Smith v. Smith, 2002 NSCA 78

• Judge: Bateman, Chipman and Flinn, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: May 14, 2002
• Jurisdiction: Nova Scotia
• Citations: 2002 NSCA 78;(2002), 207 N.S.R.(2d) 5 (CA)

Smith v. Smith (2002), 207 N.S.R.(2d) 5 (CA);

 649 A.P.R. 5

MLB headnote and full text

Temp. Cite: [2002] N.S.R.(2d) TBEd. JL.043

Elizabeth Florence Smith (appellant) v. Douglas Edward Smith (respondent)

(CA 172939; 2002 NSCA 78)

Indexed As: Smith v. Smith

Nova Scotia Court of Appeal

Bateman, Chipman and Flinn, JJ.A.

June 20, 2002.

Summary:

The parties divorced in 1972. The husband was ordered to pay weekly support of $60 for the wife and their four children. He made no payments. The wife obtained a judgment for arrears in February, 1976. The wife re­married in 1978 and the three youngest chil­dren were adopted. In 2000, the wife sought an order fixing arrears plus interest accrued up to the date of her remarriage.

The Nova Scotia Supreme Court, in a de­cision reported 191 N.S.R.(2d) 379; 596 A.P.R. 379, dismissed the application. The wife appealed.

The Nova Scotia Court of Appeal allowed the appeal in part.

Equity - Topic 2070

Equitable defences - Laches - Child sup­port - The parties divorced in 1972 - The husband was ordered to pay $60 weekly support for both the wife and their four children - He never did - The wife ob­tained a judgment for arrears in 1976 - The wife remarried in 1978 and the three younger children were adopted - In 2000, the wife sought an order fixing arrears plus interest accrued up to the date of her re­marriage - Respecting arrears from 1976 to 1978, the chambers judge held that the de­fence of laches did not apply - However, the wife's 22 year delay in attempting to collect the arrears was unreasonable - The Nova Scotia Court of Appeal allowed the wife's appeal in part - There was no in­equity or injustice given the husband's stance at the divorce hearing that he would not pay maintenance, his threats to the wife about attempting to collect arrears, his ability to pay something and the absence of evidence of his detrimental reliance - He was ordered to pay $7,080 - The court reduced the rate of pre-judgment interest given the delay - See paragraphs 8 to 20.

Family Law - Topic 4050

Divorce - Corollary relief - Maintenance - Enforcement - Payment or cancellation of arrears of maintenance (incl. interest) - The parties divorced in 1972 - The husband was ordered to pay $60 weekly support for both the wife and their four children - He never did - The wife obtained a judgment for arrears in 1976 - The wife remarried in 1978 and the three younger children were adopted - In 2000, the wife sought an or­der fixing arrears plus interest accrued up to the date of her remarriage - The cham­bers judge held, inter alia, that the court had no jurisdiction to revisit the arrears fixed by the 1976 judgment - The Nova Scotia Court of Appeal held that the cham­bers judge was not wrong - See para­graphs 6 and 7.

Family Law - Topic 4050

Divorce - Corollary relief - Maintenance - Enforcement - Payment or cancellation of arrears of maintenance (incl. interest) - [See Equity - Topic 2070 ].

Family Law - Topic 4053

Divorce - Corollary relief - Maintenance - Enforcement - Defences - [See Equity - Topic 2070 and Family Law - Topic 4050 ].

Counsel:

Richard G. Arab, for the appellant;

Michele Cleary, for the respondent.

This appeal was heard on May 14, 2002, before Bateman, Chipman and Flinn, JJ.A., of the Nova Scotia Court of Appeal. Flinn, J.A., delivered the following judgment for the court on June 20, 2002.