Strecko v. Strecko, 2014 NSCA 66

Nova Scotia Court of Appeal Citation: Strecko v. Strecko , 2014 NSCA 66 Date: 20140620 Docket: CA 420365 Registry: Halifax Between: Jayne Wagner Strecko Appellant v. Brian Frank Strecko Respondent Judge: The Honourable Justice Linda Lee Oland Appeal Heard: April 10, 2014, in Halifax, Nova Scotia Subject: Spousal Support – Minutes of Settlement – Self-Sufficiency – Spousal Support Advisory Guidelines

Summary: When they divorced, the Corollary Relief Order incorporated the Minutes of Settlement the parties had negotiated and signed. Among other things, the Minutes dealt with spousal support and its review. On review, after considering the evidence, the trial judge held that the parties had agreed that self- sufficiency would be achieved when the appellant became fully employed, earning a salary equivalent to a nurse. He ordered spousal support for a further 24 months and then its termination, unless the appellant could satisfy the court that it should continue for longer. The appellant appeals. Issues: Whether the judge erred: (

a) by failing to consider correspondence preliminary to the signed Minutes; (

b) in determining what the parties had agreed regarding self-sufficiency, and by stating that the appellant was under a special duty to accept any available employment in nursing; (

c) by failing to consider her claims of both compensatory and non-compensatory support; and, (

d) by not considering the Guidelines. Result: Appeal dismissed. While the judge did not consider the correspondence between counsel, he accepted the appellant’s position that the parties had not agreed that spousal support was to be transitional. He did not misapprehend the evidence or err in law in determining when self-sufficiency would be achieved, nor was the result clearly wrong on the facts. It was then not necessary to address the argument for compensatory and non-compensatory support.

In speaking of the appellant being under a special duty, the judge was simply emphasizing her responsibility not to limit her job search to a certain specialized position, and to make diligent and reasonable efforts to become self-sufficient. Since application of the Guidelines is not mandatory, he did not err in choosing not to apply them. This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 18 pages. Nova Scotia Court of Appeal Citation: Strecko v.

Strecko , 2014 NSCA 66 Date: 20140620 Docket: CA 420365 Registry: Halifax

Between: Jayne Wagner Strecko Appellant v. Brian Frank Strecko Respondent Judges: Oland, Beveridge, and Farrar, JJ.A. Appeal Heard: April 10, 2014, in Halifax, Nova Scotia Held: Appeal dismissed with costs, per reasons for judgment of Oland, J.A.; Beveridge and Farrar, JJ.A. concurring Counsel: M. Jean Beeler, Q.C., for the appellant Michelle C.

Awad, Q.C., for the respondent Reasons for judgment: [ 1 ] When the parties divorced, the Corollary Relief Order incorporated the terms of their Minutes of Settlement which, among other things, dealt with custody, child support, spousal support, and division of assets and responsibilities for debts. Those Minutes provided for review of spousal support. [ 2 ] Following the review hearing, O’Neil, A.C.J. of the Supreme Court of Nova Scotia (Family Division) held that spousal support would terminate after 24 months although Jayne Strecko could apply for continuation. His decision is reported as 2013 NSSC 49 . Ms.

Strecko appeals from his Order which issued September 25, 2013. [ 3 ] For the reasons which follow, I would dismiss the appeal. Background: [ 4 ] The parties married in 1985, after being in a common-law relationship for two years. They have two sons, born in 1991 and 1992 respectively. In the fall of 2008, they separated. [ 5 ] Both parties were represented by counsel as they negotiated the terms surrounding the dissolution of their marriage. In December 2009, they participated in a settlement conference with Justice Douglas C. Campbell of the Family Division.

The Minutes reflecting their agreement and compromises were signed on April 29, 2010. They recited that in 2008, Mr. Strecko earned an income of $280,407 including discretionary bonus, and Ms. Strecko was employed part-time and earned approximately $18,000 gross. Among other things, they provided for spousal support for the appellant. [ 6 ] The provisions in the Minutes most central to the review proceeding and this appeal read: SPOUSAL SUPPORT 25. The parties acknowledge that the Wife requires spousal support.

The support provided for in this agreement shall not be varied prior to the review date regardless of any change in either parties circumstances, including the Wife obtaining full time employment and/or an increase or decrease in the Husband’s income. 26. Commencing for January, 2010, and continuing twice per month in equal installments coinciding with the Husband’s pay deposits from Ellis Don, the Husband shall pay to the Wife, as an allowance for her maintenance and support, monthly periodic payments of $3,500.00.

