CAG v SG, 2012 ABQB 529

Court of Queen ’ s Bench of Alberta Citation: CAG v SG, 2012 ABQB 529 Date: 20120921 Docket: 4801 114904 Registry: Calgary Between: CAG also known as CAR Plaintiff - and - SG Defendant Editorial Notice: On behalf of the Government of Alberta identifying information has been removed from this unofficial electronic version of the judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice C. M. Jones _______________________________________________________

[ 1 ] This matter was brought before me on June 5, 2012.

The Applicant, SG ("SG"), a resident of British Columbia, seeks: 1. adjustment to his ongoing child support obligations in accordance with the provisions of the Federal Child Support Guidelines; 2. reduction in or termination of his spousal support obligations; 3. reduction in or termination of his child support arrears; 4. reduction in or termination of his spousal support arrears; and 5. cancellation of maintenance enforcement fees and penalties. [ 2 ] SG asserts that his ability to work has been compromised by deterioration in his physical and emotional condition since a car accident in 1999. [ 3 ] The Respondent, CG, also known as CR ("CR"), a resident of Alberta, opposes his application.

Her opposition stems from (

i) her belief that SG overstates the extent to which his medical challenges compromise his ability to work and (ii) her belief that prior Orders of this Court which denied extinguishment of arrears have rendered that issue res judicata . [ 4 ] The Director of Maintenance Enforcement for Alberta (“Director”) and the British Columbia Family Maintenance Enforcement Program (“BCFMEP”) agree that, as of May 24, 2012, SG’s total arrears owing, inclusive of fees owing to the BCFMEP, amounted to $176,469.92.

Neither the Director (as confirmed in a letter to this Court dated September 20, 2012) nor BCFMEP (as confirmed in a letter to SG dated September 13, 2012) claims to be able to break down total arrears owed by SG between child support and spousal support. [ 5 ] For reasons discussed in detail below, I resolve of this matter as follows: 1. SG's ongoing

section 3 child support obligations, commencing September 1, 2012, shall be based on his line 150 income, reported on his annual T1 Income Tax and Benefit Return and as verified by his Notice of Assessment; 2. At the present time, I am not prepared to impute additional income to SG; 3. Payment of SG's child support arrears accrued to September 1, 2012 is stayed indefinitely, subject to leave hereby granted to SG and to CR to make application before this Court for variation of this direction, based on a further change in SG's circumstances which either party may allege has occurred; 4.

SG's ongoing spousal support obligations shall, from and after the date of this decision, be terminated; 5. Earlier orders of this Court regarding the payment of spousal support which have led to the accumulation of spousal support

5. Earlier orders of this Court regarding the payment of spousal support which have led to the accumulation of spousal support arrears are rescinded with the result that SG's spousal support arrears accrued to the date of this decision shall be extinguished; 6. SG's maintenance and enforcement fees and penalties are not cancelled. I. Background (

a) Personal Circumstances [ 6 ] SG and CR: (

a) were married in Calgary on August 28, 1999; (

b) separated on October 2, 2000; (

c) reconciled briefly; (

d) finally separated on September 5, 2001; (

e) divorced on February 27, 2006; and (

f) have two children, L, age 12 and A, age 11. SG is 42 years old. CR is 39 years old. [ 7 ] In 1999, SG sustained injuries in a car accident (the "Accident"). Despite early indications that he was expected to make a substantial, if not full recovery, medical evidence suggests that his condition has in fact deteriorated. [ 8 ] At the time of the Accident, SG was employed with First Calgary Savings.

At para. 5 of her Affidavit dated May 25, 2012 (“CR's May 25th Affidavit”), CR claims that SG had attended post-secondary educational institutions and completed a marketing degree. [ 9 ] The parties relocated to British Columbia in the fall of 2000. A month after relocating to British Columbia, CR returned to Alberta, allegedly due to SG's abusive behavior. On October 16, 2000, Mr. Justice W. P. Sullivan of this Court issued an Order ("Sullivan Order") which addressed custody, access, child support, spousal support and mobility issues. [ 10 ] The parties' second son, A, was born in April of 2001.

CR's May 25th Affidavit describes a deteriorating relationship. In September of 2001, CR returned to Calgary with the parties' two children. (

b) Proceedings before this Court [ 11 ] The parties have appeared before this Court on several occasions. I will briefly address most, but not all, of their applications.

[ 11 ] The parties have appeared before this Court on several occasions. I will briefly address most, but not all, of their applications. [ 12 ] CR applied for and obtained an Order of this Court which was granted by Madame Justice Romaine on September 19, 2001 ("Romaine Order"). The Romaine Order dealt with custody, access, SG's telephone access to the children and restrictions on SG's attendance at CR's parents' place of residence. [ 13 ] SG countered with an application of his own before this Court filed on October 5, 2001.

At para. 29 of the CR May 25th Affidavit, CR notes that SG made an application before Madame Justice C.L. Kenny on October 11, 2001 for an Order declaring British Columbia to be the appropriate forum for, and governing law relating to, matters involving custody and access. Alternatively, he sought interim custody of the children pending a full hearing. [ 14 ] Justice Kenny declared that this Court would exercise jurisdiction in matters relating to custody, access, spousal support and child support.

She affirmed the Sullivan and Romaine Orders and awarded costs against SG. [ 15 ] CR pursued a divorce, obtaining an Order from Mr. Justice E. A. Hutchinson on March 11, 2003, severing corollary relief from the divorce judgment. [ 16 ] SG did not pay child support or spousal support as ordered. He has made two applications to have his support obligations addressed. On July 2, 2003, he made an application before Madame Justice Rawlins. His application for a reduction in his arrears of child support and spousal support was dismissed.

He was granted a conditional stay in the enforcement of his outstanding arrears and relief from further accumulation of interest, provided he discharged his arrears at the rate of $200.00 per month. His child support obligations were increased to reflect the birth of the parties' second child ("Rawlins Order"). [ 17 ] He made a second application before Mr. Justice Watson of this Court (as he then was) on July 20, 2004. His application for a reduction in his child support and spousal support arrears was dismissed. Child and spousal support directions made by Madame Justice Rawlins remained in effect.

SG was directed to discharge all outstanding awards of costs against him before making any further applications before this Court ("Watson Order"). [ 18 ] SG made subsequent applications for relief in connection with his arrears. Those applications have effectively been adjourned, pending discharge by SG of various obligations he has been ordered to fulfill. On November 3, 2011, SG was directed by Mr. Justice Lutz to comply with a Notice to Reply to Written Interrogatories.

In particular, CR sought information pertaining to any settlement arising in connection with the Accident, specifically requesting a copy of Mr. SG's file from his personal injury lawyer except for those documents that Mr. SG claimed are subject to solicitor/client privilege. With respect to those documents allegedly subject to solicitor/client privilege, CR sought a list of all those documents and detail as to why the documents are subject to solicitor/client privilege. SG has, in response to my direction, provided this Court with those documents.

I have reviewed them and commented upon them below. [ 19 ] On February 28, 2012, Madame Justice Nation directed that the matter heard before me be set down for a domestic special application. II. Medical Circumstances (

a) CR's Medical and other Circumstances [ 20 ] The Brief provided by CR (“CR's Brief”) details CR's health and financial challenges at para. 60 through to and including para. 66. She has received very little financial support from SG. She has been required to work at low paying jobs. Problems with her vision have forced her to live on social assistance. At the time the CR's Brief was prepared she was awaiting a cornea transplant. CR has depended heavily on her parents for financial support. She asserts that SG has never voluntarily made any support payment. At para. 32 of the CR's Brief she states as follows:

The Defendant did not make one voluntary payment of support. What little money I received was by way of garnishee by Maintenance Enforcement. (

b) SG's Medical Circumstances [ 21 ] SG's assertions regarding his medical condition are the foundation for the relief he seeks. He claims to be disabled and unable to work. CR asserts that SG is able to work. (

i) CR's Position [ 22 ] Counsel for CR pointed to various communications which suggested that SG had suffered relatively minor injury from which he was likely to recover. CR would have me draw the inference that SG overstates the severity of his medical condition. She would have me dismiss his application for any relief in respect of the reduction or cancellation of arrears, spousal maintenance and child support obligations. [ 23 ] Counsel for CR pointed in her brief to the following communications: 1. Report of Dr.

