Willick v. Willick

Willick v. Willick
Collection
Supreme Court Judgments
Date
1994-10-27
Report
[1994] 3 SCR 670
Case number
23141
Judges
La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank
On appeal from
Saskatchewan
Subjects
Family law
Notes
SCC Case Information: 23141
Decision Content
Willick v. Willick, [1994] 3 S.C.R. 670
Lori Ann Willick Appellant
v.
Bryan Douglas Albert Willick Respondent
Indexed as: Willick v. Willick
File No.: 23141.
1994: March 16; 1994: October 27.
Present: La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ.
on appeal from the court of appeal for saskatchewan
Family law ‑‑ Divorce ‑‑ Support ‑‑ Variation ‑‑ Parties entering into separation agreement later incorporated into divorce judgment ‑‑ Appellant subsequently applying to vary amount of child support ‑‑ Extent to which court bound by original support order ‑‑ Whether conditions for granting variation order met ‑‑ Divorce Act, R.S.C., 1985, c. 3 (2nd Supp .), s. 17(4) .
The parties entered into a separation agreement in July 1989 pursuant to which the respondent, an airline pilot, agreed to pay the appellant $450 per month for each of their two children and $700 per month spousal support, subject to a 3 percent annual increase. The respondent was earning approximately $40,000 a year at the time, while the appellant's only income consisted of support payments and family allowance. By October 1989 the appellant was aware that the respondent's income had increased to approximately $5,000 a month, plus a monthly housing allowance of about $4,600. In November 1989 a divorce judgment was granted incorporating the support provisions of the separation agreement. Two years later the appellant applied for an order increasing the amount of child support. By then the respondent's gross income totalled over $154,000 a year. The chambers judge granted the application, increasing the child support order to $850 per month per child. The Court of Appeal allowed the respondent's appeal, holding that the conditions for a variation order under s. 17(4) of the Divorce Act had not been met.
Held: The appeal should be allowed.
Per La Forest, Sopinka, Cory and Iacobucci JJ.: While the court is not bound by the terms of a separation agreement in exercising its jurisdiction to award support under the Divorce Act , as against the parties the agreement operates as strong evidence that at the time each accepted its terms as adequately providing for the needs of the children. Furthermore, where the agreement is embodied in the divorce judgment, it must be assumed that the court's duty to satisfy itself that reasonable arrangements have been made for the support of any children of the marriage has been carried out and that at the date of the judgment it accurately assessed the needs of the children having regard to the means of the parents.
A previous support order can be varied under s. 17(4) , which, interpreted in the context of the Divorce Act , its predecessors and the principles in the cases and without the necessity of reference to extraneous materials, clearly reveals Parliament's intention. 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. An order for child maintenance may be varied when the relationship between the needs of the children having regard to the means of the parents changes in a material way. There can be a material change in the relation of these two factors if one of them undergoes a significant change because the relationship between them is altered. Variation of child support orders under s. 17(4) may be based on either a change in the child's circumstances or a change in the circumstances of one or both of the former spouses. In this way, the child is sheltered as much as possible from the consequences of divorce since escalating needs are provided for and the child may benefit from any improvement in the lifestyle of one or both of the parents. This interpretation is also fair to payor spouses, who may use s. 17(4) to protect themselves against a drop in income which prevents them from maintaining the existing level of support payments, even in circumstances where the needs of the children have not changed.
Having found that the conditions for variation exist, the trial judge should proceed to determine what variation should be made. The trial judge must re‑assess the needs of the children in light of the change. The needs of children are not assessed in a vacuum but are affected by the standard set by the means of the parents. The reasonable expectations of the children for future support upon marriage break‑up are not frozen as of the date of the break‑up. A substantial increase in the means of the payor parent may thus require that the needs of the child include benefits that previously were not available, although there is a limit to the extent to which the reasonable expectations of children to increased support payments can continue by reason of increases in the wealth of the payor spouse. If the children are already being maintained at a very high standard a change, even a substantial change in the wealth of the payor spouse, will not in itself entitle the children to increased support so as to permit them to live in luxury. Here the trial judge did not err in her interpretation of s. 17(4) , nor was there any other error or misapprehension of the evidence, and her judgment should accordingly be restored.
