Family law ‑‑ Divorce ‑‑
Support ‑‑ Exclusive possession of matrimonial home ordered under
Family Law Reform Act and maintenance ordered under Divorce Act ‑‑
Whether or not order for exclusive possession of home invalid because of
paramountcy.
This appeal is from a judgment of the Ontario Court
of Appeal upholding an order which was made in consolidated proceedings under
the Divorce Act and the Family Law Reform Act, where
respondent wife was granted nominal maintenance under the former Act and
exclusive lifetime possession of the matrimonial home under the latter Act. A constitutional
issue arose out of the award granting exclusive possession. The Court was asked
to consider: (1) if s. 45 of the Family Law Reform Act was
in relation to support and maintenance; (2) if it was invalid by reason of the Divorce
Act ; and (3) if it was inoperative if a s. 45 application were joined with
one under the Divorce Act .
Held: The appeal should
be dismissed.
Section 45 of the Family Law Reform Act is
not a legislative provision in relation to support and maintenance and the
paramountcy doctrine does not apply here so as to render it either invalid or
inoperative if joined with an application under the Divorce Act . Section
45 of the Family Law Reform Act and s. 11 of the Divorce Act are
not mutually exclusive; rather, they are independent jurisdictions in relation
to different subject matters conferred by intra vires federal and
provincial statutes which complement each other. An award made under s. 11 of
the Divorce Act , therefore, would not preclude an order for exclusive
possession of the matrimonial home under the Family Law Reform Act. That
order, while relevant to support, was not in and of itself a support order.
Cases Cited
Multiple Access Ltd. v. McCutcheon, [1982] 2 S.C.R. 161, applied; Reference re Adoption Act,
[1938] S.C.R. 398; Jackson v. Jackson, [1973] S.C.R. 205; Sniderman
v. Sniderman (1982), 36 O.R. (2d) 289; Reference re B.C. Family
Relations Act, [1982] 1 S.C.R. 62; Fogel v. Fogel (1979), 9 R.F.L.
(2d) 55; Stere v. Stere (1980), 15 R.F.L. (2d) 357, referred to.
Statutes and Regulations Cited
Divorce Act, R.S.C. 1970, c. D‑8. s. 11(1).
Family Law Reform Act, R.S.O. 1980, c. 152, ss. 8, 18(1), (5), (6), 19(1)(d), 40(1),
(2), 45(1), (3).
APPEAL from a judgment of the Ontario Court of
Appeal dismissing an appeal from an order of Rutherford J. Appeal dismissed.
Thomas J. Lockwood, Q.C.,
and David C. Moore, for the appellant.
A. Burke Doran, Q.C.,
and Rebecca Regenstreif, for the respondent.
David Sgayias,
for the intervener the Attorney General of Canada.
Elizabeth Goldberg
and Craig Perkins, for the intervener the Attorney General for Ontario.
Réal‑A. Forest,
for the intervener the Attorney General of Quebec.
Gail E. Mildren,
for the intervener the Attorney General of Manitoba.
Graeme G. Mitchell,
for the intervener the Attorney General for Saskatchewan.
William Henkel, Q.C.,
and Margaret Unsworth, for the intervener the Attorney General for
Alberta.
The following is the judgment delivered by
1. The
Court‑‑This is an appeal from a decision of the Ontario
Court of Appeal upholding an order of Rutherford J. in a family law matter.
2. The proceedings in which the impugned
order was made were consolidated proceedings under the Family Law Reform Act,
R.S.O. 1980, c. 152, and the Divorce Act, R.S.C. 1970, c. D‑8.
Rutherford J. granted a decree of divorce to the wife (respondent) and made an
order in her favour under s. 11 of the Divorce Act for maintenance in
the sum of $1.00 per year. No appeal is taken in this Court from that order.
