Tierney-Hynes v. Hynes [Indexed as: Tierney-Hynes v. Hynes]
75 O.R. (3d) 737
[2005] O.J. No. 2661
Docket: C42400
Court of Appeal for Ontario,
Goudge, Borins, Feldman, Lang and Juriansz JJ.A.
June 28, 2005
- Application for leave to appeal to the Supreme Court of Canada filed September 26, 2005, and submitted to court November 1, 2005.
Family law -- Support -- Spousal support -- Court having jurisdiction under 1997 Divorce Act to vary dismissal of application for spousal support -- An Act to Amend the Divorce Act, S.C. 1997, c. 1, ss. 2(1), 15.2, 15.3, 17.
When the parties were divorced in Manitoba in 1987 after a ten-year traditional marriage, their uncontested divorce judgment required the husband to pay the wife $300 monthly in spousal support and $500 monthly in child support for each of their three children. At that time, the husband was a family doctor. By 1992, his family practice income had fallen and he decided to begin a residency in psychiatry. His income dropped to $30,000 annually when he began the residency, and he applied to vary the divorce judgment to terminate spousal support and reduce child support. The wife did not oppose the variation of spousal support and the Manitoba variation order terminated the spousal support. The husband completed his training and his annual income was now about $250,000. In 2002, the wife brought an application in Ontario to vary the Manitoba order terminating spousal support. On a motion for summary judgment, the application was dismissed. The motion judge, relying on the decisions of the Ontario Court of Appeal in Cotter v. Cotter and McCowan v. McCowan held that the only spousal support orders capable of variation were positive orders, orders silent on spousal support or orders providing for a nominal amount. The wife appealed.
Held, the appeal should be allowed. [page738]
Since Cotter, Parliament has modified the 1970 and 1985 Divorce Acts in significant ways. The changed wording of the current Act and changes to the principles guiding spousal support lead to the conclusion that Cotter and McCowan are no longer authoritative. First, a new provision in the 1997 Act, s. 15.3, specifically contemplates an application for support made after an earlier dismissal of spousal support. Second, although the 1997 Act distinguishes between child and spousal support, it does not distinguish between the two types of support when addressing variation applications. Third, the structure and terms of the 1997 Act, particularly ss. 15 and 17, differ in significant ways from the 1970 Act and in significant respects from the Revised 1985 Act. The legislative changes and the expansive language used throughout the 1997 Act lead to the conclusion that, under the 1997 Act, a court has the jurisdiction to vary a dismissal of an application for spousal support.
APPEAL from the order of Croll J. of the Superior Court of Justice, dated August 17, 2004, dismissing an application to vary an order terminating spousal support.
Cotter v. Cotter (1986), 53 O.R. (2d) 449, [1986] O.J. No. 2344, 13 O.A.C. 81, 25 D.L.R. (4th) 221, 2 R.F.L. (3d) 124 (C.A.); McCowan v. McCowan (1995), 24 O.R. (3d) 707, [1995] O.J. No. 2245, 14 R.F.L. (4th) 325 (C.A.), ovruld Bracklow v. Bracklow, [1999] 1 S.C.R. 420, [1999] S.C.J. No. 14, 63 B.C.L.R. (3d) 77, 169 D.L.R. (4th) 577, 236 N.R. 79, [1999] 8 W.W.R. 740, 44 R.F.L. (4th) 1; Miglin v. Miglin, 2003 SCC 24, [2003] 1 S.C.R. 303, [2003] S.C.J. No. 21, 66 O.R. (3d) 736n, 224 D.L.R. (4th) 193, 302 N.R. 201, 34 R.F.L. (5th) 255, 2003 SCC 24 (sub nom. M. (L.S.) v. M. (E.S.)); Moge v. Moge, [1992] 3 S.C.R. 813, [1992] S.C.J. No. 107, 81 Man. R. (2d) 161, 99 D.L.R. (4th) 456, 145 N.R. 1, [1993] 1 W.W.R. 481, 43 R.F.L. (3d) 345, consd Other cases referred to Bensol Customs Brokers Ltd. v. Air Canada, [1979] 2 F.C. 575, 99 D.L.R. (3d) 623 (C.A.); Caron v. Caron, [1987] 1 S.C.R. 892, [1987] S.C.J. No. 32, 14 B.C.L.R. (2d) 186, 38 D.L.R. (4th) 735, 75 N.R. 36, [1987] 4 W.W.R. 522, 7 R.F.L. (3d) 274; France v. France, [1996] O.J. No. 1031, 22 R.F.L. (4th) 203 (Gen. Div.); Gill-Sager v. Sager, [2003] B.C.J. No. 121, 222 D.L.R. (4th) 595, 36 R.F.L. (5th) 369, 2003 BCCA 46 (C.A.); Irvine v. Irvine, [1996] M.J. No. 554, 114 Man. R. (2d) 264, 25 R.F.L. (4th) 401 (Q.B); Noestaller v. Noestaller, [1970] O.J. No. 739, 2 R.F.L. 404 (C.A.); Pelech v. Pelech, [1987] 1 S.C.R. 801, [1987] S.C.J. No. 31, 14 B.C.L.R. (2d) 145, 38 D.L.R. (4th) 641, 76 N.R. 81, [1987] 4 W.W.R. 481, 17 C.P.C. (2d) 1, 7 R.F.L. (3d) 225; Richardson v. Richardson, [1987] 1 S.C.R. 857, [1987] S.C.J. No. 30, 22 O.A.C. 1, 38 D.L.R. (4th) 699, 77 N.R. 1, 17 C.P.C. (2d) 104, 7 R.F.L. (3d) 304; Hynes v. Tierney-Hynes, [1993] M.J. No. 534, 88 Man.R.(2d) 134, 50 R.F.L.(3d) 279 (C.A.) [Leave to appeal to S.C.C. dismissed [1993] S.C.C.A. No. 559, 2 R.F.L.(4th) 431] Statutes referred to An Act to Amend the Divorce Act, S.C. 1997, c. 1 [as am.] Consolidation of Family Law Act (Nunavut), S.N.W.T. 1997, c. 18, s. 32 Divorce Act, 1985, S.C. 1986, c. 4, ss. 15.2 [as am.], 17(7) Divorce Act, R.S.C. 1970, c. D-8, s. 11 Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), ss. 2, definitions "spousal support order", "support order", "variation order", "variation proceeding", 15 [as am.], 15.2, 15.3, 17 [as am.] Family Law Act, R.S.N.L. 1990, c. F-2 Family Law Act, R.S.O. 1990, c. F.3, s. 50 Family Law Act, S.N.W.T. 1997, c. 18, s. 32 Family Law Act, S.P.E.I. 1995, c. 12, s. 7(3) The Family Maintenance Act, 1997, S.S. 1997, c. F-6.2 The Family Maintenance Act, R.S.M. 1987, c. F20, s. 63 [page739] Rules and regulations referred to Family Law Rules, O. Reg. 114/99, rule 16(8) Authorities referred to Sullivan, R., Sullivan and Driedger on the Construction of Statutes, 4th ed. (Markham: Butterworths, 2002)
Esther L. Lenkinski, for appellant. Philip M. Epstein, Q.C. and Ilana Zylberman, for respondent.
