G. (L.) v. B. (G.)

G. (L.) v. B. (G.)
Collection
Supreme Court Judgments
Date
1995-09-21
Report
[1995] 3 SCR 370
Case number
23629
Judges
La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank
On appeal from
Quebec
Subjects
Family law
Notes
SCC Case Information: 23629
Decision Content
G. (L.) v. B. (G.), [1995] 3 S.C.R. 370
L.G. Appellant
v.
G.B. Respondent
Indexed as: G. (L.) v. B. (G.)
File No.: 23629.
1995: March 2; 1995: September 21.
Present: La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ.
on appeal from the court of appeal for quebec
Divorce ‑‑ Support ‑‑ Variation ‑‑ De facto union ‑‑ Separation agreement incorporated in divorce judgment providing for payment of support to wife ‑‑ Agreement concluded by parties at time when to husband's knowledge wife was seeing friend with whom she now cohabits ‑‑ Whether change sufficient to justify varying support ‑‑ To what extent court's discretion limited by agreement ‑‑ Divorce Act, R.S.C., 1985, c. 3 (2nd Supp .), ss. 15 , 17 .
Divorce ‑‑ Support ‑‑ Variation ‑‑ Separation agreement incorporated in divorce judgment providing for payment of child support ‑‑ Agreement concluded by parties when child was a minor, whereas he is now married and independent ‑‑ Whether change sufficient to justify cancelling child support ‑‑ Divorce Act, R.S.C., 1985, c. 3 (2nd Supp .), ss. 15 , 17 .
The parties were married in 1960 and divorced in 1986. The divorce judgment, rendered pursuant to the 1985 Divorce Act , ratified an agreement on corollary relief entered into between the parties. That agreement provided inter alia that the respondent would pay the appellant $2,600 a month as spousal support and $100 a month for the minor child. This spousal support would not be reduced unless the appellant earned wages of more than $15,000 a year, in which case it would be reduced by the amount of the excess. At the time this agreement was entered into the appellant was seeing a friend with whom she had been cohabiting since May 1989. In July of that year the respondent, pursuant to s. 17 of the 1985 Divorce Act , filed an application to vary the corollary relief. In this application he sought (1) cancellation of the child support, as the child had been living with him since the divorce; (2) a declaration that the appellant was financially self‑sufficient, and (3) cancellation of the spousal support payable to the appellant. The evidence disclosed that during the marriage the appellant looked after the house and their three children. She also contributed to the activities of the respondent's business. However the appellant, who is now 53 years old, is still not in the labour market. Her new companion pays her between $1,000 and $1,300 a month and lent her $45,000 for the purchase of a condominium. They share all other common expenses. The Superior Court dismissed the applications to quash the support orders. The Court of Appeal, relying on the "presumption of self‑sufficiency", according to which the recipient of spousal support who is living in a de facto union has the burden of showing that, notwithstanding the cohabitation, she still needs the support, reduced the support payable to the appellant to $1,250 a month. It also cancelled the child support from the date on which the application to vary the corollary relief was filed.
Held: The appeal should be allowed.
Per Sopinka, Cory, McLachlin and Iacobucci JJ.: Variation of support orders is governed by s. 17 of the 1985 Divorce Act and the test developed in Willick applies. For a support order to be varied under s. 17 , there must be a material change of circumstances, that is, a change that, if known at the time, would likely have resulted in different terms. If the matter which is relied on as constituting a change was known at the relevant time it thus cannot be relied on as the basis for variation. Here, the trial judge found that, at the time of the agreement, the respondent knew that the appellant was "seeing" a third party and that it was foreseeable that they would cohabit. In view of this finding, the trial judge correctly concluded that there was no material change of circumstances. There was no basis in fact or law for the Court of Appeal to reverse this conclusion. This is not an appropriate case to review the application of Pelech, Richardson and Caron to the support provisions of the 1985 Divorce Act .
Since the child is now married and independent, the conditions for variation exist with respect to the support payable for him. This support order should be cancelled from the date of the hearing of this appeal.
