Citation: Riding v. Nova Scotia (Attorney General), 2009 NSCA 82
Date: 20090729
Docket: CA 305072
Registry: Halifax
Between:
Michael David Riding
Appellant
v.
The Attorney General of Nova Scotia
Respondent
Judges: Oland, Fichaud, Beveridge, JJ.A.
Appeal Heard: June 18, 2009, in Halifax, Nova Scotia
Held: Appeal dismissed per reasons for judgment of Fichaud, J.A.; Oland and Beveridge, JJ.A concurring.
Counsel: Brian P. Casey, for the appellant
Agnes E. MacNeil, for the respondent
Nicholas Dorrance, for the Director of Maintenance Enforcement
Reasons for judgment:
[1] A corollary relief judgment after divorce said that Dr. Riding's spousal support payments would end when his professional income "falls below $80,000 per annum". Four years later Dr. Riding retired on September 30, 2007, and took the position that spousal support should cease at that date. The Director of Maintenance Enforcement, acting under the Maintenance Enforcement Act, S.N.S. 1994-95, c. 6 as amended, took the position that "per annum" referred to a calendar year, that Dr. Riding's professional income for the twelve months of 2007 exceeded $80,000, and therefore he owed spousal support for October through December 2007. The Director issued a garnishment notice.
[2] Dr. Riding applied to the Supreme Court of Nova Scotia (Family Division) for certiorari to quash the Director's garnishment notice, a declaration that his spousal support obligation ended on September 30, 2007, and prohibition to restrain the Director from collecting spousal support after September 30, 2007. The proceeding in the Family Division was governed by the 1972 Civil Procedure Rules, since replaced by the new Rules that came into force on January 1, 2009. Following the practice for certiorari applications under the former Rule 56, Dr. Riding gave notice to his former spouse, but did not name her as a party. His former spouse could have participated at any time, but chose not to participate, and her counsel maintained a watching brief that included attendance at the hearing in the Court of Appeal. The Attorney General of Nova Scotia cross-applied to strike Dr. Riding's application under the former Rule 14.25(1)(d) as an abuse of process, and to strike the affidavit of Dr. Riding's former lawyer Ms. Conrad under the former Rules 14.25 and 38.11.
[3] Justice Dellapinna heard all the applications and issued a decision on September 24, 2008 (2008 NSSC 287). The judge struck the lawyer’s affidavit as hearsay, ruled that Dr. Riding's application was a collateral attack on the corollary relief judgment and dismissed Dr. Riding's application as an abuse of process, with $1000 costs payable by Dr. Riding to the Attorney General. Later I will refer to the judge's reasons.
Issues
[4] Dr. Riding appeals. He says that (1) his application was not an abuse of process, or otherwise procedurally unsound, and (2) the Director erred in her interpretation of the spousal support provision in the corollary relief judgment.
First Issue- Procedure
[5] The procedural issues are questions of law, attracting a correctness standard of review to the judge’s decision.
[6] The judge said:
[20] I agree with the Attorney General’s argument that this application is a collateral attack on the Corollary Relief Judgment and is therefore an abuse of the Court’s process. Another and more efficient, appropriate and effective remedy is available to the Plaintiff that is designed specifically for the purpose of determining the obligations of parties to a maintenance order. The correct course for the Plaintiff to pursue to determine his support obligation is an application to vary pursuant to section 17 of the Divorce Act by which he would seek a specific order in place of the conditional order that currently exists. That procedure would by necessity involve his former spouse. It would also require Dr. Riding to provide evidence, including full financial disclosure, and to make himself available for cross-examination. The Court would then rule on his application.
[7] I respectfully disagree that the variation procedure under s. 17 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp) meant that Dr. Riding's application here was a collateral attack and abuse of process.
[8] Section 17(1)(a) of the Divorce Act allows a court to make an order "varying, rescinding or suspending" a support order. Section 17(4.1) says that, before issuing such a variation order, the court “shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order”. This change must be material: Hickey v. Hickey, [1999] 2 SCR 518, at ¶ 20. Section 17(10) says that "where a spousal support order provides for support ... until a specified event occurs, a court may not, on an application instituted after the ... occurrence of that event, make a variation order" to resume the support, except where hardship arises from the changed circumstances.
