Linton v. Linton, (1990) 42 O.A.C. 328 (CA)

• Judge: Morden, A.C.J.O., Arbour and Osborne, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: December 06, 1990
• Jurisdiction: Ontario
• Citations: (1990), 42 O.A.C. 328 (CA);1990 CanLII 2597 (ON CA);1990 CanLII 2597 (NS CA);1 OR (3d) 1;75 DLR (4th) 637;30 RFL (3d) 1;41 ETR 85;[1990] CarswellOnt 316;[1990] OJ No 2267 (QL);24 ACWS (3d) 524;42 OAC 328

Linton v. Linton (1990), 42 O.A.C. 328 (CA)

MLB headnote and full text

Marlene Ellen Ruth Linton (petitioner/respondent) v. John Herbert Linton (respondent/appellant)

(223/88)

Indexed As: Linton v. Linton

Ontario Court of Appeal

Morden, A.C.J.O., Arbour and Osborne, JJ.A.

December 6, 1990.

Summary:

A wife petitioned for divorce and applied for maintenance. The trial judge granted a divorce and awarded the wife $2,500.00 per month maintenance. The trial judge indexed the maintenance order and ordered that maintenance continue after the husband's expected retirement and be binding on his estate. The husband appealed.

The Ontario Court of Appeal dismissed the appeal.

Family Law - Topic 3997

Divorce - Corollary relief - Obligation to achieve financial independence - The Ontario Court of Appeal stated that "it is likely that in marriages of short durations, particularly where there are no children, the self-sufficiency objective of s. 15(7)(d) [Divorce Act] will be given priority. In marriages of longer duration, where one spouse has been out of the work force for an extended period of time while discharging child care and household management responsibilities, the self-sufficiency objective may be an objective which cannot be attained and will not be given priority" - The court stated that "the objective of self-sufficiency must be assessed in the context of the marriage" - See paragraphs 91, 95.

Family Law - Topic 4002

Divorce - Corollary relief - Maintenance awards - Conditions precedent to entitlement - Causal connection - The Ontario Court of Appeal stated that "causal connection" was not to be considered as a factor or an objective in making an original support order.

Family Law - Topic 4009

Divorce - Corollary relief - Maintenance awards - Death of spouse - Effect of - The Ontario Court of Appeal stated that a trial judge had jurisdiction to make a maintenance order binding on the paying spouse's estate - The court stated that where a wife of a 24 year traditional marriage was dependent upon maintenance, an order binding the husband's estate was consistent with s. 15(7)(a) of the Divorce Act - See paragraphs 109 to 114.

Family Law - Topic 4009.1

Divorce - Corollary relief - Maintenance awards - Retirement of spouse - Effect of - The Ontario Court of Appeal stated that a maintenance order could be made to continue after the paying spouse's expected retirement date - See paragraphs 107 to 108.

Family Law - Topic 4010

Divorce - Corollary relief - Maintenance awards - Periodic payments - A husband and wife married in 1958, separated in 1982 and divorced in 1988 - The wife was now 52, the husband 55 - They had three grown children - It was a traditional marriage - The wife cared for the children and home and worked part-time while the husband pursued his Masters and Ph.D. - The wife worked as a medical secretary at $8 per hour - The husband's expected 1988 income was $140,000.00 - The Ontario Court of Appeal stated that the trial judge did not err in awarding $2,500.00 per month spousal maintenance.

Family Law - Topic 4019.1

Divorce - Corollary relief - Maintenance awards - Indexation - The Ontario Court of Appeal stated that s. 15(4) of the Divorce Act was sufficiently broad to confer jurisdiction to index a support order - The court stated that the purpose of indexation was to insulate a supported spouse from erosion by inflation and to avoid additional variation applications - See paragraph 92.

Family Law - Topic 4021

Divorce - Corollary relief - Maintenance awards - Considerations - Appropriate standard of living - The Ontario Court of Appeal stated that "the question of the appropriate standard of living to be considered if means are available is, in my view, a reasonable standard of living having in mind the circumstances of the marriage. In a long term marriage a reasonable standard of living should be assessed in the context of the marital standard of living, assessing ability to pay, and taking into account the financial result of the determination of property issues" - See paragraph 92.

Family Law - Topic 4022.1

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

Cases Noticed:

Messier v. Delage, [1983] 2 S.C.R. 401; 50 N.R. 16, refd to. [para. 33].

Marcus v. Marcus, [1977] 4 W.W.R. 458 (B.C.C.A.), refd to. [para. 35].

Pelech v. Pelech, [1987] 1 S.C.R. 801; [1987] 4 W.W.R. 481; 76 N.R. 81; 7 R.F.L.(3d) 225, refd to. [para. 42].

Richardson v. Richardson, [1987] 1 S.C.R. 857; 77 N.R. 1; 22 O.A.C. 1; 7 R.F.L.(3d) 304, refd to. [para. 42].

Caron v. Caron, [1987] 1 S.C.R. 892; 75 N.R. 36; 7 R.F.L.(3d) 274; 2 Y.R. 246, refd to. [para. 42].