3. The husband does, however, appeal two
aspects of the order made under the Family Law Reform Act, namely the
grant to the wife of exclusive possession of the matrimonial home for her
lifetime and the award of compensation to her under s. 8 of the Family Law
Reform Act in respect of her contribution to a non‑family asset.
4. As far as the merits of the husband's
appeal on these two aspects is concerned we are in agreement with the Ontario
Court of Appeal that the trial judge had jurisdiction to grant the relief which
he granted and that there was evidence to support his determinations. Counsel
for the husband raised, however, a constitutional issue of some significance in
relation to the award of exclusive possession of the matrimonial home. It is
reflected in the following constitutional questions stated for the Court by Mr.
Justice Estey:
1. Is Section 45 of the
Family Law Reform Act, R.S.O. 1980, Chapter 152, a legislative provision in
relation to support and maintenance?
2. Are the provisions of
Section 45 of the Family Law Reform Act, supra, invalid by reason of the
provisions of the Divorce Act, R.S.C. 1970, Chapter D‑8 relating to
support and maintenance?
3. Are the provisions of
Section 45 of the Family Law Reform Act, supra, inoperative when a claim
thereunder is joined with an application for support and maintenance under the
provisions of the Divorce Act, R.S.C. 1970, Chapter D‑8?
5. Reproduced here for convenience are the
relevant provisions of the federal and provincial statutes:
Divorce Act, R.S.C. 1970, c. D‑8:
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,
(i) 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.
Family Law Reform Act,
R.S.O. 1980, c. 152:
18.‑‑(1) A court may, upon application, order a person to
provide support for his or her dependants and determine the amount thereof.
...
(5) In
determining the amount, if any, of support in relation to need, the court shall
consider all the circumstances of the parties, including,
(a) the
assets and means of the dependant and of the respondent and any benefit or loss
of benefit under a pension plan or annuity;
(b) the
capacity of the dependant to provide for his or her own support;
(c) the
capacity of the respondent to provide support;
(d) the age
and the physical and mental health of the dependant and of the respondent;
(e) the
length of time the dependant and respondent cohabited;
(f) the needs
of the dependant, in determing which the court may have regard to the
accustomed standard of living while the parties resided together;
(g) the
measures available for the dependant to become financially independent and the
length of time and cost involved to enable the dependant to take such measures;
(h) the legal
obligation of the respondent to provide support for any other person;
(i) the
desirability of the dependant or respondent remaining at home to care for a
child;
(j) a
contribution by the dependant to the realization of the career potential of the
respondent;
(k) where the
dependant is a child, his or her aptitude for and reasonable prospects of
obtaining an education;
(l) where the
dependant is a spouse, the effect on his or her earning capacity of the
responsibilities assumed during cohabitation;
(m) where the
dependant is a spouse, whether the dependant has undertaken the care of a child
who is of the age of eighteen years or over and unable by reason of illness,
disability or other cause to withdraw from the charge of his or her parents;
(n) where the
dependant is a spouse, whether the dependant has undertaken to assist in the
continuation of a program of education for a child who is of the age of
eighteen years or over and unable for that reason to withdraw from the charge
of his or her parents;
(o) where the
dependant is a spouse, any housekeeping, child care or other domestic service
performed by the spouse for the family, in the same way as if the spouse were
devoting the time spent in performing that service in remunerative employment
and were contributing the earnings therefrom to the support of the family; and
(p) any other
legal right of the dependant to support other than out of public money.
(6) The
obligation to provide support for a spouse exists without regard to the conduct
of either spouse, but the court may in determining the amount of support have
regard to a course or conduct that is so unconscionable as to constitute an
obvious and gross repudiation of the relationship.
19.‑‑(1) In an application under section 18, the court may
order,
...
(d) any
matter authorized to be ordered under clauses 45(1)(a) to (d) and
subject to subsection 45(3);
40.‑‑(1) A spouse is equally entitled to any right of
possession of the other spouse in a matrimonial home.
