Messier v. Delage, [1983] 2 SCR 401

SUPREME COURT OF CANADA

Messier v. Delage, [1983] 2 S.C.R. 401

Date: 1983-11-03

Michel Messier Appellant;

and

Dame Jocelyne Delage Respondent.

File No.: 16806.

1983: March 16; 1983: November 3.

Present: Ritchie, Beetz, Estey, McIntyre, Chouinard, Lamer and Wilson JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC

Divorce — Maintenance — Varied — Application to set aside alimentary pension paid to ex-wife — Ex-wife holder of Master's degree — Ability to work — Divorce Act, R.S.C. 1970, c. D-8, s. 11.

The parties were divorced in 1975 after living together for more than twelve years. A decree absolute gave respondent custody of the two children and an alimentary pension for herself and the children. Three years later, the older child went to live with his father. In April 1979, appellant applied to vary the corollary relief orders, and in particular to set aside the alimentary pension payable to respondent. Appellant's means enabled him to pay this pension, but he argued that respondent was now fully able to support herself. At this time, respondent was 38 years old and in good health. Although after the divorce she had completed her studies and obtained a Master's degree in translation, she was encountering serious difficulties in rejoining the work force. In fact, she only worked part-time for an approximate annual income of $5,000. As respondent now had only one dependent child, the Superior Court reduced the alimentary pension which appellant had to pay for this purpose. In addition, the Court set aside the pension payable to respondent as of January I, 1980, that is eight months later. The Court of Appeal reversed this judgment in part, striking the conclusion which set aside respondent's alimentary pension.

Held (McIntyre, Lamer and Wilson JJ. dissenting): The appeal should be dismissed.

Per Ritchie, Beetz, Estey, Chouinard JJ.: The mechanism provided by the Divorce Act to take into account the conduct of the parties and changes in the condition, means or other circumstances of either of them is their right to apply to the court each time a change which is regarded as fundamental occurs. The judge must arrive at his decision on each occasion

[page 402]

having regard to the actual circumstances, not in accordance with events which may or may not occur. Accordingly, the Court of Appeal properly intervened in the case at bar. The Superior Court erred in disregarding the actual factors submitted for its consideration, and hypothesizing as to the unknown future, which cannot be foreseen at this time. There was no reason to cancel respondent's pension eight months in advance on the assumption that she would no longer need or be entitled to it. If the situation arises, it can be dealt with.

[Marcus v. Marcus, [1977] 4 W.W.R. 458; Lanthier v. Raymond, C.A. Que., No. 500-09-001056-761, February 28, 1979, considered; McKay v. McKay, [1971] 1 W.W.R. 487; Lee v. Lee, [1972] 3 W.W.R. 214; Morrow v. Morrow (1974), 44 D.L.R. (3d) 711; Shaffran v. Shaffran, [1970] C.A. 1174, referred to.]

APPEAL from a judgment of the Quebec Court of Appeal[1] reversing in part a judgment of the Superior Court. Appeal dismissed, McIntyre, Lamer and Wilson JJ. dissenting.

Pierrette Rayle and George Artinian, for the appellant.

Sidney Cutler, for the respondent.

English version of the judgment of Ritchie, Beetz, Estey and Chouinard JJ. delivered by

CHOUINARD J.—The unanimous decision of the Quebec Court of Appeal that is the subject of this appeal set aside the judgment of the Superior Court in part: it deleted the term set by the latter on the obligation imposed on appellant to pay respondent an alimentary pension, pursuant to s. 11(2) of the Divorce Act, R.S.C. 1970, c. D-8.

The undisputed facts that are relevant to the determination of the appeal may be summarized as follows:

The parties were married in June 1962 and ceased to live together in February 1974. Upon the petition of respondent a decree nisi of divorce was granted on September 10, 1975 and was made absolute on December 30 of that same year.

[page 403]

The parties have two children, Pascal, born on January 2, 1963, and Joëlle, born on April 6, 1964.

Custody of the children was given to respondent, and she was granted an alimentary pension of $1,600 a month. Respondent took care of the children. She did not work outside the home, but was enrolled in a program of studies.

Appellant agreed to rent the former matrimonial home to respondent, for her own use and that of the children, for a period of four years ending on June 30, 1979.

In December 1978 the elder of the children, Pascal, left his mother and went to live with his father. The latter assumed the expenses involved while continuing to pay respondent the alimentary pension granted by judgment for herself and the two children.

On April 5, 1979 appellant applied to vary the corollary relief orders that had been in effect. He asked for custody of Pascal, which he was given, his application being uncontested. Appellant offered to continue to pay respondent an alimentary pension of $500 a month for their daughter Joëlle, of whom she had custody, but he asked that his other alimentary obligations be terminated for the following reasons:

[TRANSLATION]

(a) Pascal was now fully dependent on applicant;

(b) in the five years following the separation between the parties, respondent had had plenty of time to reorganize her life, she had successfully completed her program of study and obtained a Master's degree in translation and, at the age of 38 and in good health, was fully able to support herself; at the time of the hearing, moreover, she was working part-time as a freelance translator;

(c) respondent was no longer tied down by the children of the marriage since one of them was now in applicant's custody and the other was fifteen years old.

Appellant added the following in his written submission:

[TRANSLATION] Applicant is not arguing that he was unable to pay an alimentary pension for respondent (his gross professional income being $72,000 and, after

[page 404]

professional expenses were deducted, approximately $56,000), but maintained that respondent would henceforth enjoy professional status and should no longer be financially dependent on applicant. The evidence showed that after obtaining her Master's degree in 1978 and in the last part of that year, respondent had done translation work for various associations and businesses and had earned income of some $5,000 through her part-time work.

