Van Zyderveld v. Van Zyderveld, [1977] 1 SCR 714

Supreme Court of Canada

Van Zyderveld v. Van Zyderveld, [1977] 1 S.C.R. 714

Date: 1976-06-29

Hank Van Zyderveld Appellant;

and

Marie Angela Van Zyderveld Respondent.

1976: February 23; 1976: June 29.

Present: Martland, Ritchie, Spence, Dickson and Beetz JJ.

ON APPEAL FROM THE SUPREME COURT OF ALBERTA, APPELLATE DIVISION

Divorce—Maintenance—Payments fixed at such level that they could only be met by allowing respondent wife to reside in appellant husband’s house—Power of Court to impose terms and conditions—Court cannot order payment of lump sum and also direct provision of security for its payment—Divorce Act, R.S.C 1970, c. D-8, ss. 11, 12(b).

The appellant and the respondent were married in 1967 and were the parents of two children. Following their marriage, they occupied as their matrimonial home a house that had been purchased by the appellant prior to the marriage. A separation occurred in January 1972 and since that time the house was occupied by the wife and children. Later in that month the appellant petitioned for divorce on the grounds of mental cruelty on the part of the respondent. A decree nisi for divorce was granted on March 18, 1974.

The appellant had asked for custody of the children, but the trial judge awarded custody to the respondent. He directed that the husband pay to the wife by way of maintenance for the children $100 a month each and by way of maintenance to her $100 a month. He further directed that the husband pay to the wife the lump sum of $6,000 with interest, such payment to be secured against the house. It was further directed that the said sum of $6,000 was to be paid one month after the matrimonial home was sold, which sale was to be after the children reached maturity or completed their education.

On appeal by the husband to the Appellate Division of the Supreme Court of Alberta, it was held that under the authority of Switzer v. Switzer (1969), 70 W.W.R. 161, and Nash v. Nash, [1975] 2 S.C.R. 507, the trial judge lacked jurisdiction to order the husband to pay $6,000 and to charge the house as security for that personal obligation to the husband. The Court ordered the husband to pay to the wife, in addition to the payments to be made to her on behalf of the children, the sum of $400 per month for her maintenance. It

[Page 715]

further ordered that upon the husband permitting the wife and children to remain in the matrimonial home without charge and upon the husband making the mortgage payments, he should be deemed monthly to have paid to the wife for her maintenance the sum of $300. The matrimonial home was charged with payment to the wife of $6,000 together with interest. Such payment was to be made to the wife on July 1, 1986, or at such sooner time as the house should be sold.

With leave, the husband appealed to this Court.

Held: The appeal should be allowed to the extent of varying the order of the Appellate Division to provide that the charge upon the matrimonial home should apply to the proceeds of the sale or other disposition of the said matrimonial home, out of which the lump sum payment should be made to the respondent.

Section 12(b) of the Divorce Act, R.S.C. 1970, c. D-8, empowers the court making an order for maintenance under s. 11 to “impose such terms, conditions or restrictions as the court thinks fit and just”. The terms and conditions imposed by the Appellate Division were clearly devised so as to provide an inducement for the appellant to allow his wife and children to continue to reside in his house, but the Court had the power to do what it did.

The order of the Appellate Division did not involve any division of property between the appellant and the respondent.

Section 11 of the Divorce Act does not permit the Court to order payment of a lump sum and at the same time direct the provision of security for its payment.

APPEAL from a judgment of the Supreme Court of Alberta, Appellate Division[1], varying an order of maintenance given in a divorce action. Appeal allowed in part.

L.W. Oleson, for the appellant.

No one for the respondent.

The judgment of the Court was delivered by

MARTLAND J.—The appellant and the respondent were married on July 1, 1967. They are the parents of two sons, one born on August 20, 1966, the other on August 20, 1968. Prior to the mar-

[Page 716]

riage, the appellant became the owner of a house located on Lot 24, Block 22, Plan 600 U, in the City of Edmonton. The appellant and the respondent occupied this house as their matrimonial home, following the marriage.

A separation occurred on January 15, 1972, since which time the house has been occupied by the respondent and the two children. Later in that month the appellant petitioned for divorce on the grounds of mental cruelty on the part of the respondent. A decree nisi for divorce was granted on March 18, 1974.

