Ballentine v. Ballentine

65 O.R. (3d) 481

[2003] O.J. No. 2589

Docket Nos. C37343 and C39092

Court of Appeal for Ontario

McMurtry C.J.O., Weiler and MacPherson JJ.A.

June 27, 2003

Family law -- Support -- Spousal support -- Variation -- Superior court judge having jurisdiction to make "vexatious proceedings" order under s. 140 of Courts of Justice Act requiring leave of court before further application to vary support order can be brought under s. 17 of Divorce Act -- No conflict existing between s. 140 of Courts of Justice Act and s. 17 of Divorce Act -- Vexatious proceedings order appropriate where applicant had attempted to raise issues which had been disposed of in previous proceedings, had persistently failed to pay costs awards and had failed to make spousal support payments for six years -- Courts of Justice Act, R.S.O. 1990, c. C.43, s. 140 -- Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 17.

The parties had been engaged in litigation for 15 years. In 2001, the appellant brought an application to vary his spousal support obligation from approximately $4,500 per month to nil and to cancel all arrears, which at that time were about $308,000. The respondent brought a cross-application for an order under s. 140 of the Courts of Justice Act preventing the appellant from commencing any further proceedings relating to spousal support without leave of the court. The application was dismissed and the cross-application was granted. In granting the "vexatious proceedings" order under s. 140 of the Courts of Justice Act, the application judge noted that the issue of at least part of the arrears had already been finally determined, that the appellant had failed in every instance to pay cost awards of prior unsuccessful proceedings, and that his appeals had been unsuccessful. A few months later, the appellant applied for leave to make an application to vary the divorce judgment to delete his obligation to pay spousal support and for an order cancelling arrears of spousal support. The application was dismissed. The appellant appealed both orders, arguing that the application of a vexatious proceedings provision of an Ontario statute conflicted with s. 17 of the Divorce Act, which permits a court to vary a spousal support order if there has been "a change in the condition, means, needs or other circumstances of either former spouse . . . since the making of the support order".

Held, the appeal should be dismissed.

A superior court judge has jurisdiction to issue an order pursuant to s. 140 of the Courts of Justice Act in relation to variation of spousal support under s. 17 of the Divorce Act. There is no conflict between s. 140 and s. 17 so as to call into play the doctrine of federal paramountcy. The statutes have different purposes. Section 17 of the Divorce Act provides statutory authority to a judge to vary, rescind or suspend support orders and custody orders and provides guidance for when such orders must be made. Section 140 of the Courts of Justice Act does not deal in pith and substance with divorce, support or custody. Its purpose is to prevent abuses of the court's process. It allows the court to make an order prohibiting a person who has persistently and unreasonably instituted vexatious proceedings from instituting further proceedings without leave of the court. This is particularly important in family law matters, given the availability of variation orders for support and custody. Without some mechanism to prevent abuse, a party could bring an endless stream of variation applications. Initiating new court proceedings could become a form of harassment of one's former spouse. [page482]

Additionally, an order requiring leave under s. 140 of the Courts of Justice Act and the requirement for a change of circumstances in s. 17 of the Divorce Act occur at different stages of the proceedings. A leave requirement under s. 140 of the Courts of Justice Act is a precondition to bringing the variation application. A change in circumstances under s. 17 of the Divorce Act is not a precondition to bringing a variation application; it is a fact that must be proven at the hearing.

The long history of litigation between the parties, the appellant's attempt to raise issues in his variation application which had been disposed of in previous proceedings, his non-payment of costs awards, the complete failure to make spousal support payments for six years, and the devastating effects of the appellant's conduct on the respondent, entitled the application judge to make a s. 140 order.

APPEAL from an order dismissing an application to vary spousal support and ordering that no further proceedings be instituted without leave; APPEAL from order dismissing an application for leave to vary spousal support.