(2)
Subject to an order of the court under this or any other Act, and subject to a
separation agreement that provides otherwise, a right of a spouse to possession
by virtue of subsection (1) ceases upon the spouse ceasing to be a spouse.
45.‑‑(1) Notwithstanding the ownership of a matrimonial home
and its contents, and notwithstanding section 40, the court on application may
by order,
(a) direct
that one spouse be given exclusive possession of a matrimonial home or part
thereof for life or for such lesser period as the court directs and release any
other property that is a matrimonial home from the application of this Part;
(b) direct a spouse
to whom exclusive possession of a matrimonial home is given to pay such
periodic payments to the other spouse as is prescribed in the order;
(c) direct
that the contents of a matrimonial home, or any part thereof, remain in the
home for the use of the person given possession;
(d) fix the
obligation to repair and maintain the matrimonial home or to pay other
liabilities arising in respect thereof;
(e) authorize
the disposition or encumbrance of the interest of a spouse in a matrimonial
home subject to the right to exclusive possession of the other spouse as
ordered; and
...
(3) An
order under subsection (1) for exclusive possession may be made only if, in the
opinion of the court, other provision for shelter is not adequate in the
circumstances or it is in the best interests of a child to do so.
6. The argument presented on behalf of the
husband on the constitutional issue is succinctly set out in paragraph 18 of
the appellant's factum which reads as follows:
It is
respectfully submitted that the provisions of the FLRA dealing with
exclusive possession [of the matrimonial home] and orders pronounced thereunder
are properly characterized as support or maintenance orders. It is further
submitted that such provisions are rendered inoperative when a spouse proceeds
with and obtains corollary relief under Section 11 of the Divorce Act ,
and that, in such cases, the Court has no authority to award exclusive
possession of the matrimonial home under the FLRA.
7. In support of his characterization of an
order of exclusive possession under s. 45(1) as a support or maintenance order,
counsel points to s. 45(3) and submits that the purpose of such an order is to
ensure that the spouse has adequate shelter or, in an appropriate case, that
the best interests of a child of the marriage are provided for. These, he says,
are the very factors traditionally taken into consideration in making support
orders and would in fact be taken into consideration in making a support order
under s. 18 and s. 19(1)(d) of the Family Law Reform Act. An
order for exclusive possession being a support order and the wife having sought
and (according to the husband) obtained a maintenance order ($1.00 per year)
under s. 11 of the Divorce Act , s. 45 of the Family Law Reform Act
was inoperative to confer jurisdiction on the trial judge to make the order
appealed from.
8. It is readily apparent that if counsel
is wrong on his basic premise that an order for exclusive possession is a
support order, his appeal on constitutional grounds must fail. Counsel
acknowledges that s. 45 of the Family Law Reform Act is intra vires
the legislature of the province as legislation in relation to property and
civil rights: see Reference re Adoption Act, [1938] S.C.R. 398. He also
accepts that s. 11 of the Divorce Act is intra vires the federal
legislature as legislation ancillary to divorce: see Jackson v. Jackson,
[1973] S.C.R. 205. His whole case is that the two cannot be invoked together.
If resort is had to the maintenance provisions of the Divorce Act , the
support jurisdiction of the Family Law Reform Act (including s. 45 so
characterized) is said to be pre‑empted: see Sniderman v. Sniderman
(1982), 36 O.R. (2d) 289 (Ont. H.C.)
