Dickson v. Dickson, 2011 MBCA 26

Citation: Dickson v. Dickson, 2011 MBCA 26 Date: 20110311 Docket: AF 10-30-07332 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Mr. Justice Richard J. Chartier Mr. Justice Alan D. MacInnes BETWEEN : JUDITH ELIZABETH DICKSON ) J. A. King and ) R. T. H. Hatherell (Petitioner) Respondent ) for the Appellant ) ) J. M.

Blair - and - ) for the Respondent ) ) Appeal heard: GERALD EDWARD DICKSON ) October 15, 2010 ) (Respondent) Appellant ) Judgment delivered: ) March 11, 2011 HAMILTON J.A. 1 The only issue in this appeal is whether the trial judge had the jurisdiction to order that the appellant (the husband) pay spousal support to the respondent (the wife) under The Family Maintenance Act , C.C.S.M., c. F20 (the FMA ) retroactive to the date of separation rather than the date of the filing of the wife’s application.

Given that it raises a question of law, the standard of review is correctness. 2 The husband and the wife separated on April 6, 2005.

The wife filed her application under the FMA on June 30, 2005. 3 The husband is a high-income earner and the central issue at trial was “income determination for the … [husband] for purposes of establishing and securing appropriate child support and spousal support” (at para. 3). 4 The trial judge ordered that the husband pay child support and spousal support from the date of separation. 5 The husband does not take issue with the retroactive child support in light of the Supreme Court’s decision in D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v.

Hiemstra , 2006 SCC 37 , [2006] 2 S.C.R. 231 ( DBS ). In DBS , the Supreme Court held that the application-based schemes for child support in the Divorce Act and the Alberta Parentage and Maintenance Act , R.S.A. 2000, c. P-1 (now repealed), do not preclude the court from considering a child support award that is retroactive in nature to enforce an obligation that existed prior to the date of filing of an application. 6 At the appeal hearing, the husband argued that DBS should not be extended to spousal support applications because spousal support differs fundamentally from child support. In Kerr v.

Baranow , 2011 SCC 10 , released after the hearing of the appeal, the Supreme Court upheld an order of spousal support under the British Columbia Family Relations Act , R.S.B.C. 1996, c. 128, that was retroactive to the date of filing of the application. As will be explained in more detail, Cromwell J., for the unanimous court, concluded that the factors articulated in DBS should apply when the court is considering an application for retroactive spousal support, notwithstanding the different legal foundation between child support and spousal support.

Thus, Kerr is a complete response to the husband’s argument that the principles articulated in DBS should not be applied to spousal support cases. 7 The husband also argued that the trial judge did not have the jurisdiction to award spousal support from the date of separation given the statutory scheme set out in the FMA , and more particularly, because the FMA does not contain an express provision permitting such an award. In this regard, he relies on the reasoning of this court in Mellway v.

Mellway , 2004 MBCA 119 , 187 Man.R. (2d) 247. 8 Therefore, the issue that must still be addressed is whether the statutory scheme under the FMA permitted the trial judge to

order spousal support retroactive to the date of separation. 9 The husband says that a court may only order spousal support after an application under s. 10(1) of the FMA is filed. While he acknowledges that ss. 4 and 5 of the FMA set out rights of mutual support between spouses, he says that it is what the FMA does not say that is crucial. He points out that it does not state that the court has the power to enforce those rights and obligations before an application has been filed.

He asserts that without a specific provision to allow the court to order spousal support to commence at a date prior to the filing of an application, the court is without jurisdiction to make such an order. 10 In response, the wife says that the trial judge made no error in law given the reasoning of the Supreme Court in DBS and the existence of the mutual support obligation of spouses under s. 4(1) of the FMA .

She says that the lack of any restriction in the FMA as to the date from which the court may order spousal support is telling, particularly given that the Legislature saw fit, in s. 46(3) of the FMA , to restrict the retroactivity of spousal support variation orders to the date of the filing of the application to vary. Her position is that the trial judge was enforcing an obligation that existed at the time of separation and he did not make a truly retroactive order, as explained in DBS . The FMA and the Divorce Act 11 I set out now the provisions of the FMA and the Divorce Act that are pertinent to this appeal.

