Hickey v. Hickey,

• Jurisdiction: Federal Jurisdiction (Canada)
• Judge: Binnie, JJ.
• Citation: (1999), 240 N.R. 312 (SCC),88 ACWS (3d) 1044,AZ-50065952,46 RFL (4th) 1,[1999] 2 SCR 518,[1999] CarswellMan 254,EYB 1999-12847,[1999] SCJ No 9 (QL),[1999] ACS no 9,202 WAC 40,172 DLR (4th) 577,JE 99-1206,138 Man R (2d) 40,1999 CanLII 691 (SCC),[1999] 8 WWR 485,240 NR 312
• Court: Supreme Court (Canada)
• Date: 10 June 1999

Hickey v. Hickey (1999), 240 N.R. 312 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [1999] N.R. TBEd. JN.015

Patricia Carolyn Hickey (appellant) v. Walter Donald Hickey (respondent)

(26430)

Indexed As: Hickey v. Hickey

Supreme Court of Canada

L'Heureux-Dubé, Gonthier, Cory,

Iacobucci, Major, Bastarache and

Binnie, JJ.

June 10, 1999.

Summary:

A father/husband sought to vary his child support obligations by deleting maintenance for his eldest child who was 18 and no longer living with his mother. The mother/wife applied for an increase in main­tenance for their other child and herself.

The Manitoba Court of Queen's Bench relieved the husband of the obligation to pay maintenance for the eldest child, but increased maintenance for the younger child and for the wife. The husband appealed the increases.

The Manitoba Court of Appeal, in a de­cision reported 123 Man.R. 139; 159 W.A.C. 139, allowed the appeal. The wife appealed.

The Supreme Court of Canada allowed the appeal and restored the trial judge's order.

Family Law - Topic 2421

Maintenance of wives and children - Appeals - General - The Supreme Court of Canada stated that "[w]hen 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 of considerable discretion by trial judges. They must balance the objectives and factors set out in the Divorce Act or in provincial support statutes with an ap­preciation of the particular facts of the case. It is a difficult but important deter­mi­nation, which is critical to the lives of the parties and to their children. Because of its fact-based and discretionary nature, trial judges must be given considerable deference by appellate courts when such decisions are reviewed." - See paragraph 10.

Family Law - Topic 2421

Maintenance of wives and children - Appeals - General - The Supreme Court of Canada stated that "[t]here are strong reasons for the significant deference that must be given to trial judges in relation to support orders. This standard of appellate review recognizes that the discretion involved in making a support order is best exercised by the judge who has heard the parties directly. It avoids giving parties an incentive to appeal judgments and incur added expenses in the hope that the appeal court will have a different appreciation of the relevant factors and evidence. This approach promotes finality in family law litigation and recognizes the importance of the appreciation of the facts by the trial judge. Though an appeal court must inter­vene when there is a material error, a serious misapprehension of the evidence, or an error in law, it is not entitled to overturn a support order simply because it would have made a different decision or balanced the factors differently." - See paragraph 12.

Family Law - Topic 4003

Divorce - Corollary relief - Maintenance and awards - Awards - Effect of inflation and future events - [See first and third Family Law - Topic 4017].

Family Law - Topic 4017

Divorce - Corollary relief - Maintenance and awards - Awards - Variation of periodic payments - A father paid child maintenance of $750/month for each of his two children under a 1987 divorce judg­ment - The father sought to vary the award by deleting maintenance for his eldest child who was 18 and no longer living with his mother - The mother sought, inter alia, increased maintenance for the younger child - The trial judge granted the father's application, but increased the younger child's maintenance to $1,500 based on the effects of inflation, the improvement in the financial resources of the parents, and the fact that the cost of raising children gen­erally increased as they became older - The Manitoba Court of Appeal reduced maintenance to $900 - The Supreme Court of Canada restored the trial judge's order stating, inter alia, that his order reflected the objectives of s. 17(8) of the Divorce Act and that the Court of Appeal did not apply the appro­priate standard of appellate review - See paragraphs 14 to 19.