Per La Forest, L'Heureux‑Dubé and Gonthier JJ.: Since the question at issue must be considered in light of the principles stated in the 1985 Divorce Act , the criteria set out in Pelech, Richardson and Caron, which were rendered in the context of the provisions and philosophy of the 1968 Divorce Act , are inapplicable. The 1985 Act moved away from the tendency favouring a "clean break" which a majority of courts had adopted under the 1968 Act and emphasized the substantive rather than formal equality of the spouses in the marriage and at the time of the divorce. The 1985 Act thus rejected the presumption of economic self‑sufficiency and substituted for it a number of criteria that would take into account the advantages and disadvantages to spouses accruing from the marriage or its breakdown. Without completely departing from the objective of economic self‑sufficiency, the 1985 Act underlined that this objective can only be pursued "in so far as practicable".
For the initial support order to be varied under the 1985 Divorce Act , there must be a sufficient change between the parties to justify variation, as provided by s. 17(4) of that Act. The test set out in Willick in connection with an application to vary support for children applies mutatis mutandis to the variation of spousal support. Once the sufficiency of a change has been established, the court must next determine the extent of the variation and to do so it generally has to make an assessment of the entirety of the present circumstances of the parties. If they have concluded an agreement it must assess the agreement in light of the factors and objectives that govern spousal support under ss. 15(5) , 15(7) , 15(8) , 17(4) , 17(7) and 17(8) . At the time of divorce the agreement is only one of the factors listed in s. 15(5) that should be taken into account in assessing inter alia the duration and amount of spousal support. The four objectives mentioned in s. 15(7) must also be considered. Additionally, s. 15(5) makes no mention of the necessity of a causal connection. In so far as a duty of support results from marriage, the notion of causality can only be dealt with in accordance with the various principles and objectives set out in the 1985 Act. Although s. 17, which governs variation orders, restates the general provisions applicable to a support order without specifically mentioning the obligation to take into account agreements concluded between the parties, it cannot be concluded that such agreements should be ignored when applications to vary support orders are made, especially when they were intended to be a final settlement and were ratified by the original support order, an order which must be taken into account. The weight to be given to these agreements will depend, first, on the extent to which the agreement reflects the principles and objectives stated in s. 17 , and second, on the scope and nature of the change which has occurred, taking into account all the circumstances of the parties. The more the agreement or support order takes into account the various objectives of the 1985 Act, especially that of promoting an equitable distribution of the economic consequences of the marriage and its breakdown, the more likely it will be to influence the outcome of the variation application. Under the 1985 Act courts accordingly retain a discretionary power the exercise of which will depend on the particular facts of each case and which will be exercised in accordance with the factors and objectives mentioned in the Act. The existence of an agreement, final or otherwise, should not have the effect of precluding such an analysis.
In the case at bar the evidence discloses no change that would be sufficient to justify variation of the support order respecting the wife. The fact that the appellant is living with a companion certainly does not mean that she can be presumed to be financially independent. While the 1985 Divorce Act deals with the economic self‑sufficiency of the former spouses, it is only as one of the many objectives that must be met by the support order. What is more, this concept of economic independence is only favoured "in so far as practicable". Further, if the support order provides that spousal support will cease as soon as the former spouse attains economic self‑sufficiency, such self‑sufficiency is not to be presumed: it must be proven. Such evidence has not been presented. First, the agreement, made and ratified by the support order initially rendered, was drawn up when the appellant was seeing the person who foreseeably would become her companion in the not too distant future. Second, the possibility that the appellant would become financially self‑sufficient and rejoin the labour market, in view of her age, her absence from the labour market for many years and, presumably, the lack of any adequate professional training in a competitive labour market, was entirely illusory, quite apart from the fact that she was unable to accumulate retirement pension and enjoy other benefits associated with employment. In short, given the current Act and the evidence, including the initial support order and the agreement entered into between the parties, which was intended to be final, the Court of Appeal was not justified in concluding that the appellant had attained adequate financial self‑sufficiency to relieve the respondent of part of his support obligation as stipulated in the support order. Most importantly, it could not start from a presumption of financial self‑sufficiency which is not supported by either the 1985 Act or its interpretation.
So far as the child support paid to the former wife is concerned, since the child is now married and self‑supporting, which was not the case before the trial judge and in the Court of Appeal, the nature and magnitude of this change are such that the child support should be cancelled, from the date the appeal at bar was heard.
Cases Cited
By Sopinka J.
Applied: Willick v. Willick, [1994] 3 S.C.R. 670; referred to: Pelech v. Pelech, [1987] 1 S.C.R. 801; Richardson v. Richardson, [1987] 1 S.C.R. 857; Caron v. Caron, [1987] 1 S.C.R. 892.
