Pelech v. Pelech

Pelech v. Pelech
Collection
Supreme Court Judgments
Date
1987-06-04
Report
[1987] 1 SCR 801
Case number
19265
Judges
Dickson, Robert George Brian; McIntyre, William Rogers; Chouinard, Julien; Lamer, Antonio; Wilson, Bertha; Le Dain, Gerald Eric; La Forest, Gérard V.
On appeal from
British Columbia
Subjects
Courts
Family law
Notes
SCC Case Information: 19265
Decision Content
Pelech v. Pelech, [1987] 1 S.C.R. 801
Shirley Mae Pelech Appellant
v.
John Pelech Respondent
indexed as: pelech v. pelech
File No.: 19265.
1986: March 24; 1987: June 4.
Present: Dickson C.J. and McIntyre, Chouinard*, Lamer, Wilson, Le Dain and La Forest JJ.
*Chouinard J. took no part in the judgment.
on appeal from the court of appeal for british columbia
Divorce ‑‑ Maintenance ‑‑ Variation ‑‑ Agreement made after divorce providing for lump sum to wife in full satisfaction of future claims for maintenance ‑‑ Court's order incorporating parties' agreement ‑‑ Wife's financial situation deteriorating substantially over the years because of health problems ‑‑ Application to vary the maintenance order ‑‑ Whether the agreement should be respected and preclude judicial intervention ‑‑ Divorce Act, R.S.C. 1970, c. D‑8, s. 11(2).
Courts ‑‑ Jurisdiction ‑‑ Divorce ‑‑ Maintenance agreement incorporated in court order ‑‑ Ex‑wife's application to vary allowed ‑‑ Jurisdiction of the Court of Appeal and the Supreme Court of Canada to review orders made under s. 11 of the Divorce Act ‑‑ Divorce Act, R.S.C. 1970, c. D‑8, ss. 11(2), 17(2), 18(1).
Courts ‑‑ Jurisdiction ‑‑ Powers of the reviewing court ‑‑ Divorce ‑‑ Maintenance agreement incorporated in court order ‑‑ Ex‑wife's application to vary allowed ‑‑ Whether appellate court should interfere with trial judge's discretion in the absence of material error ‑‑ Divorce Act, R.S.C. 1970, c. D‑8, ss. 11(2), 17(2).
Married in 1954, the parties divorced in 1969. With advice of independent legal counsel, they entered into a maintenance agreement which provided for the payment by respondent of a lump sum over a period of thirteen months, while appellant agreed to accept the payments in full satisfaction of all future maintenance claims. The agreement was incorporated into an order of the court and respondent paid the maintenance monies as agreed. During the subsequent years, appellant's physical and mental problems increased. As a result, she was often unable to work and was forced to use her maintenance fund in order to survive. In 1982, the fund was depleted and she lived on welfare. By contrast, respondent had become after the divorce a person of ample means. Notwithstanding the agreement, she applied to the British Columbia Supreme Court for a variation of the maintenance award made twelve years earlier under s. 11(1) of the Divorce Act . The Supreme Court allowed the application but the judgment was reversed by the Court of Appeal. This appeal is to determine (1) the jurisdiction of the Court of Appeal to review orders made under s. 11 of the Divorce Act and the jurisdiction of this Court to entertain appeals from judgments of the provincial appellate courts in relation to such orders, and (2) the effect of a valid and enforceable settlement agreement on the court's discretionary power under s. 11(2) of the Divorce Act to vary maintenance orders.
Held: The appeal should be dismissed.
Section 17(2) of the Divorce Act which empowers a court of appeal to "pronounce the judgment that ought to have been pronounced" does not confer on the courts of appeal a broad power to review discretionary decisions made in the courts below. A court of appeal should only interfere with the trial judge's decision where it is persuaded that his reasons disclosed material error. The purpose of the enumeration of powers in s. 17(2) is to set out alternative dispositions open to the court in granting or dismissing an appeal in conformity with traditional principles of appellate review and does not give a court of appeal an independent discretion to decide a case afresh.
The present case, however, raises the question as to what the criteria are for determining the appropriateness of judicial intervention under s. 11(2) of the Divorce Act , i.e., when it is "fit and just" for the court to vary a s. 11(1) order in the face of an antecedent valid and enforceable settlement agreement. The criteria for the exercise of judicial discretion are essentially legal criteria and their delineation, as well as their non‑application or misapplication, raises a question of law. This question of law is sufficient in itself to ground the Court of Appeal's jurisdiction, and on further appeal, to give jurisdiction to the Supreme Court of Canada under s. 18 of the Divorce Act . Section 41(1) of the Supreme Court Act can also serve as a basis for jurisdiction for this Court where s. 41(1) is not in conflict with s. 18 of the Divorce Act .
