White v. White, (1986) 76 N.B.R.(2d) 414 (CA)

JudgeStratton, C.J.N.B., Hoyt and Ayles, JJ.A.
CourtCourt of Appeal (New Brunswick)
Case DateNovember 27, 1986
JurisdictionNew Brunswick
Citations(1986), 76 N.B.R.(2d) 414 (CA)

White v. White (1986), 76 N.B.R.(2d) 414 (CA);

    76 R.N.-B.(2e) 414; 192 A.P.R. 414

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[French language version follows English language version]

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

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White v. White

(99/86/CA)

Indexed As: White v. White

Répertorié: White v. White

New Brunswick Court of Appeal

Stratton, C.J.N.B., Hoyt and Ayles, JJ.A.

November 27, 1986.

Summary:

Résumé:

A divorce decree ordered a husband to pay maintenance to his wife and child for two years. Thereafter, in the absence of an agreement between the parties, the issue of the amount of maintenance to be paid to the wife alone was to be referred to a court for resolution. Subsequently, the wife applied for an increase in maintenance.

The New Brunswick Court of Queen's Bench, Family Division, in a decision unreported in this series of reports, held that the real issue was not that of increase or decrease in maintenance but rather the amount of maintenance to be paid to the wife pursuant to the provisions in the decree nisi. The court dismissed the application for lack of evidence that the wife had a need for maintenance.

The wife subsequently applied again, this time for a judicial determination of the amount of maintenance to be paid to her pursuant to the divorce decree. The husband also applied to dismiss her application for want of jurisdiction. The two matters were consolidated.

The New Brunswick Court of Queen's Bench, Family Division, held that it had jurisdiction, and awarded the wife "interim" maintenance, because the husband had the financial ability to pay and the wife had a need because of her health and inability to work. See paragraphs 8 to 18 below. The husband appealed.

The New Brunswick Court of Appeal dismissed the appeal, but ordered that the word "interim" be deleted from the trial judge's order.

Family Law - Topic 4017

Divorce - Corollary relief - Maintenance awards - Variation of periodic payments - The New Brunswick Court of Appeal held that on an application to vary maintenance under s. 11(2) of the Divorce Act, a judge lacks jurisdiction to make an interim order for relief - Where, however, no prejudice or injustice resulted from the use of the word "interim", the court ordered that the word be deleted from the judge's order - See paragraph 7.

Family Law - Topic 4017

Divorce - Corollary relief - Maintenance awards - Variation of periodic payments - A divorce decree provided for periodic maintenance for a wife and daughter for two years; thereafter, absent agreement, the amount of spousal maintenance was to be referred to a court for resolution - The wife subsequently applied for increased maintenance - The trial judge stated that the real issue was the amount of maintenance as per the decree, but dismissed her application for lack of evidence - The wife again applied for a determination of the amount of maintenance - The New Brunswick Court of Appeal held that the judge had jurisdiction over the second application and that the fact that the husband had ceased paying maintenance constituted a change in circumstances - The Court of Appeal affirmed an award of $300.00 per month for six months - See paragraphs 4 to 6.

Cases Noticed:

Messier v. Delage, [1983] 2 S.C.R. 401; 50 N.R. 16, refd to. [para. 10].

Statutes Noticed:

Divorce Act, R.S.C. 1970, c. D-8, sect. 11(2) [paras. 6-7].

Counsel:

Rene Dumaresq, for the appellant;

John Hazen, for the respondent.

This appeal was heard before Stratton, C.J.N.B., Hoyt and Ayles, JJ.A., of the New Brunswick Court of Appeal on November 27, 1986. The decision of the Court of Appeal was delivered orally on November 27, 1986.

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2 practice notes
  • White v. White, (1988) 87 N.B.R.(2d) 181 (CA)
    • Canada
    • New Brunswick Court of Appeal (New Brunswick)
    • 17 d2 Maio d2 1988
    ...a need because of her health and inability to work. The husband appealed. The New Brunswick Court of Appeal, in a judgment reported (1986), 76 N.B.R.(2d) 414; 192 A.P.R. 414 , dismissed the appeal, but ordered that the word "interim" be deleted from the trial judge's order. The wife subseq......
  • White v. White, (1987) 80 N.B.R.(2d) 221 (FD)
    • Canada
    • New Brunswick Court of Queen's Bench of New Brunswick (Canada)
    • 3 d3 Junho d3 1987
    ...because of her health and inability to work. The husband appealed. The New Brunswick Court of Appeal, in a decision reported at (1986), 76 N.B.R.(2d) 414; 192 A.P.R. 414, dismissed the appeal, but ordered that the word "interim" be deleted from the trial judge's order. The wife subsequently......
2 cases
  • White v. White, (1988) 87 N.B.R.(2d) 181 (CA)
    • Canada
    • New Brunswick Court of Appeal (New Brunswick)
    • 17 d2 Maio d2 1988
    ...a need because of her health and inability to work. The husband appealed. The New Brunswick Court of Appeal, in a judgment reported (1986), 76 N.B.R.(2d) 414; 192 A.P.R. 414 , dismissed the appeal, but ordered that the word "interim" be deleted from the trial judge's order. The wife subseq......
  • White v. White, (1987) 80 N.B.R.(2d) 221 (FD)
    • Canada
    • New Brunswick Court of Queen's Bench of New Brunswick (Canada)
    • 3 d3 Junho d3 1987
    ...because of her health and inability to work. The husband appealed. The New Brunswick Court of Appeal, in a decision reported at (1986), 76 N.B.R.(2d) 414; 192 A.P.R. 414, dismissed the appeal, but ordered that the word "interim" be deleted from the trial judge's order. The wife subsequently......

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