DATE: 20050422
DOCKET: C42521
COURT OF APPEAL FOR ONTARIO
CATZMAN, MACPHERSON and CRONK JJ.A
B E T W E E N :
VICKIE LYNN ARCHER
Albert D. Ferranti
for the respondent
Applicant (Respondent)
- and -
SYDNEY HAROLD ARCHER
Eric D. McCooeye
for the appellant
Respondent (Appellant)
Heard: March 15, 2005
On appeal from the judgment of the Superior Court of Justice (Divisional Court) (Justices Edward F. Then, John H. Brockenshire and Janet M. Wilson) dated March 26, 2004, reported at [2004] CarswellOnt 4957, allowing the appeal from the judgment of Justice Ian S. McMillan of the Superior Court of Justice dated October 19, 2001, reported at [2001] CarswellOnt 6100.
MACPHERSON J.A.:
A. INTRODUCTION
[1] At the conclusion of a three‑day trial in Sault Ste. Marie in the early autumn of 2001, Justice Ian McMillan ordered Sydney Archer to pay spousal support of $800 per month to Vickie Archer. The duration of these payments was limited to three years, concluding in September 2004.
[2] The Divisional Court allowed an appeal from this judgment on the basis that the trial judge failed to consider relevant uncontradicted evidence and misapprehended other evidence. The Divisional Court ordered that the spousal support order of $800 per month be continued on an indefinite basis, but subject to “review”, rather than termination, on September 1, 2004.
[3] Sydney Archer’s appeal of the Divisional Court’s order raises, potentially, several issues, including whether the Divisional Court erred in its analysis of the trial judge’s treatment of the evidence and, if it did not, whether it erred in imposing a spousal support order of indefinite duration, subject to “review” on a specific date.
B. FACTS
(1) The parties and the events
[4] The appellant, Sydney Archer (the “husband”), and the respondent Vickie Archer (the “wife”), began living together in 1987 and married in April 1988. They separated in March 1999. On May 27, 1999, the wife obtained a spousal support order of $800 per month. The parties reconciled in August 1999 and, on consent, spousal support was terminated. The parties separated, permanently, in October 1999. There are no children of the marriage. Through the years of their marriage, the husband had a steady job as a steelworker at Algoma Steel in Sault Ste. Marie. His gross annual income in 2000 was $43,438.56.
[5] The wife completed high school in 1985 at Alexander Henry High School in Sault Ste. Marie, a school which accommodated developmentally delayed or challenged students.
[6] During her marriage, the wife pursued several educational programs and held a variety of employment positions, mostly part‑time. These were described by the trial judge in this fashion:
Commencing in or about the autumn of 1993, the Applicant enrolled herself in diploma programs at the local community college, that were intended to increase her potential to secure employment in the areas of home and child support worker. The courses were funded by the Respondent and by student loans. The Applicant did not complete any of the programs.
On a recent Resume, (Exhibit 8), the Applicant professes to hold a Canadian Red Cross “Home worker’s” certificate; a St. John Ambulance First Aid & CPR Certificate; a Smart Serve Certificate; an Algoma Health Unit Certificate; computer courses from Sault College of Applied Arts & Technology; and skills pertaining to the care of children and seniors.
The Applicant has, during her marriage, been employed briefly as a fund raiser, taxi service dispatcher, babysitter, housecleaner and residential canvasser.
[7] After the parties’ initial separation, the wife applied for disability benefits from the Ontario Disability Support Program. Her application was rejected on November 8, 1999, on the grounds that:
▪ the direct and cumulative effect of your impairment on your ability to attend to your personal care, function in the community and function in the workplace does not result in a substantial restriction in one or more of these activities of daily living,
▪ you do not have a substantial physical or mental impairment as defined in Section 4.(1) of the Ontario Disability Support Program Act.
[8] After the final separation, the wife, with the loyal and generous support of her mother, looked for employment, without success.
[9] On April 20, 1999, the wife made an application for, inter alia, spousal support and an equalization of net family property.
(2) The legal proceedings
[10] In relation to the issues of equalization and spousal support, a trial was held before McMillan J. on August 23, 24 and September 18, 2001.
[11] The trial judge ordered the husband to pay the wife $206 as an equalization payment. The husband did not appeal this component of the trial judge’s order.
[12] The trial judge also ordered the husband to pay the wife spousal support of $800 per month, effective October 1, 2001, but terminating three years later on September 1, 2004. He reasoned:
In the result, the court finds that the circumstances of this case necessitates a fixed term spousal support order. The Applicant is only 35 years of age and is capable of many productive years in the work place. She ought not to be encouraged to continue to simply do nothing with her life. The Applicant previously had an interest in expanding her education and skills as was demonstrated by her participation in various courses at Sault College over an extended period of time. As a witness, the Applicant was observed to be engaging, responsive to both counsel