In its judgment of May 25, 1979 the Superior Court awarded custody of Pascal to appellant and custody of Joëlle to respondent. It ordered appellant to pay respondent her moving expenses up to $700 when she had to leave the former matrimonial home the following June 30. The relevant part of the judgment respecting the alimentary pension read as follows:

[TRANSLATION] REDUCES to $1,200.00 a month the alimentary pension respondent is required to pay applicant for herself and her minor daughter, as of May 1,1979;

SETS ASIDE the alimentary pension payable to applicant as of January 1, 1980 and SETS the alimentary pension respondent must pay applicant for her minor daughter Joëlle as of that date at $500.00;

In its decision of October 19, 1981, the Court of Appeal reversed the judgment of the Superior Court in part. It struck the conclusion setting aside the alimentary pension payable to respondent as of January 1, 1980 and set the alimentary pension which appellant must pay respondent for her and her daughter Joëlle at $1,200 a month.

Appellant relied on two grounds, the second of which is based on six propositions:

[TRANSLATION]

1. The Court of Appeal substituted its judicial discretion for that of the Superior Court in weighing the facts, although the Court of Appeal had no joint record or other transcript of the evidence and testimony available to it, the appeal having been brought simply on a statement of case and comments thereon pursuant to art. 503.1 C.C.P.

2. The effect of the decision of the Court of Appeal, which reversed the Superior Court, and a considerable body of case law is that the support obligation between former spouses survives a dissolution of the marriage indefinitely.

[page 405]

A. Alimentary obligations are entirely different depending on whether the parties are separated as to bed and board or divorced.

B. The Court of Appeal ignored the evolution in the status of married women, whereas formerly it has invited the courts increasingly to take it into account in their judgments.

C. The Court of Appeal failed to respect the equality of treatment between the sexes established by the Divorce Act.

D. The Court of Appeal erred in considering the criterion of appellant's conduct at the time of the divorce.

E. The Court of Appeal did not take into account the other criteria set out in s. 11(2) of the Divorce Act that should guide it in the exercise of its judicial discretion.

F. The Court of Appeal's judgment contravenes the spirit of the new art. 635 of the Civil Code.

With respect, there is in my view no basis for the first ground.

At the time art. 503.1 C.C.P., since repealed, provided as follows:

503.1. The parties may attach to the statement a detailed agreement respecting the filing and content of a joint record. Failing an agreement, one of the parties may attach to the statement, or the respondent to his comments, a motion that a judge of the Court of Appeal order the filing of a joint record, containing whatever he determines.

If an agreement or motion respecting the filing of a joint record is not attached to the statement or the comments, the appeal is submitted on the basis of that statement or the comments alone.

It can be seen that either of the parties was free to propose an agreement respecting the filing and content of a joint record, or to ask a judge of the Court of Appeal to order the filing of a joint record. It is difficult to see how the lack of a joint record can now be relied on.

It also appears that the Court of Appeal relied on the facts as determined by the trial judge.

Speaking for the Court, Turgeon J.A. wrote:

[page 406]

[TRANSLATION] It is clear from a reading of these two statements that the parties are not in total agreement on the principal facts of the case. In the circumstances it is necessary to refer to the trial judge's judgment on the points at issue.

Joint record or no joint record, this is what the Court of Appeal should have done in any event, unless it was shown an obvious error.

Moreover, there do not seem to be any major differences on the facts. Respondent accepted the facts I set out at the beginning of these reasons, taken from appellant's submission.

I omitted the following passage from appellant's submission:

[TRANSLATION] In addition to the pension, applicant paid a gift of $10,000 contained in the marriage contract and let respondent have all the furniture in the matrimonial home and a new car.

Respondent maintained in her submission that the latter facts had not been adduced in evidence. Neither the Superior Court nor the Court of Appeal mentioned them, and I do not think that taking them into account can have any effect on the conclusions I shall be proposing.

In addition, respondent alleged that appellant did not mention in his summary of the facts that at the time of the Superior Court's judgment she was 38 years old, and although she had completed her studies she was encountering serious difficulties in rejoining the work force. This was brought out in the Superior Court's judgment and was repeated word for word by the Court of Appeal.

Except with respect to the facts concerning the gift by contract of marriage, the disposition of the furniture from the matrimonial home and a car, which respondent said had not been adduced in evidence, therefore, the parties agreed in this Court on the facts as reported by appellant or determined by the Superior Court. These are the facts that were before the Superior Court and on which the Court of Appeal relied. In my view, the fact that there was no joint record in the Court of Appeal is of no consequence in the case at bar.

Moreover, the Court of Appeal did not reverse the Superior Court on the facts. After establishing

[page 407]

respondent's needs for herself and her daughter Joëlle as $1,200 a month, being $500 for her daughter and $700 for herself, and awarding respondent a total pension of $1,200 a month, the Superior Court judge placed a term on appellant's alimentary obligation toward respondent. He ordered that respondent's pension be set aside as of the following January 1, eight months later. It was this part of the judgment that was reversed by the Court of Appeal.

The second ground and the propositions put forward in support of it can, in my view, be considered together in the following discussion, subject to a few preliminary remarks on the first and fourth of these propositions.