[9] Clause 3 of this corollary relief judgment does not say that support continues “until further order of the court”. Rather its determining condition is a specified event - when Dr. Riding’s professional income “falls below $80,000 per annum”. Dr. Riding has not sought to vary the support provision. He says that the determining event has occurred and the provision, by its own words and without a variation order, terminated his support obligation on September 30, 2007. Whether or not his view prevails, this case is about interpretation, not variation. Of course, an application under s. 17 may involve the interpretation of a support provision in a corollary relief judgment: e.g. Mason v. Mason, 2009 NSSC 9. But a party who seeks merely to interpret, not vary, a support provision in a corollary relief judgment need not plead a request to vary and is not confined to a s. 17 application. The judge's ruling, that by not utilizing s.17, Dr. Riding's application collaterally attacked the corollary relief judgment as an abuse of process, erred in law.
[10] This does not mean that Dr. Riding's applications for certiorari, a declaration and prohibition should be entertained. Section 15(4) of the Maintenance Enforcement Act says:
Where the payor or recipient disputes the amount of the arrears, the payor or recipient may apply to the court for an order determining the amount of the arrears.
Section 2(a) defines "court" as the "Family Court unless otherwise stated or required by law". In the judicial districts where, under ss. 32A ff. of the Judicature Act, R.S.N.S. 1989, c. 240, as amended, the Supreme Court (Family Division) has replaced the provincial Family Court, the application under s. 15(4) would be to a judge of the Supreme Court (Family Division).
[11] Dr. Riding did not apply under s. 15(4). Instead he sought prerogative orders and a declaration. These are discretionary remedies. A significant factor in the exercise of the court's discretion whether to entertain such an application is the existence of an adequate alternative remedy: Harelkin v. University of Regina, [1979] 2 SCR 561, per Beetz, J. for the majority, at pp. 575, 587-94; Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources), [1989] 2 SCR 49, at pp. 93-96; Kourtessis v. Canada (M.N.R.), [1993] 2 SCR 53, at ¶ 45-46, 51; Canadian Pacific Limited v. Matsqui Indian Band, [1995] 1 SCR 3, at ¶ 30-37; R. v. Larche, [2006] 2 S.C.R. 762, at ¶ 69-72; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12 at ¶ 51; Kingsbury v. Heighton, 2003 NSCA 80, at ¶ 100-101; Allen v. Royal Canadian Legion, 2007 NSCA 44, at ¶ 38-44.
[12] In my view, an application under s. 15(4) normally would be appropriate, in a case such as this, to seek a judicial interpretation, without a variation, of a corollary relief judgment’s support provision that the Director seeks to enforce. Section 15(4) affords an adequate alternative remedy, as intended by the legislature, and resort to the discretionary remedies is unnecessary.
[13] I will, nonetheless, comment on the merits of Dr. Riding’s submission on the interpretation of clause 3 in the corollary relief judgment. My reason is the practicality of economy to the parties. Dismissal of Dr. Riding’s application on a procedural ground, followed by a new process to litigate the merits, would unnecessarily tax the parties’ resources to contest three months’ support payments. The stated object of the Civil Procedure Rules, former (Rule 1.03) and current (Rule 1.01), is to achieve a “just, speedy and inexpensive determination of every proceeding”. Dr. Riding’s application under s. 15(4) would be to the Supreme Court (Family Division), then appealable to the Court of Appeal. The parties have argued the merits to the Family Division and Court of Appeal. In the circumstances of this case, in my view this court should respond to the submissions on the interpretation of clause 3 to minimize the litigation expense.
[14] I need not reconsider the judge’s ruling to strike the affidavit of Dr. Riding’s former lawyer. Dr. Riding’s factum says:
85 The affidavit was not necessary to the application for certiorari or (given the Hubley affidavit) the application for a declaration. Regardless of the decision on the Conrad affidavit, the application should have been granted.
Even if I agreed with Dr. Riding’s submission on the interpretation of clause 3, there is insufficient evidence of Dr. Riding’s professional income to make an order that his spousal support actually terminates. But the record, without the lawyer’s affidavit, suffices merely to interpret clause 3.