Cases Cited
Applied: Harrington v. Harrington (1981), 33 O.R. (2d) 150; not followed: Piller v. Piller, [1975] 4 W.W.R. 342; Carmichael v. Carmichael (1976), 27 R.F.L. 325; Guberman v. Guberman, [1977] 2 W.W.R. 1; considered: Nash v. Nash, [1975] 2 S.C.R. 507; Posener v. Posener (1984), 4 D.L.R. (4th) 385; Massicotte v. Boutin, [1969] S.C.R. 818; distinguished: Swain v. Dennison, [1967] S.C.R. 7; referred to: Carnochan v. Carnochan, [1955] S.C.R. 669; Ashby v. White (1703), 2 Ld. Raym. 938, 92 E.R. 126; Gazdeczka v. Gazdeczka (1982), 30 R.F.L. (2d) 428; Schmeiser v. Schmeiser (1982), 21 Sask. R. 437; Dwelle v. Dwelle (1982), 31 R.F.L. (2d) 113; MacAllister v. MacAllister (1984), 39 R.F.L. (2d) 307; Webster v. Webster (1978), 25 N.S.R. (2d) 33; Droit de la famille‑‑182, [1985] C.A. 92; Hallberg v. C.N.R. (1955), 16 W.W.R. 538; Baumgartner Estate v. Ripplinger (1984), 34 Sask. R. 181; Csada v. Csada (1984), 35 Sask. R. 301; Lensen v. Lensen, [1984] 6 W.W.R. 673; Caron v. Caron, [1987] 1 S.C.R. 892; Richardson v. Richardson, [1987] 1 S.C.R. 857.
Per Dickson C.J. and McIntyre, Lamer, Wilson and Le Dain JJ.: The court's supervisory jurisdiction over spouse's maintenance cannot be extinguished by contract. However, where the parties have negotiated their own agreement, freely and on the advice of independent legal counsel, as to how their financial affairs should be settled on the breakdown of their marriage, and the agreement is not unconscionable in the substantive law sense, it should be respected. It is only where a future misfortune has its genesis in the fact of the marriage that the court should be able to override the agreement. Accordingly, where an applicant seeking maintenance or an increase in the existing level of maintenance establishes that he or she has suffered a radical change in circumstances flowing from an economic pattern of dependency engendered by the marriage, the court may exercise its relieving power. Otherwise, the obligation to support the former spouse should be, as in the case of any other citizen, the communal responsibility of the state. In the case at bar, no link was found between the gross change in circumstances of appellant and her former marriage to respondent. Therefore, despite appellant's dependency on social assistance, the maintenance agreement should stand.
Per La Forest J.: Where the parties have attempted to finally settle their financial situation and a court, in the exercise of its discretion under s. 11(1) of the Divorce Act , has confirmed that settlement as being "fit and just", the element of finality inherent in divorce and in such an arrangement must be respected in the absence of the most cogent reasons. Where there has been a change of a highly significant character in the circumstances of a former spouse after the settlement was made and that such a change has a real causal connection with the marriage relationship or the settlement, the court may, under s. 11(2) of the Divorce Act , vary the settlement incorporated in an original maintenance order. There may also be exceptional cases, beyond those of unconscionability in the technical sense, where it is not so much the dimensions of the change as the circumstances existing at the time the original order was made that will warrant the making of a variation.
In the present case, the trial judge erred in ordering a variation. Although there were undoubtedly marked changes in the fortunes of the parties, appellant's poverty was not attributable to the marriage or the settlement. The fact that appellant's misfortune has resulted in her being a charge on the public purse was not a reason to transfer that burden to the respondent simply because he has had good fortune. The obligation to support her in such a case is on the public.
Cases Cited
By Wilson J.
