981), 6 Man.R.(2d) 5 (Man. Q.B.), varied 4 Man.R.(2d) 50 (Man. C.A.), consd. [paras. 26, 38, 73].

Farquar v. Farquar (1983), 35 R.F.L.(2d) 287 (Ont. C.A.), consd. [paras. 27, 29 to 35, 74 to 77].

McMillan v. McMillan (1983), 1 O.A.C. 106 (Ont. C.A.), consd. [para. 27].

Messier v. Delage (1984), 50 N.R. 16; 35 R.F.L.(2d) 337 (S.C.C.), consd. [paras. 27, 36, 37, 43].

Thompson v. Thompson et al. (1974), 16 R.F.L. 158, consd. [paras. 55, 66, 90].

Lloyds Bank v. Bundy, [1974] 3 All E.R. 757, folld. [para. 93].

Statutes Noticed:

Divorce Act, R.S.C. 1970, c. D-8, sect. 11(1).

Authors and Works Noticed:

Oxford Universal Dictionary [para. 44].

Counsel:

R.L. Tapper, for the appellant (Donald Daniel Ross);

R.B. McNicol and D.M. Skwark, for the respondent (Margaret Katherine Ross).

This appeal was heard before Monnin, C.J.M., Hall, Matas, O'Sullivan and Huband, JJ.A., of the Manitoba Court of Appeal, on November 17, 1983. The decision of the Court of Appeal was rendered on February 16, 1984, and the following opinions were filed:

Hall, J.A. (Monnin, C.J.M., and O'Sullivan, J.A., concurring) - See paragraphs 1 to 7;

Matas, J.A. (concurring in separate reasons) - See paragraphs 8 to 62; and

Huband, J.A. (dissenting) - See paragraphs 63 to 98.