Lavanchy dated March 1, 2001 Excerpts offered from this report suggest relatively minor injuries stemming from the Accident. Dr. Lavanchy's "prognosis" was that SG would not be left with permanent disability and that he was not disabled. 2. Report of Dr. Koss dated September 10, 2001 Dr. Koss indicated in his report that "I hope we can find treatment that will allow him to return to work." 3. Letter of Dr. Narang dated May 11, 2001 Dr.

Narang's offered the following prognosis: In my opinion with time and treatment his condition should improve gradually and he should be able to gain full recovery in two to three years' time. 4. Report of Dr. Fairbanks dated March 20, 2000 Dr. Fairbank indicated that SG suffered from a sprained neck. His report indicated that full recovery might take up to six months. He further indicated that SG might be able to return to work on a graduated basis within six weeks. 5. Report of Dr. Apel dated August 15, 2002 Dr. Apel concluded that:

Mr. [SG's] prognosis for complete symptoms resolution is guarded based on the severity of symptoms and their excessive chronicity. It would be expected, nevertheless, that some improvement of symptoms severity and their constant nature can be achieved with management options suggested above allowing [Mr. SG] to return to at least some vocational duties. 6.

Inter office memorandum alleged by counsel for CR to have been prepared by SG's counsel dated February 14, 2003 Though not a report of a medical practitioner and though it is not clear who is the preparer of this report, that preparer appears to come to the conclusion that medical evidence amassed to the date of this memorandum indicated that SG was not, as of that date, disabled. 7. Ergonomic Assessment Report dated February 8, 2000 This report appears to have been completed by a disability management consultant employed with Clarica.

It indicates that he will be more comfortable and that his existing back and neck problems are less likely to be aggravated if certain recommendations regarding his workstation are implemented. 8. Note from Dr. Narang dated January 25, 2000 The context of this "note" is unclear. It appears to have been written on a prescription form. It indicates that SG is able to return to full time work effective February 1, 2000. 9. Letter from SG's employer (First Calgary) dated March 9, 2000 This letter states that: …the medical information provided does not support total disability…. 10.

Letter from SG's counsel to Macleod Dixon LLP dated March 19, 2003 Mr. SG's counsel appears to assert that SG has incurred a 5% reduction in future income earning capacity. 11. Letter from SG's counsel to SG dated March 6, 2003 This letter comments on high and low ends of the spectrum for awards without specifically commenting on SG's condition. [ 24 ] There is some other related correspondence offered in support of the inference that SG's condition was not expected to be permanently debilitating. That correspondence is a decade old. CR asserts at para. 52(

l) of the CR Brief that there was very little damage to SG's vehicle. The inference she would have this Court draw is that, consistent with early medical reports, physical evidence relating to the Accident supports the assertion that the Accident was minor. I note, however, the comments of Dr. Apel at page 3 of the report dated August 15, 2002 above. There, at the end of the second paragraph under the heading "Accident Reconstruction", Dr. Apel notes as follows:

Structural damage to Mr. [SG's] vehicle resulted in a broken back of the driver's seat with [Mr. SG] falling backward into a supine position. Incidentally, the structural vehicular damage was of total destruction, later being non-drivable. (ii) SG's Position [ 25 ] SG asserts that he is disabled and cannot work. He swore an Affidavit which was filed April 7, 2011 ("SG's April 7th Affidavit"). He offers the following in support of those assertions. 1. Exhibit "N" to SG's April 7th Affidavit [ 26 ] This document is entitled "Short Term Disability Attending Physician's Statement".

It is dated May 3, 2004 (postdating any of the communications provided by CR) and was prepared by Dr. Michael Koss. It indicates that: (

I) SG's physical impairment is "Class 4 (marked limitation - capable of minimal activity)". He is capable of standing, sitting for 30 minutes and walking for 10 minutes. (II) SG's psychiatric impairment is "Class 3 (able to engage in only limited stress situations and limited interpersonal relationships - moderate limitation). Dr. Koss goes on to say that SG has "poor coping skills, poor concentration and poor decision making". (III) SG's prognosis is that SG "…is unable to work now". 2. Exhibit "O" to SG's April 7th Affidavit [ 27 ] This document is entitled "Persons with Disabilities Designation Application".

It was submitted to the relevant British Columbia authority and is dated July 4, 2005 (postdating any of the communications provided by CR). On July 8, 2005, Dr. Michael Koss completed portions of this application and noted as follows: (

I) Under the heading "Health History", Dr. Koss notes as follows: The chronic pain syndrome affects his ability to concentrate, focus, think clearly. CT scan of spine shows degenerative disk disease. (II) In response to the question "Is the impairment likely to continue for two years or more from today?", Dr. Koss notes: His condition is permanent. It will likely deteriorate over time. There are no further investigations, treatments or remedies available. (III) In response to the question "Are there any significant deficits with cognitive and emotional function?", Dr.

Koss notes: Due to chronic pain syndrome has poor concentration, poor memory, poor organizing, depression at times, poor attention.

(IV) Under the heading "Living Environment", Dr. Koss notes: Has to live with parents to survive. (

V) In response to the question "What are the applicant's mental or physical impairments that impact his/her ability to manage Daily Living activities?" Dr. Koss notes: Chronic severe back pain…chronic pain syndrome (VI) In further response to questions relating to mental or physical impairment, Dr. Koss notes: Due to chronic pain syndrome his organizational skills, attention/concentration, memory are affected. Depression also occurs which leads to loss of interest at times. (VII) Under the heading "Additional Information", Dr.

Koss notes: His back pain & chronic pain syndrome lead to inability to sit, stand, walk for prolonged periods and lift/carry. The chronic pain interferes with his mental functioning…not concentrate, remember, think clearly. It can fluctuate but most days are bad. 3. Exhibit "P" to SG's April 7th Affidavit [ 28 ] This exhibit consists of a letter dated September 28, 2005 from the British Columbia Ministry of Employment and Income Assistance. This letter confirmed SG's eligibility for the Persons with Disabilities designation. 4.

Exhibit "Q" to SG's April 7th Affidavit [ 29 ] This exhibit consists of a letter dated March 14, 2011 from Dr. Koss "to whom it may concern". Dr. Koss mentions that he has been SG's family physician since 2001. It makes the following observations concerning SG's condition: The consensus from various doctors is that he has developed degenerative disk disease and facet joint arthritis related to the motor vehicle accident. He also suffers from chronic regional myofascial pain syndrome in the pelvic and lumbar spine area; this basically means that the soft tissues around his spine and pelvis are chronically sore.

He has also developed enthesopathy of the T11-L1 area. This implies that there is pain where the muscles and ligaments attach to the

bone of the spine. [SG's] symptoms include daily pain in his back and pelvic area. This pain is worse with bending, worse with increased activity and worse with prolonged sitting. He needs to be able to change his position approximately every five minutes. He often needs to lie down during the day. In approximately eleven years that I have known him, his complaints have been very consistent and in keeping with the diagnosis previously mentioned. Over the years, multiple treatments have been tried with physiotherapy; none of these led to any useful improvement. He has also been tried on various medications.

Currently, he is on Naprosyn, an anti-inflamatory, and Flexeril, a muscle relaxant. These do reduce the pain when it becomes severe, however, the medicines do not lead to enough improvement that would allow him to work or carry on normal day-to-day activities. [Mr. SG] remains unemployable due to this chronic daily back pain. I do not believe there is any chance that he will recover or have any meaningful improvement in his back pain. He remains limited in his ability to lift, bend or carry. He cannot stand, sit or walk for prolonged periods. He often needs to lie down during the day.

He has difficulty managing his routine daily activities and any chores around the house due to his back pain. 5. Report of Dr. Koss dated September 10, 2001 [ 30 ] At para. 52 of the CR Brief, the following comment from Dr. Koss report is noted "I hope we can find treatment that will allow him to return to work." This quote is offered by CR in support of the assertion that in 2001, SG's family physician had positive expectations regarding the prospects for SG's recovery from the Accident. However, Dr.