The FMA Mutual support obligation 4(1) Spouses and common-law partners have the mutual obligation to contribute reasonably to each other’s support and maintenance. Personal expenses 5 The right of a spouse or common-law partner to support and maintenance within the meaning of

section 4 includes the right, while living with the other spouse or common-law partner, to periodic reasonable amounts for clothing and other personal expenses and the right to sole discretion free of all interference from the other spouse or common-law partner in the use of those amounts. Onus of self-support after separation 6 Notwithstanding

section 4, a spouse or common-law partner has the obligation after separation to take all reasonable steps to become financially independent of the other spouse or common-law partner. Factors affecting order 7(1) In determining whether to make an order under this Part or

section 46, what provisions the order should contain, and, in particular, what is reasonable under sections 4, 5 and 6 for the purposes of the order, a court shall consider all the circumstances of the spouses or common-law partners, including the following: (

a) the financial needs of each; (

b) the financial means, earnings and earning capacity of each; (

c) the standard of living of the spouses or common-law partners; (

d) any obligation of either of them for the support and maintenance of a child or a person other than the other spouse or common-law partner; (

e) any contribution of a spouse or common-law partner within the meaning of subsection (2); (

f) the amount of any property settlement made between them;

(

g) where one of them is financially dependent upon the other, the measures available for the dependent person to become financially independent of the other, and the length of time and cost involved in taking those measures; (

h) any impairment of the income-earning capacity and financial status of either resulting from the marriage or common-law relationship; (

i) where one of them is financially dependent upon the other, whether and to what extent the dependent spouse or common-law partner is complying with the requirements of

section 6; (

j) the duration of the marriage or common-law relationship. Application for order 9(1) A spouse or common-law partner, or any person on his or her behalf, may apply to a court for an order of support and maintenance where (

a) the other spouse or common-law partner is in breach of an obligation under this Part; or (

b) an order is desired to fix the amount of support and maintenance payable to the other spouse or common-law partner. Order 10(1) Upon an application under this Part, a court may make an order …: (

a) That one spouse or common-law partner pay to the other spouse or common-law partner, or to a third person on his or her behalf, such lump sum or periodic sums or both for support and maintenance or for clothing and other personal expenses as the court may determine. . . . . . Application of Division 1 40.1 This Division applies to an order or an application for an order under this Act. Application to vary or discharge order 46(1) This

section applies to an application to the court to vary or discharge (

a) an order made under (

i) this Act, other than a child support order governed by

section 37.2, or (ii) The Wives’ and Children’s Maintenance Act (now repealed); or (

b) an order made under The Child Welfare Act (now repealed) granting custody of, access to or maintenance for a child.

Order to vary or discharge 46(2) The court that made an order referred to in subsection (1) may, on application, vary or discharge that order if the court thinks it is fit and just to do so, having regard to any material change in circumstances that has occurred since the order was made or last varied. Effective date of order 46(3) An order made under subsection (2) is not effective before the filing date of the application to the court to vary or discharge the order. The Divorce Act Child support order 15.1

(1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to pay for the support of any or all children of the marriage. Spousal support order 15.2

(1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse. Order for variation, rescission or suspension 17

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

a) a support order or any provision thereof on application …; . . . . . [emphasis added] Analysis and Decision 12 In Kerr , the issue was whether the appellate court “erred in its application of the relevant factors and ought not to have set aside the trial judge’s order” (at para. 200) of spousal support effective from the date Ms Kerr filed her application.

Cromwell J. specifically noted that Ms Kerr was not seeking retroactive support for a period before her application was filed and that the legal distinction between retroactive support before, and after, an application is filed is that “there is less need for judicial restraint” (at para. 203) for retroactive support after the date of filing. By this reference, Cromwell J. was not addressing the issue of the court’s jurisdiction to award retroactive spousal support.

Rather, he was noting that there is a distinction arising from what factors the court should consider when exercising its discretion to award retroactive spousal support. 13 While Kerr is not about jurisdiction per se, Cromwell J. did address the issue of jurisdiction when he looked first at the provincial legislative scheme at issue to ensure that it did not preclude the trial judge from awarding spousal support from the date of Ms Kerr’s application (at para. 204): There is no doubt that the trial judge had the discretion to award support effective the date proceedings had been commenced.

This is clear from the British Columbia Family Relations Act , R.S.B.C. 1996, c. 128 (“ FRA ”), s. 93(5) (d):

(5) An order under this

section may also provide for one or more of the following:

. . . (

d) payment of support in respect of any period before the order is made . 14 This analysis was in keeping with the following comments of Bastarache J. in DBS (at para. 54 ): …. Thus, under the federal scheme, a payor parent who does not increase his/her child support payments to correspond with his/her income will not have fulfilled his/her obligation to his/her children. However, provinces remain free to espouse a different paradigm.

