Fisher v. Fisher,

• Jurisdiction: Ontario
• Judge: Doherty, Goudge and Lang, JJ.A.
• Neutral Citation: 2008 ONCA 11
• Date: 21 September 2007
• Court: Court of Appeal (Ontario)

Fisher v. Fisher (2008), 232 O.A.C. 213 (CA)

MLB headnote and full text

Temp. Cite: [2008] O.A.C. TBEd. JA.048

Anita Gail Fisher (applicant/appellant) v. Robert Edward Fisher (respondent/respondent)

(C45077; 2008 ONCA 11)

Indexed As: Fisher v. Fisher

Ontario Court of Appeal

Doherty, Goudge and Lang, JJ.A.

January 10, 2008.

Summary:

The parties separated after a 19 year marriage. The wife sought a divorce and indefinite spousal support. The wife's average annual income was $35,500 while the husband's was $89,825.

The Ontario Supreme Court granted the divorce and ordered the husband to pay the wife $2,600 monthly spousal support from March 1 to December 1, 2006, $1,800 for 2007 and $1,050 for 2008 and provided for a review after January 1, 2009. The wife appealed.

The Ontario Court of Appeal allowed the appeal and awarded the wife monthly spousal support of $3,000 retroactive to October 1, 2004 (date of interim award). Support was to decrease to $1,500 on April 1, 2008 and then terminate on September 1, 2011.

Family Law - Topic 3997

Divorce - Corollary relief - General - Economic self-sufficiency - The parties separated after a 19 year marriage - The wife was then 41 years old - She sought a divorce and indefinite spousal support - The wife's average annual income during the relevant period was $35,500 while the husband's was $89,825 - The wife was awarded interim monthly spousal support of $2,000 - The husband argued that the wife should be considered self-sufficient - The trial judge ordered the husband to pay the wife $2,600 monthly spousal support from March 1 to December 1, 2006, $1,800 for 2007 and $1,050 for 2008 - In limiting support, the trial judge referenced the wife's relative youth, her good health, lack of dependants, insignificant debt and her work record, ethics and opportunities - The Ontario Court of Appeal allowed the wife's appeal and awarded the wife monthly spousal support of $3,000 - Monthly support was to decrease to $1,500 on April 1, 2008 and then terminate on September 1, 2011 - Indefinite support was not warranted - To provide the wife with a reasonable transition following her 19 year marriage, the wife would need support for seven years, beginning with the year of separation - A seven year order complied with the spousal support objective of recognizing the wife's economic disadvantage arising from the marriage and its breakdown, while also encouraging the wife to complete her transition to self-sufficiency, whether by reason of earning a higher income or, more likely, by adapting her lifestyle to her then income - See paragraphs 83 to 91.

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance and awards - Retroactive awards - The parties separated after a 19 year marriage - The wife sought a divorce and indefinite spousal support - The wife's average annual income was $35,500 while the husband's was $89,825 - The wife was awarded $2,000 monthly in an interim award in October 2004 - The trial judge ordered the husband to pay the wife, inter alia, $2,600 monthly spousal support from March 1, 2006 - The wife appealed, arguing that the trial judge erred in not making the award retroactive to October 2004 - The Ontario Court of Appeal agreed and ordered that monthly support of $3,000 be made retroactive - The wife established at trial that she was entitled to a greater amount of interim support, the husband had the ability to pay, and the imposition of retroactive support would not create undue hardship for him - The low interim award had been based on skepticism about the wife leaving her employment and the erroneous premise that the wife's annual income was $48,000 - A refusal to order support payable from the date of interim support would provide one party with an incentive to delay a final hearing and the other party with an incentive to insist on its expedition - Either incentive might result in increased procedural costs - Thus, achievement of the Spousal Support Advisory Guidelines' objectives of discouraging litigation manoeuvring between the parties, while promoting an equitable result for the parties, mandated an earlier commencement date for final support where feasible - See paragraphs 75 to 82.

Family Law - Topic 4010

Divorce - Corollary relief - Maintenance and awards - Awards - Periodic payments - [See Family Law - Topic 3997 ].

