Leskun v. Leskun, 2006 SCC 25, [2006] 1 SCR 920

                                                 SUPREME COURT OF CANADA

Between:

Gary Leskun

Appellant

and

Sherry Jean Leskun

Respondent

Coram: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish and Charron JJ.

______________________________

Leskun v. Leskun, [2006] 1 S.C.R. 920, 2006 SCC 25

Gary Leskun                                                                                                     Appellant

v.

Sherry Jean Leskun                                                                                      Respondent

Indexed as:  Leskun v. Leskun

Neutral citation:  2006 SCC 25.

File No.:  30548.

2006:  February 15; 2006:  June 21.

Present:  McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish and Charron JJ.

on appeal from the court of appeal for british columbia

Family law — Divorce — Spousal support — Relevance of spousal misconduct — Husband’s affair having emotionally devastating effect on wife — Wife unable to attain self‑sufficiency — Whether Court of Appeal erred in taking into account spousal misconduct in determining entitlement to support — Whether husband’s capital assets acquired after marital break‑up to be considered in determining his ability to pay spousal support — Whether objective of promoting self‑sufficiency constituting duty — Divorce Act, R.S.C. 1985, c. 3 (2nd Supp .), s. 15.2.

The parties were married in 1978.  After 20 years of marriage, during which the wife worked, financially contributed to her husband’s continuing education, and bore his child, she was in short order afflicted with a significant back injury and the elimination of her job.  Soon after, her husband told her that he wanted a divorce to marry another woman.  The parties divorced in 1999.  At trial, the wife was found to be entitled to support and was granted $2,250 per month “until Sherry Leskun returns to full employment, when both entitlement and quantum will be reviewed”.  In 2003, an application by the husband to discontinue support payments on the basis that he was now unemployed and in financial difficulty was denied.  The chambers judge found that the wife was not self‑sufficient and remained in need of spousal support.  The Court of Appeal affirmed the ruling.  A majority of the court indicated that the Divorce Act  did not prevent consideration of a failure to achieve self‑sufficiency as being the result, at least in part, of the emotional devastation caused by the other spouse’s misconduct.  There were also a number of other factors unrelated to misconduct, including the wife’s age at the time of the marriage break‑up and her health problems, which led the court unanimously to uphold the support order.

Held:  The appeal should be dismissed.

The 1985 Divorce Act  eliminates misconduct, as such, as a relevant consideration when making an award for spousal support.  Section 15.2(5) provides that in making an interim or final order for spousal support, “the court shall not take into consideration any misconduct of a spouse in relation to the marriage”.  In addition, s. 17(6) instructs the court not to consider in a variation application any conduct that could not be considered in the making of the initial order.  These provisions make it clear that misconduct should not creep back into the court’s deliberation as a relevant “condition” or “other circumstance” which the court is to consider under s. 15.2(4) in making or varying a spousal support order.  There is, of course, a distinction between the emotional consequences of misconduct and the misconduct itself.  Those consequences are not rendered irrelevant because of their genesis in the other spouse’s misconduct.  On the contrary, they can be highly relevant to factors, such as a claimant spouse’s capacity to be self‑sufficient, which must be considered when making a spousal support order.  Failure to achieve self‑sufficiency is not a breach of “a duty”.  It is simply one factor amongst others to be taken into account when considering a spousal support order.  [20‑22] [27]

Here, the majority of the Court of Appeal wrongly suggested that a court can achieve indirectly what Parliament has said the court is not to do directly.  While the needs and circumstances of the claimant spouse are relevant to a failure to achieve the objective of self‑sufficiency, it is the attribution of fault to the other spouse that is deemed by Parliament to be irrelevant to the issue of spousal support in a regime designed to deal with the consequences of marital breakdowns on a no‑fault basis.  However, the Court of Appeal’s decision dismissing the husband’s application for a reduction in support payments should be affirmed on the basis of the other factors unrelated to misconduct.  In addition, the narrowness of the wife’s work experience, which was mentioned by the chambers judge in her ruling, underlines how difficult it is for someone now approaching 60 years of age to re‑enter the labour force after a lengthy absence and with few marketable skills outside the limits of her former job at a bank.  [2-3] [24]