Family Law - Topic 4017

Divorce - Corollary relief - Maintenance and awards - Awards - Variation of periodic payments - A husband paid spousal maintenance of $1,000/month under a 1987 divorce judgment - At sepa­ration, the husband's income was $100,000 - The wife later attended univer­sity and graduated as a nutritionist - She had worked part-time and her earnings were modest - The husband's earnings had more than doubled since separation - The trial judge held that the increase in the cost of living constituted a material change in the circumstances and increased main­tenance to $1,300 - The Manitoba Court of Appeal allowed the husband's appeal stating that the original award was "entire­ly sufficient" - The Supreme Court of Canada restored the trial judge's order stating that it reflected the objectives of s. 17(7) of the Divorce Act and that the Court of Appeal did not apply the ap­propriate standard of appellate review - The support continued, in part, to compen­sate the wife for a fi­nan­cial disadvantage suffered from the mar­riage: leaving the work force to care for the parties' children - See paragraphs 20 to 28.

Family Law - Topic 4017

Divorce - Corollary relief - Maintenance and awards - Awards - Variation of periodic payments - The Supreme Court of Canada stated that "[i]t has been held by several appeal courts that inflation may constitute a material change justifying a variation in spousal support pursuant to s. 17(4) [Divorce Act] ... I agree that the decreased purchasing power that occurs because of the increased costs of living is a material change that affects the real value of the payments received and there­fore the needs of the payee spouse. An upward adjustment for an increase in the cost of living also accords with the objec­tives of variation orders set out in s. 17(7). The needs of the disadvantaged spouse occasioned by the marriage breakdown will frequently increase because of the increased cost of living over time, and so, often, will the means of the payor spouse, as they did here. Similarly, continuing to compensate a spouse adequately for disad­vantages which arise because of the mar­riage itself may justify an increase when the value of the amount of support awarded has declined over time in real terms ..." - See paragraph 26.

Family Law - Topic 4019

Divorce - Corollary relief - Maintenance and awards - Awards - Appeals (incl. jurisdiction) - [See both Family Law - Topic 2421 and first and second Family Law - Topic 4017].

Family Law - Topic 4021.2

Divorce - Corollary relief - Maintenance and awards - Awards - Considerations - Leaving labour market for family respon­si­bilities - [See second Family Law - Topic 4017].

Family Law - Topic 4170

Divorce - Practice - Appeals - Duty of appellate court - Discretionary orders - [See both Family Law - Topic 2421 and first and second Family Law - Topic 4017].

Cases Noticed:

Harrington v. Harrington (1981), 33 O.R.(2d) 150 (C.A.), refd to. [para. 11].

Pelech v. Pelech, [1987] 1 S.C.R. 801; 76 N.R. 81; [1987] 4 W.W.R. 481; 7 R.F.L.(3d) 225, refd to. [para. 11].

Moge v. Moge, [1992] 3 S.C.R. 813; 145 N.R. 1; 81 Man.R.(2d) 161; 30 W.A.C. 161, refd to. [para. 11].

Willick v. Willick, [1994] 3 S.C.R. 670; 173 N.R. 321; 125 Sask.R. 81; 81 W.A.C. 81; 6 R.F.L.(4th) 161, refd to. [para. 11].

Walker v. Walker (1992), 12 B.C.A.C. 137; 23 W.A.C. 137 (C.A.), refd to. [para. 20].

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. 21].

Ross v. Ross (1995), 168 N.B.R.(2d) 147; 430 A.P.R. 147 (C.A.), refd to. [para. 23].

Winsor v. Winsor (1992), 8 O.R.(3d) 433 (C.A.), refd to. [para. 26].

France v. France (1987), 44 Man.R.(2d) 238 (C.A.), refd to. [para. 26].

Jayatilaka v. Roussel (1991), 174 N.B.R.(2d) 204; 444 A.P.R. 204 (C.A.), refd to. [para. 26].

Statutes Noticed:

Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, sect. 17(1)(a), sect. 17(4), sect. 17(7), sect. 17(8) [para. 6].

Authors and Works Noticed:

Payne, J., Payne on Divorce (4th Ed. 1996), p. 321 [para. 20].

Counsel:

Randall A. Horton, for the appellant;

Leonard Levencrown, for the respondent.

Solicitors of Record:

Monk, Goodwin, Winnipeg, Manitoba, for the appellant;

Smordin, Pauls, Winnipeg, Manitoba, for the respondent.

This appeal was heard on February 18, 1999, before L'Heureux-Dubé, Gonthier, Cory, Iacobucci, Major, Bastarache and Binnie, JJ., of the Supreme Court of Canada.

The judgment of the Supreme Court of Canada, was delivered by L'Heureux-Dubé, J., in both official languages on June 10, 1999.