C.A. No. 124372
NOVA SCOTIA COURT OF APPEAL
Cite as: McKenster v. McKenster, 1996 NSCA 136
Hallett, Chipman and Freeman, JJ.A.
BETWEEN:
RICHARD EDISON McKENSTER ) Julia E. Cornish
) for the Appellant
Appellant )
)
- and - )
) William M. Leahey
) for the Respondent
JANICE CATHERINE McKENSTER )
(MELVIN) )
)
Respondent ) Appeal Heard:
) May 23, 1996
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) Judgment Delivered:
) June 24, 1996
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THE COURT: Appeal dismissed per reasons for judgment of Hallett, J.A.; Freeman, J.A. concurring by separate reasons; Chipman, J.A. dissenting in part
HALLETT, J.A.:
This is an appeal from a variation order made pursuant to s. 17 of the Divorce Act, R.S.C. 1985 c. D-3.4.
The parties were married in 1974 and divorced in 1983. There were three children of the marriage. On December 21, 1993, the parties signed minutes of settlement which divided property and provided that the wife would have custody of the children. It was agreed that the husband would pay $250.00 a month for the support of each child with support to cease on the following:
a. Upon each child reaching the age of nineteen (19) years;
b. Upon each child reaching the age of sixteen (16) years and ceasing to reside at home with the Petitioner;
c. Upon the death of the child.
On December 31, 1983 the Decree Nisi was issued; it decreed that the Minutes of Settlement "shall be appended to and form part of the Decree Nisi."
There have been several variations of the support ordered to be paid by the Decree Nisi. The last variation was effective August 1, 1987; the support for the children was increased to $800.00 a month and the appellant was ordered to pay arrears of $4,500. In 1990 the Decree Nisi was further amended to permit the child, Kim, to reside with her father. The appellant continued to pay $800 per month for the support of the two children in the respondent's custody. The support appears to have been divided equally between them.
There has not been a variation of the termination provisions respecting support.
Neither the Decree Nisi nor any of the subsequent variation orders were appealed.
The application to vary which gave rise to the order under appeal was made by the mother of the children seeking an increase in support for Cara Leah McKenster, the oldest child and Kirsten McKenster, the youngest. Cara Leah was born on March 29, 1976. Accordingly she reached the age of 19 years on March 29, 1995.
The application to vary was commenced by notice dated August 18, 1995. The application was supported by affidavits of the respondent (the mother of the children), the children Leah and Kirsten and Marci Melvin, the sister of the respondent's second husband. Kirsten has been residing at Ms. Melvin's for several years. The appellant filed an affidavit in opposition to the application.
The application was heard on September 20, 1995; in addition to the affidavit evidence the learned Chambers judge heard viva voce evidence. On November 22, 1995, he filed a written decision. The learned Chambers judge found that Leah and Kirsten were children of the marriage within the meaning of s. 2(1) of the Divorce Act and that Leah was "a bona fide student striving to attain sufficient training to assist her in self-sufficiency."
The learned Chambers judge found there had been a change in the needs of the two daughters, Leah and Kirsten and in the means of the appellant since the last variation. The Chambers judge found that the appellant's net income in 1991 was $55,000; it increased to $82,000 by 1994. In 1995 he earned approximately $11,750 per month for the eight month period preceding the hearing of the application. The appellant is a financial advisor and markets life insurance.
With respect to Leah and Kirsten's needs, the Chambers judge found:
There is also an increase in the needs of the children who are approaching the years when they must prepare, by education and training, for suitable positions for the rest of their lives.
It is also clear that the sum presently paid by the respondent for the support of his children is completely inadequate.
These findings are supported by the evidence and the case law which the learned Chambers judge cited. He ordered that the appellant pay Leah child support in the amount of $1,100 a month retroactive to September 1, 1995 and ordered him to pay Kirsten $900 a month retroactive to the same date. With respect to Kirsten he also ordered "that Kirsten McKenster should be deemed a child of the marriage until she completes her high school education at which time the matter is open for an application for variation". He ordered the appellant to pay costs of $700.
ISSUES ON APPEAL
The appellant asserts:
1. The learned Chambers judge erred in failing to consider s. 17(10) of the Divorce Act, 1985, in ordering maintenance for Leah Melvin.
2. The learned Chambers judge erred in failing to consider properly the requirement and ability of the respondent Janice Melvin to contribute to the maintenance of any children of the marriage.
3. The learned Chambers judge erred in failing to consider the effect of the rejection of a parent-child relationship by a child over the age of majority in determining entitlement to support and the child's responsibility to assist in her own support.
4. The learned Chambers judge erred in failing to give proper weight to the effect of the Separation Agreement between the parties; which agreement later became incorporated as an Order of the court in the Decree Nisi dated December 21, 1983.
5. The learned Chambers judge erred in failing to properly consider the effect of Leah Melvin living as an independent adult in ordering support on her behalf.