On or after July 1, 2012, issues of spousal support entitlement, quantum and duration may be reviewed. The Wife acknowledges her obligation to become economically self-sufficient so far as it is practicable and to make diligent and reasonable efforts in this regard. The parties are optimistic that the Wife will be self-sufficient on or before the review date . In order to facilitate the Wife achieving self-sufficiency as soon as possible, the Husband shall pay the sum of $1,200.00 US for the Wife’s course so that she will be able to start the program at the earliest opportunity.

The Wife shall provide a statement for the payment of the course fee upon receipt. [Emphasis added] [ 7 ] Also relevant are the following provisions: AGREEMENT AND INTENTION 8. In consideration of the promises and conditions contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties covenant and agree as follows:

(

a) This Agreement binds the parties according to its terms, even if any provision is beyond the power of a Court to order; (

b) This Agreement is a full and final settlement between the parties and may be pleaded as a complete defence to any action broughtby either party to assert a claim in respect of any matter dealt with by this Agreement, except where: (

i) this Agreement expressly provides for review or variation of a particular term or condition, … … RELEASES 29. Subject to the terms of this Agreement and any rights given by either party by a Will executed after the effective date of thisAgreement, the parties hereby release and discharge the other from any liability with respect to the matters set out herein and agree that: (

a) All of their property and responsibility for debts have been divided between the parties to their mutual satisfaction. … (

b) All rights and obligations of the parties whether arising during cohabitation or on separation are governed by this Agreement.… (

c) The term “rights and obligations” in this

section means all those rights and obligations arising with respect to: … (iv) support of one party by the other; … [Emphasis added] [8] At the review hearing she initiated, Ms. Strecko argued that spousal support should be indefinite and based on the SpousalSupport Advisory Guidelines (“Guidelines”) and the respondent’s current income. She submitted that self-sufficiency had not beenpossible to achieve. Mr.

Strecko argued that spousal support was to be “transitional,” the appellant should have reached self-sufficiencyby then, and his obligation to pay should end. [9] After a three-day hearing, the judge determined that the parties had agreed that self-sufficiency would be achieved when theappellant became fully employed, earning a salary equivalent to a nurse. However, he found that she needed additional time to attainself-sufficiency.

The judge ordered continuation of spousal support in the same $3,500 monthly as in the Minutes for a further 24months, unless the appellant could satisfy the court that it should continue for a further period of time. Later, I will explain his reasonsand Order in greater detail. Issues: [10] The appellant raises the following issues: (

a) Did the judge err when he failed to consider the circumstances at the time the parties signed the Minutes and, in particular,when he failed to consider correspondence preliminary to the signed Minutes; and thereby concluded that spousal support should be ineffect transitional? (

b) Did the judge err when he concluded that based on the evidence, including the Minutes, the parties agreed that “self-sufficiency” would be achieved when Ms. Strecko became fully employed earning a salary equivalent to that earned by a nurse, and thatshe was under a special duty to accept any available employment in nursing? (

c) Did the judge fail to consider her claims of both compensatory and non-compensatory support? (

d) Did the judge err when he did not consider the Guidelines? [11] At the hearing of the appeal, the appellant made a motion to add the first ground of appeal in this listing. It was not specificallyoutlined in her Notice of Appeal, but was raised in her factum. The respondent, who had replied to her arguments in his factum,acknowledged at the hearing that it did not cause him any prejudice. I would grant the motion to add this ground of appeal. Standard of Review: [12] In Haines v.

Haines, 2013 NSCA 63, Farrar, J.A., for the Court stated: [5] This Court has consistently stressed the need to show deference to trial judges in family law matters. In the absence of some error oflaw, misapprehension of the evidence, or on the award that is clearly wrong on the facts we will not intervene. We are not entitled tooverturn an order simply because we may have balanced the relevant factors differently. (Hickey v. Hickey, (SCC),[1999] 2 S.C.R. 518, ¶10-12.) [6] Findings of fact, or inferences drawn from the facts are reviewed on a standard of palpable and overriding error.