Hauff v. Hauff (1997), 118 Man. R. (2d) 164, [1998] 2 W.W.R. 81, 149 W.A.C. 164, 31 R.F.L. (4th) 322 (C.A.), distd Other cases referred to Beattie v. Ladouceur (2001), 23 R.F.L. (5th) 33 (Ont. S.C.J.); Friends of Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3, 84 Alta. L.R. (2d) 129, 88 D.L.R. (4th) 1, 48 F.T.R. 160n, 132 N.R. 321, [1992] 2 W.W.R. 193; Lockwood v. Lockwood (2002), 162 Man. R. (2d) 139, 2002 MBQB 44 (Q.B.); Shaward v. Shaward (1988), 51 Man. R. (2d) 222, [1988] 3 W.W.R. 319 (C.A.); Winkler v. Winkler (1991), 70 Man. R. (2d) 45 (C.A.), affg (1990), 70 Man. R. (2d) 47 (Q.B.) Statutes referred to Court of Queen's Bench Act, C.C.S.M., c. 280 [S.M. 1988-89, c. 4], s. 73(1) Courts of Justice Act, R.S.O. 1990, c. C.43, s. 140 Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 17 Authorities referred to Sullivan, R., Sullivan and Driedger on the Construction of Statutes, 4th ed. (Markham, Ont.: Butterworths, 2002)

Robert R. Berman, for appellant. Constance M. Brothers, for respondent.

The judgment of the court was delivered by

MACPHERSON J.A.: --

A. Introduction

[1] The appellant, Richard Ballentine, appeals the orders of two superior court judges.

[2] In an order in October 2001, Justice Nancy Backhouse dismissed the appellant's application to vary his spousal support [page483] obligation and to cancel his arrears of spousal support. Pursuant to s. 140(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the "CJA"), which deals with "vexatious proceedings", Backhouse J. also ordered that the appellant could institute no further proceedings with respect to spousal support, save with leave of the court.

[3] In July 2002, the appellant applied for leave to bring an application virtually identical to the one he had lost before Backhouse J. In an order in October 2002, Justice Wailan Low dismissed the application on two grounds: (1) some of the issues raised by the appellant were res judicata following Backhouse J.'s order, which the appellant had appealed to this court; and (2) on the merits, there had not been a change of circumstances sufficient to justify the granting of leave.

[4] Although the appeals from the orders of Backhouse J. and Low J. raise several issues, the principal issue cutting across both appeals is Backhouse J.'s invocation, accepted by Low J., of s. 140(1) of the CJA to prevent the appellant from initiating further proceedings with respect to spousal support without leave of the court. The appellant contends that this application of a vexatious proceedings provision of an Ontario statute conflicts with s. 17 of the federal Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) (the "DA"), which permits a court to vary a spousal support order if there has been "a change in the condition, means, needs or other circumstances of either former spouse . . . since the making of the support order".

B. Facts

(1) The parties and the events

[5] The appellant and Hilda Ballentine, the respondent, were married in 1956 and separated in 1970. Both parties are now 68 years old. When the Ballentines separated, they entered into a separation agreement, the terms of which were incorporated into the divorce decree in 1976. There was a term relating to spousal support that obliged the appellant to pay $1,000 per month to his former wife. This amount increased annually as a result of cost of living adjustments and is now approximately $4,750 per month. The appellant met his support obligations until 1995. Since then, arrears have accumulated.

[6] The parties have been engaged in litigation for more than 15 years. In September 1987, the appellant brought an application to end or reduce spousal support. He abandoned this application.

[7] In August 1999, Cullity J. granted the respondent's motion for a writ of seizure and sale. He fixed arrears of spousal support [page484] at $187,491.26 as of July 25, 1999. An appeal from Cullity J.'s order was dismissed by this court on July 31, 2000.

[8] In October 2000, Greer J. ordered that the appellant be removed as a trustee of the R.B. Ballentine Family Trust. An appeal from Greer J.'s order was dismissed by this court on May 29, 2001.

(2) The litigation

[9] On October 9, 2001, Backhouse J. heard an application brought by the appellant in which he sought to vary his spousal support obligation from approximately $4,500 per month to nil and to cancel all arrears, which at that time were about $308,000. Backhouse J. also heard a cross-application brought by the respondent seeking, inter alia, an order pursuant to s. 140 of the CJA preventing the appellant from commencing any further proceedings relating to spousal support without leave of the court.

[10] Backhouse J. dismissed the appellant's application. She concluded [at p. 4 R.F.L.]:

Mr. Ballentine has the onus of proving the factual conditions for rescinding or varying an order. He has failed to meet that onus. The order of Justice Cullity, which was confirmed on appeal, crystallizes the arrears as of July 25, 1999 at $187,491.26. This issue has been dealt with finally, and as a result, Mr. Ballentine has no basis on which to request that these arrears be expunged. Justice Cullity found that Mr. Ballentine had not provided evidence to establish that there had been a necessary material change of circumstances pursuant to section 17 of the Divorce Act. Mr. Ballentine has not provided any further or different evidence of a material change in his circumstances since August of 1999.