By L'Heureux‑Dubé J.
Applied: Willick v. Willick, [1994] 3 S.C.R. 670; Moge v. Moge, [1992] 3 S.C.R. 813; not followed: Pelech v. Pelech, [1987] 1 S.C.R. 801; Richardson v. Richardson, [1987] 1 S.C.R. 857; Caron v. Caron, [1987] 1 S.C.R. 892; referred to: Corkum v. Corkum (1988), 14 R.F.L. (3d) 275; Snyder v. Snyder (1987), 10 R.F.L. (3d) 144; Schroeder v. Schroeder (1987), 11 R.F.L. (3d) 413; Williams v. Williams (1988), 13 R.F.L. (3d) 321; Willms v. Willms (1988), 14 R.F.L. (3d) 162; Droit de la famille‑‑382 (1988), 16 R.F.L. (3d) 379; Brody v. Brody (1990), 25 R.F.L. (3d) 319; Publicover v. Publicover (1987), 9 R.F.L. (3d) 308; Lynk v. Lynk (1989), 21 R.F.L. (3d) 337; Doncaster v. Doncaster (1989), 21 R.F.L. (3d) 357; Fisher v. Fisher (1989), 22 R.F.L. (3d) 225; Story v. Story (1989), 23 R.F.L. (3d) 225; Linton v. Linton (1990), 1 O.R. (3d) 1; Romanoff v. Romanoff (1992), 41 R.F.L. (3d) 433; Droit de la famille‑‑1567, [1992] R.J.Q. 931; Droit de la famille‑‑1688, [1992] R.J.Q. 2797; Bush v. Bush (1989), 21 R.F.L. (3d) 298; Messier v. Delage, [1983] 2 S.C.R. 401; Brockie v. Brockie (1987), 8 R.F.L. (3d) 302; Droit de la famille‑‑333, [1987] R.J.Q. 294.
Statutes and Regulations Cited
Divorce Act, R.S.C. 1970, c. D‑8 [formerly S.C. 1967‑68, c. 24], s. 11(1), (2).
Divorce Act, R.S.C., 1985, c. 3 (2nd Supp .), ss. 15(5) , (7) , (8) , 17(1) , (4) , (7) , (8) , (10) .
Authors Cited
Bailey, Martha J. "Pelech, Caron, and Richardson" (1989‑90), 3 C.J.W.L. 615.
Bala, Nicholas. "Domestic Contracts in Ontario and the Supreme Court Trilogy: `A Deal is a Deal'" (1988), 13 Queen's L.J. 1.
Canada. Law Reform Commission. Family Law. Ottawa: The Commission, 1976.
Canada. Department of Justice. Divorce Law In Canada: Proposals For Change. Ottawa: Department of Justice, 1984.
Davies, Christine. Family Law in Canada. Toronto: Carswell, 1984.
Duff, David G. "The Supreme Court and the New Family Law: Working through the Pelech Trilogy" (1988), 46 U.T. Fac. L. Rev. 542.
Durnford, John W., and Stephen J. Toope. "Spousal Support in Family Law and Alimony in the Law of Taxation" (1994), 42 Can. Tax J. 1.
Goubau, Dominique. "Une nouvelle ère pour la pension alimentaire entre ex‑conjoints au Canada" (1993), 72 Can. Bar Rev. 279.
Heeney, Thomas A. "The Application of Pelech to the Variation of an Ongoing Support Order: Respecting the Intention of the Parties" (1989), 5 C.F.L.Q. 217.
McDermid, D. R. "The Causal Connection Conundrum" (1989), 5 C.F.L.Q. 107.
McLeod, James G. Annotation (1987), 7 R.F.L. (3d) 225.
Neave, Marcia. "Resolving the dilemma of difference: A critique of `The Role of Private Ordering in Family Law'" (1994), 44 U.T.L.J. 97.
Payne, Julien D. "Further Reflections on Spousal and Child Support After Pelech, Caron and Richardson" (1989), 20 R.G.D. 477.
Payne, Julien D. "Spousal and Child Support After Moge, Willick and Levesque" (1995), 12 C.F.L.Q. 261.
Proudfoot, Patricia, and Karen Jewell. "Restricting Application of the Causal Connection Test: Story v. Story" (1990), 9 Can. J. Fam. L. 143.