When an application for retroactive support is made, therefore, it will be incumbent upon the court to analyze the statutory scheme in which the application was brought. [emphasis added] 15 In DBS , Bastarache J. concluded that neither the Divorce Act nor the Alberta legislation restricted the court from ordering retroactive child support (at para. 81): Jurisdiction to award retroactive child support in this circumstance is found in s. 15.1 of the Divorce Act and s. 16 of the Parentage and Maintenance Act .

In the Alberta statute, the legislature simply decrees that an order may be made for payments for the maintenance of the child. Similarly, in the Divorce Act , Parliament allows a court to make “an order requiring a spouse to pay for the support of any or all children of the marriage”: s. 15.1(1) .

There is therefore no restriction in either statute as to the date from which the court may order that the award take effect . [emphasis added] 16 After being satisfied that the provincial legislation permitted the retroactive order awarded by the trial judge in Kerr , Cromwell J. then concluded that the considerations articulated in DBS with respect to awarding retroactive child support are applicable to an application for retroactive spousal support.

It is in this context that he explained the fundamental difference between child support and spousal support (at paras. 207-8): While D.B.S . was concerned with child as opposed to spousal support, I agree with the Court of Appeal that similar considerations to those set out in the context of child support are also relevant to deciding the suitability of a “retroactive” award of spousal support. Specifically, these factors are the needs of the recipient, the conduct of the payor, the reason for the delay in seeking support and any hardship the retroactive award may occasion on the payor spouse.

However, in spousal support cases, these factors must be considered and weighed in light of the different legal principles and objectives that underpin spousal as compared with child support. I will mention some of those differences briefly, although certainly not exhaustively. Spousal support has a different legal foundation than child support.

A parent-child relationship is a fiduciary relationship of presumed dependency and the obligation of both parents to support the child arises at birth. [In] that sense, the entitlement to child support is “automatic” and both parents must put their child’s interests ahead of their own in negotiating and litigating child support.

Child support is the right of the child, not of the parent seeking support on the child’s behalf, and the basic amount of child support under the Divorce Act , R.S.C. 1985, c. 3 (2nd Supp.), (as well as many provincial child support statutes) now depends on the income of the payor and not on a highly discretionary balancing of means and needs. These aspects of child support reduce somewhat the strength of concerns about lack of notice and lack of diligence in seeking child support.

With respect to notice, the payor parent is or should be aware of the obligation to provide support commensurate with his or her income. As for delay, the right to support is the child’s and therefore it is the child’s, not the other parent’s position that is prejudiced by lack of diligence on the part of the parent seeking child support: see D.B.S. , at paras. 36-39, 47-48, 59, 80 and 100-104 . In contrast, there is no presumptive entitlement to spousal support and, unlike child support, the spouse is in general not under any legal obligation to look out for the separated spouse’s legal interests.

Thus, concerns about notice, delay and misconduct generally carry more weight in relation to claims for spousal support : see, for example, M.L. Gordon, “Blame Over: Retroactive Child and Spousal Support in the Post-Guideline Era” (2004-2005), 23 C.F.L.Q. 243, at pp. 281 and 291-92. [emphasis added]

17 In commenting further about the applicability of the DBS factors to retroactive spousal support applications, Cromwell J.stressed the need for flexibility and a holistic approach by the court (at para. 212): …. Consideration of the circumstances of the spouse seeking support, by analogy to the D.B.S. analysis, will relate to the needs of thespouse both at the time the support should have been paid and at present.

The comments of Bastarache J. at para. 113 of D.B.S. may beeasily adapted to the situation of the spouse seeking support: “A [spouse] who underwent hardship in the past may be compensated forthis unfortunate circumstance through a retroactive award. On the other hand, the argument for retroactive [spousal] support will be lessconvincing where the [spouse] already enjoyed all the advantages (s)he would have received [from that support]”.

As for hardship, thereis the risk that a retroactive award will not be fashioned having regard to what the payor can currently afford and may disrupt the payor’sability to manage his or her finances. However, it is also critical to note that this Court in D.B.S. emphasized the need for flexibility and aholistic view of each matter on its own merits; the same flexibility is appropriate when dealing with “retroactive” spousal support. [emphasis added] 18 The existence of the ongoing parental obligation of child support was fundamental to the reasoning in DBS.