The first proposition, that [TRANSLATION] "Alimentary obligations are entirely different depending on whether the parties are separated as to bed and board or divorced" and the fourth, that [TRANSLATION] "The Court of Appeal erred in considering the criterion of appellant's conduct at the time of the divorce", seem to me to refer to the following passage from the reasons of Turgeon J.A.:

[TRANSLATION] 1 also cannot subscribe to the proposition of the trial judge that when appellant opted for a divorce petition rather than one for mere separation from bed and board, she herself made the decision to terminate the marriage between her and the respondent, and that she must accept the consequences.

The record shows that appellant began divorce proceedings because her husband was deceiving her. It is unfair to blame her for having undertaken these proceedings rather than proceedings for a separation. This fact can have no effect on her entitlement to an alimentary pension.

What Turgeon J.A. is trying to say here, in my view, is that a person cannot be blamed for exercising a right he has under the Divorce Act where one of the grounds defined by the Act exists. The Court of Appeal did not base itself on appellant's conduct before the divorce in establishing the amount of the alimentary pension to be paid, which it set in the same amount as had the Superior Court.

I do not think it is necessary to decide the question of whether alimentary obligations are

[page 408]

entirely different depending on whether the parties are separated as to bed and board or divorced, since this is a proceeding under the Divorce Act. I would simply say that although the source of the obligation is different, being the matrimonial obligations in the former case since the marriage has not been dissolved, and a statutory provision in the latter case, the marriage having been dissolved, the determining factors set out in arts. 212 and 213 C.C., which were adopted after the Divorce Act came into force, are the same as those contained in s. 11 of the Divorce Act.

The issue in this case relates exclusively to this latter section. The fundamental difficulty, in the view of some, arises from the lack of precision in and the insufficiency of its provisions. Perhaps, rather, this should be seen as an intentional flexibility.

As Choquette J.A. wrote on behalf of the Court of Appeal in Shaffran v. Shaffran, [1970] C.A. 1174, at p. 1174:

[TRANSLATION] Were it not for s. 11 of this Act, the parties would be free of all alimentary obligations, the marriage having been dissolved by the divorce.

Section 11 reads as follows:

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

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

(i) the wife,

(ii) the children of the marriage, or

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

(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

[page 409]

(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.

Since we are dealing with an application to vary the pension in the case at bar, it is subs. (2) that is particularly relevant.

Like subsection (1), subs. (2) does not indicate the aims sought in awarding an alimentary pension or the specific criteria applicable. It is thus to be noted that they have given rise to widely divergent interpretations.

I cannot state the matter any better than Judge Rosalie S. Avella of the Provincial Court, Family Division, for the judicial district of York in Toronto, did in an article entitled "Economic Adjustment On Marriage Breakdown: Support", (1981) 4 Family Law Review I. She wrote the following at p. 1:

To try to find a comprehensive philosophy in the avalanche of jurisprudence which is triggered by the Divorce Act (RSC 1970 cD-8) and the various provincial statutes is to recognize that the law in its present state is a Rubik's cube for which no one yet has written the Solution Book. The result is a patchwork of often conflicting theories and approaches.

These matters have been the subject of numerous articles and in-depth studies in many jurisdictions. I shall merely mention the work and the reports and recommendations of the following organizations:

Law Commission of England;

Scottish Law Commission;

National Conference of Commissioners on Uniform State Laws;

—Manitoba Law Reform Commission;

—Institute of Law Research and Reform of Alberta;

—Civil Code Revision Office;

—Law Reform Commission of Canada.

[page 410]

In this regard, and in particular with reference to the reports and recommendations of the Law Reform Commission of Canada, McIntyre J.A., of the British Columbia Court of Appeal at the time, wrote the following in Marcus v. Marcus, [1977] 4 W.W.R. 458, at p. 461:

[Counsel for the husband] referred to various propositions advanced by the Law Reform Commission of Canada in its working paper No. 12, Maintenance on Divorce (1975), to the effect that an award of maintenance on a divorce should be set with a view to providing money to support the wife during a transitional period during which she would obtain retraining or otherwise prepare herself to become independent and self-supporting. The Law Reform Commission contended that the law ought to be based on a "philosophy of individual responsibility", implying an obligation on the part of a divorced spouse to work towards self-sufficiency. Counsel referred us to certain cases where judges have expressed agreement with this philosophy and sought to apply it in cases before them. Whatever may be said for such a view, it is obvious that the recommendations of the Law Reform Commission of Canada in this respect have not been enacted by Parliament as part of the law of Canada. They can amount to no more at this stage than expressions of what the commission feels the law should be. While such learned discussion of the law and recommendations on changes in the law are useful in clarifying the issues which arise before the courts and may well be helpful in that they offer examples of current thought upon the subject, insofar as such recommendations are at variance with the established law of the land they do not bind judges and, in fact, judges of the courts of Canada, pending legislative change and adoption of such recommendations, must follow the law as it is set forth in the Divorce Act, R.S.C. 1970, c. D-8, and in judicial precedent.

Seven Canadian provinces have enacted legislation setting out the rules that should guide the courts and the criteria for giving effect to alimentary obligations. Thus we now find in the Civil Code of Quebec art. 635, adopted subsequent to the proceedings in the case at bar but to which the parties nevertheless felt it was worth referring to the Court. This article sets out the following rule:

635. ln awarding support, account is taken of the needs and means of the parties, their circumstances and, as the case may be, the time needed by the creditor of support to acquire sufficient autonomy.

[page 411]

Section 15 of the Ontario Family Law Reform Act, R.S.O. 1980, c. 152, provides as follows:

15. Every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so.

Section 18(5) of the same Act sets out specific criteria to be considered in determining the amount, if any, to be paid. Subsection (6) of the same section deals with conduct.