In determining the husband’s ability to pay spousal support, the chambers judge did not err in taking into account his capital assets acquired after the marital break‑up.  The issue of “double dipping” did not arise because the capital assets at issue did not exist at the time of the division of capital at the initial trial.  To say that capital assets cannot be considered would not reflect the true “means, needs and other circumstances” of the parties as required by s. 15.2(4)  of the Divorce Act .  [29‑32]

Insofar as possible, trial courts should resolve the controversies before them and make an order which is permanent subject only to change under s. 17 on proof of a change of circumstances.  If the s. 15.2 court considers it essential (as here) to identify an issue for future review, the issue should be tightly delimited in the s. 15.2 order.  In this case, the husband’s application is properly characterized as a review application, not an application to vary, and it was not necessary for him to demonstrate a change in circumstances.  However, whether his application is treated as having been brought under s. 15.2  of the Divorce Act  (which would be more favourable to the husband) or under s. 17 makes no difference to the outcome in the case.  His application does not rise or fall on the issue of onus.  It fails on the facts.  [39] [41‑42]

Cases Cited

Referred to:  Moge v. Moge, [1992] 3 S.C.R. 813; Bracklow v. Bracklow, [1999] 1 S.C.R. 420; Strang v. Strang, [1992] 2 S.C.R. 112; Boston v. Boston, [2001] 2 S.C.R. 413, 2001 SCC 43; Cunha v. Cunha (1994), 99 B.C.L.R. (2d) 93; Choquette v. Choquette (1998), 39 R.F.L. (4th) 384; Willick v. Willick, [1994] 3 S.C.R. 670; Schmidt v. Schmidt (1999), 71 B.C.L.R. (3d) 113; Keller v. Black, [2000] O.J. No. 79 (QL).

Statutes and Regulations Cited

Divorce Act , R.S.C. 1985, c. 3 (2nd Supp .), ss. 15.2, 17.

Divorce Act, S.C. 1967‑68, c. 24, s. 11.

Authors Cited

Payne, Julien D., and Marilyn A. Payne.  Canadian Family Law.  Toronto:  Irwin Law, 2001.

APPEAL from a judgment of the British Columbia Court of Appeal (Southin, Newbury and Hall JJ.A.) (2004), 31 B.C.L.R. (4th) 50, 244 D.L.R. (4th) 612, 7 R.F.L. (6th) 110, [2004] B.C.J. No. 1597 (QL), 2004 BCCA 422, affirming the order of Morrison J., 2003 CarswellBC 3564.  Appeal dismissed.

Lorne N. MacLean, Alison M. Ouellet, Shawna L. Specht and Shelagh M. Kinney, for the appellant.

Sherry Jean Leskun, on her own behalf.

Colin A. Millar, as amicus curiae.

The judgment of the Court was delivered by

1                                   Binnie J. _ This appeal comes to us largely on the strength of a statement in the majority judgment of the British Columbia Court of Appeal that while a court dealing with spousal support under the Divorce Act , R.S.C. 1985, c. 3 (2nd Supp .), is directed not to take into account “any misconduct of a spouse in relation to the marriage” (s. 15.2(5)), it is nevertheless appropriate to take into account the fact the failure to achieve self-sufficiency resulted “at least in part from the emotional devastation of misconduct by the other spouse”: (2004), 31 B.C.L.R. (4th) 50, 2004 BCCA 422, at para. 56.  Southin J.A. described the respondent wife (who is self-represented) as

bitter to the point of obsession with his misconduct and in consequence [she] has been unable to make a new life.  Her life is this litigation. [para. 54]

The misconduct consists essentially in the facts that after 20 years of marriage, during which the wife worked, and financially contributed to her husband’s continuing education, and bore his child, she was in short order afflicted with a significant back injury and the elimination of her job, and was soon after abandoned by the appellant husband, who announced that he wanted a divorce to marry someone else and live in Chicago.  He had, his counsel acknowledged, been “carrying on behind his wife’s back”, for some time.

