Miglin v. Miglin (2001), 53 O.R. (3d) 641 (C.A.)

  • Document:
  • Date: 2018

Miglin v. Miglin*

[Indexed as:  Miglin v. Miglin]

53 O.R. (3d) 641

[2001] O.J. No. 1510

2001 CanLII 8525

Docket No. C33432

Court of Appeal for Ontario

McMurtry C.J.O., Abella and Moldaver JJ.A.

April 26, 2001

 

 

* Application for leave to appeal to the Supreme Court of Canada granted October 4, 2001 (McLachlin, Iacobucci and Bastarache JJ.).  S.C.C. Bulletin, 2001, p. 1769.  S.C.C. File No. 28670.

Family law–Support–Spousal support–Variation–Test for variation of spousal support agreement requiring radical unforeseen change that is causally connected to marriage no longer applies under Divorce Act, 1985–Party seeking to vary existing support agreement must demonstrate material change of circumstances from time agreement made–Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3

The parties were married in 1979. They were co-owners of a hotel, which was managed by the husband. The wife was responsible for administrative and housekeeping tasks and received a salary of $80,500 each year. She was also the primary caregiver of the parties’ four children. The parties separated in 1993 and entered into a separation agreement in 1994 in which the wife released the husband from the obligation to pay spousal support. The parties also entered into a five- year consulting agreement which could be renewed from time to time by mutual consent, whereby the husband agreed to pay the wife $15,000 in annual consulting fees through the business. The parties were to share responsibility for raising the children, but the children’s primary residence was to be with the wife.

The husband’s initially amicable relationship with the wife changed when the wife sold the matrimonial home and converted to Judaism. The husband caused the hotel not to extend the consulting agreement. Before the agreement was terminated, the wife brought proceedings pursuant to s. 15 of the Divorce Act,

R.S.C. 1985 (2nd Supp.), c. 3 for sole custody of the children, spousal support and child support in accordance with the Child Support Guidelines. The trial judge awarded the wife monthly spousal support in the amount of $4,400 for five years and monthly child support of $3,000. The husband appealed. The wife cross-appealed the five-year time limit in the support order.

 

Held, the appeal should be dismissed; the cross-appeal should be allowed.

 

Under the former Divorce Act, the Supreme Court of Canada set out a test for the variation of support agreements in three cases (“the trilogy”) which required a radical unforeseen change that is causally connected to the marriage. In light of the new language of the 1985 Divorce Act and the new approach to support expressed in that Act, the trilogy is no longer good law. The new Act attempts to accommodate the realities of a marriage when determining the economic consequences of its dissolution. One of the factors to be taken into account, along with others, is whether there is an arrangement or agreement for support. There is no explicit statutory direction as to how the existence of an agreement is to be factored into an assessment of whether or how much support should be awarded.

Section 15.2(4)(c) makes it clear that, where there are existing agreements, orders or arrangements, a court is not entitled to disregard them. Section 17 provides that orders can only be varied if there is a change in circumstances. The threshold for the variation of orders is whether a change in circumstance has taken place since the order was made which, if known at the time, would likely have resulted in a different order. Once such a change has been found, a court has been held to have wide discretion to determine what amount, if any, should be ordered, based on the factors set out in s. 17(7). Orders and agreements are, notably, referred to together in s. 15.2(4). If a court order, which the parties properly consider to be presumptively binding, can be varied by meeting a threshold of material change, it is difficult conceptually to understand why a separation agreement, which the parties usually see as no less binding, should be subjected to a different or higher threshold before a court can review what amount of support, if any, is justified. In any event, there is no basis in the 1985 Act for imposing a threshold as stringent as the one pronounced in the trilogy.

Under the 1985 Act, self-sufficiency, the primary support objective prevailing at the time of the trilogy, is only one of four objectives of spousal support. The others, the recognition of economic advantage or disadvantage resulting from the marriage, the apportionment of financial consequences resulting from the care of children and the amelioration of economic hardship, are given equal weight with the promotion of self- sufficiency. Furthermore, while self-sufficiency is still an objective of support, the 1985 Act describes it as being a goal only “in so far as practicable” under s. 15.2(6)(d).

The threshold for the variation of a subsisting support agreement in an application for corollary relief under s. 15.2 of the Divorce Act is whether there has been a material change of circumstances from the time the agreement was made. If that threshold has been met, the court should then determine what amount of spousal support, if any, is justified under the statutory principles set out in s. 15 of the Divorce Act and refined in leading cases from the Supreme Court of Canada. The following are some of the factors to consider at the second stage in deciding whether and to what extent to vary the terms of an agreement: the extent, source and impact of the change in circumstances; whether the agreement reflects a clear and unequivocal intention to insulate it from review or variation; the extent to which the agreement satisfies the objectives of the Act; and, where there is an agreement to waive support or limit its duration to a fixed event or time, how lengthy a period has elapsed since the waiver, event or expiration of the time limit.

In this case, there were two factors which combined to represent a material change in circumstances: the unanticipated extent of the wife’s childcare responsibilities, which negatively affected her range of employment options and, therefore, affected her ongoing need for support; and the termination of the consulting agreement.

Despite the provision in the separation agreement that the parties would share childcare responsibilities, the wife remained the primary caregiver for the children and remained economically dependent on the husband’s support, based on the distribution of roles and responsibilities arising during and since the marriage. The trial judge found that the consulting agreement, not the separation agreement which contained the explicit release, was the true agreement for spousal support. The wife applied for support during the subsistence of that agreement. The parties, in that agreement, recognized and anticipated the possibility that the wife’s economic needs could be indeterminate, since the five-year term could be extended “from time to time” by mutual agreement. However, the agreement fell short of the Act’s objectives in s. 15.2(6), since it took insufficient account, both in quantum and duration, of how fundamentally the wife’s role during the 15- year marriage had created a financial dependency on the husband and impaired her capacity to become economically self- sufficient. Only the wife experienced economic disadvantage or hardship arising from the marriage and its dissolution, yet the long-term financial consequences of her childcare responsibilities were not equitably acknowledged in the economic arrangements made by the parties.

The amount of spousal support ordered by the trial judge was not unreasonable in the circumstances and there was no basis for interfering with it. However, given the ages of the children and the wife’s responsibilities to them, any term limit for support imposed at this point was unhelpfully speculative. In the absence of any evidence that the wife was deliberately or arbitrarily thwarting her economic self- sufficiency, there was no reason in law or policy for imposing a time limit on the duration of her support.

Caron v. Caron, [1987] 1 S.C.R. 892, 14 B.C.L.R. (2d) 186, 38 D.L.R. (4th) 735, 75 N.R. 36, [1987] 4 W.W.R. 522, 7 R.F.L. (3d) 274; Pelech v. Pelech, [1987] 1 S.C.R. 801, 14 B.C.L.R. (2d) 145, 38 D.L.R. (4th) 641, 76 N.R. 81, [1987] 4 W.W.R. 481, 17 C.P.C. (2d) 1, 7 R.F.L. (3d) 225; Richardson v. Richardson, [1987] 1 S.C.R. 857, 22 O.A.C. 1, 38 D.L.R. (4th) 699, 77 N.R. 1, 17 C.P.C. (2d) 104, 7 R.F.L. (3d) 304, not folld Bracklow v. Bracklow, [1999] 1 S.C.R. 420, 63 B.C.L.R. (3d) 77, 169 D.L.R. (4th) 577, 236 N.R. 79, [1999] 8 W.W.R. 740, 44 R.F.L. (4th) 1; G. (L.) v. B. (G.), [1995] 3 S.C.R. 367, 61 Q.A.C. 179, 165 N.R. 237; Moge v. Moge, [1992] 3 S.C.R. 813, 81 Man. R. (2d) 161, 99 D.L.R. (4th) 456, 145 N.R. 1, [1993] 1 W.W.R. 481, 43 R.F.L. (3d) 345, consd Other cases referred to Allen v. Allen (1999), 75 Alta. L.R. (3d) 305, [2000] 3 W.W.R. 271, 2 R.F.L. (5th) 1 (Q.B.); Bailey v. Plaxton (2000), 47 O.R. (3d) 593, 6 R.F.L. (5th) 29 (S.C.J.); Benedict v. Ontario (2000), 51 O.R. (3d) 147, 193 D.L.R. (4th) 329, 48 C.P.C. (4th) 1 (C.A.); Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369, 68 D.L.R. (3d) 716, 9 N.R. 115 (sub nom. Canadian Arctic Gas Pipeline Ltd., Re); Fyffe v. Fyffe (1988), 63 O.R. (2d) 783, 25 O.A.C. 219, 48 D.L.R. (4th) 759, 12 R.F.L. (3d) 196 (C.A.), revg (1986), 4 R.F.L. (3d) 215 (Ont. H.C.J.); Gates v. Gates (2000), 7 R.F.L. (5th) 87 (Ont. S.C.J.); Hyman v. Hyman, [1929] A.C. 601, [1929] All E.R. Rep. 245, 98 L.J.P. 81, 141 L.T. 329, 93 J.P. 209, 45 T.L.R. 444, 73 Sol. Jo. 317, 27 L.G.R. 379 (H.L.); Kennedy v. Kennedy (2000), 11 R.F.L. (5th) 150, [2000] O.J. No. 3742 (S.C.J.); Kent v. Frolick (1996), 23 R.F.L. (4th) 1 (Ont. C.A.) ; Lanthier v. Lanthier, [2000] O.J. No. 2949 (S.C.J.); Lees v. Lees (2000), 6 R.F.L. (5th) 302, [2000] O.J. No. 1046 (S.C.J.); Leopold v. Leopold (2000), 51 O.R. (3d) 275, 195 D.L.R. (4th) 717, [2000] O.J. No. 4604 (S.C.J.); Marchand (Litigation Guardian of) v. Public General Hospital Society of Chatham (2000), 51 O.R. (3d) 97, [2000] O.J. No. 4428 (C.A.); Masters v. Masters, [1994] 1 S.C.R. 883, 120 Sask. R. 318, 114 D.L.R. (4th) 575, 168 N.R. 11, 68 W.A.C. 318, 4 R.F.L. (4th) 1; R. v. S. (R.D.), [1997] 3 S.C.R. 484, 161 N.S.R. (2d) 241, 151 D.L.R. (4th) 193, 218 N.R. 1, 477 A.P.R. 241, 118 C.C.C. (3d) 353, 10 C.R. (5th) 1; Santosuosso v. Santosuosso (1997), 32 O.R. (3d) 143, 27 R.F.L. (4th) 234 (Div. Ct.); Shoppers Mortgage & Loan Corp. v. Health First Wellington Square Ltd. (1995), 23 O.R. (3d) 362, 124 D.L.R. (4th) 440, 38 C.P.C. (3d) 8 (C.A.), supp. reasons (1995), 25 O.R. (3d) 95n, 38 C.P.C. (3d) 18 (C.A.); Sorger v. Bank of Nova Scotia (1998), 39 O.R. (3d) 1, 160 D.L.R. (4th) 66 (C.A.); Taimoori v. Fanaian, [2000] O.J. No. 2997 (S.C.J.); Trewin v. Jones (1997), 32 O.R. (3d) 225, 26 R.F.L. (4th) 418 (C.A.); Wilkinson v. Wilkinson (1998), 43 R.F.L. (4th) 258 (Alta. Q.B.); Willick v. Willick, [1994] 3 S.C.R. 670, 125 Sask. R. 81, 119 D.L.R. (4th) 405, 173 N.R. 321, 81 W.A.C. 81, 6 R.F.L. (4th) 161