The judgment of the court was delivered by
[1] LANG J.A.: -- This appeal raises the issue of the court's jurisdiction under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) as amended by S.C. 1997, c. 1 to vary an order that dismissed or terminated spousal support. This appeal follows a summary judgment motion in which Croll J. dismissed Eileen Tierney-Hynes's variation application. Ms. Tierney-Hynes had been granted spousal support at the time of her divorce. That support was terminated in a subsequent variation application brought by Dr. Hynes. In the later variation application that forms the basis of this appeal, Ms. Tierney-Hynes sought to reinstate spousal support.
The Facts on the Manitoba Variation
[2] The appellant, Eileen Tierney-Hynes, and the respondent, Adrian Hynes, began living together in 1973, married in Ireland in 1975, separated in 1985, and divorced in Manitoba in 1987. At separation, the appellant was 38 years of age, the respondent was 35 years of age, and their children were nine, six, and four years of age. Their uncontested divorce judgment required the respondent to pay the appellant $300 monthly in spousal support and $500 monthly in child support for each of their three children. In addition, the parties transferred the matrimonial home to the appellant.
[3] During the early years of the marriage, the appellant helped finance the respondent's medical education and training as a family physician. Afterwards, and for most of the marriage, the wife maintained the home and assumed responsibility for the children, the youngest of whom had special needs. Later in the marriage, the appellant upgraded her earlier Montessori training, which was her only post-high school education. [page740]
[4] By 1992, the respondent's family practice income had fallen from over $70,000 to $62,000 annually. The respondent decided to pursue a new specialty. When he left family practice to begin a residency in psychiatry, and his income dropped to $30,000 annually, he applied to vary the divorce judgment to terminate spousal support and to reduce child support (the "Manitoba variation"). The respondent anticipated that when he completed his residency his income would increase substantially.
[5] The appellant, who opposed the respondent's variation application, was cross-examined on her affidavit. In that cross-examination, she testified that she would be completely independent of the respondent if she could afford to do so: she was not interested in receiving spousal support for life. More specifically, she testified that she could earn between $25,000 and $35,000 annually if she could obtain work as a Montessori teacher and her health permitted her to maintain that employment. Absent such a position, however, she did not know how she could make a living.
[6] Finally, when asked whether she would agree to abandon spousal support because her concern was really about child support, she replied, "Yes, I can abandon the spousal support." However, she continued, "not if it means if my children are going to end up with less money, no. I don't want to abandon that. He has to give that money to the kids." The appellant was not asked any more questions about abandoning spousal support.
The Manitoba Variation Decision
[7] On the eve of the Manitoba variation hearing, the appellant agreed not to oppose the variation of spousal support, but did pursue increased child support. Neither party called any evidence. After hearing submissions, the variation judge said:
I take it that the issue of spousal support need only be mentioned in the context of its consent and that will be incorporated into the order that I am now making.
It is true that since the making of the last order there have been many changes. It is all but conceded, however, that but for the father's significant change in earnings, this matter would not have come back to court.
The decision made by the father in this case is justifiable, indeed arguably prudent. His future as a family practitioner, both financially and professionally, is dubious and the decision to upgrade was therefore made. That he could do this in an intact family is obvious. I see no reason on the facts of this case to deny him the right to do so merely because he is divorced. Surely the Divorce Act is not intended to advantage children of divorce. If anything, it is an act that, in part, hopes to reduce the inevitable disadvantage. [page741]
... The mother agrees to delete spousal support but seeks an increase in child support from the $500 per month [per child] that she presently receives.
I cannot leave support as it is and at the same time accept that the doctor is acting reasonably in upgrading. Having concluded that his decision is reasonable in a professional sense, I cannot see denying his request for short term relief. Having said all of this, the father should pay at the high end of the range, just as he would do for his children if he was living with them.
(Emphasis added)
[8] In addition to reducing child support, the Variation Order provided that:
(a) That the petitioner's motion to terminate his obligation to pay spousal support to the respondent is hereby granted and the petitioner shall no longer be obliged to pay maintenance to the respondent for the maintenance and support of the respondent effective July 1, 1992.