Bastarache J.distinguished retroactive child support orders from “truly retroactive” orders (at paras. 68, 82): …. Yet a retroactive child support order, as considered in the present appeals, does not involve imposing an obligation on a payor parentthat did not exist at the time for which support is being claimed: compare Gustavson Drilling

(1964) Ltd. v. Minister of NationalRevenue, (SCC), [1977] 1 S.C.R. 271, at p. 279. As I concluded above, a payor parent always has the obligation to pay –and the dependent child always has the right to receive – child support in an amount that is commensurate to his/her income. Thisobligation is independent of any court order that may have been previously awarded. …. ….

So long as the court is only enforcing an obligation that existed at the relevant time, and is therefore not making a retroactive order inthe true sense, I see no reason why courts should be denied the option of making this sort of award. [emphasis added] 19 The foregoing demonstrates that two questions must be addressed to determine whether the trial judge had the jurisdiction toorder retroactive spousal support to the date of separation: 1) Was there an existing obligation to pay spousal support at the time of separation; and 2) Is there a restriction in the FMA as to the date from which the court may order that the award take effect? 20 As I will now explain, the husband had an obligation to pay spousal support at the time of separation and the FMA does notrestrict the date from which retroactive spousal support may take effect. 21 Sections 4 and 5 of the FMA speak to the mutual support obligation of spouses (and common-law partners).

This obligationreflects the foundational principle that mutual support obligations for married persons crystallize upon solemnization of marriage. SeeBracklow v. Bracklow, (SCC), [1999] 1 S.C.R. 420 at para. 20. However, the presumption of mutual support no longerapplies when the marriage breaks down. See Bracklow at para. 21. Also, see Kerr at para. 208. At this stage, the court must assess avariety of well-known factors that are legislated and addressed in the case law, including the effect of the marriage breakdown on aspouse. As stated in Gabb v.

Gabb, 2001 MBCA 19, 153 Man.R. (2d) 157, by Scott C.J.M. (at para. 10): Bracklow v. Bracklow, (SCC), [1999] 1 S.C.R. 420; 236 N.R. 79; 120 B.C.A.C. 211; 196 W.A.C. 211, establishes thatentitlement to spousal support may be grounded on any combination of three bases, namely, contract, compensation for thedisadvantages arising out of the marriage or its breakdown, or support required to relieve the economic hardships …. …. 22 Legislated factors under the FMA are found in ss. 6 and

Section 6 provides that notwithstanding the mutual supportobligation, a spouse “has the obligation after separation to take all reasonable steps to become financially independent of the otherspouse.”

Section 7 sets out the many factors that a court is to consider when “determining whether to make an order … and … what isreasonable under sections 4, 5 and 6.” These factors are, as stated by the trial judge, “not appreciably different in effect from those setout in … the Divorce Act” (at para. 85). It is well accepted that the same principles that govern spousal support entitlement under theDivorce Act apply to spousal support applications under the FMA. 23 It is trite to say that one of the spouses often has immediate need of financial support from the other upon separation. The

trial judge identified this need of the wife in this case (at paras. 84, 88): On the evidence presently before the court there is no reason to believe that the [wife] will achieve anything resembling economic independence anytime soon let alone any semblance of the lifestyle earlier enjoyed by all members of this family. She has been clearly disadvantaged by the breakdown of the marriage. After 23 years of married life and four years of separation she remains clearly entitled to spousal support from the husband within the meaning of

Part I of the F.M.A. This entitlement is acknowledged in argument by counsel for the husband. Here the wife has been clearly disadvantaged by the breakdown of the marriage. Without the continuing support of her husband of many years she will be completely impoverished and her lifestyle will be but a small fraction of that which her husband is able to enjoy. Spousal support is clearly required to relieve her economic hardship arising from the breakdown of this marriage. 24 Clearly, the husband’s obligation to provide reasonable support existed at the time of separation.

T he wife’s application under s. 9 of the FMA simply triggered the court’s jurisdiction to enforce this obligation by making an order under s. 10(1) .

As stated by Bastarache J. in DBS , “ while an application is a necessary trigger to the court’s jurisdiction, the court may still retain the power to make a retroactive order once it is properly seized of a matter” (at para. 60). 25 As to whether the statutory scheme established under the FMA precludes a retroactive spousal support order back to the date of separation, I note that the FMA is not like the Alberta Parentage and Maintenance Act , cited in DBS , where there was an express provision to make an order for “reasonable expenses for the maintenance of the child before the date of the order” (s. 16(2)).

