Wagstaff v. Marche, 2014 NLCA 28

Date: 201407 07 Docket: 13/11 Citation: Wagstaff v. Marche , 2014 NLCA 28 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : BARBARA ALLISON WAGSTAFF APPELLANT AND : ROY MARCHE RESPONDENT Coram: Welsh, Barry and White JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Corner Brook (F) 200704T0032 Appeal Heard: May 13, 2014 Judgment Rendered: July 7, 2014 Reasons for Judgment by Barry J.A. Concurred in by White J.A. Dissenting Reasons by Welsh J.A. Counsel for the Appellant: Adam J. Crocker Counsel for the Respondent: Fred Stagg Q.C.

Barry J.A.: [1] Barbara Wagstaff appeals a decision of February 7, 2013, which ordered that effective February 2, 2013, Roy Marche berelieved of his obligation to pay her spousal support. The trial judge had ordered that Mr. Marche pay spousal support of $416.00 permonth commencing on March 1, 2009, continuing for four years, with a provision for review after February 28, 2013 and permission toapply for a variation within the four-year period, based on a material change in circumstances. [2] The application for variation was filed by Mr. Marche on November 18, 2011.

The hearing occurred on October 11, 2012 anda decision was rendered on February 7, 2013. [3] An applications judge held that Ms. Wagstaff’s cohabitation with another man and her employment income from a companyowned by her new partner constituted material changes. He rejected Ms. Wagstaff’s argument of continuing need because he found shewas “the author of her own difficulties” by her choice to remain underemployed instead of retraining or pursuing a career based upon herdegree in psychology. [4] The applications judge did not expressly deal with Ms.

Wagstaff’s application to increase her spousal support based upon Mr.Marche’s increased income. He held that Ms. Wagstaff would be fully compensated for the hardship she suffered as a result of themarriage breakdown when the last payment ordered by the trial judge had been made, and he relieved Mr. Marche of his spousal supportobligation, effective February 2, 2013. THE ISSUES [5] Five main issues arise. Did the applications judge err: (

a) by effectively conducting a review of the spousal support order rather than considering whether a variation was warranted because ofa change in material circumstances? (

b) by omitting to consider Ms. Wagstaff’s application for a variation based upon Mr. Marche’s increased income? (

c) by over-emphasizing self-sufficiency and ignoring or under-emphasizing Ms. Wagstaff’s economic needs? (

d) by failing to properly consider the significance of Ms. Wagstaff’s cohabitation with a third party, which saw her sharing certainexpenses and living rent-free? (

e) by failing to properly recognize the impediments to Ms. Wagstaff’s full-time employment arising from her child-care responsibilitiesrelating to a diabetic son? THE LAW AND ANALYSIS (

a) Review or variation [6] Mr. Marche applied on September 13, 2011 for a variation in support due to a material change in circumstances. Theapplications judge adjudicated upon the limits of Ms. Wagstaff’s entitlement to support based on compensatory principles and also on theobjective of self-sufficiency as it related to her current circumstances, essentially without reference to the effect of the material change incircumstances that he found were established. It was on the basis of his analysis of those two issues that he relieved Mr. Marche of hisspousal support obligations.

The applications judge thereby effectively conducted a review hearing. [7] The onus on an applicant for variation is quite distinct from that on an applicant at a review hearing. At a review hearing theparties may have support awards altered without demonstrating a material change in circumstances. On an application for variation, theapplicant bears such an onus and the test for variation is a strict one. See Leskun v. Leskun, 2006 SCC 25, [2006] 1 S.C.R. 920. [8] In Tobin v. Tobin (1974), (ON SC), 19 R.F.L. 18 (Ont.

H.C.J.), the Court held that the applications judgehad erred when he essentially “unlocked the door to a reconsideration of the whole matter” by effectively conducting a review of spousalsupport based upon his view of the need for compensation to reflect the economic disadvantage from the marriage, rather than basing hisdecision upon the effect of a material change in circumstances. The same error occurred in the present case. The trial judge’s decisionprovided for a review after February 28, 2013. Mr.

