Richardson v. Richardson

Richardson v. Richardson
Collection
Supreme Court Judgments
Date
1987-06-04
Report
[1987] 1 SCR 857
Case number
19287
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
Ontario
Subjects
Family law
Notes
SCC Case Information: 19287
Decision Content
Richardson v. Richardson, [1987] 1 S.C.R. 857
Donna Gail Richardson Appellant
v.
George Edward Richardson Respondent
indexed as: richardson v. richardson
File No.: 19287.
1986: March 24, 25; 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 ontario
Divorce ‑‑ Maintenance ‑‑ Variation ‑‑ Settlement agreement ‑‑ Agreement prior to divorce providing for wife support for a period of one year ‑‑ Wife unable to find work during that period and supported by public assistance claimed maintenance in divorce proceeding ‑‑ Power of the court to vary maintenance provision of the agreement under s. 11(1) of the Divorce Act .
Divorce ‑‑ Maintenance ‑‑ Escalator clause ‑‑ Settlement agreement ‑‑ Whether a court can insert an escalator clause in a decree nisi where the parties did not have such a clause in their settlement agreement ‑‑ Divorce Act, R.S.C. 1970, c. D‑8, s. 11(1).
Married in 1967, the parties separated in 1979. They had two children. The wife was not employed at the time of the separation but had worked full time until 1974 and for one month during that year and three months in 1976. Her husband has been a police officer since 1964. The proceeding commenced pursuant to the Ontario Family Law Reform Act ended with a settlement exemplified by minutes of settlement at a pre‑trial conference where both parties were represented by counsel. Under the settlement agreement, the respondent was required to pay maintenance to the appellant for a period of one year. Provision was also made for the child in custody of the appellant. After the one‑year period, appellant was still unemployed and was receiving social assistance. In the divorce action, she requested a variation of the terms of the minutes of settlement claiming maintenance for herself and an increase in maintenance for the child in her custody. The trial judge did not vary the child maintenance but awarded maintenance to the appellant and ordered an annual review of the maintenance to keep up with changes caused by inflation and the financial circumstances of the respondent. On appeal, the Court of Appeal found no change of circumstances in either the appellant or the respondent that would justify the allowance and struck the award for continued maintenance to the appellant and the "escalator" clause. The Court also ordered an increase in the child maintenance. This appeal is to determine when it is fit and just for a judge to make an order for spousal maintenance under s. 11(1) of the Divorce Act in an amount different from that agreed upon by the parties in an antecedent settlement agreement.
Held (La Forest J. dissenting): The appeal should be dismissed.
Per Dickson C.J. and McIntyre, Lamer, Wilson and Le Dain JJ.: A court should vary a settlement agreement only where there has been a radical change in the circumstances of a former spouse and that change is the result of a pattern of economic dependency generated by the marriage relationship. This test, enunciated in the Pelech case in the context of an application under s. 11(2) of the Divorce Act , is applicable as well to a s. 11(1) application. In this case, the test was not met and the agreement should stand. Not only had there been no change of circumstances between the time of the separation agreement and the divorce proceeding, but it is also questionable whether appellant's unemployment at the time of the petition for divorce could be attributed to a pattern of economic dependency developed during the marriage. Appellant worked during a good part of her marriage. Thus, it cannot be said that the marriage atrophied her skills or impaired their marketability.
The fact that the former spouse has become a public charge does not by itself justify the variation of a spousal maintenance order. In the absence of a radical change in circumstances tied to marriage related pattern of economic dependency, the obligation to support her should be, as in the case of any other citizen, the communal responsibility of the state.
Appellant's support payments cannot be increased simply because she has custody of her child. Where a court is concerned with the welfare of a child, that concern should be addressed, as did the Court of Appeal, by varying the amount of child support. A court is always free to intervene and determine the appropriate level of child support notwithstanding any settlement agreement between the spouses.
Appellant's allegation that the parties limited the period of spousal maintenance to one year because it was their common expectation that she would be employed within that period is not supported by the evidence and does not justify a departure from the settlement agreement. In a case like this one, where the parties' expectation is unclear or where there is no evidence of a common expectation, the agreement entered into by the parties freely and on the advice of independent legal counsel (which are not unconscionable in the substantive law sense) should be respected.
