Court File Number 03-DV-000864
SUPERIOR COURT OF JUSTICE
(DIVISIONAL COURT)
BETWEEN:
STANLEY ROBERT SHOULDICE
Appellant
-and-
ELAINE HELEN MARY SHOULDICE
Respondent
REASONS FOR DECISION
DELIVERED ORALLY BY THE HONOURABLE
ASSOCIATE CHIEF MR. JUSTICE D. CUNNINGHAM
THE HONOURABLE MR. JUSTICE G.I. THOMSON
THE HONOURABLE MR. JUSTICE J.F. McCARTNEY
on the 25th day of November, 2003, at OTTAWA.
APPEARANCES:
Mr. R. Cross Counsel for the Appellant
Mr. J. Johnson Counsel for the Respondent
(i)
Table of Contents
Cr- Re-
WITNESSES in-Chief Exam. Exam.
NO WITNESSES CALLED
Put in on page
Reasons for Decision 1
Date transcript completed: March 13th, 2004____
Stanley Robert Shouldice - and - Elaine Helen Mary Shouldice
REASONS FOR DECISION
CUNNINGHAM, D., Associate Chief Justice (Orally):
Background
This is an Appeal from the order of Manton, J., dated April 7th, 2003, arising out of an application by the Appellant to vary a support order of Metivier, J., dated October 20, 1999. Manton, J., in addition to reducing the arrears, allowed the variation in part, reducing the Appellant’s monthly spousal support payment from $900 to $400 on the basis that his income had been reduced from $50,000, as found by Metivier, J., to $19.926 between September 21st, 2001 and September 30th, 2002.
At the time of his application to vary, the Appellant, a truck driver, was unemployed because F.R.O. had suspended his driver’s license due to arrears in his support payments. It is accepted that the Respondent’s income remained relatively unchanged since the order of Metivier, J., at $36,000.
Issues
The issues are these:
Should Manton, J. have ordered any support to be paid in view of the circumstances?
Should the order have been retroactive to September 1st, 2001?
Should costs have been awarded against the appellant?
Standard of Review
This being an Appeal from the order of a Judge, the standard of review is whether the decision was clearly wrong. To be clearly wrong, the Judge, in exercising his discretion, must have acted on a wrong principle, or have disregarded, misapprehended, or misinterpreted material evidence. Moreover, in terms of support orders, the Supreme Court of Canada in Hickey v. Hickey, (1999) 2 S.C.R., page 518, at paragraphs 11 and 12 stated:
“Our court has often emphasized the role that appeal courts should not overturn support orders unless the reasons disclose an error in principle, a significant misapprehension of the evidence, or unless the award is clearly
wrong. There are strong reasons for the significant deference that must be given to trial judges in relation to support orders. This standard of an appellant review recognizes that the discretion involved in making a support order is best exercised by the judge who has heard the parties directly.”
Analysis
While the Motions Judge here was correct in ordering the Appellant to produce to the Respondent, copies of his tax returns on an annual basis, we fail to understand why, given the disparity of income since 2001, the Appellant was ordered to pay spousal support. While clearly discretionary, section 17 (4).1.7, makes it clear that a court must take into consideration changes in the condition, means, needs, or other circumstances of either former spouse. Furthermore, section 17 (7) requires a judge, on a variation application, to recognize economic advantages and disadvantages and to relieve any economic hardship, with a view to promoting economic self-sufficiency of each former spouse within a reasonable period of time.
Given the economic disparity between the former spouses, between September 1st, 2001 and September 20th, 2002, and given that the Appellant was unemployed at the time of the variation order, it would have been appropriate to reduce his monthly payments to zero. To do otherwise, in our view, was in error.
Conclusion
Notwithstanding the Appellant’s request for re-payment, we are all of the view that there should not be any ongoing support required of the Appellant, or any re-payment, as of the end of November, 2003. Support orders are always open to review and in light of the fact that Manton, J. ordered disclosure of the Appellant’s tax returns annually, this man\y be the subject of review in the future.
Costs
As to the matter of costs?
MR. JOHNSON: I just wanted to clarify the last part there, Your
Honour. “We are all of the view that no support...”, is that as of today’s date?
JUSTICE CUNNINGHAM: As of today’s date.
MR. JOHNSON: So, there’s no retro and no re-payment by
Mrs....?
JUSTICE CUNNINGHAM: That’s right.
MR. JOHNSON: It seems to me that we’ve had a mixed result,
then, haven’t we?
JUSTICE CUNNINGHAM: Indeed.
MR. JOHNSON: In those circumstances, I think it would be fair to
Have no costs.
JUSTICE CUNNINGHAM: Mr.Cross?
MR. CROSS: I agree.
JUSTICE CUNNINGHAM: No order as to costs.
MR. JOHNSON: Thank you.
MR. CROSS: Thank you.
JUSTICE CUNNINGHAM: Thank you.
“Cunningham, D.”
Associate Chief Justice D. Cunningham
“McCartney, J.”
The Honourable Mr. Justice J. F. McCartney
“Thomson, G.”
The Honourable Mr. Justice G.I. Thomson
Released: May 3, 2004
THIS IS TO CERTIFY THAT
the foregoing is a true and
accurate transcription of the
recordings to the best of my
skill and ability.
Peggy Bamber
Peggy Bamber
Certified Court Reporter