Matters involvingquestions of law are subject to a correctness standard. When the matter is one of mixed fact and law and there is an extricable questionof law, the question of law will be reviewed on a correctness standard. Otherwise, it is reviewed on a palpable and overriding standard. (Housen v. Nikolaisen, 2002 SCC 33. Analysis:

[13] To provide context for the judge’s decision and the arguments on appeal, I will summarize the facts regarding the appellant’swork history and job search prior to the review hearing. I will then set out the judge’s decision, before turning to the nature of reviewhearings. [14] Ms. Strecko obtained a nursing diploma in the 1980’s. She worked full time as a nurse for three years in Toronto, and for fouryears (less a year in total on maternity leaves) in Halifax. In December 1993, Mr. Strecko obtained an engineering job with his presentemployer, Ellis Don Corporation.

The appellant resigned her position to stay at home and care for the parties’ sons, one of whom wasdiagnosed with cystic fibrosis. [15] In 2004, the appellant started a nursing re-entry program. While still pursuing those studies, she started working four hours aweek as nurse coordinator with a rheumatoid arthritis study. By 2008, the position had expanded to some 12 hours a week. [16] The parties separated in November 2008.

A Consent Interim Order provided that the respondent would pay child support basedon an average salary of almost $195,000, and spousal support of $3,500 per month based on a base salary of $165.000. The Minutessigned April 29, 2010 were incorporated in the March 17, 2011 Corollary Relief Order. [17] In her affidavit in support of the review proceeding, Ms. Strecko stated that, since 2010, the hours available with therheumatology clinic had dwindled significantly with health care funding freezes and cutbacks. She took shifts whenever available.

Inher affidavit and oral evidence, she described what she had done to find a position in the field of rheumatology and in other fields. Untilthe very week before the review hearing, she had been unsuccessful in all her job applications. The appellant finally obtained a contractposition with a rheumatologist working two days a week in a clinic in Lunenburg, for which she is paid nursing wages of $37 per hour. [18] Ms. Strecko asked that spousal support continue for an indefinite period, in an amount calculated pursuant to the Guidelinesbased on the respondent’s current salary. Mr.

Strecko argued that she had agreed to transitional support as apparent from the Minutes,her efforts to retrain and find work were not satisfactory, and spousal support should end as of July 1, 2012. The Judge’s Decision: [19] With regard to the Minutes incorporated in the Corollary Relief Order (“CRO”), the judge stated: [90] Both parties have agreed that the Court may consider submissions relevant to an

interpretation of the spousal support provisionsof the ‘CRO’ and which were made to the settlement conference Justice following the settlement conference when a disagreementdeveloped between the parties as to the language of the proposed ‘CRO’ (Exhibit #30). I do not find it necessary to look outside the‘CRO’/the agreement. [20] After setting out the provisions of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), governing spousal support and referring toBracklow v. Bracklow, (SCC), [1999] 1 S.C.R. 420, and Moge v. Moge, (SCC), [1992] 3 S.C.R. 813,he continued: [96] I am satisfied that any understanding that Ms.

Strecko had agreed that her entitlement to spousal support would terminate on July1, 2012 is wishful thinking. Clearly, such an agreement would have been a valued concession had it been granted by Ms. Strecko. However, she clearly did not agree to such a term. Ms. Strecko’s obligation “to become self sufficient so far as it is practicable and tomake diligent and reasonable efforts in this regard” existed regardless. … [100] A couple of reasonable inferences can be made from the evidence including the text of the parties ‘Minutes’, now part of the‘CRO’.

The Minutes make no reference to the Spousal Support Advisory Guidelines as a tool for determining spousal support. Inaddition, the quantum of spousal support agreed upon, i.e. $3,500 is less than the quantum recommended by the Spousal SupportGuidelines. [101] A second significant feature of the agreement is that the parties agreed, i.e. were optimistic that self sufficiency could be achievedbefore July 1, 2012. Given all of the evidence, this is a recognition that self sufficiency would be achieved when Ms.

Strecko becamefully employed, earning a salary equivalent to that earned by a nurse. [102] It was open to the parties to make such an agreement and I am satisfied that they agreed that within these two wide parameters,the parties resolved the issue of spousal support. The quid pro quo of the agreement must be accepted and I accept it. [Emphasis added] [21] After reviewing the court’s authority to impute income and the factors to be considered, the judge stated: [108] An income of $30,000 is attributed to Ms. Strecko. At a minimum, she is capable of earning this amount. Nevertheless, I amsatisfied that Ms.

Strecko requires additional time to achieve self sufficiency. Having been now advised by this Court that she is under aspecial duty to accept any available employment in nursing, outside the part time area in which she currently works, and after beingsatisfied that she can be fully employed as a nurse, I order a termination of the ongoing spousal support obligation in twenty-four months(March 2015). This is more than two years beyond July 1, 2012 and almost five years after the parties entered ‘Minutes’ of Settlement inApril 2010 and six and one half years post separation.