(d) That the judgment for corollary relief pronounced [in 1987] shall be varied by deleting therefrom [spousal support] in its entirety ...
[9] Accordingly, the Manitoba variation order both terminated and deleted spousal support. For the purpose of this analysis, I shall refer to the result as a dismissal of spousal support.
[10] The appellant did not appeal the dismissal of spousal support but did appeal the reduction of child support. In dismissing her appeal, Helper J.A. said at paras. 4 and 6:
At the hearing of the variation applications, the parties agreed to terminate the spousal support order. Carr J. determined that Dr. Hynes' decision to commence the psychiatric residency was reasonable, a decision with which we concur. He varied the child support order by reducing monthly payments from $1,500 to $1,000 and he noted in his decision that, in his view, the ongoing child support order was high given Dr. Hynes' earnings as a resident.
The reality is that all members of this divided family will live at a reduced level for the short term. Ultimately, both Dr. Hynes and his children will benefit from his completing a specialty in psychiatry.
(Hynes v. Tierney-Hynes, [1993] M.J. No. 534, 88 Man.R.(2d) 134 (C.A.) [leave to appeal to S.C.C. refused [1993] S.C.C.A. No. 559, 2 R.F.L.(4th) 431].
The Facts on this Variation
[11] In her affidavit in this proceeding, the appellant swears that she believed that the 1992 dismissal of her spousal support and the decrease in child support were both temporary pending completion of the respondent' s psychiatric training. [page742]
[12] The respondent completed that training and now enjoys a substantially increased annual income of about $250,000. However, he did not increase child support, provide financial disclosure, or resume payment of spousal support.
[13] In 1999, the respondent sought the appellant's consent to terminate child support, which the appellant refused. The respondent did not pursue a variation application and instead continued to pay child support of $1,000 monthly even though only one child remained in university. Since the appellant expected child support to end when the last child graduated from university in 2002, she applied for spousal support that spring. She brought her variation application in Ontario, where she now resides.
[14] At the time of her 2002 application, the appellant was 54 years of age and said that she was suffering from health problems that left her unable to support herself. The respondent obtained an order for a trial of the issue and then brought the summary judgment motion that resulted in the dismissal of the appellant's claim.
The Summary Judgment Decision
[15] The motion to dismiss was brought under rule 16(8) of the Family Law Rules, O. Reg. 114/99, which provides that, on a summary judgment motion, "[i]f the only genuine issue is a question of law, the court shall decide the issue and make a final order accordingly".
[16] Relying on Cotter v. Cotter (1986), 53 O.R. (2d) 449, [1986] O.J. No. 2344 (C.A.) and McCowan v. McCowan (1995), 24 O.R. (3d) 707, [1995] O.J. No. 2245 (C.A.), the motion judge said: "These cases stand for the proposition that the only orders capable of variation are: positive orders, orders silent with respect to spousal support, or orders providing for a nominal amount." In applying those cases, she decided that, although Gill-Sager v. Sager, 2003 BCCA 46, [2003] B.C.J. No. 121, 222 D.L.R. (4th) 595 (C.A.) and some academic commentary have questioned its ongoing applicability, Cotter continued to be the governing authority. In view of the appellant's request for a reconsideration of the Cotter and McCowan principles, the Chief Justice appointed a five-judge panel to hear this appeal.
The Legislation
[17] Over the years the Divorce Act has gone through several revisions, four of which are relevant to this appeal. The Divorce Act, R.S.C. 1970, c. D-8 (the "1970 Act") was repealed and replaced by the Divorce Act, 1985, S.C. 1986, c. 4 (the "1985 Act"). The 1985 Act then became the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) (the [page743] "Revised 1985 Act") when the 1985 revision was completed in 1988. The Revised 1985 Act did not differ in any material respect from the 1985 Act. In 1997, the Revised 1985 Act was amended by An Act to Amend the Divorce Act, S.C. 1997, c. 1. The Act, as amended in 1997, will be referred to as the "1997 Act" or the "current Act".
Issues
[18] The primary issue on this appeal is whether Cotter and McCowan remain authoritative. If they do not, it is agreed that there is a genuine issue for trial. A secondary issue arises as to whether, in effect, the Manitoba variation provided for a limited term support order, which is capable of variation. Finally, the appellant raises a separate issue of whether the Manitoba dismissal, itself a variation order, is capable of variation in any event.
Analysis
[19] The question of whether a court has jurisdiction to vary a dismissal or termination of support is solely one of statutory interpretation. The Supreme Court of Canada has approved the approach to statutory interpretation found in Ruth Sullivan, Sullivan and Driedger on the Construction of Statutes, 4th ed. (Markham: Butterworths, 2002) at p. 1:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intent of Parliament.
1. Cotter and McCowan
[20] Cotter is long-standing authority for the proposition that a court lacks jurisdiction to vary a dismissal of an application for spousal support. The respondent argues that the Cotter principle applies whether spousal support was dismissed on an initial application for support or whether it was dismissed on a variation application. Accordingly, it is the respondent's position that the Manitoba dismissal of spousal support is a complete bar to any future application.