Marche was not entitled to a review in September, 2011, when he filed hisapplication, nor in October, 2012, the date of the hearing. (

b) Mr. Marche’s increased income [9] The applications judge noted the increase in Mr. Marche’s income from $52,917.00 when the 2009 spousal support order wasmade to $68,503.00 in 2011. However, he made no reference to why this would not provide a basis for increasing the amount of spousalsupport. This was an error, unless the applications judge was correct in concluding Ms. Marche should have been self-sufficient by thetime of the decision. (

c) Self-sufficiency [10] The applications judge concluded “Ms. Wagstaff’s financial predicament is attributable to her failure to make her economicwell-being a priority”. He noted that “she was given a reasonable four year timetable to attain self-sufficiency” and that it was herpersonal choice to remain underemployed. In fact, the trial judge had noted in 2009 that in four years’ time, by February, 2013, Ms.Wagstaff should be “in a position to take steps toward economic self-sufficiency”, as her two sons grew older. So the original supportorder following trial anticipated Ms.

Wagstaff not being fully self-sufficient by 2013. That was the reason a review was to beconducted. The applications judge erred in concluding the trial judge had given Ms. Wagstaff only four years to attain self-sufficiency.

(

d) Cohabitation [11] The parties acknowledged before the applications judge that the original support order was mainly compensatory in nature. Thetrial judge noted that Ms. Wagstaff had been economically disadvantaged by the role she assumed during the marriage and has continuedto assume since its breakdown (a reference to child care responsibilities).

The judge concluded she was entitled “to some relief from theeconomic hardship that arises from the marriage breakdown”. [12] The benefits flowing from subsequent cohabitation with a third party are a factor to be considered in determining need on anapplication for variation. See, Bell v. Bell, (2000), (NL SC), 192 Nfld. & P.E.I.R. 26 (Nfld. U.F.C.), at paras. 43-47,and Kent v. Kent, 2010 NLCA 53, 301 Nfld. & P.E.I.R. 152, at paras. 86 ff. But any restrictions on those benefits arising from acohabitation agreement are also relevant. Counsel for Mr.

Marche suggests the cohabitation agreement in the present case, dated August2, 2010, is merely a device to insulate Ms. Wagstaff from any attempt to reduce her spousal support. This is pure speculation. Noevidence has been provided to support this conjecture and I reject it. [13] In Ms. Wagstaff’s circumstances, Mr. Marche is entitled to put forward the benefits from cohabitation, calculated in the contextof the cohabitation agreement and its restrictions, as a factor to be considered in his favour on his application to reduce or rescind thespousal support order.

But his increased income provides a factor weighing probably just as heavily in Ms. Wagstaff’s favour. (

e) Child care responsibilities [14] Ms. Wagstaff put forward her child care responsibilities, especially those arising from the fact one son is a diabetic, as a reasonwhy she could not achieve full-time employment up to 2013. I agree this is a factor which should have been considered by theapplications judge in determining whether she was under-employed by choice. With respect, the applications judge erred by ignoringthis.

SUMMARY AND DISPOSITON [15] In

summary: (

i) The applications judge erred in effectively conducting a review of the trial judge’s decision, rather than restricting himself to adecision on whether a material change in circumstances warranted a variation of the amount of child support. (ii) The applications judge erred in failing to consider how Mr. Marche’s increased income in 2011 should impact upon the amount ofspousal support Ms. Wagstaff should be entitled to from the date of the increase. (iii) The applications judge erred in over-emphasizing self-sufficiency and concluding the trial judge had set a deadline of four yearswithin which Ms.

Wagstaff was to achieve this. (iv) The applications judge properly considered the fact of Ms. Wagstaff’s cohabitation with a third party and benefits thereby acquiredbut should have calculated these in the context of the cohabitation agreement in determining the proper amount for spousal support. (

v) The applications judge erred by not giving Ms. Wagstaff sufficient credit for her child care responsibilities before concluding shewas under-employed by her own choice. [16] On the basis of the above conclusions, two things remain outstanding to dispose of this matter: first, a determination should bemade of what spousal support should have been as of September 13, 2011, the date of the application, considering all relevant factors,including Ms. Wagstaff’s cohabitation benefits and income from her partner’s company as well as Mr.

Marche’s increased income and,second, provision should be made for a proper review of the support order, effective 2013, if either of the parties so wishes. [17] It is ordered that either party has leave to apply to the Trial Division (Family) for a proper determination of what the amount ofspousal support should have been, from September 2011 to February 28, 2013, based upon the above conclusions. [18] It is further ordered that either party has leave to apply to the Trial Division (Family) for a review of the parties’ circumstancesfollowing February 2, 2013, to determine whether payments for spousal support should continue and the duration of such payments.