Spousal support will terminate at that time unless Ms. Strecko satisfies the Court,that notwithstanding her broad job search, she has been unable [O’Neil, A.C.J.’s underlining] to secure full time employment in nursingor achieve a level of income comparable to that earned by a nurse working full time. The onus is on her to establish that this is the case. She must serve notice of her intention to make this case on or before September 1, 2014. [109] Spousal support will continue at its current level of $3,500 per month up to and including March 2015.

As stated, an applicationto continue the spousal support obligation will be scheduled for March 2015 at the request of Ms. Strecko and her application to continue

the spousal support beyond March 2015 must be filed before September 1, 2014. Spousal support is presumed to end in March 2015subject to an obligation on Ms. Strecko to make the case that it should continue. The Court has determined that Ms. Strecko is capable ofsecuring full time employment as a nurse and is giving her time to transition to it as agreed to by the parties and evidenced by the‘CRO’.

The lengthy period of time granted for her to do so reflects the length of the parties’ relationship, their agreement and disparityof income. [110] In coming to this conclusion I have considered the directions of the Divorce Act; the guidance of the Supreme Court of Canada asenunciated in Moge supra and Bracklow supra, and I have considered the parties’ agreement/CRO. I have considered their role andresponsibilities through the marriage. [Emphasis added] Review Hearings and Negotiated Agreements: [22] The proceeding before the judge was a review hearing. In Leskun v.

Leskun, 2006 SCC 25, Binnie J., writing for the courtdistinguished between review and variation proceedings. He stated at ¶ 36, 37 and 39: 36 Review orders under s. 15.2 have a useful but very limited role. As the amicus curiae pointed out, one or both parties at thetime of trial may not, as yet, have the economic wherewithal even to commence recovering from the disadvantages arising from themarriage and its breakdown. Common examples are the need to establish a new residence, start a program of education, train or upgradeskills, or obtain employment.

In such circumstances, judges may be tempted to attach to s. 15.2 orders a condition pursuant to s. 15.2(3)of the Divorce Act, that entitles one or other or both of the parties to return to court for a reconsideration of a specified aspect of theoriginal order.

This will properly occur when the judge does not think it appropriate that at the subsequent hearing one or other of theparties need show that a change in the condition, means, needs or other circumstances of either former spouse has occurred, as requiredby s. 17(4.1) of the Divorce Act. 37 Review orders, where justified by genuine and material uncertainty at the time of the original trial, permit parties to bring amotion to alter support awards without having to demonstrate a material change in circumstances: Choquette v. Choquette (1998), (ON CA), 39 R.F.L. (4th) 384 (Ont.

C.A.). … … 39 … a trial court should resist making temporary orders (or orders subject to “review”) under s. 15.2. See also: Keller v. Black, (ON SC), [2000] O.J. No. 79 (QL) (S.C.J.). Insofar as possible, courts should resolve the controversies before themand make an order which is permanent subject only to change under s. 17 on proof of a change of circumstances. If the s. 15.2 courtconsiders it essential (as here) to identify an issue for future review, the issue should be tightly delimited in the s. 15.2 order. This isbecause on a “review” nobody bears an onus to show changed circumstances.

Failure to tightly circumscribe the issue will inevitably beseen by one or other of the parties as an invitation simply to reargue their case. … [23] In this case, the review hearing was not contained in a court order. Rather, it was a term of an agreement, namely, the Minuteswhich were endorsed by the parties after negotiations by their counsel and participation in a judicial settlement conference. The case lawincludes many statements on the desirability of settlement reached by the parties. In L.M.P. v.

L.S., 2011 SCC 64, Abella and RothsteinJJ. writing for the majority stated: [14] For sound policy reasons, family law permits and encourages separating spouses to work out their own arrangements through theuse of separation agreements (Berend Hovius and Mary-Jo Maur, Hovius on Family Law: Cases, Notes and Materials (7th ed. 2009), atp. 783).

Agreements are desirable because individuals should largely be free to order their lives as they wish; because “the partiesthemselves are in the best position to evaluate the comparative advantages of alternative arrangements”; and because a negotiatedsettlement avoids the significant personal and financial costs of litigation (Robert H. Mnookin, “Divorce Bargaining: The Limits onPrivate Ordering” (1985), 18 U. Mich. J.L. Ref. 1015, at pp. 1018-19). [24] Moreover, an agreement between the parties need not specifically address all of the objectives and factors set out in the DivorceAct.