Finally, where the parties do not have an escalator clause in their settlement agreement, a trial judge cannot insert one in the decree nisi where there is no change of circumstances justifying a variation of the agreement.
Per La Forest J. (dissenting): Section 11(1) of the Divorce Act provides that a "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 an order for a spouse to pay a lump sum or periodic sums for maintenance. Under that section, the discretion to award maintenance is vested in the judge in the divorce action, not anyone else. The parties, therefore, cannot oust his jurisdiction by contract. Although the existence of a separation agreement is an important fact to be considered by the judge in exercising his discretion, the judge is not bound by it. The agreement should not lightly be disturbed, but if the court feels, having regard to the factors spelled out in s. 11(1) , that there is need for change, it should allow it. The judge's discretion is not limited only to cases where there has been a radical change in the circumstances of a former spouse after the agreement was made. This test enunciated in the Pelech case in the context of s. 11(2) is not applicable to a s. 11(1) application. There are significant differences between the two types of decision. When the trial judge exercises an original discretion in a divorce action to make an order for maintenance where the parties have entered into an agreement, it comes to the judge for the first time and he must review all the circumstances as a whole in exercising the discretion given by the Divorce Act to do what is fit and just. However, when variation of such an order is sought under s. 11(2) , the judge is dealing with an order by which it has already been judicially determined under the Act that the agreement was fit and just. The judge's authority is under the Act then confined to considering circumstances that have since intervened. Under these circumstances, a judge should adopt a far more stringent attitude before disturbing the agreement incorporated into a maintenance order. To do otherwise would amount to a reconsideration of the original order which was never intended by s. 11(2) of the Act.
Further, a separation agreement made pursuant to provincial family relations legislation while the marriage subsists is substantially different from one approved by a divorce court. A divorce is meant to be final. By contrast, s. 18(4) of the Family Law Reform Act, under which the agreement in this case was made, expressly provided for variation, both where the provision for support "results in circumstances that are unconscionable", and where the person supported "qualifies for an allowance for support out of public money". Had an application been made for a variation under this Act, or its successor, there is no reason why it could not have been varied.
Where the trial judge exercises his jurisdiction on a proper basis in making an order pursuant to s. 11 of the Divorce Act , a court of appeal has no right to interfere. The court of appeal cannot usurp the trial judge's jurisdiction in this area and should not substitute its discretion. Thus, in reviewing his judgment, a court of appeal is restricted to dealing with the matter in conformity with traditional principles of appellate review, such as material error including a misapprehension of the evidence, the exercise of discretion on an incorrect basis, and the like.
In the case at bar, appellant's lack of employment flowed directly from the role she played in the marriage. During the years she stayed home with the children, her skills have atrophied and she was unable to gain the new skills that are necessary today in her field as well as in others to compete against younger people with recent training. She is now in her mid‑forties and must find time and energy to care for a child. The trial judge, weighing the relevant factors, determined that it would not be fit and just to permit the parties' relationship to continue to be governed by a provision of the separation agreement under which a destitute spouse was to receive low support for one year only, a period that had expired when the divorce decree was issued. The suggestion in the evidence that the common expectation of the party was that appellant would be able to find work within one year for which support was provided also supported the trial judge's decision to order maintenance, and indeed, the parties in their pleadings agreed that these common expectations existed. No sufficient reason has been advanced to disturb the trial judge's decision and the Court of Appeal should not have done so.
Finally, a court has the power to include an escalator clause in a maintenance order. Inflation is a perennial problem in making compensation awards. Such an attempt to give a constant value to an award does not go beyond the meaning of periodic payment or amount to a variation. Here, no compelling reasons have been presented for interfering with the trial judge's order in this regard and it should be restored.
Cases Cited
By Wilson J.
