Volcko v. Volcko, 2019 NSSC 203

SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: Volcko v. Volcko , 2019 NSSC 203 Date: 20190712 Docket: 1201-064277 (SFHD-068485) Registry: Halifax Between: Susan Scheuermann Volcko Applicant (Respondent) v. John B. Volcko Respondent (Petitioner) Judge: The Honourable Justice Carole A. Beaton Heard: November 29 and 30, 2018; May 22, 2019, in Halifax, Nova Scotia Written Release: July 12, 2019 Counsel: Mary Jane McGinty and Angela Walker for the Applicant William L. Ryan, Q.C. and Sara L. Scott for the Respondent By the Court: Background [ 1 ] The parties were divorced in December 2013 following a trial.

In May 2016 the Applicant Wife filed a Notice of Application to Vary; an Amended Notice was filed in February 2018. The Respondent Husband’s Response to Variation Application was filed in May 2018. [ 2 ] The Applicant seeks an increase in the quantum of spousal support payable to her by the Respondent from the present $20,000 per month to $40,000 per month.

She also seeks to be permitted to purchase life insurance on the Respondent’s life to insure that support obligation, or in the alternative, to create a binding obligation on his estate. [ 3 ] The Respondent seeks a termination of his obligation to pay spousal support, or in the alternative a decrease in the quantum of his support obligation to an unspecified amount, and a determination that the insurance issue raised by the Applicant is res judicata. [ 4 ] The following issues stem from the variation hearing held November 29 and 30, 2018 and May 22, 2019: 1.

Has there been a change in circumstances since the making of the December 2013 Corollary Relief Order (“CRO”)? 2. If there has been a change in circumstances, what if any changes to spousal support are required, taking into account: a. The Spousal Support Advisory Guidelines (“ SSAG ”) ; b. Self-sufficiency of the Applicant; c. Quantum and duration of support; d. Retroactive support. 3. Securing the spousal support obligation: a. Is the issue res judicata ?

b. Should the obligation be secured against the Respondent’s estate? [5] I note here that while the written submissions filed prior to the hearing raised the matter of tax implications concerning aretroactive payment component arising from the post-divorce decision of the Court of Appeal (Volcko, 2015 NSCA 11), I take the view itis not a matter for this Court to address. It is not up to this Court to determine what would appear to be a dispute between the parties andCanada Revenue Agency. Issue No. 1 – Change in Circumstances [6]

Section 17 of the Divorce Act, R.S.C. 1985, c.3 (“the Act”) governs variations. Subsection (4.1) provides: 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. [7] The test as to whether there has been a material change in circumstances was discussed in Rondeau v.

Rondeau, 2011 NSCA 5.Hamilton, J.A. wrote: 13. The Supreme Court of Canada in Willick v. Willick, (SCC), [1994] 3 S.C.R, 670 (S.C.C.), ¶ 21 and later in L.G.v. G.B., (SCC), [1995] 3 S.C.R. 370 paragraph 73, set the standard for finding a change in circumstances with respect tospousal support: [21] In deciding whether the conditions for variation exist, it is common ground that the change must be a material change ofcircumstances. This means a change, such that, if known at the time, would likely have resulted in different terms.

The corollary to this isthat if the matter which is relied on as constituting a change was known at the relevant time it cannot be relied on as the basis forvariation … [8] In Daigle v. Daigle, 2013 NSSC 205, Jollimore, J. considered the nature of any change. At paragraph 13 she stated: In addition to the requirement that the change be one which was not reasonably anticipated by the parties, the change must have otherqualities. In P.M.B. v.

M.L.B., 2010 NBCA 5 at paragraph 2, Justice Robertson said that “As a general proposition, the court will beasking whether the change was significant and long-lasting; whether it was real and not one of choice”. The Nova Scotia Court of Appeal approved of P.M.V. v. M.L.B, 2010 NBCA 5, at paragraph21 of Smith v. Helppi, 2011 NSCA 65, … [9] The impact of a party’s knowledge at the time an order was originally made is central to the analysis of whether there has beena change. In Black v. Black, 2015 NBCA 63, Baird, J. A. explained the test for variation as articulated in L.M.P. v.