This type of express provision is also found in other provincial legislation. See s. 93 of the British Columbia Family Relations Act ; s. 34 of the Ontario Family Law Act , R.S.O. 1990, c. F.3; s. 116 of the New Brunswick Family Services Act , S.N.B. 1980, c. F-2.2; s. 21 of the Northwest Territories Family Law Act , S.N.W.T. 1997, c. 18; s. 38 of the Yukon Family Property and Support Act , R.S.Y. 2002, c. 83; and s. 34 of the Prince Edward Island Family Law Act , S.P.E.I. 1995, c. 12. 26 Having said that, there is no express provision in the FMA that prohibits a retroactive spousal support order.

In DBS , Bastarache J. addressed the same situation in the context of s. 15.1(1) of the Divorce Act , which allows a court to “make an order” requiring a parent to pay child support. As explained earlier, Bastarache J. interpreted this to mean that “[t]here is therefore no restriction … as to the date from which the court may order that the award take effect” (at para. 81).

Similarly, s. 15.2(1) of the Divorce Act provides that a court may “make an order” of spousal support on application by a spouse. 27 These references to “make an order” in the Divorce Act read similarly to s. 10(1) of the FMA , which also provides that a court “may make an order” of spousal support.

Thus, just as Bastarache J. concluded that there is no restriction in s. 15.1(1) of the Divorce Act , I conclude that there is no restriction in s. 10(1) of the FMA “as to the date from which the court may order that the award [of spousal support] take effect.” 28 In DBS , Bastarache J. explained why Parliament did not see the need to address retroactivity for original orders under the Divorce Act when Parliament specifically provided for retroactivity of variation orders (at para. 83): It is true that the term “retroactively” is absent from s. 15.1 of the Divorce Act , while Parliament used this explicit wording to demonstrate its intention in s. 17 .

But I believe this drafting choice can be explained based on my reasoning above. Neither in the case of a retroactive variation order nor in the case of a retroactive original order is the court creating a new obligation for the payor parent and applying it after the fact. However, in the case of a retroactive variation order, the original order itself is indeed being varied retroactively: in the strictest, literal sense, the court order that stated a certain amount was due on a certain date is now being altered – after that date has passed – to state that a greater amount was due .

The obligation to pay the greater amount was always present, but the original order had to be changed to reflect that. This feature is not present in the case of retroactive original orders.

It is for this reason that I believe Parliament felt it unnecessary to resort to language permitting retroactivity. [emphasis added] 29 The FMA is different because s. 46(3) provides that a variation of a spousal support order “is not effective before the filing date of the application to the court to vary or discharge the order.” In my view, this express restriction highlights the absence of such an express restriction with respect to an original order of spousal support and underscores that an original order of spousal support may be retroactive to a date preceding the date of application. Such an

interpretation is in keeping with the presumption of coherence in statutory

interpretation explained by Ruth Sullivan, Sullivan on the Construction of Statutes , 5th ed. (Markham: LexisNexis Canada Inc., 2008) (at p. 223): Governing principle . It is presumed that the provisions of legislation are meant to work together, both logically and teleologically, as parts of a functioning whole. The parts are presumed to fit together logically to form a rational, internally consistent framework; and because the framework has a purpose, the parts are also presumed to work together dynamically, each contributing something toward

accomplishing the intended goal. This presumption is the basis for analyzing legislative schemes, which is often the most persuasive form of analysis. The presumption of coherence is also expressed as a presumption against internal conflict. It is presumed that the body of legislation enacted by a legislature does not contain contradictions or inconsistencies, that each provision is capable of operating without coming into conflict with any other. …. 30 One final comment. I emphasize that this appeal is very narrow in scope.

It concerns only whether the trial judge had the jurisdiction to order spousal support retroactive to the date of separation. As to when it is appropriate to make such an order was not before us.

Having said that, it is clear that DBS and Kerr now provide helpful guidance on this issue. 31 To conclude, given that the husband had an obligation to provide reasonable support to the wife at the date of separation, and given that there is no restriction in the FMA as to the date from which the court may order an original order of spousal support, the trial judge had the jurisdiction to make the order that he did. 32 The wife filed a cross appeal that need not be addressed given my conclusion, and I would dismiss it. 33 I would dismiss the husband’s appeal and grant one set of costs in favour of the wife. J.A.

I agree: J.A. I agree: J.A.