Applied: Pelech v. Pelech, [1987] 1 S.C.R. 801; distinguished: Barrett v. Barrett (1985), 43 R.F.L. (2d) 405; referred to: Farquar v. Farquar (1983), 1 D.L.R. (4th) 244; Webb v. Webb (1984), 39 R.F.L. (2d) 113; Joyce v. Joyce (1984), 47 O.R. (2d) 609; Sumner v. Sumner (1973), 12 R.F.L. 324; Paras v. Paras, [1971] 1 O.R. 130; Jull v. Jull (1984), 42 R.F.L. (2d) 113; Re Cartlidge and Cartlidge, [1973] 3 O.R. 801; Malcovitch v. Malcovitch (1978), 21 O.R. (2d) 449; Hansford v. Hansford, [1973] 1 O.R. 116; Dal Santo v. Dal Santo (1975), 21 R.F.L. 117; Mercer v. Mercer (1978), 5 R.F.L. (2d) 224; Collins v. Collins (1978), 2 R.F.L. (2d) 385; Krueger v. Taubner (1974), 17 R.F.L. 86; Doepel v. Doepel (1983), 36 R.F.L. (2d) 316; Van Doorn v. Van Doorn (1985), 46 R.F.L. (2d) 186.
By La Forest J. (dissenting)
Pelech v. Pelech, [1987] 1 S.C.R. 801; Messier v. Delage, [1983] 2 S.C.R. 401; Hyman v. Hyman, [1929] A.C. 601; Harrington v. Harrington (1981), 33 O.R. (2d) 150; Ross v. Ross (1984), 39 R.F.L. (2d) 51; Newman v. Newman (1980), 4 Man. R. (2d) 50; Katz v. Katz (1983), 33 R.F.L. (2d) 412; Thompson v. Thompson (1974), 16 R.F.L. 158; Jull v. Jull (1984), 42 R.F.L. (2d) 113; Van Doorn v. Van Doorn (1985), 46 R.F.L. (2d) 186; Farquar v. Farquar (1983), 1 D.L.R. (4th) 244; Webb v. Webb (1984), 39 R.F.L. (2d) 113; Joyce v. Joyce (1984), 47 O.R. (2d) 609; Malcovitch v. Malcovitch (1978), 21 O.R. (2d) 449; Fabian v. Fabian (1983), 34 R.F.L. (2d) 313; Doepel v. Doepel (1983), 36 R.F.L. (2d) 316; Barrett v. Barrett (1985), 43 R.F.L. (2d) 405; Yeates v. Yeates (1982), 31 R.F.L. (2d) 71; Ursini v. Ursini (1975), 24 R.F.L. 261; Lardner v. Lardner (1980), 20 R.F.L. (2d) 234; Droit de la famille‑‑193, [1985] C.A. 252; Droit de la famille‑‑221, [1985] C.A. 394; Ménard v. Ricard, [1974] C.A. 157; D'Errico v. D'Errico, [1980] C.A. 27; Laflamme v. Levallée, [1981] C.A. 396; Jarvis v. Jarvis (1984), 45 R.F.L. (2d) 223; Moosa v. Moosa, Ont. Prov. Ct. (Family Division), June 17, 1981, unreported.
Statutes and Regulations Cited
Child and Family Services and Family Relations Act, S.N.B. 1980, c. C‑2.1, s. 115(5).
Divorce Act, R.S.C. 1970, c. D‑8, s. 11(1), (2).
Family Law Act, 1986, S.O. 1986, c. 4, Preamble, s. 33(4).
Family Law Reform Act, R.S.O. 1980, c. 152, s. 18(4).
Family Law Reform Act, S.O. 1978, c. 2, s. 18(4).
Family Law Reform Act, S.P.E.I. 1978, c. 6, s. 19(4).
Matrimonial Property and Family Support Ordinance, S.Y.T. 1979 (2nd), c. 11, s. 30.5(4) [en. 1980 (2nd), c. 15, s. 7(1)].
Authors Cited
Abella, Rosalie S. "Economic Adjustment on Marriage Breakdown: Support" (1981), 4 F.L.R. 1.
Berger, Thomas R. "Forms of Support Orders Under the Divorce Act ". In Family Law: Dimensions of Justice. Edited by Rosalie S. Abella and Claire L'Heureux‑Dubé. Toronto: Butterworths, 1983, pp. 67‑76.
