2003bcca0046

Citation:	*Gill-Sager v. Sager*	Date: 20030123
	2003 BCCA 46	Docket: CA028442
COURT OF APPEAL FOR BRITISH COLUMBIA
BETWEEN:
EVA MARIE GILL-SAGER
APPELLANT (PLAINTIFF)
AND:
RUSSELL EARL SAGER
RESPONDENT (DEFENDANT)

Before:	The Honourable Chief Justice Finch
	The Honourable Madam Justice Southin
	The Honourable Mr. Justice Hollinrake

H. C. Hyslop, Q.C.		Counsel for the Appellant
P. A. Dyck		Counsel for the Respondent
Place and Date of Hearing:	Vancouver, British Columbia
6th January, 2003
Place and Date of Judgment:	Vancouver, British Columbia
23rd January, 2003

Written Reasons by:

The Honourable Madam Justice Southin

Concurred in by:

The Honourable Chief Justice Finch

The Honourable Mr. Justice Hollinrake

Reasons for Judgment of the Honourable Madam Justice Southin:

[1] This appeal raises an issue which from time to time has bedevilled practitioners of matrimonial law ever since the promulgation of the Divorce Act, 1967-68, c. 24 (R.S.C. 1970, c. D-8): Is a spouse, whose claim, pursuant to the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) (the Act), for "support" (called maintenance in the earlier Act - why this legislative penchant for changing the names of things?) is, by the judgment in the court below, "dismissed", precluded from ever succeeding on a subsequent application, no matter what the change of her or his circumstances?

[2] The possible answers to this question are:

(1) Yes.

(2) No.

(3) The law is unsettled. Only the Supreme Court of Canada can give a definitive answer.

[3] The facts of the case at bar illustrate why the Court is addressing the question.

[4] The parties were married on 11th July, 1980. The appellant wife was 21 and the respondent husband was 22. A few weeks after the marriage, the wife was badly injured in a motor vehicle accident which left her blind. As part of the treatment for her injuries, she received blood transfusions. Now she has Hepatitis C which appears to be in remission.

[5] By remarkable perseverance, she obtained an education and a good job. Now, however, she cannot work. The husband also worked. There were no children.

[6] The appellant's statement of claim, filed the 23rd June, 1999, contained these relevant provisions:

27. The Plaintiff seeks an order for spousal support or maintenance under

(a) both the Divorce Act (Canada), and the Family Relations Act.

* * *

SUMMARY OF RELIEF SOUGHT

* * *

A. ...

B. An Order for support for the Plaintiff by the Defendant; ...

[7] On 10th October, 2000, the respondent applied, under Rule 18A, for an order that:

1. Pursuant to Section 56, a determination of the family assets;

2. The family assets be divided equally between the parties;

3. Pursuant to Sections 56, 58, 59, 65 and 66, a declaration of ownership and possession of such family assets as may be appropriate under the circumstances;

4. Pursuant to Sections 65 and 66, an Order that such property of the Plaintiff as may seem just and reasonable to this Court, be vested in the Defendant;

5. The Plaintiff's claim for spousal maintenance be dismissed;

[8] There was no cross motion.

[9] As to their financial circumstances, it is unnecessary to go into detail, save to say that as of the date of trial her means of support from various sources exceeded his.

[10] In the words of the learned trial judge:

[24] Considering that her disposable income is higher than that of the defendant's and that she is living rent and mortgage free, I see no basis for providing additional maintenance. The claim for maintenance is denied.

[11] The judgment contains this term:

2. The Plaintiff's claim for spousal support is hereby dismissed.

[12] In this Court, the appellant asserted a number of errors on the part of the learned trial judge but as the argument developed, it became clear to the Court and counsel that at the root of the appeal is the appellant's concern that if her Hepatitis C returns in a disabling form and if the health care system will not pay for all the costs of treatment, her present means of support may cease to be adequate.

[13] If such should happen, she wishes to be able to bring a fresh application for support founded on that change of circumstances.

[14] Mr. Dyck, for the respondent, in this Court takes the position that she is precluded by the judgment in the court below from doing so. He says the doctrine of res judicata applies. Ms. Hyslop, Q.C., for the appellant, takes the position that if that is the law, then the judgment in the court below should be not that "the ... claim for spousal support is hereby dismissed" but should be an order for a nominal amount of support, or some other form of order which will preserve the jurisdiction of the court.

[15] It is not the ordinary practice of this Court to pronounce on an issue which, at the time it is raised, is academic, that is to say, has no present practical implication. But as the matter is of general importance, I think it right to depart from our usual practice.

