Williams v. Williams, (1984) 57 N.B.R.(2d) 432 (FD)

• Judge: Ayles, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: August 03, 1984
• Jurisdiction: New Brunswick
• Citations: (1984), 57 N.B.R.(2d) 432 (FD)

Williams v. Williams (1984), 57 N.B.R.(2d) 432 (FD);

    57 R.N.-B.(2e) 432; 148 A.P.R. 432

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Williams v. Williams

(No. FDW-81-84)

Indexed As: Williams v. Williams

Répertorié: Williams v. Williams

New Brunswick Court of Queen's Bench

Family Division

Judicial District of Woodstock

Ayles, J.

August 3, 1984.

Summary:

Résumé:

A wife petitioned for divorce, sought custody of her two infant children and maintenance, and applied under the Marital Property Act for a distribution of marital property. The husband counterpetitioned for divorce and applied under s. 129(2) of the Child and Family Services and Family Relations Act for custody and maintenance. The latter application was stayed.

The New Brunswick Court of Queen's Bench, Family Division, granted the wife a divorce, awarded her custody of the children and $100.00 per month maintenance and made a division of the marital property. The court dismissed the husband's counterpetition.

Family Law - Topic 875

Husband and wife - Marital property - Distribution orders - Statutes requiring equal division - Exceptions - The marital home (trailer) was purchased by the wife with her own money at the time of the marriage - She also paid for most of the materials used to build additions - The trailer was now valued at $4,000.00 - The New Brunswick Court of Queen's Bench, Family Division, applied s. 7(f) of the Marital Property Act and awarded 90% of the value of the trailer to the wife and 10% to the husband - See paragraphs 26 to 28.

Family Law - Topic 1828

Custody and access to children - Right to custody - Rights of father - The New Brunswick Court of Queen's Bench, Family Division, stated that since the enactment of s. 129(1) of the Child and Family Services and Family Relations Act the father no longer had a greater right to custody of children than the mother - See paragraphs 19 to 20.

Family Law - Topic 1884

Custody and access to children - Considerations - Tender years doctrine - The New Brunswick Court of Queen's Bench, Family Division, stated that the tender years doctrine was still a factor to be considered in determining whether a father or mother should be awarded custody of children under seven years of age - See paragraphs 21 to 23.

Family Law - Topic 3650

Divorce - Grounds - Cruelty - What constitutes - A husband constantly argued with his wife - During the latter period of the marriage the husband often stayed out all night without telling the wife where he was going or when he would be back - He refused to adequately provide for his family - The husband left for a trip to Newfoundland, refusing to leave money or a phone number where he could be reached - The New Brunswick Court of Queen's Bench, Family Division, held that the husband's conduct constituted physical and mental cruelty rendering the continued cohabitation of the spouses intolerable as defined in s. 3(d) of the Divorce Act - See paragraphs 2 to 9.

Cases Noticed:

Stevens v. Stevens (1977), 17 N.B.R.(2d) 656; 23 A.P.R. 656, appld. [para. 7].

Dyment v. Dyment, [1969] 2 O.R. 748 (Ont. C.A.), refd to. [para. 13].

Oakes v. Oakes (1976), 11 N.B.R.(2d) 170; 7 A.P.R. 170, not folld. [para. 19].

Haughn v. Haughn (1973), 8 N.B.R.(2d) 428, appld. [para. 21].

Talsky v. Talsky, [1976] S.C.R. 292; 7 N.R. 246; 62 D.L.R.(3d) 292, appld. [para. 22].

Statutes Noticed:

Divorce Act, R.S.C. 1970, c. D-8, sect. 3(d) [para. 8]; sect. 11(1) [para. 12].

Child and Family Services and Family Relations Act, S.N.B. 1980, c. C-2.1, sect. 129(1) [para. 19].

Marital Property Act, S.N.B. 1980, c. M-1.1, sect. 7 [para. 27].

Counsel:

Graeme S. Shaw, for the petitioner;

J. Shawn O'Toole, for the respondent.

This petition and application were heard before Ayles, J., of the New Brunswick Court of Queen's Bench, Family Division, Judicial District of Woodstock, who delivered the following judgment on August 3, 1984.