Cook, Gail C. A. "Economic Issues in Marriage Breakdown". In Family Law: Dimensions of Justice. Edited by Rosalie S. Abella and Claire L'Heureux‑Dubé. Toronto: Butterworths, 1983, pp. 19‑26.
Payne, Julien D. "Approaches to Economic Consequences of Marriage Breakdown". In Family Law: Dimensions of Justice. Edited by Rosalie S. Abella and Claire L'Heureux‑Dubé. Toronto: Butterworths, 1983, pp. 27‑34.
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 Ontario Court of Appeal (1985), 44 R.F.L. (2d) 355, varying a judgment of Perras L.J.S.C., [1983] W.D.F.L. 829. Appeal dismissed, La Forest J. dissenting.
Janet M. Wilson, for the appellant.
D. Wayne Lalonde, for the respondent.
The judgment of Dickson C.J. and McIntyre, Lamer, Wilson and Le Dain JJ. was delivered by
1. Wilson J.‑‑The issue in this case is when is it "fit and just" for a judge to make an order for spousal maintenance under s. 11(1) of the Divorce Act, R.S.C. 1970, c. D‑8, in an amount different from that agreed upon by the parties in an antecedent settlement agreement.
2. The parties were married on November 18, 1967 and separated in November 1979. There are two children of the marriage neither of whom has attained the age of majority. Since 1964 the respondent has been a member of the Ottawa City Police Force. By the time of the divorce proceedings he had attained the rank of sergeant. From the time of her marriage until the birth of her second child in 1974 the appellant worked as a clerk‑typist with the National Research Council of Canada. Apart from two jobs of very short duration in 1974 and 1976 the appellant has not worked since 1974. In 1980 she moved to North Bay to live with her parents. She is now aged 46 and her former husband 43.
3. Proceedings under the Family Law Reform Act, R.S.O. 1980, c. 152, were commenced in Ottawa in 1980. When the appellant moved from Ottawa to North Bay she retained counsel there. At the pre‑trial conference which was held at the courthouse in Ottawa the appellant was represented by the Ottawa agent for that counsel. The appellant does not contend that her legal representation was deficient in any respect. At the pre‑trial conference the Family Law Reform Act proceeding was settled by handwritten Minutes of Settlement dated April 14, 1981. The settlement agreement was executed by Mrs. Richardson in North Bay in the presence of her counsel.
4. The settlement agreement gave custody of one child to the appellant and custody of the other child to the respondent. The respondent agreed to pay spousal support to the appellant in the amount of $175 per month for a period of one year and to pay support for the child in her custody in the amount of $300 per month with no limit as to the duration of that support. The parties agreed to share equally a $20,000 debt owing to the wife's parents. The respondent assumed debts accumulated during the marriage in the amount of $9,513.53. The appellant released her interest in the matrimonial home to the husband. The total equity in the home was valued at the time of the divorce hearing at $20,921.80.
5. Although the handwritten Minutes of Settlement contained no clause providing that the settlement was final and conclusive of all claims between the parties, it appears that counsel for the respondent inserted such a clause in the final typewritten version of the Minutes. That version did not differ in any other respect from the handwritten version and was signed by both parties.
6. Following the settlement of that litigation Mrs. Richardson commenced proceedings for divorce claiming inter alia maintenance for herself (the one‑year period having expired) and increased maintenance for the child in her custody. The divorce action was tried before Perras L.J.S.C. in the Supreme Court of Ontario. The appellant was then in receipt of social assistance. Perras L.J.S.C. gave judgment on May 12, 1983. He found that "because of these present handicaps experienced by Mrs. Richardson this is a sufficient case in which to ignore the earlier minutes of settlement". The trial judge then fixed the monthly maintenance for the wife at $500 and the monthly maintenance for the child in the wife's custody at $300. The judge also ordered an annual review and variation of the maintenance in order to keep up with "changes which may be caused by inflation and the financial circumstances of the respondent". The actual adjustment formula was based on changes in the husband's annual income as recorded in his T4 slip.