The appellant had asked for custody of the children, but the trial judge awarded custody to the respondent, stating that:

Having regard to the totality of the evidence given in this case, and particularly the evidence of the recommendation, after investigation, by Mr. Way, the Chief Court Counsellor attached to the Family Court, I have no hesitation in coming to the conclusion that the custody of the children should remain with the mother.

He then went on to consider the issues of alimony, maintenance and a lump sum settlement. He directed that the husband pay to the wife by way of maintenance for the children $100 a month each and by way of maintenance to her $100 a month. The learned trial judge further directed that the husband pay to the wife the lump sum of $6,000 with interest at the rate of 5 per cent, such payment to be secured against the house. The Court further directed that

the said sum of $6,000 to be due and payable one month after the said land, Lot 24, Block 22, Plan 600 U is sold, which shall be after the children reach maturity or complete their education.

The appellant appealed from that part of the decree nisi which related to the sale of the house property. The grounds of appeal were stated as follows:

1. The Learned Trial Judge erred in law in ordering that the said property Lot 24, Block 22, Plan 600 U should be sold.

2. The Learned Trial Judge erred in law in ordering that the said property Lot 24, Block 22, Plan 600 U

[Page 717]

should be sold after the children of the marriage reach maturity or complete their education.

3. The Learned Trial Judge exceeded his jurisdiction both in ordering that the said property Lot 24, Block 22, Plan 600 U be sold and in ordering that it be sold after the children reach their maturity or complete their education.

Dealing with these submissions, McGillivray C.J.A., who delivered the reasons of the Court, said:

The husband appeals to this court. He contends that the learned trial judge had no jurisdiction to order the sale of the house which it is argued is the effect of the words in the decree set out above. The husband contends further that under the authority of Switzer v. Switzer (1969), 70 W.W.R. 161, and the unreported decision of the Supreme Court of Canada in Nash v. Nash that the learned trial judge had no jurisdiction to order the husband to pay $6,000 and to charge the house as security for that personal obligation to the husband.

After quoting from the reasons of Chief Justice Laskin in the Nash case, which is now reported[2], he went on to say:

The court is of the opinion that the legal position of the appellant is sound and that the learned trial judge exceeded his jurisdiction.

Counsel for the appellant has argued that this is the only matter that is before the court and is the only matter that the court is concerned with; that indeed the court should strike down any reference to the house from the judgment, leaving the wife and the two children with $300 per month with no accommodation for them to live in.

It is clear that the learned trial judge, on hearing the evidence, tried to reach what he considered was an equitable result, having regard to all the circumstances and having in mind the conduct of the wife and her potential for earning an income. It is also clear that his award for maintenance was premised on the circumstance that the wife was to continue to live in the matrimonial home until the children had completed their education. The learned trial judge further concluded that a lump sum award of $6,000 is reasonable.

[Page 718]

The wife was not represented by counsel on the appeal and no cross-appeal had been filed on her behalf. It is with this background that we must approach the problem.

We are of the opinion that the husband’s appeal opens the door to the consideration of maintenance generally. We do not think that we can treat the items of appeal in isolation and without consideration of the over-all effect on the wife and children as well as on the husband of simply allowing the husband’s appeal. As an incident of allowing the appeal we must deal with a new situation, and while we might refer the matter back to the learned trial judge we do not think that that is a satisfactory course as the wife is unrepresented by counsel and at this stage has shown herself in her presentation to the court to be extremely emotional.

We propose, then, to give effect to what the learned trial judge sought to do with one change to the advantage of the wife and that is the relieving her of the burden of making the mortgage payments (i.e. taxes, insurance, interest and principal) on the mortgage on her husband’s house.

To give effect to what we propose we order that the husband do pay to the wife, in addition to the payments to be made to her on behalf of the children, the sum of $400 per month for her maintenance and support until further order. We further order that upon the husband permitting the wife and children to remain in the matrimonial home described in the decree nisi without charge and upon the husband duly making payment of taxes, insurance premiums, interest and principal, called for under the mortgage, that he shall be deemed monthly to have paid to the wife for her maintenance the sum of $300 and he will be credited with such an amount.