[21] In Cotter the parties were granted a divorce judgment that dismissed the wife's claim for spousal support on consent. Two years later, based on a change in circumstances, the wife brought a variation application seeking spousal support. The motion judge dismissed the application. That dismissal was upheld on appeal when this court held that s. 11 of the 1970 Act did not give a court jurisdiction to vary an earlier dismissal of a support claim. [page744]
[22] At the time Cotter was decided, the 1970 Act said this about child and spousal support:
11(1) Upon granting a decree nisi of divorce, the court may, if it thinks it fit and just to do so having regard to the conduct of the parties and the condition, means and other circumstances of each of them, make one or more of the following orders, namely:
(a) an order requiring the husband to secure or to pay such lump sum or periodic sums as the court thinks reasonable for the maintenance of
(i) the wife,
(ii) the children of the marriage, or
(iii) the wife and the children of the marriage;
(b) an order requiring the wife to secure or to pay such lump sum or periodic sums as the court thinks reasonable for the maintenance of
(i) the husband,
(ii) the children of the marriage, or
(iii) the husband and the children of the marriage; and
(c) an order providing for the custody, care and upbringing of the children of the marriage.
(2) An order made pursuant to this section may be varied from time to time or rescinded by the court that made the order if it thinks it fit and just to do so having regard to the conduct of the parties since the making of the order or any change in the condition, means or other circumstances of either of them.
(Emphasis added)
[23] Cotter envisaged three possible dispositions of an initial support application. First, a court could make a positive order for support. A positive order would include any order that provided for the payment of support, including nominal awards, which were common at the time. Positive orders were capable of variation. See Noestaller v. Noestaller, [1970] O.J. No. 739, 2 R.F.L. 404 (C.A.).
[24] Second, the order could be silent on the issue of support. A silent order was an order that neither granted nor dismissed support. After receiving a silent order, a claimant could still bring an initial application for support.
[25] Third, the court could dismiss a claim for spousal support. In that case, according to Cotter, and later McCowan, the court would no longer have jurisdiction to make an initial order and would have no jurisdiction to vary that disposition. Since no positive order existed, there was nothing to vary. In the face of a dismissal, a claimant's only remedy was an appeal. [page745]
[26] This court held in Cotter that, on an initial application, a court was given jurisdiction only to make an order requiring payment of support: "Upon granting a ... divorce, the court may" order support (s. 11(1)). Accordingly, Morden J.A. reasoned that the court had jurisdiction:
... to make an order requiring the husband to pay maintenance to the wife, i.e. a positive order of some kind. An order dismissing a claim for maintenance is not the making of an order of the kind described in s. 11(1) but, rather, involves the refusal to make such an order.
[27] In contrast, Morden J.A. noted the different parameters of a variation application. While the 1970 Act provided for only one initial support application, it permitted successive variation applications by providing that a support order "may be varied from time to time" based on a change in circumstances (s. 11(2)).
[28] Morden J.A. also noted that s. 11(2) only provided jurisdiction to vary "an order made pursuant to" s. 11(1). On a plain and ordinary reading, an order under s. 11(1) that dismissed an application for support, whether on consent or otherwise, was not made "pursuant to" s. 11(1). Morden J.A. held that an order made "pursuant to" s. 11(1) meant an order "in conformance to, in carrying out, according to". Only a positive order for support was made "pursuant to" s. 11(1) (Cotter at p. 456 O.R.).
[29] Morden J.A.'s analysis in Cotter flowed from his interpretation of the 1970 Act and was closely tied to the then predominant view of spousal support. That view emphasized the benefits of a clean break between divorced spouses as well as the finality and certainty that flowed from a final determination of the issue. Morden J.A. noted that Parliament did not intend divorced spouses "to be forever contingently liable for the support of each other". Rather, he said, "Parliament must have intended that at some stage" the responsibilities of a payor spouse would end (p. 454 O.R.).
[30] The self-sufficiency and finality objectives emphasized in Cotter were referenced in 1987 by three decisions of the Supreme Court of Canada, known as the trilogy: Pelech v. Pelech, [1987] 1 S.C.R. 801, [1987] S.C.J. No. 31; Caron v. Caron, [1987] 1 S.C.R. 892, [1987] S.C.J. No. 32; and Richardson v. Richardson, [1987] 1 S.C.R. 857, [1987] S.C.J. No. 30. The trilogy, which determined that a significant degree of deference should be given to consensual agreements between spouses, was broadly interpreted as prioritizing the principles of a clean break, individual responsibility, self-sufficiency, and finality of spousal support.
[31] Since Cotter and the trilogy, the legislative language of the 1970 Act has been changed twice, first in the 1985 Act and later in the 1997 Act. [page746]
[32] For the first time, the 1985 Act set out factors and objectives to guide the courts in determining spousal support:
15(5) In making an order under this section, the court shall take into consideration the condition, means, needs and other circumstances of each spouse and of any child of the marriage for whom support is sought, including:
(a) the length of time the spouses cohabited;
(b) the functions performed by each spouses during cohabitation; and
(c) any order, agreement or arrangement relating to support of either spouse.
(7) An order made under this section that provides for the support of a spouse should:
(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above the obligation apportioned between the spouses pursuant to subsection (8);
(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
[33] These amendments codified the objective of self- sufficiency. Importantly, self-sufficiency was codified as only one of four objectives and was an objective only if practicable in the circumstances. Parliament thus signalled its intention to move away from the clean break model that informed both Cotter and the trilogy. This was confirmed by the Supreme Court of Canada in Moge v. Moge, [1992] 3 S.C.R 813, [1992] S.C.J. No. 107.
[34] The 1985 amendments also changed the structure of the Act. The Act provided for three separate proceedings: a divorce proceeding, a corollary relief proceeding and a variation proceeding: Because the 1985 Act separated the divorce and corollary relief proceedings, a spouse was no longer limited to claiming support at the time of the divorce; a corollary relief proceeding could be brought at a later date.