[16] In my opinion, the doctrine commonly known as that of res judicata, as such, has nothing to do with this problem. The real question is what is the proper construction of the Act?

[17] By the Divorce Act of 1970:

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

(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.

[18] By the present statute, R.S.C. 1985, c. 3 (2nd Supp.), as amended, S.C. 1997, c. 1:

15.2 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.

* * *

(4) In making an order under subsection (1) or an interim order under subsection (2), 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

* * *

(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse 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;

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

[1997, c. 1, s. 2.]

* * *

17. (1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively,

(a) a support order or any provision thereof on application by either or both former spouses; or ...

* * *

(7) A variation order varying a spousal support order should

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

(b) apportion between the former 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;

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

[R.S., 1985, c. 3 (2nd Supp.), s. 17; 1997, c. 1, s. 5.]

[19] Insofar as this point is concerned, there is no essential difference between the two Acts.

[20] The argument of those who are, so to speak, in Mr. Dyck's camp, is that an order refusing support is not a "support order" and upon the plain reading of s. 17(1) of the Act cannot be varied. Proudfoot J., as she then was, held that opinion. See Evans v. Evans (1987), 6 R.F.L. (3d) 166 (B.C.S.C.), and see McCowan v. McCowan (1995), 14 R.F.L. (4th) 325 (Ont. C.A.), a judgment which incurred the displeasure of James McLeod in his comment thereon at p. 328:

Under the 1970 Divorce Act, the fear that support would end with a dismissal on the merits led to a flood of unnecessary support applications for nominal orders to protect future entitlement. The obvious question is why the court wanted to introduce this cumbersome process into the 1985 Divorce Act. More importantly, many judges have refused to grant nominal orders because they believed that a dismissal of a support claim at one time did not extinguish the claim for all time. What is the effect of McCowan on such cases?

To suggest that a once-and-for-all determination of entitlement to support should be made and once made is determinative of future entitlement ignores the possibility that sometimes the full effect of the roles adopted in marriage on a person’s ability to achieve and maintain self-sufficiency may not be apparent at the time of the original proceeding. What of a spouse who loses his or her job because of health or other problems attributable to the roles adopted in marriage? If the support claim was dismissed at trial based on lack of need, it seems harsh to hold that such spouse is forever disentitled to support. Clearly, in child-support cases, a dependant can move in and out of entitlement to support. There is nothing in the wording of the Divorce Act that would force a different conclusion for spousal support.

As well, Osborne J.A. did not address the issue of whether it matters why support was refused. If entitlement to support depends on a payer’s inability to pay, should a dependant who has suffered economic disadvantage arising out of the roles adopted in marriage be forever disentitled to support because a payer was unable to pay at the time of proceedings?

[21] Sometimes a plain reading of the statute leads one to see its plain purpose. That is not so here. The answer to the question I posed is (3).

[22] But I do not think it can be right, on facts such as those we have before us, to allow to remain a judgment which may defeat a just claim founded on a "change of circumstances".

[23] Although, when I was at the bar, I not infrequently applied for orders for nominal maintenance under the Act of 1967-68, I agree with Professor McLeod that the practice is cumbersome. Indeed, it may even be argued that a nominal order is not a "support order".

[24] Thus, orders should be drawn in such a way as not to preclude a subsequent application.

[25] As this matter was before the learned judge on the respondent's application, I think the proper order here was, "This Court orders that the motion of the defendant for an order that the plaintiff's claim for support be dismissed is refused."

[26] Had the matter been before the learned trial judge on an application by the appellant, an appropriate order would have been, "The plaintiff's claim for spousal support is dismissed with liberty to apply upon a change of circumstances."

[27] Such orders will leave the claim for support still open.

[28] However, such orders do not mean that a fresh application for support can be brought on immediately. Whatever else may be said, I am satisfied that an order in one or other of the terms I propose will be taken to mean that on the facts as they existed before the learned judge, it would not have been reasonable at that time to make an order requiring the payment of support.

[29] The appeal is allowed accordingly.

[30] As to the question of costs, my tentative view is that there should be no order for costs. If either party is dissatisfied with that conclusion, he or she may make a submission in writing and the other party may reply. These submissions should be in our hands within three weeks.

“THE HONOURABLE MADAM JUSTICE SOUTHIN”

I AGREE:

“THE HONOURABLE CHIEF JUSTICE FINCH”

I AGREE:

“THE HONOURABLE MR. JUSTICE HOLLINRAKE”

COURT OF APPEAL FOR BRITISH COLUMBIA