Per L'Heureux‑Dubé, Gonthier and McLachlin JJ.: The interpretation and application of family law, especially the law of support, require sensitivity to the social realities experienced by those most affected. Under s. 15(8) of the Divorce Act , the objective of a child support order is to recognize the former spouses' joint financial obligation to the children and to apportion that obligation between them according to their relative abilities to contribute to such support. Under the Paras formula, a court calculates the appropriate quantum of child support by, firstly, arriving at a sum which would be adequate to care for, support and educate the children and, secondly, dividing this sum in proportion to the respective incomes and resources of the parents. The formula should not be applied rigidly, however: the court should deduct from each party's total income a sum needed to achieve subsistence, in order to arrive at a more realistic assessment of the respective incomes available for child support. It has also generally been acknowledged that children's needs ought to be given priority over those of parents when determining support. Since the real costs associated with bringing up children may not be recognized in many cases, a contextual and broad‑based approach to both original and variation child support orders, which considers the many factors that guide the determination of child support, is necessary. Judicial notice was taken of the significant levels of child poverty in single parent families and of courts' failure to contemplate hidden costs in their calculation of child support awards.
The financial burden of divorce should not be borne primarily by children and their custodial parents. Children's needs cannot be reduced to a bare minimum so that the non‑custodial parent can enjoy a significantly more comfortable lifestyle. Current child support calculations bear little relationship to the actual costs of raising children. Children's non‑financial needs continue beyond the dissolution of the marriage and these needs may not be fully reflected by a mere calculation of the direct costs incurred. For the purposes of calculating child support, the total cost of caring for the children in any given instance is the sum of the direct and hidden costs established by the parties before the court, including reasonable access costs. This sum represents an estimate of the children's total needs. The next step is to ascertain the reasonableness of these needs in light of the means of the parents. The costs of fulfilling these needs are then allocated between the parents in accordance with their relative ability, having regard to those costs already assumed by each parent and having regard to each parent's subsistence level needs as well as to the income tax implications of the order. Because the division of costs between the spouses begins with the proposition that the financial obligation of raising the children is jointly shared, and because the non‑custodial spouse will generally incur fewer hidden costs than the custodial spouse, the non‑custodial spouse will generally assume a greater percentage of the direct costs than would otherwise be the case if hidden costs had been ignored.
Courts are not bound by the agreements of the parties as regards child support. Such agreements can rarely accurately foresee the future and the way in which the circumstances of the parties and their children may evolve and change over the years. The variation of a support order, be it spousal or child support, is governed by s. 17(4) of the Divorce Act , which requires that a court be satisfied "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". One such change is sufficient to trigger a variation order. The second part of the threshold test, namely the sufficiency of the alleged change in circumstances, should more easily be satisfied in cases where the needs of the children are being inadequately or minimally satisfied and where a variation would, on the whole, improve their situation. Given that child support is the right of the child, the argument that a particular change in circumstances had been contemplated at the time of the original support order must be viewed as only a narrow exception to s. 17(4) . Once a sufficient change that will justify variation has been identified, the court must next determine the extent to which it will reconsider the circumstances underlying, and the basis for, the support order itself. While a variation hearing is neither an appeal nor a trial de novo, where the alleged change or changes are of such a nature or magnitude as to make the original order irrelevant or no longer appropriate, then an assessment of the entirety of the present circumstances of the parties and the children which recognizes the interrelationship between the many factors to be considered is in order. Section 17(8) , under which a child support variation order should apportion the support obligation between the former spouses according to their relative abilities to contribute, expands on the preliminary analysis under s. 17(4) and requires that the variation of child support not occur in a vacuum without regard to the present needs of the children and the means of the parties at the time of variation. Accordingly, once it has been determined that the original or any subsequent order meets the test for variation, the circumstances of the parties and their children may be reviewed in order to establish realistically the overall impact of the change on the quantum of the new order. Regardless of the fact that child support is deemed reasonable at the time it was ordered, variation must be approached from the perspective that arrangements may only have been reasonable to the extent of the means and other circumstances of the parties at the time. Where those circumstances, means and needs have changed so as to render the original order irrelevant or inappropriate, an application for variation of child support should assess the needs of the children in light of the present circumstances of both the parents and the children. While children are not, by reason of income alone, entitled to whatever luxuries they desire, they have a right to benefit from the better lifestyles of their parents as the circumstances permit. A court may take judicial notice of the fact that it costs more to support children as they grow older. When this fact becomes compounded by the effect of inflation, it may constitute a sufficient change.
