Nash v. Nash, [1975] 2 SCR 507

Supreme Court of Canada

Nash v. Nash, [1975] 2 S.C.R. 507

Date: 1974-06-28

Paul Nash (Petitioner) Appellant;

and

Eileen Elsie Nash (Respondent, Petitioner by Counter Petition) Respondent.

1974: May 8, 9; 1974: June 28.

Present: Laskin C.J. and Judson, Spence , Beetz and de Grandpré JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Divorce—Conditional decree nisi—Corollary relief—Power of Court to make decree nisi conditional—Decree nisi conditional on provision of adequate security for maintenance payments—Divorce Act, R.S.C. 1970, c. D-8 ss. 9(1), 10, 11(1) (2), 13(3).

The trial judge granted a decree nisi to the husband with maintenance of $10,500 per annum, for his wife, payable in quarterly instalments and, by consent, with maintenance for the son of $1,500 per annum, payable in monthly instalments, while he is in attendance at an institution of higher learning. The wife appealed the order and the Court of Appeal, with no serious objection from counsel, substituted an order which provided inter alia that the husband secure in the sum of $100,000 the maintenance payments to the wife as a condition precedent to the divorce. The husband on appealing to this Court contended (i) that there was no power to make a decree nisi conditional (ii) that the Court of Appeal had no power to order security where the security was a mere guarantee of payments to be made independently of it and (iii) that in view of a change of his financial circumstances this Court should vary the order for maintenance.

Held (de Grandpré and Beetz JJ. dissenting in part): The appeal should be allowed with no order as to costs.

Per Curiam: An application to vary an order for maintenance cannot be brought originally to this Court. The jurisdiction of this Court is limited by s.

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18(1) of the Divorce Act, R.S.C. 1970, c. D-8 s. 11(2) to questions of law on which leave to appeal is given and s. 11(2) provides for variation of an order by the court that made it.

Where, as in this case, the divorce was based on separation there cannot be a conditioning or suspension of a decree nisi pending security for maintenance being furnished when the Legislature has expressly dealt with the matter in another way in s. 9(1)(f). If a sanction to assure provision of maintenance granted as corollary relief is required, there is authority in s. 13(3) for imposing such sanction when the judgment absolute is sought, as the circumstances may then appear.

Per Laskin C.J. and Judson and Spence JJ.: Section 11(1) of the Act is not wide enough to support an order to pay periodic sums and concurrently an order to provide security without directing that the periodic payments be paid out of the security.

Per Beetz and de Grandpré JJ. (dissenting in part): Having decided that a decree nisi cannot be made conditional upon the previous provision of a specified security it is not necessary to deal with the power of the Court of Appeal to order security to stand as a guarantee of payment of maintenance.

[Lachman v. Lachman, [1970] 3 O.R. 29; Zacks v. Zacks, [1973] S.C.R. 891; Shearn v. Shearn, [1931] P. 1; Kumpas v. Kumpas (1969), 71 W.W.R. 317, appeal quashed, [1970] S.C.R. 438; Switzer v. Switzer (1969), 7 D.L.R. (3d) 638, 70 W.W.R. 161; Rafflin v. Rafflin, [1972] 1 O.R. 173; Maynard v. Maynard, [1951] S.C.R. 346; McColl v. McColl, [1953] O.R. 1017; Johnstone v. Johnstone, [1969] 2. O.R. 765, referred to.]

APPEAL from a judgment of the Court of Appeal for Ontario varying a decree nisi and maintenance order of Stewart J. at trial. Appeal allowed with no order as to costs, case returned to the Court of Appeal for reconsideration.

Peter C.P. Thompson, for the appellant.

John R. Sigouin, and Bryan Carroll, for the respondent.

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The judgment of the Chief Justice and Judson and Spence JJ. was delivered by

THE CHIEF JUSTICE—Consideration of the issues in this appeal, which comes here by leave of this Court, may properly begin with the judgment of the late Mr. Justice Stewart, granting a decree nisi of divorce to the appellant husband and directing that he pay his wife $10,500 per annum in equal quarterly instalments of $2,625, and directing, pursuant to the consent of the spouses, that the husband pay $1,500 per annum in equal monthly instalments for the maintenance of their son David while he is in attendance at an institution of higher learning. The respondent wife appealed this order so far as it affected the provision for her maintenance, and the Ontario Court of Appeal allowed her appeal by way of an order which it said it had suggested to counsel for both parties who voiced no serious objection although they did not consent thereto.