Rogerson, Carol J. "Judicial Interpretation of the Spousal and Child Support Provisions of the Divorce Act, 1985 (Part I)" (1990‑91), 7 C.F.L.Q. 155.
Rogerson, Carol J. "The Causal Connection Test in Spousal Support Law" (1989), 8 Can. J. Fam. L. 95.
APPEAL from a judgment of the Quebec Court of Appeal, [1993] Q.J. No. 673, J.E. 93‑880 (sub nom. Droit de la famille‑‑1783), allowing in part the respondent's appeal from a decision of the Superior Court rendered on May 20, 1990, allowing in part his application to vary a support order. Appeal allowed.
Simon Lahaie, for the appellant.
George Artinian, for the respondent.
The reasons of La Forest, L'Heureux-Dubé and Gonthier JJ. were delivered by
1 L'Heureux‑Dubé J. ‑‑ This appeal concerns the variation of a support order made in a divorce judgment rendered pursuant to the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp .) (formerly S.C. 1986, c. 4). That judgment ratified an agreement on corollary relief entered into between the parties. The question at issue is to what extent the court's discretion is limited by such an agreement.
I. Facts
2 The appellant L.G. and the respondent G.B., 53 and 56 years old respectively, were married in 1960. Three children were born of the marriage. The two eldest, D. and B., had reached the age of majority when the divorce occurred. The youngest, F., was 12 years old and at boarding school at the time. The parties lived together for over 25 years during which the appellant looked after the maintenance and education of their three children, did the housework and also contributed to the activities of the respondent's business. The divorce took place on November 18, 1986.
3 The corollary relief agreement, signed between the parties beforehand, each with the assistance of independent legal counsel, contained the following stipulations. The parties would have joint custody of their minor son, the appellant having physical custody and the respondent visiting rights on the conditions specified therein. The respondent would pay the appellant $2,600 a month as spousal support and $100 a month for the minor child. The support was subject to indexing under art. 638 of the Civil Code of Quebec, S.Q. 1980, c. 39. The respondent would also pay all the schooling, clothing, recreational and school meal expenses of their minor son. Any tax deduction for the dependant minor child would benefit the respondent.
4 The agreement further provided that the spousal support payable to the appellant would not be reduced unless she earned wages of more than $15,000 a year. Any employment income over $15,000 would reduce the spousal support by the amount of the excess.
5 On the question of the division of property, the agreement stated that the appellant would retain the ownership of the furniture but that, by February 1, 1987 at the latest, she would leave the marital home and transfer its ownership to the respondent. In the meantime, and after the appellant's departure, the respondent would pay all real estate taxes, water rates and other charges of a similar nature affecting the marital residence, as well as major repairs, fire and liability insurance and mortgage. The respondent further agreed to pay as compensation for enrichment, in full and final settlement of the provisions of the marriage contract and in final settlement of any amount which may otherwise be owed to the appellant, excluding support, the sum of $120,000 without interest, payable in four equal instalments of $30,000 on February 1, 1987 and on December 1 of 1987, 1988 and 1989.
6 At the time this agreement was entered into, the appellant was seeing a friend with whom she had been cohabiting since May 1989. The respondent had also begun cohabiting with a new companion.
7 In July 1989, the respondent, pursuant to s. 17 of the 1985 Divorce Act , filed an application to vary the corollary relief, seeking (i) legal custody of the child, a minor at the time (now married), (ii) cancellation of the child support of $100 a month, (iii) a declaration that the appellant was financially self‑sufficient, and (iv) cancellation of the spousal support payable to the appellant.
8 The evidence disclosed that the appellant, who was 45 years old at the time of divorce, is still not in the labour market and that her new companion pays her between $1,000 and $1,300 a month and lent her $45,000 for the purchase of a condominium. They share all other common amenities.
9 The Quebec Superior Court allowed the respondent's application in part and, on an appeal by the respondent, the Court of Appeal allowed the appeal in part: hence the appeal at bar.
II. Judgments
Superior Court
10 With respect to the corollary relief relating to the parties' son, then living with his father, Benoit J. varied custody only to the extent of awarding physical custody to the respondent, and upheld the order for $100 a month payable to the appellant for the child.