[11] Backhouse J. granted the respondent's cross-application. She held [at p. 5 R.F.L.]:

The issue of at least part of the arrears has already been finally determined. It is obvious that the application cannot succeed. Mr. Ballentine has failed in every instance to pay cost awards of prior unsuccessful proceedings. His appeals have been unsuccessful.

I find that Mr. Ballentine's conduct as a litigant falls within the principles enunciated by the caselaw. I conclude that he has abused the process of this court. In my view, maintenance of the integrity of the courts and the proper administration of justice requires that judicial restraint be exercised in relation to Mr. Ballentine in accordance with ss. 140(1) of the Courts of Justice Act.

[12] The appellant waited a few months, and then applied for leave to make an application to vary the divorce judgment to delete his obligation to pay spousal support and for an order cancelling all arrears of spousal support. [page485]

[13] Low. J. dismissed the appellant's application. She held that some of the issues raised by the appellant were essentially the same as those that had been determined by Backhouse J. Since the appellant had appealed Backhouse J.'s order, those issues were res judicata. In addition, Low J. held that "[t]here is no new change of circumstance following the motion before Justice Backhouse."

[14] The appellant appeals the orders of Backhouse J. and Low J.

C. Issues

[15] The appellant framed the issues somewhat differently in the two Notices of Appeal, two facta and oral argument at the hearing. As I understand the appellant's submissions, the issues on the two appeals are:

(1) Did Backhouse J. err by failing to hold a proper hearing with respect to the appellant's variation application?

(2) In light of s. 17 of the Divorce Act, did Backhouse J. err by concluding that she had jurisdiction to make a "vexatious proceedings" order against the appellant pursuant to s. 140 of the Courts of Justice Act?

(3) In any event, did Backhouse J. err by making a "vexatious proceedings" order against the appellant?

(4) Did Low J. err by dismissing the appellant's application for leave to make an application to vary his spousal support obligation and to cancel his arrears of spousal support?

D. Analysis

(1) Failure to hold a proper hearing with respect to appellant's variation application

[16] The appellant's application and respondent's cross- application came before Backhouse J. on October 9, 2001. The appellant represented himself; the respondent was represented by counsel. The appellant contends that the hearing focused on the respondent's cross-application, and that he did not have an opportunity to explain the changes in his circumstances that might have led to granting his variation application.

[17] I disagree. Both parties filed material in support of their applications. The appellant filed a Notice of Application, an affidavit and supporting documentation. A 37- page transcript of the hearing before Backhouse J. was prepared. It is clear from this transcript that although most of the submissions made by the [page486] appellant and the respondent's counsel were directed at the latter's cross- application, the appellant was given the opportunity to argue, and in fact argued, the merits of his application. Indeed, the appellant began his submissions by referring to the principal ground for his variation application, "inability to pay".

[18] Moreover, near the end of the hearing after the appellant expressed a concern that the result of the cross- application might mean that his application would not proceed on the merits, Backhouse J. assured him that such was not the case and specifically asked him: "Is there anything else you want to say about your application?" The appellant proceeded to made additional submissions about his personal financial circumstances, illness and past business reverses.

[19] In summary, Backhouse J. conducted a proper hearing of the appellant's application and was entitled to determine it on the merits.

(2) [Section 140](https://www.canlii.org/en/on/laws/stat/rso-1990-c-c43/latest/rso-1990-c-c43.html) of the [Courts of Justice Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-c43/latest/rso-1990-c-c43.html) and [s. 17](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-3-2nd-supp/latest/rsc-1985-c-3-2nd-supp.html) of the [Divorce Act](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-3-2nd-supp/latest/rsc-1985-c-3-2nd-supp.html)

[20] This is the principal issue on these appeals. Backhouse J. made an order pursuant to s. 140 of the CJA that the appellant not institute further proceedings with respect to spousal support and arrears without leave of the court. The appellant submits that Backhouse J. had no jurisdiction to make this order because, under s. 17 of the DA, the only pre- condition to a variation in spousal support is a material change in circumstances. Accordingly, the appellant asserts, a judge does not have the power to impose additional conditions precedent on an application to vary a support order.

