Shortt v. Shortt, (1985) 59 A.R. 129 (QB)

• Judge: Moshansky, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: February 05, 1985
• Citations: (1985), 59 A.R. 129 (QB)

Shortt v. Shortt (1985), 59 A.R. 129 (QB)

MLB headnote and full text

Shortt v. Shortt

(Action Nos. 4801-27361 and 145490)

Indexed As: Shortt v. Shortt

Alberta Court of Queen's Bench

Judicial District of Calgary

Moshansky, J.

February 5, 1985.

Summary:

A husband and wife separated in 1967 after 35 years of marriage. The parties entered a separation agreement. In 1979, the husband petitioned for divorce and the wife sought maintenance and a distribution of property under the Matrimonial Property Act.

The Alberta Court of Queen's Bench granted the divorce, refused to make a distribution of property under the Act and awarded the wife maintenance to prevent her from becoming a public charge.

Family Law - Topic 863

Husband and wife - Marital property - Distribution orders - Circumstances when order refused - A husband and wife separated in 1967 after 35 years marriage - A separation agreement divided all marital property, including real estate - The wife immediately sold her property for $25,000 - The husband held his until 1980, when he sold it for $800,000 - Both spouses had independent counsel - The husband was now affluent - The wife was unable to manage her financial affairs and was left with $7,000 and a $600 per month old age pension - The Alberta Court of Queen's Bench considered the factors to be taken into consideration under the Matrimonial Property Act and refused to make a distribution order - See paragraph 15.

Family Law - Topic 882

Husband and wife - Marital property - Considerations in making distribution orders - Relevant considerations - The Alberta Court of Queen's Bench held that the fact that a spouse would be driven to the public purse if an award was not made under the Matrimonial Property Act was a factor to be considered in determining whether a distribution order should be made under the Act - See paragraph 14.

Family Law - Topic 3354

Separation agreements - Effect of agreement - In matrimonial property applications - The Alberta Court of Queen's Bench held that a separation agreement entered into before the Matrimonial Property Act came into force did not preclude the court from making a distribution order under the Act, but pursuant to s. 8(g) of the Act it was a factor to be considered in determining whether a distribution order should be made - See paragraph 12.

Family Law - Topic 4032

Divorce - Corollary relief - Maintenance awards - Assistance by the state - Effect of - In a 1967 separation agreement, a wife waived her right to maintenance - In 1979, the wife sought maintenance - The husband was now affluent; without maintenance the wife would be driven to the public purse - The Alberta Court of Queen's Bench held that notwithstanding the separation agreement this was a situation where public policy required an award of maintenance to keep the wife off the public purse - See paragraph 15.

Cases Noticed:

Urichuk v. Urichuk (1981), 29 A.R. 186; 15 Alta. L.R. 335, agreed with [para. 11].

Beach v. Beach (1977), 2 A.R. 561, ref'd to. [para. 12].

Mergl v. Mergl (1981), 15 Alta. L.R.(2d) 278, ref'd to. [para. 13].

Jull v. Jull (1984), 56 A.R. 123 (Alta. C.A.), ref'd to. [para. 14].

Goldstein v. Goldstein, [1976] 4 W.W.R. 646, ref'd to. [para. 14].

Messier v. Delage (1984), 50 N.R. 16; 2 D.L.R.(4th) 14 (S.C.C.), ref'd to. [para. 14].

Statutes Noticed:

Matrimonial Property Act, S.A. 1978, c. 22, sect. 8(d) [para. 14]; sect. 8(g), sect. 37 [para. 11].

Counsel:

R.D. Kerr, for the respondent/plaintiff, Ruby Alberta Shortt;

J.E. Davison, for the petitioner/defendant, Morris Archibald Shortt.

This petition and application were heard before Moshansky, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following judgment on February 5, 1985.