The threshold test to justify variation has clearly been met in this case. Both the respondent's income and the children's needs increased, although a change in either of them would have sufficed, and the change in the respondent's income was significant. Once this condition was fulfilled, the chambers judge was entitled to re‑examine those circumstances affected by the change in the means of the payor and the needs of the children and, given the nature and magnitude of the changes, could have looked anew at the present circumstances of the parties and the children. Since the chambers judge made no error in principle and considered all evidence, took into account all relevant factors, and awarded an amount well within the range of awards in similar circumstances, the Court of Appeal was not entitled to intervene and substitute its own view of the evidence.
Cases Cited
By Sopinka J.
Approved: Dickson v. Dickson (1987), 11 R.F.L. (3d) 337; referred to: Symes v. Canada, [1993] 4 S.C.R. 695; Thomson v. Thomson (1988), 69 Sask. R. 62; Langelier (Anwender) v. Anwender (1991), 32 R.F.L. (3d) 135; Pelech v. Pelech, [1987] 1 S.C.R. 801; Richardson v. Richardson, [1987] 1 S.C.R. 857; Lanteigne v. Lanteigne (1988), 91 N.B.R. (2d) 275; Moosa v. Moosa (1990), 26 R.F.L. (3d) 107; R. v. Tapaquon, [1993] 4 S.C.R. 535; Friesen v. Friesen (1985), 48 R.F.L. (2d) 137; Paras v. Paras, [1971] 1 O.R. 130; McKinney v. Polston, [1992] B.C.J. No. 1422 (QL); Snelgrove‑Fowler v. Fowler, [1993] A.J. No. 232 (QL); Bucher v. Bucher (1990), 67 Man. R. (2d) 233; Goncalves v. Goncalves (1986), 49 R.F.L. (2d) 376; Harrington v. Harrington (1981), 33 O.R. (2d) 150.
By L'Heureux‑Dubé J.
Referred to: Moge v. Moge, [1992] 3 S.C.R. 813; Levesque v. Levesque (1994), 4 R.F.L. (4th) 375; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; R. v. Keegstra, [1990] 3 S.C.R. 697; R. v. Ladouceur, [1990] 1 S.C.R. 1257; R. v. Seaboyer, [1991] 2 S.C.R. 577; R. v. Downey, [1992] 2 S.C.R. 10; R. v. Penno, [1990] 2 S.C.R. 865; Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219; Janzen v. Platy Enterprises Ltd., [1989] 1 S.C.R. 1252; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; R. v. Lavallee, [1990] 1 S.C.R. 852; M. (K.) v. M. (H.), [1992] 3 S.C.R. 3; Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; Symes v. Canada, [1993] 4 S.C.R. 695; R. v. W. (R.), [1992] 2 S.C.R. 122; R. v. Chartrand, [1994] 2 S.C.R. 864; R. v. Finta, [1994] 1 S.C.R. 701; R. v. Rowbotham, [1994] 2 S.C.R. 463; R. v. Sioui, [1990] 1 S.C.R. 1025; Marzetti v. Marzetti, [1994] 2 S.C.R. 765; Hills v. Canada (Attorney General), [1988] 1 S.C.R. 513; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; Ontario Human Rights Commission and O'Malley v. Simpsons‑Sears Ltd., [1985] 2 S.C.R. 536; Paras v. Paras, [1971] 1 O.R. 130; Murray v. Murray (1991), 35 R.F.L. (3d) 449; Stunt v. Stunt (1990), 30 