 

Statutes referred to

 

Divorce Act, R.S.C. 1970, c. D-8, s. 11

Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, ss. 15, 15.2,

15.2(4), 15.2(6), 17(4.1), 17(7), 17(10) [as am. S.C. 1997,

ss. 2, 5]

Family Law Act, R.S.O. 1990, c. F.3, s. 33(4)

Family Relations Act, R.S.B.C. 1979, c. 121, s. 51 [now

R.S.B.C. 1996, c. 128, s. 65] Rules and regulations referred to

Federal Child Support Guidelines, SOR/97-175 Authorities referred to

Bailey, M., “Pelech, Caron and Richardson” (1989-1990) 3 Can.

J. Women and the Law 615

Bala, N., “Domestic Contracts in Ontario and the Supreme Court Trilogy: A Deal is a Deal” (1988) 13 Queen’s L.J. 1

Bastarache, M., “The Role of Academics and Legal Theory in Judicial Decision-Making” (1997) 37:3 Alta. L. Rev. 739

Bissett-Johnson, A., “Judicial Variation of Final Global Settlements: Pelech v. Pelech, Caron v. Caron, Richardson v.

Richardson” (1988) 67 Can. Bar Rev. 153

Cossman, B., “A Matter of Difference: Domestic Contracts and Gender Equality” (1990) 28:2 Osgoode Hall L.J. 303

Davies, C., “Spousal Support Under the Divorce Act: From Moge to Bracklow” (1999) 44 R.F.L. (4th) 61

Davies, C., “Compensatory Support: New Beginnings or a Return to the Past” (1994) 11 Can. Fam. L.Q. 129

Davies, C., “Judicial Interpretation of the Support Provisions of the Divorce Act 1985” (1992) 8 Can. Fam. L.Q. 265

Duff, D., “The Supreme Court and the New Family Law: Working Through the Pelech Trilogy” (1988) 46:2 U.T. Fac. L. Rev. 42

Engel, S., “Compensatory Support in Moge v. Moge and the Individual Model of Responsibility: Are We Headed in the Right Direction” (1993) 57 Sask. L. Rev. 397;

Grant, S.M., “The End of Finality” (1997), 27 R.F.L. (4th) 252 Heeney, T., “From Pelech to Moge and Beyond: The Test for

Variation of a Consensual Spousal Support Order” (1996) 14 Can. Fam. L.Q. 81

Kril, M.A., “The Variation of Maintenance Orders Under S. 11 of the Divorce Act: A Case Comment on Pelech, Richardson and Caron” (1987) 3 Can. Fam. L.Q. 417

Lang, G., “Pelech: Variations on a Theme” (1990) 69 Can. Bar Rev. 78

McLachlin, B., “Spousal Support: Is it Fair to Apply New-Style Rules to Old-Style Marriages?” (1990) 9 Can. J. Fam. L. 131

McLeod, J.G., “Annotation on B. (G.) c. G. (C.)” (1995), 15

R.F.L. (4th) 216

McLeod, J.G., “Annotation on Bailey v. Plaxton” (2000), 6

R.F.L. (5th) 32

McLeod, J.G., “Annotation on Gates v. Gates” (2000), 7 R.F.L. (5th) 87

Niman, H., “Case Comment: When May a Court Vary the Terms of a Settlement Agreement?: Re Pelech and Pelech; Richardson v.

Richardson; Caron v. Caron” (1987) 8:4 Advocates Q. 497 Payne, J., “An Overview of Theory and Reality in the Judicial

Disposition of Spousal Support Claims Under the Canadian Divorce Act” (2000) 63 Sask. L. Rev. 403

Payne, J.D., “Contracting Out of Spousal and Child Support Under the Divorce Act” (1996) 14 Can. Fam. L.Q. 113

Payne, J.D., Payne on Divorce, 3d ed. (Toronto: Carswell, 1993) Payne, J.D., “Permanent Spousal Support in Divorce Proceedings:

Why? How Much? How Long?” (1987) 6 Can. J. Fam. L. 384 Proudfoot, P. and K. Jewell, “Restricting Application of the

Causal Connection Test: Story v. Story” (1990) 9 Can. J. Fam. L. 143

Rogerson, C., “The Causal Connection Test in Spousal Support Law” (1989) 8 Can. J. Fam. L. 95

Shaffer, M., “Separation Agreements Post-Moge and L.G. v. B.G.: A New Trilogy” (1999) 16 Can. J. Fam. L. 51

Sheppard, C., “Uncomfortable Victories and Unanswered Questions: Lessons from Moge” (1995) 12 Can. J. Fam. L. 283

Wolfson, L., “Case Comment: The Legacy of Pelech v. Pelech” (1989) 10:2 Advocates Q. 205

Young, A. Harvison, “The Changing Family Rights Discourse and the Supreme Court of Canada” (2001) 80 Can. Bar Rev. 749

 

APPEAL and CROSS-APPEAL from an order for spousal support.

 

Charles C. Mark, Q.C., for appellant.

Philip M. Epstein and Carolyn Clark, for respondent.

 

The judgment of the court was delivered by

 

[1]  ABELLA J.A.:–The Supreme Court of Canada released a trio of judgments in 1987 which came to be known as the Pelech trilogy. The trilogy consists of Pelech v. Pelech, [1987] 1 S.C.R. 801, 14 B.C.L.R. (2d) 145, Caron v. Caron, [1987] 1 S.C.R. 892, 14 B.C.L.R. (2d) 186, and Richardson v. Richardson, [1987] 1 S.C.R. 857, 22 O.A.C. 1. The trilogy was decided under the support provisions of the 1970 Divorce Act [R.S.C. 1970, c. D-8], and raised dramatically the threshold for varying the terms of spousal support in valid separation or settlement agreements. The historic acknowledgement in Hyman v. Hyman, [1929] All E.R. Rep. 245, [1929] A.C. 601 H.L. that parties could not, by contract, oust the supervisory jurisdiction of the court in matters of spousal maintenance was, significantly, confirmed and endorsed in Pelech at p. 849 S.C.R. as “an established tenet of Canadian law”. The new threshold for variation delineated  in the trilogy was, however, so high as to appear almost inaccessible, requiring that there be a radical unforeseen change in circumstance which is causally connected to the marriage. Under the trilogy, if the threshold is not met, even if a former spouse is in financial need, it is the duty of the state, not a former spouse, to provide support.

 

[2]  The support provisions under which the trilogy was decided were substantially amended in the 1985 Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3. The main issue in this appeal is whether the threshold established in the Pelech trilogy survives those amendments and continues to apply under the new 1985 Divorce Act.

 

Facts

 

[3]  Eric and Linda Miglin were married on February 17, 1979. The Miglins had four children: Samantha Kate, born October 4, 1985; Alexandra Louisa, born October 31, 1988; Charlotte Anne, born December 31, 1989; and Jonathan Francis, born March 18, 1991.

 

[4]  In 1981, they bought Killarney Lodge in Northern Ontario for $1,015,000. They each owned one-half of the shares in the business. The husband managed the business and the wife was responsible for the administrative and housekeeping tasks. The wife received a salary of $80,500 each year, representing roughly one-half of the net profits of the operation of the hotel. Due to their concerted efforts, the hotel thrived and grossed approximately $1.5 million per year.

 

[5]  The wife was the primary caregiver of the four children. The family would spend summers at the lodge and, in the fall after school began, the wife would return to Toronto with the children. At the end of the season, usually in November, the husband would take extended vacations without his wife or children.

 

[6]  After the wife indicated that she wanted to separate in 1993, the parties retained lawyers and eventually reached an amicable agreement. Three agreements were signed on June 1, 1994: a separation agreement, a parenting agreement and a consulting agreement between the wife and Killarney Lodge.

 

[7]  Pursuant to the three-part agreement, the wife was to receive $60,000 annually in child support. The parents “shared responsibility” for bringing up the children, but the children’s primary residence was with their mother, who continued to occupy the family home.

 

[8]  The economic negotiations also resulted in the wife receiving her husband’s share in that home, a share worth $250,000. In exchange, she gave him her shares in Killarney Lodge, valued in 1993 at $250,000.

 

[9]  The releases provided by the wife in the separation agreement were as follows:

(a)  The Husband and the Wife each agree that neither shall be obliged to make any payment or payments in the nature of support, or any similar payment, whether periodic or by way of lump sum, directly or indirectly, to or for the benefit of the other. Without restricting the generality of the foregoing, the Husband and the Wife further agree that neither of them shall maintain, commence or prosecute or cause to be maintained, commenced or prosecuted any action against the other of them for support or interim support pursuant to the Family Law Act, the Succession Law Reform Act or any comparable Provincial legislation in force from time to time, or the Divorce Act, or any successor or similar legislation whereby a spouse or former spouse is given a cause of action against his or her spouse or the spouse’s estate for relief in the nature of support.

(b)  The Wife specifically abandons any claims she has or may have against the Husband for her own support. The Wife acknowledges that the implications of not claiming support in this Agreement have been explained to her by her solicitor. At no time now or in the future, including any future divorce proceedings, or upon the Husband’s death shall the Wife seek support for herself, regardless of the circumstances.

 

[10]  Although the wife released the husband from spousal support in the separation agreement, there was a five-year consulting agreement which could be renewed “from time to time” by mutual consent, whereby the husband agreed to pay her $15,000 in annual consulting fees through the business. Both the child support and consulting payments were subject to an annual cost of living increase.

 

[11]  The Miglins’ divorce was finalized on January 23, 1997.