It is desirable to set out the terms of the formal order decreed by the Court of Appeal in substitution and in addition to the provisions of the formal order issued in pursuance of the judgment of Stewart J. The relevant paragraphs are as follows:

1. THIS COURT DOTH DECREE AND ADJUDGE that upon the petitioner Paul Nash securing in the sum of $100,000.00 the maintenance payments provided in paragraph 3 hereof in favour of the respondent, petitioner by counter-petition, and those so provided in paragraph 4 hereof in favour of David Paul Leslie Nash, the said petitioner Paul Nash whose marriage to the respondent Eileen Elsie Nash was solemnized at Harrow, England, on the 6th day of May, 1950, be divorced from the said respondent Eileen Elsie Nash, unless sufficient cause be shown to this Court within three months from the date hereof why this decree should not be made absolute.

3. AND THIS COURT DOTH FURTHER ORDER AND ADJUDGE that the respondent by counter-petition, Paul Nash, shall pay to the petitioner by counter-petition, Eileen Elsie Nash, during her lifetime or until she remarries, maintenance in the sum of $10,500.00 per annum in equal, quarterly instalments

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of $2,625.00 each, the first of such quarterly payments to become due and be made on the 13th day of June, 1971, and the future payments on the 13th days of September, December, March and June thereafter.

8. THIS COURT DOTH FURTHER ORDER AND ADJUDGE that while not in default of payments of maintenance pursuant to the terms of this Judgment, the petitioner will from time to time remain entitled to all interest and/or income upon the amount of security furnished for the maintenance, and that upon the death or remarriage of the respondent, Eileen Elsie Nash, provided the petitioner be not then in default, the corpus of the security furnished will revert to the petitioner or his estate.

The appellant husband took three points in his appeal to this Court. He contended, first, that it was beyond the power of the Court in divorce proceedings under the Divorce Act, R.S.C. 1970, c. D-8, to make an order in the terms of paragraph 1 above, the effect of which is to make the decree nisi conditional upon the previous provision of the specified security. Second, it was his contention that the Court of Appeal had no power to order security to be provided for the periodic maintenance payments where such payments were not to come out of the security but were to be made independently, with the security to stand as a guarantee of payment. Third, the appellant, by notice of motion for leave to adduce affidavit evidence, sought to have this Court consider an alleged change in the financial circumstances and obligations of the appellant with a view to have it vary the order for maintenance. It is enough to say on this third point what was said to counsel for the appellant at the hearing of the appeal, namely, that an application for variation owing to a change of circumstances cannot be brought originally before this Court, especially when by s. 18(1) of the Divorce Act this Court’s jurisdiction is limited to questions of law on which leave is given by it. I refer also to s. 11(2) of the Divorce Act respecting variation of a maintenance order by the court that made it. That would not be this Court. Only the first two points raised by the appellant need therefore be considered.

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As to the first point, counsel for the respondent wife contended that the order respecting the decree nisi was not an order under which the decree was conditioned upon the provision of security, but rather one where the decree had been granted but its operative effect was suspended until security was posted. The short answer to what is a play on words is that security with respect to maintenance is corollary relief under the Divorce Act, and nowhere in the Act is any power granted to order such relief to be provided before a decree nisi is granted or becomes effective. I note, as having some bearing on this issue, that s. 9(1)(f) of the Divorce Act enjoins the Court, in a case where divorce is sought under the separation and desertion provisions of s. 4(1)(e), to refuse a decree if, inter alia, the granting thereof “would prejudicially affect the making of such reasonable arrangements for the maintenance of either spouse as are necessary in the circumstances”.

Counsel for the respondent submitted that what was done by the Court of Appeal here was in line with an order made by that Court in Lachman v. Lachman[1]. Although I was a member of the Court which decided Lachman v. Lachman I am now of the opinion that in so far as it made the decree nisi itself conditional upon the previous provision of security (and that this was so clearly appears from the reasons of Jessup J.A. for the Court at p. 34), it was wrongly decided. The decree nisi itself is a provisional decree, and this emerges also from the French version of the Act which in the relevant s. 11(1) speaks of “un jugement conditionnel de divorce”. It seems to me, therefore, that if any effective sanction is to be imposed in

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a divorce suit to assure provision of maintenance which has been granted as corollary relief, it should be done when judgment absolute is sought, as the circumstances may then appear. There appears to be ample authority to this end in s. 13(3) of the Divorce Act which provides that where a decree nisi has been granted but has not been made absolute, cause may be shown why it should not be made absolute by reason of there having been collusion or reconciliation or “by reason of any other material facts”. The Court is authorized in these respects either to rescind the decree nisi, to require further inquiry, or to “make such further order as the court thinks fit”.