R.F.L. (3d) 353; King v. King (1990), 25 R.F.L. (3d) 338; Northcut v. Ruppel (1989), 21 R.F.L. (3d) 195; Mitchell v. Mitchell (1988), 18 R.F.L. (3d) 206; Oakley v. Oakley (1990), 260 A.P.R. 266; Conroy v. Conroy (1977), 1 R.F.L. (2d) 193; Menage v. Hedges (1987), 8 R.F.L. (3d) 225; Syvitski v. Syvitski (1988), 86 N.S.R. (2d) 248; Thibaudeau v. M.N.R., [1994] 2 F.C. 189; Brockie v. Brockie (1987), 46 Man. R. (2d) 33; Smith v. Smith (1986), 4 R.F.L. (3d) 210; Pelech v. Pelech, [1987] 1 S.C.R. 801; Caron v. Caron, [1987] 1 S.C.R. 892; Richardson v. Richardson, [1987] 1 S.C.R. 857; Masters v. Masters, [1994] 1 S.C.R. 883; Goncalves v. Goncalves (1986), 49 R.F.L. (2d) 376; Guemili v. Guemili (1989), 19 R.F.L. (3d) 347; Chelmick v. Chelmick (Cochlan) (1992), 41 R.F.L. (3d) 117; Kitson v. Kitson (1986), 1 R.F.L. (3d) 103; Dickson v. Dickson (1987), 11 R.F.L. (3d) 337; Robertson v. Robertson (1989), 23 R.F.L. (3d) 188; Gaudet v. Gaudet (1988), 15 R.F.L. (3d) 65; Michel v. Michel (1988), 18 R.F.L. (3d) 182; Vervoorst v. Vervoorst (1991), 37 R.F.L. (3d) 178; Gillis v. Gillis (1994), 3 R.F.L. (4th) 128; Ryan v. Ryan (1992), 114 N.S.R. (2d) 255; James v. James (1992), 41 R.F.L. (3d) 70; Marshall v. Marshall (1992), 43 R.F.L. (3d) 303; Taplin v. Laurie (1992), 41 R.F.L. (3d) 197; House v. Tunney (House) (1991), 35 R.F.L. (3d) 68; Crowfoot v. Crowfoot (1992), 38 R.F.L. (3d) 354; Weaver v. Tate (1989), 24 R.F.L. (3d) 266 (Ont. H.C.), add'l reasons at (1990), 24 R.F.L. (3d) 372, aff'd (1990), 28 R.F.L. (3d) 188 (Ont. C.A.); Mallen v. Mallen (1988), 13 R.F.L. (3d) 54; Cheng v. Cheng (1988), 13 R.F.L. (3d) 140; Monaghan v. Monaghan (1988), 14 R.F.L. (3d) 308; Heinemann v. Heinemann (1988), 86 N.S.R. (2d) 278 (T.D.), aff'd (1989), 20 R.F.L. (3d) 236 (C.A.); Harrington v. Harrington (1981), 33 O.R. (2d) 150; Re Wilbur and Wilbur (1983), 147 D.L.R. (3d) 69; Lensen v. Lensen, [1987] 2 S.C.R. 672; Reza v. Canada, [1994] 2 S.C.R. 394; Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3; R. v. Burns, [1994] 1 S.C.R. 656.
Statutes and Regulations Cited
Court of Appeal Act, R.S.S. 1978, c. C‑42, s. 8.
Divorce Act, R.S.C. 1970, c. D‑8, s. 11(2).
Divorce Act, R.S.C., 1985, c. 3 (2nd Supp .), ss. 11(1) (b), 15 , 17 , 21(5) .
Reciprocal Enforcement of Maintenance Orders Act, 1983, S.S. 1983, c. R‑4.1.
Rules of the Supreme Court of Canada, SOR/83‑74, r. 29(3) [ad. SOR/93‑488, s. 2].
Authors Cited
Abella, Rosalie S. "Economic Adjustment on Marriage Breakdown: Support" (1981), 4 Fam. L. Rev. 1.
Canada. Department of Justice. Divorce Law in Canada: Proposals for Change. Ottawa: Department of Justice, 1984.
Canada. Department of Justice. Bureau of Review. Evaluation of the Divorce Act ‑‑ Phase II: Monitoring and Evaluation. Ottawa: Department of Justice, 1990.
Côté, Pierre‑André. The Interpretation of Legislation in Canada, 2nd ed. Cowansville: Yvon Blais, 1991.