Family Law - Topic 4018.1

Divorce - Corollary relief - Maintenance and awards - Review of maintenance v. variation of maintenance - Effect of income or potential income of payor's spouse - A trial judge ordered a husband to pay spousal support from March 1, 2006 until December 31, 2008 - After January 1, 2009, either party could "seek a review of both entitlement and/or quantum ... without the need to establish a material change in circumstances" - The Ontario Court of Appeal held that the imposition of the review order constituted an error in principle - The trial evidence indicated that the wife was making reasonable efforts at self-sufficiency - There was little evidence that her financial circumstances would change at an identifiable point in the future, apart from the potential return of her income to pre-separation levels, which would not have rendered her self-sufficient when considered in the context of her marital standard of living - Thus, there was no basis for the review date provided in the trial judgment - As well, the order did not comply with the Leskun v. Leskun (SCC) requirement for a tight delimitation of the facts subject to review - See paragraphs 62 to 74.

Family Law - Topic 4018.1

Divorce - Corollary relief - Maintenance and awards - Review of maintenance v. variation of maintenance - Effect of income or potential income of payor's spouse - The Ontario Court of Appeal stated that a review allowed an application for support without the need to prove the material change in circumstances required in a variation application under s. 17 of the Divorce Act - Unless the review was restricted to a specific issue, it was generally equivalent to an initial application for support and necessitated a complete rehearing of every issue from entitlement to quantum - Thus, a review, particularly one relatively proximate to the time of the originating order, caused unnecessary and significant expense for the parties, not only emotionally, but also financially - It was hard to justify such an expense unless it was strongly indicated on the unusual facts of a particular case - This was why review orders were generally discouraged - Review orders in effect turned an initial order into a long-term interim order made after trial - Accordingly, they should be the exception, not the norm - They were appropriate when a specified uncertainty about a party's circumstances at the time of trial would become certain within an identifiable timeframe - When one was granted, it should include specifics regarding the issue about which there was uncertainty and when and how the trial judge anticipated that uncertainty would be resolved - In any other case, a trial judge should issue a final order based on a preponderance of the evidence called by the parties - In the family law context, a final order would always be subject to variation, which would suffice to protect against future events - See paragraphs 63, 64, 70 and 71.

Family Law - Topic 4021.5

Divorce - Corollary relief - Maintenance and awards - Awards - Support tables - The Ontario Court of Appeal reviewed the objective of the Spousal Support Advisory Guidelines and their intended application and use - See paragraphs 94 to 103.

Family Law - Topic 4022

Divorce - Corollary relief - Maintenance and awards - Awards - To wife - Considerations - [See Family Law - Topic 3997 ].

Family Law - Topic 4022.1

Divorce - Corollary relief - Maintenance and awards - Awards - To spouse - Extent of obligation - [See Family Law - Topic 3997 ].

Family Law - Topic 4025.1

Divorce - Corollary relief - Maintenance and awards - Awards - Effect of income or potential income of payor's spouse - On appeal a wife argued that a trial judge erred in reducing the husband's obligation to pay support by reason of his obligations to his second or new family - The Ontario Court of Appeal stated that while courts generally recognized a "first-family-first" principle (payor's obligations to the first family take priority over any subsequent obligations), inevitably new obligations to a second family could decrease a payor's ability to pay support for a first family - In each case, obligations toward second families had to be considered in context - In this case, the husband voluntarily assumed significant responsibility for his second family when he knew, or should have known, of his pre-existing obligation to his first family - He assumed this obligation even though the second family was capable of contributing to its own support provided the husband's new partner completed her qualifications to practise as a physiotherapist in Ontario - In addition, the second family received child support from the children's biological father - There was no evidence that the husband's obligations to his first family would impoverish his second family - In these circumstances, the husband's endorsement of his second wife's preference to remain at home could not be relied upon to reduce his support obligation to his first family - See paragraphs 39 to 41.

Cases Noticed:

Moge v. Moge, [1992] 3 S.C.R. 813; 145 N.R. 1; 81 Man.R.(2d) 161; 30 W.A.C. 161; 43 R.F.L.(3d) 345, refd to. [paras. 17, 85, footnote 18].

Bracklow v. Bracklow, [1999] 1 S.C.R. 420; 236 N.R. 79; 120 B.C.A.C. 211; 196 W.A.C. 211, refd to. [para. 17].

Bakker v. Bakker (1997), 34 R.F.L.(4th) 55 (Ont. Gen. Div.), refd to. [para. 18, footnote 3].

Jeffries v. Jeffries (1997), 39 O.T.C. 182; 32 R.F.L.(4th) 345 (Gen. Div.), refd to. [para. 18, footnote 3].