[35] Although "pursuant to" continued to be used in many other sections of the 1985 Act, that language was eliminated from the section that governed the variation of spousal support. Instead, a court was given jurisdiction to vary a spousal support order, which was defined as "an order made under subsection 15(2)".
[36] The Supreme Court of Canada reconsidered spousal support in Moge, supra, in light of the 1985 amendments. [page747] Moge clarified the trilogy's self-sufficiency model and constrained its application to situations where the parties had entered into consent agreements because, in such cases, it was appropriate to give "deference to the freedom of individuals to contract". L'Heureux-Dubé J. explained that the self- sufficiency model was not appropriate for non-consensual support applications because the Act now listed four objectives, only one of which was self-sufficiency. All four objectives had to be considered without giving undue weight to any one. L'Heureux-Dubé J. recognized that the 1985 Act's approach to spousal support "may in fact engage the courts in a different type of [spousal support] analysis than that required under the 1970 Divorce Act" (para. 49).
[37] In her concurring reasons, McLachlin J., as she then was, also emphasized the need to consider all four factors: "As a matter of statutory interpretation, it is precisely the manner in which compensatory spousal support is able to respond to the diversity of objectives the Act contains that makes it superior to the strict self-sufficiency model" (para. 68). Moge thus confirmed a philosophical change from the clean break model toward a compensatory model of support.
[38] In 1995, this court revisited Cotter in McCowan. In McCowan, the spouses entered into a settlement agreement that released the wife's claim for spousal support, but provided that the husband would make "pension replacement payments" to the wife. A consent dismissal of spousal support was incorporated into the divorce judgment.
[39] When the husband failed to make the compensatory pension payments, the wife moved to set aside the dismissal of spousal support and sought an initial order for support. Osborne J.A. held that "Mr. McCowan's commitment to make the pension replacement payments ... was a commitment to pay spousal support" (p. 716 O.R.) and that, since those payments were equivalent to spousal support, the wife was entitled to apply to vary that support.
[40] This factual finding was sufficient to dispose of the case. In obiter, however, Osborne J.A. added that he also saw "nothing in the language of ss. 15 and 17 of the [Revised 1985] Divorce Act that suggests that the reasoning in Cotter v. Cotter, supra, is not applicable to the new Divorce Act". McCowan did not include a statutory analysis of the following provisions of the Revised 1985 Act.
15(2) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring one spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of
(a) the other spouse; [page748]
(b) any or all children of the marriage; or
(c) the other spouse and any or all children of the marriage.
(4) The court may make an order under this section for a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just.
(7) An order made under this section that provides for the support of a spouse should ...
(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
17(1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively,
(a) a support order or any provision thereof on application by either or both former spouses; or
(b) a custody order or any provision thereof on application by either or both former spouses or by any other person.
(3) The court may include in a variation order any provision that under this Act could have been included in the order in respect of which the variation order is sought.
(4) Before the court makes a variation order in respect of a support order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of either former spouse or of any child of the marriage for whom support is or was sought occurring since the making of the support order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration that change.
(7) A variation order varying a support order that provides for the support of a former spouse should ...
(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; [page749]
(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
[41] In France v. France, [1996] O.J. No. 1031, 22 R.F.L. (4th) 203 (Gen. Div.), Beaulieu J. did consider the specific wording of the Revised 1985 Act and whether a dismissal of an application for spousal support was a "support order" capable of variation. Beaulieu J. particularly noted s. 17(7) of the 1985 Act, which provided that: "A variation order varying a support order that provides for the support of a former spouse should ...". He construed s. 17(7) as providing "a more specific guideline" that only an order that "provides for" support is capable of variation. Thus, the wording of the Revised 1985 Act was arguably even more specific than the 1970 Act. It seemed that a court had jurisdiction only to vary a support order that provided for support. Cotter continued to be authoritative.
[42] In Irvine v. Irvine, [1996] M.J. No. 554, 25 R.F.L. (4th) 401 (Q.B.) dismissed a disabled wife's claim to vary an earlier dismissal of her spousal support claim. As in France, the court in Irvine held that there was no support order capable of variation. In his annotation to Irvine, Professor James G. McLeod questioned the interpretation of the Revised 1985 Act in both Irvine and McCowan.
[43] Professor McLeod noted that the wording of the 1970 Act had been accepted as precluding spousal support claims that were brought after the dismissal of an initial claim for spousal support. For this reason, under the 1970 Act, judges routinely used nominal orders to preserve a former spouse's right to bring a variation application in the future.
[44] As Professor McLeod noted, courts rarely awarded nominal support after the 1985 Act because s. 15 appeared to establish a separate corollary relief proceeding and "[m]ost judges interpreted that provision to mean that if a claim was dismissed, the applicant could reapply under s. 15 of the Act" on the basis of a change of circumstances, the same threshold that applied to a variation application. Cases such as McCowan, France and Irvine, however, precluded such an interpretation.
[45] Since those cases, however, s. 17 of the Act has been further amended. The s. 17(7) reference to an order "that provides for the support of a former spouse" was deleted in the 1997 Act. Instead, the new Act refers only to a "variation order varying a spousal support order". [page750]
[46] In addition to this significant legislative change, Moge, as well as Miglin v. Miglin, 2003 SCC 24, [2003] 1 S.C.R. 303, [2003] S.C.J. No. 21 and Bracklow v. Bracklow, [1999] 1 S.C.R. 420, [1999] S.C.J. No. 14, provide evidence of a jurisprudential shift away from a prioritization of the goals of finality, certainty and self-sufficiency in determining spousal support. Instead, the courts have moved towards a more contextual analysis of the particular circumstances of each case in light of all the factors and objectives prescribed by Parliament in the 1985 Act and in the current Act. This shift in both the legislation and the jurisprudence has led to a questioning of the continued applicability of Cotter and McCowan.