Second Issue- Interpretation
[15] The judge did not rule on the interpretation of the spousal support provision in the corollary relief judgment. So there is no appellate standard of review to the judge’s reasoning. Neither party’s factum offered submissions about the standard of review that a court should apply to the Director's interpretation of the spousal support provision. In my view, it is unnecessary to initiate a detailed standard of review inquiry. The issue is the interpretation of the Supreme Court (Family Division)’s corollary relief judgment. The legislature did not intend that the court should defer to the Director’s interpretation of the court’s own order. I will apply correctness to the Director’s interpretation.
[16] Clause 3 of the corollary relief judgment says:
3. When Michael David Riding’s gross professional and professional corporation income falls below $200,000.00 per annum, assessed on any three consecutive months of full-time employment, the spousal support payment shall be prorated to 20% of his professional and professional corporation income. Spousal support payments to Marie-Louise Annette Stening-Riding shall cease when Michael David Riding’s gross professional and professional corporation income falls below $80,000.00 per annum.
[17] Dr. Riding's factum summarizes his submission:
31. The entire paragraph 3 should be read as a whole. In the first sentence of para. 3, the provision makes it clear that it is referring to a rate at which Riding is earning income, not the total earned in the year:
3. When Michael David Riding’s gross professional and professional corporation income falls below $200,000 per annum, assessed on any three consecutive months of full time employment, the spousal support payment shall be pro-rated to 20% of his professional and professional corporation income. Spousal support payments to Marie-Louise Annette Stening-Riding shall cease when Michael David Riding’s gross professional and professional corporation income falls below $80,000 per annum.
(Emphasis added)
32. Because the Order provides for a reduction in support when Riding’s income assessed on any three consecutive months is below $200,000 per annum, it is clear that the Order is describing a rate of receipt and not a total. [Italics in Appellant's Factum]
[18] Similarly, at the hearing in the Court of Appeal, Dr. Riding’s counsel urged that clause 3 be read as a whole, the final sentence consistently with the words "assessed on any three consecutive months of full-time employment" in the first sentence.
[19] I agree that clause 3 should be read as an internally consistent whole, and that the clause as a whole provides rates of income as the governing conditions. But, in my respectful view, this approach does not support Dr. Riding's requested interpretation.
[20] The words "assessed on any three consecutive months of full-time employment" mean that the condition is a rate, with an income number that is experienced for a definite time period. Only after that time period expires, does the support payment change or cease, and any change or cessation is prospective. In the first sentence, the income is three twelfths of $200,000 ($50,000), and the time period is three consecutive months. Only after Dr. Riding earned below $50,000 over three consecutive months would the support payment fall to 20%, beginning with the fourth month.
[21] The final sentence of clause 3, referring to income “below $80,000 per annum”, does not contain words, such as those in the first sentence, "assessed on [a particular period of time under twelve months]”. Had the final sentence said, for instance, "assessed on one full month", then Dr. Riding's support obligation would have ended prospectively on October 31, 2007, assuming he had no other professional income. But the sentence mentions no such abbreviated time period.
[22] Dr. Riding’s submission assumes that the time period, against which actual income is empirically measured, is the virtual instant immediately following midnight on September 30, 2007. Once his rate of professional income dropped to zero at that instant, the empirical measurement would be spent, along with his support obligation. Nothing in the words of the provision supports this wishful construction.
[23] The only guidance in clause 3's final sentence, as to the time period, is the wording "per annum". The Director interpreted "per annum" to mean a calendar year, meaning that Dr. Riding's support obligation ended with his December 2007 payment. In my view, the Director's interpretation is correct. “Per annum” means “by the year” and “annum” or “the year” generally is January 1 to December 31.
[24] I disagree with Dr. Riding’s interpretation of clause 3.
Conclusion
[25] Though my reasons differ from those of the Family Division judge, at the end of the day I would dismiss the appeal. Success on the issues was divided, and the parties should bear their own costs in the Court of Appeal. I would not disturb the judge’s award of costs for the proceeding in the Family Division.
Fichaud, J.A.
Concurred in:
Oland, J.A.
Beveridge, J.A.