Seward v. Seward, (1988) 85 N.S.R.(2d) 30 (FC)

• Case Date: January 12, 1988
• Jurisdiction: Nova Scotia
• Citations: (1988), 85 N.S.R.(2d) 30 (FC)

Seward v. Seward (1988), 85 N.S.R.(2d) 30 (FC);

    216 A.P.R. 30

MLB headnote and full text

John Welsford Seward (applicant/respondent) v. Carol Ann Seward (respondent/petitioner)

(H78-1224)

Indexed As: Seward v. Seward

Nova Scotia Family Court

Butler, J.F.C.

January 12, 1988.

Summary:

A husband and wife were divorced in 1979 after 15 years of marriage. The wife was awarded custody of their children and maintenance for herself and the children. After the children had grown up and left home, the husband had remarried and the wife was gainfully employed, the husband applied for rescission of the maintenance order and forgiveness of arrears.

The Nova Scotia Family Court allowed the application.

Family Law - Topic 4017

Divorce - Corollary relief - Maintenance awards - Variation of periodic payments - After a divorce, an unemployed wife with custody of two children was granted maintenance for herself and the children - After nine years, the children had grown up and left home, the wife was gainfully employed and the husband remarried - The husband applied for rescission of the maintenance order - The Nova Scotia Family Court recommended termination of maintenance - The court stated that the wife had a reasonable income from her employment and was financially independent - The court held that there was no obligation to maintain the wife indefinitely provided any inability to be self-sufficient was not attributable to the marriage - See paragraphs 18 to 32 - The court also forgave $22,083.22 in arrears - See paragraphs 11 to 17.

Family Law - Topic 4022.1

Divorce - Corollary relief - Maintenance awards - To wife - Extent of obligation - [See Family Law - Topic 4017 above].

Family Law - Topic 4023

Divorce - Corollary relief - Maintenance awards - Effect of delay or laches - A wife, with custody of two children, was awarded $500 per month maintenance for herself and children - For several years, the husband paid only $375 per month - The husband applied for forgiveness of the arrears - The Nova Scotia Family Court recommended forgiveness of the arrears - The court did not apply the "one year rule" because the wife had accepted the smaller payment without complaint for years and had no debts or hardship linked to the arrears - The court stated that the arrears would be a windfall - See paragraphs 11 to 17.

Cases Noticed:

Hemeon v. Cross (1978), 29 N.S.R.(2d) 554; 45 A.P.R. 554; 7 R.F.L.(2d) 372, appld. [paras. 11 and 15].

Ducharme v. Ducharme (1985), 68 N.S.R.(2d) 325; 159 A.P.R. 325, appld. [para. 14].

Theriault v. Theriault (1987), 81 N.S.R.(2d) 426; 203 A.P.R. 426, appld. [para. 23].

Pelech v. Pelech, [1987] 4 W.W.R. 481; 76 N.R. 81; 7 R.F.L.(3d) 225; 14 B.C.L.R. 145, refd to. [para. 26].

Richardson v. Richardson (1987), 77 N.R. 1; 22 O.A.C. 1; 7 R.F.L.(3d) 304, refd to. [para. 26].

Caron v. Caron (1987), 75 N.R. 36; 7 R.F.L.(3d) 274 (S.C.C.), refd to. [para. 26].

Statutes Noticed:

Divorce Act, S.C. 1986, c. 4, sect. 2 [para. 12]; sect. 17(7)(d) [para. 22].

Counsel:

Kay L. Rhodenizer, for applicant/respondent;

Katherine A. McDonald, for respondent/petitioner.

This application was heard before Butler, J.F.C., of the Nova Scotia Family Court, at Halifax, Nova Scotia, who delivered the following judgment on January 12, 1988.