DATE: 2004-01-15

DOCKET: C39750

COURT OF APPEAL FOR ONTARIO

DOHERTY, MACPHERSON and SIMMONS JJ.A.

BETWEEN:

MARIAN HOPE MARKS

Appellant (Wife)

— and —

ALEXANDER TOKAREWICZ

Respondent (Husband)

Counsel: Leonard Levencrown for the appellant Barry M. Tobin for the respondent

HEARD: January 6, 2004

On appeal from the judgment of Justice Maria Linhares de Sousa of the Superior Court of Justice dated March 13, 2003 in Ottawa.

SIMMONS J.A.:

[1] The appellant appeals from the judgment of Linhares de Sousa J. dismissing her claim for spousal support. The main issue on appeal is the proper application of Miglin v. Miglin, [2003] SCC 24 to this case, involving a claim for spousal support under s. 15.2(1) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) that is inconsistent with the terms of a pre-existing separation agreement.

[2] In 1988, after a nineteen-year marriage, the appellant and the respondent separated. Following the separation, the respondent paid interim spousal support to the appellant pursuant to a consent order to enable the appellant to go to the Dominican Republic to study medicine. In addition to the interim spousal support, the respondent paid a lump sum payment to the appellant, provided her with a loan guarantee, paid her moving expenses to the Dominican Republic, and assumed responsibility for the care of the parties’ two children, then ages 15 and 11.

[3] After completing her medical degree, the appellant returned to Canada in July 1992 and the parties resumed negotiations, with a view to finally resolving the issues between them. On December 1, 1992, the parties entered into a separation agreement under which the respondent agreed to continue paying spousal support to the appellant until June 1, 1994 and the appellant released all claims to further support. At trial, the appellant testified that the purpose of the support was to enable her to qualify to practice medicine in Canada. However, she never qualified to practice and, in November 2001, finding herself destitute and relying on social assistance for her support, she applied for spousal support under s. 15.2(1) of the Divorce Act.

[4] The evidence at trial revealed that, because the opportunity for foreign graduates to write the Canadian medical licensing examinations is quite limited, the appellant planned to take a preparatory course, after the separation agreement was signed, to enable her to write the United States examinations. However, before doing so she returned to the Dominican Republic to obtain some documentation. While she was there, her lawyers seized her support cheques for payment of legal fees and she was unable to return to Canada until July 1994.

[5] Upon returning to Canada, the appellant moved to Montreal where she operated a successful writer/editor/proof-reader business, eventually generating earnings of approximately $30,000 per year. She also cohabited and shared expenses with an individual earning approximately $90,000 per year. In 1998, the appellant made the decision to move to Ottawa to live in her mother’s home. She testified that she had been unable to find steady work of any kind in Ottawa.

[6] At the time of trial, there was no issue concerning the respondent’s ability to pay spousal support. He had a successful medical practice in ophthalmology and eye surgery and anticipated gross income for the year 2003 in the range of $500,000 to $550,000.

[7] The Supreme Court of Canada’s decision in Miglin had not yet been released when the trial judge delivered her reasons. Applying this court’s analysis in Miglin[^1], the trial judge concluded that the appellant had established a material change in circumstances subsequent to the separation agreement but that, based on the principles set out in s. 15.2 of the Divorce Act, and considering the objective of finality reflected in the separation agreement, in all of the circumstances, no order for support was justified.

[8] Although the trial judge did not have the benefit of the Supreme Court of Canada’s decision in Miglin, in my view, her careful and extensive findings are dispositive of the issues on appeal.

[9] Stage one of the Miglin analysis requires consideration of whether the circumstances under which the agreement was negotiated and executed were satisfactory and whether, at the time it was created, the agreement was in substantial compliance with the Divorce Act, in order to determine whether there is any reason to “discount” the separation agreement. Substantial compliance with the Divorce Act refers not only to the spousal support considerations contained in s. 15.2 of the Divorce Act, but also to the Act’s more general objectives of certainty, finality, and autonomy.[^2]

[10] In the early part of her reasons, the trial judge reviewed the circumstances under which the separation agreement was negotiated. The trial judge noted that both parties were independently represented by counsel and, in particular, that following the appellant’s return to Canada in 1992, “[t]here was no direct communication between the parties and all communications between them occurred through their counsel.” [^3]

[11] In addition, relying on evidence that the parties had exchanged sworn financial statements, that the couple’s two major assets were evaluated and included in the financial statements, and that the respondent had given a direction and authorization to his accountants to disclose his financial circumstances to appellant’s counsel which appeared to have been pursued, the trial judge found that “at the time that the Agreement was entered into, both parties had available to them full disclosure of the other party’s financial circumstances.” [^4]

[12] Later, at paragraph 86 of her reasons, the trial judge considered the extent to which the agreement complied, at the time it was created, with the objectives in s. 15.2 of the Divorce Act and concluded:

On the facts of this case, I am satisfied that the interim Agreement of 1988, together with the Separation Agreement of 1992 made by the parties and in the context of their final property division, addressed the principles outlined in section 15.2 of the Divorce Act. The respective economic advantages and disadvantages to the spouses were recognized. The financial consequences arising from the primary childcare function taken on by Ms. Marks during the marriage were specifically addressed. After the separation, Mr. Tokarewicz took on this function together with his exclusive financial responsibility for the care of the children so that Ms. Marks could pursue her medical studies. The spousal support that Ms. Marks received at the end of the marriage for a total of five and one-half years, together with the cash payments that she received in the property settlement, addressed, in a substantial and reasonable way, the economic hardship of Ms. Marks arising from the breakdown of the marriage. It certainly provided her with all of the financial assistance required to allow her to qualify to become a medical doctor and, in that way become self-sufficient. It is evident … that the parties believed … that Ms. Marks’ self-sufficiency through her qualification as a medical doctor was practicable. The finality of the Agreement supports this conclusion.