Durnford, John W., and Stephen J. Toope. "Spousal Support in Family Law and Alimony in the Law of Taxation" (1994), 42:1 Can. Tax J. 1.
Federal/Provincial/Territorial Family Law Committee. The Financial Implications of Child Support Guidelines: Research Report. Ottawa: The Committee, 1992.
Federal/Provincial/Territorial Family Law Committee. Child Support: Public Discussion Paper. Ottawa: The Committee, 1991.
Grassby, Miriam. "Women in their Forties: The Extent of Their Rights to Alimentary Support" (1991), 30 R.F.L. (3d) 369.
La Novara, Pina. A Portrait of Families in Canada. Ottawa: Statistics Canada, 1993.
McLeod, James G. Annotation on Silverman v. Silverman (1987), 7 R.F.L. (3d) 292.
McKie, D. C., B. Prentice and P. Reed. Divorce: Law and the Family in Canada. Ottawa: Statistics Canada, 1983.
Monahan, John, and Laurens Walker. "Judicial Use of Social Science Research" (1991), 15 Law & Hum. Behav. 571.
Monahan, John, and Laurens Walker. "Social Authority: Obtaining, Evaluating, and Establishing Social Science in Law" (1986), 134 U. Pa. L. Rev. 477.
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.
Pask, Diane E. "Gender Bias and Child Support: Sharing the Poverty" (1993), 10 C.F.L.Q. 33.
Payne, Julien D. Payne on Divorce, 3rd ed. Scarborough, Ont.: Carswell, 1993.
Perry, Gail S., and Gary B. Melton. "Precedential Value of Judicial Notice of Social Facts: Parham as an Example" (1983‑84), 22 J. Fam. L. 633.
Rogerson, Carol J. "Judicial Interpretation of the Spousal and Child Support Provisions of the Divorce Act, 1985 (Part II)" (1991), 7 C.F.L.Q. 271.
Rogerson, Carol J. "Winning the Battle, Losing the War: The Plight of the Custodial Mother After Judgment". In M. E. Hughes and E. D. Pask, eds., National Themes in Family Law. Carswell: Toronto, 1988.
Walker, Laurens, and John Monahan. "Social Frameworks: A New Use of Social Science in Law" (1987), 73 Va. L. Rev. 559.
Zweibel, E. B. "Child Support Guidelines: An Ineffective and Potentially Gender‑Biased Response to Child Support Issues". In Feminist Analysis II: Family Law: Voodoo Economics for Women. 1993 Institute of Continuing Legal Education. Canadian Bar Association -- Ontario, 1993.
APPEAL from a judgment of the Saskatchewan Court of Appeal (1992), 100 Sask. R. 211, 18 W.A.C. 211, 41 R.F.L. (3d) 107, reversing a judgment of the Unified Family Court (1992), 98 Sask. R. 239, granting an application for variation. Appeal allowed.
Donna Wilson and Gary Bainbridge, for the appellant.
Deryk J. Kendall and F. Neil Turcotte, for the respondent.
The judgment of La Forest, Sopinka, Cory and Iacobucci JJ. was delivered by
//Sopinka J.//
Sopinka J. -- In this appeal, the Court is asked to determine the proper interpretation of s. 17(4) of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp .). A subsidiary question to be dealt with regards the extent of the powers of the Court, under the Divorce Act , to vary child support which has been agreed to by the parties in a separation agreement and which has subsequently been incorporated into the decree nisi. I have had the advantage of reading the reasons of my colleague Justice L'Heureux-Dubé and I agree with her conclusion. I am able, however, to arrive at the same result on the basis of the rules of statutory construction without resort to extensive extrinsic materials.
