Taylor v. Taylor, (1984) 65 N.S.R.(2d) 294 (TD)

• Judge: Richard, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: September 25, 1984
• Jurisdiction: Nova Scotia
• Citations: (1984), 65 N.S.R.(2d) 294 (TD)

Taylor v. Taylor (1984), 65 N.S.R.(2d) 294 (TD);

    147 A.P.R. 294

MLB headnote and full text

Taylor v. Taylor

(S.T. 02010)

Indexed As: Taylor v. Taylor

Nova Scotia Supreme Court

Trial Division

Richard, J.

September 25, 1984.

Summary:

After 11 years of marriage, a wife deserted her husband and children. For 15 years she made no claims to the marital property, which was held by herself and her husband as joint tenants. The wife then brought an action under the Partition Act to have the land partitioned and sold.

The Nova Scotia Supreme Court, Trial Division, allowed the action, subject to certain financial adjustments in the husband's favour. The court ordered that the land be sold by a certain date unless the husband purchased the wife's 50% interest.

Real Property - Topic 6724

Partition - Financial adjustments - Occupation rent - A wife deserted her husband and children - Fifteen years later, after making no claims to the marital property, the wife brought an action to have the property partitioned and claimed occupation rent from her husband - The Nova Scotia Supreme Court, Trial Division, held that the husband was not liable for occupation rent where the wife left voluntarily, leaving him to raise the children himself - See paragraph 9.

Real Property - Topic 6725

Partition - Financial adjustments - Mortgage payments - A wife deserted her husband and children, returning 15 years later to bring an action to have the marital property partitioned - The Nova Scotia Supreme Court, Trial Division, allowed the action, but ordered that one-half of the mortgage payments made by the husband in the wife's absence ($6,420) be deducted from her 50% interest in the property - See paragraph 9.

Trusts - Topic 2310

Constructive trusts - Circumstances when not imposed - A wife deserted her husband and children - Fifteen years later, after making no previous claims to the marital property, the wife submitted that her interest was held by her husband upon a constructive trust - The Nova Scotia Supreme Court, Trial Division, stated that no constructive trust was created where the wife's reason for acquiescing was that the home was being used to raise their children, which negatived the creation of any constructive trust - See paragraphs 4 to 7.

Cases Noticed:

Mallia v. Mallia (1982), 54 N.S.R.(2d) 65; 112 A.P.R. 65, refd to. [para. 5].

Davis v. Cipryk (1977), 21 N.S.R.(2d) 266; 28 A.P.R. 266, not appld. [para. 12].

Statutes Noticed:

DiCastri, Law of Vendor and Purchaser [para. 5].

Hanbury and Maudsley, Modern Equity (11th Ed.), p. 369 [para. 6].

Counsel:

S. Raymond Morse, for the plaintiff and defendant by counterclaim;

John T. Rafferty, for the defendant and plaintiff by counterclaim.

This action was heard on September 25, 1984, at Truro, Nova Scotia, before Richard, J., of the Nova Scotia Supreme Court, Trial Division, who delivered the following judgment orally on September 25, 1984.