[47] In Gill-Sager v. Sager, supra, the court allowed an appeal from the dismissal of a spousal support claim and substituted instead a dismissal of the claim "with liberty to apply [for a variation] upon a change in circumstances" (para. 26). Southin J.A. agreed with Morden J.A. who held in Cotter that res judicata had nothing to do with the jurisdictional question because the matter was solely one of statutory interpretation (para. 16).
[48] In her analysis, Southin J.A. determined that it was unclear whether a spouse whose support claim had been dismissed by a court would be forever precluded from bringing a subsequent application, even if the spouse had experienced a change in circumstances. After analyzing the relevant provisions of the 1970 and 1997 Acts, she concluded: "Sometimes a plain reading of the statute leads one to see its plain purpose. This is not so here" (para. 21). Southin J.A. also expressed the view that "[o]nly the Supreme Court of Canada can give a definitive answer". In so holding, she quoted [at para. 20] from Professor James McLeod's annotation to McCowan:
Under the 1970 Divorce Act, the fear that support would end with a dismissal on the merits led to a flood of unnecessary support applications for nominal orders to protect future entitlement. The obvious question is why the court wanted to introduce this cumbersome process into the 1985 Divorce Act. More importantly, many judges have refused to grant nominal orders because they believed that a dismissal of a support claim at one time did not extinguish the claim for all time. What is the effect of McCowan on such cases?
To suggest that a once-and-for-all determination of entitlement to support should be made and once made is determinative of future entitlement ignores the possibility that sometimes the full effect of the roles adopted in marriage on a person's ability to achieve and maintain self- sufficiency may not be apparent at the time of the original proceeding. What of a spouse who loses his or her job because of health or other problems attributable to the roles adopted in marriage? If the support claim was dismissed at trial based on lack of need, it seems harsh to hold that such spouse is forever disentitled to support. Clearly, in child-support cases, a dependant can move in and out of entitlement to support. There is nothing in the wording of the Divorce Act that would force a different conclusion for spousal support. [page751]
As well, Osborne J.A. did not address the issue of whether it matters why support was refused. If entitlement to support depends on a payer's inability to pay, should a dependent who has suffered economic disadvantage arising out of the roles adopted in marriage be forever disentitled to support because a payer was unable to pay at the time of proceedings?
[49] Until the issue was resolved by the Supreme Court of Canada, Southin J.A. recommended that orders employ precise language.
[50] Two points emerge from the amendments to the Divorce Act and these authorities. First, the McCowan affirmation of the Cotter principle was made in obiter on the basis of a differently worded statute without an analysis of the legislative changes that had been made or reference to the changes in the principles governing spousal support. Second, since Cotter, Parliament has modified the 1970 and 1985 Acts in significant ways. Those changes must be taken to reflect a change in parliamentary intention.
[51] The changed wording of the current Act and changes to the principles guiding spousal support lead me to the conclusion that Cotter and McCowan are no longer authoritative. Thus, the time has come to look afresh at a court's ability to vary a dismissal of spousal support.
2. The 1997 Act
[52] Whether a court has jurisdiction to vary support after an earlier dismissal of a support application depends on the interpretation of the following provisions from the 1997 Act:
2(1) In this Act,
"spousal support order" means an order made under subsection 15.2(1);
"support order" means a child support order or a spousal support order;
"variation order" means an order made under subsection 17(1);
"variation proceeding" means a proceeding in a court in which either or both former spouses seek a variation order.
15.2(1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.
(3) The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified [page752] event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just.
(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including
(a) the length of time the spouses cohabited;
(b) the functions performed by each spouse during cohabitation; and
(c) any order, agreement or arrangement relating to support of either spouse.
(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should
(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
15.3(1) Where a court is considering an application for a child support order and an application for a spousal support order, the court shall give priority to child support in determining the applications.
(2) Where, as a result of giving priority to child support, the court is unable to make a spousal support order or the court makes a spousal support order in an amount that is less than it otherwise would have been, the court shall record its reasons for having done so.
(3) Where, as a result of giving priority to child support, a spousal support order was not made, or the amount of a spousal support order is less than it otherwise would have been, any subsequent reduction or termination of that child support constitutes a change of circumstances for the purposes of applying for a spousal support order, or a variation order in respect of the spousal support order, as the case may be.
17(1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively,
(a) a support order or any provision thereof on application by either or both former spouses; or
(3) The court may include in a variation order any provision that under this Act could have been included in the order in respect of which the variation order is sought. [page753]
(4) Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order.
(4.1) Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration.
(7) A variation order varying a spousal support order should
(a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown;
(b) apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.
(10) Notwithstanding subsection (1), where a spousal support order provides for support for a definite period or until a specified event occurs, a court may not, on an application instituted after the expiration of that period or the occurrence of the event, make a variation order for the purpose of resuming that support unless the court is satisfied that ...
[53] For three reasons, these provisions lead to the conclusion that a court does have jurisdiction to vary an earlier dismissal of spousal support. First, a new provision in the current Act, s. 15.3, specifically contemplates an application for support made after an earlier dismissal of spousal support. Second, although the current Act distinguishes between child and spousal support, it does not distinguish between the two types of support when addressing variation applications. Third, the structure and terms of the 1997 Act, particularly ss. 15 and 17, differ in significant ways from the 1970 Act and in significant respects from the Revised 1985 Act.