Winterle v. Winterle (1987), 10 R.F.L.(3d) 129 (Ont. H.C.), refd to. [para. 50].

Heinemann v. Heinemann (1989), 91 N.S.R.(2d) 136; 233 A.P.R. 136; 20 R.F.L.(3d) 236 (C.A.), refd to. [para. 53].

Lynk v. Lynk (1989), 92 N.S.R.(2d) 1; 237 A.P.R. 1; 21 R.F.L.(3d) 337 (C.A.), refd to. [para. 60].

Moge v. Moge (1990), 64 Man.R.(2d) 172; 25 R.F.L.(3d) 396 (C.A.), refd to. [para. 61].

Bast v. Bast (1988), 13 R.F.L.(3d) 98 (Ont. H.C.), refd to. [para. 62].

Willms v. Willms (1988), 27 O.A.C. 316; 14 R.F.L.(3d) 162 (C.A.), refd to. [para. 65].

Fyffe v. Fyffe (1988), 25 O.A.C. 219; 12 R.F.L.(3d) 196 (C.A.), refd to. [para. 71].

Marshall v. Marshall (1988), 13 R.F.L.(3d) 337 (Ont. C.A.), refd to. [para. 72].

Doncaster v. Doncaster (1989), 76 Sask.R. 81; 21 R.F.L. 357 (C.A.), refd to. [para. 83].

Fisher v. Fisher (1989), 22 R.F.L.(3d) 225 (Ont. Div. Ct.), refd to. [para. 83].

Jarvis v. Jarvis (1984), 45 R.F.L.(2d) 223 (Ont. C.A.), refd to. [para. 99].

Silver v. Silver (1984), 49 R.F.L.(2d) 148 (Ont. C.A.), refd to. [para. 101].

Kerr v. Kerr (1989), 79 Sask.R. 52; 22 R.F.L.(3d) 221 (C.A.), refd to. [para. 103].

Vogel v. Vogel (1988), 18 R.F.L.(3d) 445 (Ont. H.C.), refd to. [para. 103].

Snively v. Snively, [1971] 3 O.R. 132 (Ont. H.C.), refd to. [para. 109].

Connelly v. Connelly (1974), 9 N.S.R.(2d) 48 (C.A.), refd to. [para. 109].

Katz v. Katz (1983), 21 Man.R.(2d) 1; 33 R.F.L.(2d) 412 (C.A.), refd to. [para. 109].

Chadderton v. Chadderton (1972), 8 R.F.L. 374 (Ont. C.A.), refd to. [para. 109].

Krause v. Krause (1975), 64 D.L.R.(3d) 352, refd to. [para. 109].

Huff v. Huff and Kemp (1971), 4 R.F.L. 258 (Man. C.A.), refd to. [para. 109].

Hemming v. Hemming (1983), 33 R.F.L.(2d) 157 (N.S.C.A.), refd to. [para. 109].

Lesser v. Lesser (1985), 44 R.F.L.(2d) 255 (Ont. H.C.), refd to. [para. 109].

Swalm v. Swalm and West (1973), 12 R.F.L. 181 (Ont. H.C.), refd to. [para. 109].

Burns v. Burns, [1981] 6 W.W.R. 685; 32 A.R. 367 (Q.B.), refd to. [para. 109].

Statutes Noticed:

Divorce Act, S.C. 1986, c. 4, sect. 15(2), sect. 15(4), sect. 15(5), sect. 15(6), sect. 15(7), sect. 15(8) [para. 27]; sect. 17(4), sect. 17(7) [para. 82]; sect. 17(10) [para. 83].

Family Law Act, S.O. 1986, c. 4, sect. 33(9)(f) [para. 93]; sect. 34(5), sect. 34(6) [para. 2].

Authors and Works Noticed:

Abella, Economic Adjustment on Marriage Breakdown: Support (1981), 4 Fam. L. Rev. 1, generally [para. 95].

Canada, Law Reform Commission, Report on Family Law (1976), generally [para. 32].

Canada, Law Reform Commission, Working Paper No. 12 (1975), generally [para. 35].

Canada, Standing Committee of Justice and Legal Affairs, Evidence, 38A: 8, June 20, 1985 [para. 87]; 39A:35, June 25, 1985 [para. 88].

McDermid, D.R., The Causal Connection Conundrum (1989), 5 C.F.L.Q. 107, p. 117 [para. 48].

McLeod, J.G., Annotation of Pelech v. Pelech (1987), 7 R.F.L.(3d) 225, pp. 225 [para. 48]; 226-234 [para. 45].

Rogerson, The Causal Connection Test in Spousal Support Law (1989), 8 C.J.F.L. 95, generally [para. 94].

Counsel:

T.W. Hainsworth, for the respondent/appellant;

A. Mamo, for the petitioner/respondent.

This appeal was heard on July 3 and 4, 1990, before Morden, A.C.J., Arbour and Osborne, JJ.A., of the Ontario Court of Appeal.

The judgment of the Court of Appeal was delivered by Osborne, J.A., and released on December 6, 1990.