Koss' report also notes the following: X-ray lumber spine shows mild to moderate degenerative disc disease that has developed since the MVA in Nov 99. He has constant pain in low back worse with movement or prolonged sitting/Depression began in 2000. (

c) Conclusions regarding SG's medical circumstances [ 31 ] Dr. Koss has been actively involved in addressing SG's health issues arising from the Accident for over a decade. His letter of March 14, 2011 is by far the most recent expression of medical opinion available. He notes that other medical doctors have considered SG's situation and, taking into account the view of those other practitioners, he concludes that SG has developed degenerative disk disease and facet joint arthritis related to the Accident. [ 32 ] CR was not, during argument, able to offer any plausible rebuttal to the assertions of Dr. Koss.

Accordingly, I accept that, based on the most recent medical evidence, SG is permanently disabled and unable to engage in any meaningful employment. III. Implications of SG's medical circumstances for ongoing child support obligations [ 33 ] SG's

section 3 child support obligations shall be based on the applicable table (currently, the table applicable to a resident of British Columbia) of the Federal Child Support Guidelines, as amended from time to time. SG shall file a T1 Income Tax and Benefit Return each year and shall provide CR with his notice of assessment for the preceding taxation year immediately upon receipt. In light of CR's opposition to SG's request to base child support payments on his line 150 income I have considered if I should impute income to SG for child support purposes.

Based on SG’s current circumstances, no income will be imputed. IV. Implications of SG's medical circumstances for ongoing spousal support [ 34 ] The parties were married in August of 1999 and separated approximately fourteen months later. There appears to have been a

brief period of reconciliation; however, the relationship seems to have finally ended in September of 2001. [ 35 ]

Section 15.2(4) of the Divorce Act R.S.C. 1985, c. 3 (2nd Supp) provides that: 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 (

c) any order, agreement or arrangement relating to support of either spouse. [ 36 ]

Section 15.2(6) provides that: 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; (

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. [ 37 ] This was a short marriage, although neither CR nor SG entered the marriage with an expectation that they would be sharing a life together lasting less than two years. CR's May 25th Affidavit dispels any notion that she became financially dependent upon SG during their brief period of co-habitation. [ 38 ] The Accident took place approximately four months after the parties were married. SG received short term disability between December of 1999 and May of 2000.

He returned to work with First Calgary Savings for May and June of 2000 but in September of that year the parties moved to British Columbia. [ 39 ] SG did not obtain employment in British Columbia. Apparently, he stayed home and traded stock. Conversely, CR did obtain employment, but then returned to Calgary after one month. CR remained in Calgary long enough to obtain the Sullivan Order granting her $327.00 per month in child support and $1,000.00 per month in spousal support. [ 40 ] The parties reconciled shortly after the Sullivan Order and CR moved back to British Columbia.

At the time, CR was pregnant with their second child. [ 41 ] CR indicates at para. 13 of the CR May 25th Affidavit that she obtained employment upon resuming cohabitation with SG.

She was employed at the Garden Bakery until January of 2001, at which time she was laid off. She states at para. 13 that: It was while I was working at the Garden Bakery that the Defendant made it very clear what my financial responsibilities were to the family. I was responsible to pay our car payments ($286.00 per month), the vehicle insurance ($103.00 per month), gasoline, repairs to the vehicle, groceries and all expenses related to L. The Defendant made it very clear that I, and I alone, was responsible for these expenses.

He would not pay them. [ 42 ] At para. 20 of the CR May 25th Affidavit, CR notes that: Shortly (after moving to Kelowna on July 1, 2001) I commenced part-time employment with "Creations by Mum and Me". The Defendant, however, kept complaining that I was not bringing in sufficient money to support the family and insisted that I seek another part-time job.

I was ultimately successful in obtaining another part-time job as a cashier at Mac's on August 5, 2001…The Defendant, however, continued to complain that I was not earning enough money to support the family… The Defendant refused to contribute to the household expenses.

I continued to pay for not only the car expenses and the groceries but took over paying the rent, utilities, and telephone expenses. [emphasis added] As noted above, the parties finally separated in September of 2001. [ 43 ] The Sullivan Order provided for interim spousal support of $1,000.00 per month and interim child support of $327.00 per month, based on income of $38,000.00 attributed to SG. That amount was asserted by CR to have been reflective of his income with First Calgary Savings before the Accident. [ 44 ] I draw the following conclusions from the above facts: 1.

It would have become clear to CR shortly after the parties moved to British Columbia, less than one year after the parties were married, that SG would be financially dependent upon her and that she could not rely on him financially; 2. The Sullivan Order, which appears to have established expectations regarding spousal and child support, was granted early in SG's recovery process; 3. As described above, that recovery process did not evolve satisfactorily; and 4. The Rawlins and Watson Orders, issued in 2003 and 2004, were made at a time when there may have continued to be some expectation of improvement.

Instead, as described above by Dr. Koss, SG's longtime family physician, SG continued to deteriorate. [ 45 ] The Sullivan, Rawlins and Watson Orders reflected the best assessment possible of the facts as they were known at the time. [ 46 ] Considering CR's "entitlement" to ongoing spousal support from this point forward, I note the following: 1. It is apparent that CR did not suffer a loss of earning capacity as a result of the role she assumed during the short relationship.

Unfortunately, she was expected to assume not only the role of care giver to their infant children, but also the responsibility of supporting the family. In the face of SG's unwillingness/inability to work, she maintained her income earning capacity. 2. CR was disadvantaged by the marriage, but, in my view, not in the sense that she gave up gainful employment in order to discharge responsibilities as a caregiver. On the contrary, she was, by her own admission, required to maintain gainful employment and

for the most part she did so. 3. CR was, however, economically disadvantaged in the sense that her employment efforts while the parties were together conferredan economic benefit on SG without adequate compensation. On that basis, she may be said to have some compensatory claim, though fora limited period of time. 4. CR appears, at first glance, to have a claim for support based on need. However, her need can hardly be measured by a significantdecline in her post-marriage standard of living in comparison with the standard of living she enjoyed during the marriage.

A claim fornon-compensatory support in this situation can hardly be based on economic interdependency that developed during this short termmarriage. CR's experiences within the first eighteen months of marriage suggest that there could have been no significant elements ofreliance and expectation. 5. SG's income has hovered around $10,000.00 for each of 2008 through 2010. It consists almost entirely of social assistance. [47] The unfortunate reality of CR's situation is that:

a) The marriage, though short, produced two children which CR has been forced to support; and

b) SG appears to have little or no income earning capacity and appears unlikely to ever acquire any such capacity. [48] Given that the parties were together for less than two years, that CR was forced to maintain, rather than give up, workcommitments and that SG's income falls well below the $20,000.00 threshold which would normally be considered the lower limit for anorder of continuing spousal support under the Spousal Support Advisory Guidelines, I must terminate SG's ongoing spousal supportobligations. VI.

SG's request for cancellation or termination of his child support arrears and his spousal support arrears [49] Both parties refer to the decision of the Alberta Court of Appeal in Haisman v. Haisman (1994), 1994 ABCA 249 ,22 Alta. L.R. (3d) 56, 116 D.L.R. (4th) 671 [“Haisman”]. This case involved a request by a father to extinguish child support arrears. TheCourt considered the application of section 17(1) of the Divorce Act, which provides that: A court of competent jurisdiction may make any order varying, rescinding or suspending, prospectively or retroactively, (

a) A support order or any provision thereof on application by either or both former spouses [50] Section 17(4) provides that: Before the court makes a variation order in respect of a support order, the court shall satisfy itself that there has been a change in thecondition, means, needs or other circumstances of either former spouse or of any child of the marriage for whom support is or wassought occurring since the making of the support or the last variation order made in respect of that order, as the case may be, and, inmaking the variation order, the court shall take into consideration that change. [51] The Court noted at para. 12 that:

It is important to note that unless there has been a change in circumstances, a court cannot make a variation order. This is the effect of subs. (4) of s. 17. [ 52 ] The Court further noted at para. 32 that: In short, in the absence of special circumstances, a judge should not vary or rescind an order for the payment of child support so as to reduce or eliminate arrears unless he or she is satisfied on a balance of probabilities that the former spouse or judgment debtor cannot then pay, and will not at any time in the future be able to pay, the arrears. [ 53 ] Based on the medical report of Dr.