So long as a fairly negotiated agreement that represents the intentions and expectations of the parties is in substantive compliancewith the objectives of that legislation as a whole, it should be given considerable weight: Miglin v. Miglin, 2003 SCC 24 at ¶ 4 and 66. Bastarache and Arbour JJ. writing for the majority of the Supreme Court of Canada in Miglin stated: 55 Furthermore, exclusive focus on the s. 15.2(6) objectives leaves no room for the parties to apply their own values and pursuetheir own objectives in reaching a settlement.

The objectives in s. 15.2(6) may not sufficiently account for the many ways in whichcouples structure their marital relationship and face its dissolution. To impose on all separating or divorcing persons an obligation toadhere strictly and exclusively to the statutory spousal support objectives denies them the autonomy to organize their lives as they see fitand to pursue their own sense of what is mutually acceptable in their individual circumstances.

Accordingly, the spousal supportobjectives should not operate so as to preclude parties from bringing their own concerns, desires and objectives to the table in negotiatingwhat they view as a mutually acceptable agreement, an agreement they consider to comply substantially with the objectives of the Act. In that way, the policy goals of autonomy and certainty will be rendered consistent with Parliament’s recognition of “the diversedynamics of the many unique marital relationships” (Bracklow, supra, at para. 35).

Transitional Spousal Support: [25] The appellant submits that the judge erred in failing to consider certain correspondence preliminary to the signed Minutes. Herargument centres on the word “transitional” in relation to spousal support, and the statement in ¶ 109 of the decision that the Court wasgiving her “time to transition” to full-time employment as a nurse “as agreed to by the parties and evidenced by the ‘CRO’” [26] The evidence before the trial judge included letters between counsel to the parties, and from counsel for Ms. Strecko to JusticeCampbell, who presided at the settlement conference.

They dealt with an early draft of the Minutes, and the positions taken by the

lawyers on behalf of their respective clients. [27] In the provisions dealing with spousal support in the early draft, the first sentence of ¶ 25 read “The parties acknowledge thatthe Wife requires transitional spousal support.” and ¶ 26 read in part: The Wife acknowledges her obligation to become economically self-sufficient and to make diligent and reasonable efforts in this regard. It is anticipated that the Wife will be self-sufficient on or before the review date. Ms. Strecko’s lawyer called for removal of the word “transitional” in ¶ 25, and deletion of those two sentences in the next paragraph. Mr.

Strecko’s lawyer refused, claiming that that language was as agreed to during the settlement conference. [28] In the signed Minutes, ¶ 25 did not include “transitional” before “spousal support.” The two sentences in ¶ 26 then read: The Wife acknowledges her obligation to become economically self-sufficient so far as it is practicable and to make diligent andreasonable efforts in this regard. The parties are optimistic that the Wife will be self-sufficient on or before the review date. [29] In her written submissions to the trial judge, Mr.

Strecko’s lawyer stated: For the better part of the first year post-separation Mr. Strecko paid all of the parties’ expenses and in October 2009 he began payingspousal support in the amount of $3,500.00 per month. This amount was confirmed as part of the agreement reached during thesettlement conference in December 2009. At the time the parties agreed that support would be transitional and that they anticipated thatMs. Strecko would be self-sufficient by the review date of July 1, 2012. . . . In her written submissions, Ms.

Strecko’s counsel pointed out that the final Minutes did not refer to “transitional” spousal support. Shewas concerned because: … “Transitional” has a very specific meaning when applied to spousal support and we often see it in circumstances when a spouserequires a limited period of support (usually after a short marriage) to “transition” from the financial consequences of the marriagebreakdown to self-sufficiency. She took the position that, in this case, that adjective was not used because the spousal support was not intended to be transitionalsupport. [30] At ¶ 88 of his decision, the judge recounted that Mr.

Strecko took the position that spousal support was to be “transitional” asagreed between the parties, and that Ms. Stecko’s position was that it should be indefinite and based on the respondent’s income. At his¶ 90, the judge held that it was not necessary to look outside the Minutes to interpret its spousal support provisions, and later stated: [96] I am satisfied that any understanding that Ms. Strecko had agreed that her entitlement to spousal support would terminate on July1, 2012 is wishful thinking. Clearly, such an agreement would have been a valued concession had it been granted by Ms. Strecko.