11 The trial judge stated that the question of spousal support must be looked at in light of all the evidence as well as the agreement concluded between the parties. After noting the respondent's admission as to his capacity to pay as well as the fact that there had been no unfavourable change in his financial situation since the divorce, he concluded:
[translation] The [respondent] has not set any term to his obligation to pay the indexable spousal support nor to the [appellant's] right to receive this alimony and to be able to earn an indexable salary of $15,000.00 without a reduction of the alimony. Clearly, the [respondent] cannot be permitted to alter the agreement which was freely entered into four years ago. However, the Court may later on conclude that the [appellant] has lost her entitlement to the present alimony because she has failed to discharge her responsibilities.
12 Considering the effect of the appellant's new circumstances, the judge concluded that her cohabitation with a third party was foreseeable at the time of divorce and the spousal support in the agreement would ordinarily have taken this into account. In spite of this, there was no stipulation reducing or cancelling the support in such circumstances. Furthermore, as the relationship offered no guarantee of any permanence, it could not secure the appellant's financial independence.
13 The application was therefore allowed in part, solely as to the physical custody of the then minor child.
Court of Appeal (per Vallerand, Baudouin and Fish JJ.A.), J.E. 93‑880
14 Fish J.A., writing for the court, concluded that the appellant's new union [translation] "[had] achieved sufficient stability for . . . the support obligations imposed on the ex‑husband at the time of the divorce to be reassessed". The Court of Appeal considered that the agreement entered into between the parties was not a final settlement of all obligations pertaining to the marriage and its breakdown. Relying on the "presumption of self‑sufficiency", according to which the recipient of spousal support who is living in a de facto union has the burden of showing that, notwithstanding the cohabitation, she still needs the support, the Court of Appeal reduced the amount payable to the appellant to $1,250 a month as of April 20, 1993, the date of judgment. It cancelled the child support of $100 a month retroactive to July 24, 1989. Only these two aspects of the support order are at issue before us.
III. Applicable Legislation
15 The case at bar is governed by the 1985 Divorce Act . Although ss. 17(1), 17(4) and 17(7) are directly applicable here, ss. 15(5) and 15(7) and 17(8) of the Act are also relevant:
15. . . .
(5) In making an order under this section, the court shall take into consideration the condition, means, needs and other circumstances of each spouse and of any child of the marriage for whom support is sought, including
(a) the length of time the spouses cohabited;
(b) the functions performed by the spouse during cohabitation; and
(c) any order, agreement or arrangement relating to support of the spouse or child.
(7) An order made under this section that provides for the support of a spouse should
(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above the obligation apportioned between the spouses pursuant to subsection (8);
(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self‑sufficiency of each spouse within a reasonable period of time.
17. (1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively,
(a) a support order or any provision thereof on application by either or both former spouses; or
(b) a custody order or any provision thereof on application by either or both former spouses or by any other person.
(4) Before the court makes a variation order in respect of a support order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of either former spouse or of any child of the marriage for whom support is or was sought occurring since the making of the support order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration that change.
(7) A variation order varying a support order that provides for the support of a former spouse should
(a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown;
(b) apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above the obligation apportioned between the former spouses pursuant to subsection (8);
(c) relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self‑sufficiency of each former spouse within a reasonable period of time.
(8) A variation order varying a support order that provides for the support of a child of the marriage should
(a) recognize that the former spouses have a joint financial obligation to maintain the child; and
(b) apportion that obligation between the former spouses according to their relative abilities to contribute to the performance of the obligation.
IV. Analysis
16 The real question at the heart of this case concerns the effect of an agreement or consent order as to corollary financial relief, on a subsequent application to vary spousal support pursuant to the 1985 Divorce Act . Each party relied on Pelech v. Pelech, [1987] 1 S.C.R. 801, Richardson v. Richardson, [1987] 1 S.C.R. 857, and Caron v. Caron, [1987] 1 S.C.R. 892 ("the trilogy").
17 In particular, the appellant alleged that the agreement entered into between her and her former husband is final and that, in view of the trilogy, the Court of Appeal erred in varying the support order based on that agreement. For his part, the respondent maintained that the agreement in question, unlike those which were the subject of the trilogy, is not a final one and, in any case, a fundamental change (having no causal connection with the marriage) has taken place in the situation of the appellant and their son which provides a basis for the remedy sought, in accordance with case law developed subsequent to the trilogy.
18 This leads me to review the trilogy, which was rendered in the context of the provisions and philosophy of the Divorce Act, S.C. 1967‑68, c. 24 (later R.S.C. 1970, c. D‑8).
