Richardson v. Richardson, (1987) 77 N.R. 1 (SCC)

• Judge: Dickson, C.J.C., McIntyre, Chouinard, Lamer, Wilson, Le Dain and La Forest, JJ.
• Court: Supreme Court of Canada
• Case Date: Thursday June 04, 1987
• Jurisdiction: Canada (Federal)
• Citations: (1987), 77 N.R. 1 (SCC);17 CPC (2d) 104;7 RFL (3d) 304;[1987] 1 SCR 857;77 NR 1;38 DLR (4th) 699;22 OAC 1;1987 CanLII 58 (SCC);[1987] CarswellOnt 315;EYB 1987-67464;JE 87-683;[1987] SCJ No 30 (QL)

Richardson v. Richardson (1987), 77 N.R. 1 (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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Donna Gail Richardson v. George Edward Richardson

(No. 19287)

Indexed As: Richardson v. Richardson

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 separated in 1979 and entered into a valid and enforceable settlement agreement in 1980. The agreement provided that the husband pay $175.00 per month maintenance to his wife for one year, plus $300.00 per month maintenance for the child in the wife's custody. When the wife petitioned for divorce in 1983, she sought maintenance for herself under s. 11(1) of the Divorce Act and increased maintenance for the child. The trial judge found grounds to ignore the agreement, awarded the wife $500.00 per month maintenance and confirmed the maintenance award for the child. The husband appealed.

The Ontario Court of Appeal, in a judgment reported 44 R.F.L.(2d) 355, allowed the appeal, struck the spousal maintenance award and increased child maintenance to $500.00 per month. The court held that there was no "catastrophic" change in circumstances to justify interference with the valid and enforceable separation agreement. However, the court increased the child maintenance award because the court was not bound by a separation or settlement agreement respecting maintenance for children. The wife appealed.

The Supreme Court of Canada, La Forest, J., dissenting, dismissed the appeal. The court held that a valid and enforceable settlement or separation agreement providing for spousal maintenance should only be varied where there had been a radical change in the circumstances of the former spouse and that change was the result of a pattern of economic dependency generated by the marriage relationship. The court held that the test applied whether s. 11(1) or 11(2) of the Divorce Act was in issue. The court held that there was no radical change in the present case and, additionally, it was questionable whether the wife's position was attributable to a pattern of economic dependency developed during the marriage.

Family Law - Topic 3356

Separation agreements - Effect of - Maintenance - The Supreme Court of Canada held that the maintenance provisions of a valid and enforceable settlement or separation agreement should only be varied where there had been a radical change in the circumstances of a former spouse and that change was the result of a pattern of economic dependency generated by the marriage relationship - The court stated that the rule applied whether dealing with an application for maintenance under s. 11(1) of the Divorce Act or an application to vary maintenance under s. 11(2) - The court stated that the reasons for the rule were the importance of finality in the financial affairs of former spouses and the principle of deference to the right and responsibility of individuals to make their own decisions.

Family Law - Topic 3357

Separation agreements - Effect of - Maintenance of children - The Supreme Court of Canada stated that since child maintenance was the right of the child, not the parent, a spouse could not barter away his or her child's right to maintenance in a separation or settlement agreement - The court was always free to intervene and determine the appropriate level of support for the child - The fact that child support indirectly benefited the custodial parent could not decrease the quantum awarded to the child - See paragraph 14.

Family Law - Topic 4006

Divorce - Corollary relief - Maintenance awards - Settlement or separation agreement - Effect of - [See Family Law - Topic 3356 above].

Family Law - Topic 4006

Divorce - Corollary relief - Maintenance awards - Settlement or separation agreement - Effect of - A husband and wife separated in 1979 - A 1980 separation agreement provided that the husband pay maintenance of $175.00 per month to his wife for one year - The wife petitioned for divorce in 1983 and sought maintenance under s. 11(1) of the Divorce Act - The wife was unemployed on the date of the agreement and remained so - She had worked for seven years of the 12 year marriage - The Supreme Court of Canada enforced the separation agreement and found the wife was not entitled to maintenance - The court held that not only was there no change in circumstances to justify the court interfering with the agreement, it was also questionable whether her present position was attributable to a pattern of economic dependency developed during the marriage.

Family Law - Topic 4032

Divorce - Corollary relief - Maintenance awards - Assistance by the state - Effect of - A 1980 separation agreement provided that the husband pay maintenance of $175.00 per month to his wife for one year - In 1983 the wife sought maintenance under s. 11(1) of the Divorce Act - The wife was unemployed and receiving social assistance - The Supreme Court of Canada held that the fact that the wife was on social assistance did not, by itself, justify a variation of maintenance - In the absence of a radical change in circumstances the obligation to support a former spouse was the communal responsibility of the state; otherwise a person who has once been married continues to be contingently liable for support of his or her former spouse for the duration of their joint lives.

Cases Noticed:

Farquar v. Farquar (1983), 1 D.L.R.(4th) 244; 35 R.F.L.(2d) 287, refd to. [para. 7].

Webb v. Webb (1984), 5 O.A.C. 161; 39 R.F.L.(2d) 113 (C.A.), refd to. [para. 7].

Joyce v. Joyce (1984), 4 O.A.C. 395; 47 O.R.(2d) 609 (C.A.), refd to. [para. 7].

Pelech v. Pelech (1987), 76 N.R. 81 (S.C.C.), appld. [para. 8].

Sumner v. Sumner (1973), 12 R.F.L. 324 (B.C.S.C.), refd to. [para. 13].

Paras v. Paras, [1971] 1 O.R. 130 (C.A.), refd to. [para. 13].