Considered: Farquar v. Farquar (1983), 1 D.L.R. (4th) 244; Webb v. Webb (1984), 39 R.F.L. (2d) 113; Katz v. Katz (1983), 33 R.F.L. (2d) 412; Newman v. Newman (1980), 4 Man. R. (2d) 50; Ross v. Ross (1984), 39 R.F.L. (2d) 51; referred to: Collins v. Collins (1978), 2 R.F.L. (2d) 385; Goldstein v. Goldstein (1976), 23 R.F.L. 206; Dal Santo v. Dal Santo (1975), 21 R.F.L. 117; Hyman v. Hyman, [1929] A.C. 601; Messier v. Delage, [1983] 2 S.C.R. 401; Connelly v. Connelly (1974), 47 D.L.R. (3d) 535; Piasta v. Piasta (1974), 15 R.F.L. 137; Gandy v. Gandy (1882), 7 P.D. 168; Fabian v. Fabian (1983), 34 R.F.L. (2d) 313; Barrett v. Barrett (1985), 43 R.F.L. (2d) 405; Jull v. Jull (1984), 42 R.F.L. (2d) 113; Binns v. Binns (1985), 45 R.F.L. (2d) 369.
By La Forest J.
Referred to: Richardson v. Richardson, [1987] 1 S.C.R. 857; Messier v. Delage, [1983] 2 S.C.R. 401.
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, ss. 3, 11, 17(2), 18(1).
Judicature Act, R.S.O. 1970, c. 228, s. 30(1).
Supreme Court Act, R.S.C. 1970, c. S‑19, ss. 41(1) [rep. & subs. 1974‑75‑76, c. 18, s. 5], 42, 44, 47.
Authors Cited
Abella, Rosalie S. Economic Adjustment On Marriage Breakdown: Support (1981), 4 F.L.R. 1.
Canada. Law Reform Commission. Family Law. Ottawa: Law Reform Commission of Canada, 1976.
Canada. Law Reform Commission. Maintenance on Divorce (Working Paper 12). Ottawa: Law Reform Commission of Canada, 1975.
Payne, D. Julien. "Policy Objectives of Private Law Spousal Support Rights and Obligations". In Contemporary Trends in Family Law: A National Perspective. Edited by K. Connell‑Thouez and B. M. Knoppers. Toronto: Carswells, 1984, pp. 55‑103.
Wilson, Bertha. "The Variation of Support Orders". In Family Law: Dimensions of Justice. Edited by Rosalie S. Abella and Claire L'Heureux‑Dubé. Toronto: Butterworths, 1983, pp. 35‑67.
APPEAL from a judgment of the British Columbia Court of Appeal (1985), 45 R.F.L. (2d) 1, 17 D.L.R. (4th) 147, 61 B.C.L.R. 217, allowing respondent's appeal from an order of Wong L.J.S.C. (1984), 41 R.F.L. (2d) 274, granting appellant's application to vary maintenance agreement incorporated in court order. Appeal dismissed.
Scott Hall, for the appellant.
R. Kasting, for the respondent.
The judgment of Dickson C.J. and McIntyre, Lamer, Wilson and Le Dain JJ. was delivered by
1. Wilson J.‑‑Section 11(2) of the Divorce Act, R.S.C. 1970, c. D‑8, confers on the court the power to vary a previous order for maintenance "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". This appeal specifically addresses the extent of the constraints, if any, imposed on that power by the existence of a valid and enforceable maintenance agreement. Should the parties be held to the terms of their contract or should the court intervene to remedy the inequities now alleged by one of the parties to be flowing from the bargain previously entered into freely and on full knowledge and with the advice of counsel?
2. An ancillary issue raised on this appeal concerns jurisdiction ‑‑ the jurisdiction of the Court of Appeal to review orders made under s. 11 of the Divorce Act and the jurisdiction of this Court to entertain appeals from judgments of the provincial appellate courts in relation to such orders.
I. The facts
3. The parties were married in 1954. They had two children. The respondent, Mr. Pelech, ran a general contracting business which later expanded and diversified. The appellant assisted her husband by acting as a receptionist and bookkeeper until the mid‑1960's. The parties were divorced on May 1, 1969. Wilson C.J. of the British Columbia Supreme Court who presided at the petition for divorce found that Mrs. Pelech had serious psychological problems and awarded custody of the children to Mr. Pelech. He also awarded Mrs. Pelech permanent maintenance and referred the case to the Registrar for recommendations in this regard.
4. The parties, after obtaining the advice of counsel, entered into a maintenance agreement on September 15, 1969 which was approved by the Registrar. The agreement provided for a total payment of $28,760 over a period of thirteen months. Clause (b) of the agreement stated:
(b) The Petitioner agrees to accept the foregoing periodic payments in full satisfaction of all claim she now has or may have in the future for maintenance from the Respondent.