Bildy v. Bildy (1999), 127 O.A.C. 44; 42 O.R.(3d) 737; 44 R.F.L.(4th) 81 (C.A.), refd to. [para. 18, footnote 3].

Kugler v. Kugler (1994), 8 R.F.L.(4th) 205 (Ont. C.J.), refd to. [para. 19].

Edwards v. Edwards (1994), 133 N.S.R.(2d) 8; 380 A.P.R. 8; 5 R.F.L.(4th) 321 (C.A.), refd to. [para. 19, footnote 4].

Milligan v. Ronnie (2001), 200 Nfld. & P.E.I.R. 358; 603 A.P.R. 358 (T.D.), refd to. [para. 19, footnote 4].

Curtin v. Curtin, [1997] O.T.C. Uned. 652 (Gen. Div.), refd to. [para. 19, footnote 4].

Parsons v. Parsons (1995), 17 R.F.L.(4th) 267 (Ont. Gen. Div.), refd to. [para. 19, footnote 4].

B.L. v. J.S. (1994), 156 A.R. 266 (Q.B.), refd to. [para. 19, footnote 4].

Huisman v. Huisman (1996), 91 O.A.C. 293; 30 O.R.(3d) 155 (C.A.), refd to. [paras. 21, 85, footnotes 5, 18].

Kurbegovich v. Kurbegovich, [1998] O.T.C. Uned. 16; 36 R.F.L.(4th) 220 (Gen. Div.), refd to. [paras. 21, 85, footnotes 5, 18].

Bracklow v. Bracklow (1999), 27 B.C.T.C. 58; 3 R.F.L.(5th) 179 (S.C.), refd to. [para. 21, footnote 5].

Kent v. Frolick (1996), 23 R.F.L.(4th) 1 (Ont. C.A.), refd to. [paras. 21, 85, footnote 18].

Krauss v. Krauss (1991), 33 R.F.L.(3d) 233 (Ont. C.A.), refd to. [paras. 21, 85, footnote 18].

Pope v. Pope (1999), 117 O.A.C. 275 (C.A.), refd to. [para. 21, footnote 6].

Hickey v. Hickey, [1999] 2 S.C.R. 518; 240 N.R. 312; 138 Man.R.(2d) 40; 202 W.A.C. 40, refd to. [para. 25].

Miglin v. Miglin, [2003] 1 S.C.R. 303; 302 N.R. 201; 171 O.A.C. 201; 2003 SCC 24, refd to. [para. 34].

Andrews v. Andrews (1999), 124 O.A.C. 259; 50 R.F.L.(4th) 1 (C.A.), refd to. [paras. 35, 67].

Adams v. Adams (2001), 145 O.A.C. 388; 15 R.F.L.(5th) 1 (C.A.), refd to. [para. 35].

Desramaux v. Desramaux (2002), 162 O.A.C. 338; 28 R.F.L.(5th) 25 (C.A.), refd to. [para. 35].

Linton v. Linton (1990), 42 O.A.C. 328; 1 O.R.(3d) 1; 30 R.F.L.(3d) 1 (C.A.), refd to. [para. 53].

Leskun v. Leskun, [2006] 1 S.C.R. 920; 349 N.R. 158; 226 B.C.A.C. 1; 373 W.A.C. 1; 34 R.F.L.(6th) 2; 2006 SCC 25, refd to. [para. 65].

Choquette v. Choquette, [1998] O.A.C. Uned. 330; 39 R.F.L.(4th) 384 (C.A.), refd to. [para. 66].

Keller v. Black, [2000] O.T.C. 845 (Sup. Ct.), refd to. [para. 67, footnote 15].

Bemrose v. Fetter (2007), 228 O.A.C. 311 (C.A.), refd to. [para. 69].

Doyle v. Doyle, [2001] O.T.C. Uned. C22; 22 R.F.L.(5th) 276 (Sup. Ct.), refd to. [para. 85, footnote 18].

Cavanagh v. Cassidy, [2000] O.T.C. 330; 7 R.F.L.(5th) 282 (Sup. Ct.), refd to. [para. 85, footnote 18].

Schmuck v. Reynolds-Schmuck, [1999] O.T.C. Uned. 677; 50 R.F.L.(4th) 429 (Sup. Ct.), refd to. [para. 85, footnote 18].