Jull v. Jull (1984), 56 A.R. 123; 42 R.F.L.(2d) 113 (C.A.), refd to. [para. 13].

Cartlidge and Cartlidge, Re, [1973] 3 O.R. 801 (Fam. Ct.), refd to. [para. 14].

Malcovitch v. Malcovitch (1978), 21 O.R.(2d) 449 (H.C.), refd to. [para. 14].

Hansford v. Hansford, [1973] 1 O.R. 116 (H.C.), refd to. [para. 14].

Dal Santo v. Dal Santo (1975), 21 R.F.L. 117 (B.C.S.C.), refd to. [para. 14].

Mercer v. Mercer (1978), 5 R.F.L.(2d) 224 (Ont. H.C.), refd to. [para. 14].

Collins v. Collins (1978), 10 A.R. 214; 2 R.F.L.(2d) 385 (S.C.), refd to. [para. 14].

Krueger v. Taubner (1974), 17 R.F.L. 86 (Man. Q.B.), refd to. [para. 14].

Doepel v. Doepel (1983), 36 R.F.L.(2d) 316 (Ont. H.C.), refd to. [para. 17].

Van Doorn v. Van Doorn (1985), 46 R.F.L.(2d) 186 (Ont. H.C.), refd to. [para. 17].

Barrett v. Barrett (1985), 43 R.F.L.(2d) 405 (Ont. H.C.), dist. [paras. 17, 49].

Messier v. Delage, [1983] 2 S.C.R. 401; 50 N.R. 16, refd to. [para. 26].

Hyman v. Hyman, [1929] A.C. 601 (H.L.), refd to. [para. 27].

Harrington v. Harrington (1981), 33 O.R.(2d) 150 (C.A.), refd to. [para. 28].

Ross v. Ross (1984), 26 Man.R.(2d) 122; 39 R.F.L.(2d) 51 (C.A.), refd to. [para. 30].

Menard v. Richard, [1974] C.A. 157, refd to. [para. 35].

Newman v. Newman (1980), 4 Man.R.(2d) 50 (C.A.), refd to. [para. 36].

Katz v. Katz (1983), 21 Man.R.(2d) 1; 33 R.F.L.(2d) 412 (C.A.), refd to. [para. 36].

Thompson v. Thompson (1974), 16 R.F.L. 158 (Sask. Q.B.), refd to. [para. 37].

D'Errico v. D'Errico, [1980] C.A. 27, refd to. [para. 43].

Fabian v. Fabian (1983), 34 R.F.L.(2d) 313 (C.A.), refd to. [para. 44].

Yeates v. Yeates (1982), 54 N.S.R.(2d) 611; 112 A.P.R. 611; 31 R.F.L.(2d) 71 (S.C.), refd to. [para. 51].

Ursini v. Ursini (1975), 24 R.F.L. 261 (Ont. C.A.), refd to. [para. 51].

Lardner v. Lardner (1980), 20 R.F.L.(2d) 234 (B.C.C.A.), refd to. [para. 52].

Laflamme v. Levallee, [1981] C.A. 396, refd to. [para. 52].

Jarvis v. Jarvis (1984), 45 R.F.L.(2d) 223 (Ont. C.A.), refd to. [para. 52].

Statutes Noticed:

Divorce Act, R.S.C. 1970, c. D-8, sect. 11(1), sect. 11(2).

Family Law Reform Act, R.S.O. 1980, c. 152.

Child and Family Services and Family Relations Act, S.N.B. 1980, c. C-2.1, sect. 115(5).

Family Law Act, S.O. 1986, c. 4, preamble, sect. 33(4).

Family Law Reform Act, S.O. 1978, c. 2, sect. 18(4).

Family Reform Act, S.P.E.I. 1978, c. 6, sect. 19(4).

Matrimonial Property and Family Support Ordinance, S.Y.T. 1979 (2nd Sess.), c. 11, sect. 30.5(4).

Authors and Works Noticed:

Wilson, B., Variation of Support Orders, Family Law: Dimensions of Justice (1983) (Abella, R.S. and L'Heureux-Dubé, C., eds.) [para. 13].

Vallerand, J.A., Droit de la famille - 193, [1985] C.A. 252, p. 259 [para. 32].

LeBel, J.A., Droit de la famille - 221, [1985] C.A. 394, pp. 400-401 [para. 32].

Abella, R.S., Economic Adjustment on Marriage Breakdown: Support, Family Law and Social Policy Workshop Series (1982) [para. 46].

Payne, Julien, Approaches to Economic Consequences of Marriage Breakdown, Family Law: Dimensions of Justice (1983) (Abella, R.S. and L'Heureux-Dubé, C., eds.) [para. 53].

Cook, Gail, Economic Issues in Marriage Breakdown, Family Law: Dimensions of Justice (1983) (Abella, R.S. and L'Heureux-Dubé, C., eds.) [para. 53].

Berger, Thomas, Forms of Support Orders under the Divorce Act, Family Law: Dimensions of Justice (1983) (Abella, R.S. and L'Heureux-Dubé, C., eds.) [para. 53].

Counsel:

J. Wilson, for the appellant;

D. Wayne Lalonde, 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.

On June 4, 1987, the judgment of the Supreme Court of Canada was delivered in both official languages and the following opinions were filed:

Wilson, J. (Dickson, C.J.C., McIntyre, Lamer and Le Dain, JJ., concurring) - see paragraphs 1 to 22;

La Forest, J., dissenting - see paragraphs 23 to 56.

Chouinard, J., did not participate in the judgment.