I. I do not disagree with my colleague that a contextual approach to the interpretation of the statutory provisions is appropriate. Indeed, I have applied this approach in my reasons. In the context of the Divorce Act , its predecessor and principles set out in the cases, I have been able to conclude that the intention of Parliament is clear. Given the narrow focus of this case, it does not in my opinion require an examination of the broad policy grounds to which my colleague refers. Following that course would require us to resolve the thorny question of the use of extraneous materials such as studies, opinions and reports and whether it is appropriate to take judicial notice of them and what notice to counsel, if any, is required. We would also have to consider the extent to which our approach is different in a case such as this from a constitutional case in which wider latitude is allowed. No constitutional issue arises in this case. No attack was made on the section and neither party relied on the Canadian Charter of Rights and Freedoms as an interpretative tool. In any event, I have serious reservations about the use of the Charter as an interpretative tool where the other rules of construction make the intention of the legislature plain. Use of the Charter in this manner means that the clear intention of Parliament is blunted by confining it within Charter values without resort to s. 1 . If this approach is legitimate, resort to s. 1 of the Charter would be unnecessary. The legislature's intention would be headed off by a benign interpretation. The result would be to prevent the legislature from exercising the full extent of its powers as permitted by s. 1 . See Symes v. Canada, [1993] 4 S.C.R. 695, at pp. 751-52, per Iacobucci J. for the majority.
Facts
II. The parties were married on August 25, 1979, separated on March 1, 1989 and entered into an interspousal agreement on July 28, 1989. Under the terms of that agreement, the respondent, Bryan Willick, agreed to pay to the appellant, Lori Ann Willick, $450 per month for each of their two children and $700 per month spousal support. Child support payments were to continue so long as the two children were "children" within the meaning of the Divorce Act . Spousal support payments were to continue for three years following the birth of their youngest child plus an additional 26 months to allow the appellant to undergo a retraining program. All payments were subject to an annual increase of 3 percent on September 1 of each year, with the first increase taking effect on September 1, 1990. All support payments were to be tax-free in the hands of the appellant and were not to be tax deductible by the respondent for so long as the respondent maintained his non-Canadian residency. The respondent was required to maintain a scholarship fund for the children and a life insurance policy of $150,000, naming the appellant and the children as beneficiaries. Renewal discussions with respect to the agreement were to take place in October 1993, at the latest.
III. At the time of entering into the interspousal agreement, in July 1989, the appellant had no source of income outside of the support payments and family allowance payments. The respondent, an airline pilot, was earning approximately $40,000 per year. By October 30, 1989, the appellant was aware that the respondent's income had increased to approximately $5,000 per month, subject to a 15.5 percent withholding tax, plus a housing allowance of about $4,600 per month. The appellant also swore in an affidavit that the spousal and child support payments provided for in the interspousal agreement, totalling $1,600 per month, were sufficient to cover her expenses and the expenses of the two children. No evidence as to the expenses of the respondent at that time was provided.
IV. On November 8, 1989, Carter J. of the Unified Family Court for Saskatchewan granted a judgment of divorce which included, inter alia, the terms of the interspousal contract, except for the provisions relating to tax status, the scholarship fund and the insurance policy. Approximately two years later, on October 7, 1991, the appellant commenced an application, pursuant to the Divorce Act and the Reciprocal Enforcement of Maintenance Orders Act, 1983, S.S. 1983, c. R-4.1, to increase the child support payable under the terms of the divorce judgment, on the basis that the children's needs had become too great a financial burden on her and the respondent had experienced a significant increase in earnings.
V. At the time of the application for variation, the appellant's gross monthly income was $2,088, including $325 earned through part-time employment, $66 in family allowance payments and child and spousal support payments of $1,697. Her monthly expenses were $3,597, with $1,903.50 apportioned to the children. The gross monthly income of the respondent at the time of the variation application was $8,569.52, plus a $4,212.91 housing allowance. Apart from standard deductions from his earnings, plus the expense of maintaining leased premises in Hong Kong, the respondent's expenses at the time of the variation application, including child and spousal support payments, totalled $5,083.80. His net income (take-home pay) was pegged at $5,390.72.
VI. Based on the affidavit evidence, Carter J. issued a fiat increasing the child support order from $450 per month per child to $850 per month per child: (1992), 98 Sask. R. 239. The respondent's appeal from that decision was allowed by the Saskatchewan Court of Appeal on May 12, 1992: (1992), 100 Sask. R. 211, 18 W.A.C. 211, 41 R.F.L. (3d) 107. The appellant now appeals that decision to this Court.