However, she clearly did not agree to such a term. . . .” [31] In essence, the appellant argues that the judge erred in failing to consider the correspondence between counsel for the partiesprior to execution of the Minutes and that this Court should find that spousal support was not intended to be transitional. However, thejudge accepted her bottom line position.

He held that the parties had not agreed that spousal support was to be transitional, anddescribed any such suggestion as “wishful thinking.” In these circumstances, it is not necessary to decide whether there was any legalerror in his determination to reject the correspondence as unnecessary for his determination. Self-Sufficiency: [32] In ¶ 101 of his reasons, the trial judge determined that, based on the evidence, the parties had agreed that “self sufficiencywould be achieved when Ms.

Strecko became fully employed, earning a salary equivalent to that earned by a nurse.” In ¶ 108, afterbeing satisfied that the appellant required additional time to achieve self-sufficiency, he went on to say: … Having been now advised by this Court that she is under a special duty to accept any available employment in nursing, outside thepart time area in which she currently works, and after being satisfied that she can be fully employed as a nurse, I order a termination ofthe ongoing spousal support obligation in twenty-four months (March 2015). … [Emphasis added] [33] Ms.

Strecko argues that the judge erred in finding when self-sufficiency would be achieved, and in finding that she had a“special duty” to achieve self-sufficiency. Pointing to the length of the marriage, the roles adopted by the parties and the disparity intheir incomes, she says that she remains entitled to spousal support, both compensatory and non-compensatory, and its duration should beindefinite.

According to the appellant, she is not self-sufficient and, even if she had been successful in obtaining employment, she wouldremain entitled to that support. [34] I will begin my analysis with the argument founded on the judge’s reference to the appellant’s “special duty” to achieve self-sufficiency. [35] In Leskun, Binnie J. writing for the court reiterated that the Supreme Court of Canada has rejected the promotion of self-sufficiency, one of the four s. 15.2 factors, as a duty: 26

Section 15.2(6)(

d) of the Divorce Act provides that one of the objectives of the spousal support order is to, “in so far aspracticable, promote the economic self-sufficiency of each spouse within a reasonable period of time”. This Court has rejectedcharacterizing this objective as a duty, see Moge v. Moge, (SCC), [1992] 3 S.C.R. 813, at p. 853, and Bracklow v.Bracklow, (SCC), [1999] 1 S.C.R. 420, at paras. 31-32, 35-36 and 43. The respondent advanced a number of reasons

why, despite alleged efforts, she had been unable to return to the workforce. She was believed. 27 Failure to achieve self-sufficiency is not breach of “a duty” and is simply one factor amongst others to be taken into account. As stated in Moge and repeated in Bracklow: At the end of the day . . ., courts have an overriding discretion and the exercise of such discretion will depend on the particular factsof each case, having regard to the factors and objectives designated in the Act. (Moge, at p. 866; Bracklow, at para. 53) (Justice Binnie’s emphasis) [36] The appellant drew the court’s attention to Allaire v.

Allaire (ON CA), [2003] O.J. No. 1069 and toHeimsoth v. Heimsoth, 2009 ABCA 129. In Allaire, the parties had been married for 24 years and had three children. Ms. Allaire hadbeen continuously employed since the early years of the marriage. Mr. Allaire appealed the trial judge’s award of indeterminate spousalsupport, arguing that she was self-sufficient and that theirs had not been a traditional marriage. The Ontario Court of Appeal found: [20] We see no error in the trial judge’s award of compensatory spousal support in the amount of $2,500 monthly.

It is unproductiveto analyze the facts based on a concept of “traditionalism”. It is more appropriate to look at what choices the spouses made and what theeconomic consequences of those choices were. It is clear from the trial judge’s reasons that the award is designed not only to redress theeconomic consequences of the breakdown of the marriage, but also to compensate Ms. Allaire for the likely permanent economic resultsof having to postpone her post-secondary education.

It is an amount that properly seeks to adjust the economic disparity between the twohouseholds based on the former joint standard of living. [21] Mr. Allaire submits that any disadvantages flowing from the marriage must defer to the fact that Ms. Allaire now earns areasonable income that makes her “self-sufficient”. This ignores the reality that self-sufficiency is not a free-standing concept. It mustbe seen in the context of the standard of living previously enjoyed by the parties. Where, as here, the economic consequences of themarital relationship were to permanently reduce Ms.