Mrs. Pelech also agreed to transfer to Mr. Pelech one share which she held in a business operated by him. The agreement, on the recommendation of the Registrar and with the consent of the parties, was confirmed and incorporated into an order of the court. Mrs. Pelech subsequently transferred the share to Mr. Pelech and Mr. Pelech paid the maintenance monies as agreed. Mrs. Pelech was 37 years old at the time of the divorce and Mr. Pelech 44.
5. At the time of the divorce in 1969 Mr. Pelech's net worth was $128,000. Fifteen years later, when the current application to vary the original order was heard, that net worth had increased to $1,800,000. The intervening years were not so kind to Mrs. Pelech. She invested most of the money she received for maintenance and endeavoured to live on the interest from it supplemented by income she was able to earn from temporary work as a bookkeeper and sales clerk. However, over the years her psychological problems increased and were compounded by severe physical problems. Because of her bad health she was often unable to work and she encroached on the capital of her maintenance fund in order to survive. In April 1982 the fund was depleted and Mrs. Pelech applied for social assistance. Later that same year she received an inheritance which enabled her to make a $15,000 down payment on a bachelor apartment. The balance of the purchase price was financed with a $16,000 mortgage. The judge at first instance summarized the state of Mrs. Pelech's affairs at the time of this application as follows:
The wife currently receives monthly welfare payments of $430, from which she pays all her living expenses. Other than the mortgage, she has no other debt. At present, this woman is definitely living at a poverty existence level. The medical prognosis for her future ability to undertake gainful employment appears to be guarded. In view of the wife's history of ongoing disabilities together with her inability to either obtain or retain gainful employment for any appreciable period of time, I think the realistic prospects of this 53‑year‑old woman to obtain any type of future gainful employment will be most unlikely.
Mrs. Pelech is now 54 years old and Mr. Pelech 61. The two children are grown up and fend for themselves.
II. The Legislation
6. In December 1982, Mrs. Pelech brought a motion under s. 11(2) of the Divorce Act to vary the award of maintenance made to her twelve years earlier under s. 11(1) of the same Act. Section 11 reads in its entirety:
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.
7. Since the scope of an appellate court's power in reviewing a lower court's order is also put in issue on this appeal, I reproduce s. 17(2) of the Act:
17. (1) ...
(2) The court of appeal may
(a) dismiss the appeal; or
(b) allow the appeal and
(i) pronounce the judgment that ought to have been pronounced including such order or such further or other order as it deems just, or
(ii) order a new trial where it deems it necessary to do so to correct a substantial wrong or miscarriage of justice.
8. In addition, the respondent challenges the jurisdiction of this Court to hear this case on the basis of s. 18(1) of the Act which provides:
18. (1) An appeal lies on a question of law to the Supreme Court of Canada with leave of that court from a decision of the court of appeal under section 17.
Sections 41(1), 42 and 44 of the Supreme Court Act, R.S.C. 1970, c. S‑19 as amended, are also relevant to this latter issue:
41. (1) Subject to subsection (3), an appeal lies to the Supreme Court from any final or other judgment of the highest court of final resort in a province, or a judge thereof, in which judgment can be had in the particular case sought to be appealed to the Supreme Court, whether or not leave to appeal to the Supreme Court has been refused by any other court, where, with respect to the particular case sought to be appealed, the Supreme Court is of the opinion that any question involved therein is, by reason of its public importance or the importance of any issue of law or any issue of mixed law and fact involved in such question, one that ought to be decided by the Supreme Court or is, for any other reason, of such a nature or significance as to warrant decision by it, and leave to appeal from such judgment is accordingly granted by the Supreme Court.
42. Notwithstanding anything in this Act, the Supreme Court has jurisdiction as provided in any other Act conferring jurisdiction.
44. (1) No appeal lies to the Supreme Court from a judgment or order made in the exercise of judicial discretion except in proceedings in the nature of a suit or proceeding in equity originating elsewhere than in the Province of Quebec and except in mandamus proceedings.
(2) This section does not apply to an appeal under section 41.