2                                   I agree with the appellant and with the concurring opinion of Newbury J.A. in the British Columbia Court of Appeal that the majority judgment wrongly suggests that a court can achieve indirectly what Parliament has said the court is not to do directly.  The needs and circumstances of the claimant spouse will of course be relevant to a failure to achieve the objective of self-sufficiency.  It is the attribution of fault to the other spouse that is deemed by Parliament to be irrelevant to the issue of spousal support in a regime designed to deal with the consequences of marital breakdowns on a no-fault basis.

3                                   However, there were a number of other factors, unrelated to the observations about misconduct, that led the Court of Appeal unanimously to dismiss the appellant husband’s claim for a reduction in support payments.  The judgment under appeal can and should be sustained on that basis.  I would therefore dismiss the appeal.

I.       Facts

4                                   The parties were married in 1978.  They had one daughter who has a child.  Both the daughter and the grandchild reside with the respondent wife, who is currently 59 years old.  She and the appellant husband, who is about ten years younger, met while both were working at the Toronto-Dominion Bank.  The respondent had two children from her first marriage.  The appellant helped to raise them.  The respondent continued to work at the bank for most of the marriage except for interruptions from time to time to help the appellant advance his education.  He obtained an MBA from the University of Western Ontario and worked towards qualification as a Certified General Accountant.  These educational qualifications substantially boosted his income earning capacity.  To meet the family’s needs while the appellant was studying, the respondent cashed in her RRSPs and obtained the return of her pension contributions, both of which in the long run contributed to her present financial problems.

5                                   In 1993, the appellant left the bank and joined Motorola, which in April 1998 moved him to Chicago as its local Director of Program Management.  It was expected that the respondent would move to Chicago to join him.  In September of that year, however, the appellant returned to Vancouver to inform her that he wanted a divorce, which was obtained in 1999.  Pending resolution of a number of issues, the appellant agreed to pay the respondent $2,250 per month as interim support.

6                                   When the issue of permanent spousal support eventually went to trial, Collver J. was confronted with serious uncertainty about the wife’s financial prospects:  [2000] B.C.J. No. 1085 (QL), 2000 BCSC 1912.  Firstly, as mentioned, the respondent had injured her back in 1995 (when she and the appellant were lifting a generator at their home).  This required surgery.  Her recovery was incomplete.  Secondly, the month prior to the marital break-up, the respondent learned that her position at the TD Bank was about to be eliminated.  Shortly thereafter she applied for long-term disability benefits arising out of her back injury.  The benefits were granted but then discontinued in the fall of 1999.  (Subsequent to the trial, the respondent received a severance award from the TD Bank of $83,000.)

7                                   In his decision, the trial judge held that the respondent had been disadvantaged by the marriage.  The interruption in her career did not enhance her position at the bank and, as stated, she had cashed in her RRSPs and pension contributions to meet the family needs.  Further, following the marital breakdown, the combined incomes of the appellant and his new wife enabled them to enjoy a standard of living that the respondent could not possibly maintain on her own.  The respondent’s ability to attain economic self-sufficiency was in some doubt.  Collver J. held that she needed, and was entitled to, support until she had resolved outstanding issues with the TD Bank.  He therefore ruled that: “Spousal support of $2,250 per month will continue until Sherry Leskun returns to full employment, when both entitlement and quantum will be reviewed” (para. 25b).  However, the formal order issued over a year later did not put the condition so specifically and simply provided as follows:

The Plaintiff shall pay spousal support to the Defendant in the sum of $2,250.00 per month . . . until further Order of this Honourable Court, and the Plaintiff shall be at liberty to apply for an Order reviewing both entitlement to and quantum of spousal support. [Emphasis added; para. 2.]

8                                   In addition, the respondent received sole title to the couple’s townhouse and its contents (subject to an existing line of credit).  The RRSPs were equalized.  The appellant’s whole life insurance policy, the parties’ boat, a loan owing by the respondent’s son and certain of the parties’ credit card debts were divided equally and the parties retained their separate pensions and CPP credits as their sole property.