Koss, I am satisfied on the balance of probabilities that SG cannot pay his child support arrears and will not, at any time in the future, be able to pay them. [ 54 ] Notwithstanding the decision of the Court of Appeal of Alberta in Haisman , counsel for CR and counsel for Alberta Justice both assert that this Court has no authority to extinguish arrears encompassed by the Rawlins and Watson Orders. Both counsel assert that extinguishment of arrears accrued for periods prior to July 20, 2004, the date of the Watson Order, the most recent of these two these orders, is res judicata .

Both counsel cite the decision of this Court in Bullock v. Bullock , 2005 ABQB 844 , in support of that position. That case involved an application before this Court for an order confirming a provisional order granted by the Supreme Court of British Columbia. [ 55 ] Lewis J. of this Court had, on January 28, 1998, addressed an earlier order of Romilly J. of the Supreme Court of British Columbia. In his order, Justice Lewis confirmed and varied the order of Romilly J. [ 56 ] The petitioner subsequently applied in British Columbia, for an order, inter alia , eliminating all arrears of child support.

The Court in British Columbia granted the petitioner partial relief. The petitioner then sought confirmation of that order in Alberta. The respondent objected to confirmation on a number of grounds, arguing, inter alia , that any application pertaining to arrears accrued prior to January 28, 1998 was res judicata because neither the Romilly decision nor the Lewis decision was appealed. Therefore, the respondent argued, any amounts accrued prior to January 28, 1998 could not be cancelled. [ 57 ] Gallant J. of this Court considered this argument.

He stated at para. 32 as follows: As a preliminary point, I agree that the issue of arrears accrued prior to 28 January 1998 is res judicata . Any arrears accrued prior to 28 January 1998 cannot be cancelled. [ 58 ] The doctrine of res judicata , simply stated, is a rule that a final judgment on the merits by a court having jurisdiction is conclusive between the parties to a suit as to all matters that were litigated or that could have been litigated in that suit. Obviously, it requires for its application a final judgment. [ 59 ] I note, however, that

Section 17 of the Divorce Act provides that a court may retroactively vary or rescind a support order. A support order includes a child support order and a spousal support order. Presumably, a prior support order could include an order which confirms a payor's obligation to discharge accumulated arrears. [ 60 ] Haisman clearly says that the Court may, in appropriate circumstances, rescind an order for the payment of child support so as to eliminate arrears. It does not expressly say (nor does

section 17 of the Divorce Act imply) that the Court may not relieve a payor of an obligation to discharge arrears when that Court has refused to do so earlier. Haisman did not involve a review of a previous order that had considered and refused to extinguish arrears. Rather, it considered an earlier order, non-compliance with which had led to the accumulation of arrears.

[61] Accordingly, while Haisman clearly stands for the proposition that arrears which have accumulated pursuant to an order canbe extinguished in appropriate circumstances (by rescinding the order pursuant to which the arrears accumulated), does it also stand forthe proposition that the doctrine of res judicata can have no application to orders of any kind granted under

section 17? Restated, inenacting

section 17, may Parliament be presumed to have intended to make inapplicable one of the conditions precedent for theapplication of the doctrine of res judicata? [62] I believe the answer to that question may be found at para. 48 of the Court of Appeal's decision in Haisman. There, indiscussing the decision of Mr. Justice Marshall of the Supreme Court of The Northwest Territories in Barnes v. Barnes, (NWT SC), [1986] N.W.T.R. 376 (S.C.), the Court of Appeal stated as follows: I do not agree with Mr. Justice Marshall that arrears of maintenance constitute a simple or an ordinary debt.

A court cannot relieve adebtor of responsibility for an ordinary debt, as it can for arrears of maintenance under s. 17 of the Divorce Act. For the same reasonsuch arrears cannot be said to be a final debt, as suggested by the chambers judge at p. 168. [Emphasis added.] [63] The Court of Appeal was referring to the trial judge's decision in Haisman v. Haisman (1993), (AB KB), 7Alta.

L.R. (3d) 157, 137 A.R. 245, where she stated at para. 25 that: I regard accrued arrears to be legally enforceable, final debts. [64] Accordingly, I conclude that the doctrine of res judicata does not apply in this situation to prohibit SG from seeking to havehis child support arrears extinguished. [65] The applicability of the doctrine of res judicata to the variation of orders issued under the Divorce Act was noted by Kent J. ofthis Court in McDonald v. McDonald (1997), (AB KB), 154 D.L.R. (4th) 524, 213 A.R. 213 [“McDonald”].

Thatcase involved an application to vary a previous order setting out access and child maintenance obligations based on constitutional issuesthat the applicant failed to raise at the previous hearing. [66] With respect to the doctrine of res judicata, Kent J. noted at paras. 5 and 6: As indicated above, the mother argues that the matter is res judicata. The traditional statement of the law on the subject of res judicatacan be found in Henderson v. Henderson (1843), 67 E.R. 313 (Eng.

V.-C.) at 319: I believe I state the rule of the Court correctly when I say that, where a given matter becomes the subject of litigation in, and ofadjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, andwill not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter whichmight have been brought forward as part of the subject in contest, but which was not brought forward only because they have, fromnegligence, inadvertence or even accident, omitted part of their case.

The plea of res judicata applies, except in special cases, not only topoints upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point whichproperly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at thetime. This principle has been applied in matrimonial causes, albeit with respect to spousal support Hill v. Hill (1966), (BCCA), 56 W.W.R. 260 (B.C.C.A.), Horsfall v. Horsfall (1988), (MB KB), 14 R.F.L. (3d) 393 (Man. Q.B.)).

It is trite tosay that issues involving the children in a divorce may always be reopened if there is a change in circumstances of the children, one orboth of the parents or a combination of these factors. The constitutionality of the provisions of the Divorce Act dealing with thejurisdiction of the court to award maintenance for children over 18 does not fall into any of those categories. The argument was availablein 1993 at the time of the trial and ought to have been raised then.

To hold otherwise would be to invite the very mischief which theprinciple of res judicata is intended to avoid: litigation which never ends and hardship to a person who is "twice vexed for the samelitigation". [Emphasis added.] [67] Kent J.'s analysis is a useful starting place as it sets out two key aspects of the applicability of res judicata in the family law

context. First, res judicata is crucial to the administration of justice in that it prevents endless, vexatious litigation. Second,notwithstanding concerns for the administration of justice, the Divorce Act has been designed to grant courts the flexibility to revisitpreviously decided issues. Indeed, the Divorce Act strives to achieve a balance between concerns for the proper administration of justiceand the flexibility required for courts to achieve equitable results that are fair to the parties and in the best interests of the children. Itdoes so under

section 17, which allows courts to reopen matters only where there has been a change in circumstances of the children or ofone or both of the parents. [68] While Kent J. agreed that the application before her was res judicata, she did so on the basis that nothing prevented theapplicant from making his constitutional arguments at the first hearing. The issue of whether there had been a change in circumstanceswas not raised. [69] The broad jurisdiction of courts to make changes to previous orders under

section 17 of the Divorce Act was commented on byJustice Grotsky in Gessner v. Gessner (1990), (SK KB), 82 Sask.R. 223, 24 R.F.L. (3d) 308 ["Gessner"] at paras. 18and 19: Section 17(1)(

a) of the Divorce Act provides that a court of competent jurisdiction (this court) may make an order, and depending in eachcase on the nature of the application, varying, or rescinding, or suspending, prospectively or retroactively, “a support order, or anyprovision thereof, on [an] application by either or both former spouses”.