The other provincial statutes that contain provisions on this subject are as follows:

—Family Law Reform Act, 1978 (P.E.I.), c. 6, ss. 16 to 19;

—Child and Family Services and Family Relations Act, 1980 (N.B.), c. C-2.1, ss. 114 and 115;

—The Family Maintenance Act, 1978 (Man.), c. 25/F20, ss. 1 to 7;

—Family Relations Act, R.S.B.C. 1979, c. 121, ss. 60 to 64;

—Family Maintenance Act, 1980 (N.S.), c. 6, ss. 5 to 9.

In this appeal the question of whether provincial legislation on support obligations applies to divorce, where the field is occupied by federal legislation was not raised. It is accordingly not necessary to decide the point, but it may be doubted whether the provinces can alter a support obligation imposed by the Divorce Act.

In the case at bar the issue turned exclusively on s. 11 of the Divorce Act. Subsection (2) of that section is concerned with four factors:

(a) the conduct of the parties;

(b) their respective conditions;

(c) their means;

(d) the other circumstances of either of them.

Section 11(2) states that an order may be varied from time to time or rescinded in light of the foregoing factors, which the Court must weigh against each other. In my opinion what is significant

[page 412]

about this subsection is that an order is never final. It may be varied from time to time or rescinded if the Court thinks it fit and just to do so, taking these factors into consideration. The case at bar is itself an illustration of this rule, which allows a party from time to time to come back to the Court. In December 1976, barely twelve months after the decree absolute, appellant came back to the Court in an unsuccessful attempt to have the alimentary pension which he had been ordered to pay respondent cancelled.

In Marcus v. Marcus, supra, the British Columbia Court of Appeal revoked the alimony awarded to the wife. She had applied to increase the amount of her monthly payment, fixed at $450. When the case was referred to the registrar, far from granting her request, he on the contrary recommended that her alimony be reduced to $1 a year. The Supreme Court judge refused to ratify the registrar's recommendation and set the alimony at $500 a month. The Court of Appeal reversed the Supreme Court judgment and accepted the registrar's recommendation, for all practical purposes revoking the alimony.

It is worth noting the following passage from the reasons of McIntyre J.A., as he then was, at p. 461:

It was not suggested that the wife needed any further provision; indeed, counsel was frank to say she did not need any increase. His submission was that, irrespective of need, she was entitled to have her standard of living follow that of her former husband in its apparent upward progress.

McIntyre J.A. summed up the options open to the parties at pp. 459-60 as follows:

At the date of the divorce neither party had any interest in real property and neither had accumulated any savings. The husband was then an assistant professor at a university and carried on a small, private practice in his specialty. His gross income for that year had reached $15,000. By 1976 the husband had become a full professor and had enlarged his private practice. In the year 1975 he earned $53,000. His projected income for the year 1977 is $49,000. The reduction in income results from the fact that he has spent less time on his

[page 413]

private practice and more on work undertaken for the university, since 1975. His fortune has grown and by 1976 he had acquired term deposits worth $20,000, bank deposits amounting to $5,000 and an interest in real property of approximately $50,000.

Since the divorce the wife has received the maintenance payments ordered, including payments for the support of the child while he was with her. She has as well by commendable industry enlarged her educational qualifications. She obtained a Bachelor of Arts degree at the University of British Columbia in 1967, a Master of Arts degree from the University of Toronto in 1970 and in 1972, a degree of Master of Science in urban planning from the University of Toronto. She has been employed virtually full time since 1972. At the date of this application she was employed as an urban planner with the Niagara Escarpment Commission at a salary of $23,770 per annum. This employment is a one-year contract terminating in August 1977. There is no evidence before us of the prospect of the continuation of this employment after August 1977, though the opinion expressed in affidavits by the wife is not optimistic. She has acquired a registered retirement savings plan with a present value of $5,000 but has no other assets of significant value. She now wishes to return to university for further training so she can get a doctorate in urban planning. She says such a degree is a virtual necessity if she is to retain employment in her occupation in Ontario. She says she now incurs monthly expenses of $1,011.50. She is 37 years of age and in good health, as is her husband, who is 47.

These are the circumstances in which, as we have seen, the Court of Appeal decided to cancel the alimony. McIntyre J.A. wrote at p. 464:

It is evident from his reasons that the principal factor which led him to his decision was an attempt to equate the standard of living of the wife with that of the husband. In my view this was not required in this case. The wife here is professionally qualified to earn a very substantial income and is doing so. It would not, in my view, be a fit and just disposition of this application to order the continuation of the maintenance or to increase it at this time.

Immediately thereafter, however, McIntyre J.A. added, at p. 464:

The power to vary on subsequent applications is not exhausted by this disposition of the motion.

[page 414]

The conclusion that emerges from the decision in Marcus v. Marcus and the many cases cited by the parties is that each case is sui generis and should be decided in accordance with the factors mentioned.

Thus, for example, in Lanthier v. Raymond, an unpublished decision by the Quebec Court of Appeal, district of Montreal, No. 500-09-001056-761, February 28, 1979, which was relied on by the Superior Court judge, the Court of Appeal reversed a judgment of the Superior Court which had awarded a pension of $165 a week to the wife. Dubé J.A., speaking for the Court, summarized the facts as follows:

[TRANSLATION] On August 19, 1975 a decree absolute was made between the parties to the case at bar, and it ordered appellant to pay respondent and the two minor children in her custody an alimentary pension of $250.00 a week.

In September 1975 the older of the two girls, Geneviève, left her mother and went to live with her father.

