Court File and Parties
DIVISIONAL COURT FILE NO.: DC-15-860-00
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Glen Hancock, Applicant (Respondent in Appeal)
AND:
Elaine Rutherford, Respondent (Appellant)
BEFORE: Abrams, Matheson, Ryan Bell, JJ.
COUNSEL: David Zeldin, for the Applicant (Respondent in appeal)
Ian McCuiag, for the Respondent (Appellant)
HEARD at Oshawa: January 22, 2018
Endorsement
ABRAMS J.
Introduction
1The appellant appeals Justice E. Quinlan’s order dated January 8, 2015, arising from a motion to change brought by the respondent. The respondent sought termination of spousal support. The motions judge found that the appellant’s health issues would not prohibit her from full time employment and made a three-year step down support order.
Issues
2In oral submissions, counsel for the appellant focused on the following issue: Did the motions judge err in changing the prior indefinite spousal support order to a definite, three year, step-down order?
Standard of Review
3The parties agree that the standard of review for this appeal is as set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 – for questions of law the standard of review is correctness; for questions of fact, palpable and overriding error; and for questions of mixed law and fact, the standard varies. Where a legal principle can be extracted from the question of mixed law and fact, the standard for that question is correctness. Where the issue is the application of correct legal principles to the facts, the standard is palpable and overriding error.
Analysis
4It is uncontroverted that the parties were married on May 9, 1986 and separated on July 22, 2004, thus resulting in an 18 year marriage.
5The appellant contends that the motions judge erred in failing to consider that the parties’ commenced co-habitation in February 1983, which, when combined with their years of marriage, made this a 21 year relationship. We do not see it that way.
6Admittedly, reference to co-habitation commencing in 1983 is found in a Trial Management Conference Brief filed in the Continuing record, in 2005. Firstly, there is nothing before this court to indicate that the issue of co-habitation pre-marriage was raised during the motion so as to allow the judge to consider that point. Secondly, reference to information raised in a Trial Management Conference Brief ten years earlier would not, in the ordinary course, constitute evidence proffered on the motion. Thus, in our view, it is axiomatic that the motions judge could not have committed a palpable and overriding error in respect of information that was never raised and not properly before the court on the motion.
7Further, the appellant asserts that the motions judge erred in terminating an indefinite support order by making a step-down order that is prospective in nature, resulting in termination of support on March 31, 2018. Counsel conceded that the step down order would have been appropriate but for the fact that the prior order was indefinite.
8Counsel for the appellant did not provide this court with any authority to support the submission that it was an error to change the prior indefinite order in this case, apart from his interpretation of the Federal Support Advisory Guidelines (“SSAG’s”).
9Notably, counsel for the respondent included in his brief of authorities excerpts from SSAG’s dealing with the meaning of “indefinite” support found at s. 7.5.2, specifically:
Under the Advisory Guidelines an order for indefinite support does not necessarily mean permanent support, and it certainly does not mean that support will continue indefinitely at the level set by the formula.
Through the process of review and variation the amount of spousal support may be reduced, for example if the recipient’s income increases or if the recipient fails to make reasonable efforts to earn income and income is imputed. Support may even be terminated if the basis of the entitlement disappears. (emphasis added).
10These excerpts leave open the possibility that support may be terminated.
11The motions judge found on the evidence before her that the appellant’s health would not prohibit her from engaging in full-time employment at minimum wage, and that the appellant “has had an opportunity to retrain and make herself employable and self-supporting”. The motions judge nonetheless made an order to assist the appellant – the step down order was fashioned to allow the appellant an opportunity to find part-time employment, followed by full-time employment, over the space of three years, whether in her chosen field of addiction counselling, or alternatively in some other field. Further, the amount of support ordered for the first year ($1,100 a month) and second year ($900 a month) exceeded the prior indefinite order, which was then for $800 a month.
12It was open to the motions judge to find, as she did, that in the above circumstances support should be terminated effective March 31, 2018. Thus, we are not persuaded that the motions judge committed a reviewable error such that this court should interfere with the decision below. Accordingly, the appeal is dismissed.
13Parenthetically, counsel for the appellant did not pursue, during oral submissions, the issue regarding the quantum of the life insurance policy ordered to secure the respondent’s support obligation. We see no reason to interfere with that aspect of the order.
14As agreed between the parties, costs of the appeal are fixed in the amount of $4,100.00 inclusive of disbursements and HST, payable by the appellant to the respondent.
Abrams J.
I agree _______________________________
Matheson J.
I agree _______________________________
Ryan Bell J.
Date: January 24, 2018