The relationship between lump sum maintenance and a division of assets under the Matrimonial Property Act was referred to by Mr. Justice Hart in Lawrence v. Lawrence (1981), 1981 CanLII 4135 (NS CA), 25 R.F.L. (2d) 130 at pp. 103-4, 47 N.S.R. (2d) 100 at pp. 132-3: Now that the Matrimonial Property Act is in force in this province the court can deal directly with the division of these assets between the spouses based upon the principles set forth in the Act. There may still, however, be situations in which the division of assets between the spouses under the new legislation will leave one of the spouses in valid need of an award of lump sum maintenance under the Divorce Act, since a division of matrimonial assets under the Matrimonial Property Act has to be based upon equality or fairness, while an award under the Divorce Act must be based upon need and ability to pay. The early decisions in combined proceedings pursuant to the Divorce Act and the Matrimonial Property Act have suggested that a determination should be made, firstly, under the provincial legislation and then, when the court is in a better position to determine the actual maintenance needs of the spouses, under the Divorce Act. I agree that this is the proper way to proceed in most cases, particularly, since there are possibilities under the Matrimonial Property Act of establishing unequal divisions of assets that might well affect the need of either party for maintenance after that decision has been made ...
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