Judgments Below
Unified Family Court (1992), 98 Sask. R. 239
VII. In the affidavits filed in relation to the application for variation, the appellant swore that at the time of negotiating the interspousal agreement, the respondent was earning $40,000 per year. The respondent attested that the interspousal agreement was made based on a mutual expectation of the parties that he would soon be earning in excess of $75,000 per year. The appellant denied that the negotiations were premised on this expectation.
VIII. Carter J. found that at the time of negotiating the interspousal agreement the respondent was earning $40,000 per year, but that his income had increased to $12,882 per month (including a $4,212.91 housing allowance) by the time of the variation application. She found that the appellant incurred monthly expenses totalling $3,597, but that the appellant's total monthly income was only $2,088, leaving a shortfall of $1,509 per month. In contrast, Carter J. concluded that the respondent had $3,693 per month to live on, excluding his support payments.
IX. Carter J. noted that courts are not bound by agreements providing for support for children: see Thomson v. Thomson (1988), 69 Sask. R. 62 (C.A.), and Langelier (Anwender) v. Anwender (1991), 32 R.F.L. (3d) 135 (Sask. C.A.). She then found that, even if one accepted that the appellant was aware that the respondent had income of $75,000 per year when the agreement was entered into, the respondent's income now far exceeded that figure. She therefore ordered an increase in child support from $450 per month per child to $850 per month per child and made no variation with respect to spousal support.
Court of Appeal (1992), 100 Sask. R. 211
X. Vancise J.A. wrote the reasons for himself, Cameron and Lane JJ.A. In addition to the facts found by Carter J., Vancise J.A. concluded that the interspousal agreement was intended by the parties to be complete and final and that the appellant had agreed in her affidavit at the time of the original order that the children had no exceptional needs.
XI. He then indicated that the variation of a judgment pursuant to s. 17(4) of the Divorce Act was to occur only where a "material change", within the meaning of the section, had occurred. He found that Carter J. had erred in principle by failing to first determine whether there had been a material change in the needs of the children and the circumstances of the parties before ordering an increase in support. He concluded as follows in that regard (at p. 213):
In our opinion, there was a serious error of principle here. The chambers judge concluded that the changes in the husband's income alone justify varying the amount of support. In our opinion, she erred in failing to first determine whether there had been a material change in the needs of the children and the circumstances of the parties. The evidence is clear that the needs of the children were being adequately met as at the time of judgment but there is no evidence of a change which would justify the increase of the magnitude granted by the chambers judge. In our opinion, the threshold test of a change of circumstances sufficient to justify a variation in maintenance had not been met and the order of the chambers judge must be set aside.
Issues
1.In a variation proceeding under s. 17 of the Divorce Act , to what extent can a court review and correct the original child support order and to what extent should a court feel bound by the original support order in deciding whether to vary the amount presently being paid for support?
2.Did the Court of Appeal err in concluding that there must be a material change in the needs of the children and the circumstances of the parties in order to justify the variation of a support order pursuant to s. 17(4) of the Divorce Act ?
Relevant Legislative Provisions
XII. The relevant subsections of s. 17 of the Divorce Act state:
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.
. . .
(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.
XIII. Paragraph 11(1)(b) and certain subsections of s. 15 of the Divorce Act should also be kept in mind:
11. (1) In a divorce proceeding, it is the duty of the court
. . .
(b) to satisfy itself that reasonable arrangements have been made for the support of any children of the marriage and, if such arrangements have not been made, to stay the granting of the divorce until such arrangements are made; . . .
15. . . .
(2) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring one spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of
(a) the other spouse;
(b) any or all children of the marriage; or
(c) the other spouse and any or all children of the marriage.
. . .
(4) The court may make an order under this section for a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just.
(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.
. . .
(8) An order made under this section that provides for the support of a child of the marriage should
(a) recognize that the spouses have a joint financial obligation to maintain the child; and
(b) apportion that obligation between the spouses according to their relative abilities to contribute to the performance of the obligation.
Reviewability
XIV. Submissions were made by the respondent as to the reviewability of the support provisions, having regard to the fact that they resulted from a complicated separation agreement which was incorporated into a decree nisi. Clearly the court is not bound by the terms of a separation agreement in exercising its jurisdiction to award support under the Act. See Wilson J. in Pelech v. Pelech, [1987] 1 S.C.R. 801, at p. 849. As stated by Professor McLeod in his annotation on Silverman v. Silverman (1987), 7 R.F.L. (3d) 292 (N.S.S.C.A.D.), at pp. 293-94, the true question is the effect of the agreement in restricting the court's discretionary jurisdiction.