7. The respondent successfully appealed the trial judgment to the Ontario Court of Appeal (1985), 44 R.F.L. (2d) 355. Judgment was given orally by Grange J.A. on behalf of the Court. Counsel agree that in the course of counsels' argument the Court referred to and adopted as the governing law its earlier decisions in Farquar v. Farquar (1983), 1 D.L.R. (4th) 244, Webb v. Webb (1984), 39 R.F.L. (2d) 113 and Joyce v. Joyce (1984), 47 O.R. (2d) 609. The effect of these cases was to require a "catastrophic" change in circumstances to justify an interference with the provisions of a valid and enforceable separation agreement. Speaking for himself, Dubin and Finlayson JJ.A., Grange J.A. stated in his oral reasons for judgment (at p. 358):
The trial judge granted maintenance to the wife notwithstanding the minutes of settlement upon the grounds that there had been a change of circumstance entitling the wife to that allowance. We can see no change of circumstance in either the wife or the husband that would justify that allowance.
It is possible that the parties contemplated when limiting the support for the wife to the one‑year period that the wife would, during that period, not only seek, but obtain employment. Indeed there is some suggestion in the evidence of the husband that that was so. The difficulty with that assumption, however, is that when the solicitor for the wife was examined in the previous proceedings, he was not permitted to give the substance of his advice to the wife and consequently, we do not know whether or not that was her contemplation at the time.
The award of continued maintenance to the appellant was struck from the order of Perras L.J.S.C. However, the Court of Appeal, quite properly, did not consider itself bound by the terms of the Minutes of Settlement as far as maintenance for the child was concerned and ordered that the monthly payment for the child be increased to $500. Grange J.A. also struck from the order the so‑called "escalator" clause providing for the automatic variation of maintenance depending on changes in the respondent's income. It became academic as far as the appellant was concerned since the Court of Appeal found that she had no entitlement to maintenance and it was, so that Court held, inappropriate so far as the child's maintenance was concerned.
8. In approaching this case the Court should have regard to the principles enunciated in Pelech v. Pelech, [1987] 1 S.C.R. 801 (reasons for judgment released concurrently), that a court should vary a settlement agreement only where there has been a radical change in the circumstances of a former spouse and that change is the result of a pattern of economic dependency generated by the marriage relationship. I appreciate that that principle was stated in the context of a s. 11(2) application and that this case involves s. 11(1). I appreciate also that the wording of the two subsections is different. Section 11(1) provides that the court may make the order it thinks fit and just having regard to the condition, means and other circumstances of the parties. Section 11(2) states that an order made under s. 11(1) may be varied if the court thinks it fit and just to do so having regard to any change in the condition, means or other circumstances of the spouses. Nevertheless, in my view, despite the difference in the statutory language, when a court is confronted with a settlement agreement reached by the parties the same criteria should be applied under both sections. The underlying rationale is the same under both, namely 1) the importance of finality in the financial affairs of former spouses and 2) the principle of deference to the right and responsibility of individuals to make their own decisions. It is true that in an application under s. 11(2) the settlement agreement is incorporated in a decree nisi and this is not so in the case of an application under s. 11(1). However, as was noted by Zuber J.A. in Farquar v. Farquar, supra, at p. 250:
In this case, the parties not only agreed to settle their own affairs but the agreement was incorporated into a divorce decree. In my view, the additional fact of the decree confirming the agreement adds little, if anything, to the problem. The centre of the problem is the agreement itself set out in the minutes.
9. If Zuber J.A. is correct in this, and I think he is, it is not surprising that when faced with a settlement agreement the courts have applied the same criteria in deciding when to depart from that agreement in both s. 11(1) and s. 11(2) applications. As Blair J.A. noted in Webb v. Webb, supra, at p. 133: "In practice. . .there has been considerable intermingling of the subsections in cases involving prior agreements between the parties". He then went on to state, after a review of the case law, that generally under s. 11(1) the courts have only interfered with the terms of a separation agreement where there has been a change of circumstances of sufficient magnitude to justify the variation and that this is the same test as is applied under s. 11(2) .
10. In my view, the only difference under the two subsections is that in a s. 11(1) application the change being considered will have occurred between the signing of the agreement and the application for the decree nisi whereas in the s. 11(2) application the change will have occurred between the granting of the decree nisi and the application for variation.