III. The Courts Below
9. Mrs. Pelech's application for a variation of the original maintenance award was granted by Wong L.J.S.C. of the British Columbia Supreme Court (1984), 41 R.F.L. (2d) 274. Wong L.J.S.C. first rejected Mrs. Pelech's allegation that her health problems stemmed from the physical cruelty of Mr. Pelech during their marriage. He found that there was no evidence of such cruelty and, indeed, that Mrs. Pelech's psychological problems were a contributing factor in the marriage breakdown. He expressed his satisfaction that Mrs. Pelech had been represented by independent counsel at the time of the divorce and that therefore the maintenance agreement could not be viewed as unconscionable. Moreover, its terms had long since been fully discharged. The question therefore became whether the court should vary the freely negotiated and fully discharged maintenance agreement which had formed the basis of the original court order.
10. The respondent submitted that the jurisdiction of the court under s. 11(2) depended upon there being an existing court order and that, once the s. 11(1) order had been fully discharged, nothing remained for the court to vary. He cited the decision of the Alberta Supreme Court in Collins v. Collins (1978), 2 R.F.L. (2d) 385 in support. In that case Dechene J. at p. 390 quoted with approval the comments of Sinclair J.A. dissenting in Goldstein v. Goldstein (1976), 23 R.F.L. 206 (Alta. C.A.) where he said at p. 216:
I say this because it is my view that Parliament did not intend that after divorce the divorced spouses were to be forever contingently liable for the support of each other. In my opinion Parliament must have intended that at some stage or another a divorced person is entitled to say `That's it: my responsibilities to my former partner are at an end; I can look forward to a new life free of any contingent liability to my former spouse and can plan my affairs accordingly.'
Dechene J. also relied on the statement of Anderson J. in the British Columbia Supreme Court in Dal Santo v. Dal Santo (1975), 21 R.F.L. 117 to the effect that it is in the community interest to encourage parties to negotiate an agreement upon which they may rely in the future and that "contracts of this kind should not be lightly disturbed" (p. 120).
11. Wong L.J.S.C. rejected this approach to s. 11(2) . He felt that the need to preserve the court's jurisdiction to supervise the maintenance of former spouses "as an incident of divorce" was fully as important as the need for finality in the marital obligations of ex‑spouses. He saw "the divorced relationship" as a continuing relationship involving an ongoing power in the court to supervise maintenance presumably for as long as the parties lived. He did not think that a broader interpretation of s. 11(2) had the effect of excluding the considerations voiced by the court in Collins. He accepted the view expressed in the authorities that a court should not ignore or lightly upset a previous agreement when making an order that is "fit and just" under s. 11(2) . Judicial intervention therefore should only occur when there is "a gross change in circumstances" or when "the conscience of the court is shocked". Wong L.J.S.C. felt that at the time Mr. and Mrs. Pelech entered into the agreement they both assumed that Mrs. Pelech was employable and would become financially self‑sufficient. Mrs. Pelech's current dire need constituted a gross change in circumstances and Mr. Pelech was now, by contrast, a person of ample means. The burden of maintaining Mrs. Pelech should therefore fall upon her ex‑spouse rather than on the public purse. Wong L.J.S.C. ordered Mr. Pelech to pay periodic maintenance of $2,000 per month to Mrs. Pelech.
12. Lambert J.A., for a unanimous Court of Appeal, overturned Wong L.J.S.C.'s decision to vary the original order (1985), 45 R.F.L. (2d) 1, 17 D.L.R. (4th) 147, 61 B.C.L.R. 217. Although he agreed that the court's jurisdiction could not be extinguished by the fulfilment or satisfaction of the terms of the previous order, he had a different view of when it was appropriate to exercise that jurisdiction. Lambert J.A. referred to the extensive jurisprudence on this issue and suggested that the recurring concern in the modern authorities is that parties should be able to rely on their agreements. He quoted with approval Zuber J.A.'s reasons in the Ontario Court of Appeal in Farquar v. Farquar (1983), 1 D.L.R. (4th) 244 to the effect that, since changes in circumstance are inevitable, such changes should not be used to justify judicial intervention into otherwise valid and binding contractual arrangements. "If the parties agree to settle their affairs", said Zuber J.A., "then their affairs should be regarded as settled" (p. 253). Zuber J.A. went on to say, however, that if the agreement they enter into is vulnerable on some other basis, then the changes in circumstance will be a factor to be taken into account in determining the appropriate award of maintenance. In Lambert J.A.'s view Zuber J.A.'s reference to some other basis was to the traditional common law and equitable defences to the enforcement of ordinary contracts as well as to a "narrow range of cases" where relief is appropriate despite the binding effect of the contract.