[21] Section 140(1) of the CJA provides:

140(1) Where a judge of the Superior Court of Justice is satisfied, on application, that a person has persistently and without reasonable grounds,

(a) instituted vexatious proceedings in any court; or

(b) conducted a proceeding in any court in a vexatious manner, the judge may order that,

(c) no further proceeding be instituted by the person in any court; or

(d) a proceeding previously instituted by the person in any court not be continued,

except by leave of a judge of the Superior Court of Justice.

[22] The applicable portions of s. 17 of the DA provide:

17(1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively, [page487]

(a) a support order or any provision thereof on application by either or both former spouses . . . .

(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 . . . and, in making the variation order, the court shall take that change into consideration.

[23] The main argument that the appellant makes on this issue is that Backhouse J.'s decision is inconsistent with the decision of the Manitoba Court of Appeal in Hauff v. Hauff (1997), 118 Man. R. (2d) 164, 31 R.F.L. (4th) 322 (C.A.), and that Hauff should be followed in Ontario.

[24] Hauff involved a dispute between two former spouses who had separated after 19 years of marriage. In 1993, Mr. Hauff was ordered to pay spousal support. Subsequently, Mr. Hauff brought several variation applications. The variation application that was returnable on August 8, 1995 was adjourned to December 7, 1995. In the interim, Mr. Hauff decided that there were further issues he wanted brought to the court's attention, so he requested that the matter be further adjourned and heard on the basis of a fresh application and affidavit. On December 7, 1995, rather than responding to the adjournment request, Bowman J. dismissed Mr. Hauff's initial request in the application of August 8. She also ordered a stay that prohibited Mr. Hauff from filing further variation applications without leave of the court until certain cost orders had been paid.

[25] The stay order was not appealed. Instead, Mr. Hauff brought an application for leave to apply for variation. Bowman J. denied leave. Mr. Hauff appealed Bowman J.'s order that denied him leave. On appeal, the Manitoba Court of Appeal brought it to the parties' attention that Bowman J. may have exceeded her jurisdiction in ordering the stay. The parties were invited to make submissions on that issue.

[26] The Court of Appeal decided that Bowman J. exceeded her jurisdiction by ordering the stay. Kroft J.A. stated, at para. 11:

There is no jurisdiction for a motions court judge to make an order staying future variation applications without leave. To do so would fly directly in the face of the Divorce Act, 1985, which specifically permits any party to bring an application for variation in the event of a material change in circumstances and makes no mention of imposing conditions precedent as to obtaining leave.

[27] In my view, this broad statement by the court must be read in context. Immediately after the passage cited above, the court stated, at para. 12: "This sort of situation was addressed in [page488] Shaward v. Shaward (1988), 51 Man. R. (2d) 222, [1988] 3 W.W.R. 319 (C.A.)." In Shaward, the court decided that, in the absence [of] statutory authority, a judge did not have the jurisdiction to make an order prohibiting a person from initiating legal proceedings without leave of the court.

[28] At the time Shaward was decided, Manitoba did not have legislation similar to s. 140 of the CJA. That was remedied on March 1, 1989, with the passing of the Court of Queen's Bench Act, S.M. 1988-89, c. 4 [C.C.S.M., c. 280], s. 73(1) (the "CQBA"), which states:

73(1) Where a judge is satisfied, on application, that a person, persistently and without reasonable grounds, is

(a) instituting vexatious proceedings in the court; or

(b) conducting a proceeding in a vexatious manner,

the judge may order that,

(c) the person shall not institute a further proceeding; or

(d) a proceeding instituted by the person not be continued,

except with leave of a judge.

[29] Accordingly, when the court decided Hauff, the relevant statutory authority was available. This was acknowledged by the court in Hauff at para. 13. However, at para. 14 the court states:

In any event, when the learned motions court judge made her order of December 7, 1995, there was no suggestion that she was acting pursuant to s. 73(1) of the Court of Queen's Bench Act.

[30] It should be noted that, on the facts of Hauff, the motions judge could not have been exercising her statutory authority. Section 73 of CQBA requires an application for the order, and the Attorney General must consent to the application. Based on the facts of Hauff, it appears that the motions judge made the order without an application or consent of the Attorney General.