A. The 1968 Divorce Act
19 The relevant provisions of the 1968 Divorce Act dealing with support orders and their variation (as reproduced in the R.S.C. 1970) read as follows:
11. (1) Upon granting a decree nisi of divorce, the court may, if it thinks it fit and just to do so having regard to the conduct of the parties and the condition, means and other circumstances of each of them, make one or more of the following orders, namely:
(a) an order requiring the husband to secure or to pay such lump sum or periodic sums as the court thinks reasonable for the maintenance of
(i) the wife,
(ii) the children of the marriage, or
(iii) the wife and the children of the marriage;
(b) an order requiring the wife to secure or to pay such lump sum or periodic sums as the court thinks reasonable for the maintenance of
(i) the husband,
(ii) the children of the marriage, or
(iii) the husband and the children of the marriage; and
(c) an order providing for the custody, care and upbringing of the children of the marriage.
(2) An order made pursuant to this section may be varied from time to time or rescinded by the court that made the order if it thinks it fit and just to do so having regard to the conduct of the parties since the making of the order or any change in the condition, means or other circumstances of either of them. [Emphasis added.]
20 It should be borne in mind here, as Professor C. Davies (Family Law in Canada (1984), at p. 328) has pointed out, that before the 1968 Act was enacted, divorce laws in Canada were far from uniform.
21 The main purpose of the 1968 Act was, first, to standardize divorce throughout Canada and to provide additional grounds for divorce. Further, the statute entitled courts to make corollary orders for support and custody upon granting divorce. Support orders had to take into account the conduct as well as the condition, means and other circumstances of the parties. The Law Reform Commission of Canada described the law of support in the following terms:
Before that time [the 1968 Act], the right to maintenance on divorce could only be lost as a result of a judicial determination, based on known, settled and pre‑existing rules of law, that the claimant spouse had committed a matrimonial offence. This was arbitrary, but certain. The 1968 Act changed the law to allow the court to award maintenance in any event, but the result has been a maintenance rule that is both arbitrary and uncertain. The Act now requires that the award be based on the court's evaluation of conduct in addition to a consideration of the spouses' condition, means and circumstances. This means that the financial implications of a maintenance claimant's marital economic experience are always subject to the uncertainty of a behavioural evaluation according to whatever criteria a judge may find compelling. The proper standard of conduct is not defined by law, nor is the nature of the relationship between conduct and financial rights. Both these matters are, according to one appellate court decision, "within the entire and absolute discretion" of the trial judge. These inherently subjective standards lack the certainty that is essential if justice is to be done in determining the economic consequences of marriage breakdown, where the outcome will often represent the fruits of the labour of the spouses' adult lifetimes.
(Family Law (1976), at pp. 39‑40.)
22 What was not spelled out in the 1968 Act was quickly made up by the courts, which adopted the concept of a "clean break", namely the marked tendency of the courts to assume that economic self‑sufficiency of either spouse could and should be achieved as soon as possible after the divorce. In this context, spousal support could only be of a temporary nature, i.e. a means of enabling its recipient, generally the wife, to go into or return to the labour market, thus allowing the parties to rebuild their separate lives.
23 This is the context in which Pelech, Richardson and Caron were decided. Although the judgments were rendered in 1987, after the coming into force of the current Divorce Act , they dealt with consensual support orders made pursuant to the 1968 Act. Pelech and Caron involved motions to vary support orders based on s. 11(2) of that Act, while Richardson concerned a support order based on s. 11(1) . In all three cases a separation agreement was entered into between the parties.
24 According to Wilson J., writing for the majority in Pelech (at pp. 851‑53):
Absent some causal connection between the changed circumstances and the marriage, it seems to me that parties who have declared their relationship at an end should be taken at their word. They made the decision to marry and they made the decision to terminate their marriage. Their decisions should be respected. They should thereafter be free to make new lives for themselves without an ongoing contingent liability for future misfortunes which may befall the other.
. . .
Where parties, instead of resorting to litigation, have acted in a mature and responsible fashion to settle their financial affairs in a final way and their settlement is not vulnerable to attack on any other basis, it should not, in my view, be undermined by courts concluding with the benefit of hindsight that they should have done it differently.
25 This restates the gist of the philosophy underlying the 1968 Act as formulated by a majority of the courts of that time.
