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The claimant succeeded in annulling a marriage on the basis that the respondent was incapable of consummating it. The court held medical evidence was not required.
La Cour suprĂȘme de la Colombie-Britannique conclut quâun mariage nul ab initio nâempĂȘche pas, sous la Family Law Act, des demandes de partage des biens et de pension alimentaire.
The court exercised its Rule 77 discretion applying Tariff A, found the petitioner the more successful party, fixed the amount involved based on the lump sum spousal support ($200,001â$300,000), applied tariff scale and additional perâday trial allowances, considered conduct (imputed income, prolonged litigation) and net legal costs, and concluded a lump sum party-and-party award of $35,000 inclusive of taxes and disbursements payable at $300/month was appropriate.
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Because the respondent demonstrated diligent efforts toward selfâsufficiency but suffered a job loss outside her control and the applicant repeatedly failed to provide full, accurate and timely financial disclosure and breached court orders, the court denied termination of spousal support, increased spousal support at the 10âyear mark to be reduced over a threeâyear period subject to the respondent proving ongoing entitlement, the applicant's application to terminate child support was withdrawn by him shortly before trial, and the respondent was awarded costs of $4,000 plus disbursements inclâŠ
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The Court allowed the appeal on the sole issue of issue estoppel, concluding that the application judge erred in applying issue estoppel to bar variation of support arrears for the 1995-1999 period, and relied on DiFrancesco v. Couto to support that conclusion.
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Applying s.13 factors the court found the husband unreasonably depleted matrimonial assets postâseparation by purchasing corporate shares and withdrawing funds; the husband failed to prove that the US investment portfolio or RRSPs were business assets; appropriate valuation dates were applied (separation for bank accounts and consumed assets, disposition/cashâin for RRSPs and market investments); unequal division was necessary and the proceeds of liquidation of specific accounts must be used to satisfy the wife's outstanding entitlement of $24,736.
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Because the respondent was largely successful the respondent was entitled to costs, but considering the applicant's financial burden as primary caregiver and the potential impact on the children the court reduced the award to $750 inclusive of disbursements to be paid by March 31, 2005.
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The Nova Scotia court has jurisdiction to vary a consent order of the Ontario court when necessary to determine a matrimonial property claim in a Nova Scotia divorce action: consent orders are contractual in nature and may be varied on equitable grounds; the Matrimonial Property Act and the Judicature Act empower the court to grant such relief; therefore the court may adjudicate the validity of the contract embodied in the out-of-province consent order as a precondition to property division.
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The court granted a declaration of nullity where a marriage was never consummated and the plaintiff proved practical impossibility of consummation arising from deception and psychological repugnance.
The court refused to pass over the named executrix or cancel her caveat, holding that the applicant had not shown sufficient risk to the estate from her appointment.
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