Pelech v. Pelech, (1987) 76 N.R. 81 (SCC)

• Judge: Dickson, C.J.C., McIntyre, Chouinard, Lamer, Wilson, Le Dain and La Forest, JJ.
• Court: Supreme Court (Canada)
• Case Date: June 04, 1987
• Jurisdiction: Canada (Federal)
• Citations: (1987), 76 N.R. 81 (SCC);76 NR 81;7 RFL (3d) 225;14 BCLR (2d) 145;[1987] 1 SCR 801;17 CPC (2d) 1;1987 CanLII 57 (SCC);38 DLR (4th) 641;[1987] SCJ No 31 (QL);[1987] 4 WWR 481

Pelech v. Pelech (1987), 76 N.R. 81 (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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Shirley Mae Pelech v. John Pelech

(19265)

Indexed As: Pelech v. Pelech

Supreme Court of Canada

Dickson, C.J.C., McIntyre, Chouinard, Lamer, Wilson, Le Dain and La Forest, JJ.

June 4, 1987.

Summary:

A husband and wife were divorced in 1969 after 15 years of marriage. There were two children of the marriage. The trial judge presiding at the divorce petition awarded the husband custody of the children because of the wife's serious psychological problems. The judge also awarded the wife permanent maintenance.

Subsequently the husband and wife entered into a maintenance agreement which provided for a total payment of $28,760.00 to the wife over a 13 month period. Fifteen years later the wife applied to vary the maintenance agreement pursuant to s. 11(2) of the Divorce Act.

The British Columbia Supreme Court, in a decision reported at (1984), 41 R.F.L.(2d) 274, allowed the application on the ground that the change in the wife's financial situation was a gross change in circumstance pursuant to s. 11(2) of the Act. The court awarded the wife maintenance of $2,000.00 per month. See paragraphs 9 to 11. The husband appealed.

The British Columbia Court of Appeal, in a decision reported at (1985), 45 R.F.L.(2d) 1; 17 D.L.R.(4th) 147; 61 B.C.L.R. 216, allowed the appeal. The court held that the parties should be able to rely on their agreements. See paragraphs 12 and 13. The wife appealed, raising a number of issues including the jurisdiction of a reviewing court and the Supreme Court of Canada.

The Supreme Court of Canada dismissed the appeal. The court held that both an appeal court and the Supreme Court of Canada have jurisdiction to vary a maintenance agreement pursuant to ss. 11(2) and 17(2) of the Divorce Act. The court refused to vary the maintenance agreement in this case where the change in the wife's circumstances could not be connected to the marriage breakdown.

Family Law - Topic 4006

Divorce - Corollary relief - Maintenance - Awards - Effect of settlement and separation agreements - A husband and wife were divorced after 15 years of marriage - The parties entered into a maintenance agreement which provided for a total payment of $28,760.00 to the wife - Fifteen years later the wife was in dire financial need and the husband was a wealthy businessman - The wife applied to vary the maintenance agreement pursuant to s. 11(2) of the Divorce Act - The Supreme Court of Canada refused to allow the variation - The court held that "where the parties have negotiated their own agreement, freely and on the advice of independent legal counsel, as to how their financial affairs should be settled on the breakdown of their marriage, and the agreement is not unconscionable in the substantive law sense, it should be respected".

Family Law - Topic 4017

Divorce - Corollary relief - Maintenance - Awards - Variation of periodic payments or lump sum award - A husband and wife were divorced after 15 years of marriage - The parties entered into a maintenance agreement which provided for a total payment of $28,760.00 to the wife - Fifteen years later the wife was in dire financial need and the husband was a wealthy businessman - The wife applied to vary the maintenance agreement pursuant to s. 11(2) of the Divorce Act - The Supreme Court of Canada refused to allow the variation - The court stated that to vary a maintenance agreement because of a change in circumstance under s. 11(2) of the Divorce Act, there must be some causal connection between the change and the marriage; change by itself, no matter how great, is not enough to warrant variation of an agreement - See paragraphs 58 to 62.

Family Law - Topic 4017

Divorce - Corollary relief - Maintenance - Awards - Variation of periodic payments or lump sum award - Pursuant to s. 11(2) of the Divorce Act, a court can vary a maintenance award because of the changed circumstances of the parties - The Supreme Court of Canada discussed various categories of change including 1) where the applicant has become a public charge; 2) where the terms of the existing agreement cause deprivation to children, and 3) where the agreement is unenforceable on other grounds - See paragraphs 63 to 76.