9. We are all of the view that while an
order for exclusive possession of the matrimonial home under s. 45 of the Family
Law Reform Act is relevant to support, it is not in and of itself a support
order: see Reference re B.C. Family Relations Act, [1982] 1 S.C.R. 62,
at pp. 88‑89. The Family Law Reform Act authorizes the Court on
divorce or marriage breakdown to divide the family and non‑family assets
between the spouses in accordance with the provisions of the Act. It also
authorizes the Court to make support orders. Although the matrimonial home is a
family asset under the Act and as such subject to division under Part I, it is
also specifically dealt with under Part III where possessory orders are
contemplated. In this case, for example, Rutherford J. divided the matrimonial
home equally between husband and wife but gave the wife exclusive possession
during her lifetime. It may well be, as counsel for the husband points out,
that such a possessory order directly affects the quantum of support
required by the wife but so also would an order awarding her the matrimonial
home outright under Part I of the Act. A division of assets under the Family
Law Reform Act and an order for support under the Family Law Reform Act
will usually be interrelated. This is why the courts have recommended that the
division of assets be made before the needs of the spouse for support are
assessed: see Fogel v. Fogel (1979), 9 R.F.L. (2d) 55 (Ont. C.A.); Stere
v. Stere (1980), 15 R.F.L. (2d) 357 (Ont. H.C.) The Court will utilize the
statutory provisions to tailor a package to the needs of the parties having
regard to the nature and extent of their assets.
10. We see no difference where an ancillary
order for maintenance is sought under the Divorce Act and an order for
exclusive possession of the matrimonial home is sought under the Family Law
Reform Act. There is no conflict between s. 11 of the Divorce Act
and s. 45 of the Family Law Reform Act on the test of conflict
articulated in Multiple Access Ltd. v. McCutcheon, [1982] 2 S.C.R. 161.
Quoting from the judgment of Dickson J. (as he then was), at p. 191:
In principle, there would
seem to be no good reasons to speak of paramountcy and preclusion except where
there is actual conflict in operation as where one enactment says
"yes" and the other says "no"; "the same citizens are
being told to do inconsistent things"; compliance with one is defiance of
the other.
11. The provisions in the two statutes are not
mutually exclusive. Indeed, they do not even deal with the same subject matter.
Even if the award of the nominal amount of $1.00 per year under s. 11 of the Divorce
Act (made no doubt in the belief that it was necessary in order to retain
jurisdiction) can be viewed as an award of maintenance based on the
considerations set out in that section (which is, to say the least, doubtful),
such an order does not, for the reasons given, preclude an order for exclusive
possession of the matrimonial home under the Family Law Reform Act. They
are independent jurisdictions in relation to different subject matters
conferred by intra vires federal and provincial statutes which
complement each other. There is therefore no room for the application of the
paramountcy doctrine to these two legislative provisions. The appeal is
accordingly dismissed with costs.
12. The constitutional questions are answered
as follows:
Question 1. Is Section 45 of The Family Law Reform Act, R.S.O. 1980,
Chapter 152, a legislative provision in relation to support and maintenance?
Answer: No.
Question 2. Are the provisions of Section 45 of The Family Law Reform
Act, supra, invalid by reason of the provisions of The Divorce Act, R.S.C.
1970, Chapter D‑8 relating to support and maintenance?
Answer: No.
Question 3. Are the provisions of Section 45 of The Family Law Reform
Act, supra, inoperative when a claim thereunder is joined with an application
for support and maintenance under the provisions of The Divorce Act, R.S.C.
1970, Chapter D‑8?
Answer: No.
Appeal dismissed with costs.
Solicitors for the appellant: Lockwood, Bellmore
& Moore, Toronto.
Solicitors for the respondent: Lang, Michener,
Cranston, Farquharson & Wright, Toronto.
Solicitor for the intervener the Attorney General of Canada: R. Tassé, Ottawa.
Solicitor for the intervener the Attorney General of Quebec: Attorney General of Quebec, Québec.
Solicitor for the intervener the Attorney General
for Saskatchewan: Attorney General for Saskatchewan, Regina.
Solicitor for the intervener the Attorney General
for Alberta: Attorney General for Alberta, Edmonton.
Solicitor for the intervener the Attorney General of Manitoba: Attorney General of Manitoba, Winnipeg.
Solicitor for the intervener the Attorney General of Newfoundland: Attorney General of Newfoundland, St. John’s.
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