L.S., 2011 SCC 64 asfollows: 42. … The decision reiterates that the onus is placed on the moving party to satisfy the requirements of material change, and alsorequires consideration of whether knowledge of circumstances at the time the original order was granted would have altered the terms.… (emphasis added). [10] The burden to establish whether there has been any material or significant and lasting change which, if contemplated or knownat the time of the previous order would likely have resulted in different terms, rests with the party seeking a change to the order.

Ifestablished, then the Court must consider what, if any adjustments to the order would properly address or reflect that change. As statedby Bourgeois, J.A. in Kelfenz v. Kelfenz, 2019 NSCA 6: [26] In my view, Droit de la famille makes clear that a proposed variation to an original order must have a nexus to thematerial change in circumstances underlying the application. … [11] The evidence put before the Court in this application could not support and did not establish any change related to theApplicant’s circumstances.

Her situation (which will be discussed in more detail later herein) remains essentially unchanged from what itwas at the making of the last order, with the one small exception that the remaining child of the marriage (who became the sole financialresponsibility of the Respondent per the terms of the 2013 CRO) is now independent. [12] The whole of the evidence persuades me the change of circumstances in this case is grounded in changes in the Respondent’sincome. While the parties agreed his income has changed, they disagreed as to the nature and significance of any such change.

TheApplicant argues the Respondent’s income has increased over the past several years, thus justifying a commensurate increase in thequantum of periodic support, rooted in the compensatory nature of the Applicant’s entitlement. By contrast, the Respondent maintainshis income has decreased from what it was at the time his spousal support obligation was adjusted to $20,000 per month on appeal. [13] The Respondent has three sources of income – salary, bonus and share dividends/other investments (Court Exhibit 4, Tab 2,Exhibits A and B).

The evidence illustrated a variable annual income, changing in each year, but with a significant decrease in 2018. Iaccept the Respondent’s evidence that this decrease reflects a combination of events: (

i) a change to the structure of the employment-related bonus compensation available to him; and ii) a reduction in the number of company shares he is permitted to hold, a limitationimposed by the company. The Respondent’s employment duties have also changed due to organizational changes in the company, and henow works out of Toronto, not Halifax, although he chooses to continue to reside in Nova Scotia. These are not changes that could havebeen foreseen when the last court order was made.

[ 14 ] While the starting point to assessing the relationship between earnings and quantum would ordinarily require consideration of a payor’s income in the three previous years, a significant focus in this hearing was on the history of the Respondent’s income over the last decade, likely due to the fluctuating nature of the Respondent’s annual earnings, and the relationship between his earnings and the Applicant’s compensatory entitlement to support.

In Volcko , 2015 NSCA 11 , the Court determined the Respondent’s income for the period of 2010-2013 was as follows: i. 2010 - $1,546,923 ii. 2011 - $1,282,936 iii. 2012 - $1,520, 976 iv. 2013 - $1,248,756 (“minimum”) On cross examination the Respondent agreed with the Applicant’s counsel that his actual 2013 line 150 income was eventually determined to be $1,625,702.

Court Exhibit 4, Tabs 1 and 5 illustrated the Respondent’s line 150 income in the following years was as follows: v. 2014 - $1,605,977 vi. 2015 - $3,015,952 vii. 2016 - $418,290 viii. 2017 - $1,235,743 I accept the Respondent’s explanation during cross-examination that the dramatic 2015 spike and corresponding 2016 drop in his income reflected a one-time assignment of certain amounts (dividends) over those years for tax planning purposes.

I note the average of those two years would be $1,717,000 income per year. [ 15 ] I am satisfied the evidence put before the Court can lead to a determination that the Respondent’s 2018 income was $868,000. Looking at each year individually, 2017 was the Respondent’s second lowest income earning year in the last five and 2018 was his lowest, by a considerable margin as compared to earlier years. [ 16 ] Considering the Respondent’s income over a three year period, as contemplated in s.17 of the Federal Child Support Guidelines , (SOR/97-175) would mirror the approach taken in argument on behalf of the Applicant.