 

[12]  Several months after the divorce, Ms. Miglin sold the matrimonial home in downtown Toronto in order to repay the substantial debts she had incurred since the separation, and bought a new one in Thornhill. In the spring of 1999, she converted to Judaism. Mr. Miglin, who had enjoyed a cooperative and amicable relationship with Ms. Miglin, changed his approach with her move to Thornhill and her conversion to Judaism, both of which he objected to. His change as described by the trial judge was dramatic:

. . . he became aggressive, dominating, and often acted in an outlandish fashion towards her and her children. After the Fall closing of the hotel at the end of the 1997 season, the Respondent appears to have made up his mind to go to school with his children. Almost every day saw him seated behind one of them in their public school classroom, listening with them to their lessons, and, no doubt, reviewing and discussing the significance of what they were receiving from their teachers. He became involved in the parent/teacher association. It appears to me that his focus on his children became obsessive. Ultimately, he was ordered by a Superior Court judge not to go to school with them. That order was subsequently rescinded.

. . . . .

. . . His attitude towards his wife, her need for support and her custody of the children changed abruptly. The Petitioner’s move made it clear he was no longer in control. As a result of that rapid change of spirit, the Respondent caused the hotel not to extend the consulting agreement.

. . . The Respondent attempted to pre-empt the applicant’s time with the children. He demanded, whenever possible, full time involvement with the children to the exclusion of their mother. In my opinion, he was unreasonable in his demands. He intensified the tension between himself and the petitioner to the point where the applicant became almost unable to meet her obligations to her young family and to her private life.

As a result of the increasing pressure applied by the Respondent, the children became harder and harder to manage, and in the end, the eldest child, left her mother to live with her father in Toronto.

. . . In December of 1998, the respondent terminated all payments under the consultation agreement. His escalated interference in the day to day lives of the children caused them great stress. He confronted his former wife on every occasion; he was determined to make her life unhappy.

 

[13]  In June 1998, Ms. Miglin brought proceedings pursuant to s. 15 of the 1985 Divorce Act for sole custody, spousal support, and child support in accordance with the Federal Child Support Guidelines [SOR/97-175].

 

[14]  On February 1, 2000, the trial judge awarded Ms. Miglin monthly spousal support of $4,400 for five years and monthly child support of $3,000. Both parties consented to joint custody. Mr. Miglin had sought, unsuccessfully, to have the three younger children live with him in downtown Toronto every other week, and, during those periods, to be driven daily by him to their school in Thornhill. The trial judge ordered that the principal residence of the three younger children would be with the mother, and the principal residence of the oldest child, Samantha, would be with the father. This appeal is brought by Mr. Miglin.

 

Issues

 

[15]  There are three issues in this appeal: whether the trial judge conducted a fair trial; whether the children should have been ordered to live with their father every other week; and whether the trial judge should have awarded spousal support, given the terms of a separation agreement. The first issue of trial fairness arises from comments made by the trial judge in the course of the trial, which the appellant submits raise a reasonable apprehension of bias. The second issue of access arises from the appellant’s submission that a parenting agreement signed when the parents separated, should govern. The third issue of spousal support arises from the appellant’s submission that since the wife had waived support in a separation agreement, she was disentitled to support because she could not satisfy the high threshold set out in the Pelech trilogy.

 

[16]  For the following reasons, I would dismiss the appeal.

 

Analysis

 

(i)  Trial fairness

 

[17]  In the course of the dispute, Dr. Sol Goldstein, a child psychiatrist, was retained on consent to prepare a custody and access report. The allegation of bias results from numerous interjections on the part of the trial judge, particularly during the evidence of Dr. Goldstein. The appellant’s submission is that these interventions, along with others made in the course of the 11-day trial, were not only inappropriate, but also reflected the trial judge’s pre-judgment of the issues. An understanding of the nature of the evidence is important in determining this issue.

 

[18]  Dr. Goldstein’s first report was dated September 18, 1998. He acknowledged that in the past, the parents had been able to cooperate effectively in arranging access for the father on both a regular and ad hoc basis, without having to rely on the parenting agreement they had signed in 1994. The parenting agreement, which set out a schedule for the extensive sharing of time with the children, had in fact never been implemented by the parents.

 

[19]  Although Dr. Goldstein expressed concerns about some behaviour on the part of both parents, and some reactive stress on the part of the children, his concluding recommendation about access was that the status quo be maintained. In his words: “[i]t is my opinion that the parents have worked out an excellent schedule between them and I see no reason for changing this at this time.” In addition, Dr. Goldstein noted that according to the principal of the school the children were now attending in Thornhill, the children were “wonderful and productive children”.

 

[20]  Dr. Goldstein was approached by Mr. Miglin for a follow- up assessment several months later. Ms. Miglin, who had misgivings about Dr. Goldstein, was opposed to his further involvement. The children were brought to Dr. Goldstein’s office by their father, and were seen without their mother’s knowledge or consent. This time, the assessment included a meeting with Mr. Miglin’s partner and with Ms. Miglin’s parents.

 

[21]  Mr. Miglin told Dr. Goldstein that the reason he was requesting an updated assessment was to assist in his pursuit of “a close to 50 per cent sharing of the children, as well as the children returning to their accustomed locale where they had lived and attended school”.

 

[22]  The second assessment was dated March 15, 1999. Once again, Dr. Goldstein assessed the children positively, saying “I found them to be pleasant, exuberant, verbal, and cooperative”. However, despite acknowledging that he was relying exclusively on the father’s comments, he stated that “the children’s lives and their routines both with their father and their mother are being controlled by the mother.” He stated there was a “struggle” between the parents “with regard to who is the best parent of these children”. Notwithstanding the observation in his report six months earlier that the current arrangements were “excellent”, in his March 15th assessment he was of the view that the mother was interfering with the father’s access. Moreover, he was concerned that the mother’s teaching of Judaism to her son was “a serious infringement on this child and his family at several levels”.

 

[23]  The following summarizes Dr. Goldstein’s view that the mother was creating problems for the children and for their relationship with their father:

With regards to the present update of the situation, I am highly concerned about the fact that nothing has apparently been done about removing the children from the struggle vis vis the religious and cultural changes to which they have been subjected. These seem to be, according to what I have observed, continuing thus placing them, and their mental health, in a precarious position. If, in fact, this has continued, this would indicate to this assessor that the children’s needs as well as their mental health are being placed second to mother’s needs and interests at this time.

 

[24]  Accordingly, it was his revised opinion that “serious consideration [should] be given to a change in the primary residence of these children unless the matters mentioned above are changed immediately.”

 

[25]  Dr. Goldstein’s antipathy towards the mother was most obvious in his defence of his decision to do the assessment without first checking with her, found in the concluding words of his second report:

I would, at this point, take the opportunity to address my involvement in the reassessment of this family. I was under the understanding, at the time of undertaking this, that all concerned were well aware that I would be doing so. I was, however, harshly criticized by counsel for Ms. Miglin when I called to set up an appointment for mother and the children. My ethics were questioned, as were my capabilities. As well, there were threats as to what would happen to me as a result of my involvement with this family. It is of concern to me that, I too, am now being treated as has seemingly, anyone who has questioned what is going on with these children. If this is, in fact, an example of what happens to anyone who questions the actions of these children’s mother then one can only be quite concerned as to the true feelings of the children with regards to what is happening to them in their mother’s home.

This situation seems to be deteriorating rather than improving at this time. I would only hope that a semblance of reason and sanity take over and that if that cannot occur spontaneously then immediate action be taken to safeguard the well-being of the children in this family.

I do hope that this will be of some help to you in dealing with this very worrisome matter and that if there is any way in which I can be of help, you will not hesitate to contact me.

 

[26]  On cross-examination, Dr. Goldstein admitted that the mother’s allegations of unethical conduct made him hostile towards her. He also conceded that when he met the Miglin children, they appeared to be healthy and normal and not “children in trouble”. He further acknowledged that he had factored into his second assessment neither the father’s quality of parenting, nor the impact on the children of daily lengthy commutes to and from school every other week if the father’s requests were to be accepted.

 

[27]  Despite this evidentiary background to the trial judge’s interventions about and during Dr. Goldstein’s evidence, many of those interventions were highly subjective and, in my view, bordered on being inappropriate. Moreover, in the course of the trial, the trial judge’s comments at times reflected undue impatience. Given the frequency of the interventions, and, in particular, how clearly they revealed the trial judge’s skepticism about Dr. Goldstein’s evidence, the submission of pre-judgment is worthy of serious consideration.

 

[28]  The test for bias was definitively articulated by de Grandpre J. in Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369, 68 D.L.R. (3d) 716 at pp. 394-95 S.C.R.:

[T]he apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information.

. . . [The] test is “what would an informed person, viewing the matter realistically and practically — and having thought the matter through — conclude. Would he think that it is more likely than not that [the decision maker], whether consciously or unconsciously, would not decide fairly.

. . . . .

The grounds for this apprehension must, however, be substantial and I . . . [refuse] to accept the suggestion that the test be related to the “very sensitive or scrupulous conscience”.

 

[29]  The principle was adopted and amplified in R. v. S. (R.D.), [1997] 3 S.C.R. 484, 151 D.L.R. (4th) 193, to reflect the overriding principle that the judge’s words and conduct must demonstrate to a reasonable and informed person that he or she is open to the evidence and arguments presented. The threshold for bias is a high one because the integrity of the administration of justice presumes fairness, impartiality and integrity in the performance of the judicial role, a presumption that can only be rebutted by evidence of an unfair trial. Where, however, the presumption is so rebutted, the integrity of the justice system demands a new trial.

 

[30]  The assessment of judicial bias is a difficult one. It requires a careful and thorough review of the proceedings, since the cumulative effect of the alleged improprieties is more relevant than any single transgression: Shoppers Mortgage & Loan Corp. v. Health First Wellington Square Ltd. (1995), 23 O.R. (3d) 362, 124 D.L.R. (4th) 440 (C.A.); and Sorger v. Bank of Nova Scotia (1998), 39 O.R. (3d) 1, 160 D.L.R. (4th) 66 (C.A.). See also Marchand (Litigation Guardian of) v. Public General Hospital Society of Chatham (2000), 51 O.R. (3d) 97, [2000] O.J. No. 4428 (C.A.); and Benedict v. Ontario (2000), 51 O.R. (3d) 147, 193 D.L.R. (4th) 329 (C.A.).