Subsequently, on June 1, 1976, the parties entered into a notarial agreement (case on appeal p. 54): the agreement in question dealt with gifts mentioned in the marriage contract; gave custody of Geneviève to the father; and reduced the alimentary pension of $250.00 to $215.00 a week.

Shortly afterwards the younger daughter, Sophie, also left her mother and went to live with her father.

This new development is what prompted appellant to file an application to cancel the alimentary pension and change custody of the children, and this application resulted in the judgment a quo: the judgment in question awarded custody of both minor children to the father, but ordered appellant to pay his ex-wife an alimentary pension of $165.00 a week.

Regarding the means of each party, Dubé J.A. said:

[TRANSLATION] The evidence showed that appellant is earning about $23,600.00 a year: with this income, appellant provides for his own needs and those of his two children, and also partly supports a concubine who has other income.

Respondent, on the other hand, is forty years old and earns a net income of $74.00 a week working part-time in a library; there was no evidence in the record that

[page 415]

respondent could not work full-time and earn a higher income.

During the marriage, appellant bought a property which was registered in respondent's name, and of which respondent now enjoys full ownership and occupancy: this property is said to be worth $35,000.00 to $40,000.00.

Additionally, in the notarial agreement made between the two spouses to cover the gifts mentioned in the marriage contract, appellant undertook to pay respondent a further amount of $7,000.00 [sic], $2,500.00 in cash and $1,000.00 a year for 5 years, until June 1, 1982.

Commenting on respondent's conduct, Dubé J.A. wrote:

[TRANSLATION] The evidence in the record is not likely to generate much sympathy for respondent: she apparently did not succeed in retaining custody of her two children through her own fault, because she seems to have neglected them, and in addition, she consumed excessive amounts of alcohol: she even allegedly lost a job as a result of this failing.

Dubé J.A. went on to say:

[TRANSLATION] As already mentioned, respondent's conduct certainly is not in her favour. On the other hand, respondent is still young, able to work and to support herself: she is in fact receiving a salary which she could increase if she wanted to, and as a result of her ex-husband's generosity, she has immovable property in which she resides and on which she could make an appreciable profit if she wanted to. Further, appellant will be paying respondent $1,000.00 a year for some years to come.

In these circumstances, since appellant is himself earning income which just enables him to discharge his obligations, I do not think it would be "fit and just" to order him to pay any money to an ex-wife who has done nothing to deserve it and who does not need it to support herself.

The decision must therefore be made on the facts of each case. The facts may change with time: that is the way of life. This is why s. 11(2) provides that an order may be varied from time to time; but in my opinion, the judge must arrive at his decision on each occasion [TRANSLATION] "having regard to the present circumstances", as Albert Mayrand J.A. of the Quebec Court of

[page 416]

Appeal suggests in a study titled "L'obligation alimentaire entre époux séparés ou divorcés depuis le Bill 8 et la Loi fédérale sur le divorce", Lois nouvelles II, P.U.M., 1970, p. 41, at p. 61. The decision therefore must not be made in accordance with events which may or may not occur.

In McKay v. McKay, [1971] 1 W.W.R. 487, Matas J., then of the Manitoba Court of Queen's Bench, wrote at p. 490:

... it is the financial position of the parties as it exists today that governs, and not as it might exist a year or a year and a half from now. Any changes in circumstances can be dealt with at the appropriate time.

See also Lee v. Lee, [1972] 3 W.W.R. 214 (B.C. S.C.), at p. 218, and Morrow v. Morrow (1974), 44 D.L.R. (3d) 711 (N.S. C.A.), at p. 717.

The mechanism provided by the Divorce Act to take into account the conduct of the parties and changes in the condition, means or other circumstances of either of them is their right to apply to the Court each time a change which is regarded as fundamental occurs. This is not to assume, as in the case at bar, that in eight months respondent will no longer need support or be entitled to it: it means that if the situation arises it can be dealt with.

In Marcus v. Marcus, supra, the wife, who had been working for five years, was earning $23,770 a year at the time she applied. Her contract was only for a year and according to the information she provided by affidavit, her prospects for the next year were not good. The Court nonetheless revoked her alimony. Conversely, there is no reason in the case at bar to cancel respondent's alimony eight months in advance on the assumption that she will no longer need or be entitled to it at that time.

That does not mean that the obligation of support between ex-spouses should continue indefinitely when the marriage bond is dissolved, or that one spouse can continue to be a drag on the other indefinitely or acquire a lifetime pension as a result of the marriage, or to luxuriate in idleness at

[page 417]

the expense of the other, to use the expressions one finds in some discussions of the subject. It also does not mean that a divorced person cannot remarry, or that his new obligations or new advantages as the case may be will not be taken into consideration.

With respect, none of these questions arises in the case at bar.

After their marriage the parties lived together for twelve years. They had two children, whose education was respondent's constant concern. She never worked outside the home. Immediately after the divorce, she began studies in translation and took her Master's degree. She has since then been able to obtain part-time employment, which in the year preceding the trial judgment brought her some $5,000. Appellant's means enable him to pay the pension awarded, which in fact was reduced by the Court of Appeal in the same proportion as it was by the Superior Court to take into account respondent's earnings and the fact that one of the children is no longer dependent on her. If other changes occur, it will be for appellant to apply to the Court again.

In my opinion the Superior Court erred in disregarding the present factors submitted for its consideration, and hypothesizing as to the unknown and then unforeseeable future; and the Court of Appeal properly intervened.

For these reasons, I would dismiss the appeal with costs.