Toassist the parties in deciding whether to seek a review, it may be helpful to point out: (

i) the trial judge contemplated that Ms. Wagstaff would probably not be fully self-sufficient by 2013 but would have been in a positionto become so once her children became adults; (ii) some reduction in spousal support would probably follow from this consideration, with support payments probably ceasing in two tothree years; and (iii) a review judge will be entitled to attribute additional income to Ms. Marche, should she be underemployed, and benefits fromcohabitation such as rent-free accommodation will also be a factor. [19] In the circumstances, the parties shall bear their own costs.

__________________________________ L. D. Barry J.A. I Concur: _________________________________ C. W. White J.A. Dissenting Reasons by Welsh J.A. [20] By decision dated March 5, 2009, Butler J. ordered Mr. Marche to pay spousal support for a period of four years in thefollowing terms (2009 NLTD 31): [70] I Order that Mr. Marche shall pay spousal support to Mrs. Marche of $416.00 per month on the first of each month commencingMarch 1, 2009 and to continue for four years.

After February 28, 2013 there shall be a review of the parties’ circumstances (unless theparties have reached agreement on the terms of spousal support entitlement, duration and quantum (if any) to be paid thereafter). Nothing contained in this portion of the judgment shall preclude either party from making Application to vary spousal support within thefour-year period referred to above on the basis of a material change in circumstances. Without limiting the foregoing, if Mr. Marcheshould lose his employment or Mrs.

Marche be successful, earlier than anticipated, in earning substantial income, I would consider suchfacts as unforeseen. [21] In making the order for spousal support, Butler J. took the following factors into account: the marriage was of medium durationduring which Ms. Wagstaff was a full-time homemaker who took primary responsibility for care of the two children who were ageseleven and eight at the time of separation in January 2006; the younger child has diabetes which requires medication and monitoring bothday and night; Ms.

Wagstaff was active doing unpaid volunteer work; prior to moving to Newfoundland in 1993, Ms. Wagstaff obtaineda Bachelor of Arts degree in psychology; Mr. Marche is a welder who earned approximately $53,000 and $54,000 in 2007 and 2008;while the parties were divorced in 2007, the family continued to live in a small community where Mr. Marche was employed, but whereMs. Wagstaff had limited employment options. I note that, after Butler J.’s decision in March 2009, Ms. Wagstaff moved to the St.John’s area sometime prior to July 2010 when she began cohabiting with Mr. Myles. [22] Regarding Ms.

Wagstaff’s situation, Butler J. explained: [55] [Ms. Wagstaff] is 38 years of age, well educated, intelligent, and energetic.

She has a great deal to offer a potential employer butin the mainstream workplace she will be competing with more recent graduates who may be perceived as more attractive to someemployers. … She is entitled to some relief from the economic hardship that arises from the marriage breakdown. … [58] Based upon the evidence I received, it is anticipated that in four years’ time, (by September 2012) [the elder child] will bepursuing some form of post-secondary education. … At that time [the younger child] will be in grade 10, through the worst ofadolescence and assuming greater responsibility for his diabetes. [Ms.

Wagstaff] should therefore be in a position to take steps towardseconomic self-sufficiency. [23] Butler J. concluded that Ms. Wagstaff would have tax-free income of approximately $17,000 per year, and that Mr. Marche,after paying taxes, employment benefits and child support, “would have left to support himself and assist [Ms. Wagstaff] directly, only$27,000.00 per year” (paragraph 61). [24] On November 18, 2011, Mr. Marche applied to vary the spousal support order, by rescinding or reducing it, on the basis ofchanged circumstances. Mr. Marche relied on two factors: Ms.

Wagstaff was earning some income from employment, and she wascohabiting with Mr. Myles. In response, Ms. Wagstaff raised the issue of Mr. Marche’s increase in income from about $53,000 to$68,000 per year. [25] On the application to vary, by decision dated February 7, 2013, Peddle J. concluded that spousal support should continue at theprescribed rate, but that it would be terminated as of the date set by Butler J. for a review. ANALYSIS [26] I begin with the approach to be taken to the appeal of a support order, as stated in Hickey v.