 

[31]  Applying those principles to this case, I am not satisfied that the threshold of unfairness has been met. Although there were admittedly many interventions in the course of this trial, most, including those made during Ms. and Mr. Miglin’s evidence, were, while unfortunate, not inappropriate. There were, however, several which reflected an unsettling impatience with Dr. Goldstein and, in my view, were on the brink of impropriety. It was clear that the trial judge was uncomfortable with Dr. Goldstein’s evidence, recommendations and approach. While it is true that by making his discomfort manifest he also risked triggering the perception that he was prejudging his credibility, he nonetheless, through many of these interventions, gave Dr. Goldstein an opportunity to explain his evidence.

 

[32]  The trial judge accepted the recommendations in Dr. Goldstein’s first report. However, it is clear from the reasons that the trial judge rejected the recommendations in the second report. First, he found that the recommendations in the latter report were logistically impractical and would, if implemented, have a demonstrably harmful impact on the stability of the children’s routine. Second, he questioned the recommendations because the basis of the report was essentially an assessment of the parents’ conflict rather than of the children’s best interests. These concerns on the part of the trial judge are reflected in the frequency and tenor of his interjections. They do not, in the end, cross the line into impropriety and are, moreover, concerns fully justified by the evidence.

 

[33]  The trial judge’s reasons relating to the psychiatrist’s evidence are, it is worth noting, judicious and principled, as the following demonstrates:

The Respondent proposes that the custody of the four children be somehow divided equally between himself and his former spouse. If that were to occur, the three younger children would live in Toronto for one week, then move back to their mother’s home in Thornhill for the next week. In my respectful opinion, even though this arrangement has been supported in the report of the psychiatrist, I find it patently not to be in the best interests of the children. As a matter of fact, I cannot think of another scheme of shared custody more likely to destroy the emotional stability of a young family, and to ensure that the life of each young child would be in constant turmoil. It is inconceivable to me that the father proposes that he would drive the three younger children from Toronto back to Thornhill every day to attend their school, and then pick them up in the late afternoon and take them back to Toronto for the evening, when they were staying with him. This scheme in itself causes me to doubt the sin cerity of the father in proposing shared custody. It appears to be a scheme which has been developed solely to hurt the mother, to separate her from her children and her obligations to them, and to reduce child support payable by him. The endorsement of this scheme by the psychiatrist causes me to doubt his impartiality.

 

(Emphasis added)

 

[34]  Looking at the trial as a whole, the manner in which the evidence and arguments were presented, and the nature of the interventions by the trial judge throughout the trial, but particularly in connection with the evidence of Dr. Goldstein, I am not satisfied that the trial judge’s comments warrant a new trial.

 

(ii)  Access

 

[35]  The mother was not called upon at the hearing of this appeal to address the father’s arguments about custody and access. The parents had agreed to joint custody. At issue in the trial was how much time the children should spend in each parent’s home.

 

[36]  The parenting agreement, signed by the parties in 1994 as one of the agreements which collectively governed their separation arrangements, provided a schedule for the children to spend extensive time with each parent, but with their primary residence being with the mother. The trial judge found that the parenting agreement had never been followed by the parties, who had, instead, developed their own ad hoc arrangements for the father’s access. This access usually took place on alternate weekends, but longer periods had, in the past, been easily arranged between the parties when requested by the father.

 

[37]  In my view, based on the evidence, the trial judge correctly concluded that, in the best interests of the three youngest children, their principal residence should continue to be with their mother, with generous access to the father. Before the trial, the oldest daughter, Samantha, had moved into the father’s residence. I agree with the trial judge that Samantha’s principal residence should continue to be with her father, with generous access to her mother.

 

[38]  The father’s proposal was that the children spend every other week with him and his partner. The trial judge concluded that the proposal was unreasonable in the circumstances, given how well the children were doing in their Thornhill home and school, how far they lived from the father’s home in downtown Toronto, and the disruption the split residency would create for the children. In his view, it was “patently” not in the best interests of the children.

 

[39]  These conclusions, in my view, are reasonably supported by the evidence, and I would therefore not interfere with them.

 

[40]  Neither party, however, requested the order made by the trial judge restraining the father from attending the children’s school. Such an order had originally been made on September 2, 1998 by Lack J. because of the awkwardness the children experienced as a result of their father’s recent habit of sitting in on their classes. This appears no longer to be his practice and the order is therefore no longer necessary.

 

(iii)  Spousal support

 

[41]  The divorce judgment includes no provisions for corollary relief. This application is therefore properly brought under s. 15 of the 1985 Divorce Act. Mr. Miglin submits that in the separation agreement, Ms. Miglin released him from all claims for spousal support. Her position, which the trial judge accepted, was that the simultaneously signed “consulting” agreement was in reality intended as spousal support, but was framed as a consulting agreement for the husband’s tax benefit. Ms. Miglin fully expected that it would be renewed at the end of its five-year term.

 

[42]  The trial judge was of the view that the Pelech trilogy threshold did not apply under s. 15 of the 1985 Divorce Act. The court should instead, he concluded, scrutinize a separation agreement, with no prior threshold, to determine whether it provides support in a manner consistent with the support objectives set out in s. 15.2(6). In this case, he found that since the agreement was unfair and inconsistent with the Act’s objectives, the releases and waiver in the separation agreement did not constitute a bar to relief under s. 15 for Ms. Miglin.

 

[43]  The trial judge awarded her $4,400 per month as spousal support, limited to five years. She is content with the quantum, but seeks in a cross-appeal to set aside the five-year limit. She was also awarded $33,204 annually for child support in accordance with the Child Support Guidelines. The trial judge had assessed Eric Miglin’s annual income at $200,000. Ms. Miglin concedes that this amount is erroneous and that the accurate income is $186,130, thereby requiring a reduction in the monthly amount of child support ordered for the three children from $3,000 to a total of $2,767.

 

[44]  I agree with the trial judge that the consulting agreement was “thinly disguised spousal support”, crafted to create a more advantageous tax result for Mr. Miglin. In addition to Ms. Miglin’s testimony that she expected the support she needed to continue through the renewal of the consulting agreement, there are at least two reasons for drawing this inference.

 

[45]  First, the consulting agreement prescribed a fixed annual amount subject to an annual cost of living increase. This reflects the fact that support agreements generally set out payments in fixed amounts for a number of years, subject to annual cost of living increases. The evidence at trial was that employment or consulting agreements usually include neither a fixed amount for several years nor a cost of living increase.

 

[46]  Second, although in the early part of their separation Ms. Miglin had performed some work for the business, this had stopped without objection in the third year of the five-year consulting agreement and she nonetheless continued to receive the monthly amounts under the consulting agreement.

 

[47]  Since the payments under the consulting agreement were found by the trial judge to be support payments, the parties must have anticipated the possibility that such support would still be required in five years since they negotiated a flexible renewal clause of indeterminate duration under the consulting agreement. This clause stated:

The Consultant hereby agrees to serve as a consultant to the Company for the period beginning January 1, 1994 and ending December 31, 1999, provided that such period may be extended from time to time by mutual written agreement of the parties hereto.

 

[48]  Mr. Miglin argues, however, that the release of spousal support in the separation agreement triggers the application of the Pelech trilogy, the jurisprudential effect of which is to insulate him from claims for spousal support unless there has been a radical and unforeseen change in circumstance causally connected to the marriage. In his view, any changes were neither radical nor unforeseen.

 

[49]  Ms. Miglin’s evidence was, as previously stated, that she fully expected that this agreement would be extended and that the support they had both agreed she needed would be provided through the mechanism of this consulting agreement. In her view, Mr. Miglin’s arbitrary termination of the consulting agreement and his escalated and stressful interference in her and their children’s lives represented a radical unforeseen change in circumstances. In other words, she argued that if the trilogy applied, she had met that high threshold.

 

[50]  The primary argument advanced by Mr. Epstein, counsel for Ms. Miglin, was, however, that since the Pelech trilogy was developed under the support provisions of the 1970 Divorce Act, and since those provisions were replaced by a new scheme in the 1985 Divorce Act, the trilogy was no longer the applicable threshold. The more appropriate threshold, in his view, was the threshold for the variation of orders under the Act. I agree.

 

[51]  In Pelech, Caron and Richardson, spousal support was not increased despite evidence of economic need on the part of the former wives and an ability to pay on the part of their former husbands. The trilogy stands for the proposition that when there is a valid separation or settlement agreement by which the parties have purported to finally settle the issue of support, they must show a radical or exceptional change that is causally connected to the marriage in order to vary the terms of the agreement.

 

[52]  The effect of the trilogy was summarized in the third edition of Payne on Divorce (Carswell: Toronto, 1993) at pp. 189-90:

In the context of section 11 of the Divorce Act, 1968, the Supreme Court of Canada endorsed the following principles. A freely negotiated and informed waiver of spousal rights in a separation agreement or in minutes of settlement incorporated in a divorce judgment cannot oust the discretionary jurisdiction of the court to order spousal support on or after divorce. A critical distinction must be made, however, between the existence of the discretionary jurisdiction and the circumstances wherein it is proper for that discretionary jurisdiction to be exercised. Where the parties have negotiated their own agreement freely and on the advice of legal counsel as to how their financial affairs should be settled, and the agreement is not unconscionable in the substantive law sense, it should be respected by reason of the importance of finality in the financial affairs of former spouses and judicial deference to the right of individuals to take responsibility for their own lives and their own decisions. Only where an applicant seeking support or an increase in support establishes that he or she has suffered a radical change in circumstances since the execution of the separation agreement or minutes of settlement and the adverse effects of the radical change flowed from a pattern of economic dependency engendered by the marriage, should the court exercise its relieving power to order (increased) spousal support. Otherwise, the obligation to support an indigent former spouse should be the communal responsibility of the state. The fact that a former spouse is impoverished and in receipt of public assistance, with little or no prospect of improvement in his or her economic condition, is insufficient in itself to warrant judicial disturbance of a negotiated settlement by way of an order for spousal support, if there is no causal connection between the former spouse’s present economic status and the prior marital relationship.

The same criteria apply to both an original application for support and an application to vary minutes of settlement that have been incorporated in a previous divorce judgment.

 

[53]  Mr. Miglin urged that in determining whether the trilogy has continued validity, we consider that by the time the court released its reasons, the new 1985 Divorce Act had been enacted and the court should therefore be presumed to have intended that its decision apply to the newer legislation as well. I see no basis for attributing those intentions to the court. The reasons in the trilogy refer only to s. 11 of the former Act and do not make even passing reference to the amendments in the 1985 Act. The court defined and limited the issue in Pelech to s. 11 of the 1968 Act at pp. 805-06 S.C.R. as follows:

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?