13. Unfortunately Lambert J.A. did not elaborate on what he considered comprised the narrow range of cases in which a binding settlement agreement could be varied other than to say that cases "where the maintenance provisions adversely affect the custody of children come instantly to mind, as an example". Instead, he concentrated on the principle he was relying on for not intervening in this case, namely that where:
(a) there is an agreement for the payment of maintenance as a lump sum or as periodic payments for a set period, and
(b) the agreement releases all claims for future maintenance, and
(c) the agreement was valid and enforceable when it was made, and
(d) the agreement was not an unreasonable or unfair one when it was made, and
(e) the provisions of the agreement for payment of maintenance are incorporated in a court order without any change that has not been agreed to by the parties, and
(f) the agreement and the court order are carried out, and all maintenance payments are made, and
(g) there are no children whose care is directly affected by any subsequent application to vary the maintenance order...
there should be no intervention. Judicial intervention should be the exception and not the rule:
The rule is that settlement agreements must be respected. Marriage partners who decide to go their own way should be able to set for themselves, if they wish, the terms on which they will part, without risk of judicial intervention. If an agreement is not final and binding, then nothing can be achieved by making the compromises required to reach agreement, and the parties will have little incentive or encouragement to settle their differences.
Lambert J.A. acknowledged that the consequence of this principle was that Mrs. Pelech and others in similar circumstances would remain a public charge. However:
...against that must be weighed, among other financial consequences, the financial advantages to the community in having binding maintenance settlements made by the parties themselves, rather than by judges and other public officers in facilities provided and maintained at public expense.
Lambert J.A. concluded by allowing Mr. Pelech's appeal and dismissing Mrs. Pelech's application for a variation of the 1969 maintenance order.
IV. Jurisdictional Issues
A. The Powers of the Reviewing Court
14. The appellant submits that the principle enunciated by Lambert J.A. in the Court of Appeal amounts to a fettering of the trial judge's discretion under s. 11(2) . That discretion, the appellant argues, confers on the trial judge "an untrammeled right to vary a maintenance order in appropriate circumstances". The Court of Appeal, on the other hand, does not have a wide open discretion to substitute its view for that of the trial judge but can only interfere where there has been error of law in the court below. The appellant cites Harrington v. Harrington (1981), 33 O.R. (2d) 150 (C.A.) in support.
15. The respondent takes issue with this view of the Court of Appeal's jurisdiction and refers to the proposition advanced in Piller v. Piller, [1975] 4 W.W.R. 342 (B.C.C.A.), to the effect that s. 17(2) of the Divorce Act does indeed give the Court of Appeal an independent discretion to decide the case afresh. I reproduce the section once more for convenience:
17. (1) ...
(2) The court of appeal may
(a) dismiss the appeal; or
(b) allow the appeal and
(i) pronounce the judgment that ought to have been pronounced including such order or such further or other order as it deems just, or
(ii) order a new trial where it deems it necessary to do so to correct a substantial wrong or miscarriage of justice.
The respondent also relies on the comment of Laskin C.J. in Nash v. Nash, [1975] 2 S.C.R. 507, where he said at p. 516:
Counsel for the appellant founds himself, first, on the position that the Court of Appeal ought not to have interfered with the discretion of the trial judge in ordering periodic payments....On the first point taken, s. 17 of the Divorce Act gives the widest powers to the Court of Appeal, and I am unable to say in this case that if that Court had the power to order security for the payment of periodic maintenance it was wrong in doing so.
16. Implicit in the appellant's argument is the premise that the trial judge in the present case acted within his discretion and that, as no error of law was demonstrated, the appellate court must defer to his decision. However, the appellant's description of the s. 11(2) jurisdiction of the trial judge as "an untrammeled right to vary...in appropriate circumstances" begs the question. The right is not "untrammeled"; it is clearly constrained by the appropriateness of the circumstances. While I agree that the so‑called "principle" enunciated and applied by Lambert J.A. in this case is merely an illustration of one set of "appropriate circumstances" rather than a proposition of law, the criteria for the exercise of judicial discretion are essentially legal criteria. Their delineation, as well as a failure to apply them or a misapplication of them, raises a question of law. In my view, the present case squarely raises the question as to what the criteria are for determining the appropriateness of judicial intervention under s. 11(2) or, to use the language of the statute, when is it "fit and just" for the court to vary a s. 11(1) order in the face of an antecedent valid and enforceable settlement agreement. As this question of law is sufficient in itself to ground the Court of Appeal's jurisdiction, it is not, strictly speaking, necessary to resolve the disparate views expressed in the Piller and Harrington cases. However, the point has been raised by the parties and would appear to require clarification.