[31] The court's statement in para. 14 that there was no suggestion that the trial judge was acting pursuant to s. 73 of the CQBA, combined with the court's statement in para. 12 that "[t]his sort of situation was addressed in Shaward", indicates that the court was confirming that a judge does not have inherent jurisdiction to issue an order prohibiting variation applications from being initiated without leave of the court. The court was not deciding whether a judge could make such an order pursuant to statutory authority.

[32] Hauff has had no judicial consideration. However, there are two other Manitoba cases of interest. In [page489] Winkler v. Winkler (1990), 70 Man. R. (2d) 47 (Q.B.), affd (1991), 70 Man. R. (2d) 45 (C.A.), Mrs. Winkler had brought numerous variation applications relating to access and spousal support under s. 17 of the DA. She was declared a vexatious litigant and prohibited from bringing further proceedings without leave of a judge. Similarly, in Lockwood v. Lockwood (2002), 162 Man. R. (2d) 139, 2002 MBQB 44 (Q.B.), Ms. Lockwood had brought applications to vary custody and spousal support under s. 17 of the DA. She was declared a vexatious litigant and prohibited from bringing further proceedings without leave. In both Winkler and Lockwood, applications had been brought pursuant to s. 73 of the CQBA, and the judges made orders pursuant to that statutory authority. There was no discussion in either case questioning the jurisdiction of the judge to make the order.

[33] Accordingly, it is my view that Hauff can be distinguished from the present case because it was not dealing with a judge's statutory authority to prohibit a person from initiating further proceedings without leave of the court.

[34] I turn, then, to a consideration of whether a superior court judge has jurisdiction to issue an order pursuant to s. 140 of the CJA in relation to variation of spousal support under s. 17 of the DA. The appellant submits that a judge does not have this jurisdiction. He asserts that the only pre- condition to variation under s. 17 of the DA is a material change of circumstances; accordingly, a judge does not have the power to impose additional conditions precedent on an application to vary a support order.

[35] The appellant has not challenged s. 140 of the CJA as being ultra vires the Ontario legislature. However, he appears to be submitting that s. 140 of the CJA conflicts with s. 17 of the DA and, consistent with the doctrine of federal paramountcy, the DA trumps the CJA. Accordingly, it is necessary to determine whether a conflict exists between s. 17 of the DA and s. 140 of the CJA.

[36] The test for finding a conflict between two statutes is stringent. In Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3, 88 D.L.R. (4th) 1, at pp. 38-39 S.C.R., La Forest J. summarized the governing legal principles:

The basic principles of law are not in doubt. Just as subordinate legislation cannot conflict with its parent legislation (Belanger v. The King (1916), 54 S.C.R. 265), so too it cannot conflict with other Acts of Parliament (R. & W. Paul, Ltd. v. Wheat Commission, [1937] A.C. 139 (H.L.)), unless a statute so authorizes (Re Gray (1918), 57 S.C.R. 150). Ordinarily, then, an Act of Parliament must prevail over inconsistent or conflicting subordinate legislation. However, as a matter of construction a court will, where possible, prefer an interpretation that permits reconciliation of the two. "Inconsistency" in this context refers to a situation where two legislative enactments cannot stand together; see Daniels v. White, [1968] S.C.R. 517. The rule in that case was [page490] stated in respect of two inconsistent statutes where one was deemed to repeal the other by virtue of the inconsistency. However, the underlying rationale is the same as where subordinate legislation is said to be inconsistent with another Act of Parliament -- there is a presumption that the legislature did not intend to make or empower the making of contradictory enactments. There is also some doctrinal similarity to the principle of paramountcy in constitutional division of powers cases where inconsistency has also been defined in terms of contradiction -- i.e., "compliance with one law involves breach of the other"; see Smith v. The Queen, [1960] S.C.R. 776, at p. 800.

(Emphasis added)

[37] In Sullivan and Driedger on the Construction of Statutes, 4th ed. (Markham, Ont.: Butterworths, 2002) at p. 265, Professor Ruth Sullivan states: "Normally, when overlapping provisions have different purposes or are concerned with different aspects of a matter, they are not found to conflict with one another."

[38] In my view, there is no conflict between s. 140 of the CJA and s. 17 of the DA. The statutes have different purposes. Section 17 of the DA provides statutory authority to a judge to vary, rescind or suspend support orders and custody orders. It also provides guidance for when such orders may be made. For example, before a variation order for spousal support can be made, the court must satisfy itself that there has been a change in the condition, means, needs or other circumstances or either former spouse. Similarly, before an order to vary custody can be made, the court must be satisfied that there has been a change in the condition, means, needs or other circumstances of the child of the marriage.