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 relations to such orders.

(Emphasis added)

 

I am not prepared to conclude that the court is basing its decision on a different statute from the one it expressly states it is relying on.

 

[54]  There is extensive literature on the trilogy, much of it critical of its restrictive impact on the ability to redress the disadvantageous economic consequences of a separation: see M. Bailey, “Pelech, Caron and Richardson” (1989-1990) 3 Can. J. Women and the Law 615; N. Bala, “Domestic Contracts in Ontario and the Supreme Court Trilogy: A Deal is a Deal” (1988) 13 Queen’s L.J. 1; Hon. Mr. Justice M. Bastarache, “The Role of Academics and Legal Theory in Judicial Decision-Making” (1997) 37:3 Alta. L. Rev. 739; A. Bissett-Johnson, “Judicial Variation of Final Global Settlements: Pelech v. Pelech, Caron v. Caron, Richardson v. Richardson” (1988) 67 Can. Bar Rev. 153; B. Cossman, “A Matter of Difference: Domestic Contracts and Gender Equality” (1990) 28:2 Osgoode Hall L.J. 303; C. Davies, “Spousal Support Under the Divorce Act: From Moge to Bracklow” (1999), 44 R.F.L. (4th) 61; C. Davies, “Compensatory Support: New Beginnings or a Return to the Past” (1994) 11 Can. Fam. L.Q. 129; C. Davies, “Judicial Interpretation of the Support Provisions of the Divorce Act 1985” (1992) 8 Can. Fam. L.Q. 265; D. Duff, “The Supreme Court and the New Family Law: Working Through the Pelech Trilogy” (1988) 46:2 U.T. Fac. L. Rev. 42; S. Engel, “Compensatory Support in Moge v. Moge and the Individual Model of Responsibility: Are We Headed in the Right Direction” (1993) 57 Sask. L. Rev. 397; S.M. Grant, “The End of Finality” (1997), 27 R.F.L. (4th) 252; A. Harvison Young, “The Changing Family Rights Discourse and the Supreme Court of Canada” (2001) 80 Can. Bar Rev. 749; T. Heeney, “From Pelech to Moge and Beyond: The Test for Variation of a Consensual Spousal Support Order” (1996) 14 Can. Fam. L.Q. 81; M.A. Kril, “The Variation Of Maintenance Orders under S. 11 of the Divorce Act: A Case Comment on Pelech, Richardson and Caron” (1987) 3 Can. Fam. L.Q. 417;    G. Lang, “Pelech: Variations on a Theme” (1990) 69 Can. Bar Rev. 78; Hon. Madame Justice B. McLachlin, “Spousal Support: Is it Fair to Apply New-Style Rules to Old-Style Marriages?” (1990) 9 Can. J. Fam. L. 131; J.G. McLeod, “Annotation on Gates v. Gates” (2000), 7 R.F.L. (5th) 87; J.G. McLeod, “Annotation on Bailey v. Plaxton” (2000), 6 R.F.L. (5th) 29; H. Niman, “Case Comment: When May a Court Vary the Terms of a Settlement Agreement?: Re Pelech and Pelech; Richardson v. Richardson; Caron v. Caron” (1987) 8:4 Advocates Q. 497; J. Payne, “An Overview of Theory and Reality in the Judicial Disposition of Spousal Support Claims under the Canadian Divorce Act” (2000) 63 Sask. L. Rev. 403; J.D. Payne “Permanent Spousal Support in Divorce Proceedings: Why? How Much? How Long?” (1987) 6 Can. J. Fam. L. 384; J.D. Payne, “Contracting Out of Spousal and Child Support Under the Divorce   Act” (1996) 14 Can. Fam. L.Q. 113; Hon. Madame Justice P. Proudfoot and K. Jewell, “Restricting Application of the Causal Connection Test: Story v. Story” (1990) 9 Can. J. Fam. L. 143; C. Rogerson, “The Causal Connection Test in Spousal Support Law” (1989) 8 Can. J. Fam. L. 95; M. Shaffer, “Separation Agreements Post-Moge and L.G. v. B.G.: A New Trilogy” (1999) 16 Can. J. Fam. L. 51; C. Sheppard, “Uncomfortable Victories and Unanswered Questions: Lessons from Moge” (1995) 12 Can. J. Fam. L. 283; L. Wolfson, “Case Comment: The Legacy of Pelech v. Pelech” (1989) 10:2 Advocates Q. 205.

 

[55]  Courts have been divided on the continued validity of the trilogy. Several cases have followed the trilogy: Masters v. Masters, [1994] 1 S.C.R. 883, 114 D.L.R. (4th) 575; Santosuosso v. Santosuosso (1997), 32 O.R. (3d) 143, 27 R.F.L. (4th) 234 (Div. Ct.); Fyffe v. Fyffe (1988), 63 O.R. (2d) 783, 48 D.L.R. (4th) 759 (C.A.); Wilkinson v. Wilkinson (1998), 43 R.F.L. (4th) 258 (Alta. Q.B.); Allen v. Allen (1999), 2 R.F.L. (5th) 1, [2000] 3 W.W.R. 271 (Alta. Q.B.); Gates v. Gates (2000), 7 R.F.L. (5th) 87 (S.C.J.), affd [2001] O.J. No. 848 (Div. Ct.), leave to appeal to C.A. requested; Leopold v. Leopold (2000), 51 O.R. (3d) 275, [2000] O.J. No. 4604 (S.C.J.); Lees v. Lees (2000), 6 R.F.L. (5th) 302, [2000] O.J. No. 1046 (S.C.J.). Others have found it to be obsolete: G. (L.) v. B. (G.), [1995] 3 S.C.R. 367, 165 N.R. 237 (minority judgment); Bailey v. Plax ton (2000), 47 O.R. (3d) 593, 6 R.F.L. (5th) 29 (S.C.J.); Lanthier v. Lanthier, [2000] O.J. No. 2949 (S.C.J.); Taimoori v. Fanaian, [2000] O.J. No. 2997 (S.C.J.); Kennedy v. Kennedy, 11 R.F.L. (5th) 150, [2000] O.J. No. 3742 (S.C.J.).

 

[56]  Other than the brief reasons in Masters, supra, recent decisions from the Supreme Court of Canada appear to suggest, both directly and indirectly, that the court may be willing to reconsider the continued applicability of the threshold pronounced in the trilogy.

 

[57]  In the case of G. (L.) v. B. (G.), supra, the question of the continued applicability of the trilogy was circumvented by the majority, but was fully explored in the minority concurring opinion. The husband had sought to vary a consent order for spousal support pursuant to s. 17 of the 1985 Divorce Act. Sopinka J., for the majority, concluded that this was not an appropriate case to determine whether the trilogy still applied under the 1985 Divorce Act.

 

[58]  L’Heureux-Dub J. for the minority, however, concluded that the case did properly trigger the trilogy issue and found that the trilogy had been superceded by the new Divorce Act. There is no doubt that the issue is squarely before this court, however, because it was, the parties conceded, the central support issue at trial.

 

[59]  McLachlin J., in Moge v. Moge, [1992] 3 S.C.R. 813, 99 D.L.R. (4th) 456, said at p. 877 S.C.R. that spousal support is “first and last a matter of statutory interpretation”. The first step in the analysis therefore requires an examination of the contrasting statutory language in the revised 1985 Divorce Act and the old 1970 Divorce Act under which the trilogy was decided.

 

[60]  In my view, based on the new language in the 1985 Divorce Act, and the revised approach to support developed by the Supreme Court of Canada in accordance with those statutory changes, it is difficult to justify the continued application of the trilogy which emanated from a completely different statutory scheme. The language in s. 15 of the 1985 Divorce Act is so dramatic a departure from the linguistic and conceptual minimalism of s. 11 of the former Divorce Act that statutory interpretations emanating from the old legislation, such as the trilogy, cannot, it seems to me, continue to apply.

 

[61]  The major and obvious difference between the 1970 Divorce Act under which the trilogy was decided and the 1985  Act, is that the former Act did not set out support objectives. The new Act, on the other hand, offers a comprehensive scheme for support. It is therefore crucial to examine this scheme, rather than the principles gleaned from the old Act’s philosophical silence, for guidance on how agreements are to be treated.

 

[62]  Section 11 of the 1970 Divorce Act made no explicit reference to separation agreements. It states:

11(1) Upon granting a decree nisi of divorce, the court may, if it thinks it fit and just to do so having regard to the conduct of the parties and the condition, means and other circumstances of each of them, make one or more of the following orders, namely:

(a)  an order requiring the husband to secure or to pay such lump sum or periodic sums as the court thinks reasonable for the maintenance of

(i)  the wife,

(ii)  the children of the marriage, or

(iii)  the wife and the children of the marriage;

(b)  an order requiring the wife to secure or to pay such lump sum or periodic sums as the court thinks reasonable for the maintenance of

(i)  the husband,

(ii)  the children of the marriage, or

(iii)  the husband and the children of the marriage; and

(c)  an order providing for the custody, care and upbringing of the children of the marriage.

(2) An order made pursuant to this section may be varied from time to time or rescinded by the court that made the order if it thinks it fit and just to do so having regard to the conduct of the parties since the making of the order or any change in the condition, means or other circumstances of either of them.

 

(Emphasis added)

 

[63]  However, under the 1985 Divorce Act, specific reference is made to separation agreements in s. 15.2(4), which provides that agreements are one of several factors to consider in awarding support:

15.2(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, need and other circumstances of each spouse, including

(a)  the length of time the spouses cohabited;

(b)  the functions performed by each spouse during cohabitation; and

(c)  any order, agreement or arrangement relating to support of either spouse.

 

(Emphasis added)

 

[64]  It is also necessary to consider the effect of s. 15.2(6), which further animates s. 15.2(4) by providing the philosophical objectives for ordering spousal support. Section 15.2(6) provides:

15.2(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should

(a)  recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

(b)  apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

(c)  relieve any economic hardship of the spouses arising from the breakdown of the marriage; and

(d)  in so far as practicable, promote the economic

self-sufficiency of each spouse within a reasonable period of time.

 

[As am. 1997, c. 1, s. 2]

 

[65]  The scheme for spousal support under the new legislation attempts to accommodate the realities of a marriage when determining the economic consequences of its dissolution. One of the factors to be taken into account, along with others, is whether there is an arrangement or agreement for support. Agreements are not, notably, given any primacy, nor is there any explicit statutory direction for how the existence of an agreement is to be factored into an assessment of whether or how much support should be awarded. Given the absence of any legislative requirement to defer to separation agreements, what role does the Act appear to assign such agreements?