26 La Forest J., dissenting in Richardson, supra, took a completely different approach at pp. 878‑79:
To allow separation agreements the kind of compelling weight argued for in this case is effectively to rewrite the Act so as to provide that where such an agreement exists, the trial judge's discretion is solely to vary the agreement in those cases only where radical or, to use the expression employed in some cases, catastrophic changes have occurred since it was made.
. . .
I am not, as I mentioned earlier, saying that a separation agreement is not an important fact to be considered by the judge in exercising his or her discretion. Such an agreement falls within the factors "conduct of the parties" or "other circumstances" mentioned in s. 11(1). It is obviously better for the parties to settle their affairs whenever possible. As well, settlement by the parties assists the courts in performing their function; it can save time and costs. Still, the latter considerations should not be used as an excuse to displace the court's function. Consequently, as many courts have stated, while such an agreement should not lightly be disturbed, at the end of the day, the judge cannot be bound by it.
27 As discussed in Moge v. Moge, [1992] 3 S.C.R. 813, both the case law and academic writers were not long to react to the trilogy. At the outset, Professor J. G. McLeod held the view that the rules set out in the trilogy should be applied to any non‑consensual support order, even in the absence of a final agreement:
The reasons [of Wilson J.] are also likely to affect the granting of support in the absence of a settlement agreement. The reasons of Wilson J. in Pelech, Richardson and Caron confirm a basic support model. In order to obtain support, a claimant must prove:
(1)need;
(2)that the need arises for a legally acceptable reason; and
(3) that the need/inability is causally connected to the marriage. [Emphasis added.]
(Annotation (1987), 7 R.F.L. (3d) 225, at p. 232.)
See also D. R. McDermid in "The Causal Connection Conundrum" (1989), 5 C.F.L.Q. 107, at p. 119.
28 Some courts adopted this approach, not without some hesitation in certain cases (Corkum v. Corkum (1988), 14 R.F.L. (3d) 275 (Ont. H.C.)), but more resolutely in others: Snyder v. Snyder (1987), 10 R.F.L. (3d) 144 (N.S.C.A.); Schroeder v. Schroeder (1987), 11 R.F.L. (3d) 413 (Man. Q.B.); Williams v. Williams (1988), 13 R.F.L. (3d) 321 (Nfld. S.C.); Willms v. Willms (1988), 14 R.F.L. (3d) 162 (Ont. C.A.); Droit de la famille‑‑382 (1988), 16 R.F.L. (3d) 379 (Que. C.A.), and Brody v. Brody (1990), 25 R.F.L. (3d) 319 (Alta. Q.B.).
29 Other courts confined the trilogy to consensual situations: Publicover v. Publicover (1987), 9 R.F.L. (3d) 308 (N.S. Fam. Ct.); Lynk v. Lynk (1989), 21 R.F.L. (3d) 337 (N.S.C.A.); Doncaster v. Doncaster (1989), 21 R.F.L. (3d) 357 (Sask. C.A.); Fisher v. Fisher (1989), 22 R.F.L. (3d) 225 (Ont. Div. Ct.); Story v. Story (1989), 23 R.F.L. (3d) 225 (B.C.C.A.); Linton v. Linton (1990), 1 O.R. (3d) 1 (C.A.); Romanoff v. Romanoff (1992), 41 R.F.L. (3d) 433 (Man. Q.B.); Droit de la famille‑‑1567, [1992] R.J.Q. 931 (C.A.), and Droit de la famille‑‑1688, [1992] R.J.Q. 2797 (C.A.).
30 In Bush v. Bush (1989), 21 R.F.L. (3d) 298 (Ont. U.F.C.), Judge Steinberg summarized the state of the law on the trilogy as follows (at pp. 302‑3):
The trilogy has been widely reviewed and judicially interpreted in differing ways and the present state of the law of spousal maintenance is somewhat unclear.
Some courts have concluded that the causal connection test should be given a broad application in all spousal support applications, whether or not the actions are by way of an initial application or application to vary, whether or not there were prior existing agreements regarding maintenance as between the spouses, and whether or not the proceedings are under the Divorce Act , 1985, or the Family Law Act. Other courts have attempted to apply the ratio in the trilogy in a much narrower manner. My view tends towards the latter approach.