The Divorce Reform Act, 1969 (U.K.), c. 55, s. 6 is more explicit on this point where the divorce, as in the present case, is based on separation (see Bromley, Family Law (4th ed. 1971), at p. 216), and so is The Matrimonial Causes Act, R.S.O. 1970, c. 265, s. 1 which, in respect of secured maintenance, empowers the court to suspend pronouncement of the decree absolute until all necessary deeds and instruments have been executed. I am satisfied, however, that the general words of s. 13(3) aforesaid are wide enough and should be construed to embrace the power to ensure that maintenance, especially if secured, should be assured if that can be done by withholding the decree absolute.

In sum, when regard is had to the express provision in s. 10 of the Divorce Act for interim alimony or maintenance after a petition for divorce is presented and pending its determination, and also to the fact that maintenance is relief corollary to a divorce, I am all the more persuaded that a decree nisi cannot be conditioned upon the previous provision of security. I note also that in the judgment of this Court in

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Zacks v. Zacks[2], Martland J. speaking for the Court said this, at pp. 901-902:

Section 10 becomes operative where a petition for divorce has been presented and provides for interim orders. If the petition for divorce fails, there is no power to make any order as to alimony, maintenance or custody under s. 11, and any interim order under s. 10 would thereupon cease to be operative. The Act only contemplates orders as to these matters as a necessary incident to the dissolution of a marriage.

Again, speaking at p. 912, Martland J. said this in relation to the word “upon” in s. 11(1):

The meaning of the word, as used in s. 11(1) must be determined in the light of the fact that legislation by Parliament in relation to alimony, maintenance and the custody of children would only be within its powers if associated with and as a part of legislation in relation to the subject matter of divorce. It is my opinion that when it was provided that the Court could deal with those matters “upon granting a decree nisi of divorce”, it was meant that it was only when a divorce was granted that the Court acquired the necessary jurisdiction to deal with those subjects.

What the respondent in the present appeal seeks to read into the Divorce Act is somewhat differently dealt with under s. 37(2) of the Australian Matrimonial Causes Act, 1959, No. 104. It provides that in divorce proceedings based on separation the Court may (to put it briefly) refuse a decree in favour of the petitioner until the petitioner has made satisfactory arrangements to provide maintenance or other benefits upon the decree becoming absolute. Under the Divorce Act, without making the decree nisi conditional in the first place, the power given by s. 13(3) enables the courts in Canada to reach a position similar to that in Australia by controlling the granting of a decree absolute.

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I do not think it is open to analogize the suspension of an order nisi for divorce, pending the provision of security for maintenance or the satisfying of some other terms, to the suspension of the operative effect of an injunction order. In divorce, we are dealing with a statutory jurisdiction; and even if it be the case that a court may appropriately exercise such ancillary powers as may be necessary, in its view, to make the exercise of that jurisdiction a realization of the policy of the Act, I am unable to agree that where, as in this case, the divorce was based on separation, there can be a conditioning or suspension of a decree nisi pending security for maintenance being furnished when the Legislature has expressly dealt with the matter in another way in s. 9(1)(f).

The position is the same in England where, as stated in Bromley, Family Law (4th ed. 1971), at p. 426, “except for maintenance pending suit and orders with respect to children, no order may be made unless a decree nisi of divorce or nullity or a decree of judicial separation has been granted and, in the case of divorce and nullity, it may not take effect until the decree is made absolute”.

In my opinion, the substituted paragraph 1 was not within the Court of Appeal’s powers and I would set it aside and restore the order for a decree nisi as set out in the formal judgment at trial. It follows that paragraph 8, added by the Court of Appeal, falls also.

Although it may be urged that if paragraph 1 of the Court of Appeal’s order is set aside and the decree nisi is made unconditional it is, strict-

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ly speaking, unnecessary to deal with the second point in appeal because there is no subject matter left upon which to consider it, this would be taking a too-global view of that order. The Court of Appeal was obviously of the opinion that the wife should have her maintenance secured. The point at issue, which was fully argued and is of considerable importance in the administration of the Divorce Act, is whether, the conditional aspect aside, there is power to make the kind of order which the Court of Appeal made. The relevant provisions of the Divorce Act put forward in the submissions of counsel are sections 11 and 12 which read 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

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

11. (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.