 

[66]  To start, it is clear from s. 15.2(4)(c) that where there are existing agreements, orders or arrangements, a court is not entitled to disregard them. The relevance of this, it seems to me, is in its statutory direction to a court that in exercising its discretion, it should not ignore the fact that there is something around which the parties have arranged their financial affairs, such as a court order or the consensual ordering of their economic relationship through a separation agreement. Both represent a kind of economic certainty. A court order reflects either the judicial ratification of a consent by the parties, or judicial scrutiny of the parties’ economic facts. A valid separation agreement represents an attempt by two parties to negotiate the terms of their social and economic disengagement. In the case of both an order and an agreement, it can be presumed that the parties feel entitled to conduct themselves as if the order or agreement represents something relatively binding.

 

[67]  This shared presumptive understanding should not be easily disturbed. There is, in most cases, an inherent financial and psychological vulnerability that flows from the dissolution of a spousal partnership, an anxiety about future viability, and a fear of uncertain consequences. But among the certainties the parties add to the reconstructive mortar that accompanies their departure from a marriage, is an order or agreement they assume will not cavalierly be interfered with by either of them.

 

[68]  These expectations are protected in the case of court orders by s. 17 of the Divorce Act, which designates that orders can only be varied if there is a change in circumstances. The statutory threshold for variation is set out in s. 17(4.1):

17(4.1) Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration.

 

[69]  The objectives of the provision permitting the variation of spousal support orders are set out in s. 17(7), which, significantly, mirrors the language in s. 15.2(6). Section 17(7) provides:

17(7) A variation order varying a spousal support order should

(a)  recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown;

(b)  apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

(c)  relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and

(d)  in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.

 

[70]  In Willick v. Willick, [1994] 3 S.C.R. 670, 119 D.L.R. (4th) 405, Sopinka J. defined the threshold for what constitutes “change” in s. 17(4.1) as follows [at p. 688 S.C.R.]:

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.

 

(Emphasis added)

 

[71]  For the variation of orders then, the threshold is whether a change in circumstance has taken place since the time the order was made which, if known at the time, would likely have resulted in a different order. The onus of proving the sufficiency of the change rests on the applicant. Once such a change has been found, a court has been held to have a wide discretion to determine what amount, if any, should be ordered, based on the factors set out in s. 17(7). (Willick, supra, and Trewin v. Jones (1997), 32 O.R. (3d) 225, 26 R.F.L. (4th) 418 (C.A.).)

 

[72]  Orders and agreements are, notably, referred to together in s. 15.2(4). This may, it seems to me, signal a legislative intent that they be similarly treated unless their differences call for a different threshold. If a court order, which the parties properly consider to be presumptively binding, can be varied by meeting a threshold of material change, it is difficult conceptually to see why a separation agreement, which the parties usually see as no less binding, should be subjected to a different or higher threshold before a court can review what amount of support, if any, is justified. In any event, there is, in my view, no basis in the current Act for imposing a threshold as stringent as the one pronounced in the trilogy.

 

[73]  Moreover, imposed orders can, I think, be presumed to be in reasonable compliance with the objectives of the Act by virtue of their having received judicial screening or scrutiny. Agreements, on the other hand, can be deemed to be in reasonable compliance only with the negotiated wishes of the parties regardless of such compliance, negotiated, moreover, on the tense faultline of a relationship. If it is possible to vary a binding order which presumptively meets the objectives of the Act by meeting the threshold of a material change in circumstance, why would the legislature have intended to make it more difficult to vary an agreement which, while similarly binding, does not enjoy a similar presumption. I would not, however, assume that a lower threshold was intended for agreements, but rely instead on their inherent fallibilities to support the conclusion that the legislature, by putting agreements and orders together in the same subsection, may have intended that they be subject to the same, albeit significant, threshold for variation. This fact, in combination with the revised statutory language and the Supreme Court’s resulting revised approach to spousal support, persuades me that a tenable argument can be made for a similar threshold.

 

[74]  That said, I acknowledge that the reference to agreements together with orders in s. 15.2(4) is not determinative of the legislature’s intention to impose identical thresholds for variation. It goes without saying, however, that when the Act was amended in 1985, it was — and remains — open to the legislature to limit the vulnerability of agreements from judicial variation by requiring deference to their terms. Ontario’s Family Law Act, R.S.O. 1990, c. F.3, s. 33(4), for example, provides that a court may set aside a provision for support or a waiver of the right to support in an agreement in the following circumstances:

(a)  if the provision for support or the waiver of the right to support results in unconscionable circumstances;

(b)  if the provision for support is in favour of or the waiver is by or on behalf of a dependant who qualifies for an allowance for support out of public money; or

(c)  if there is default in the payment of support under the contract or agreement at the time the application is made.

On the other hand, under s. 51 of British Columbia’s former Family Relations Act, R.S.B.C. 1979, c. 121, now amended, the threshold for varying an agreement was substantially lower, namely, whether the agreement was “unfair”, having regard to:

(a)  the duration of the marriage;

(b)  the duration of the period during which the spouses have lived separate and apart;

(c)  the date when property was acquired or disposed of;

(d)  the extent to which property was acquired by one spouse through inheritance or gift;

(e)  the needs of each spouse to become or remain economically independent and self sufficient; or

(f)  any other circumstances relating to the acquisition, preservation, maintenance, improvement or use of property or the capacity or liabilities of a spouse.

 

[75]  I include these provisions not to endorse either approach, but rather to demonstrate that clear legislative direction is possible. The absence of such direction under the 1985 Act leaves us in the position of drawing inferences from the linguistic tea leaves in the statute. In particular, the absence of any statutory direction that valid separation or settlement agreements should be treated with particular deference, obliges us, in my view, to look for direction to the overall scheme of the support provisions in the Act, whereby economic equity appears to be the overriding objective.

 

[76]  In this regard, I believe that support for a different approach to agreements under the 1985 Act may be found in the Supreme Court’s jurisprudence, particularly in Moge, supra, and Bracklow v. Bracklow, [1999] 1 S.C.R. 420, 169 D.L.R. (4th) 577, which confirm that the 1985 Divorce Act represents a profound change in approach to support from that generated by the 1970 Act. These cases, which together provide the interpretative framework for spousal support under the Divorce Act, suggest, as did the minority judgment in G. (L.) v. B. (G.), that the approach to support under the trilogy and the former Divorce Act may no longer be applicable. This jurisprudence reinforces the conclusion reached on even a plain reading of s. 15, that there has been so significant a change in the legislative directions for awarding spousal support in the 1985 Divorce Act, that judicial interpretations founded on the old language cannot survive, let alone prevail.

 

[77]  There is no doubt that one of the central objectives in the trilogy was to reinforce the rights of the parties to finalize their arrangements by agreement. But it is also true that the prevailing support theories underlying the trilogy were the clean break theory as the ultimate support objective and the state as the ultimate provider. These theories, woven together with the finality objective, led logically to a highly stringent threshold for variation — hence the requirement of a radical change in circumstance causally connected to the marriage. The philosophies of support in Moge and Bracklow, however, reinforce an interpretation of the 1985 Divorce Act which is inconsistent with the trilogy principles or, at the very least, undermine the conceptual support pillars underlying the trilogy, leaving standing only the finality objective which, it seems to me, must therefore be reassessed in light of the new support pillars created by the 1985 Act.

 

[78]  The overriding purpose of the 1985 Divorce Act’s support provisions are summarized by L’Heureux Dub J. in Moge in the following passages [at pp. 866, 870 S.C.R.]:

The four objectives set out in the Act can be viewed as an attempt to achieve an equitable sharing of the economic consequences of marriage or marriage breakdown. At the end of the day however, courts have an overriding discretion and the exercise of such discretion will depend on the particular facts of each case, having regard to the factors and objectives designated in the Act.

. . . . .

In short, in the proper exercise of their discretion, courts must be alert to a wide variety of factors and decisions made in the family interest during the marriage which have the effect of disadvantaging one spouse or benefitting the other upon its dissolution. In my view, this is what the Act mandates, no more, no less.

 

[79]  Under the new Divorce Act therefore, self-sufficiency, the primary support objective prevailing at the time of the trilogy, is only one of four objectives of spousal support. The others, the recognition of economic advantage or disadvantage resulting from the marriage, the apportionment of financial consequences resulting from the care of children and the amelioration of economic hardship are given equal weight with the promotion of self-sufficiency. Furthermore, although self- sufficiency is still an objective of support, the 1985 Act describes it as being a goal only “in so far as practicable” under s. 15.2(6)(d).

 

[80]  L’Heureux-Dub J. discusses the relationship between self-sufficiency and the three other articulated purposes of support at p. 852 S.C.R.:

All four of the objectives defined in the Act must be taken into account when spousal support is claimed or an order for spousal support is sought to be varied. No single objective is paramount. The fact that one of the objectives, such as economic self-sufficiency, has been attained does not necessarily dispose of the matter. . . .

 

[81]  In “Uncomfortable Victories and Unanswered Questions: Lessons From Moge”, supra, at p. 298, Professor Colleen Sheppard describes the difference between the approach to support emphasizing self-sufficiency in the trilogy and the emphasis in Moge on compensation derived from s. 15.2:

By emphasizing the extensive and long-term character of the economic disadvantages arising from marriage, the Moge case provides justification for extensive and long-term spousal support. In doing so, it sends a message directly at odds with the emphasis on promoting individual self-sufficiency in the earlier trilogy, although the potential for self- sufficiency is still a factor to be considered by judges.

Thus, an underlying theme in L’Heureux-Dub J.’s decision is the importance of acknowledging the full economic disadvantages that disproportionately affect women as a result of the division of labour in a large number of families and the priority often accorded to husbands’ careers.

 

[82]  In Bracklow, at p. 440 S.C.R., McLachlin J. endorses and expands on the Moge approach to spousal support and concludes that while ultimately each case must be decided on its own facts, all the factors in s. 15.2(6) must be considered and balanced in a way that acknowledges, accommodates and alleviates the disadvantageous consequences flowing from the breakdown of a marriage, stating:

Moge, supra, sets out the method to be followed in determining a support dispute. The starting point is the objectives which the Divorce Act stipulates the support order should serve: (1) recognition of economic advantage or disadvantage arising from the marriage or its breakdown; (2) apportionment of the financial burden of child care; (3) relief of economic hardship arising from the breakdown of the marriage, and (4) promotion of the economic self-sufficiency of the spouses: s. 15.2(6). No single objective is paramount; all must be borne in mind. The objectives reflect the diverse dynamics of the many unique marital relationships.