It should be noted that the decisions rendered in the trilogy were decided under the now repealed Divorce Act , 1968. The present application is under the Divorce Act , 1985, which contains criteria for the granting or varying of maintenance orders, which did not exist under the old legislation. In that context, I agree with the views of my colleague Judge Mendes da Costa that the principles in the trilogy should not be applied so as to "read into legislation words that are not there": see Andreeff v. Andreeff, Ontario Unified Family Court, 9th May 1989, at p. 11 (now reported 20 R.F.L. (3d) 277 at 285).
31 One must say that, prior to the trilogy, the state of the law was no clearer. Describing the effect of the more or less incoherent approach taken by courts Chouinard J., in Messier v. Delage, [1983] 2 S.C.R. 401, said the following (at p. 409):
I cannot state the matter any better than Judge Rosalie S. Abella of the Provincial Court, Family Division, for the judicial district of York in Toronto, did in an article entitled "Economic Adjustment On Marriage Breakdown: Support", (1981) 4 Family Law Review 1. She wrote the following at p. 1:
To try to find a comprehensive philosophy in the avalanche of jurisprudence which is triggered by the Divorce Act (RSC 1970 c D‑8) and the various provincial statutes is to recognize that the law in its present state is a Rubik's cube for which no one yet has written the Solution Book. The result is a patchwork of often conflicting theories and approaches.
32 For its part, academic commentary has generally been very critical of the trilogy. The commentator T. Heeney objected to the broad interpretation given to it:
In the trilogy, the Supreme Court of Canada has more or less stated that what is done should not be undone. Finality is the pervasive judicial objective that runs through Pelech, Caron and Richardson. . . . Rarely, however, has a case been more misunderstood than Pelech, and rarely have courts been so willing to extract principles out of context, and apply them to fact situations where they simply do not fit. The quest for finality has led judges to cast in stone agreements that were never intended to be permanent and inflexible, and to impose constraints of finality on ongoing maintenance relationships, where finality is impossible. [Footnotes omitted.]
("The Application of Pelech to the Variation of an Ongoing Support Order: Respecting the Intention of the Parties" (1989), 5 C.F.L.Q. 217, at p. 217.)
33 Similarly, Professor C. J. Rogerson criticized the effect of the causal connection as contemplated in Pelech:
The current causal connection test . . . is more aligned with the clean break model of spousal support. Just as the clean break theory arbitrarily deems self‑sufficiency to exist, the causal link theory arbitrarily deems the causal link to have been broken, with the result that the claimant spouse is deemed responsible for his or her own support. Instead of presuming, until strong evidence to the contrary is led, a causal connection between a spouse's inability to meet his or her needs and what went on during the marital relationship, the causal link test presumes the opposite.
("The Causal Connection Test in Spousal Support Law" (1989), 8 Can. J. Fam. L. 95, at p. 122.)
34 Professor N. Bala, for his part, cautions:
. . . while the promotion of finality is desirable, this should not be used as a justification for precluding the judicial overriding of unfair agreements. Rather than discouraging the parties from entering into such agreements, knowledge that the courts may intervene to set aside unfair agreements should encourage the parties to initially enter into agreements which are fair. [Emphasis added.]
("Domestic Contracts in Ontario and the Supreme Court Trilogy: `A Deal is a Deal'" (1988), 13 Queen's L.J. 1, at p. 61.)
See also, inter alia, D. G. Duff, "The Supreme Court and the New Family Law: Working through the Pelech Trilogy" (1988), 46 U.T. Fac. L. Rev. 542; J. D. Payne, "Further Reflections on Spousal and Child Support After Pelech, Caron and Richardson" (1989), 20 R.G.D. 477; M. J. Bailey, "Pelech, Caron, and Richardson" (1989‑90), 3 C.J.W.L. 615; P. Proudfoot and K. Jewell, "Restricting Application of the Causal Connection Test: Story v. Story" (1990), 9 Can. J. Fam. L. 143; C. J. Rogerson, "Judicial Interpretation of the Spousal and Child Support Provisions of the Divorce Act, 1985 (Part I)" (1990‑91), 7 C.F.L.Q. 155; M. Neave, "Resolving the dilemma of difference: A critique of `The Role of Private Ordering in Family Law'" (1994), 44 U.T.L.J. 97.
35 I must refer here to the dissent by La Forest J., which Professors J. W. Durnford and S. J. Toope underline as follows:
La Forest J penned a powerful dissenting opinion in which he challenged the analysis in Pelech by measuring its effects in a case such as Richardson. According to La Forest J,