Blair v. Stewart-Blair, 2013 BCSC 927

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Blair v. Stewart-Blair, 2013 BCSC 927 Date: 20130528 Docket: 10-3381 Registry: Victoria Between: David John Blair Claimant And Sheila Margaret Stewart-Blair also known as Sheila Margaret Stewart Respondent Before: The Honourable Mr. Justice Bernard Reasons for Judgment Counsel for the Claimant: L.P. Gagnon Counsel for the Respondent: R.C. Doell Place and Date of Hearing: Victoria, B.C. October 9, 2012 and February 12, 2013 Place and Date of Judgment: Victoria, B.C. May 28, 2013 A. Overview [ 1 ] The application before the Court is that of David John Blair (“Dr.

Blair”), who seeks to have the Court determine the quantum and duration of future spousal support payable to his former wife, Sheila Margaret Stewart (“Ms Stewart”). Dr. Blair presently pays spousal support pursuant to a final separation agreement dated August 5, 2009 (the “Agreement”). He now seeks a court-ordered determination that either finds no future spousal support obligation or one in an amount and duration significantly reduced from his contractual obligation. The parties agree that the Court cannot vary the terms of the Agreement, and Dr.

Blair acknowledges that if he is successful in obtaining an order more favourable to him, then the enforceability of such, in his words, “remains unclear”. [ 2 ] Dr. Blair’s application is pursuant to s. 15.2 of the Divorce Act , and is brought within the parties’ divorce action. While it is arguable that Dr. Blair’s pleadings ought to have first been amended (Dr. Blair agreed to Ms Stewart’s support claim), no issue was taken in this regard. A divorce was granted in September 2011; however, the spousal support claim was, at that time, adjourned generally.

Notably, at no time were the terms of the Agreement incorporated into a court order. [ 3 ] The Agreement is a comprehensive written document prepared by the parties’ present counsel. It purports to be a final resolution of all financial matters between the parties; in particular, it divides assets, provides for indefinite spousal support to Ms Stewart, and identifies the limited circumstances in which entitlement and quantum of spousal support will trigger a contractual right to have spousal support revisited by the parties. These circumstances include Dr.

Blair’s retirement and “any other material change in circumstance”. If the parties cannot agree to new terms, the Agreement contemplates that either party may obtain a court order. [ 4 ] Shortly after the divorce order was granted, Dr. Blair closed his office-based medical practice and, in his words, “semi-retired”. Upon so doing, Dr. Blair sought to review with Ms Stewart the matter of spousal support. He commenced the instant application for statutory support because the parties were unable to agree that Dr.

Blair’s semi-retirement was a “material change in circumstance” which obliged Ms Stewart, pursuant to the Agreement, to revisit the quantum and duration of spousal support. [ 5 ] Within the foregoing context, it is understood that: (

a) the instant application pursuant to s. 15.2 of the Divorce Act is not a review of the spousal support provided by the Agreement; and, (

b) the Court’s function in the instant application is not to determine whether Dr. Blair’s semi-retirement is “a material change in circumstance” under the parties’ separation agreement and, thus, a trigger obliging Ms Stewart to renegotiate with Dr. Blair. Dr. Blair’s application is for a judicial determination of spousal support in the first instance. It is the exercise of a statutory right afforded by s. 15.2 of the Divorce Act , notwithstanding the parties’ private agreement in

relation to the same matter. The analytical approach in Miglin v. Miglin , 2003 SCC 24 , is applicable because Dr. Blair is seeking an order of statutory support inconsistent with his contractual support obligation under a pre-existing agreement. [ 6 ] The essence of Dr.

Blair’s argument is that his semi-retirement has resulted in a considerable reduction in his annual earned income; and, that continued payment of spousal support as agreed upon in 2009 would represent a significant departure from the range of reasonable outcomes anticipated by the parties at the time of the separation agreement. [ 7 ] The essence of Ms Stewart’s position is that Dr. Blair’s application is ill-founded.

She argues that the parties agreed to resolve the issue of spousal support within their Agreement which remains valid and enforceable; and, that in the absence of a court order incorporating the spousal support provisions of the Agreement, the Court is without jurisdiction to vary its terms. Alternatively, Ms Stewart argues that neither Dr. Blair’s financial circumstances nor her need for indefinite support has materially changed; thus, there should be no change to spousal support as provided by the separation agreement. B. Evidentiary Synopsis [ 8 ] The parties married in 2001.