Against the background of these objectives the court must consider the factors set out in s. 15.2(4) of the Divorce Act. Generally, the court must look at the “condition, means, needs and other circumstances of each spouse”. This balancing includes, but is not limited to, the length of cohabitation, the functions each spouse performed, and any order, agreement or arrangement relating to support. Depending on the circumstances, some factors may loom larger than others. In cases where the extent of the economic loss can be determined, compensatory factors may be paramount. On the other hand, “in cases where it is not possible to determine the extent of the economic loss of a disadvantaged spouse

. . . the court will consider need and standard of living as the primary criteria together with the ability to pay of the other party”: Ross v. Ross (1995), 168 N.B.R. (2d) 147 (C.A.), at p. 156, per Bastarache J.A. (as he then was).

. . .

 

[83]  McLachlin J. elaborates on the philosophical basis for this approach to the Act as follows, at p. 448 S.C.R.:

In summary, the statutes and the case law suggest three conceptual bases for entitlement to spousal support: (1) compensatory, (2) contractual, and (3) non-compensatory. Marriage, as this Court held in Moge (at p. 870), is a “joint endeavour”, a socio-economic partnership. That is the starting position. Support agreements are important (although not necessarily decisive), and so is the idea that spouses should be compensated on marriage breakdown for losses and hardships caused by the marriage. Indeed, a review of cases suggests that in most circumstances compensation now serves as the main reason for support. However, contract and compensation are not the only sources of a support obligation. The obligation may alternatively arise out of the marriage relationship itself. Where a spouse achieves economic self-sufficiency on the basis of his or her own efforts, or on an award of compensatory support, the

obligation founded on the marriage relationship itself lies dormant. But wh ere need is established that is not met on a compensatory or contractual basis, the fundamental marital obligation may play a vital role. Absent negating factors, it is available, in appropriate circumstances, to provide just support.

 

(Emphasis added)

 

[84]  McLachlin J., as did L’Heureux-Dub J. in Moge, warns in Bracklow at p. 438 S.C.R., that the “clean break” or self- sufficiency support theory cannot be treated as an isolated and overriding objective without considering its factual marital context:

It is critical to recognize and encourage the self- sufficiency and independence of each spouse. It is equally vital to recognize that divorced people may move on to other relationships and acquire new obligations which they may not be able to meet if they are obliged to maintain full financial burdens from previous relationships. On the other hand, it is also important to recognize that sometimes the goals of actual independence are impeded by patterns of marital dependence, that too often self-sufficiency at the time of marriage termination is an impossible aspiration, and that marriage is an economic partnership that is built upon a premise (albeit rebuttable) of mutual support. . . .

 

(Emphasis added)

 

[85]  As the following passage from Bracklow [at p. 440 S.C.R.] demonstrates, support is a matter in each case of judicial discretion depending on the facts, not of judicial deference depending on the terms of an agreement, as formerly directed by the trilogy:

There is no hard and fast rule. The judge must look at all the factors in the light of the stipulated objectives of support, and exercise his or her discretion in a manner that equitably alleviates the adverse consequences of the marriage breakdown.

 

[86]  In addition, Bracklow rejects another guiding theory in the trilogy, namely that the state, not the family, is the primary economic safety net. As McLachlin J. says at p. 438 S.C.R.:

The real question in such cases is whether the state should automatically bear the costs of these realities, or whether the family, including former spouses, should be asked to contribute to the need, means permitting. Some suggest it would be better if the state automatically picked up the costs of such cases: Rogerson, “Judicial Interpretation of the Spousal and Child Support Provisions of the Divorce Act, 1985 (Part I)”, supra, at p. 234, n. 172. However, as will be seen, Parliament and the legislatures have decreed otherwise by requiring courts to consider not only compensatory factors, but the “needs” and “means” of the parties. . . . It is rather a matter of applying the relevant factors and striking the balance that best achieves justice in the particular case before the court.

 

[87]  Bracklow appears to confirm that under s. 15.2, the obligation to provide support arises from the marriage itself, if one spouse requires the other’s assistance and the other has the financial resources to relieve the need, whether or not there has been a change that is causally connected to the marriage. This observation further justifies the conclusion that in general any threshold of material change justifying a review of a support agreement need not be causally connected to the marriage. The time frame for the survival of the duty must, of necessity, remain flexible. As McLachlin J. says at p. 452 S.C.R.:

Marriage, while it may not prove to be “till death do us part”, is a serious commitment not to be undertaken lightly. It involves the potential for lifelong obligation. There are no magical cut-off dates.

 

[Emphasis in original]

 

[88]  Bracklow widens the sources of entitlement to include the full panoply of conceptual bases for spousal support obligations, all of which must be considered, with any or all of them factoring into the ultimate order depending on the circumstances of the case.

 

[89]  L’Heureux-Dub J. in G. (L.) v. B. (G.), supra, discussed [at pp. 384, 390, 391-92 S.C.R.] the relationship between the trilogy and the current and former legislation and outlined how the new language espouses a different objective for the awarding of spousal support from that justified under the former Act:

What was not spelled out in the 1968 Act was quickly made up by the courts, which adopted the concept of a “clean break”, namely the marked tendency of the courts to assume that economic self-sufficiency of either spouse could and should be achieved as soon as possible after the divorce. In this context, spousal support could only be of a temporary nature, i.e. a means of enabling its recipient, generally the wife, to go into or return to the labour market, thus allowing the parties to rebuild their separate lives.

This is the context in which Pelech, Richardson and Caron were decided. Although the judgments were rendered in 1987, after the coming into force of the current Divorce Act, they dealt with consensual support orders made pursuant to the 1968 Act. Pelech and Caron involved motions to vary support orders based on s. 11(2) of that Act, while Richardson concerned a support order based on s. 11(1). In all three cases a separation agreement was entered into between the parties.

. . . . .

This is precisely what the 1985 Act was to accomplish by, on the one hand, moving away from the tendency favouring a “clean break” which a majority of courts had adopted under the 1968 Act and its implicit presumption of economic self- sufficiency, and, on the other, by emphasizing the substantive rather than formal equality of the spouses in the marriage and at the time of the divorce.

. . . . .

The current Act, therefore, adopted as its underlying philosophy a partnership in marriage and, at the time of a divorce, an equitable division of its economic consequences between the spouses. It thus rejected the presumption of economic self-sufficiency and substituted for it a number of criteria that would take into account the advantages and disadvantages to spouses accruing from the marriage or its breakdown. It did not, however, completely depart from the objective of economic self-sufficiency, although it underlined that this objective can only be pursued “in so far as practicable”.

Paradoxically, after the enactment of the current Act, courts continued to rely on the pattern established under the 1968 Act, namely the clean break model of self-sufficiency as a primary objective, i.e. economic self-sufficiency of the recipient of alimony, generally the wife, as soon as possible after the divorce. This tendency, which actually became more marked after 1985, was attributed to the Supreme Court’s judgments in Messier v. Delage, supra, and the trilogy, and, in particular, to the causal connection which it advocated, although these cases were decided under the 1968 Act.

Vigorous criticism from academic writers . . . and the reaction of certain courts . . . were quick to challenge this trend, which they contended was at odds with the very language of the 1985 Act and its underlying philosophy. In Moge v. Moge, supra, the Supreme Court sought to put an end to the uncertainty that prevailed by adopting an interpretation of the 1985 Act consistent with its language and underlying philosophy, especially as regards support obligations and their subsequent variation.

That judgment clearly rejected the concept of formal equality which had previously prevailed and, with it, the main assumption at the heart of the economic self-sufficiency model: . . .

 

[90]  L’Heureux-Dub J. in G. (L.) v. B. (G.) also acknowledged the importance of the parties’ right to determine their own agreement and their expectations of finality. In her view, however, the autonomous decision-making capacity of the parties would be better insulated from judicial intervention, and therefore, more likely to be final, the more the terms of the agreement reflected the objectives of the 1985 Act. In her words, at p. 398 S.C.R.:

. . . while it is true that the parties should be encouraged to reach an agreement on the economic consequences resulting from their divorce rather than going to the courts, such agreements are only one factor, “albeit an important one”, which must be considered in the exercise of the judge’s discretionary power [J. Durnford and S. Toope, “Spousal Support in Family Law and Alimony in the Law of Taxation” (1994) 42 Can. Tax. J. 1]. The weight to be given to agreements will depend, first, on the extent to which the agreement reflects the principles and objectives stated in s. 17 of the 1985 Act and, second, on the scope and nature of the change which has occurred, taking into account all the circumstances of the parties. The more the agreement or support order takes into account the various objectives of the Act; especially that of promoting an equitable distribution of the economic consequences of the marriage and its breakdown, the more likely it will be to influence the outcome of the variation application. . . .

 

[91]  The approach taken by L’Heureux-Dub J. in her minority opinion in G. (L.) v. B. (G.) is analyzed and endorsed by Professor James G. McLeod in his annotation to the decision at (1995), 15 R.F.L. (4th) 216. His comments at pp. 218-19 R.F.L. are particularly apposite and bear repeating:

The minority acknowledged the spouses’ right to settle their financial affairs in a fair and responsible fashion but was unwilling to allow a private agreement to undermine statutory policy. The minority reasons emphasized the public interest in the equitable unwinding of family finances upon marriage breakdown. The social safety net has changed and the job supply of the 1980s is gone. Dependants are less likely to

find full-time employment which will allow them to achieve economic self-sufficiency upon marriage breakdown and there is less government assistance available. The options are to abandon a dependant or to force the family resources to continue to assist the dependant. As long as the dependency is related to the roles adopted in marriage, it is reasonable to continue support.

The minority reasons reflect the reality facing many dependent spouses upon marriage breakdown. Often, dependent spouses are in unequal bargaining positions as a result of the family dynamics. The influence of the income-earning spouse who has made financial decisions for the family may continue over such issues following separation. As well, a dependent spouse may misapprehend his or her needs after separation and be unaware of the real cost of post-separation life.

In the past, courts have held that marriage does not put spouses into a fiduciary relationship or a relationship requiring them to bargain fairly upon marriage breakdown. . . . However, L’Heureux-Dub J.’s reasons come close to imposing such an obligation without referring to the cases on point. The thrust of her reasons is that a person should not be allowed to take advantage of his or her spouse’s dependence or inexperience to exact an unfair bargain.