In my view, subject always to the court's jurisdiction to controlits own process and to deal with improper and/or unnecessary applications as may in any given circumstances be fit and appropriate,such applications may be made, heard, and determined, when, and as often as it is necessary and appropriate for the court so to do,having regard always for the factors to be considered and applied therefor as enunciated in ss. 17(4) of the Act, and, as well, havingregard for the various objectives of the Act, particularly applicable hereto, as, inter alia, enunciated in ss. 17(7) thereof.

The terms "condition", "means", "needs", "or other circumstances" of either former spouse, as these terms are employed in ss. 17(4) ofthe Act, provide an extremely broad range of relevant considerations which, in my view, and based upon the plethora of jurisprudenceand academic writings thereon, effectively vests in the court a virtually unfettered discretionary jurisdiction (a jurisdiction which mustalways be exercised judicially) if warranted on a consideration of the whole of the evidence, and, after due consideration and applicationof the relevant factors and objectives of the Act, to vary, or rescind, or suspend, if appropriate so to do, and particularly here as sought, asupport order. [70] While section 17(4) of the Act has been amended since Gessner, the amendments have not diminished the ability of courts tovary previous orders.

A change in circumstances is still required to qualify for a variation of child support under section 17(4) and ofspousal support under section 17(4.1). [71] However, the ability of courts to revisit the issue of arrears continues to be contentious. This was recently articulated byJustice N.J. Bateman of the Nova Scotia Court of Appeal, who noted at para. 30 of Nova Scotia (Director of Maintenance Enforcement)v.

Coolen, 2009 NSCA 22, 278 N.S.R. (2d) 57 ["Coolen"] that: there is conflicting case law across Canada on the power to vary arrears for which judgment has entered, as distinct from arrears whichhave accrued but not been calculated and adjudicated upon. [72] In Coolen, the Court of Appeal considered the ability of a court to vary arrears accumulated under two different orders.

Thearrears up to the first order were fixed at $30,016.00 and the arrears up to the second order were fixed at $13,691.16 for a total balance of$43,707.16. [73] In deciding that the previous orders could not be varied, Justice Bateman endorsed the reasons of Clendening J. of the NewBrunswick Court of Queen's Bench in Saulis v. Nicholas, 2007 NBQB 261, 322 N.B.R. (2d) 352 ["Saulis"]. At para. 16, Clendening J.noted: The Applicant on this Motion, Allan Saulis, is requesting this Court to overturn the Order made after a hearing on February 20, 2006.

Irecognize that support orders may be challenged retroactively, but that challenge does not apply after a final determination of arrears. The

order with regard to arrears said that the "arrears are confirmed". According to Black's Law Dictionary, the word confirm means: To make firm or certain; to give new assurance of truth or certainty; to put past doubt. Is this the same as making a judicial finding? "Finding" in the above-noted dictionary has as one of its meanings: The word commonly applies to the result reached by a judge . . . It is sometimes, however, as a matter of

interpretations, treated as aruling of law. [74] Even while denying that courts have the ability to vary arrears fixed under a previous order, Clendening J. acknowledged atpara. 18 that courts have a fairly expansive ability retroactively to vary orders: I recognize that support may be changed on a retroactive basis, under the appropriate circumstances, and consequently arrears may beadjusted, but that request should be made before a hearing under

section 123 of the Family Services Act where the person failed to satisfythe Court that the default in paying his support was because of his inability to pay. [75] As in McDonald, the issue of changed circumstances was not argued.

Accordingly, the applicability of Saulis, like McDonald,to the case at bar is limited. [76] Similarly, Coolen involved an appeal by Nova Scotia Maintenance Enforcement to reverse an order of the trial judgesuspending the respondent's obligation to repay arrears owing to the Department of Community Services incurred under the Nova ScotiaMaintenance Enforcement Act, S.N.S. 1994-95, c. 6 ["MEA"]. At para. 31, Justice Bateman held: Pursuant to s. 38(2) of the MEA once judgment for arrears is entered under that

section the debt may not be excused. However, thearrears here were fixed under the CRJ not the MEA. It bears noting, as well, that the arrears fixed in the CRJ accumulated under the1996 Interim Order which was superceded by the child support ordered in the CRJ. One would question a judge's power to vary,pursuant to s. 17(1)(

a) of the Divorce Act, a support order which is no longer in force. Logic would dictate that the only "order" subjectto variation under the Divorce Act is an existing order. As I have concluded that the judge did not vary Mr. Coolen's past obligation topay support, it is unnecessary to conclusively resolve this issue here. [Emphasis added.] [77] According to Coolen, a court's ability to vary arrears accrued under a maintenance enforcement order and confirmed in aprevious order is limited. In contrast, courts appear to have a greater ability to vary an order issued under the Divorce Act.

Again, itshould be noted that in Coolen, the trial judge found no material change in Mr. Coolen's circumstances. [78] However, the Court's decision in Coolen does not even settle the issue of a court's jurisdiction to vary arrears accrued under amaintenance enforcement order, let alone under an order issued pursuant to the Divorce Act. Conflicting decisions have confirmed thebroad discretion granted under a plain reading of

section 17 of the Divorce Act. [79] For example, in Weinstein v. British Columbia (Director of Maintenance Enforcement) (1997), (BC CA),92 B.C.A.C. 143, 38 B.C.L.R. (3d) 103 ["Weinstein"] , the British Columbia Court of Appeal considered its ability to cancel arrears ofmaintenance incurred under section 62(1.1) of the Family Relations Act, R.S.B.C. 1996, c. 128. The Director under that statutepreviously had filed a notice of attachment citing arrears in the amount of $37,384.00. The father's subsequent application to cancel thearrears under section 62(1.1) of the Family Relations Act was dismissed for want of jurisdiction. The father subsequently brought a newapplication under

section 17 of the Divorce Act. The chambers judge varied the maintenance order; the mother appealed. On appeal, theCourt reversed the chambers judge's findings, but reiterated the general approach to variation of an order under

section 17: It is settled law that a maintenance order can be varied under s. 17(4) of the Divorce Act only when a material change of circumstances isestablished: Willick v. Willick, (SCC), [1994] 3 S.C.R. 670 (S.C.C.).

[80] In Smith v. Smith, 2002 NSCA 78, 207 N.S.R. (2d) 5 ["Smith"], the Nova Scotia Court of Appeal varied a court order over 20years old that crystalized arrears to the date of the original order, in the amount of $12,240.00. Even though the Court cited no change incircumstances, at para. 19 it reduced the arrears to "the sum of $7,080.00 being arrears of maintenance for the 27 l/3 month period(rounded to 118 weeks) from February 24, 1976 to May 7, 1978 at the rate of $60.00 per week." [81] In contrast, the Court of Appeal for Ontario took a more restrictive approach in Ballentine v.

Ballentine (2003), (ON CA), 228 D.L.R. (4th) 570, 65 O.R. (3d) 481. In that decision, the appellant appealed a trial court decision that found an orderconfirming arrears effectively crystallizes the arrears as of that date. At trial (Ballentine v. Ballentine (2001), (ONSC), 22 R.F.L. (5th) 1, 109 A.C.W.S. (3d) 129), Backhouse J. concluded at para. 10: Mr. Ballentine has the onus of proving the factual conditions for rescinding or varying an order. He has failed to meet that onus. Theorder of Justice Cullity, which was confirmed on appeal, crystallizes the arrears as of July 25, 1999 at $187,491.26.

This issue has beendealt with finally, and as a result, Mr. Ballentine has no basis on which to request that these arrears be expunged. Justice Cullity foundthat Mr. Ballentine had not provided evidence to establish that there had been a necessary material change of circumstances pursuant tosection 17 of the Divorce Act. Mr. Ballentine has not provided any further or different evidence of a material change in his circumstancessince August of 1999. [Emphasis added.] [82] It is clear that the trial Court's finding was inextricably tied to Mr. Ballentine's failure to show a material change in hiscircumstances.

While it would be imprudent to suggest that this holding explicitly stands for the proposition that a change incircumstances is sufficient to upend any previous order issued under the Divorce Act, it is not reckless to suggest that that inference maybe drawn. [83] While Justice Backhouse' s decision was upheld on appeal, the Court of Appeal's decision has been criticized. For example, inSaulis, Clendening J. refers to this criticism at para. 9: In Ballentine v.