Assuming that the most reasonable way to allow for the 2015-2016 spike/drop in the Respondent’s income is to use an average of the two years (as mentioned earlier), then the three year average of his income would calculate as follows: i. 2010-12 - $1,450,278 ii. 2011-13 - $1,476,538 iii. 2012-14 - $1,584,218 iv. 2013-15 - $1,649,559 v. 2014-16 - $1,679,992 vi. 2015-17 - $1,556,581 vii. 2016-18 - $1,273,581 [ 17 ] Looking at the three year averages, the most recent period from 2016 to 2018 also calculates an average yearly income markedly lower than in any other three year period in the last decade. [ 18 ] The Respondent’s income has fluctuated year over year since 2010, but the reduction in income in 2018 has been the most dramatic change to date.

The change in circumstances in this application is found in the downward change in the Respondent’s annual income in 2017 and 2018. Increases in the Respondent’s income during the period 2010 to 2018 are, by comparison, much less significant than the most recent reduction in income. Issue No. 2 – Changes to the quantum of support [ 19 ] The Applicant’s argument in support of an increase in quantum focuses in large measure on the compensatory aspect of her entitlement. Section 17(7) of the Act requires the Court to consider the following:

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

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

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

(

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

d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time. [20] I must consider if and how the reduction in the Respondent’s income impacts the above factors. Section 17(7)(d) - self-sufficiency – formed much of the evidence and argument in the application, as will be discussed later herein.

Issue No. 2(a) – The use of the Spousal Support Advisory Guidelines [21] The Applicant urged the Court to consider that the use of the Spousal Support Advisory Guidelines (“SSAG”) would result in anincrease in the amount of support payable, based on the level of the Respondent’s income. I note the SSAG were not utilized indetermining quantum at the divorce trial, nor when the quantum of spousal support was adjusted upward on appeal. [22] In Breed v.

Breed, 2016 NSSC 42 the Applicant also argued unsuccessfully on variation for the use of the SSAG where thepayor earned in excess of the ceiling amount, despite the SSAG not having been applied at the time of the making of the CRO. There isno obligation to now utilize the SSAG in this decision, where they were not previously applied, merely because the tool exists. In Fisherv. Fisher, 2008 ONCA 11 the Ontario Court of Appeal stated the SSAG were prospective, applying only to initial orders and not tovariation orders. [23] The use of the SSAG is neither instructive nor constructive in this case. In Gray v.

Gray, 2014 ONCA 659 decided after Fisher(supra), the Ontario Court of Appeal noted that “the July 2008 SSAG publication contemplates that the guidelines have a role to play onvariation” (para 43). Nonetheless, in the same year in Strecko v. Strecko, 2014 NSCA 66, the Nova Scotia Court of Appeal found noobligation on the trial judge to apply the SSAG (see also MacDonald v. MacDonald, 2017 NSCA 18 and Klefenz (supra)). [24] The Applicant should not now be automatically able to achieve a higher amount of support on the basis that by applying theSSAG the calculation would result in a higher quantum.

Furthermore, the use of the SSAG to support the Applicant’s assertion that herpayment should in effect double (to $40,000 dollars) is untenable. With respect, on its face this would appear to be an effort to re-try theoriginal quantum of support, which is not the exercise on a variation application. Issue No. 2(b) – Self-Sufficiency of the Applicant [25] These parties were married in 1990. They separated in October 2006 and since that time the Respondent has paid spousalsupport, which equates to almost thirteen years of support following a sixteen-year marriage. [26] In Allaire v.

Allaire, (ONCA) the Court noted that self-sufficiency is not a free-standing concept and is to beseen in the context of the standard of living enjoyed by the parties in the marriage. In Leskun v. Leskun 2006 SCC 25 the Supreme Courtof Canada recognized the promotion of self-sufficiency discussed in s.15.2(6) of the Act as being a factor as opposed to a duty. [27] The Respondent’s evidence and submissions placed considerable emphasis on the failure of the Applicant to achieve self-sufficiency since the CRO.

