Court of Appeal

                                NOVA SCOTIA COURT OF APPEAL

Citation: Mabey v. Mabey, 2005 NSCA 35

Date:  20050222

Docket:  CA 234252

Registry:  Halifax

Between:

Susan Mabey

Appellant

v.

Stephen Mabey

Respondent

Judge:                            The Honourable Justice Roscoe

Appeal Heard:                February 11, 2005

Subject:       Matrimonial: child support, spousal support, application to vary, Practice: application to strike out application to vary, Civil Procedure Rule 14.25

Summary:   The appellant mother made an application to vary both child support and spousal support in the Supreme Court Family Division. She was seeking payment by the father of $36,000 US she had borrowed in student loans for the eldest child to attend university. The father respondent made an application to strike out the application to vary pursuant to Rule 14.25. The Chambers judge granted the motion and dismissed the appellant’s application to vary as disclosing no reasonable cause of action, because the appellant had waived spousal support in the minutes of settlement, a subsequent amendment was not signed by both partes, and there was no change in circumstances.

Issues:         Did the Chambers judge err?

Result:        Appeal allowed. An application for variation should not be struck out unless it is certain to fail, or it is plain and obvious that it will not succeed. Based on Miglin v. Miglin, [2003] 1 S.C.R 303, the appellant’s application was not certain to fail.

The proper approach when a party who has waived all rights to spousal support in a separation agreement later makes an application for support involves a two stage investigation: first an examination of the circumstances surrounding the negotiation and execution of the agreement to determine whether there is any reason to discount it and second, a consideration of whether the situation in which the parties are at the time of the application for support makes it no longer appropriate to accord the agreement significant weight.

Although the respondent may appear to have a strong defence to the application to vary, the appellant was entitled to proceed to trial to have the court inquire into the merits of her claims based on the two phase approach in Miglin.