The marriage was a second one for both, and it ended in separation after 8.5 years. When they married, Dr. Blair had his own medical practice, and Ms Stewart, a registered nurse, ran her own rehabilitation services business. Each brought assets into the marriage, but it is not disputed that the value of Dr. Blair’s assets considerably exceeded those of Ms Stewart. [ 9 ] In 2006 Ms Stewart was injured in a physiotherapy “incident” and, as a result, struggled with work and then ceased working in April 2009. The incident gave rise to a lawsuit (as referenced in paragraph 4(

c) of the separation agreement – see below) which eventually settled by a post-separation payment of $245,000 to Ms Stewart; however, after all associated costs and some debts were paid by Ms Stewart, she pocketed approximately $12,000. [ 10 ] The marriage broke down, and the parties separated in 2009. On August 5, 2009 they entered into a written separation agreement which resolved their financial issues. Paragraph 4 of the Agreement is the spousal support provision. It reads as follows: 4 (

a) David will pay to Sheila $2300.00 per month commencing the 1st day of July, 2009. This amount is in accordance with the upper range of the Spousal Support Advisory Guidelines, based upon David’s income of $177,000.00 per annum and Shelia’s current income of approximately $6,000 per annum from CPP payments. (

b) In the event that Sheila receives the disability income of $2000.00 per month as set out in Recital J(b), David will pay to Sheila $2000.00 per month, commencing the 1st day of the month following Sheila’s receipt of that income. This amount is in accordance with the upper range of the Spousal Support Advisory Guidelines based on David’s income of $177,000.00 per annum and Sheila’s expected income of approximately $30,000 per annum from disability income and CPP payments. (

c) David will continue to pay spousal support to Sheila as set out above until the first of the following events occurs: (

i) Sheila’s lawsuit is determined through receipt of her settlement payment or of a trial award amount or discontinuance; (ii) David retires; (iii) any other material change in circumstance; at which time, entitlement and amount of spousal support will be reviewed by the parties, provided that support will continue to be paid until further agreement or Court Order without prejudice to either party to claim a different termination date or different amount. (

d) David’s obligation to pay support pursuant to this

section survives his death and binds his estate; and, all spousal support paid pursuant to this agreement is taxable to Sheila and deductible to David in the year in which it is paid. (

e) David agrees that Sheila shall continue to be covered under his Pacific Blue Cross Extended Health Care Plan #E032825 and his BC Medical Services Plan so long as Sheila remains eligible for such coverage. [ 11 ] In August 2010, Dr. Blair commenced a divorce action. Ms Stewart counterclaimed for divorce and spousal support. In relation to the latter, counsel for Ms Stewart explained, to counsel for Dr. Blair, the purpose of such as follows: ...

Please be advised that we will be filing a pro forma Counterclaim seeking spousal support, since the Separation Agreement contains the right to review of same, on the understanding that we will then agree to adjourn generally Ms Stewart’s claims to spousal support at the application for divorce. [ 12 ] In December 2011, Dr. Blair closed his office practice and began “doing locums” and working part-time at a cancer clinic and a hospice. He is presently engaged in this work and plans to continue similarly for an indeterminate period into the future. Dr.

Blair says that since closing his office practice, his annual income for spousal support purposes has dropped from $177,000 to a predictable figure of approximately $110,000. [ 13 ] Dr. Blair turned 70 years of age on February 7, 2013. He considers himself “semi-retired”. There is no suggestion that he does not enjoy good health or that he suffers from any physical or mental limitations. Dr. Blair said he works “to keep busy and to continue to contribute to society” by filling in for colleagues as a locum, and working at the Victoria Hospice and Victoria Cancer Agency.

In so doing, he said he earns approximately $9,000 per month ($108,000 per year) before annual expenses of approximately $15,000. Dr. Blair anticipates being able to work in a similar manner into the future, health and finances permitting. [ 14 ] Ms Stewart is 66 years of age. She has a Master’s degree in nursing. She said she ceased working in April 2009 due to a back injury she sustained in March 2006. She said she received disability benefits of $2,000 per month until July 2012, when she turned 65.

Since then, she said her income from all sources other than spousal support is approximately $1,300 per month (OAP: $544.09, CPP:$575.40, and income from a fibre arts studio: $200). Ms Stewart continues to reside in the former matrimonial home - her only significantasset. She said her monthly expenses are $6,100; thus, they exceed her monthly income by approximately $2,200. She said she hasborrowed $35,000 in the past 14 months to meet her expenses. [15] Ms Stewart said she has a Chronic Pain Disorder which prevents her from earning an income, whereas Dr.