Hickey, (SCC),[1999] 2 S.C.R. 518: [10] When family law legislation gives judges the power to decide on support obligations based on certain objectives, values, factors,and criteria, determining whether support will be awarded or varied, and if so, the amount of the order, involves the exercise ofconsiderable discretion by trial judges. They must balance the objectives and factors set out in the Divorce Act or in provincial supportstatutes with an appreciation of the particular facts of the case. It is a difficult but important determination, which is critical to the livesof the parties and to their children.

Because of its fact-based and discretionary nature, trial judges must be given considerable deferenceby appellate courts when such decisions are reviewed. … [12] … Though an appeal court must intervene when there is a material error, a serious misapprehension of the evidence, or an errorin law, it is not entitled to overturn a support order simply because it would have made a different decision or balanced the factors

differently. [27]

Section 17 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), provides for variation of a support order:

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

a) a support order or any provision thereof by either or both former spouses; … …

(4.1) Before a court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in thecondition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order …and, in making the variation order, the court shall take that change into consideration. …

(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 aboveany 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. [28] The courts have required a material change in circumstances to ground the variation of a support order under

section 17. InL.M.P. v. L.S., 2011 SCC 64, [2011] 3 S.C.R. 775, Abella and Rothstein JJ., for the majority, reiterated: [44] In sum, it bears repeating that the threshold question under s. 17, whether or not there is an agreement, is the one Sopinka J.described in Willick [ (SCC), [1994] 3 S.C.R. 670], namely: In deciding whether the conditions for variation exist, it is common ground that the change must be a material change of circumstances. This means a change, such that, if known at the time, would likely have resulted in different terms.

The corollary to this is that if thematter which is relied on as constituting a change was known at the relevant time it cannot be relied on as the basis for variation. [p. 688] [29] Peddle J. accepted that there had been a material change in circumstances in this case when, in July 2010, Ms. Wagstaff begancohabiting with a new partner: [10] I am satisfied that repartnering by Ms. Wagstaff within the period set for review was not foreseen when the initial order wasmade; it is of real importance and it is continuing.

The threshold test of “a material change in circumstances” has been met. [11] The repartnering of the support recipient does not mean automatic termination of spousal support. It does have an effect, howmuch, when and why depends on the circumstances of each case. The basis for the last order is an important factor. In addition, Peddle J. considered Ms. Wagstaff’s employment commencing in April 2011 to be a relevant factor. I note that Ms.Wagstaff’s cohabitation with Mr.

Myles resulted in her taking up residence in a locale that permitted significantly increased access toretraining and employment options. [30] The conclusion that there had been a material change in circumstances was not appealed, though Ms. Wagstaff raised the effectof a cohabitation agreement with Mr. Myles as a factor in the analysis of whether Peddle J. erred in varying the order. The requirementfor a material change having been satisfied, Peddle J. proceeded to consider whether the spousal support order should be varied. [31] The beginning point in that analysis is the nature of the order.

As discussed in Bracklow v. Bracklow, (SCC),[1999] 1 S.C.R. 420, under the Divorce Act, a spousal support order may be compensatory, contractual or non-compensatory in nature. McLachlin J., for the majority, summarized: [49] In

summary, the statutes and the case law suggest three conceptual bases for entitlement to spousal support: (1) compensatory,(2) contractual, and (3) non-compensatory. Marriage, as this Court held in Moge [ (SCC), [1992] 3 S.C.R. 813] (at p.870), is a “joint endeavour”, a socio-economic partnership. That is the starting position. Support agreements are important (althoughnot necessarily decisive), and so is the idea that spouses should be compensated on marriage breakdown for losses and hardships causedby the marriage.

Indeed, a review of cases suggests that in most circumstances compensation now serves as the main reason forsupport. However, contract and compensation are not the only sources of a support obligation. The obligation may alternatively ariseout of the marriage relationship itself. Where a spouse achieves economic self-sufficiency on the basis of his or her own efforts, or on anaward of compensatory support, the obligation founded on the marriage relationship itself lies dormant.