II.      Judicial History

A.     British Columbia Supreme Court, 2003 Carswell BC 3564

9                                   In May 2003, the appellant applied to discontinue support payments on the basis that he was now unemployed and in financial difficulty.  However, the chambers judge concluded that the appellant had been less than forthright with the court about his financial circumstances and concluded that his lifestyle and investments showed a much better financial situation than that of the respondent.  The appellant’s argument that his economic prospects were no longer significantly better than his former wife’s was “nonsense” (para. 17).  In the view of Morrison J., the appellant had a significant earning capacity and he possessed assets of approximately US $761,800 (para. 15) equivalent at that time to about 1 million dollars Canadian.

10                               The chambers judge found that the respondent was not self-sufficient and remained in need of spousal support.  She noted that the respondent was still “consumed by bitterness over the end of her marriage and what she sees as the betrayal and duplicity of her former husband; and her inability to move on in the workforce is unfortunate” (para. 6).  She “seems unable to find even part-time employment” (para. 7), having worked only in banking since the age of 17.  She had to borrow money from friends.

11                               The respondent was disadvantaged by the marriage and the disadvantage continued.  Her lack of formal education, narrow work experience, age and health were also factors.  While the respondent was at risk in putting reliance on the appellant, Morrison J. held that spousal support at the rate of $2,250 per month should continue.  She also ordered the appellant to pay arrears.

B.      British Columbia Court of Appeal (2004), 31 B.C.L.R. (4th) 50, 2004 BCCA 422

(1)  Southin J.A.

12                               The court rejected the appellant’s various grounds of appeal.  Southin J.A. was unable to say that the chambers judge erred in her conclusions, including the respondent’s inability to support herself and the appellant’s ability to pay.  As to the appellant’s objection to having to use his capital to pay ongoing spousal maintenance, she ruled that capital is part of the “means” of each party that the Divorce Act  requires be taken into account.

13                               Southin J.A. noted that while there was agreement that the respondent was not self-sufficient, the chambers judge had made no findings as to why this was so, nor did the chambers judge express a view as to whether the respondent should have or could have become self-sufficient.  In Southin J.A.’s view, the Divorce Act  does not prevent consideration of a failure to achieve self-sufficiency as being the result, at least in part, of the emotional devastation caused by the other spouse’s misconduct. Southin J.A. made clear that there were “further factors” supporting the ruling of the chambers judge, including the age of the respondent at the time of the break-up of the marriage, her health problems and unrelated family sorrows (para. 57).  Southin J.A. was not prepared to hold that the respondent had conducted herself in such a manner as to be disentitled to support.

(2)  Newbury J.A. (concurring)

14                               Newbury J.A. also dismissed the appeal. She accepted that the respondent remained in need of support and was not self-sufficient.  However, she held that the Divorce Act ’s strictures against considering the misconduct of a spouse in relation to the marriage when considering support orders meant that “bitterness” cannot be an adequate reason for not achieving self-sufficiency (para. 62).  Newbury J.A. felt that the respondent ought to have been employable at least on a part-time basis in the banking business.  While the respondent had advised the court that she had sought employment unsuccessfully, she failed to file any evidence on this point. On the other hand, Newbury J.A. noted the respondent’s age and family and medical difficulties which were exacerbated by the breakdown of the marriage. For those reasons, and not because of any misconduct-related devastation, she “reluctantly” upheld the support order (para. 63).

III.    Analysis

15                               The appellant says the Court of Appeal erred (i) in taking into account spousal misconduct in determining whether the respondent is entitled to spousal support; (ii) in failing to give meaningful effect to the respondent’s “duty or obligation to pursue the goal of self-sufficiency”; (iii) in taking into account the appellant’s capital in determining his ability to pay spousal support; and (iv) in apparently treating his application as a s. 17(1) variation of the original order, thus imposing on him a requirement to demonstrate changed circumstances, instead of a review pursuant to a condition set out in the s. 15.2 order, which imposes no such onus.  The respondent, who as stated is self-represented, provided a scalding reply on each point.  In this Court, we were greatly assisted by the amicus curiae.  I propose to address the appellant’s objections in order.