(i) Section 15.3
[54] Section 15.3, a brand new provision in the 1997 Act, clearly evidences Parliament's intention to allow a variation of an earlier dismissal of spousal support. This provision specifically contemplates a situation where a court is "unable to make a [page754] spousal support order" and refers to a situation where a spousal support order is "not made" (s. 15.3(2) and (3)). There can be no material distinction between not making an order, dismissing a claim, deleting an earlier order, or terminating support.
[55] Parliament enacted s. 15.3 to codify the jurisprudence requiring a court to give priority to the best interests of a child, in this circumstance by giving child support priority over spousal support. The section explicitly recognizes that the implementation of that priority could result in a reduced amount of spousal support or no spousal support. To remedy that situation, the section provides that a later reduction or termination of child support constitutes a change of circumstances for the purposes of either a subsequent original application for spousal support or an application to vary spousal support.
[56] In other words, if an application for spousal support is dismissed in favour of an order for child support, the affected spouse is entitled to bring a subsequent original application for spousal support or an application to vary spousal support. A spouse in this situation can move in and out of spousal support.
[57] Importantly, s. 15.3 was enacted at the same time that s. 17(7) was amended to delete the reference to the variation of an order "that provides for the support of a former spouse" and to substitute reference to the variation of an order "varying a spousal support order", thus contemplating variation of orders other than ones that provide for positive support.
[58] This change to s. 17(7) complements the s. 15.3(2) requirement for a court to give reasons when it is "unable to make a spousal support order". As well, s. 15.3(3) deems that a subsequent change in child support "constitutes a change in circumstances for the purposes of applying for a spousal support order, or a variation order in respect of the spousal support order". This language ties into the s. 17(4.1) requirement for a change in circumstances as a pre-condition to the variation of a spousal support order. Thus, Parliament has recognized that a court is not precluded from varying a spousal support order where a court has declined to award support or, in varying a previous order, has eliminated support.
[59] There is no apparent reason to allow a subsequent application for support when a spouse is denied spousal support in favour of child support and to deny such relief when spousal support is denied for other reasons, such as the present inability of a payor spouse to pay, or the absence of a present need on the part of a spouse who later requires spousal support for reasons related to the marriage or its breakdown.
[60] In this case, the application judge noted that the application had been brought as a result of the respondent's reduced [page755] income and his inability to continue support payments at the same level. He acknowledged that the parties consented to the termination of spousal support and determined that there must also be a decrease in child support. In reducing child support, he referred to his disposition as short-term relief. Accordingly, although the appellant's materials do not raise this issue clearly, if Ms. Tierney-Hynes can bring her claim within the parameters of the new and remedial s. 15.3, a court may have jurisdiction to revisit spousal support. This, however, depends on factual findings that will have to be made at trial.
[61] Since this issue was not apparently raised before the summary judgment judge, or raised before this court, I go on to consider the broader question as to whether, apart from s. 15.3, a court has jurisdiction to vary a dismissal of spousal support. In so doing, I note that even if s. 15.3 does not apply to the facts of this case, the recognition in s. 15.3 of the jurisdiction to vary an earlier order that dismissed spousal support provides powerful and persuasive support for the existence of that jurisdiction in analogous situations.
(ii) Child and spousal support
[62] In all relevant respects, the Act uses identical wording for child support and spousal support, both with respect to original applications and with respect to variation applications. For example, the current Act provides for variation of both child and spousal support orders in s. 17(1)(a): "A court of competent jurisdiction may make an order varying ... (a) a [child or spousal] support order or any provision thereof on application by either or both former spouses".
[63] The wording is identical for variations of both types of support even though the courts have held that, while they have no jurisdiction to vary a dismissal of spousal support, they do have jurisdiction to vary a dismissal of child support.
[64] To explain the difference, the courts have relied on their parens patriae jurisdiction over matters involving children. Child support is the right of the child and cannot be forever abandoned by a parent, even on consent. Thus, a child may move in and out of entitlement to child support depending on the child's circumstances and the circumstances of his or her parents. This, as I have discussed, has not been the case with respect to spousal support.
[65] It is noteworthy that while Parliament has chosen to codify other common law principles, such as the priority to be given to child support, it has not chosen to codify this long- accepted differential treatment of child support in any of its revisions to the Act. This suggests that Parliament intended the same treatment [page756] for both child and spousal support; that is, both children and spouses may move in and out of a support regime.
(iii) The new language
[66] Other changes to ss. 15 and 17 are important to the interpretation of the Act. First, the current Act defines a support order. No longer does the Act restrict the court's jurisdiction to vary orders "that provide for the support" of a spouse. A court now has jurisdiction to vary any support order. Second, a spouse is no longer required to seek support at the time of a divorce and, instead, the Act implements a new support structure that contemplates subsequent applications for spousal support. Third, Parliament has provided the courts with broad jurisdiction to structure a wide range of support relief, which again suggests an expanded jurisdiction to vary spousal support orders.
[67] In the 1997 Act, as I have discussed earlier, Parliament significantly changed s. 17(7). Where the 1985 Act listed objectives to consider when "varying a support order that provides for the support of a former spouse", the 1997 Act lists objectives to consider in "varying a spousal support order". Thus, a court is no longer restricted to varying a positive order for support. This conclusion is further supported by the language in s. 17(4.1), which is even more expansive; it addresses "a variation order" made "in respect of a spousal support order". Thus, Parliament has chosen to delete language suggesting that only a positive order for spousal support is capable of variation and to substitute language that suggests any support order is capable of variation, including one terminating support.