XV. The reasoning which supports the restrictions with respect to interspousal support does not apply to child support. In Richardson v. Richardson, [1987] 1 S.C.R. 857, at pp. 869-70, Wilson J. explained the different nature of the two rights:
This inter-relationship [between spousal maintenance and child support] should not, however, lead us to exaggerate its extent or forget the different legal bases of the support rights. The legal basis of child maintenance is the parents' mutual obligation to support their children according to their need. That obligation should be borne by the parents in proportion to their respective incomes and ability to pay: Paras v. Paras, supra.... Child maintenance, like access, is the right of the child: Re Cartlidge and Cartlidge, [1973] 3 O.R. 801 (Fam. Ct.). For this reason, a spouse cannot barter away his or her child's right to support in a settlement agreement. The court is always free to intervene and determine the appropriate level of support for the child.... Further, because it is the child's right, the fact that child support will indirectly benefit the spouse cannot decrease the quantum awarded to the child.
XVI. As against the parties, the agreement operates as strong evidence that at the time each accepted its terms as adequately providing for the needs of the children. The correct approach was adopted by Anderson J.A. in Dickson v. Dickson (1987), 11 R.F.L. (3d) 337 (B.C.C.A.), at p. 358, who regarded the agreement as affording strong evidence "that the agreement made adequate provision for the needs of the children at the date the agreement was made".
XVII. Where as here the agreement is embodied in the judgment of the court, it is necessary to consider what additional effect is to be accorded to this fact. Section 11(1)(b) of the Act provides that "it is the duty of the court ... to satisfy itself that reasonable arrangements have been made for the support of any children of the marriage and, if such arrangements have not been made, to stay the granting of the divorce until such arrangements are made". It must be assumed that as long as the provisions of the judgment of the court stand unreversed this duty was carried out and that at the date of the judgment it provided reasonable arrangements for the support of the children. In this regard, I agree with Angers J.A. in Lanteigne v. Lanteigne (1988), 91 N.B.R. (2d) 275, when he states at p. 277:
[TRANSLATION] I am of the opinion that an application for a variation order is not an appeal of the original order. The finality and binding nature of all court judgments should consequently be respected here. The judge rendering the variation order must be guided by the nature of the change in the parties' condition. The variation must reflect the changes that are disclosed.
XVIII. Therefore, in a variation proceeding, it must be assumed that, at the time it was made, the original child support order or the previous variation order accurately assessed the needs of the children having regard to the means of the parents. As such, the correctness of the previous order must not be reviewed during the variation proceeding. The previous order will not be departed from lightly and will only be varied if the requirements under s. 17(4) of the Divorce Act are properly satisfied. I now turn to this issue.
The Interpretation of s. 17(4) of the Divorce Act
XIX. This subsection authorizes the court to vary a previous support order if a change of circumstances occurs. The approach which a court should take is to determine first, whether the conditions for variation exist and if they do exist what variation of the existing order ought to be made in light of the change in circumstances.
XX. In deciding whether the conditions for variation exist, it is common ground that the change must be a material change of circumstances. This means a change, such that, if known at the time, would likely have resulted in different terms. The corollary to this is that if the matter which is relied on as constituting a change was known at the relevant time it cannot be relied on as the basis for variation. The controversial aspect of this appeal is whether it is also a pre-condition to variation that there be a change in the circumstances of the payor spouse and the child or children in whose favour the support provisions were made. In determining this issue it is important to bear in mind that an order for maintenance of children is made by assessing the needs of the children having regard to the means of the parents. The purpose of s. 17(4) appears to be to permit the court to vary the order when the relationship between those factors changes in a material way. There can be a material change in the relation of the factors if one of them undergoes a significant change because the relationship between them is altered. The following passage from the reasons for judgment of Keenan Dist. Ct. J. in Moosa v. Moosa (1990), 26 R.F.L. (3d) 107 (Ont. Dist. Ct.), at pp. 110‑11 is apt:
It