At the time of the divorce decision this Court noted: [65] The Wife’s evidence made it abundantly clear that she chooses not to work at this time, which is much different than beingunable to work or being able to work only to a limited extent. The Wife stated in her evidence “Given my age and how long I have beenout of the workforce, it is unrealistic and not practicable to attempt to return to paid employment”.

However, there is no evidence theWife cannot realistically secure some modest measure of employment - she simply has not tried to test the job market. … In cross-examination, she acknowledged to counsel for the Husband that she does not wish to work.

While that may be the Wife’s choice, it doesnot eliminate her legal obligation to explore, in so far as it may be possible or achievable, a reasonable measure of self-sufficiency. … [67] … If either party seeks a variation of spousal support in the future, at that time a Court might choose to examine the matter ofself-sufficiency of the Wife. (Volcko, 2013 NSSC 342) [28] The Applicant’s evidence regarding her efforts at self-sufficiency was the same in this hearing as at the divorce.

She has notsought any form of employment in the years following the separation or divorce; although she is well educated and medically able towork she clearly has no intention to do so. The Applicant’s efforts at self-sufficiency since the divorce and how they might inform thes.17(7) analysis are difficult to put in context because there have been none. [29] The Applicant continues to reside in the former family home, which would appear to well exceed her needs. She continues to setaside savings in each month.

Other than some conservative investments that have produced negligible gains, she continues to rely onspousal support payments as her source of income. [30] This case bears many factual similarities to Bethune v. Bethune, 2015 NSSC 95, where this Court commented on a payee’schoices and how they impact the analysis of self-sufficiency: [56] The tone of the Wife’s evidence illustrated that for her, it is been as though time has stood still for the almost nine years sincethe parties separation.

The Wife’s dissatisfaction with the amount of spousal support, as discussed in her evidence, belies the very notionthat, with respect, seems to have escaped her - as a separated (and now divorced) woman she could not have expected to continue to carryon an identical lifestyle when the sole source of income (the family trust) available to her and her Husband was now being used tofinance two distinct lifestyles in two households rather than two people carrying on a mutual lifestyle in one household. [57] While well-established modern legal principles surrounding the concepts of compensatory and non-compensatory support after alengthy traditional marriage dispense with any suggestion the Wife should have had to drastically reduce her lifestyle and the Husbandnot make any corresponding sacrifices, nonetheless the Wife’s entitlement did not necessarily permit her wish, more than obvious in her

evidence, to carry on as though no separation had happened. … [59] The evidence supports and I am satisfied there has been virtually no change in the Wife's day-to-day lifestyle since the parties'separation. Clearly the home the Wife occupies is much more than she requires.

The Wife testified that since separation she has beenvery careful about expenditures because of the amount of monthly dividend funds available to her … … [61 … The Wife has often been able to set aside savings out of the monthly dividend payment and in 2014 contributed $14,000.00 toher RRSP account, all in the absence of evidence that could support that she has truly maximized her efforts at self-sufficiency. … [63] Spousal support payments are not meant to be a blank cheque, in the sense that there must be some nexus between the payee’slegitimate needs and the payor’s ability to pay, while trying to achieve as much as possible an equalization of the parties' lifestyles.

TheWife’s non-compensatory claim does not necessarily require the Court to apportion the Husband’s income dollar for dollar to equalizetheir lifestyles. At present, the Wife’s lifestyle would seem to exceed that of the Husband, at least in terms of residence, the ability tocontribute to savings and employment hours worked. … [65] There is also the matter of the Wife's obligation to make all reasonable efforts at self-sufficiency. The Wife was age 49 atseparation; she is now 58 years of age.