The provisions for payment of $400 a month to the wife for her maintenance shall continue until the 1st April, 1986 unless varied earlier by order and thereafter the terms of maintenance will be the subject of further application. The said matrimonial home is charged with payment to the wife of $6,000 together with simple interest at the rate of 5 per cent per annum to be calculated from the 1st April, 1974. Such payment to be made to the wife on the 1st day of July, 1986, or at such sooner time as the house may be sold.

The appellant, by leave, has appealed to this Court. At the outset, it should be noted that under the provisions of s. 18(1) of the Divorce Act, R.S.C. 1970, c. D-8, an appeal lies only on a question of law:

[Page 719]

As was the case on the appeal to the Appellate Division, the respondent was not represented before this Court.

The appellant contends that the Appellate Division erred in law and exceeded its jurisdiction in fixing the maintenance payments at such a level that they could only be met by allowing the respondent to reside in the appellant’s house. This, it is said, in effect gives to the respondent the use of the home.

The powers of a court, upon granting a decree nisi, to direct provision for the wife and children are defined in s. 11(1)(a) of the Divorce Act as follows:

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

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

(i) the wife,

(ii) the children of the marriage, or

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

Section 12(b) empowers the court making an order under s. 11 to “impose such terms, conditions or restrictions as the court thinks fit and just”.

The amount of the periodic sums to be paid by the husband for the maintenance of his wife and children are matters for the discretion of the court, and a decision on that matter does not raise a question of law. The Court had power under s. 12(b) to impose terms and conditions, and it did so here. The terms and conditions imposed were clearly devised so as to provide an inducement for the appellant to allow his wife and children to continue to reside in his house, but in my opinion the Court had the power to do what it did.

The appellant’s second proposition is similar to the first. It is contended that maintenance was set

[Page 720]

in such a manner as to amount to a division of the property for the use of the respondent.

In my opinion the order of the Appellate Division does not involve any division of property between the appellant and the respondent. The appellant retains his ownership of the matrimonial home. While the marriage subsisted the respondent would enjoy the protection of The Dower Act, R.S.A. 1970, c. 114, which precluded the appellant, without her consent, from making a disposition of the property. That protection disappears when the marriage is dissolved. The order under appeal does not divide the property but seeks to continue the use of the property by the wife and children as their residence.

The final ground of appeal is that, in setting total maintenance at $600 per month, the Appellate Division failed to consider the appellant’s financial ability to pay the amount fixed. This, it seems to me, is an issue of fact, and is not one which can be appealed to this Court.

With respect to the direction as to the securing of the lump sum payment of $6,000 plus interest, the appellant sought the restoration of the order made at trial, subject to the deletion of the direction as to payment. This was the issue which had been the basis of the appeal to the Appellate Division. In my opinion, the direction given in the order of the Appellate Division met the problems created by the Nash case, save in one respect. That case decided that s. 11(1) of the Divorce Act did not permit an order for payment of periodic sums and, concurrently, an order to provide security for their payment, without directing that the periodic payments be paid out of the security. Similarly, on the reasoning of that case, it would appear to me that the Court cannot order payment of a lump sum and also direct the provision of security for its payment. The direction in the order under appeal for payment of the sum secured to be made “on the 1st day of July, A.D. 1986 or at such sooner time as the said matrimonial home may be sold” constitues either an order for payment, apart from the security, or a direction for sale of the matrimonial home at that time. In my view, para.

[Page 721]

6 of the decree nisi as determined by the Appellate Division, which reads as follows:

6. AND THIS COURT DOTH FURTHER ORDER AND ADJUDGE that the Petitioner shall secure payment to the Respondent of the sum of $6,000.00 and the said matrimonial home is charged with payment to the Respondent of the said $6,000.00 together with simple interest at the rate of 5% per annum to be calculated from the 1st day of April, A.D. 1974. Such payment to be made to the Respondent on the 1st day of July, A.D. 1986 or at such sooner time as the said matrimonial home may be sold.

should be amended by deleting the last sentence thereof, and by substituting the following:

Such charge shall apply to the proceeds of the sale or other disposition of the said matrimonial home, out of which the said lump sum payment shall be made to the Respondent.

In the result, it is my opinion that the order of the Appellate Division should be varied as above indicated, and the appeal is allowed to that extent. There should be no costs in this Court.

Appeal allowed in part.

Solicitors for appellant: Bryan, Andrekson, Wilson, Ostry, Bryan, Boyer & Olesen, Edmonton.