Whalley v. Barsalou, (1990) 114 N.B.R.(2d) 384 (FD)

• Judge: Sirois, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: August 02, 1989
• Jurisdiction: New Brunswick
• Citations: (1990), 114 N.B.R.(2d) 384 (FD)

Whalley v. Barsalou (1990), 114 N.B.R.(2d) 384 (FD);

    114 R.N.-B.(2e) 384; 289 A.P.R. 384

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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Wendy Anne Whalley (applicant/respondent) v. Joseph Jean-Paul Barsalou (respondent/applicant)

(FDSJ-1541-84; FDSJ-1451-84)

Indexed As: Whalley v. Barsalou

New Brunswick Court of Queen's Bench

Family Division

Judicial District of Saint John

Sirois, J.

December 21, 1990.

Summary:

A husband and a wife divorced in New Brunswick. The wife was awarded custody of the child of the marriage. The husband was ordered to pay maintenance for the support of the child. The wife moved to Manitoba and successfully applied under s. 17 of the Divorce Act for an order varying the maintenance order under the decree nisi. The wife applied under the Reciprocal En­forcement of Maintenance Orders Act to enforce the order in New Brunswick.

The New Brunswick Court of Queen's Bench, Family Division, in a decision re­ported at (1988), 86 N.B.R.(2d) 296; 219 A.P.R. 296, dismissed the application. The court held that the Manitoba order was unenforceable in New Brunswick until the procedural requirements of ss. 2(1) and 2(2) of the Reciprocal Enforcement of Mainte­nance Orders Act were complied with or until the wife invoked the enforcement procedures under s. 20(3)(a) of the Divorce Act.

The wife began another enforcement pro­ceeding in New Brunswick a year later under the Reciprocal Enforcement of Maintenance Orders Act. However, before the application was heard, the order was varied again by the Manitoba Court of Queen's Bench, Family Division (see paragraph 28 below). The court restricted the husband's access to Manitoba and deleted the wife's responsibil­ity for half of the child's travel costs. The husband was not represented at the hearing in Manitoba. At the hearing of the second enforcement application in New Brunswick, the husband submitted that until both parties had an opportunity to address related issues such as access, liability for the child's travel costs, arrears of travel costs and the right to set off such arrears, and those issues were determined by the court, the enforcement proceeding should be stayed under rule 61.16 of the Rules of Court.

The New Brunswick Court of Queen's Bench, Family Division, stayed the enforce­ment proceeding pending the determination of the associated issues.

Civil Rights - Topic 3221

Trials, due process, fundamental justice and fair hearings - Civil proceedings - General - A wife moved to Manitoba and applied for a variation of maintenance - The husband declined to attend the hearing because he was erroneously informed that the variation was provisional and would require a confirmation hearing in New Brunswick - The wife applied to enforce the varied order in New Brunswick - The husband submitted that the Divorce Act provisions dealing with interprovincial variation orders contravened his rights under s. 7 of the Charter - The New Brunswick Court of Queen's Bench, Fami­ly Division, dismissed the husband's sub­mission - See paragraph 52.

Civil Rights - Topic 8006

Canadian Bill of Rights - Principles of operation and interpretation - Right to fair hearing in accordance with principles of fundamental justice - A wife moved to Manitoba and applied for a variation of maintenance - The husband declined to attend the hearing because he was errone­ously informed that the variation was provisional and would require a confirma­tion hearing in New Brunswick - The wife applied to enforce the varied order in New Brunswick - The husband submitted that the Divorce Act provisions dealing with interprovincial variation orders contravened his right to a fair hearing as guaranteed by the Canadian Bill of Rights - The New Brunswick Court of Queen's Bench, Fami­ly Division, dismissed the husband's sub­mission - See paragraph 52.

Contempt - Topic 684

What constitutes contempt - Judgments and orders - Disobedience of - As part of a decree nisi issued in New Brunswick, the parties were ordered to share their child's travel costs equally - The wife declined to pay her share - The wife applied in Mani­toba for a variation and attempted to have the varied order enforced in New Bruns­wick - The husband submitted that the court should decline to enforce it on the ground the wife was in contempt because of her failure to pay the travel costs - The New Brunswick Court of Queen's Bench, Family Division, declined to find that the wife was in contempt of the court - See paragraph 54.

Family Law - Topic 4047.3

Divorce - Corollary relief - Maintenance - Enforcement - Provisional v. final orders - Section 17(1) of the Divorce Act, 1985, allowed a court to make the final support order as long as the respondent was given notice of the application - A final order can be enforced in another province upon registration - However, if the respondent did not receive notice, a provisional order can be made under s. 18(2) - The provisional order can be made final and enforced after a confirmation hearing - The New Brunswick Court of Queen's Bench, Family Division, held that if the respondent was given notice of the application, the courts lacked discretion to make the final order provisional - See paragraphs 35 and 49.

Family Law - Topic 4047.3

Divorce - Corollary relief - Maintenance - Enforcement - Provisional v. final orders - Section 17(1) of the Divorce Act, 1985, allowed a court to make a final support order provided the respondent had notice - A final order can be enforced in another province upon registration - How­ever, if the respondent did not receive notice, the order was provisional and required an enforcement hearing in the province where the respondent was a resident - The New Brunswick Court of Queen's Bench, Family Division, observed that whether a final order was enforced under the Divorce Act or the Reciprocal Enforcement of Maintenance Orders Act, the judge presiding at the enforcement hearing lacked the discretion to treat the final order as if it were provisional - See paragraph 49.

