Stewart v. Stewart Estate, (1997) 195 N.B.R.(2d) 36 (FD)

• Judge: Riordon, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: June 10, 1997
• Jurisdiction: New Brunswick
• Citations: (1997), 195 N.B.R.(2d) 36 (FD)

Stewart v. Stewart Estate (1997), 195 N.B.R.(2d) 36 (FD);

    195 R.N.-B.(2e) 36; 499 A.P.R. 36

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [1997] N.B.R.(2d) TBEd. DE.051

Astrid Anneliese Melanie Stewart (applicant) v. Estate of Glen Allen Stewart (respondent)

(FDN-42-97)

Indexed As: Stewart v. Stewart Estate

New Brunswick Court of Queen's Bench

Family Division

Judicial District of Miramichi

Riordon, J.

December 12, 1997.

Summary:

Astrid Stewart and Glen Allen Stewart divorced in 1988. The divorce petition stated that all the marital property had been divided between the spouses by oral arrangement. Mr. Stewart, a retired member of the armed forces, died in 1995. Mrs. Stewart unsuc­cessfully sought payment of pension survivor benefits from the forces under the Pension Benefits Division Act. Because the limitation period respecting division of marital property had expired (Marital Property Act, s. 3(2)), Mrs. Stewart applied under the Act, s. 3(4), for an extension of time apply for division of marital property (i.e., the pen­sion).

The New Brunswick Court of Queen's Bench, Family Division, dismissed the ap­plication.

Equity - Topic 2061

Equitable defences - Laches - General - Astrid and Glen Allen Stewart divorced in 1988 - The divorce petition stated that all marital property had been divided by oral arrange­ment - Mr. Stewart, a retired mem­ber of the armed forces, died in 1995 - Mrs. Stewart unsuccessfully sought pay­ment of pension survivor benefits from the forces under the Pension Benefits Division Act - Because the limitation period re­specting division of marital prop­erty had expired (Marital Property Act, s. 3(2)), Mrs. Stewart applied under the Act, s. 3(4), for an extension of time to apply for div­ision of marital property (i.e., the pen­sion) - The New Brunswick Court of Queen's Bench, Family Division, dismissed the application - Mrs. Stewart acquiesced to the division of marital property follow­ing the divorce - She had the ability to have full knowledge of all claims at that time - Accordingly, the doctrine of latches applied - See paragraphs 18 and 19.

Family Law - Topic 880.28

Husband and wife - Marital property - Distribution orders - Particular property - Pensions - [See Equity - Topic 2061 and first Family Law - Topic 956 ].

Family Law - Topic 956

Husband and wife - Marital property - Distribution orders - Practice - Limitation of actions - Astrid and Glen Allen Stewart divorced in 1988 - The divorce petition stated that all marital property had been divided by oral arrangement - Mr. Stewart, a retired member of the armed forces, died in 1995 - Mrs. Stewart un­successfully sought payment of pension survivor bene­fits from the forces under the Pension Benefits Division Act - Because the limita­tion period respecting division of marital property had expired (Marital Property Act, s. 3(2)), Mrs. Stewart applied under the Act, s. 3(4), for an ex­tension of time apply for division of mar­ital property (i.e., the pension) - The New Brunswick Court of Queen's Bench, Fam­ily Division, dis­missed the application - There were no circumstances reasonably beyond Mrs. Stewart's control which had kept her from applying for the benefits within the limita­tion period.

Family Law - Topic 956

Husband and wife - Marital property - Distribution orders - Practice - Limitation of actions - Section 3 of the Marital Prop­erty Act allowed a party to apply for an extension of time to bring an application for division of marital property if the time limitation had expired, provided certain criteria were met - The New Brunswick Court of Queen's Bench, Family Division, noted that to fall within the scope of this section, the applicant must show that he or she was prevented from making an ap­plication: "(a) by lack of knowledge of the granting of the divorce or of the date of it, or (b) by circumstances reasonably beyond her control." - See paragraphs 10 and 11.

Family Law - Topic 962

Husband and wife - Actions between hus­band and wife - Practice - Delay - Effect of - [See both Family Law - Topic 956 ].

Cases Noticed:

Cyr v. Martin (1986), 69 N.B.R.(2d) 177; 177 A.P.R. 177 (Fam. Div.), refd to. [para. 12].

Ludlow v. McGraw (1987), 79 N.B.R.(2d) 10; 201 A.P.R. 10 (C.A.), refd to. [para. 12].

Robichaud v. Robichaud (1991), 120 N.B.R.(2d) 257; 302 A.P.R. 257 (Fam. Div.), refd to. [para. 12].

Lyons v. Lyons Estate (1986), 73 N.B.R.(2d) 103; 184 A.P.R. 103 (Fam. Div.), refd to. [para. 12].

Gallant v. Gallant Estate et al. (1988), 88 N.B.R.(2d) 101; 224 A.P.R. 101 (Fam. Div.), refd to. [para. 12].

LeBlanc v. LeBlanc Estate (1984), 59 N.B.R.(2d) 31; 154 A.P.R. 31 (Fam. Div.), refd to. [para. 12].

Statutes Noticed:

Marital Property Act, S.N.B. 1980, c. M-1.1, sect. 3(1)(a), sect. 3(2), sect. 3(4) [para. 10].

Counsel:

Michael Noel, for the applicant;

B.L. Eileen Dennis, for the respondent.

This application was heard on June 10, 1997, before Riordon, J., of the New Bruns­wick Court of Queen's Bench, Family Div­ision, Judicial District of Miramichi, who delivered the following judgment on De­cember 12, 1997.