She has a university education and a solid employment record to the date of marriage . . . … [67] While the notion of self-sufficiency does not necessarily hold the Wife to a requirement to secure highly lucrativeemployment, a goal which may not be possible, surely there has to be some nexus between her chosen field of training and a realisticprospect of a modest income, even if the lifestyle gap referred to earlier is never closed . . . [68] While the Wife has established a claim for both compensatory and non-compensatory support, spousal support is not to beseen as a lifetime pension. ... (emphasis added) [31] As in Bethune (supra), the Applicant continues to reside in the former family home, which greatly exceeds her needs, as is herchoice.

She has made no changes to her lifestyle of leisure and social pursuits, recreation and volunteering and no efforts to secureemployment. She certainly demonstrates an ability to both manage and save money, but has made no meaningful efforts to generate anysignificant income independent of the support payments. Her very conservative investments and very brief period of rental of a portion ofher home are negligible efforts. [32] Counsel for the Applicant invited the Court to impute income of $30,000 per year to the Applicant.

It is not clear how this figurewas reached, and I have no ability to assess whether that amount is meaningful nor to put it in context. It is not a figure which can beused as a “solution” to the lack of effort at self-sufficiency on the part of the Applicant. [33] There is no shortage of authority that in variations of compensatory spousal support awards after longer-term traditionalmarriages, the recipient may share in post-divorce increases in the payor’s income.

This approach serves to recognize the relationshipbetween the recipient’s contributions to the marriage and career/economic advantages of the payor, and post-separation gains by thepayor. That said, the failure of the recipient to demonstrate any efforts toward self-sufficiency have also impacted that relationship orconnection: [116] . . . if she is not making any effort towards self-sufficiency, it is also not fair that she be rewarded with an increased level ofsupport solely because the claimant continued to work hard and as a result enjoyed some economic success. (G.W.C. v.

K.C.C., 2015BCSC 1802) Likewise, a lack of effort at self-sufficiency has informed both downward variations in the quantum of support (Reid v. Gillingham, 2014NBQB 79 (appeal on other grounds dismissed, 2015 NBCA 27); Breed (supra)) and termination of the obligation (Choquette v.Choquette, 2019 ONCA 306). The Applicant’s lack of effort to explore self-sufficiency negatively impacts her compensatory entitlementto spousal support.

Issue No. 2(c) – Quantum and duration of support [34] Should the quantum of spousal support payment to the Applicant be impacted by the reduction in the Respondent’s income? [35] As this Court noted in Breed (supra): 42. … Chutter v. Chutter, 2008 BCCA 507 which decision recognized the principle that self-sufficiency is a relative conceptwhich takes into account that following long marriages there should be an effort to achieve rough equivalency of standards of living(Moge v.

Moge, (SCC), [1992] 3 SCR 813), that simply looking at the needs of the payee is an overly narrow approach,and that self-sufficiency encompasses more than meeting basic expenses (Fisher v. Fisher, 2008 ONCA 11 ). [36] Each party submitted charts in an effort to both depict and compare and contrast the parties’ respective net worth at presentversus at the time of divorce. I do not accept the Applicant’s assertions that the Respondent is much better off in comparison. Each partyowns an investment portfolio and real estate.

The Applicant has very modest debt relative to her asset pool, while the Respondent, whoearns all of the income available to either of them, is by comparison significantly indebted to creditors. An examination of “lifestyle” vis-

à-vis spousal support should not, in my view, be confined to a narrow consideration of who has higher monthly cash flow or a bigger home. [ 37 ] In terms of the lifestyle of these parties, in my view it is the Applicant who has an equal or superior lifestyle to that of the Respondent. Her most significant assets are a home (that well exceeds her requirements) and savings/investments. She has very modest debt (relative to the Respondent) and no employment responsibilities nor any infringements on her time.

The Applicant continues to lead a lifestyle which in almost all respects mirrors her lifestyle during the marriage. The Respondent’s most significant assets are a vacation home, a condo and an investment portfolio, all of which are heavily encumbered.

In contrast to the Applicant, much less of the Respondent’s time is his own due to his employment demands. [ 38 ] The Applicant stated in her evidence (Court Exhibit 1, Tab 2, para.3): I respectfully request that the Court review my spousal support, with a view to increasing it to a level at which I can reasonably save for my future, so that I have some security if Mr. Volcko seeks to terminate my support in the future. With respect, the Applicant would seem to suggest that she should have the ability to secure a higher support payment now to hedge against future contingencies which cannot be known.