11. Given that the Pelech test is applicable in a s. 11(1) as well as a s. 11(2) application, the test is not met on the facts of this case. No event has occurred which the appellant is peculiarly unable to deal with because of a pattern of economic dependency generated by the marriage. At the time the separation agreement was concluded Mrs. Richardson was unemployed and Mr. Richardson was a sergeant in the Ottawa Police Force earning approximately $40,000 per annum. The same conditions existed when the divorce proceeding was heard. Not only had there been no change of circumstances, as the Ontario Court of Appeal found, but it was also questionable whether Mrs. Richardson's position at the time could be attributed to a pattern of economic dependency developed during the marriage. As has already been mentioned, Mrs. Richardson was married in 1967 and worked continuously as a clerk‑typist until the birth of her second child in 1974. She worked for one month in 1974 and for three months in 1976. The couple separated in November 1979. In sum, she was employed more often than not during the marriage. Moreover, the period of time from her last employment until the date of the separation was not that great. In this sense it cannot be said that the marriage atrophied her skills or impaired their marketability.
12. Counsel for the appellant relies, however, on comments in the case law which suggest that certain factors may per se justify a court in varying the terms of a settlement agreement. He submits, for example, that the fact that the appellant is now in receipt of public assistance is one such factor. However, as mentioned in Pelech, the fact that a former spouse has become or may become a public charge does not by itself justify the variation of a spousal maintenance order. In the absence of a radical change in circumstances tied to a marriage related pattern of economic dependency "the obligation to support the former spouse should be, as in the case of any other citizen, the communal responsibility of the state" (Pelech v. Pelech, supra, at p. 852). Otherwise a person who has once been married continues to be contingently liable for the support of his or her former spouse for the duration of their joint lives.
13. Another specific factor sometimes identified in the case law as justifying a variation of spousal maintenance is the indirect deprivation of children caused by the quantum of spousal maintenance agreed to in the settlement agreement. In this case Mrs. Richardson has custody of one child. The financial position of the custodial spouse may determine the standard of living of the children as well as the spouse. Indeed, changes in either child support or spousal maintenance may affect the economic viability of the unit as a whole: Sumner v. Sumner (1973), 12 R.F.L. 324 (B.C.S.C.), at p. 325; Paras v. Paras, [1971] 1 O.R. 130 (C.A.), at p. 135; Jull v. Jull (1984), 42 R.F.L. (2d) 113 (Alta. C.A.), at p. 118; Bertha Wilson, "The Variation of Support Orders", in Rosalie S. Abella and Claire L'Heureux‑Dubé (eds.), Family Law: Dimensions of Justice (1983), at p. 42.
14. This inter‑relationship 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. The duration of the obligation of support varies with the provisions of each provincial statute. As a general proposition it can be stated that the obligation of support lasts until a child is between 18 and 21 years of age. It can last longer than that if there are special circumstances such as the presence of physical or mental handicaps in the child or the child is in full time attendance at an educational institution. 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: Malcovitch v. Malcovitch (1978), 21 O.R. (2d) 449 (H.C.); Hansford v. Hansford, [1973] 1 O.R. 116 (H.C.), at pp. 117‑18; Dal Santo v. Dal Santo (1975), 21 R.F.L. 117 (B.C.S.C.); Mercer v. Mercer (1978), 5 R.F.L. (2d) 224 (Ont. H.C.); Collins v. Collins (1978), 2 R.F.L. (2d) 385 (Alta. S.C.), at p. 391; Krueger v. Taubner (1974), 17 R.F.L. 86 (Man. Q.B.) 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.
15. The obligation to provide spousal support arises from different bases and therefore has different characteristics. As discussed in Pelech, the courts in making an award of spousal maintenance are required to analyze the pattern of financial interdependence generated by each marriage relationship and devise a support order that minimizes as far as possible the economic consequences of the relationship's dissolution. Financial provision may be temporary or permanent. Spousal maintenance is the right of the spouse and a spouse can therefore contract as to the amount of maintenance he or she is to receive. Where this happens the court will be strongly inclined to enforce that contract: see Pelech v. Pelech, supra.