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12. Where a court makes an order pursuant to section 10 or 11, it may

(a) direct that any alimony, alimentary pension or maintenance be paid either to the husband or wife, as the case may be, or to a trustee or administrator approved by the court; and

(b) impose such terms, conditions or restrictions as the court thinks fit and just.

Counsel for the appellant founds himself, first, on the position that the Court of Appeal ought not to have interfered with the discretion of the trial judge in ordering periodic payments and, second, and mainly, on the line of English authority represented by Shearn v. Shearn[3], which has been followed in the courts of Canada. On the first point taken, s. 17 of the Divorce Act gives the widest powers to the Court of Appeal, and I am unable to say in this case that if that Court had the power to order security for the payment of periodic maintenance it was wrong in doing so. The main submission of the appellant, as to the power to make that type of order, raises a point of first instance here and one on which there appear to be conflicting views taken in other courts in Canada.

It is not contested that s. 11(1) of the Divorce Act empowers the Court to secure periodic payments of maintenance, but the parties are apart on whether the court may order periodic payments and require that security be posted to which resort may be had if there is default in making the payments. The difference in these situations is pointed up in Shearn v. Shearn, supra, at p. 4 where in referring to the powers as to maintenance under s. 190(1)(2) and s. 196 of the Supreme Court of Judicature (Consolidation) Act, 1925 (U.K.), c. 49, the Court said:

The result is as follows: The wife “on the decree” may apply for security or payment or both. On such an application (a) the Court may order the husband to

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secure to the wife a gross sum of money or annual sum of money for any term, not exceeding her life; (b) in addition to or instead of an order to secure, the Court may order the husband to pay to the wife during joint lives a monthly or weekly sum, and may from time to time modify that order to pay, as provided in s. 190, sub-s. 2, and s. 196 of the Act of 1925. But the Court has no power to modify an order to secure, nor has it power in modifying an order to pay to turn it into an order to secure. The two orders are essentially different. The order under s. 190, sub-s. 1, is not an order to make periodical payments and secure the payments: it is an order to secure and nothing else. Under it the only obligation of the husband is to provide the security; having done that, he is under no further liability. He enters into no covenant to pay and never becomes a debtor in respect of the payments. The wife has the benefit of the security and must look to it alone; if it ceases to yield the expected income she cannot call upon the husband to make good the deficiency… The order under sub-s. 2 is not an order to secure—it is an order to make periodical payments. There is no power under sub-s. 2 to order that these payments be secured. If the husband’s means increase, the periodical payments can be increased. But however much his ability to secure increases, he cannot under sub-s. 2 be ordered to secure.

The provisions of the Act which were considered in the Shearn case empowered the court (1) to order the husband to secure to the wife a gross or annual sum of money, and the court was also authorized to suspend pronouncement of the decree until a proper deed or instrument had been executed; and (2) in addition to or instead of an order aforesaid, to order the husband to pay a monthly or weekly sum for maintenance.

If the order in the present case is validly made, it means that not only is a capital sum tied up to stand as security for the periodic payments but that the obligation to make the

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payments may be enforced apart from the security, and whether or not the security is ultimately ample enough to provide for the payments.

The relevant words of s. 11(1)(a) of the Divorce Act (“. . . the court may . . . make one or more of the following orders (a) an order requiring the husband to secure or to pay such lump sum or periodic sums as the court thinks reasonable for… maintenance…”) empower the court to make a combination of orders. I agree with Freedman J.A. (as he then was) in Kumpas v. Kumpas[4], at p. 319, that the controlling words of s. 11(1) are the words “one or more of the following orders”, and that the court is not restricted to the making of one only of the types of orders specified in s. 11(1)(a) (or one only of the same types specified in s. 11(1)(b), which is directed against the wife in favour of the husband). This same view of s. 11(1) was taken by the Alberta Appellate Division in Switzer v. Switzer[5] and by the Ontario Court of Appeal in Raffin v. Raffin[6], and, in my opinion, it is the correct view.

The types of orders specified are (1) an order to secure a lump sum; (2) an order to pay a lump sum; (3) an order to secure periodic sums; and (4) an order to pay periodic sums. I am not concerned in the present case with the discretionary aspect of s. 11(1), that is, with the circumstances in which a lump sum payment should be directed rather than a periodic (weekly or monthly or annual) payment or in which a lump sum should be paid or secured in addition to periodic payments. This involves a host of considerations, among which are the respective ages of the parties, the state of their

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health, their means and their present livelihood, the likelihood of remarriage and their dependants. The question in this case is whether in the combination of orders that can be made under s. 11(1) there may be included an order to make periodic payments and concurrently an order to secure those payments, as contrasted with an order to secure periodic payments, such payments to be made only out of the security.