A.     Relevance of Spousal Misconduct

16                               The appellant objects that the majority decision of the Court of Appeal wrongly relied on his alleged misconduct to exonerate his former wife from the consequences of her failure to achieve economic self-sufficiency.  The appellant did not challenge the finding that the respondent was not self-sufficient.  His point is that in the five years that elapsed between the marital break-up and the hearing before Morrison J. she ought to have moved on emotionally and become self-sufficient financially.

17                               There is some merit in his complaint that his self-represented wife failed to put on the record documentary support corroborating her alleged job hunting efforts or to file medical evidence to support a finding of continued inability to achieve self-sufficiency.  She filed considerable documentary evidence on lesser matters.  Nevertheless the chambers judge heard the respondent and after reading the record was satisfied on that point.  The finding of fact was upheld on appeal.

18                               Self-sufficiency is one of the goals set out in s. 15.2(6)  of the Divorce Act  which provides that spousal support orders should

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

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

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

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

19                               In forceful submissions, counsel for the appellant says that the court should not encourage unemployment self-induced by a spouse’s “scorched earth” policy and warns that if the court is to permit “a claim that a spous[e]’s adulterous conduct has left the non-offending spouse so bitter and emotionally traumatized as to be unable to return to work”, the court will not only be “opening the floodgates” but create a “legal tsunami” of review or variation applications which would not only “be the return to fault in the Divorce Act ” but lead to a “weakening, I guess, of the Canadian economy”.

20                               I believe that stripped of the rhetoric, the appellant has a valid point of statutory interpretation.  Prior to the 1985 Act, s. 11 of the Divorce Act, S.C. 1967-68, c. 24, directed the court to have “regard to the conduct of the parties and the condition, means and other circumstances of each of them” in exercising its discretion in making an award of spousal support.  The 1985 Act sought to eliminate misconduct, as such, as a relevant consideration.  Section 15.2(5)  of the Divorce Act  now provides that in making an interim or final order for spousal support, “the court shall not take into consideration any misconduct of a spouse in relation to the marriage”.  In addition, s. 17(6) instructs the court not to consider any conduct in a variation application that could not be considered in the making of the initial order.  These provisions make it clear that misconduct should not creep back into the court’s deliberation as a relevant “condition”  or “other circumstance” which the court is to consider in making or varying a spousal support order (s. 15.2(4)).  Misconduct, as such, is off the table as a relevant consideration.

21                               There is, of course, a distinction between the emotional consequences of misconduct and the misconduct itself.  The consequences are not rendered irrelevant because of their genesis in the other spouse’s misconduct.  If, for example, spousal abuse triggered a depression so serious as to make a claimant spouse unemployable, the consequences of the misconduct would be highly relevant (as here) to the factors which must be considered in determining the right to support, its duration and its amount.  The policy of the 1985 Act however, is to focus on the consequences of the spousal misconduct not the attribution of fault.

22                               Section 15.2(4) states that in making a spousal support order

the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including

(a)    the length of time the spouses cohabited;

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

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

Certainly, the “condition . . . needs and other circumstances” includes the capacity of the respondent to be self-sufficient for whatever reason.  Whether or not the claimed inability or incapacity of the claimant spouse is credible is for the trial judge to determine.  It is not helpful to cast about to assign blame.

23                               A break-up in the circumstances found here will perhaps inevitably precipitate a period of shock and emotional trauma for the jilted spouse, but Parliament has concluded that the attempt to get to the bottom of all the rights and wrongs that contributed to the break-up is likely impossible and in any event irrelevant to the task of sorting out the financial consequences.  As to the “legal tsunami”, I agree with the amicus curiae that for the most part parties will realize “that the only way out [of the financial difficulties consequent on the break-up] is if they pull themselves up by their own bootstraps”.