That is not the basis for a variation. I do not accept there is any basis for the argument that the Applicant must achieve a higher quantum of support to fund, in effect, something analogous to a pension plan. [ 39 ] Despite the reduction in the Respondent’s 2017 and 2018 income, I am not persuaded it is necessary to make any changes to the quantum of support at this time.

The Respondent’s evidence established that he does have a modicum of control over the sale of his company shares, which to a certain extent allows him to exert influence over that income stream, at least with respect to the timing of generating cash from that asset. Further, as the Applicant has made certain lifestyle choices, so too has the Respondent, in terms of his expenditures and acquisitions, and he no longer has a child support obligation. I am satisfied he continues to be capable of meeting the current support obligation, even on his reduced 2017 and 2018 incomes.

Should the Respondent’s income continue to decrease from the 2018 rate, it may well trigger a reduction in his obligation in future. [ 40 ] The Applicant’s compensatory claim continues, rooted in the division of responsibilities during the marriage and the parties’ joint investment in the Respondent’s career.

However, this should not be interpreted as an “endorsement” of the Applicant’s lack of effort to explore self-sufficiency, nor does it eliminate the potential for changes in the future. [ 41 ] The more years that pass since separation, versus the number of years of marriage, the greater will be the diminution of the link between the Applicant’s present circumstances and her sacrifices in the marriage. Coupled with an absence of efforts at self-sufficiency and fluctuations in the Respondent’s annual income, at some point these may well be factors that tip the scales to termination.

While I am not prepared to terminate the spousal support obligation as I do not accept the Applicant’s compensatory claim is yet exhausted, it is inescapable that it will diminish with time. Issue No. 2(d) – Retroactive Spousal Support [ 42 ] The Applicant seeks retroactive support and relies on the principles articulated in Kerr v. Baranow , 2011 SCC 10 .

In that decision, Cromwell, J. on behalf of the Court recognized the discretionary nature of a retroactive payment in application of the so-called “ D.B.S. factors” – the needs of the recipient, the conduct of the payor, the reason for the delay in seeking relief, and hardship to the payor. The Respondent has been paying support from 2017 to present with less annual income than in any period since the quantum was set. There is no evidence to support the Applicant’s needs have been impacted by any of the upward or downward adjustments in the Respondent’s income.

The evidence was that neither party provided the other with their annual financial information before this application began, so the question of delay in seeking relief is “a draw”, as neither did what was required in that regard. [ 43 ] There is no adjustment made to the quantum of support, and the Applicant has had and will continue to enjoy the stability and certainty of the present payment. In contrast, it is the Respondent who has, and will continue by virtue of this decision to bear the burden of meeting a consistent payment despite his income fluctuations.

There is no reasonable basis for a retroactive payment. Issue No. 3(a) - Is the Court estopped from deciding the claim for insurance on the spousal support? [ 44 ] The Applicant wishes to insure the life of the Respondent to protect her spousal support payments in the event of his demise. She argues the Court should grant the relief to provide her with security, requiring her to bear the cost of the premiums, and by implication, requiring the Respondent to submit to the requirements of the insurer. In the alternative, she seeks to have the support obligation secured against his estate.

It is well settled that this Court has jurisdiction to impose a requirement to insure support payments. [ 45 ] The Respondent opposes permitting the Applicant to secure insurance on the basis that the issue is res judicata , having been previously decided and determined. At trial, the matter was raised during cross-examination of the Respondent. The trial decision did not address the relief raised in that exchange. The appeal decision also did not address that relief.

The parties do not disagree that Counsel for the Appellant (the Applicant in this case) then wrote to the Court of Appeal post-decision, asking for a ruling on the relief, and the Deputy Registrar replied on behalf of the panel that it “… did not overlook the insurance aspect raised, but decided not to address it in its reasons because it found there was no merit to the argument requiring Mr. Volcko to carry life insurance payable to Ms.