[68] When Parliament introduced the definition of a support order in the 1985 Act, and continued that definition in the 1997 Act, it did not use the language referenced in France, supra, "provides for support". Instead, Parliament chose to say that a spousal support order is "an order made under" the section allowing for an initial application for support. The term "pursuant to" in the 1970 Act was replaced. This new language permitted a court to vary an order made "under" s. 15.2. Since "under" means "authorized by" [See Note 1 at the end of the document], any support order "authorized by" s. 15.2 can be varied. Since a court considering an application for spousal support is authorized to order payment of support, to dismiss the claim, or [page757] to make a variety of other orders, this new definition supports the interpretation that Parliament intended the courts to have jurisdiction to vary an earlier dismissal of spousal support.
[69] In addition, while under the 1970 Act, a spouse was required to apply for spousal support at the time of the divorce proceeding, the courts now have jurisdiction to award support at the time of or subsequent to a divorce, in any one of a divorce proceeding, corollary relief proceeding or variation proceeding.
[70] By introducing this structural change, Parliament recognized that the consequences of marriage and its breakdown could not always be ascertained at the time of divorce. Accordingly, Parliament expanded the court's jurisdiction to permit the court to award support to a former spouse at a time subsequent to a divorce.
[71] In restructuring the Act, Parliament could have chosen language that would have precluded any variation of a dismissal of spousal support, or limited such variations to specific situations, as it did with respect to time limited support in s. 17(10). It chose not to do so.
[72] Similarly, Parliament chose not to legislate any limitation period or additional requirement for a subsequent application for spousal support. If Parliament had intended to require spouses to bring support applications within a certain time, it could easily have enacted such a provision as have certain provinces [See Note 2 at the end of the document].
[73] Parliament's intent to increase the court's jurisdiction is also apparent from the many kinds of relief a court may award when it determines support. No longer is a court restricted to simply making an order for the payment of support. Instead, s. 15.2(1) gives the court broad jurisdiction to make an original order for a definite or indefinite period, or to award support until a specified event occurs, and to impose any terms, conditions or restrictions the court thinks fit. In keeping with the breadth of relief available in an initial order, the 1997 Act also provides courts with similar tools for variation orders. In addition, it provides for the variation of a support order "or any provision thereof" and for the inclusion of any provision in a variation order that could have been included [page758] in an original order (s. 17(1)). This broad range of options reflects a parliamentary recognition that the courts require significant flexibility to tailor a just result for individual cases given the m ultitude of circumstances in which divorcing spouses find themselves.
[74] The courts have made use of this increased flexibility. Nominal support orders are virtually obsolete. Instead, orders are issued adjourning a support claim sine die, requiring support to resume on the happening of a particular event or at a specific time, requiring subsequent reviews of support, and generally structuring orders to suit the particular circumstances of the spouses. This ability to choose from a wide variety of possible dispositions means that the disposition chosen provides helpful information about the aim of the previous order for a judge evaluating a subsequent variation application.
[75] The legislative changes and the expansive language used throughout the 1997 Act lead to the conclusion that, under the 1997 Act, a court has the jurisdiction to vary a dismissal of an application for spousal support.
Conclusion
[76] For these reasons, I conclude that a court now has jurisdiction to vary a dismissal of a support order. It follows from this conclusion that there is a genuine issue for trial in this case. It does not follow from this finding that the proverbial "floodgates" will open. Applications to vary previous dismissals of spousal support will still be required to meet the threshold tests necessary to establish a meritorious claim. In addition, the spectre of adverse cost consequences will continue to serve to discourage applications for relief that are without merit.
3. Other issues
[77] In addition, and in the alternative, the appellant argues that the Manitoba variation order, in effect, converted the appellant's indefinite support order into support for a definite period, or that it effectively suspended support pending the respondent's completion of his specialist qualifications. As well, as I referenced earlier, the appellant may argue that this case involved the prioritization of child support over spousal support. These are fact-driven issues that must be resolved at a trial.
[78] I end by noting that the appellant argued in this case that the application was not an initial application for support following an earlier dismissal of a request for the same relief. Rather, the appellant argued, it was an application to vary an earlier variation. This was a distinction that was unnecessary to address given the result. Further, the circumstances at the time of and [page759] following the consent dismissal are not clear and, if necessary, this issue may be further explored at trial.
Disposition
[79] Accordingly, I would allow the appeal and set aside the dismissal of the appellant's variation application. If so advised, counsel may make brief written submissions on costs through the Court of Appeal office by August 31, 2005.
Appeal allowed.
Notes
Note 1: See the definition of "under" in the Oxford English Dictionary, 2nd ed. (Toronto: Oxford University Press, 1989) Vol. XVIII, which includes "authorized by". For a discussion of "under", see Bensol Customs Brokers Ltd. v. Air Canada (1979), 99 D.L.R. (3d) 623, [1979] 2 F.C. 575 (C.A.), at p. 627 D.L.R.
Note 2: Limitation provisions are contained in Saskatchewan's The Family Maintenance Act, 1997, S.S. 1997, c. F-6.2, as am. by S.S. 2004, c. 16, s. 26 and Manitoba's The Family Maintenance Act, R.S.M. 1987, c. F20, s. 63. Prince Edward Island has a specific two-year limitation period in the Family Law Act, S.P.E.I. 1995, c. 12, s. 7(3). Newfoundland, the Northwest Territories and Nunavut also have similar limitation periods (Family Law Act, R.S.N.L., 1990, c. F-2 as am. by S.N.L. 2000, c. 29, s. 60; Family Law Act, S.N.W.T. 1997, c. c. 18, s. 32 and Consolidation of the Family Law Act (Nunavut) S.N.W.T. 1997, c. 18, s. 32). Ontario did not enact a limitation period in the Family Law Act, R.S.O. 1990 c. F.3, s. 50, which was repealed by 2002, c. 24, Sched B, s. 25.