24                               If the misconduct point were to be viewed in isolation, the appellant is correct, but the point cannot be viewed in isolation.  The fact is that both the chambers judge and Newbury J.A., who differed from her colleagues on the relevance of the misconduct, cited numerous other factors (also referenced by the majority judgment) to reject the appellant’s attempt to extricate himself from any further financial responsibility for his former wife.  Newbury J.A. observed that

Mrs. Leskun is now 57 years of age and her affidavit evidence points to various family difficulties and to her medical problems and those of her family.  A court cannot ignore these difficulties, which have been exacerbated by the breakdown of the Leskuns’ marriage.  For this reason, and not because of any self-imposed disability, I would reluctantly uphold the order of the Court below and dismiss the appeal. [para. 63]

I agree.  I would add the point made by the chambers judge about the narrowness of the respondent’s work experience, and underline the difficulty of someone now approaching 60 years of age to re-enter the labour force after a lengthy absence and with few marketable skills outside the limits of her former job at the bank, now eliminated.

B.      The Respondent’s Alleged “Duty” to Become Self-Sufficient

25                               Counsel for the appellant framed his point in this way:

The emotional states of the payor or recipient and their idiosyncrasies should be irrelevant to the duty to pursue self-sufficiency, in the absence of some objective clinical, medical or psychiatric evidence, obviously.

The duty to be self-sufficient is inversely proportionate to the means of the payor.  Persistence in unremunerative employment or unrealistic or unprotective career aspirations should not be countenanced.

Self-induced reduction in income should not be encouraged or rewarded.  And income levels prior to this self-induced reduction should be attributed.

26                               Section 15.2(6) (d) of the Divorce Act  provides that one of the objectives of the spousal support order is to, “in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time”.  This Court has rejected characterizing this objective as a duty, see Moge v. Moge, [1992] 3 S.C.R. 813, at p. 853, and Bracklow v. Bracklow, [1999] 1 S.C.R. 420, at paras. 31-32, 35-36 and 43.  The respondent advanced a number of reasons why, despite alleged efforts, she had been unable to return to the workforce.  She was believed.

27                               Failure to achieve self-sufficiency is not breach of “a duty” and is simply one factor amongst others to be taken into account.  As stated in Moge and repeated in Bracklow:

At the end of the day . . ., courts have an overriding discretion and the exercise of such discretion will depend on the particular facts of each case, having regard to the factors and objectives designated in the Act.

(Moge, at p. 866; Bracklow, at para. 53)

28                               Clearly where incapacity is alleged some independent evidence, including medical evidence would be highly desirable.  But it is not essential.  Newbury J.A. commented that

[h]aving seen Mrs. Leskun, who appeared on her own behalf, I would have thought she was employable at least on a part-time basis in the banking industry. [para. 62]

The chambers judge approached the respondent’s evidence with a measure of scepticism but at the end of the day she had to reach a conclusion on the evidence before her.  She said the respondent’s inability to move on was “unfortunate”.  It was not a breach of some alleged duty.  It was a regrettable fact of life which could not be ignored in a contextual analysis of the position of these parties.  I see no error in the treatment of this issue by the chambers judge.

C.     Whether the Appellant’s Capital Ought to Have Been Taken Into Account in Determining His Ability to Pay

29                               There is no support in the case law or in logic for the proposition that the chambers judge was wrong to take into account the appellant’s capital assets acquired after the marital break-up. In Strang v. Strang, [1992] 2 S.C.R. 112, the Court stated that the traditional understanding of the word “means” includes, “all pecuniary resources, capital assets, income from employment or earning capacity, and other sources from which the person receives gains or benefits”  (p. 119).  J. D. Payne and M. A. Payne elaborate as follows:

The word means includes all pecuniary resources, capital assets, income from employment or earning capacity, and any other source from which gains or benefits are received, together with, in certain circumstances, money that a person does not have in possession but that is available to such person.  [Emphasis in original.]

