C. Meaning of "Special Provisions" and "Inequitable" under Sections 15. 1(5) and 17(6. 2) of Divorce Act

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 379-381

Page 379

It is not clear whether the term "special provisions" in sections 15(1)(5)(a) and 17(6.2)(a) of the Divorce Act means "particular" or "out of the ordinary or unusual."²⁹It has been asserted that a "special provision" within the meaning of section 15.1(5) of the Divorce Act must be one that, in whole or in part, replaces the need for ongoing support of the children.³⁰In

Bromm v. Bromm,³¹ Ryan-Froslie J., of the Saskatchewan Court of Queen’s Bench states:

[74] The law with respect to s. 15.1(5) is far from settled. Courts of Appeal across this country faced with interpreting this subsection have adopted different approaches as to what constitutes a "special provision".

[75] In Danchuk v. Danchuk, 2001 BCCA 291, 15 R.F.L. (5th) 328, the British Columbia Court of Appeal, at para. 27, held that a "special provision" must at a minimum " . . . either encompass some pre-payment of child support or reflect a financial or property obligation beyond that which the law would normally impose."

[76] In Wright v. Zaver (2002), 24 R.F.L. (5th) 207 (Ont. C.A.), the Ontario Court of Appeal split with respect to what constitutes a "special provision" under the Ontario provincial legislation. The majority of the Court held that a "special provision" must be out of the ordinary or "unusual", a position also adopted by the Nova Scotia Court of Appeal in MacKay v. Bucher, 2001 NSCA 120, (2001), 196 N.S.R. (2d) 293. A minority of the Ontario Court of Appeal in Wright v. Zaver, at para. 90, found that to qualify as a special provision, there was no requirement that the provision be out of the ordinary or unusual so long as the provision replaced ". . . in whole or in part, the need for support . . . ."

[77] The leading case in this province is the Saskatchewan Court of Appeal decision in Peterson v. Horan, supra. While that case involved provincial legislation, the provision in issue is identical to s. 15.1(5) of the Divorce Act. Accordingly the principles set out in Peterson v. Horan are applicable to this case.

[78] Peterson v. Horan, supra dealt with the issue of whether a payment made by the Canada Pension Plan to the child of a disabled contributor constitute "special provisions otherwise

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made" for the benefit of the child. While the Court of Appeal was split in its determination of that issue, Cameron J.A. did provide guidance as to the meaning of the term "special provisions". At paras. 35 and 36 he stated:

[35] Now, the term "special...