Ballentine (2003), (ON CA), 228 D.L.R. (4th) 570, 65 O.R. (3d) 481, the Court of Appeal acceptedthat an order dismissing an application to cancel arrears is res judicata. Professor James G. MacLeod, wrote an annotation to this case inwhich he questioned the Court's willingness to accept such a situation as res judicata. He stated at page 4 of the decision: Finally, at a substantive level, the court's willingness to accept that an order dismissing an application to cancel arrears as res judicata ofthose arrears should be approached with some caution.

The role of res judicata in support cases is unsettled, given the disagreementbetween the Manitoba Court of Appeal and the British Columbia Court of Appeal in Gill-Sager v. Sager, 2003 BCCA 46 , 2003CarswellBC 104, 36 R.F.L. (5th) 369 (B.C.C.A.) and McCowan v. McCowan, (ON CA), 14 R.F.L. (4th) 325, 1995CarswellOnt 435 (Ont. C.A.). That a court refuses to vary an order because of an applicant's failure to prove a material change at onetime should not mean that it cannot change the order in the future if circumstances change materially.

For example, a court may refuse tocancel arrears because a payor has no excuse for not paying the arrears when they arose and can afford to pay them at the time ofproceedings. However, a court may be inclined to reduce the arrears if the children later move in with the payor and enforcing the arrearswould undermine the payor's ability to care for the children or if the payee subsequently told the payor that he or she need not pay inreturn for other concessions and the payor acted upon that representation to his or her detriment.

At the very least the Court of Appealshould have addressed the basic issue. [84] In McCowan v. McCowan, (ON CA), 24 O.R. (3d) 707, 84 O.A.C. 125 [“McCowan”], Osbourne J.A. ofthe Ontario Court of Appeal considered a court's power to vary a consent order dismissing the wife's right to receive spousal support. Inlarge part, Osbourne J.A. based his decision on the law of contracts, citing the binding nature of consent orders enunciated in decisionssuch as Canadian Imperial Bank of Commerce v. Whites Lake Services Ltd. (1982), (NS SC), 32 C.P.C. 128, 56N.S.R. (2d) 236 (Co.

Ct.) and Re Kline, (NS CA), [1924] 1 D.L.R. 295, 56 N.S.R. 389 (S.C.). [85] Osbourne J.A. stated that under the old Divorce Act, R.S.C. 1970, c. D-8, courts were extremely reluctant to disturb consentorders entered into between the parties. At para. 26, Osbourne J.A. detailed the approach to variation of a consent order under the old Act, as articulated by Morden J.A. in Cotter v. Cotter (1986), (ON CA), 53 O.R. (2d) 449, 25 D.L.R. (4th) 221:

First, he [Morden J.A.] considered whether the court had jurisdiction to make an original order of spousal support under s. 11(1) of the 1970 Divorce Act . He concluded that once a spousal support claim had been dealt with on its merits and dismissed, the court had no jurisdiction on succeeding spousal support applications. Second, he dealt with the court's jurisdiction to vary (under s. 11(2) of the 1970 Divorce Act ) that part of the decree nisi that dismissed Mrs. Cotter's spousal support claim.

He concluded that s. 11(2) of the Act gave the court power to vary "an order made . . ." pursuant to s. 11(1) of the Act, and that an order dismissing a s. 11(1) spousal support claim was not a spousal support order made under s. 11(1), and thus was incapable of variation under s. 11(2). He distinguished the "making" of a spousal support order, that is, an order requiring a spouse to pay spousal support, and the refusal to make such an order in concluding that the court has jurisdiction to vary the former, but not the latter.

In summarizing his conclusion on the s. 11(2) variation issue, Morden J.A. said, at p. 460: Clearly a court should exercise great care before dismissing a claim for maintenance but, when it does so, my reading of s. 11(2) of the Divorce Act indicates that there is no basis for a future claim by a spouse for a "variation" of the dismissal. The policy of the "clean break", which has its legitimate place, will have been given effect. [ 86 ] At para. 29, Osbourne, J.A. noted: I see nothing in the language of ss. 15 and 17 of the Divorce Act that suggests that the reasoning in Cotter v.

Cotter , supra, is not applicable to the new Divorce Act . In the result, because Mrs. McCowan's claim for spousal support has been dismissed, the court does not have jurisdiction to make an original support order under s. 15(2) of the Divorce Act . In the particular circumstances of this case, however, I think that the court does have jurisdiction to entertain an application to vary under s. 17 of the Act. I reach this conclusion, not by distinguishing Cotter v.

Cotter , or the provisions of the old versus the new Divorce Act , but because of my view of the true character of the pension replacement payments which Mr. McCowan agreed to pay. [ 87 ] This decision was also criticized. In particular, Southin J.A. of the British Columbia Court of Appeal cited the "displeasure" in James McLeod's comment on McCowan , providing the following excerpt at para. 20 of Gill-Sager v.

Sager (" Sager "), 2003 BCCA 46 , 222 D.L.R. (4th) 595: 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. [ 88 ] Southin J.A. noted the confusion surrounding the ability of courts to vary previous orders at paras. 1 and 2 of the same decision: 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? 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.

[89] While ultimately Southin J.A. decided that the issue could only be resolved by the Supreme Court of Canada, she urged courtsto respond to the confusion by drafting clearer orders that explicitly permitted a spouse to reapply for support upon a change ofcircumstances. Southin J.A.'s advice has been followed in many cases since, including Sylvester v. Sylvester, 2004 BCSC 1145, 133A.C.W.S. (3d) 833, D.L.T. v. D.T.B., 2007 BCSC 210, 155 A.C.W.S. (3d) 365, and DeBruyn v.

DeBruyn, 2005 BCSC 1185, 141A.C.W.S. (3d) 783. [90] Upon close examination, the authorities are in reality not irreconcilable with one another or with the case at bar. If we returnto Kent J.'s decision in McDonald, the court's overwhelming concern should be with achieving the proper balance between theadministration of justice on one hand, and concerns for fairness between the parties and the best interests of the child on the other. TheDivorce Act achieves this in

section 17 by requiring a party to demonstrate a material change in circumstances to ground a claim forvariation of a previous order issued under the Act. [91] Of the cases in which courts held that applications for variation were barred as res judicata, the uniting factor is that the partyrequesting variation was unable to demonstrate a material change in circumstances. This was the case in McDonald, Saulis and Coolen. Itshould be noted that in Coolen the Court drew a distinction between an order under the MEA and one under the Divorce Act, finding atpara. 31 that

section 17 of the Divorce Act could not be used to vary an order under the MEA. While the Court of Appeal of Ontario tooka more restrictive approach in Ballentine, it did so on the basis that the appellant was unable to demonstrate a change in circumstances. [92] McCowan is slightly different. That case involved a consent order, which the Court determined should be treated differentlythan an original support order issued under section 15(2) of the Divorce Act. Perhaps this fact alone is sufficient to distinguish McCowanfrom the case at bar. However, I would suggest, with respect, that the Court in McCowan invested too much importance in principlesdrawn from the general law of contract.

Section 17 of the Divorce Act establishes a procedure for the occasional reconsideration of previous court orders. Unlike the law of contract, based above all else on the principles of clarity and certainty, the Divorce Act explicitlyacknowledges that the unexpected and uncertain qualities of life sometimes dictate a change in parties' obligations to one another.

Withrespect to McCowan, Parliament has designed a mechanism in the Divorce Act that accords courts the flexibility to do justice between theparties where appropriate; to bind parties to a final determination when there has been a material change in circumstances is not only toignore the will of legislature, but to perpetuate injustice. [93] Indeed, McCowan has been effectively overruled. At para. 51 of Tierney-Hynes v.