But where need is establishedthat is not met on a compensatory or contractual basis, the fundamental marital obligation may play a vital role. Absent negating factors,it is available, in appropriate circumstances, to provide just support. (Underlining in original.) As Cook J. stated in Beck v. Beck, 2012 NLTD(F) 34, 329 Nfld. & P.E.I.R. 287, compensatory support “is typically described ascompensation for forgone careers and missed opportunities” (paragraph 42). [32] The original order in this case was compensatory in nature (decision of Butler J., at paragraph 48). One factor considered by

Peddle J. in assessing Mr. Marche’s application to vary the order is that, in so far as practicable, a spousal support order should promotethe economic self-sufficiency of each former spouse within a reasonable period of time (section 17(7)(

d) of the Divorce Act; Boston v.Boston, 2001 SCC 43, [2001] 2 S.C.R. 413). In Moge v. Moge, (SCC), [1992] 3 S.C.R. 813, L’Heureux-Dubé, for themajority, commented on the possible effect where a spouse assumed the role of homemaker in the traditional sense, at page 867: The financial consequences of the end of a marriage extend beyond the simple loss of future earning power or losses directly related tothe care of children. They will often encompass loss of seniority, missed promotions and lack of access to fringe benefits such aspension plans, life, disability, dental and health insurance … .

As persons outside of the work force cannot take advantage of job-retraining and the upgrading of skills provided by employers, one serious economic consequence of remaining out of the work force isthat the value of education and job training often decreases with each year in comparison to those who remain active in the work forceand may even become redundant after several years of non-use.

All of these factors contribute to the inability of a person not in thelabour force to develop economic security for retirement in his or her later years. [33] The courts have recognized that there are some circumstances when economic self-sufficiency is not a viable goal, such as, forexample, cases of debilitating illness or a long-term marriage where the spouse is of an age, education or experience that employmentoptions are limited at best (L.M.P. v. L.S., supra; R.P. v. R.C., 2011 SCC 65, [2011] 3 S.C.R. 819).

That circumstance is not raised on thefacts of this case. [34] The courts have also recognized that at the time of separation and divorce it is difficult to predict the factors that may impingeon the ability of a spouse to attain economic self-sufficiency (Miglin v. Miglin, 2003 SCC 24, [2003] 1 S.C.R. 303). For this reason, aspousal support order may provide for a review after a period of time, four years in this case, at which point, spousal support may beterminated, continued or varied. [35] A review, being part of the order, does not require a change in circumstances.

This is in contrast to an application to vary whichengages the statutory requirement (Beck v. Beck, supra, at paragraph 34). However, once a change in circumstances is established, thestatutory objectives relevant to a variation application are the same as those that would apply to a review (sections 15.2(6) and 17(7) ofthe Divorce Act). Accordingly, applying

section 17 of the Act, a change in circumstances that would ground a variation will, ofnecessity, relate to the objectives that are engaged whether an initial order, a review or a variation is at issue.

It is on this basis thatPeddle J. conducted the analysis after determining that a material change in circumstances had been established. [36] On the particular facts here, in assessing the variation application, Peddle J. would have been aware at the hearing on October11, 2012 and at the time of his decision on February 7, 2013 that the February 28, 2013 date for a review set out in Butler J.’s decisionwas imminent.

This was a factor which Peddle J. could take into account, particularly in so far as the support order was compensatory innature. [37] Peddle J. inferred from Butler J.’s order that it was anticipated that Ms. Wagstaff may attain economic self-sufficiency byFebruary 28, 2013. Ms. Wagstaff submits that this is an inaccurate reading of Butler J.’s decision in which she stated that, by February28, 2013, Ms. Wagstaff “should therefore be in a position to take steps towards economic self-sufficiency” (paragraph 58, italicsadded). However, this comment could not have been intended to indicate that Ms.

Wagstaff would not be moving toward, and perhapshave achieved, economic self-sufficiency before that date. If that had been the intention, presumably the word “then”, rather than“therefore” would have been used. Further, a longer period of support would have been ordered with a review set for a later date. Byordering a review after four years, Butler J. must be taken to have meant that an assessment of Ms. Wagstaff’s progress regardingeconomic self-sufficiency would be meaningful at that time. [38] Accordingly, in considering Mr. Marche’s application for variation, Ms.

Wagstaff’s conduct in moving toward economic self-sufficiency during the four year period ending February 28, 2013 is a relevant consideration. Further, Butler J.’s order regarding areview of spousal support would not have constrained Peddle J.’s analysis of Ms. Wagstaff’s progress to economic self-sufficiency. There was no reason to limit his assessment on the assumption that Ms. Wagstaff would be unable to take steps toward economic self-sufficiency until February 2013, or that the review could not be superseded by a variation order that terminated support. [39] Indeed, Peddle J. accepted that Ms.