16. Given these differences between spousal and child maintenance, if the court's concern is that the child is being inadequately provided for, then that concern should be addressed by varying the amount of child support. This approach has several advantages. First, it explicitly identifies the area of the court's concern. Second, the benefit accrues to the individual whose legal right it is. The duty to support the child is a duty owed to the child not to the other parent. Third, the traditional characteristics of the child maintenance order better reflect the court's concern for the child's welfare than do the traditional characteristics of the spousal maintenance order. For example, while the court could order that a spousal maintenance order would cease when the children were no longer dependent, child maintenance always ceases when the children are no longer dependent. Further, the amount of child support in child maintenance orders is based on the demonstrated need of the child. Although increased child support may indirectly benefit the custodial spouse, it will not be based on the court's assessment of the spouse's need. Finally, an individual will be unable to evade spousal maintenance provisions in a contract simply by pointing to his or her custody of the children. Accordingly, in the circumstances of this case Mrs. Richardson's support payments should not be increased simply because she has custody of a child. The Court of Appeal adopted the proper route and increased the child support payments. This part of the order is not being contested.
17. Counsel for the appellant also relies on another ground of appeal. He argues that the parties in this case limited the period of spousal maintenance because it was their common expectation that Mrs. Richardson would be employed within that period of time. This expectation did not materialize and therefore the judge hearing the petition for divorce was free to make the order he considered "fit and just" without regard to the Minutes of Settlement entered into by the parties. Counsel argues, in effect, that the lost or failed expectation represents a change of circumstances from those anticipated by the parties justifying a departure from the settlement agreement under s. 11(1) of the Divorce Act . This position seems to have been adopted in a number of cases: see Doepel v. Doepel (1983), 36 R.F.L. (2d) 316 (Ont. H.C.); Van Doorn v. Van Doorn (1985), 46 R.F.L. (2d) 186 (Ont. H.C.); Barrett v. Barrett (1985), 43 R.F.L. (2d) 405 (Ont. H.C.)
18. However, the evidence of the parties' expectation in this case is unclear. When asked why spousal support was restricted to a one‑year period the husband stated "It was my understanding that during the one‑year period my wife was to seek and obtain active employment". The husband may have merely hoped that his wife would find employment within the year or he may have had a firm expectation to that effect which was, in his mind, the reason for limiting the spousal maintenance to one year. The trial judge made no finding on this point. He ignored the Minutes of Settlement simply because of the "present handicaps" experienced by Mrs. Richardson. There was no evidence at all of the appellant's expectation. The Ontario Court of Appeal in face of the evidence or lack of same refused to make a finding as to the parties' expectation.
19. In the absence of evidence of a common expectation of the parties it seems to me that the Minutes of Settlement entered into freely by the parties and on the advice of independent legal counsel (which are not unconscionable in the substantive law sense) should be respected subject to the principle enunciated in Pelech. The possibility that Mrs. Richardson would not be employed at the end of the one‑year period was not unforeseeable. Although she had clerk‑typist skills she had not been recently employed. It is not as though Mrs. Richardson had been guaranteed a specific job and through a series of unexpected events that job fell through. This distinguishes the present case from Barrett v. Barrett, supra, where the court found that the parties' common expectation about the wife's future employment had been unexpectedly defeated and a variation of the maintenance order was therefore justified. In that case the husband agreed to pay the wife a sum of $300 per month maintenance which would then be increased to $500 per month. The payments would continue until such time as the wife remarried. The wife intended, and the husband was aware of this intention, to move back to England and accept her sister and brother‑in‑law's offer to work full time in a business as manager and book‑keeper. Upon her arrival in England, however, it became immediately apparent that there was not enough work for her to do and that her sister and brother‑in‑law were not satisfied with the work she did do. Approximately six weeks after her arrival she was unemployed. The court ordered a variation of her maintenance.
20. Having regard to Mrs. Richardson's circumstances at the time of the agreement including her skills, her previous record of employment and the fact that no employment position had been guaranteed to her, it cannot be said that the possibility of her being unemployed was completely outside the reasonable contemplation of the parties. I do not believe therefore that Mrs. Richardson is entitled on that ground to be relieved from the clause in the Minutes of Settlement which provides for the cessation of her maintenance at the expiry of the one‑year period.
