Savoie v. Savoie, (1999) 138 Man.R.(2d) 128 (CA)

• Judge: Scott, C.J.M., Twaddle and Kroft, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: June 28, 1999
• Jurisdiction: Manitoba
• Citations: (1999), 138 Man.R.(2d) 128 (CA);1999 CanLII 5076 (MB CA);175 DLR (4th) 291;[1999] 9 WWR 63;49 RFL (4th) 336;[1999] CarswellMan 308;[1999] MJ No 298 (QL);138 Man R (2d) 128;202 WAC 128

Savoie v. Savoie (1999), 138 Man.R.(2d) 128 (CA);

    202 W.A.C. 128

MLB headnote and full text

Temp. Cite: [1999] Man.R.(2d) TBEd. JL.006

Roland Elie Savoie (petitioner/appellant) v. Sally Evelyn Savoie (respondent/respondent)

(AF 98-30-04032)

Indexed As: Savoie v. Savoie

Manitoba Court of Appeal

Scott, C.J.M., Twaddle and Kroft, JJ.A.

June 28, 1999.

Summary:

Spouses separated in 1992 after a 23.5 year traditional marriage and four children. At the date of separation, the husband earned $61,000 per year and the wife earned $1,500 per month. A 1993 separation agreement obligated the husband to pay $600 per month spousal support and $500 per month for two children and the husband assumed the mari­tal debts. In 1995, the husband petitioned for divorce and sought to incorporate the terms of the separation agreement into the divorce judgment. In 1997, prior to the divorce hearing, the husband unilaterally terminated spousal support because of the wife's cohab-itation with another man. The wife sought to set aside the separation agreement on the grounds of, inter alia, duress.

The Manitoba Court of Queen's Bench set aside the separation agreement on the grounds of duress and ordered that the hus­band continue to pay $600 per month spousal support (retroactive to wife's amended answer to petition for divorce). The court held that notwithstanding the lack of current financial need, the wife continued to be economically disadvantaged by the mar­riage breakdown. The husband appealed the wife's continued entitlement to support. The appeal against the setting aside the separ­ation agreement was dismissed without calling on the wife.

The Manitoba Court of Appeal allowed the appeal in part. The trial judge did not err in finding a continuing need by the wife even though she entered a common law relation­ship where she was not required to contrib­ute to household expenses and was gainfully employed. However, the court reduced spousal support to $300 per month.

Family Law - Topic 4022

Divorce - Corollary relief - Maintenance awards - To wife - Considerations - Spouses separated in 1992 after a 23.5 year traditional marriage - The husband earned $61,000/year - The wife earned $12,500/year - The husband assumed the $25,000 in marital debts and agreed in a 1993 separation agreement to pay spousal support of $600/month - In 1997, the husband unilaterally terminated support under the separation agreement (wife cohabiting with another man) - In 1998, the trial judge set aside the separation agreement (duress) - The wife now earned $1,500/month, paid no household expenses and had little, if any, current financial need - The trial judge continued support at $600/month (reviewable in three years), finding a continuing economic disadvan­tage resulting from the marriage break­down - The Manitoba Court of Appeal held that notwithstanding the wife's current lack of financial need, support was still justified to reflect the continuing economic disadvantage resulting from the long-term traditional marriage and its breakdown - "Need" did not automatically terminate upon the attainment of self-sufficiency - However, the court reduced support to $300/month.

Family Law - Topic 4022.1

Divorce - Corollary relief - Maintenance awards - To wife - Extent of obligation - [See Family Law - Topic 4022 ].

Cases Noticed:

Moge v. Moge, [1992] 3 S.C.R. 813; 145 N.R. 1; 81 Man.R.(2d) 161; 30 W.A.C. 161; [1993] 1 W.W.R. 481; 99 D.L.R.(4th) 456; 43 R.F.L.(3d) 345, refd to. [para. 10].

Bracklow v. Bracklow (1999), 236 N.R. 79; 120 B.C.A.C. 211; 196 W.A.C. 211 (S.C.C.), refd to. [para. 19].

Newson v. Newson (1993), 25 B.C.A.C. 24; 43 W.A.C. 24; 45 R.F.L.(3d) 115 (C.A.), refd to. [para. 20].

Myers v. Myers, [1994] B.C.J. No. 1223 (S.C.), affd. (1995), 65 B.C.A.C. 226; 106 W.A.C. 226 (C.A.), refd to. [para. 22].

Giraud v. Giraud (1997), 100 B.C.A.C. 27; 163 W.A.C. 27 (C.A.), refd to. [para. 24].

Lamey v. Lamey (1996), 138 Nfld. & P.E.I.R. 53; 431 A.P.R. 53; 19 R.F.L.(4th) 172 (P.E.I.T.D.), refd to. [para. 25].

Mackie v. Mackie (1994), 96 Man.R.(2d) 74 (Fam. Div.), refd to. [para. 26].

Harris v. Harris (1997), 97 O.A.C. 14 (C.A.), refd to. [para. 27].

May v. May (1993), 48 R.F.L.(3d) 432 (Ont. Gen. Div.), refd to. [para. 27].

Wrobel v. Wrobel (1994), 160 A.R. 241; 8 R.F.L.(4th) 403 (Q.B.), refd to. [para. 27].

L.G. v. G.B., [1995] 3 S.C.R. 370; 186 N.R. 201; 15 R.F.L.(4th) 201, refd to. [para. 27].

Hickey v. Hickey (1999), 240 N.R. 312; 138 Man.R.(2d) 40; 202 W.A.C. 40 (S.C.C.), refd to. [para. 31].

Luke v. Luke (1997), 118 Man.R.(2d) 68; 149 W.A.C. 68 (C.A.), refd to. [para. 34].

Statutes Noticed:

Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, sect. 17(7) [para. 16].

Authors and Works Noticed:

McLeod, James G., Annotation to B.(G.) v. G.(L.) (1995), 15 R.F.L.(4th) 201, p. 224 [para. 29].

Counsel:

F.E. Bortoluzzi, for the appellant;

S.A. Gingera, for the respondent.

This appeal was heard on May 17, 1999, before Scott, C.J.M., Twaddle and Kroft, JJ.A., of the Manitoba Court of Appeal.

On June 28, 1999, Scott, C.J.M., delivered the following judgment for the Court of Appeal.