17. The decision in Piller stands for the proposition that s. 17(2) (b)(i) of the Divorce Act confers a broad power on courts of appeal to review discretionary decisions made in the courts below. This interpretation was reaffirmed in unequivocal terms in Carmichael v. Carmichael (1976), 27 R.F.L. 325 (B.C.C.A.) In that case Farris C.J.B.C., who also delivered the judgment in Piller, stated at p. 329:
In approaching the question of whether the order made below is appropriate, this court has an independent discretion. It need not be shown before we can intervene that the trial judge proceeded on some wrong principle or failed to take into consideration factors that he should have, or took into consideration factors which were not appropriate: see Piller v. Piller, 17 R.F.L. 252, [1975] 4 W.W.R. 342 at 345, 54 D.L.R. (3d) 150 (B.C.C.A.). I therefore approach this problem as if the court was hearing the matter anew. The fact that I differ in the result does not necessarily mean that Aikins J. was wrong. It simply means that reasonable men may differ in their view of what is appropriate.
This expansive interpretation of s. 17(2) has generally been adhered to in the B.C. courts and has in addition found favour with the Manitoba Court of Appeal in Guberman v. Guberman, [1977] 2 W.W.R. 1.
18. A more restrictive view has been espoused by the Ontario courts. The following passage from Morden J.A.'s reasons in Harrington articulates the rationale for this alternative approach (at pp. 154‑55):
The purpose of s. 17(2) (b)(i) of the Divorce Act , which enables us to "pronounce the judgment that ought to have been pronounced" is to prescribe the general kind of disposition open to us, on allowing an appeal, as an alternative to ordering a new trial (s. 17(2) (b)(ii)) and is not intended, in my view, to provide the rule governing when we will interfere with the challenged judgment, i.e., it does not set forth the standard for determining whether or not the challenged judgment should be set aside. The language of s. 17(2) (b)(i) is not new and is rather familiar in statutes relating to appeals (see, e.g., 1857 (U.C.), c. 5, s. 7 , in a statute relating to the Court of Error and Appeal in Upper Canada, and the Judicature Act, R.S.O. 1970, c. 228, s. 30(1)), and its function is, to repeat, to prescribe one aspect of the nature of our power after it has been decided, on proper grounds, that the appeal should be allowed.
Where the ultimate disposition turns on the relative weighting of principles and considerations (the broad mandate is set forth in s. 11(1) of the Divorce Act ), different minds may fairly come to different conclusions, and there are no fixed rules for determining "correctness", it seems to me that general practicality and fairness require an appellant to show some material error in the reasoning of the trial Judge for an appellate Court to interfere. This approach applies with particular force in a case (and this is not one) where the only issue is the amount of entitlement. Because he has the benefit of the atmosphere of the trial, a trial Judge is generally in a better position than an appellate Court to exercise his evaluative judgment correctly. Also, an independent discretion, approach, involving a reconsideration of all matters de novo, would inevitably result in there being a fairly arguable appeal in just about every case.
19. Both the Piller and the Harrington lines of authority are of great force and persuasion. However, it seems to me that if one examines the basis of each approach and, in addition, their impact in general terms on traditional notions of appellate review, the views expressed in Harrington afford the most acceptable result.
20. The court in Piller drew support from Martland J.'s reasons in Swain v. Dennison, [1967] S.C.R. 7, and from the remarks referred to earlier by Laskin C.J. in Nash. The legislative provision at issue in Swain v. Dennison was s. 17 of the Testator's Family Maintenance Act, R.S.B.C. 1960, c. 378. It provides:
17. From any order made under this Act a party deeming himself prejudicially affected may appeal to the Court of Appeal within the same time and the same manner as from a final judgment of the Court in a civil cause.