English version of the reasons of McIntyre, Lamer and Wilson JJ. delivered by

LAMER J. (dissenting)—This appeal raises a question of importance at the present time in view of the current economic situation, the difficulty in finding work and the resulting high rate of unemployment. Should a divorced spouse who is working always bear the consequences of all this and provide for the needs of his unemployed former spouse, or is it for the government, if it cannot remedy, at least to alleviate the effects, and to what extent?

[page 418]

A judge of the Superior Court considered that in the case at bar the responsibility belonged to the government and not the former spouse; three judges of the Court of Appeal of Quebec took the opposite view: hence this appeal.

Facts

The parties were married in 1962 and ceased to live together in February 1974. A decree absolute of divorce was made on December 30, 1975. Custody of the two minor children was given to respondent, and she was granted maintenance in the amount of $1,600. In December 1978 the elder of the children went to live with his father.

An initial application to reduce the maintenance was filed in December 1976. This application was dismissed, as respondent had not completed a Master's degree in translation, which she had taken in order to rejoin the work force. It was held that the application was premature, but the situation might be different when respondent had completed her Master's degree. Denis Lévesque J. of the Superior Court, hearing the application, disposed of it as follows:

[TRANSLATION] However, the situation of the parties can be expected to change when her Master's thesis is finished, as she herself told the Court she would be in a position to start work on a part-time basis at that time.

Superior Court

On April 5, 1979, a new application to modify the maintenance was submitted to Bergeron J. On this occasion, respondent had completed her Master's degree in translation. The Court concluded that, except in special circumstances, a divorced wife should not be a burden on her husband indefinitely:

[TRANSLATION] Personally, I am of the school which believes that a divorced wife should not, except in very special circumstances, remain a burden on her former husband indefinitely. In the case at bar, applicant is in good health, has no more young children at home and holds a university degree that may enable her to rejoin the work force. When, five (5) years ago, she decided to file a petition for divorce rather than for mere separation from bed and board, she herself made the decision to terminate the marriage binding her to respondent,

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and in view of the circumstances she must accept the consequences.

Court of Appeal

Turgeon J.A., for his part, rejected the principles stated by the trial judge:

[TRANSLATION] With respect, I cannot accept the principles stated by the trial judge, because I find they are too categorical. In this kind of situation, each case must be decided on its merits. Each divorce case is sui generis, and account must be taken of the circumstances peculiar to each case. Categorical rules should not be laid down, as the trial judge did.

I also cannot subscribe to the proposition of the trial judge that when appellant opted for a divorce petition rather than one for mere separation from bed and board, she herself made the decision to terminate the marriage between her and the respondent, and that she must accept the consequences.

The record shows that appellant began divorce proceedings because her husband was deceiving her. It is unfair to blame her for having undertaken these proceedings rather than proceedings for a separation. This fact can have no effect on her entitlement to an alimentary pension.

[…]

I would strike the conclusion setting aside the alimentary pension payable to applicant as of January 1, 1980, and I would set the alimony which respondent must pay applicant-appellant for her and her daughter Joëlle at $1,200 a month.

Point at issue

Is the "retraining" of the ex-wife, with the result that she now has the "ability" to work, a sufficient change of condition within the meaning of s. 11(2) of the Divorce Act, R.S.C 1970, c. D-8, to justify setting aside the maintenance, notwithstanding the fact that she has not been able to find work, due to no fault on her part but because of the economic situation?

Purpose of maintenance awarded to one of the spouses following a divorce

In my opinion, the purpose of maintenance is to reduce in material terms the consequences resulting from breaking the marriage bond. Maintenance will be awarded to a spouse who cannot provide for her own needs. The division of functions in traditional society has meant that it is

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nearly always the wife who is in this position. It was almost impossible for her, without proper training after several years of not earning her living, to find employment and so be able to provide for her own needs.

The evolution of society and of the status of women both require us to re-examine what the nature of maintenance should be. Formerly the ex-wife would, more often than not, remain a burden to her former husband indefinitely.

The courts have for some years recognized this development. In Harding v. Harding (1972), 8 R.F.L. 236, Dryer J.A. of the British Columbia Court of Appeal said the following:

6th April 1972. Dryer J. (orally): The old rule was that once a woman married a man she then acquired a status, and from that she was entitled to live in the position in life which his position in life would bring to his wife, insofar as that could be done, when they were separated. I do not think that that is the law today. My view is this: If a man and woman marry, and as a result of that marriage the woman quits her job or in some other way removes herself from the economic world and thereby loses her ability to work or any opportunity to maintain herself or her children, then I think there is an obligation that attaches to the husband which would carry on and, of course, whether that is likely to happen depends to some extent on the length of the marriage. We have so many marriages nowadays, even those that last for several years, where both parties are working — they get married, they both go on working. Quite often the woman is earning more than the man. When that marriage is brought to an end I see no reason why either party, just on those simple facts, should acquire any right to income at the expense of the other.

No alimony was granted.

The extent of this development was recently recognized by the Court of Appeal, per Turgeon J.A. In Williams v. Black (C.A. Mtl. No. 500-09-000061-762, August 31, 1978) he quoted the remarks of the trial judge, who referred to the very passage cited above from the judgment in Harding, and added:

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[TRANSLATION] The foregoing passage from Harding clearly indicates the profound changes which have occurred in Canadian society since the last War and the development which is still continuing. I believe it is necessary for the law to adapt to these changes and for judges to take them increasingly into account.

In my view, this new approach by the courts is desirable. Women cannot on the one hand claim equal status without at the same time accepting responsibility for their own upkeep.