Wagstaff had not achieved economic self-sufficiency. However, he concluded that she hadfailed to act in a manner so as to achieve that objective: [22] Ms. Wagstaff’s financial predicament is attributable to her failure to make her economic well-being a priority. She was given areasonable four year timeline to attain self-sufficiency. Justice Butler was very complimentary in her assessment of Ms. Wagstaff’squalities: “intelligent, well educated, energetic and has a lot to offer a potential employer”.

The office job she accepted within Mr.Myles’ business is unrelated to the field of psychology, is not secure and pays a modest $12.50 an hour. She must take responsibility forthis choice and resulting consequences. It would be unfair to disadvantage Mr. Marche because of Ms. Wagstaff’s personal choices. [40] In analyzing issues relating to the economic self-sufficiency objective, the courts have applied a test of “reasonable efforts” or“reasonable decisions” by the payee spouse. The assessment will depend on the circumstances and facts of each case (Beck v. Beck,supra, at paragraphs 38, 47, 59 and 71; Williams v.

Williams, 2010 SKCA 52; Swales v. Swales, 2010 ABCA 292; Dunnigan v. Park,2007 BCCA 329; Juvatopolos v. Juvatopolos (2005), (ON CA), 19 R.F.L. (6th) 76 (ONCA); Lu v. Sun, 2005 NSCA112, 235 N.S.R. (2d) 353). [41] In this case, Peddle J. was satisfied that Ms. Wagstaff had failed to make reasonable efforts toward becoming self-sufficient. While he did not use that language, he pointed to Ms.

Wagstaff’s choices which resulted in minimal income when, in the absence ofevidence to the contrary, it would be inferred from her educational background, her personality, and her experience as a volunteer thatshe could have sought more advantageous employment. A significant impediment to her ability to obtain such employment, identified in2009 by Butler J., was the dearth of opportunities in the town where she and Mr. Marche had resided. By moving to the St. John’s areain 2010, Ms. Wagstaff substantially increased her employment prospects.

While her younger child still required some supervision,particularly in respect of his diabetes, Ms. Wagstaff was not precluded from taking employment or upgrading her qualifications. Indeed,she began employment in April 2011.

[ 42 ] Ms. Wagstaff also submits that Peddle J. erred by failing to give proper consideration to the cohabitation agreement she had with Mr. Myles. Peddle J. summarized: [20] … The rights and obligations of the parties during cohabitation and on separation are outlined in a Cohabitation Agreement signed by the parties August 2, 2010. Under the terms of the Agreement, Ms. Wagstaff is responsible for supporting and maintaining herself. It provides for equal sharing of the cost of food and utilities. She is responsible for her own vehicle expenses, clothing costs and medical, dental and prescription costs.

She is also responsible for her own debt. The Agreement precludes any claim against Mr. Myles’ past, present or future real and personal property and any claims for support. Ms. Wagstaff contends that the uncertainty of her employment, the instability of her relationship and the terms of her Cohabitation Agreement is a basis for continuing Mr. Marche’s spousal support obligation. [ 43 ] It is clear that Peddle J. was aware of the implications flowing from the cohabitation agreement. While Ms.

Wagstaff would have benefitted from living rent free, the agreement had strict provisions regarding the financial responsibilities of each party. The focus of Peddle J.’s decision was on the compensatory nature of the support order and Ms. Wagstaff’s failure to make reasonable choices and efforts toward economic self-sufficiency. He was satisfied that, in the circumstances, a period of four years should have been adequate for Ms. Wagstaff to at least make strides toward self-sufficiency. Her failure in this regard was fundamental. [ 44 ] In addition, Ms. Wagstaff submits that Mr.

Marche’s increase in salary to approximately $68,000 is a relevant factor. She is apparently relying on the non-compensatory basis for spousal support to ground her position that the order should be varied, not by a reduction or termination, but by an increase or continuation of support. Non-compensatory support is discussed in Bracklow at paragraphs 40 to 49 .

McLachlin J., for the Court, explained: [40] While the statutes contemplate an obligation of support based on the grounds of contract and compensation, they do not confine the obligation to these grounds. … Even if a spouse has foregone no career opportunities or has not otherwise been handicapped by the marriage, the court is required to consider that spouse’s actual ability to fend for himself or herself and the effort that has been made to do so, including efforts after the marriage breakdown.