Allaire’s income, it is inappropriate to consider Ms. Allaire’s annual income of$68,000 as “sufficient” without considering whether Mr. Allaire can financially assist her to live a lifestyle closer to what they shared asa couple. [Emphasis added] [37] In Heimsoth, the parties had been married almost 24 years and had two children. When they divorced, he earned $100,000annually and she, $15,000. The husband was ordered to pay monthly spousal support of $4,000, subject to review in three years. At thereview hearing, the judge ordered a sharp reduction in spousal support over 18 months, then its termination.

The Alberta Court ofAppeal held that the judge erred in failing to consider whether, in all the circumstances, the appellant could realistically be expected toachieve self-sufficiency. It continued: [27] The mere finding that one of the parties was intentionally underemployed does not provide a complete answer to a spousalmaintenance request. We agree with the comment of Prowse JA. of the British Columbia Court of Appeal in McEachern v.

McEachern, 2006 BCCA 508, 62 B.C.L.R. (4th) 95 that in cases involving long-term marriages, underemployment or insufficient effort at achievingself-sufficiency is best dealt with by imputing income, not by time limited orders. She discussed self-sufficiency at p. 43: The primary objectives of a support order in this case, therefore, must be to relieve, to the extent possible, the economic hardshipsuffered by Ms. McEachern as a result of the marriage break down (s. 15.2(6)(c)), and “in so far as practicable” promote her economicself-sufficiency within a reasonable period of time (s. 15.2(6)(d)).

In that regard, the following passage from this Court’s decision inTedham v. Tedham …... is apt: …s. 15.2(6)(

d) of the Act does not require self-sufficiency, but simply seeks to promote self-sufficiency “in so far as practicable.” Indetermining what is practicable, regard must be had to all of the circumstances, including the age and gender of the spouse, her/his skillsand education, or lack thereof, the opportunities for retraining, and the realistic prospect of the spouse being able to find not just ajob, but one which enables her/him to become self-sufficient, which may be quite a different matter. [Alberta Court of Appeal’semphasis] … [29] We agree with the following definition of self-sufficiency approved by Prowse J.A. in McEachern: “that is, capable ofsupporting herself at a level in keeping with the standard of living she enjoyed during the marriage without the aid of financial support.” [38] In both Allaire and Heimsoth, the court had determined entitlement, quantum and duration of spousal support.

The matterbefore us is very different, in that the parties negotiated an agreement which dealt with spousal support. The Minutes include thiswording agreed to by the parties: 26. … The Wife acknowledges her obligation to become economically self-sufficient so far as it is practicable and to make diligentand reasonable efforts in this regard. The parties are optimistic that the Wife will be self-sufficient on or before the review date.

Inorder to facilitate the Wife achieving self-sufficiency as soon as possible, the Husband shall pay the sum of $1,200.00 US for the Wife’scourse so that she will be able to start the program at the earliest opportunity. The Wife shall provide a statement for the payment of thecourse fee upon receipt. [39] Given the evidence before him, including the parties’ stated optimism that Ms. Strecko would be self-sufficient before thereview date of July 1, 2012, the judge found that self-sufficiency would be achieved when the appellant became fully employed, earninga salary equivalent to that earned by a nurse.

In his view, this is what the parties themselves agreed and there were policy grounds forupholding an agreement reached by the parties.

[ 40 ] The appellant did not submit that the judge had misapprehended the evidence. Having considered the record and the arguments of the parties, I see no error in law in his

interpretation of the Minutes, or a result that is clearly wrong on the facts. [ 41 ] The appellant testified as to her efforts to become economically self-sufficient. She had re-certified as a registered nurse by 2006, and re-entered the workforce prior to separation in 2008. In 2010, she started the advanced rheumatology course the respondent paid for, and completed it in April 2012. Her evidence was that between April and November of 2012, she looked at CareerBeacon three times, and the Capital Health website every three weeks.

As of November 2012, she had provided her information package only to two rheumatologists and one family physician. She did not look daily for employment opportunities in the local newspaper, but only on Tuesdays and Saturdays. She did not apply for any position with Capital Health before October of 2011, and none with Shannex before April of 2012.

She never applied for any position with the IWK Hospital, Northwood, or in the South Shore, Valley and East Hants regions. [ 42 ] In her affidavit evidence, the appellant swore: 27 In 2010 I began an advanced program of study in Rheumatology to increase my knowledge and improve my credentials. I had discussed this and committed to it at the Settlement Conference of December 2009.