Furthermore, quite apart from the fact that the woman rather than the man is the recipient of maintenance, the divorce itself is intended to dissolve the marriage bond, whereas separation only changes the living arrangements. If the divorce terminates the marriage, it is desirable that the Divorce Act should apply to ensure the termination of all relations, even those that are financial, provided—this must be borne in mind—that such a thing is possible.

In a Working Paper (No. 12, Maintenance on Divorce, Ottawa, Information Canada, 1975) the Canada Law Reform Commission suggested the following at p. 30:

We suggest that the period following divorce should be characterized in law as a time of economic transition for both spouses from the arrangements that were suitable to the marriage when one spouse may have made financial provision for both, to the single state when each should be, as before marriage, financially self-reliant. The law should require the former spouse who does not have an economic need created by the marriage to assist the one who has such a need to become financially rehabilitated.

The legal right to continue to benefit from the maintenance aspect of the partnership after its dissolution should be accompanied by a legal duty imposed on the person maintained to prepare to make his or her own way within a reasonable period of time, just as is required of every other unmarried person. Here again, what is a reasonable period of time is a question of fact, not law. It may vary from weeks to years, depending upon a consideration of all elements of the situation with which the person maintained must cope, and would be subject to an assessment of the length of time during which financial needs flowing from the marriage can be expected to persist, assuming reasonable diligence in the effort to become financially self-sufficient.

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The third principle set out at the opening of this discussion reflects the realization that, for some people, even with reasonable diligence, financial independence may never be possible. Perhaps the most typical example might be a divorced women in her sixties without any special training or skills who had been a dependent during a long married life. Without knowing anything more about such a woman, we think it will be conceded that she could fairly be classed as unemployable, without much hope that she could do anything to change the situation. In addition to practical problems and physical limitations that would not be faced by a younger person, such a woman may be partially or totally unable psychologically ever to assume financial responsibility for herself. The third principle would allow a court to assess these factors and to order, where appropriate, permanent maintenance.

In a report to the Parliament of Canada, (Family Law, Ottawa, Information Canada, 1976) the Commission recommended at pp. 42-43:

Financial provision between spouses

6. Marriage per se should not create a right to receive or an obligation to make financial provision after dissolution; a formerly married person should be responsible for himself or herself.

7. A right to financial provision should be created by reasonable needs flowing from:

(a) the division of function in the marriage;

(b) the express or tacit understanding of the spouses that one will make financial provision for the other;

(c) custodial arrangements made with respect to the children of the marriage at the time of dissolution;

(d) the physical or mental disability of either spouse that affects his or her ability to provide for himself or herself; or

(e) the inability of a spouse to obtain gainful employment.

8. The purpose of financial provision on dissolution of marriage should be one of rehabilitation to overcome economic disadvantages caused by marriage and not a guarantee of security for life for former dependent spouses.

9. A right to financial provision should continue for so long as the reasonable needs exist, and no longer; financial provision may be temporary or permanent.

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10. A maintained spouse should have an obligation to assume responsibility for himself or herself within a reasonable period of time following dissolution of marriage unless, considering the age of the spouses, the duration of the marriage, the nature of the needs of the maintained spouse and the origins of those needs

(a) it would be unreasonable to expect the maintained spouse to do so, and

(b) it would not be unreasonable to require the other spouse to continue to bear this responsibility.

11. A right to financial provision should not be adversely affected, forfeited or reduced because of conduct during the marriage; or because of conduct after the dissolution of the marriage except:

(a) conduct that results in a diminution of reasonable needs; or

(b) conduct that artificially or unreasonably prolongs the needs upon which maintenance is based or that artificially or unreasonably prolongs the period of time during which maintained spouses are obliged to prepare themselves to assume responsibility for their own maintenance.

Although the principles endorsed by the Commission are not law, I agree with them. Indeed, I am allowed to do so because the Divorce Act, in particular s. 11(2) of that Act, is not a bar to a judge wishing to draw inspiration from these guidelines. In addition, and apart from the Commission's recommendations, the family divisions of several courts have already been using similar principles and are now applying them with increasing regularity. See Perrin v. Perrin (1968), 3 D.L.R. (3d) 139; Rainey v. Rainey (1973), 9 R.F.L. 282; Lazenby v. Lazenby (1975), 18 R.F.L. 393; Lazenby v. Lazenby (1974), 15 R.F.L. 343; Hunter v. Hunter (1977), 4 R.F.L. (2d) 75; Anderson v. Anderson (1979), 56 A.P.R. 513; Jarvis v. Jarvis (1979), 14 R.F.L. (2d) 1; Déry v. Allaire, [1979] R.P. 294; Bawdon v. Bawdon (1981), 15 Sask. R. 177; Jackh v. Jackh (1981), 22 R.F.L. (2d) 455; Headon v. Headon (1981), 26 R.F.L. (2d) 304; Beaudin v. Serodes, J.E. 82-458.

Petition to vary the order of maintenance

Section 11(2) of the Divorce Act provides as follows:

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(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.

Appellant submitted in the case at bar that the following changes had occurred in the "means" and other circumstances of respondent:

[TRANSLATION] Respondent, who is 38 years old, was in good health and able to work full time;

the two children were no longer at the age where they required constant supervision, and appellant assumed responsibility together with respondent for their children: while respondent still had custody of their daughter, appellant had legal custody of their son;

the academic retraining of respondent had concluded and she had in fact re-entered the work force on a part-time basis;

two years earlier, by a judgment dated December 22, 1976, the Superior Court had warned respondent that she should begin working when she concluded her studies, and Lévesque J. of the Superior Court had at that time asked appellant to continue supporting respondent, who was proceeding with her studies for a Master's degree (see judgment of Lévesque J. dated December 22, 1976, case on appeal, p. 1).

