Nash v. Nash

Nash v. Nash

The Supreme Court (majority) held that when divorce is based on separation the Divorce Act does not permit conditioning a decree nisi on prior provision of security; s.11(1) does not authorize ordering periodic payments while separately requiring security to stand only as a guaranty unless the periodic payments are made out of the security; variation must be sought in the court that made the order and s.13(3) is the appropriate statutory basis for assuring maintenance when decree absolute is sought.

Citation
[1975] 2 SCR 507
Parties
Appellant Petitioner: Paul Nash; Respondent Petitioner by Counter Petition: Eileen Elsie Nash
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
28 June 1974
Procedural Posture
Divorce Appeal Under Divorce Act / Appeal to the Supreme Court of Canada (leave Granted)
Outcome
Appeal allowed; no order as to costs; case remitted to the Court of Appeal for reconsideration
Legal Topics
Decree Nisi, Corollary Relief, Security for Maintenance, Variation of Maintenance Orders, Jurisdiction of Appellate Court
Source Language
English
Family Law Divorce Law Statutory Interpretation Civil Procedure Decree Nisi Corollary Relief Security for Maintenance Variation of Maintenance Orders +1 more

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Parties

Paul Nash

Appellant Petitioner

Eileen Elsie Nash

Respondent Petitioner by Counter Petition

Procedural Posture

Divorce Appeal Under Divorce Act / Appeal to the Supreme Court of Canada (leave Granted)

Legal Issues

  1. 1 Whether a court can make a decree nisi conditional upon prior provision of security for maintenance where divorce is based on separation
  2. 2 Whether the court may order periodic maintenance payments and concurrently require security that operates only as a guarantee (separate from payments)
  3. 3 Whether this Court may entertain an original application to vary maintenance for changed circumstances

Ratio Decidendi

The Supreme Court (majority) held that when divorce is based on separation the Divorce Act does not permit conditioning a decree nisi on prior provision of security; s.11(1) does not authorize ordering periodic payments while separately requiring security to stand only as a guaranty unless the periodic payments are made out of the security; variation must be sought in the court that made the order and s.13(3) is the appropriate statutory basis for assuring maintenance when decree absolute is sought.

Court Disposition

Appeal allowed; no order as to costs; case remitted to the Court of Appeal for reconsideration

Orders

  • Appeal allowed with no order as to costs
  • Set aside portion of Court of Appeal order making the decree nisi conditional on prior provision of $100,000 security and related paragraph; restore trial court decree nisi and maintenance order and remit the case to the Court of Appeal for reconsideration