Family Law - Topic 4047.4

Divorce - Corollary relief - Maintenance - Enforcement - Final order - What con­stitutes - A wife applied in Manitoba for the variation of a maintenance order - The husband, a resident of New Brunswick, declined to attend the hearing - In an application to enforce the varied order, the husband submitted that the varied order was not a final order as required under the Reciprocal Enforcement of Maintenance Orders Act - The failure to provide a transcript of the hearing meant he was not afforded a proper hearing - If there was no hearing, there could be no order - The New Brunswick Court of Queen's Bench, Family Division, held the varied order was a final order - See paragraph 44.

Family Law - Topic 4047.4

Divorce - Corollary relief - Maintenance - Enforcement - Final order - What con­stitutes - Erroneous legal advice - A wife in Manitoba applied for the variation of a maintenance order - The husband, a resi­dent of New Brunswick, declined to attend the hearing - The husband was erroneous­ly informed that a variation would be provisional and subject to a confirmation hearing in New Brunswick - In response to an application to enforce the varied order, the husband submitted that the varied order was not a final order because he was never given a hearing - The New Brunswick Court of Queen's Bench, Fami­ly Division, held that the order was a final order - See paragraphs 45 and 46.

Family Law - Topic 4047.4

Divorce - Corollary relief - Maintenance - Enforcement - Final order - What con­stitutes - A wife applied to a Manitoba court for the variation of a maintenance order - The court informed the husband in New Brunswick of the application - The husband declined to attend the hearing because he was informed the order would be provisional and would require a confir­mation hearing in New Brunswick - Later, the husband applied to have the varied order's registration set aside under s. 2(6) of the Reciprocal Enforcement of Main­tenance Orders Act on the ground the order was not a final order because he was never given a reasonable opportunity to be heard - The New Brunswick Court of Queen's Bench, Family Division, held that the variation was a final order - See para­graphs 36 to 43.

Family Law - Topic 4051

Divorce - Corollary relief - Maintenance - Enforcement - Suspension of enforce­ment - [See Contempt - Topic 684 ].

Family Law - Topic 4051

Divorce - Corollary relief - Maintenance - Enforcement - Suspension of enforce­ment - A wife applied in Manitoba for a variation of maintenance in a decree nisi - The husband was informed of the applica­tion but declined to attend - The husband was erroneously informed that the main­tenance order would be provisional and would require a confirmation hearing in New Brunswick - Also, the husband's lawyer became ill and could not assist in making submissions to the Manitoba Court - The wife attempted to enforce the Mani­toba variation in New Brunswick - The husband claimed that the application should be stayed until related issues con­cerning access, arrears, travel costs and the right of set off were resolved - The New Brunswick Court of Queen's Bench, Fami­ly Division, stayed the application - See paragraphs 55 to 66.

Family Law - Topic 4054

Divorce - Corollary relief - Maintenance - Enforcement - Foreign orders - Provi­sional v. final orders - [See first Family Law - Topic 4047.3 ].

Family Law - Topic 4054

Divorce - Corollary relief - Maintenance - Enforcement - Foreign orders - Provi­sional v. final order - [See second Family Law - Topic 4047.3 ].

Family Law - Topic 4054

Divorce - Corollary relief - Maintenance - Enforcement - Foreign orders - Final orders - [See first Family Law - Topic 4047.4 ].

Family Law - Topic 4054

Divorce - Corollary relief - Maintenance - Enforcement - Foreign orders - Final orders - [See third Family Law - Topic 4047.4 ].

Cases Noticed:

Whalley v. Barsalou (1988), 86 N.B.R.(2d) 296; 219 A.P.R. 296, refd to. [para. 18].

Mahar v. Mahar (1987), 83 N.B.R.(2d) 373; 212 A.P.R. 373; 10 R.F.L.(3d) 276, refd to. [para. 35].

Steeves v. Steeves (1988), 87 N.B.R.(2d) 400; 221 A.P.R. 400, refd to. [para. 35].

Brewer v. Brewer (1981), 35 N.B.R.(2d) 329; 88 A.P.R. 329, refd to. [para. 49].

Statutes Noticed:

Canadian Bill of Rights, R.S.C. 1970, App. III, sect. 2(e) [para. 26].

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 26].

Divorce Act, S.C. 1986, c. 4, sect. 17(1), sect. 18(2), sect. 19 [para. 19 et seq.].

Reciprocal Enforcement of Maintenance Orders Act, S.N.B. 1985, c. R-4.01, sect. 2(1), sect. 2(2) [para. 34]; sect. 2(5), sect. 2(6) [para. 36]; sect. 7(2) [para. 49].

Rules of Court (N.B.), rule 61.16 [para. 55].

Counsel:

John P. King, for the applicant/respondent, Wendy Anne Whalley;

Hugh A. Cannell, for the respon­dent/applicant, Joseph Jean-Paul Barsa­lou.

This matter was heard on June 15, August 2, 1989, and February 6, 1990, by Sirois, J., of the New Brunswick Court of Queen's Bench, Family Division, in Saint John, who delivered the following decision on Decem­ber 21, 1990.