Yemchuk v. Yemchuk (2005), 215 B.C.A.C. 193; 355 W.A.C. 193; 16 R.F.L.(6th) 430 (C.A.), refd to. [para. 95].

Crosman v. Crosman (2006), 299 N.B.R.(2d) 334; 778 A.P.R. 334; 27 R.F.L.(6th) 19; 2006 NBCA 46, leave to appeal refused (2006), 361 N.R. 392; 309 N.B.R.(2d) 400; 799 A.P.R. 400 (S.C.C.), refd to. [paras. 95, 100, footnotes 22, 26].

S.C. v. J.C. - see Crosman v. Crosman.

McEachern v. McEachern (2006), 232 B.C.A.C. 185; 385 W.A.C. 185; 33 R.F.L.(6th) 315 (C.A.), refd to. [para. 95, footnote 22].

M.S. v. W.S. (2006), 230 B.C.A.C. 100; 380 W.A.C. 100; 2006 BCCA 391, refd to. [para. 95, footnote 22].

Kun v. Toth, [2006] B.C.A.C. Uned. 31 (C.A.), refd to. [para. 95, footnote 22].

Redpath v. Redpath et al. (2006), 228 B.C.A.C. 272; 376 W.A.C. 272; 33 R.F.L.(6th) 91; 2006 BCCA 338, refd to. [paras. 95, 102, footnote 22].

Tedham v. Tedham (2005), 217 B.C.A.C. 250; 358 W.A.C. 250; 20 R.F.L.(6th) 217; 47 B.C.L.R.(4th) 254; 2005 BCCA 502, refd to. [para. 95, footnote 22].

Lust v. Lust (2007), 417 A.R. 106; 410 W.A.C. 106 (C.A.), refd to. [para. 95, footnote 22].

Pettigrew v. Pettigrew (2006), 246 N.S.R.(2d) 298; 780 A.P.R. 298; 30 R.F.L.(6th) 7 (C.A.), refd to. [para. 95, footnote 22].

G.V. v. C.G., [2006] J.Q. no. 5231 (C.A.), refd to. [paras. 95, 101, footnotes 22, 27].

Droit de la famille 061122, [2006] J.Q. no. 17350 (C.S.), refd to. [para. 27].

B.D. v. S.D., [2006] J.Q. no. 1670 (C.S.), refd to. [para. 101, footnote 27].

M.G. v. J.C, [2006] J.Q. no. 1669 (C.S.), refd to. [para. 101, footnote 27].

D.S. v. M.S., [2006] J.Q. no. 506 (C.S.), refd to. [para. 101, footnote 27].

Authors and Works Noticed:

Bala, Nicholas, Spousal Support Law Transformed - Fairer Treatment for Women (1994), 11 C.F.L.Q. 6, p. 52 [para. 39, footnote 10].

Canada, Department of Justice, Spousal Support Advisory Guidelines: A Draft Proposal - see Rogerson, Carol, and Thompson, Rollie, Spousal Support Advisory Guidelines: A Draft Proposal.

Rogerson, Carol, and Thompson, Rollie, Spousal Support Advisory Guidelines: A Draft Proposal (2005), generally [paras. 3, 106, footnotes 29, 30]; c. 8 [para. 80, footnote 17]; p. 39 [para. 109]; ss. 4.4.2 [para. 96, footnote 24]; 5.1.2.2 [para. 35, footnote 7]; 10.8 [para. 39, footnotes 9, 11].

Rogerson, Carol, and Thompson, Rollie, The Advisory Guidelines 31 Months Later (2007), c. 5 [para. 96, footnote 23]; pp. 9 [para. 100, footnote 25]; 11 [para. 105, footnote 28].

Rogerson, Carol, Spousal Support after Moge (1996), 14 C.F.L.Q. 281, pp, 309, 310 [para. 49, footnote 12].

Rogerson, Carol, Spousal Support Post-Bracklow: The Pendulum Swings Again? (2001), 19 C.F.L.Q. 185, pp. 218 [para. 68]; 259 [para. 87].

Counsel:

Erin L. Reid, for the appellant;

Iain R.R. Sneddon, for the respondent.

This appeal was heard on September 21, 2007, before Doherty, Goudge and Lang, JJ.A., of the Ontario Court of Appeal. The following judgment was delivered by Lang, J.A., on January 10, 2008.