(Canadian Family Law (2001), at p. 195)

30                               The appellant says that there was a division of capital by Collver J. at the original trial and that it is unfair that his after-acquired capital should now be tapped to pay the respondent continuing support.  The present case does not raise the “double dipping” issue mentioned in Strang and dealt with at length in relation to pension benefits in Boston v. Boston, [2001] 2 S.C.R. 413, 2001 SCC 43.  In that case, Major J. described the problem in this way:

. . . upon marriage dissolution the payee spouse (here the wife) receives assets and an equalization payment that take into account the capital value of the husband’s future pension income.  If she later shares in the pension income as spousal support when the pension is in pay after the husband has retired, the wife can be said to be recovering twice from the pension: first at the time of the equalization of assets and again as support from the pension income. [para. 34]

31                               The appellant’s capital assets at issue here did not exist at the time of the initial division by Collver J. and no issue of “double dipping” arises.  As Major J. put it in Boston, at para. 64 “the court should . . . focus on that portion of the payor’s income and assets that have not been part of the equalization or division of matrimonial assets when the payee spouse’s continuing need for support is shown” (emphasis added).

32                               If a court could not take into consideration  after-acquired capital assets in considering a spousal support order it would create a potential injustice.  A spouse could (as is alleged here) shield his or her true worth to avoid paying support, even though his or her financial situation is significantly better than that of the other spouse. In this case, for example, the appellant seems to have taken the income he earned working in Chicago and invested it into a bagel business.  Morrison J. estimated that his investment in that business was worth as much as $230,000.  To say this asset cannot be taken into consideration would not reflect the true “means, needs and other circumstances” of the parties as required by s. 15.2(4)  of the Divorce Act .

33                               The appellant also objects that the chambers judge erred in calculating his net worth, but on this point it is significant that the chambers judge commented that the appellant had been less than forthright in his evidence:

. . . Mr. Leskun, with his CGA and MBA accreditations, is more than sophisticated in financial matters and frankly much more sophisticated in such matters than his former wife, although she has pointed out many instances where there appear to be contradictions in the financial information given over the months and years by her former husband.

. . .

I am drawing certain adverse conclusions with regard to [the appellant’s] financial position, having read all of the material before me. [paras. 10 and 12]

34                               In all of these circumstances, the appellant has a poor platform from which to launch an attack against the trial judge’s conclusion regarding his assets and liabilities.  As Fraser J. commented in Cunha v. Cunha (1994), 99 B.C.L.R. (2d) 93 (S.C.), at para. 9:

Non-disclosure of assets is the cancer of matrimonial property litigation.  It discourages settlement or promotes settlements which are inadequate.  It increases the time and expense of litigation.  The prolonged stress of unnecessary battle may lead weary and drained women simply to give up and walk away with only a share of the assets they know about, taking with them the bitter aftertaste of a reasonably-based suspicion that justice was not done.

If problems of calculation exist the appellant is largely the author of his own difficulties.  I would not interfere on that basis.

D.     Was the Chambers Proceeding Properly Characterized as a “Review” or an Application to Vary?

35                               The final issue is whether the courts below treated the appellant’s application as a motion for review pursuant to s. 15.2 or an application to vary under s. 17  of the Divorce Act .  The latter route, if taken, would have unfairly thrown on him the burden of establishing changed circumstances, as required by s. 17(4.1):

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

The appellant says that his application was for a s. 15.2 “review” as explicitly contemplated in para. 2 of Collver J.’s formal order that “the Plaintiff shall be at liberty to apply for an Order reviewing both entitlement to and quantum of spousal support”.   As noted earlier, Collver J. had in mind that a review might properly occur once the uncertainties then surrounding the respondent’s employment situation had been resolved.

36                               Review orders under s. 15.2 have a useful but very limited role.  As the amicus curiae pointed out, one or both parties at the time of trial may not, as yet, have the economic wherewithal even to commence recovering from the disadvantages arising from the marriage and its breakdown.  Common examples are the need to establish a new residence, start a program of education, train or upgrade skills, or obtain employment.  In such circumstances, judges may be tempted to attach to s. 15.2 orders a condition pursuant to s. 15.2(3)  of the Divorce Act , that entitles one or other or both of the parties to return to court for a reconsideration of a specified aspect of the original order.  This will properly occur when the judge does not think it appropriate that at the subsequent hearing one or other of the parties need show that a change in the condition, means, needs or other circumstances of either former spouse has occurred, as required by s. 17(4.1)  of the Divorce Act .