It was my goal to attempt to achieve self-sufficiency by creating a speciality role for myself by becoming either a nurse practitioner or a specialized Rheumatology nurse. [Emphasis added] Under cross-examination, she confirmed that as of October 4, 2012, she had not looked up how many nurse rheumatologist positions even existed. She described the position she finally obtained with a rheumatologist in Lunenburg as her “much sought-after position”. The cross-examination continued: Q. Okay. So your much sought-after position is a two-day-a-week job and you are happy with that? A. I’m happy with that for a start.

I think that’s a really great beginning. [ 43 ] It is my view that the judge did not err when he spoke of the appellant being under “a special duty to accept any available employment in nursing, outside the part time area in which she currently works”. He heard her evidence, including her affidavit evidence as to how she intended to reach self-sufficiency and when it would be attained.

Her continuing to work part-time as a rheumatology nurse while hoping to find a full-time position in that specialty at some indeterminate time in the future, was not acceptable. [ 44 ] The judge simply emphasized her responsibility to not restrict her search to rheumatology positions and, as he identified in his ¶ 96, her obligation pursuant to s. 26 of the Minutes “to become self sufficient so far as it is practicable and to make diligent and reasonable efforts in this regard.” Compensatory/Non-Compensatory Support: [ 45 ] I turn then to the argument that, whether pursuant to the compensatory model adopted in Moge or the non-compensatory model pursuant to Bracklow , Ms.

Strecko is entitled to indefinite spousal support. She submits that on review, a court must proceed as if the matter were an initial hearing on spousal support. Thus, the principles or objections for spousal support set out in s. 15.2(6) of the Divorce Act , and the factors to be taken into account in making a spousal support order in s. 15.2(4) , would be considered anew. Her factum reads: 57. It is Ms. Strecko’s position that she remains entitled to spousal support, both compensatory and non-compensatory.

Given the length of the marriage, the roles adopted by the parties and the disparity in their incomes, the duration of support should be indefinite. Self-sufficiency is a relative term. In this case Ms. Strecko is not self-sufficient and even if she had been successful in obtaining employment, she would still be entitled to support. [ 46 ] Sections 8 and 29 of the Minutes provide that they are a full and final settlement of matters including rights and obligations with respect to the support of one party by the other.

The only provision subject to review was that pertaining to spousal support and, in particular, self-sufficiency. I have found that the judge did not err in determining what the parties themselves meant by self-sufficiency. In these circumstances, I need not address this argument. Spousal Support Advisory Guidelines: [ 47 ] Although the appellant had asked him to apply the Guidelines, the judge decided that since they had not been addressed in the Minutes, he would not apply them on review.

She submits that by refusing to consider the Guidelines, he erred. [ 48 ] The appellant drew our attention to cases which contained comments regarding the usefulness of the Guidelines. However, it is telling that she did not present any authority that stated that their application was mandatory. [ 49 ] In Yemchuk v. Yemchuk , 2005 BCCA 406 , at ¶ 64 , Prowse J.A. described the Guidelines as a useful tool, but only advisory rather than legislated or binding. In Smith v.

Smith , 2011 NBCA 66 , Quigg, J.A. for the New Brunswick Court of Appeal stated that: [34] Although the Guidelines are not law per se , following them can enhance the legitimacy of a spousal support award, as the Guidelines promote consistency and therefore aid in the avoidance of arbitrary decision-making. … [37] While the Guidelines help to promote consistency in judgments, and therefore a greater measure of certainty in law, they do not constitute law. Therefore, while judges would be wise to follow the Guidelines , and usually do so, they should not be mandated to do

so even when their reasons for decision do not bring into play an exception listed in ch. 12 of the Guidelines . See also Fisher v. Fisher , 2008 ONCA 11 , where Lang, J.A. writing for the Court stated: [103] In my view, when counsel fully address the Guidelines in argument, and a trial judge decides to award a quantum of support outside the suggested range, appellate review will be assisted by the inclusion of reasons explaining why the Guidelines do not provide any appropriate result.

This is not different than a trial court distinguishing a significant authority relied upon by a party. [ 50 ] Since the law does not oblige the judge to apply the Guidelines, I see no error in law in his choosing not to do so. Disposition: [ 51 ] I would dismiss the appeal, and order the appellant to pay the respondent costs of $3,000 inclusive of disbursements. Oland, J.A. Concurred in: Beveridge, J.A. Farrar, J.A.