Hynes (2005), (ONCA), 200 O.A.C. 251, 256 D.L.R. (4th) 193, Lang J.A. held "(t)he changed wording of the current Act and changes to the principlesguiding spousal support lead me to the conclusion that Cotter and McCowan are no longer authoritative. Thus, the time has come to lookafresh at a court's ability to vary a dismissal of spousal support." [94] Later, at para. 53, Lang J.A. held that a court may revisit an earlier order dismissing spousal support: For three reasons, these provisions lead to the conclusion that a court does have jurisdiction to vary an earlier dismissal of spousalsupport.

First, a new provision in the current Act, s. 15.3, specifically contemplates an application for support made after an earlierdismissal of spousal support. Second, although the current Act distinguishes between child and spousal support, it does not distinguishbetween the two types of support when addressing variation applications.

Third, the structure and terms of the 1997 Act, particularly ss.15 and 17, differ in significant ways from the 1970 Act and in significant respects from the Revised 1985 Act. [95] While the Divorce Act currently lacks any provision explicitly addressing a court's ability to vary a previous order crystalizingarrears to a certain period in time, the structure of the Act and the wording of

section 17 support a similar

interpretation with regards tothe variation of arrears obligations. [96] The recent decision of Mr. Justice Graesser in Woito v. Lajoie, 2012 ABQB 103, casts some doubt upon my view of thenon-application of the doctrine of res judicata in this situation. That case involved an application by the husband to cancel arrears ofspousal support and to set ongoing support at nil. A decision of the Ontario Superior Court of Justice on April 1, 2009 had resulted inretroactive and ongoing spousal support. [97] Justice Graesser noted as follows at para. 44:

Mr. Woito cannot succeed in this court to vary or reduce the amount of retroactive support ordered by Pierce J. to the date of her decision[April 1, 2009]. To vary the retroactive award would essentially be an end run around the decision. His circumstances had not changedbetween the trial and the decision, as it appears that it was the decision itself that triggered Mr. Woito's subsequent problems.[Emphasis added.] [98] With respect, I believe that as with other cases cited thus far, the key issue influencing Justice Graesser was the applicant'sinability to demonstrate a material change in circumstances.

I would suggest that his Lordship was influenced by the fact the applicant, inthat case, was not in a situation where his medical condition was in a state of undetermined flux. In 2003 and 2004, SG had already beendiagnosed with a degenerative condition. From a policy perspective, to not entertain an application to extinguish arrears some eight yearslater when his medical condition appears to have permanently deteriorated to the point where he has no reasonable prospect of recoveryis to ignore a material change in circumstances. [99] Again, the key issue in the variation of support orders under

section 17 of the Divorce Act is whether there has been a materialchange in circumstances. If there has been a material change, a court has a great deal of discretion to amend a previous order. If not, acourt is barred from doing so on the basis of res judicata. [100] Additional support for this view may be found in the decision of the Alberta Court of Appeal in Ewing v. Ewing, 2007 ABCA72, 404 AR 10. That case addressed variation of child support payments.

In that case, the appellant father challenged a chambers judge'sorder varying a "final settlement" of support and matrimonial property issues that incorporated a Divorce Judgment and Corollary ReliefOrder. The respondent wife applied to have the order varied after discovering the settlement was based on tax returns that significantlyunder-reported the appellant father's income.

In substantially upholding the chambers judgment, the Court of Appeal stated at para 21that: a court order for child support does not operate to make res judicata the issue of child support. [101] The Newfoundland Supreme Court expressed the broad authority of a Court to vary arrears despite the existence of a previousorder in Ploughman v. Ploughman (1989), (NL SC), 78 Nfld. & P.E.I.R. 170, 18 A.C.W.S. (3d) 193.

In particular, theCourt relied on Payne's Commentaries on the Divorce Act, 1985 (Don Mills, Ont.: De Boo, 1986), citing the following passage from page65 at para. 29: Subsection 17(1) of the Divorce Act, 1985 expressly empowers the court to vary, rescind or suspend a spousal or child support orderprospectively or retroactively. Accordingly, the court may order a retroactive variation of a subsisting order, with a consequentialremission of all or part of any arrears that have previously fallen due. [Emphasis added.] [102] An interesting note on Haisman appears in Nanrhe v. Nanrhe (2005 ABQB 722).

At para. 18, the Court states: More than a decade ago, after the court made a determination of parties' positions relative to child support; it sometimes attempted toencourage the payment of large arrears of child support by giving the payor - typically the father - incentives to make the payments.

Theincentives might take the form of relieving the payor of a certain amount of arrears depending upon the size of the payment of arrears.However, since the decision in Haisman, Alberta courts have taken a more principled approach to arrears, cancelling arrears entirelywhen the grounds to do so have been established, and declining to cancel them in other situations. [103] In Difrancesco v.

Couto (2001), (ON CA), 56 OR (3d) 363; 207 DLR (4th) 106, the Ontario Court of Appealconsidered whether it was open to a motions judge to rescind arrears accumulated prior to a previous, unsuccessful rescission applicationor whether such action was res judicata.

In finding that the court could rescind the obligation to pay previously incurred arrears inaccordance with Haisman, the Court stated at para. 32 that: The determination that issue estoppel does not bar subsequent rescission of arrears following an unsuccessful application to vary, isconsistent with decisions relating to variation of orders for custody and access.

Those decisions indicate that once the threshold ofchanged circumstances is met, the court must embark on a fresh inquiry into what is in the best interests of the child, not based on apresumption in favour of the custodial parent, but rather based on the findings of the judge who made the previous order, as well as the

evidence of the new circumstances. Ultimately, the issue to be determined is the best interests of the child [Emphasis added.] [104] At para. 26, Simmons J.A. also stated: I do not, however, view the dismissal of an application to rescind arrears as an absolute bar to future rescission of those same arrears,provided there is a change in circumstances sufficient to warrant a variation. [105] Lastly, I note the comments of Nolan J. of the Ontario Court of Justice in the decision in Lefebvre v. Strilchuck (2009), (ON SC), 281 D.L.R. (4th) 539, 155 A.C.W.S. (3d) 1177.

There, in discussing the notion of res judicata in the context ofchild support payments, the Court noted as follows at paras. 21 and 22: …even if child support entitlement has been the subject of proceedings at one time, it is possible that it could be relitigated in the futureif a motion to vary is brought based on a material change in circumstances such as a child's return to post-secondary education.

Thepremise of this determination is that a subsequent change in circumstances of the child or the parent leaves open the possibility for thechild's support entitlement to change. [Emphasis added.] In the case before me, there is no doubt that if Mr. Strilchuck is able to demonstrate a material change in circumstances since the order of2004 that a variation to the child support order of 2004 could be made. The principle of res judicata could not bar such a claim frombeing made.[Emphasis added.] [106] In

summary, therefore, I do not see the doctrine of res judicata barring an application by SG for rescission of his child supportarrears where there has been a material change in his circumstances. By virtue of

section 17 of the Divorce Act, I believe this principlealso applies to rescission of spousal support arrears. In that regard, I also note the decision of the British Columbia Supreme Court inIbrahim v. Habte, 2006 BCPC 840 [“Ibrahim”]. At para. 11 of that decision the Court noted as follows: In that respect, a number of authorities were referred to considering the court’s jurisdiction to revisit matrimonial issues. Pursuant to theterms of the Divorce Act and the Family Relations Act, matters of child or spousal support are matters which may be revisited from timeto time, depending on the circumstances of the parties.