Blair “can continueto work indefinitely as a medical doctor doing locums”. She points out that Dr. Blair now has a net worth of $1.5 million, whereas shenow has a net worth of $400,000 – hers having declined somewhat since separation due a drop in real estate values. [16] Dr. Blair’s present spousal support obligation, pursuant to the parties’ separation agreement, is $2,000 per month. C. Discussion [17] It is not a matter of controversy that: (

a) the parties entered into a separation agreement intended as a final resolution of assetdivision and spousal support; (

b) the terms of the Agreement permitted resort to the Court if the parties could not agree to new terms inspecified circumstances; (

c) no aspect of the Agreement was incorporated into a court order; and, (

d) the Agreement was fairlynegotiated and remains valid and enforceable by either party. [18] Dr. Blair acknowledges that this Court cannot terminate or vary his contractual support obligation under the separationagreement (see Zimmerman v. Shannon, 2006 BCCA 499); accordingly, if he is successful, he appreciates that a question ofenforceability will arise. [19] In Zimmerman, Finch C.J. made the following apposite statements in relation to the chambers judge’s order terminating thespousal support obligation in the parties’ separation agreement: [75] ...

The only issue before us is whether the learned chambers judge erred in holding that he had jurisdiction under s. 15.2 of theDivorce Act to make that order. In other words, does Parliament’s grant of the power to order spousal support include the power to varyor terminate contractual spousal support. ... [76] In my opinion there is nothing in s. 15.2 of the Divorce Act to suggest that Parliament intended to confer a power to interfere withcontractual rights for spousal support. Nor do I see anything in Miglin that would support such an

interpretation. In this regard, Irespectfully agree with Huddart J.A.’s analysis of the reasons in Miglin. [20] Dr. Blair seeks to invoke the Court’s jurisdiction to make an order of spousal support different than that provided for in theAgreement, pursuant to Miglin, supra. In this regard, in Zimmerman, Huddart J.A. made the following helpful remarks: [60] The entire purpose of s. 15.2, as explained in Miglin, is to determine whether a spouse is entitled to an order directing payment ofsupport and if so, in what amount and on what terms and conditions.

In arriving at that determination, a court must consider anyagreement the parties have made, but is not required to endorse one that reveals inequities (para. 45). It should “be loathe to interferewith a pre-existing agreement unless it is convinced that agreement does not comply substantially with the overall objectives of theDivorce Act” (para. 46). A pre-existing agreement cannot “oust the jurisdiction of the court to make an order for spousal support”(para. 48). A court can “review and reject the terms of a pre-existing agreement” (para. 51).

All of these statements are made in thecontext of determining whether a spouse is entitled to statutory spousal support. ... [65] To summarize, I do not find in Miglin support for the proposition that Parliament intended that s. 15.2 supersede the provincialjurisdiction over civil contracts or the portions of them relating to spousal support. In my view, the Supreme Court in Miglin affirmed thepower to order spousal support inconsistent with a private contract without commenting on the effect of such an order on theenforceability of the private contract.

Implicit in its reasons is the affirmation of the right to refuse to order spousal support. Thejudgment goes no further. A court’s power under s. 15.2 is to order or to refuse to order the payment of spousal support. [21] Earlier in her reasons in Zimmerman, Huddart J.A. explained the “doctrine of election” in relation to conflicting contractual andcourt-ordered spousal support obligations, as follows: [4] Where a spousal support order conflicts with a contractual obligation, it is the doctrine of election that provides a defence to anenforcement action by a spouse who has obtained an order for statutory support.

This equitable doctrine prevents a person fromselectively enforcing inconsistent rights: Findlay v. Findlay, (SCC), [1952] 1 S.C.R. 96 at 117, Divinsky v. Divinsky,[1970] B.C.J. No. 420 (S.C.) at paras. 4-6 and Frances v. McLeod, [1988] B.C.J.

No. 1048 (S.C.) at para. 22. [5] So, where a payee spouse obtains or consents to an order in the terms of an agreement to pay spousal support, having chosen torely on the statutory remedy at the time of divorce or subsequently, he or she is precluded from enforcing the contractual remedy, and theSupreme Court may vary the support order under s. 17 of the Divorce Act: Pelech. Despite Mr. Zimmerman’s plea to the contrary, thedoctrine is not relevant to the question of a court’s jurisdiction to vary a contract. [22] In Newman v.