Family Law - Topic 4018

Divorce - Corollary relief - Maintenance - Awards - Variation of - Jurisdiction - The Supreme Court of Canada stated that despite the existence of a maintenance agreement between spouses, the "parties cannot oust the jurisdiction of the court in matters of spousal maintenance" - See paragraphs 52 to 57.

Family Law - Topic 4019

Divorce - Corollary relief - Maintenance - Awards - Appeals - Jurisdiction - Appeal courts - A husband and wife were divorced after 15 years of marriage - The parties entered into a maintenance agreement which provided for a total payment of $28,760.00 to the wife - Fifteen years later the wife applied to vary the agreement - The trial judge allowed the application and ordered the husband to pay monthly maintenance of $2,000.00 - The husband appealed - The Court of Appeal allowed the appeal - The wife appealed - The Supreme Court of Canada discussed the jurisdiction of an appeal court pursuant to s. 17(2) of the Divorce Act - The court held that an appeal court should not interfere with the trial judge's decision unless his reasons disclose a material error - The court held that determining a change in circumstances pursuant to s. 11(2) of the Divorce Act is a reviewable decision by an appeal court under s. 17(2) of the Act - See paragraphs 14 to 29.

Family Law - Topic 4019

Divorce - Corollary relief - Maintenance - Awards - Appeals - Jurisdiction - Supreme Court of Canada - The Supreme Court of Canada discussed the jurisdiction of the court pursuant to s. 41(1) of the Supreme Court Act and s. 18 of the Divorce Act, to review a variation of maintenance under s. 11(2) of the Divorce Act - The court held that determining a change in circumstance justifying a variation of maintenance was a question of law and within the jurisdiction of the Supreme Court - See paragraphs 30 to 33.

Practice - Topic 8874

Appeals - Leave to appeal - From question of law - [See Family Law - Topic 4019 immediately above].

Cases Noticed:

Collins v. Collins (1978), 10 A.R. 214; 2 R.F.L.(2d) 385, refd to. [para. 10].

Goldstein v. Goldstein (1976), 23 R.F.L. 206 (Alta. C.A.), refd to. [para. 10].

Dal Santo v. Dal Santo (1975), 21 R.F.L. 117, refd to. [para. 10].

Farquar v. Farquar (1983), 1 D.L.R.(4th) 244, consd. [para. 12].

Harrington v. Harrington (1981), 33 O.R.(2d) 150 (C.A.), consd. [para. 14].

Piller v. Piller, [1975] 4 W.W.R. 342 (B.C.C.A.), refd to. [para. 15].

Nash v. Nash, [1975] 2 S.C.R. 507; 2 N.R. 271, consd. [para. 15].

Carmichael v. Carmichael (1976), 27 R.F.L. 325 (B.C.C.A.), refd to. [para. 17].

Guberman v. Guberman, [1977] 2 W.W.R. 1, refd to. [para. 17].

Swain v. Dennison, [1967] S.C.R. 7, refd to. [para. 20].

Ashby v. White (1703), 2 Ld. Raym. 938; 92 E.R. 126, refd to. [para. 20].

Gazdeczka v. Gazdeczka (1982), 30 R.F.L.(2d) 428 (B.C.C.A.), refd to. [para. 24].

Posener v. Posener (1984), 4 D.L.R.(4th) 385 (B.C.C.A.), refd to. [para. 25].

Schmeiser v. Schmeiser (1982), 21 Sask.R. 437 (C.A.), refd to. [para. 26].

Dwelle v. Dwelle (1982), 46 A.R. 1; 31 R.F.L.(2d) 113 (Alta. C.A.), refd to. [para. 26].

MacAllister v. MacAllister (1984), 55 N.B.R.(2d) 211; 144 A.P.R. 211; 39 R.F.L.(2d) 307 (N.B.C.A.), refd to. [para. 26].

Webster v. Webster (1978), 25 N.S.R.(2d) 33; 36 A.P.R. 33 (C.A.), refd to. [para. 26].

Hallberg v. C.N.R. (1955), 16 W.W.R.(N.S.) 538, refd to. [para. 28].

Baumgartner Estate v. Ripplinger (1984), 34 Sask.R. 181, refd to. [para. 28].

Csada v. Csada (1984), 35 Sask.R. 301, refd to. [para. 28].

Lensen v. Lensen, [1984] 6 W.W.R. 673, refd to. [para. 28].

Massicotte v. Boutin, [1969] S.C.R. 818, refd to. [para. 30].

