[Indexed as: Elaschuk v. Elaschuk]
Margot Louise Elaschuk, Applicant (Respondent by Counter- Application (Respondent in Appeal) and Kenneth Peter Elaschuk, Respondent (Applicant by Counter-Application) (Appellant)
Ontario Divisional Court MacFarland, Then, Sharpe JJ.
Heard: October 15, 1998 Judgment: June 30, 1999 Docket: 581/97
Jacqueline M. Mills, for Applicant/Respondent by Counter-Application/Respondent in Appeal. Stanley V. Zuly, for Respondent/Applicant by Counter-Application/Appellant.
Endorsement. Per curiam:
[1] The parties were married October 3, 1964 and separated October 3, 1970. A Decree Nisi was granted January 16, 1975 by judgment of Hughes J.
[2] By consent Order of Madam Justice Boland made October 28, 1983, the spousal support was increased from $100 per month to $250 per month. At this point in time the applicant wife had been diagnosed with multiple sclerosis but was still employed full time.
[3] There is nothing in the language of the original judgment of Hughes J. nor in the variation Order of Boland J. which suggests that the parties viewed the support arrangement therein as final. To the contrary, the language of the decree specifically provides that the award is subject to "the further Order of the Court".
[4] In August 1991 the applicant wife became totally disabled. E. Macdonald J. concluded there had been a material change in circumstance - her total disability and inability to work full time - and we would not interfere with that finding.
[5] Mr. Zuly's primary argument is that the fact of marriage does not alone entitle one of the spouses to a pension for life. The recent decision of the Supreme Court of Canada in Bracklow v. Bracklow (1999), 44 R.F.L. (4th) 1 (S.C.C.) however, indicates that it may: see esp at paras. 46 to 48.
[6] It is clear from those reasons that the applicant wife is entitled to support - the record discloses that the marriage breakdown imposed a great disadvantage on her, her income was reduced, she had full custodial and most financial responsibility for the child of the marriage; she is in need and the respondent husband has the ability to pay.
[7] We would therefore dismiss the appeal with costs to the respondent wife fixed at $3,000 - the number to which counsel have agreed.
Appeal dismissed.