La Porta, 2008 BCSC 522, Neilson J. (as she then was) dealt with an application pursuant to s. 15.2 of theDivorce Act, in somewhat similar circumstances to the instant one. Mr. Newman, as the payor of spousal support, sought a court-ordereddetermination of his spousal support obligation in an amount less than his contractual obligation under the terms of a separationagreement which had not been incorporated into a court order. Mr. Newman acknowledged that seeking such a remedy, as a payor,pursuant to s. 15.2 of the Divorce Act, and Miglin, was novel.

Upon a careful review of s. 15.2 and Miglin, Neilson J. concluded thatthere was nothing which expressly precluded such an application by the payor, while also finding that it was “a stretch” on the wordingof s. 15.2. to interpret it as permitting the court to make an order that no spousal support was payable (as sought by Mr. Newman). In

concluding that Mr. Newman was entitled to avail himself of the application of the principles in Miglin , Neilson J. made the following apposite remarks: [126] The plaintiff next seeks to vary his obligation to pay spousal support under the Final Agreement on the basis that there have been material changes in the parties' circumstances since it was executed. His means of accomplishing that are limited. There is no provision in the Final Agreement that permits review.

The divorce order has no terms that import the right to review under s. 17 of the Divorce Act . [127] The plaintiff accordingly seeks to accomplish this through an order under s. 15.2 of the Divorce Act that he pay no spousal support, based on a Miglin analysis. He acknowledges that this is a novel argument, in that Miglin and the decisions that have followed it have typically dealt with applications brought by payees or potential payees of support who seek support beyond that provided for in a pre-existing agreement, rather than by payors who want to reduce their obligations.

The plaintiff argues, however, that such a one-sided approach is unfair to payors who find themselves constrained by support obligations in an agreement that is no longer appropriate under the two-stage analysis established in Miglin . He says that on a proper construction of Miglin and s. 15.2, payors of support must be entitled to the same right of review as payees. [128]

Section 15.2(1) of the Divorce Act reads: 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. [129] I find this clearly anticipates an application by either spouse for an order requiring payment of support. There is nothing in the wording that precludes an initial application by a payor for an order that he or she pay a stated sum to the other spouse.

While I find it a stretch to interpret the provision as allowing an order for no support as the plaintiff requests, I am satisfied that the result he seeks could effectively be obtained by ordering nominal support under s. 15.2 . [130] Similarly, I find nothing in Miglin that restricts its analysis to applications brought by recipients or potential recipients of spousal support, as opposed to payors.

For example, the majority at para. 2 states the issue before the Court broadly: In broader terms, the appeal raises the question of the proper weight to be given to any type of spousal support agreement that one of the parties subsequently wishes to have modified through an initial application in court for such support .

In that sense, the matter is not restricted to spousal support agreements that contain a time-limited support arrangement or to agreements which contain a full and final release from support obligations by one or both parties. [Emphasis added.] [ 23 ] Madam Justice Neilson acknowledged that an enforcement issue would arise if Mr. Newman was successful in obtaining a spousal support order more favourable to him than his contractual obligation. In this regard, she said: [141] ...

I accept that I have the power to order support under s. 15.2 that is inconsistent with the plaintiff's support obligation under the Final Agreement. I recognize that there is doubt as to whether such an order can be enforced. I also accept that a court should not make an order that is unenforceable. However, in my view the issue of enforceability of such an order has not yet been finally determined.

During the submissions of counsel, there were indications that if I grant an order under s. 15.2 that provides for spousal support in an amount lower than $3,000 per month, its enforceability will likely be determined in a subsequent action between the parties in which constitutional notice will be served. [142] I accordingly propose to conduct a Miglin analysis in considering whether the plaintiff is entitled to an order for spousal support under s. 15.2 .

The steps in such an analysis are set out in detail in paras. 80-91 of the judgment. [ 24 ] Madam Justice Neilson also referred to Huddart J.A.’s comments in Zimmerman regarding the doctrine of election, as an explanation for why it is highly unusual, if not pointless, for Miglin applications to be brought by payors. In this regard, she said: [138] At paras. 3-5 of Zimmerman , Madam Justice Huddart explained that the reason why Miglin applications are characteristically brought by payees lies in the doctrine of election.

If a payee spouse obtains an order for spousal support that is higher than the support provided in a pre-existing agreement, she is deemed to have elected to rely on the court order rather than the contract.

By inference, if the plaintiff in this case obtains an order for spousal support under s. 15.2 that is lower than his obligation to pay spousal support of $3,000 per month under the Final Agreement, the defendant may employ the doctrine of election to choose that her rights continue under the contract, unless and until there has been a determination of the constitutional validity of s. 15.2 in the context of provincial jurisdiction over civil and property rights.

