Court of Appeal

CASE NO.                                                   VOL. NO.                                                           PAGE

DEBORAH LOUISE WEDSWORTH             - and -     JOHN JAMES MacLEOD WEDSWORTH

(Appellant)                                                                                                                       (Respondent)

CA 169807                                                  Halifax, N.S.                                      CROMWELL, J.A.

                                  [Cite as:  Wedsworth v. Wedsworth, 2001 NSCA 102]

APPEAL HEARD:                                         June 13, 2001

JUDGMENT DELIVERED:                        June 26, 2001

SUBJECT:     Divorce - appeal of interim order     

SUMMARY:  The former wife made an interim application to vary the spousal support provisions in a consent corollary relief judgment by deleting the 2 year time limit for spousal support in the judgment.  The application was brought before the 2 year period expired.  The application was dismissed.  The judge thought that either the threshold test under s. 17(10) of the Divorce Act, R.S.C. 1985, Chap. D-3 (2^nd Supp) as amended or that set out in the so-called “CPR trilogy” applied but also found on the evidence that the changed circumstances relied on by the applicant, if known at the time the judgment was entered, would not have resulted in a different agreement.  The former wife appealed.

ISSUES:          1.  What is the standard of appellate review?

2.  Did the judge make an error requiring appellate intervention?

RESULT:        Appeal dismissed.  Appeals from interim orders in family matters should be discouraged and the Court of Appeal will only intervene if such an order is clearly wrong or if a serious or substantial injustice, material injury or very great prejudice would result if it did not.  The judge erred in stating that the threshold test under section 17(10) of the Divorce Act or that set out in the “CPR trilogy” applied.  There was nothing in the record by way of minutes of settlement, separation agreement or otherwise to indicate that this consent order was intended to settle spousal support obligations finally for all time.  The correct test was that set out in s. 17(4.1) of the Act.  However, the judge found on the evidence that the changed circumstances, had they been known at the time of the order, would not have resulted in a different order.  In reaching that conclusion, he applied the correct test to the evidence and his conclusion was supported by the evidence.  His misstatement of the threshold test was not, therefore, material to his conclusion and there was no basis for appellate intervention with respect to this dismissal of an  interim application.