Contractual doctrines of undue influence and unconscionability are insufficient to deal with the problems arising out of unfair family settlements: see D. Majury, “Harsh Marriage Contracts — Wrongs without a Remedy? Family Law Advances”, November 10, 1995, Gazette of the Law Society of Upper Canada. The pressure in family negotiations is often subtle and implied. As well, unfair agreements usually do not reach the level of improvidence necessary to justify a finding of unconscionability. . . . Accordingly, while an unfair agreement may be valid, according to L’Heureux-Dub J. a court may override the support terms of the agreement under the Divorce Act.

 

[92]  Professor McLeod anticipates — then refutes — arguments that the effect of the approach endorsed by L’Heureux-Dub J. would be to deprive parties of the incentive to settle their disputes by agreement. He cogently argues that there is no basis for assuming that parties will refuse to negotiate agreements just because agreements which disregard the Act’s philosophy and objectives will invite greater judicial scrutiny than those which reflect them. As he says, at pp. 219-220 R.F.L.:

In British Columbia, the matrimonial property legislation expressly authorizes a court to override a valid property agreement if it is unfair. . . . In B. (G.), L’Heureux-Dub J. recognized a similar power under the Divorce Act. Since a court should use its support and property powers together to effect an equitable distribution of resources, . . . L’Heureux-Dub J. has extended to spouses in other provinces, in substance if not form, the protection against unfair settlement available in British Columbia.

In Pelech, Wilson J. held that parties should be encouraged to settle their disputes and they should be able to rely on their settlements. If parties thought that a settlement could be easily unwound, they would not be so encouraged to settle. Some commentators may suggest that the effect of the minority reasons in B. (G.) is to discourage settlement agreements by leaving them open to constant review. It is suggested that such concern is unwarranted.

There is no proof from the literature to date that the power to unwind settlements in British Columbia has discouraged settlement. Even if that were the case, L’Heureux-Dub J.’s reasons question the validity of the truism that separated spouses should always be encouraged to settle their disputes. Not all settlements should be encouraged. Courts should be concerned to uphold only fair and reasonable settlements. It is submitted that that principle is the basis of L’Heureux-Dub J.’s reasons. Fair or reasonable settlements should be upheld, but unfair or unreasonable settlements should not.

That practice is much like the pre-Pelech one where separation agreements often had little effect and courts routinely overrode the support terms of an agreement under the Divorce Act to redivide property or restructure support whenever a judge thought it necessary or fair to do so. The problem with such cases was that there was neither any real guidance as to what was “fair” nor any structure to the judicial discretion to intervene. L’Heureux-Dub J. addressed both points in her reasons and provided a framework for a structured judicial discretion that should meet the interests of the parties to rely on a fair settlement of their financial affairs, yet allow a court a supervisory power under the Divorce Act to maintain the integrity of support and property laws.

The Divorce Act establishes the purposes and objectives of a support award. If the overall terms of a settlement agreement meet those purposes and objectives, the agreement should be respected. If the terms of an agreement do not promote the policies under the Act, a court should intervene to maintain the policies and objectives under the Act.

However, a court should not take the opportunity to review support settlements as an invitation to fine-tune a financial settlement. Rather, a court reviewing a settlement should approach the matter much as an appeal court approaches a family law appeal. The court’s job is not to second-guess the parties but to ensure that the proper principles were applied to the facts. A court should intervene only if the financial settlement exceeds the generous ambit within which reasonable disagreement is possible.

 

[93]  I agree that to the extent possible, parties should be encouraged not only to resolve their disputes by agreement, but also to inoculate them from routine review by ensuring their compliance with the Act. In my view, the likelihood of their variation will be reduced the more the terms take the Act’s objectives into account, since, among other reasons, those objectives seek to accommodate and anticipate many of the circumstances often relied on as material changes. I leave open for future consideration the extent to which leeway should be given, if at all, to agreements which predate the 1985 Act.

 

[94]  The threshold I would therefore impose for the variation of a subsisting support agreement in an application for corollary relief under s. 15.2 is whether there has been a material change of circumstances from the time the agreement was made.

 

[95]  Under this analysis, the existence of a valid separation or settlement agreement under the 1985 Divorce Act results in a two-stage inquiry designed both to protect the parties’ reasonable expectations from spurious challenge by requiring a material change before a judicial review of support takes place, while at the same time promoting, where warranted, the objectives of equitable spousal support set out in s. 15.2(6) and echoed in s. 17(7) of the 1985 Divorce Act. The first and threshold stage is to determine whether there has been a material change in circumstances. If the threshold of a material change has been met, the second stage is to determine what amount of spousal support, if any, is justified under the statutory principles set out in s. 15 of the Divorce Act and refined in leading cases from the Supreme Court of Canada.

 

[96]  Any variation will, of course, be a matter of discretion depending on the facts of the particular case. The following are some of the factors to consider at the second stage in deciding whether and to what extent to vary the terms of an agreement: the extent, source and impact of the change in circumstances; whether the agreement reflects a clear and unequivocal intention to insulate it from review or variation; the extent to which the agreement satisfies the objectives of the Act; and, where there is an agreement to waive support or limit its duration to a fixed event or time, how lengthy a period has elapsed since the waiver, event or expiration of the time limit. This is not an exhaustive list, but represents the view that the terms of a valid agreement, while clearly not determinative, ought to be given significant weight.

 

[97]  For the purposes of this appeal, it is unnecessary to decide whether, in the interests of consistency, the higher threshold for varying expired spousal support orders found in s. 17(10) [See Note 1 at end of document] of the Act should also apply to expired agreements, or whether this is an area where the different route to agreements and orders argues for leaving the variation threshold for agreements as being a material change. What is clear, however, is that the legislature has highlighted an intention in s. 17(10) that expired responsibilities should be significantly more difficult to reinstate. At the very least, it seems to me, the length of time which has elapsed since the parties last expected to receive or provide support under their agreement, and the extent to which they have reasonably relied in the interim on its absence in organizing their subsequent financial arrangements, is relevant in determining whether a variation should be ordered and, if so, to what extent.

 

[98]  Applying these considerations to the facts in this case, the first inquiry is whether there has been a material change of circumstances. There are two factors which combine in this case to represent such a change. The first is the extent of Ms. Miglin’s childcare responsibilities. There has not been the extensive sharing of responsibility between the parents that their parenting agreement appeared to anticipate. This has left Ms. Miglin with the overwhelming share of responsibility, affecting negatively her range of employment options and therefore, affecting her ongoing need for support. This support, which had been provided through the consulting agreement, was terminated by Mr. Miglin despite Ms. Miglin’s ongoing need. These factors represent a material change which, if known at the time, would likely have resulted in ongoing spousal support. The issue then becomes whether, and to what extent, spousal support should be ordered.

 

[99]  The first factor to consider in the second stage of the inquiry is the impact of the change. Ms. Miglin has had the primary responsibility for the children since they were born. Although she worked at the lodge and was of great assistance in its management, especially during the summer months, she was unable, despite extensive efforts, to find sufficiently remunerative employment after her separation to justify the cost of baby-sitters. And although the parties had originally agreed in their parenting agreement that there be extensive sharing of time with the children, that never materialized. Ms. Miglin has remained, as she had during the marriage, the primary caregiver for the children, and has, therefore, remained economically dependent on her former husband’s support, based on the distribution of roles and responsibilities arising during and since the marriage.

 

[100]  The trial judge found that the consulting agreement, not the separation agreement which contained the explicit release, was the true agreement for spousal support. Ms. Miglin applied for support during the subsistence of that agreement. The parties, in this agreement, recognized and anticipated the possibility that Ms. Miglin’s economic needs could be indeterminate, since the five-year term could be extended “from time to time” by mutual agreement. However, the agreement fell short of the Act’s objectives in s. 15.2(6), since it took insufficient account, both in quantum and duration, of how fundamentally Ms. Miglin’s role during the 15-year marriage had created a financial dependency on Mr. Miglin and impaired her capacity to become economically self-sufficient. Only Ms. Miglin experienced economic disadvantage or hardship arising from the marriage and its dissolution, yet the long-term financial consequences of her childcare responsibilities were not equitably acknowledged in the economic arrangements made by the parties.

 

[101]  The quantum of spousal support ordered by the trial judge was not unreasonable in the circumstances and I see no basis for interfering with it. The $4,400 monthly satisfied the objectives set out in s. 15.2(6) to the extent that it recognizes that Ms. Miglin’s current economic dependency flows from her marriage and is not being arbitrarily prolonged by her. It also respects her childcare responsibilities. The award of spousal support fairly reflects Ms. Miglin’s current needs and expenses. It is also considerate of Mr. Miglin’s expenses. Mr. Miglin, in fact, received the benefit of the trial judge’s doubt in failing to attribute to his income the $82,500 he pays his current partner for bookkeeping services in connection with Killarney Lodge. The trial judge attributed only the $30,000 she pays for her share of the rent of the home owned by Mr. Miglin when he assessed Mr. Miglin’s income. The propriety of the amounts awarded are not, in my view, undermined by the fact that the oldest child is now livin g with her father.

 

[102]  I am, however, of the view that given the ages of the children and Ms. Miglin’s responsibilities to them, any term limit for support imposed at this point is unhelpfully speculative. In the absence of any evidence that Ms. Miglin is deliberately or arbitrarily thwarting her economic self- sufficiency, there is no reason in law or policy for imposing a time limit on the duration of her support. (Kent v. Frolick (1996), 23 R.F.L. (4th) 1 (Ont. C.A.); Trewin v. Jones, supra). The responsibilities she and her husband agreed she would undertake during the marriage have had, and will likely continue to have, a disadvantageous impact on her earning capacities. It is not easy to anticipate at this time when and to what extent those disadvantages will be attenuated.

 

[103]  The quantum of child support will be varied in accordance with the parties’ concession. In addition, the order restraining the father’s school attendance will be set aside. The appeal is otherwise dismissed with costs. The cross-appeal is allowed, without costs, and the order imposing a five-year term on spousal support is set aside. In the circumstances, I see no basis for interfering with the costs order made by the trial judge.

 

Appeal dismissed; cross-appeal allowed.

 

Notes

 

Note 1:  17(10) Notwithstanding subsection (1), where a spousal support order provides for support for a definite period or until a specified event occurs, a court may not, on an application instituted after the expiration of that period or the occurrence of the event, make a variation order for the purpose of resuming that support unless the court is satisfied that (a) a variation order is necessary to relieve economic hardship arising from a change described in subsection (4.1) that is related to the marriage; and (b) the changed circumstances, had they existed at the time of the making of the spousal support order or the last variation order made in respect of that order, as the case may be, would likely have resulted in a different order.