[39] In contrast, s. 140 of the CJA does not deal in pith and substance with divorce, support or custody. Its purpose is to prevent abuses of the court's process. It allows the court to make an order prohibiting a person who has persistently and unreasonably instituted vexatious proceedings from instituting further legal proceedings without leave of the court. This is particularly important in family law matters, given the availability of variation orders for support and custody. As noted by Polowin J. in Beattie v. Ladouceur (2001), 23 R.F.L. (5th) 33 (Ont. S.C.J.) at p. 62 R.F.L.: "There is a significant body of case law with respect to the issue of vexatious litigation. It is perhaps not surprising that many of the cases involve family litigation where emotions often run very deep." Without some mechanism to prevent abuse, a party could bring an endless stream of variation applications, with a new one launched as soon as the last one has been denied. Indeed, this was the situation in Winkler, where Davidson J. observed, at p. 51 Man. R.: [page491]

The litigation between Mr. and Mrs. Winkler has, unfortunately, fallen into a regular pattern. Mrs. Winkler brings custody, access and support claims (among others) before the court; is unsuccessful, generally; costs are awarded against her, which she can't pay; she waits a period of time, and then brings the same matters back before the court.

Accordingly, initiating new court proceedings could become a form of harassment of one's former spouse. Section 140 of the CJA is a mechanism to prevent such abuse.

[40] Additionally, an order requiring leave under s. 140 of the CJA and the requirement for a change of circumstances in s. 17 of the DA occur at different stages of the proceedings. A leave requirement under s. 140 of the CJA is a precondition to bringing the variation application. A change in circumstances under s. 17 of the DA is not a precondition to bringing a variation application; it is a fact that must be proven at the hearing.

[41] Accordingly, it is my view that there is no conflict between s. 140 of the CJA and s. 17 of the DA. The two statutes have different purposes, place requirements at different stages of the proceedings, and can therefore "stand together". Justice Backhouse did not exceed her jurisdiction in issuing an order under s. 140 of the CJA prohibiting the appellant from initiating further proceedings with respect to spousal support and arrears.

(3) The merits of the vexatious proceedings order

[42] The appellant contends that Backhouse J. erred in making an order pursuant to s. 140 of the CJA. He asserts that, with the exception of his variation application in 1987, which he abandoned, all other proceedings have been initiated by the respondent. He has contested those proceedings and appealed their results, as he is entitled to do. Hence a s. 140 order against him was inappropriate.

[43] I disagree. The long history of litigation between the parties, the appellant's attempt to raise issues in his variation application which had been disposed of in previous proceedings (including two unsuccessful appeals to this court), his non-payment of costs awards, the complete failure to make spousal support payments for six years, and the devastating effects (including financial effects) of the appellant's conduct on the respondent, entitled Backhouse J. to make a s. 140 order.

(4) Low J.'s refusal to grant leave

[44] The appellant contends that Low J. erred by treating Backhouse J.'s s. 140 order as valid. I disagree; that is precisely what Low J. should have done in light of the appellant's appeal of that order to this court. [page492]

[45] The appellant contends that Low J. erred by not granting his application for leave to make an application to vary spousal support and to cancel the arrears. He submits that the imminent payment to the respondent of $166,000 out of the family trust, his cancer and his inability to work established that there had been a material change of circumstances sufficient to justify a reconsideration of the issues of spousal support and arrears.

[46] I disagree. I agree with Low J.'s analysis and conclusions with respect to these submissions. The payment out of the family trust was possible, not completed, when Low J. heard the application. Moreover, even if the payment were made, it would be far short of bringing the spousal support arrears into good standing. The appellant has known of his cancer for several years and could have made this matter known to Backhouse J.; bringing it to the attention of Low J. was not a new circumstance. Finally, there was nothing in the record to establish that the appellant's illness affected his ability to earn income. Since he sold his business in 1979, he has earned his income from investments, which his illness does not affect.

E. Disposition

[47] I would dismiss both appeals. I would award the respondent her costs of the appeals, on a partial indemnity scale, fixed at $6,200, inclusive of counsel fee at hearing, disbursements and GST.

Appeal dismissed.