If the plaintiff simply chooses to pay the lesser amount ordered, he will be faced with an action based on breach of contract brought by the defendant. [139] Finch C.J.B.C., Low J.A. concurring, agreed in the result, but declined to comment on the constitutional issue since no notice to the Attorneys General had been given.

At para. 76, the Chief Justice supported Madam Justice Huddart's analysis of Miglin , and found that there was nothing in that decision or in s. 15.2 of the Divorce Act to suggest that Parliament intended to confer a power on the courts to interfere with contractual rights for spousal support. [ 25 ] Having regard to the foregoing, I am satisfied that there is no impediment to Dr. Blair, as payor, pursuing the instant application. I agree with Madam Justice Neilson that it may be an academic exercise; however, such is a question for determination in subsequent proceedings.

To deny the application on such a basis would be tantamount to prejudging an issue which is not squarely before the Court in the application at bar. [ 26 ] I turn, then, to the merits of Dr. Blair’s application. As noted above, the applicable legal principles and analytical framework are found in Miglin , supra . I draw from the comprehensive reasons for judgment of the majority, the following particularly apposite statements:

[51] It is settled that Parliament has vested in the courts the discretion to review and reject the terms of a pre-existing agreement ... [52] The objectives listed in s. 15.2(6) ... are not intended to dictate by themselves the precise terms of an enforceable negotiated agreement dealing with spousal support ... the language of s. 15.2(6) is suggestive only ...

Nothing in these provisions indicates a duty on the court to subject a comprehensive agreement to scrutiny based solely on the objectives in s. 15.2(6) or to assume that any agreement by the parties will be enforceable only when its provisions substantially mirror what a trial judge, unfamiliar with the parties’ motivations and subjective understanding of their relationship, would have awarded on the basis of these criteria alone. [54] ... [M]ore must be shown than a mere deviation from what a trial judge would have awarded in an order before it is appropriate for the court to disregard the parties’ pre-existing agreement.

Without some degree of certainty that the agreement will be respected by the court, parties have little incentive to negotiate a settlement and then to comply with the terms of their undertakings. ... [55] ...

To impose on all separating or divorcing persons an obligation to adhere strictly and exclusively to the statutory spousal support objectives denies them the autonomy to organize their lives as they see fit and to pursue their own sense of what is mutually acceptable in their individual circumstances. ... [56] ... [W]hat is “fair” will depend not only on the objective circumstances of the parties, but also on how those parties conceive of themselves, their marriage and its dissolution, as well as their expectations and aspirations for the future. [57] ... [T]rial judges must consider the agreement more broadly in light of all the objectives of ... the Act as a whole ...

These legislative objectives require the trial judge to consider the extent to which the agreement represents a final settlement of the issues, negotiated under unimpeachable conditions, to which both parties agreed and on which each of them intended to rely.

It is only then that the judge will consider whether the agreement must nevertheless be set aside in full or in part because it is not in substantial compliance with the broader objectives of the Act. ... [63] ... [C]hanges to the parties’ circumstances after completion of a separation agreement are obviously not wholly irrelevant consideration in assessing the weight to be given to a pre-existing agreement at the time of the application. ... the court should focus not on change as a threshold matter, leading to the setting aside of an agreement, but rather on the totality of the circumstances, of which a change in the parties’ circumstances will likely be an element.

Put another way, it is not the existence of change per se that matters but whether, at the time of the application, all the circumstances render continued reliance in the pre-existing agreement unacceptable. [64] An initial application for spousal support inconsistent with a pre-existing agreement requires an investigation into all the circumstances surrounding that agreement, first, at the time of its formation, and second, at the time of the application. ... ... [78] ... [I]n searching for a proper balance between consensus and finality on the one hand, and sensitivity to the unique concerns that arise in the post-divorce context on the other, a court should be guided by the objectives of spousal support listed in the Act.

In doing so, however, the court should treat the parties’ reasonable best efforts to meet those objectives as presumptively dispositive of the spousal support issue. The court should set aside the wishes of the parties as expressed in a pre-existing agreement only where the applicant shows that the agreement fails to be in substantial compliance with the overall objectives of the Act. These include not only those apparent in s. 15.2 but also, as noted above, certainty, finality, and autonomy. ... (

a) Stage One [80] In an originating application for spousal support, where the parties have executed a pre-existing agreement, the court should first look to the circumstances in which the agreement was negotiated and executed to determine whether there is any reason to discount it. ... (

b) Stage Two [87] Where negotiation of the agreement is not impugned on the basis set out above and the agreement was in substantial compliance with the general objectives of the Act at its time of creation, the court should defer to the wishes of the parties and afford the agreement great weight. Nevertheless, the vicissitudes of life mean that, in some circumstances, parties may find themselves down the road of their post-divorce life in circumstances not contemplated.