Section 17 of the Divorce Act allows for the varying, rescinding or suspending,prospectively or retroactively a support order. In that context, a support order means a child support order or spousal support order. Thesame powers are found in

Part 7 of the Family Relations Act with reference to spousal support orders made under that statute. In the caseat bar, mattes relating to the child of the marriage are currently subject to processes in the Provincial Court of British Columbia. Consequently, those authorities that deal with spousal and child maintenance make it abundantly clear, as do the relevant statutes, thatres judicata is not in issue in that respect. [Emphasis added.] Ibrahim clearly suggests that res judicata does not bar any applications made under

section 17 of the Divorce Act, whether for variationof spousal or child support. [107] Section 17(4) of the Divorce Act requires me to refer to

section 14 of the Federal Child Support Guidelines to determine if thereis a "change of circumstances" enabling this Court to grant a variation order in respect of a child support order. Paragraph 14(

b) providesthat changed circumstances include: In the case where the amount of child support does not include a determination made in accordance with a table, any change in thecondition, means, needs or other circumstances of either spouse or of any child who is entitled to support ... [108] SG's circumstances have changed materially from those which existed at the time of the Rawlins and Watson Orders. Whenthose orders were issued, he was still expected to show signs of recovery. Dr. Koss has since expressed the view that he will not

experience any such recovery. [109] In Woito, Justice Graesser provided helpful insights regarding the determination of whether a change is sufficiently material tojustify interfering with an earlier order. [110] His Lordship relied on section 17(4.1) of the Divorce Act, which provides as follows: 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 lastvariation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration. [111] He further noted at para. 26 of his decision that: …the test is whether or not there has been a material change in circumstances since the time of the April 1, 2009 decision. [112] He noted at para. 27 that: Material change is defined at para. 22 in Sopinka J.'s decision in Willick v.

Willick, (SCC), [1994] 3 S.C.R. 670 (S.C.C.): In deciding whether the conditions for variation exist, it is common ground that the change must be a material change of circumstances.This means a change, such that, if known at the time, would likely have resulted in different terms. The corollary to this is that if thematter which is relied on as constituting a change was known at the relevant time it cannot be relied on as the basis for variation. [113] He further notes at para. 28 that: That test was confirmed as being appropriate for spousal support variation claims in G.(L.) v.

B.(G.), (SCC), [1995] 3S.C.R. 370 at paras. 48: 48 Variation of support orders is governed by s. 17 of the current Act. Section 17(4) states that before it varies a support order "the courtshall satisfy itself that there has been a change in the condition, means, needs or other circumstances of either former spouse or of anychild of the marriage". This provision applies to any variation of a support order, whether in favour of a spouse or of the children.Consequently, the test developed in Willick v.

Willick, (SCC), [1994] 3 S.C.R. 670, in connection with support forchildren applies mutatis mutandis to the variation of spousal support. To begin with, the judge must determine whether there has been achange in the parties' situation since the last support order. [114] It is clear that the full scope of SG's continuing deterioration was not known at the time of the Rawlins or Watson Orders. Thelast of these Orders was made eight years ago. Medical evidence since then indicates that SG has no realistic prospect of returning towork.

Applying Sopinka J.'s reasoning in Willick, the matter relied upon by SG (his continuing deterioration over the last eight years)was not known at the relevant time (the date of the Watson Order) and therefore can be relied on now as the basis for variation. [115] The case at bar provides an interesting illustration of the difficulties associated with determining a change in circumstances. Atvarious times in the past, in fact for several years after SG’s accident, different physicians all predicted that he would recover most of hisabilities and that he would be able to return to work.

It is only later medical evidence, in particular Dr. Koss’s 2011 evaluation, thatestablishes the true severity of SG’s injuries. It seems that sometimes a change of circumstances can be ascertained only in retrospect.

[ 116 ] I am not, however, prepared to simply extinguish SG's child support arrears. The children are still young and will need financial support. If SG should regain employment, inherit from his parents or some other event transpires which place him in funds, this Court wishes to ensure that his children benefit from those funds while their need is still demonstrable. CR remains at liberty to reappear before this Court should she believe that there has been a material change in circumstances. [ 117 ] What is my authority for ordering an indefinite stay of SG's child support arrears? To the extent that an order staying child support arrears may be considered an order governed by

section 15.1 of the Divorce Act , it may, by virtue of

section 15.1(4) , be for a definite or indefinite period or until a specified event occurs. No further authority for my ability to direct an indefinite stay need be cited. [ 118 ] However, were further authority required, my review of the case law suggests that nothing appears to limit a court's ability to stay arrears payments indefinitely. [ 119 ] In L. (M.) v.

E. (R.S.) , 2006 ABCA 178 , O'Brien J.A. of the Alberta Court of Appeal granted a suspension/stay of arrears, noting at para. 7: In these circumstances, we think it appropriate to stay the monthly amounts directed to be paid towards arrears for each of the C. and E. children. Payments of arrears are suspended pending the further order of the Court of Queen's Bench. The parties are, of course, at liberty to apply to the Court of Queen's Bench to lift the stay in the event of a change in circumstances. [ 120 ] Similarly, in Burak v.

Burak , 2012 ABQB 452 , Burrows J. granted a conditional stay of child support payments, stating at para. 14: I order that there be a stay of Mr. Burak's monthly child support obligation until the amount of the payments he would have been required to make but for the stay equals the amount of the arrears owed by Ms. Burak, which I calculate to be $3984.04, subject to the adjustments previously and hereafter mentioned. [ 121 ] At para. 8 of Kowalski v.

Kowalski , 2009 ABQB 294 , Burrows J. put even more stringent conditions on his order for a stay of arrears payments: As to the stay, I order that there be a stay of enforcement of the arrears of child support subject to the following conditions: 1. The stay will continue to be in force only if Mr. Kowalski is not in default of his ongoing child support obligation for more than 15 days. That is, he will be deemed to be in default if he has not paid the April and May 2009 payments to Maintenance Enforcement by May 31, 2009 or if he has not paid any subsequent monthly payment by the 15th day of the month. 2.

The stay will continue to be in force only if Mr. Kowalski pays $2000.00 against the arrears by June 30 each year (including 2009) and a further $2000.00 against the arrears by December 31 each year. 3. The stay will continue to be in force only if Mr. Kowalski satisfies, either voluntarily or through enforcement processes, the outstanding trial judgment debts in full by June 30, 2010. 4.

The stay will not prevent the application against the arrears of any proceeds of enforcement processes taken in respect of the outstanding trial judgment debt which are not required to satisfy that judgment debt and which become available to apply to the arrears of child support. For certainty I will record that I do not intend any stay of enforcement of the trial judgment debt. I stay only enforcement of the child support arrears which are subject to enforcement through Maintenance Enforcement.

[122] Granting a stay of arrears payments does not seem to be a new practice. Instead, it appears to be a longstanding practice injurisdictions across Canada. For example, in Scott v.

Scott, (NWT TC), [1972] 2 W.W.R. 456, Morrow J. of theNorthwest Territories Territorial Court ordered at para. 13: Accordingly I am satisfied that it is within my power not only to revoke or vary but also to "suspend" the previous directions as tomaintenance as set forth in s. 1 of the Matrimonial Causes Act, 1866 (Imp.), c. 32. [123] The best interests of the children demand that SG remain contingently liable for his child support arrears. He is also at liberty toreappear before this Court at a later date if he believes circumstances (his or the children'

s) have materially changed such that permanentextinguishment of his child support arrears is then warranted. VII. Disposition [124] To reiterate the decisions outlined at the beginning of this judgment: 1. SG's ongoing

section 3 child support obligations, commencing September 1, 2012, shall be based on his line 150 income,reported in his annual T1 Income Tax and Benefit Return and as verified by his Notice of Assessment; 2. At the present time, I am not prepared to impute additional income to SG; 3. Payment of SG's child support arrears accrued to September 1, 2012 is stayed indefinitely, subject to leave hereby granted to SGand to CR to make application before this Court for variation of this direction, based on a further change in SG's circumstances whicheither party may allege has occurred; 4.

SG's ongoing spousal support obligations shall, from and after the date of this decision be terminated; 5. Earlier orders of this Court regarding the payment of spousal support which have led to the accumulation of spousal supportarrears are rescinded with the result that SG's spousal support arrears accrued to the date of this decision shall be extinguished; 6.

SG's maintenance and enforcement fees and penalties are not cancelled. [125] To the extent required to give effect to the terms of this judgment, the parties are directed to attempt to determine theproportions of accrued arrears allocable, on the one hand, to child support and, on the other hand, to spousal support. If they are unableto reach agreement they are at liberty to make further application before me for advice and direction in that regard. VIII. Privileged Documents [126] At page 7 of the Plaintiff’s Confirming Letter, CR requested that I direct SG to provide the Court with documents in respect

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