37                               Review orders, where justified by genuine and material uncertainty at the time of the original trial, permit parties to bring a motion to alter support awards without having to demonstrate a material change in circumstances:  Choquette v. Choquette (1998), 39 R.F.L. (4th) 384 (Ont. C.A.).  Otherwise, as the amicus curiae fairly points out, the applicant may have his or her application dismissed on the basis that the circumstances at the time of the variation application were contemplated at the time of the original order and, therefore, that there had been no change in circumstances.  The test for variation is a strict one:  Willick v. Willick, [1994] 3 S.C.R. 670, at pp. 688-90.

38                               Here the review order was justified by serious doubt at the time of trial as to the true financial situation and prospects of the wife and what level of support would actually be needed.  See Schmidt v. Schmidt (1999), 71 B.C.L.R. (3d) 113 (C.A.), at para. 9:

[Review orders] are considered particularly useful in circumstances where there is some doubt as to whether spousal maintenance should be continued and, if so, in what amount.  Rather than force the parties to go through a variation proceeding with its strict threshold test of change in circumstances, the court provides that maintenance shall be reviewed.

At the date of the trial before Collver J., there were outstanding issues which the trial judge anticipated would be resolved in a relatively short time.

39                               Willick and Choquette establish that a trial court should resist making temporary orders (or orders subject to “review”) under s. 15.2.  See also: Keller v. Black, [2000] O.J. No. 79 (QL) (S.C.J.).  Insofar as possible, courts should resolve the controversies before them and make an order which is permanent subject only to change under s. 17 on proof of a change of circumstances.  If the s. 15.2 court considers it essential (as here) to identify an issue for future review, the issue should be tightly delimited in the s. 15.2 order.  This is because on a “review” nobody bears an onus to show changed circumstances.  Failure to tightly circumscribe the issue will inevitably be seen by one or other of the parties as an invitation simply to reargue their case.  That is what happened here.  The more precise condition stated in the reasons of the trial judge was excessively broadened in the formal order.  This resulted in a measure of avoidable confusion in the subsequent proceedings.

40                               At trial, there was a real contingency that was incapable of immediate resolution.  The respondent was off work and what the trial judge referred to as the “TD Bank dilemma” (para. 21) remained up in the air.  It was not at all clear at trial what the wife’s financial position would be in six months or a year’s time.  It was thought that she would either get a disability pension equivalent to her then $45,000 salary, or go back to work (with or without retraining).  In the event she did neither.  She left the bank with an $83,000 severance payment.  The problem with the “review” order in this case therefore is not that the contingency did not justify it, but that the contingency referred to in the trial judge’s reasons was not spelled out in the formal order and the lack of specification was taken by the appellant as an invitation to relitigate his case.

41                               The appellant is correct that his application (though framed under both s. 15.2 and s. 17) is properly characterized as a review application.  It was not necessary for him to demonstrate a change in circumstances.  Nevertheless, while certain financial issues had been resolved between the time of Collver J.’s trial decision and the date of the application to Morrison J., the respondent’s failure to become self-sufficient had not changed.

42                               This procedural point seems not to have been taken in the courts below, and in any event was not explicitly addressed in their reasons.  In my view, whether the application is treated as brought under s. 15.2 (more favourable to the appellant) or under s. 17 (less favourable) it makes no difference to the outcome.  His application does not rise or fall on the issue of onus.  It fails on the facts.

IV.    Conclusion

43                               For the foregoing reasons, I would dismiss the appeal without costs, save and except that the respondent is entitled to be reimbursed for her actual out-of-pocket expenses incurred to respond to the appeal in this Court.

Appeal dismissed.

Solicitors for the appellant:  MacLean Family Law Group, Vancouver.

Solicitors appointed by the Court as amicus curiae:  Richards Buell Sutton, Vancouver.