21. The appellant also challenges the Court of Appeal's decision to strike out the escalator clause inserted in the decree nisi by Perras L.J.S.C. This case does not require us to examine the question whether in general a trial judge has power to insert an escalator clause in a decree nisi. This case requires us to decide only whether a trial judge can insert an escalator clause in the decree nisi where the parties do not have such a clause in their settlement agreement. Since there has been no change in circumstances of the kind required to justify a variation of the Minutes of Settlement entered into by the parties, the trial judge's action in this regard cannot stand.
22. For these reasons I would dismiss the appeal but in the circumstances without costs.
The following are the reasons delivered by
23. La Forest J. (dissenting)‑‑The issue to be determined is whether, in the circumstances of this case, the judge in a divorce action properly exercised his discretion in making an order for spousal maintenance under s. 11(1) of the Divorce Act, R.S.C. 1970, c. D‑8, in an amount different from that agreed upon by the parties in settling an antecedent action under the Ontario Family Law Reform Act, R.S.O. 1980, c. 152 as amended.
24. The facts and the judicial history have already been adequately given by my colleague Wilson J., and I need not repeat them at length. I should, however, observe that our perception of some of the facts and the inferences to be drawn from them at times differ, and I shall have occasion to refer to these later.
25. Section 11(1) (a) of the Divorce Act , which is the relevant provision, reads 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;
Section 11(1) (b), it may be noted, makes similar provision for maintenance orders by wives to husbands and children, and s. 11(1) (c) provides for custody orders.
26. As Chouinard J. made clear in Messier v. Delage, [1983] 2 S.C.R. 401, at p. 408, the provisions of the Divorce Act constitute the only source for the award of maintenance on divorce. It is not a common law power and a court is bound, as in the case of other statutes, to approach the issue by reference to the intention of Parliament as revealed by the words of the statute.
27. What immediately strikes the reader on perusing s. 11(1) is that the discretion to award maintenance is vested in the judge in the divorce action, not anyone else. The parties, therefore, cannot oust his or her jurisdiction by contract. I agree, however, that the existence of a marriage settlement is an important fact to be considered by the judge in exercising his or her discretion. While the weight to be accorded separation agreements has varied with changing social attitudes and conditions, the basic proposition that the courts may override them has remained since it was enunciated in Hyman v. Hyman, [1929] A.C. 601 (H.L.) My colleague, Wilson J., has fully reviewed the jurisprudence on this aspect of the case in relation to s. 11(2) of the Divorce Act , which provides for a variation of such orders, in the companion case of Pelech v. Pelech, [1987] 1 S.C.R. 801, also delivered today, under the heading V. "Preliminary Observations", and I need simply refer to that part of her judgment to confirm this point. As she notes, the Hyman principle underlies the decision of this Court in Messier v. Delage.
28. Nor may a court of appeal usurp the jurisdiction of the trial judge in this area. The discretion to award maintenance is the trial judge's, and it is not open to a court of appeal, including this Court, to substitute its discretion for that of the trial judge. Appeal courts are restricted to dealing with the matter in conformity with traditional principles of appellate review. Here, too, I need only refer to Wilson J.'s discussion of the matter in her judgment in Pelech under the heading IV. "Jurisdictional Issues". Like her, I would adopt the approach set forth by Morden J.A. in Harrington v. Harrington (1981), 33 O.R. (2d) 150 (C.A.) A court of appeal's jurisdiction, in other words, is limited to reviewing the trial judge's judgment on traditional grounds such as material error including a misapprehension of the evidence, the exercise of discretion on an incorrect basis, and the like. If the judge exercises his or her jurisdiction on a proper basis, a court of appeal has no right to interfere. In the present case, the Court of Appeal reversed the decision of the trial judge, and unless that reversal can be justified on the basis of the traditional jurisdiction of a court of appeal, then the trial judge's judgment must be restored.
29. To determine whether the Court of Appeal was justified in its action, it is first necessary to see precisely what the trial judge's discretion is and what factors he or she must, under the legislation, consider in exercising that discretion.
30. Wh