Carnochan v. Carnochan, [1955] S.C.R. 669, refd to. [para. 30].

Richardson v. Richardson (1987), 76 N.R. 81, refd to. [para. 32].

Caron v. Caron (1987), 75 N.R. 36, refd to. [para. 32].

Hyman v. Hyman, [1929] A.C. 601, consd. [para. 35].

Messier v. Delage, [1983] 2 S.C.R. 401; 50 N.R. 16; 35 R.F.L.(2d) 337, refd to. [para. 36].

Connelly v. Connelly (1974), 47 D.L.R.(3d) 535; 9 N.S.R.(2d) 48 (N.S.C.A.), refd to. [para. 38].

Piasta v. Piasta (1974), 15 R.F.L. 137 (Sask. Q.B.), refd to. [para. 39].

Katz v. Katz (1983), 33 R.F.L.(2d) 412 (Man. C.A.), disapprvd. [para. 40].

Webb v. Webb (1984), 5 O.A.C. 161; 39 R.F.L.(2d) 113 (Ont. C.A.), consd. [para. 42].

Newman v. Newman (1980), 4 Man.R.(2d) 50, disapprvd. [para. 46].

Ross v. Ross (1984), 26 Man.R.(2d) 122; 39 R.F.L.(2d) 51, disapprvd. [para. 52].

Gandy v. Gandy (1882), 7 P.D. 168, refd to. [para. 53].

Fabian v. Fabian (1983), 34 R.F.L.(2d) 313 (Ont. C.A.), refd to. [para. 67].

Barrett v. Barrett (1985), 43 R.F.L.(2d) 405 (Ont. H.C.), refd to. [para. 68].

Jull v. Jull (1984), 56 A.R. 123; 42 R.F.L.(2d) 113 (Alta. C.A.), refd to. [para. 69].

Binns v. Binns (1985), 69 N.S.R.(2d) 205; 163 A.P.R. 205; 45 R.F.L.(2d) 369, refd to. [para. 75].

Statutes Noticed:

Divorce Act, R.S.C. 1970, c. D-8, sect. 4 [para. 38]; sect. 11 [paras. 39, 40, 42, 45]; sect. 11(1) [paras. 6, 16, 36, 41, 76, 87, 90, 91]; sect. 11(2) [para. 1 et seq.]; sect. 17(2) [paras. 7, 15, 20, 21, 23, 26, 27]; sect. 17(2)(b)(i) [para. 17]; sect. 18(1) [paras. 8, 31, 32].

Supreme Court Act, R.S.C. 1970, c. S-19, sect. 41(1) [paras. 8, 30, 32]; sect. 42 [para. 8]; sect. 44 [paras. 8, 33]; sect. 47 [para. 27].

Authors and Works Noticed:

Abella, Rosalie, Economic Adjustment On Marriage Breakdown: Support (1981), 4 F.L.R. 1, p. 6 [para. 39].

Canada, Law Reform Commission, Family Law (1976), pp. 42-43 [para. 40].

Canada, Law Reform Commission, Maintenance on Divorce (Working Paper 12), (1975), p. 30 [para. 89].

Payne, Julien, "Policy Objectives of Private Law Spousal Support Rights and Obligations", in Contemporary Trends in Family Law: A National Perspective, K. Connell-Thouez and B.M. Knoppers, eds. (1984), pp. 55-103 [para. 64]; 86-87 [para. 64].

Wilson, Bertha, "The Variation of Support Orders", in Family Law: Dimensions of Justice, Rosalie S. Abella and Claire L'Heureux-Dubé, eds. (1983), [para. 71]; p. 36 [para. 91].

Counsel:

Scott Hall, for the appellant;

R. Kasting, for the respondent.

Solicitors of Record:

Buffam, Hall, Victoria, British Columbia, for the appellant;

Stewart, Aulinger & Company, Vancouver, British Columbia, for the respondent.

This appeal was heard on March 24 and 25, 1986, before Dickson, C.J.C., McIntyre, Chouinard, Lamer, Wilson, Le Dain and La Forest, JJ., of the Supreme Court of Canada.

The decision of the Supreme Court of Canada was delivered on June 4, 1987, in both official languages, when the following opinions were rendered:

Wilson, J. (Dickson, C.J.C., McIntyre, Lamer and Le Dain, JJ., concurring) - see paragraphs 1 to 86;

La Forest, J. - see paragraphs 87 to 95.

Chouinard, J., due to his death, took no part in the decision.