Similarly, “economic circumstances” (s. 89(1)(e)) invites broad consideration of all factors relating to the parties’ financial positions, not just those related to compensation. The same may be said for the broad injunction of the Divorce Act that the court consider the “condition, means, needs and other circumstances of each spouse”. To be sure, these factors may support arguments based on compensation for what happened during the marriage and its breakdown. But they invite an inquiry that goes beyond compensation to the actual situation of the parties at the time of the application.

Thus, the basic social obligation model may equally be seen to occupy the statutory provisions. [Underlining in original.] [ 45 ] McLachlin J. went on to discuss the objectives of spousal support orders (paragraph 27, above): [41] … The first two objectives – to recognize the economic consequences of the marriage or its breakdown and to apportion between the spouses financial consequences of child care over and above child support payments – are primarily related to compensation.

But the third and fourth objectives are difficult to confine to that goal. … Looking only at compensation, one merely asks what loss the marriage or marriage breakup caused that would not have been suffered but for the marriage. But even where loss in this sense cannot be established, the breakup may cause economic hardship in a larger, non-compensatory sense. … [42] Similarly, the fourth objective … to promote economic self-sufficiency – may or may not be tied to compensation for disadvantages caused by the marriage or its breakup.

A spouse’s lack of self-sufficiency may be related to foregoing career and educational opportunities because of the marriage. But it may also arise from completely different sources, like the disappearance of the kind of work the spouse was trained to do (a career shift having nothing to do with the marriage or its breakdown) or, as in this case, ill- health.

I note here that, in contrast to child support where an increase in the payor’s income ordinarily results in an automatic increase in the support payable, in the context of spousal support, an increase in the payor’s income is simply a factor that may be considered in assessing the objectives set out in

section 17 of the Act . [ 46 ] Peddle J. dismissed Ms. Wagstaff’s continuing need argument “because she is largely the author of her own difficulties” (paragraph 24). Mr. Marche’s increased income may have been relevant if, for example, Ms. Wagstaff had established economic hardship, with an assessment of her attempts to promote her economic self-sufficiency weighed in the balance. On appeal, Ms. Wagstaff is not submitting that Peddle J. erred by failing to find that her spousal support should be increased or continued based on economic hardship.

The basis of her submission is that Peddle J. erred by focusing on the economic self-sufficiency objective. [ 47 ] This submission is not persuasive. Since this was a variation application, it was open to Peddle J. to focus on the objective most engaged by the change in circumstances that grounded the application. While Peddle J. was required to give reasons for his decision, his failure to advert specifically to the other objectives in

section 17 is not determinative. Indeed, a review of the facts and Ms. Wagstaff’s submissions provides no basis on which to conclude that Peddle J. erred in the exercise of his discretion to conclude that her circumstances were not such as to warrant support based on continuing need. This situation may be contrasted with that in Beck in which Cook J. ordered non-compensatory spousal support because, despite Ms.

Beck’s reasonable efforts, in light of her earning capacity and other factors, she was unable to become self-sufficient. [ 48 ] In the result, Peddle J. varied the spousal support order by terminating the order effective February 28, 2013. This, he concluded, would satisfy the compensatory aspect of Butler J.’s order. As to Mr. Marche’s request to vary the order by reducing or terminating it earlier, Peddle J. was satisfied that the changes in Ms. Wagstaff’s circumstances were not such as to warrant granting this request.

This conclusion was not appealed. [ 49 ] As set out in Hickey , on an appeal, this Court should interfere with a decision on spousal support only when satisfied that the decision contains a material error, a serious misapprehension of the evidence, or an error in law. That threshold requirement is not satisfied in this case. The decision on the variation application supersedes the order regarding a review under Butler J.’s order.

SUMMARY [ 50 ] In assessing Mr. Marche’s application to vary the spousal support order, Peddle J. did not err in the exercise of his discretion by ordering that spousal support would continue at the rate ordered by Butler J., but that support would terminate “when the last payment ordered by Justice Butler is made”. [ 51 ] Accordingly, I would dismiss Ms. Wagstaff’s appeal. In the Trial Division, Peddle J. ordered that the parties would bear their own costs. I would make a similar order on the appeal. In the circumstances a sharing of the financial burden of the appeal is a just result. ___________________________________ B. G. Welsh J.A.