Martland J. reasoned that because of the discretionary nature of the trial judge's jurisdiction under the Act and the specific right of appeal conferred in s. 17 , the appellate court was empowered to reach its own conclusion whenever a party deemed itself "prejudicially affected". It seems to me, however, that the language of the legislation in Swain v. Dennison differs significantly from that of s. 17(2) of the Divorce Act . The former provision sets out the conditions under which a party may appeal, i.e., whenever it deems itself prejudiced by the decision at first instance. In order that that very broad right of appeal be meaningful the court to which such an appeal is taken should be able to intervene on the same basis and correct the prejudice complained of. This is dictated both by common sense and the principle in Ashby v. White (1703), 2 Ld. Raym. 938, 92 E.R. 126, which presumes that the conferral of a right is accompanied by the conferral of a remedy. Thus s. 17 of the Testator's Family Maintenance Act, by identifying the scope of a party's appeal rights, by implication identifies the scope of the reviewing court's power to intervene.
21. In contrast, s. 17(2) of the Divorce Act sets out the remedial powers of the reviewing court upon hearing an appeal rather than the conditions under which that appeal can be heard in the first place. Those powers are threefold: it may dismiss the appeal, allow the appeal and pronounce judgment that ought to have been pronounced below or allow the appeal and order a new trial. It is the phrasing of the second remedial alternative in terms of pronouncing the judgment "that ought to have been pronounced" which has given rise to the divergence in views. However, I do not think that by itself the reasoning in Swain v. Dennison requires the enlarged interpretation of what "ought to have been pronounced" proposed by Farris C.J.B.C. Rather I would agree with Morden J.A. in Harrington that the purpose of the enumeration of powers in s. 17(2) is to set out alternative dispositions open to the court in granting or dismissing an appeal in conformity with traditional principles of appellate review. The legislation in Swain v. Dennison does not directly address this remedial aspect of the court's jurisdiction.
22. On the other hand, Laskin C.J.'s remarks in Nash offer support for the Piller approach which is not in any way dependent on the parallel treatment in Swain v. Dennison of the Testator's Family Maintenance Act. The substantive issue in Nash was whether the Court of Appeal could condition the grant of a decree nisi on the provision of adequate security for maintenance payments. In Laskin C.J.'s view neither the trial judge nor the Court of Appeal had jurisdiction to fashion such a remedy. Consequently, he did not have to deal with the issue of whether the court was additionally prevented from doing so because of the traditional limits on appellate review. Strictly speaking, therefore, the comments relied upon by the respondent in the present appeal and Farris C.J.B.C. in Piller are obiter. Nevertheless they are fairly weighty obiter and they do indeed suggest that in Laskin C.J.'s view s. 17(2) would have allowed the Court of Appeal to substitute its own discretion for that of the trial judge.
23. Morden J.A. did not address the impact of Laskin C.J.'s comments in Nash other than to state that he did not interpret them as leading to the conclusion that s. 17 of the Divorce Act gives the Court of Appeal an independent discretion. He went on to point out at p. 155 that "such an approach has not been followed with respect to other kinds of decisions, such as those relating to the decree nisi of the divorce itself and to custody, which are appealable under s. 17 ".
24. With regard to this latter point, it appears that even the B.C. Court of Appeal which has, in general, adhered to the Piller approach has expressed its doubts with regard to the suitability of that approach where custody is at issue. In Gazdeczka v. Gazdeczka (1982), 30 R.F.L. (2d) 428 (B.C.C.A.), the central issue concerned an award of custody made incidentally to proceedings for divorce. In the course of dismissing the appeal from the trial judge's decision, Hinkson J.A. for the court stated (at pp. 430‑31):
In Genest v. Genest (1970), 3 R.F.L. 97, 73 W.W.R. 81, 11 D.L.R. (3d ) 254, this court had occasion to consider an appeal in a custody matter. McFarlane J.A. made reference to the decision in Bickley v. Bickley, [1957] S.C.R. 329, 7 D.L.R. (2d) 465, and what was said there by Cartwright J. (as he then was) at p. 333, as follows:
"...in the light of all evidence in the record we find it impossible to say that he (that is, the learned trial judge) did not make full judicial use of the opportunity given to him, and denied to the appellate Courts, of seeing and hearing the parties; the advantage thus afforded to the trial judge is always great but peculiarly so in a case of this sort where so much depends upon the character of the parents whose claims are in conflict."
It seems to me that that principle has application in the present case.
Hinkson J.A. went on nevertheless at the urging of counsel to draw his own conclusion in the matter on the basis of Piller. However, even on this approach, he found himself in agreement with the trial judge's disposition.
25. A further erosion of Piller seems to have occurred in a recent decision by MacFarlane J.A. in Posener v. Posener (1984), 4 D.L.R. (4th) 385 (B.C.C.A.) In Posener the parties were divorced in 1973. There was no claim for maintenance in