Accordingly, on the bringing of an application under s. 15.2 , the court should assess the extent to which enforcement of the agreement still reflects the original intention of the parties and the extent to which it is in substantial compliance with the objectives of the Act. [88] ... the applicant must nevertheless clearly show that, in light of the new circumstances, the terms of the agreement no longer reflect the parties’ intentions at the time of execution and the objectives of the Act.

Accordingly, it will be necessary to show that these new circumstances were not reasonably anticipated by the parties, and have led to a situation that cannot be condoned. [89] We stress that a certain degree of change is foreseeable most of the time. The prospective nature of these agreements cannot be lost on the parties and they must be presumed to be aware that the future is, to a greater or lesser extent, uncertain. ... ... [91] ... Parties must take responsibility for the contract they execute as well as for their own lives. It is only where the current

circumstances represent a significant departure from the range of reasonable outcomes anticipated by the parties, in a manner that puts them at odds with the objectives of the Act, that the court may be persuaded to give the agreement little weight. ... [ 27 ] In the instant application, Dr. Blair has not impugned the separation agreement on either the circumstances of its execution or its substance.

It is evident that the Agreement was negotiated by the parties with the benefit of expert legal services, advice and assistance; and, that it was in substantial compliance with the factors and objectives of the Divorce Act . There has been no suggestion that it did not reflect an equitable sharing of the economic consequences of the marriage and its breakdown at the time it was executed. Dr. Blair’s application rests exclusively on Stage Two of the Miglin , supra , analysis. [ 28 ] Stage Two of the test obliges Dr.

Blair to “clearly show” that, in light of his semi-retirement and the corresponding alleged reduction in his earnings, the Agreement no longer reflects: (

a) the parties’ intentions at the time of execution; and, (

b) the overall objectives of the Divorce Act . In order to satisfy this test, Dr. Blair must establish that the alleged change in his employment and earnings represents a significant departure from the range of reasonable outcomes anticipated by the parties at the time the Agreement was executed, in a manner that now puts them at odds with the objectives of the Divorce Act . [ 29 ] I am not persuaded that Dr. Blair has met the onus he bears. The evidence establishes that at the time the Agreement was negotiated, Dr. Blair was approximately 66 years of age and running an office-based medical practice.

I am satisfied that the subsequent changes to Dr. Blair’s practice were ones which would have been contemplated by both parties; thus, his semi-retirement was well within the range of reasonable outcomes anticipated by the parties at the time of the Agreement. In this regard, it is noteworthy that the Agreement expressly identified Dr. Blair’s retirement - not his semi-retirement - as an event which would oblige the parties to reconsider the matter of spousal support. In other words, it is evident that the parties directed their minds to Dr. Blair’s future participation in the workforce.

In so doing, they did not identify semi-retirement as an event or circumstance which would trigger a review. [ 30 ] Dr. Blair’s alleged change to his financial picture is one which arises from self-imposed changes to his medical practice. His current work situation represents a predictable “slowing down” consistent with a man of his age and at his career stage. The claimed drop in income is one that is entirely commensurate with his semi-retirement; however, his income and his financial picture remain strong and secure, particularly relative to that of Ms Stewart.

There is no reasonable basis to conclude that the change Dr. Blair relies upon was unanticipated, let alone that it represents a significant departure from the range of reasonable post-Agreement outcomes, in a manner that now puts the parties at odds with the objectives of the Divorce Act . D. Disposition [ 31 ] Dr. Blair’s application is dismissed. As the unsuccessful applicant is the payor pursuant to a private agreement, in my view it is appropriate to refuse to make a spousal support order rather than to make one in the terms of the Agreement.

As Huddart J.A. observed in Zimmerman : “Implicit in [ Miglin ’s] reasons is the affirmation of the right to refuse to order spousal support”; moreover, the parties have never agreed to incorporate the spousal support terms of the Agreement into a court order. Such should not occur by dint of this failed application of the payor, given its effect upon any future related proceedings. [ 32 ] If the parties need to address the issue of costs, they may do so by written submission. “The Honourable Mr. Justice Bernard”