Are these changes sufficient for a petition to cancel the maintenance?

Respondent contended that the fact she had obtained a university degree is not in itself a guarantee of employment. She has made a definite effort to become self-supporting. This is in no way a case of a lazy person who refuses to work. However, the circumstances are such that, as she has no employment, she is still entitled to receive a pension from her former husband.

The question in the case at bar is whether the ability to work is in itself a determining factor which justifies cancelling the maintenance, or whether in addition respondent must actually be working.

The courts have hitherto held that the ability to work is a significant factor in determining the quantum of maintenance.

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In Gleza v. Gleza (1975), 24 R.F.L. 101 (C.A. Ont.), Zuber J.A. said the following at pp. 101-02:

The second ground of appeal advanced by the appellant was simply that the amount of $80 weekly was too large having in mind the income of the husband, his responsibilities, as well as the wife's ability to support herself. In my view, the amount is too large, and should be reduced to the sum of $50 per week. The reason for making this reduction is that the amount is intended to assist the wife. While she is not employed presently, she is a relatively young woman, she is 36 years of age, and while she has had some health problems in the past, the record is silent as to whether or not these difficulties continue. Such evidence as there is indicates that she is now capable of seeking employment. In my view, this capability of seeking employment is a factor which should reduce her dependency on the husband, and, for that reason, the amount is reduced to $50 weekly.

(Emphasis added.)

Subsequently, in Phyllis v. Phyllis (1976), 24 R.F.L. 103 (C.A. Ont.), Howland J.A., referring to the remarks of Lord Denning in Rose v. Rose, [1950] 2 All E.R. 311, expressed the same opinion at pp. 107-08:

Having determined that the obligation to provide interim maintenance for the infant children is a joint one resting upon both the husband and wife, the next question which arises is the extent, if any, to which the wife shall be required to discharge this obligation when she is not in fact employed, but has a potential earning capacity. This question was considered by the English Court of Appeal in Rose v. Rose, [1951] P. 29, [1950] 2 All E.R. 311. Denning L.J. stated at p. 313:

"If a wife does earn, then her earnings must be taken into account; or if she is a young woman with no children, and obviously ought to go out to work in her own interest, but does not, then her potential earning capacity ought to be taken into account; or if she has worked regularly during the married life and might reasonably be expected to work after the divorce, her potential earnings ought to be taken into account."

The appeal in question was concerned with an order varying an order for maintenance following a decree of divorce. The Court considered that the question whether the earning capacity of a wife was to be taken into consideration depended on the facts of each case. In that

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case the wife was 41 years of age, was looking after a child 4½ years of age, had never been required to earn money during her married life and had no normal trade or calling, though she could no doubt have done domestic work. The Court did not consider that her earning capacity should be taken into consideration. The dicta of Denning L.J. that the potential earnings should be taken into consideration when the wife had worked regularly during her married life and might reasonably be expected to work after her divorce were accordingly obiter.

In Gleza v. Gleza, ante p. 101, this Court considered the fact that a wife, 36 years of age, was capable of seeking employment was a factor which should reduce her dependency on her husband. On an appeal from a decree nisi it reduced the award of maintenance payable by the husband from $80 per week to $50 per week.

The potential earning capacity of the wife has also been considered in an application for an interim award in Saskatchewan in Fehr v. Fehr (1973), 10 R.F.L. 399. MacPherson J. declined to make an interim award to a wife, 20 years of age, who was living with her parents and had no children. At p. 400 he stated:

"Obviously she is able to work and in her own interest she ought to do so. In these circumstances, I am entitled to take into account her earning potential: Rose v. Rose, [1951] P. 29 at 31, [1950] 2 All E.R. 311, per Denning L.J."

It would seem to me that the potential earnings of the wife should be taken into consideration in this appeal.

(Emphasis added.)

See also Jackson v. Jackson and Zaryski (1976), 24 R.F.L. 109.

However, I would go further.

In my view the evolution of society requires that one more step be taken in favour of the final emancipation of former spouses. To me, aside from rare exceptions the ability to work leads to "the end of the divorce" and the beginning of truly single status for each of the former spouses. I also consider that the "ability" to work should be determined intrinsically, and should not in any way be determined in light of factors extrinsic to the individual, such as the work force and the economic situation.

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As maintenance is only granted for as long as it takes to acquire sufficient independence, once that independence has been acquired it follows that maintenance ceases to be necessary. A divorced spouse who is "employable" but unemployed is in the same position as other citizens, men or women, who are unemployed. The problem is a social one and it is therefore the responsibility of the government rather than the former husband. Once the spouse has been retrained, I do not see why the fact of having been married should 'give the now single individual any special status by comparison with any other unemployed single person. In my view, the duty of a former spouse is limited in the case of retrainable persons to the retraining period and the discretion conferred on the judge in s. 11(2) to determine what is fit and just is not a bar to this conclusion, which the evolution of society has now made necessary. The rule is not absolute and remedy under s. 11(2) is never completely excluded to compensate for the financial negative effects of the marriage, but I would only make an exception to it in, to use the words of Bergeron J., "very special circumstances". That is not the case here.

I would allow the appeal, reverse the judgment of the Court of Appeal and restore the judgment at trial.

Appeal dismissed with costs, MCINTYRE, LAMER and WILSON JJ. dissenting.

Solicitors for the appellant: Martineau, Walker, Montreal.

Solicitors for the respondent: Gliserman, Ackman, Cutler & Bernfeld, Montreal.