Volcko.” The parties also do not disagree that the Appellant’s subsequent application for leave to appeal to the Supreme Court of Canada from the judgment of the Nova Scotia Court of Appeal was dismissed. [ 46 ] The Applicant asserts the distinction in the present case is that she is not asking that the Respondent arrange for and purchase the insurance, but rather that she now be permitted to do so.

However, based on the contents of Court Exhibit 4, Tab 1, Tab H put before me (being a transcript of a portion of the trial) it is clear the request for the relief at trial was advanced as the suggestion the Applicant would pay for the coverage. [ 47 ] The test as to whether an issue is res judicata was set out in Armoyan v. Armoyan , 2013 NSCA 99 :

[335] In Hoque v. Montreal Trust Co. of Canada, 1997 NSCA 153 , [1997] N.S.J. No. 430 (C.A.) (Q.L.), leave to appealdenied [1997] S.C.C.A. No. 656, Justice Cromwell for the Court explained the rationale for res judicata: 20 Res judicata has two main branches: cause of action estoppel and issue estoppel. They were explained by Dickson, J. (as hethen was) in Angle v. M.N.R., (SCC), [1975] 2 S.C.R. 248; 2 N.R. 397; 47 D.L.R. (3d) 544 at 555 [D.L.R.] (Q.L.): “...

The first, ‘cause of action estoppel’, precludes a person from bringing an action against another when that same cause ofaction has been determined in earlier proceedings by a Court of competent jurisdiction. ..... The second species of estoppel per remjudicatam is known as ‘issue estoppel’, a phrase coined by Higgins, J., of the High Court of Australia in Hoysted et al. v.

FederalCommissioner of Taxation (1921), (UK JCPC), 29 C.L.R. 537 at pp. 560-1: I fully recognize the distinction between the doctrine of res judicata where another action is brought for the same cause of actionas has been the subject of previous adjudication, and the doctrine of estoppel where, the cause of action being different, some point orissue of fact has already been decided (I may call it "issue-estoppel"). 21 Res judicata is mainly concerned with two principles.

First, there is a principle that "... prevents the contradiction of that whichwas determined in the previous litigation, by prohibiting the relitigation of issues already actually addressed.": see Sopinka, Ledermanand Bryant, The Law of Evidence in Canada (1991) at p. 997. The second principle is that parties must bring forward all of the claimsand defences with respect to the cause of action at issue in the first proceeding and that, if they fail to do so, they will be barred fromasserting them in a subsequent action.

This "...prevents fragmentation of litigation by prohibiting the litigation of matters that were neveractually addressed in the previous litigation, but which properly belonged to it.": ibid at 998. Cause of action estoppel is usuallyconcerned with the application of this second principle because its operation bars all of the issues properly belonging to the earlierlitigation. ... 23 Res judicata requires that the previous court decision be final and between the same parties or their privies. ... [336] This Court has regularly applied Hoque: Kameka v.

Williams, 2009 NSCA 107, para 18 and para 1 of concurring reasons;Saulnier v. Bain, 2009 NSCA 51, para 6; Can-Euro Investments Ltd. v. Industrial Alliance Insurance and Financial Services Inc, 2013NSCA 76, para 31. [337] In Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 , [2001] 2 S.C.R. 460, Justice Binnie for the Court set out theauthoritative test. First, there are three pre-conditions: 24 Issue estoppel was more particularly defined by Middleton J.A. of the Ontario Court of Appeal in McIntosh v.

Parent, (ON CA), [1924] 4 D.L.R. 420, at p. 422: When a question is litigated, the judgment of the Court is a final determination as between the parties and their privies. Any right,question, or fact distinctly put in issue and directly determined by a Court of competent jurisdiction as a ground of recovery, or as ananswer to a claim set up, cannot be re-tried in a subsequent suit between the same parties or their privies, though for a different cause ofaction.