I should say at once that no warrant for such an order can be found in s. 12(b) of the Divorce Act which empowers a court in making an order under s. 11 to “impose such terms, conditions or restrictions as the court thinks fit and just”. This provision does not enlarge the classes or types of orders that may be made, but operates in respect of those that s. 11 authorizes. What, then, are the limits of that authorization?

There is no doubt that the Divorce Act has enlarged the court’s powers as to the types of maintenance orders that it can make beyond those that are prescribed under the superseded Matrimonial Causes Act, R.S.O. 1970, c. 265. This provincial Act, similar to the legislation considered in the Shearn case, supra, extends only to orders securing a gross or annual sum and to orders for monthly or weekly sums; it excludes power to order a lump sum payment simpliciter and power to order secured monthly or weekly payments to be made out of the security: see Maynard v. Maynard[7]; McColl v. McColl[8]. A fortiori, it excludes any power to

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order periodic payments and to direct that security be posted to which resort may be had in case of default in making those payments.

It was held in Johnstone v. Johnstone[9], that this last-mentioned type of order, one that is in issue in this appeal, cannot be made under the Divorce Act. (I should point out that Lacourcière J. also held that the court could not order payment of both periodic sums and a lump sum for maintenance and, in this respect, he was in error). The judgment of Lacourcière J. in that case was not followed by Galligan J. in Timmins v. Timmins, an unreported decision of September 1, 1971 in which an order was made for an annual sum payable monthly, for a lump sum payment and for a charge directed against various enumerated assets of the respondent husband which were to be held as security for the lump sum and periodic payments. In Legare v. Legare, also an unreported judgment of Galligan J. of November 29, 1971, affirmed without written reasons by the Court of Appeal on June 14, 1973, the order was for a monthly periodic payment to be secured against certain realty and for a lump sum payment to be secured against the proceeds of the sale of a house. The payments appear to have been ordered not out of the security but apart therefrom.

The point under discussion was touched upon by the Alberta Appellate Division in Switzer v. Switzer supra, and I read the reasons of McDer-

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mid J.A. for the Court to say that such an order as that in issue here cannot be made under the Divorce Act. At p. 643 of his reasons McDermid J.A. says this:

The wording in the Act is the Court may make an order “requiring the husband to secure”. The section to my mind contemplates that the Court shall direct the husband to do the things that are necessary to make the security effective and may order him to execute an instrument whereby the sum ordered to be paid is effectively secured on the property. The husband, however, is not personally liable to pay the periodic sums where he has been ordered to secure such sums. In respect of any sum ordered to be paid by the Court but not secured he is, of course, personally liable to pay such sums.

I agree with this view of s. 11(1) of the Divorce Act. That provision is just not ample enough to support an order to pay periodic sums and concurrently an order to provide security without directing that the sums be paid out of the security. This is not a case of Tweedledum and Tweedledee. For the husband (or wife, as the case may be) to be ordered to put up security out of which a gross or annual sum or a periodic sum is to be paid is one thing (he or she is then free of any further obligation so long as the order remains in force without variation); for him (or her) to be ordered to make periodic payments and, in addition, to put up security to answer for any of such payments if there is default is something different. It is for Parliament to make this possible by amendment of the Divorce Act if it so pleases.

I would accordingly allow the appeal, but would remit the case to the Court of Appeal to consider whether it wishes to secure maintenance to the wife within the limits permitted by s. 11(1)(a) as construed in these reasons. I do

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not think that this is a case for any order as to costs in this Court.

The judgment of Beetz and de Grandpré JJ. was delivered by

DE GRANDPRÉ J. (dissenting in part)—I have had the advantage of reading the reasons for judgment prepared for delivery in this case by the Chief Justice of this Court and I agree with him on the first point. In my view, the decree nisi cannot be made conditional upon the previous provision of a specified security.

With due respect, I am not convinced that we should determine the second point. Indeed, I am not convinced that in the proper case the Courts do not have the power to order security to be provided for the periodic maintenance payments, which nevertheless would continue to be made independently, with the security to stand as a guarantee of payment. However, in my view of the case, it is not necessary to deal with this point.

I would allow the appeal and would remit the case to the Court of Appeal for reconsideration.

Appeal allowed with no order as to costs.

Solicitors for the appellant: Scott & Aylen, Ottawa.

Solicitors for the respondent: Hughes, Laishley, Mullen, Touhey & Sigouin, Ottawa.