[13] Finally, in paragraph 87 of her reasons, the trial judge found that the terms of the spousal support release reflected “the parties’ clear and unequivocal intention to insulate the Agreement from review or variation”.

[14] I find no merit in the appellant’s submission that the separation agreement should be discounted under stage one of the Miglin analysis. In my view, the trial judge’s findings amply demonstrate that there is no basis for doing so and the appellant failed to identify any reason for interfering with those findings.

[15] Stage two of the Miglin analysis requires an assessment “of the extent to which enforcement of the agreement still reflects the original intention of the parties and the extent to which it is still in substantial compliance with the objectives of the Act.”[^5] In my view, the findings that led the trial judge to conclude that a support order was not justified thoroughly address this issue.

[16] In accordance with this court’s decision in Miglin, the trial judge began her analysis of whether a support order should be made by determining whether there had been a material change in circumstances. At paragraphs 76 and 78 of her reasons, she concluded:

…the parties did not reasonably contemplate the fact that Ms. Marks would not obtain her qualification to practice medicine in the time provided in the Agreement.

…I am satisfied that, had it been known to the parties in December 1991 that Ms. Marks financial difficulties, difficulties that materialized almost immediately after the Separation Agreement was signed, would prevent her from completing the final stage of her medical qualification, there would have been a different result in the terms of the Agreement.

[17] Next, the trial judge considered whether a support order is justified under the principles set out in s. 15.2 of the Divorce Act. As already noted, at paragraph 86 of her reasons, the trial judge concluded that, at the time it was signed, the agreement “addressed the principles outlined in section 15.2”. Importantly, for the purposes of the stage two Miglin analysis, the trial judge did not limit her consideration to the principles set out in s. 15.2 of the Divorce Act. Rather, as already noted, at paragraph 87 of her reasons, she also considered whether the separation agreement demonstrated the objective of finality and concluded that the separation agreement displayed a clear intention that it be final.

[18] The trial judge then summarized the chronology of events following the appellant’s return to Canada in 1994. In addition to the matters already referred to, she noted that the appellant took no action to seek a review of the separation agreement when she returned to Canada but rather attempted to become self-sufficient through other employment. Significantly, at paragraph 89 of her reasons, the trial judge found that the appellant’s health problems are not preventing her from working and that “to a significant degree, [the appellant’s] present circumstances arose as a result of choices and decisions that she alone made[emphasis added].” The trial judge then concluded at paragraph 90 of her reasons:

To seek the supervisory jurisdiction of the court to award spousal support some seven years and five months after the expiration of the time limit for her spousal support is, on the facts of this case, too long. I am persuaded that to grant such relief would cause prejudice to [the respondent] despite his clear and evident ability to pay and [the appellant’s] palpable need.

[19] Applying this court’s analysis in Miglin, the trial judge determined that there had been a material change in circumstances sufficient to trigger an inquiry concerning whether a support order should be made. In doing so she specifically addressed the question of whether the change she relied on was reasonably anticipated by the parties. In reaching a decision, she recognized that, in the circumstances which existed at the time of trial, the original intentions of the parties as reflected in the separation agreement represented conflicting objectives, namely autonomy, finality and certainty versus a plan for the equitable resolution of the financial and property issues arising from the marriage and its breakdown, including a plan for the appellant to achieve self sufficiency. Importantly for the purposes of the stage two Miglin analysis, in determining whether a support order should be made, the trial judge assessed the relative weight to be afforded to those objectives at the time of trial in light of all of the intervening events. In effect, the trial judge assessed “the extent to which enforcement of the agreement still reflects the original intention of the parties and the extent to which it is still in substantial compliance with the objectives of the Act”.

[20] Although the trial judge did not have the benefit of the Supreme Court of Canada’s reasons in Miglin, in my view, she thoroughly canvassed the factors relevant to the stage two Miglin analysis and determined the issue of whether a support order should be made in a manner consistent with that analysis. I see no basis for interfering with her conclusion.

[21] The appeal is therefore dismissed with costs on a partial indemnity basis fixed in the amount of $8,794 inclusive of disbursements and applicable G.S.T.

Released: January 15, 2004 “DD”

“Janet Simmons J.A.”

“I agree Doherty J.A.”

“I agree J. C. MacPherson J.A.”

[^1]: (2001), 2001 ONCA 8525, 53 O.R. (3d) 641 (C.A.) [^2]: [2003] SCC 24 at paras. 80, 84, and 85. [^3]: At para. 34. [^4]: At para. 48. [^5]: [2003] SCC 24 at para. 87. See also paras. 88 to 91.