The right, question, or fact, once determined, must, as between them, be taken to be conclusively established so long as thejudgment remains. ... [Justice Binnie’s underlining] 25 The preconditions to the operation of issue estoppel were set out by Dickson J. in Angle [Angle v.

Minister of National Revenue, (SCC), [1975] 2 S.C.R. 248], at p. 254: (1) that the same question has been decided; (2) that the judicial decision that is said to create the estoppel was final; and, (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppelis raised or their privies. . . . [341] In Wright v. Nova Scotia (Public Service Long Term Disability Plan Trust Fund), 2006 NSCA 101, Justice Cromwell for theCourt applied Danyluk’s principles.

The initial ruling, that allegedly established the issue estoppel, was by an administrative tribunal - amedical appeal board that decided not to continue disability benefits. Justice Cromwell said that this ruling did not bar the subsequentaction in Court.

Respecting “potential injustice”, governing the residual discretion, Justice Cromwell said: [105] This factor requires “... the Court ... [to] stand back and, taking into account the entirety of the circumstances, considerwhether the application of issue estoppel in the particular case would work an injustice”: Danyluk at para 80. (emphasis added) [106] So far as one can tell from the record, there has never been any proper consideration by a neutral party of whether Mr. Wrightwas disabled within the meaning of the “any occupation” definition in the Plan.

It appears that his court action was the only way thatcould occur. The matter did not fall squarely within either the expertise or the terms of reference of the medical appeal board and, in thecircumstances of this case, there was no other adequate remedy. ... [108] In my view, this is a case in which the court’s discretion should be exercised to disallow the plea of issue estoppel. ... [48] I am persuaded that insuring the spousal support obligation for the benefit of the Applicant is the very same question that waspreviously decided by the Court of Appeal and that decision was final.

The same parties were involved then as now. Those pre-conditions having been satisfied, I must consider issue estoppel, which requires the balancing of the interest of the parties in the finalityof litigation with the interest of ensuring that justice is done in a particular case.

[ 49 ] I see no overbearing interest that would go unaddressed or injustice that would be created or perpetuated by denying the Applicant the ability to once again advance the claim. The Applicant does not now need to be afforded any fairness to raise a matter which she would otherwise be unable to put before the Court. [ 50 ] What the Applicant seeks amounts to an opportunity to raise again, not anew, an issue already adjudicated upon.

The only distinction here, and it is one without a difference, is that the Applicant now says, as she did at trial, that she will pay the premiums for the insurance policy as opposed to previously asking the Court of Appeal to require the Respondent to bear them. Regardless of who bears the cost, the proposed relief sought is exactly the same issue disposed of in the prior proceedings between the parties - that coverage be purchased to insure the payment obligation. [ 51 ] The Applicant’s claim for insurance coverage to insure the spousal support obligation of the Respondent is dismissed as res judicata.

Issue No. 3(b) – Should the obligation be secured against the Respondent’s estate? [ 52 ] I do not agree with the Applicant’s assertion that this is, in effect a different claim than previously advanced, and is therefore permitted under s.17(3) of the Act , which provides that: “The Court may include in a variation order any provision that under this Act could have been included in the order in respect of which the Variation Order is sought.” The relief sought could indeed have been included in the trial order, or the appellate court order, but as discussed above, it was not.

The request to have the support secured against the Respondent’s estate is merely an alternate path to trying to achieve the same end. That claim is also dismissed. I do not interpret s.17(3) as, in effect, permitting a “do-over” of the matter. Conclusion [ 53 ] In conclusion, I am satisfied there has been a change in circumstances found in the 2018 reduction of the Respondent’s income, which reduction does not necessitate a change in the quantum of support. The claim for increased support is dismissed. The SSAG do not apply to the determination of spousal support on this application.

The claim for a retroactive adjustment is dismissed. The claim for insurance on payments is res judicata , and the claim to secure payments against the Respondent’s estate is dismissed. The claim for a reduction in support is dismissed. The claim for termination of support is dismissed. [ 54 ] Neither party has had success in the Application or the Response to Application. It is appropriate for each party to bear their own costs. Beaton, J.