6. The learned Chambers judge erred in deeming Kirsten Melvin a child of the marriage "until she completes her high school education" with regard to the possibility that the child might not complete her high school education and further erred in restricting variation until that point.
The appellant has not appealed the quantum of support ordered to be paid to Kirsten.
Issue 1
1. The learned Chambers judge erred in failing to consider s. 17(10) of the Divorce Act, 1985, in ordering maintenance for Leah Melvin.
There is nothing in the decision of the Chamber's judge which indicates that he gave any consideration to the provisions of s. 17(10) of the Divorce Act.
Section 17(10) provides:
(10) Notwithstanding subsection (1), where a support order provides for support for a definite period or until the happening of a specified event, a court may not, on an application instituted after the expiration of that period or the happening of that event, make a variation order for the purpose of resuming that support unless the court is satisfied that
(a) a variation order is necessary to relieve economic hardship arising from a change described in subsection (4) that is related to the marriage; and
(b) the changed circumstances, had they existed at the time of the making of the support order or the last variation order made in respect of that order, as the case may be, would likely have resulted in a different order. {Emphasis added}
On the facts of this case the Chambers judge was required to consider and apply this section for the following reasons:
(i) the Decree Nisi contained a support order as defined in s. 2(1) of the Divorce Act as the Decree incorporated the written agreement of the parties which required the husband to pay periodic sums for the support of the children.
(ii) the support order provided for the payment of support until the happening of a specified event as it provided that support would cease upon each child reaching the age of 19 years.
(iii) Leah reached the age of 19 years on March 29, 1995. As a consequence the legal obligation to pay support for Leah as contained in the support order ceased on that date.
(iv) the application to vary was commenced August 18, 1995. This was after the happening of the specified event (her attaining the age of 19).
(v) Section 17(10) expressly states that a court may not make a variation order for the resumption of support unless the court is satisfied that the criteria in sub-paragraphs (a) and (b) are met by the applicant.
(vi) the reference to support order in s. 17(10) includes both child support as well as spousal support. This conclusion is based on the definition of support order in s. 2(1) of the Act which states that "support order" means an order made under s. 15(2) of the Act. Section 15(2) authorizes a court of competent jurisdiction to make an order requiring one spouse to pay support for either or both a spouse or children of the marriage. Secondly, s. 17(4) of the Act (which is specifically referred to in s. 17(10)(a)) deals with variation of both spousal and child support orders. Parliament has distinguished spousal support from child support in stating, in both ss. 15 and 17, different objectives to be achieved by the respective orders. If Parliament had intended that s. 17(10) be limited to applications to resume spousal support only, it would have said so.
With one exception, all the cases cited to us by counsel that involved the application of s. 17(10) of the Divorce Act relate to applications for the resumption of spousal support which had terminated prior to the variation application.
The one case was Ramsey v. Ramsey (1989), 73 Nfld. & P.E.I.R. 66, 229 A.P.R. 66 where McQuaid J. applied s. 17(10) in connection with an application to resume child support which had terminated prior to the application for variation. The child in question had attained the age of 18 years. McQuaid J. found that the child attending university was a "child of the marriage" within the meaning of s. 2(1) of the Divorce Act.
After considering and applying the criteria set out in the Act for a variation of a child support order, and after fixing the amount, he stated at para. 53:
Taking all of the above into consideration, I am satisfied that the stipulated criteria enunciated in subsection (10) are present.
(vii) the principle of law that a child's right to support cannot be bartered away by the agreement of the child's parents cannot be invoked to dispense with the s. 17(10) requirement on an application to resume child support which has terminated prior to the application to vary in circumstances such as exist in this case (the child having attained the age of majority before the application to vary and the separation agreement of the parents respecting support for the children had been incorporated into the Decree Nisi so as to constitute a support order).
(viii) The provisions of s. 17(10) are a statutory requirement that Parliament saw fit to include in the Act.
(ix) There is an assumption that the court that grants a Decree Nisi which incorporates the agreement made by the parties to the divorce proceedings was satisfied that the provisions for child support in the agreement were adequate at the time (Willick v. Willick, [1994] S.C.J. No. 94). In this case the termination provision relating to child support cannot be said to have been unreasonable at the time.
(x) With respect to Leah, as she had attained the age of majority by the time the application to vary was made, the parens patriae jurisdiction of the court had ceased. The court's power to vary was governed by the provisions of the Divorce Act and was dependent upon a finding that Leah was a child of the marriage within the meaning of s. 2(1) of the Act.
The learned Chambers judge erred in failing to consider or apply the criteria set out in s. 17(10)(a) and (b) in determining whether child support should have been resumed. It is implicit in the wording of s. 17(10) that the burden of meeting the criteria would be on the party seeking the resumption of the support payments.
Issue 2
2. The learned Chambers judge erred in failing to consider properly the requirement and ability of the respondent Janice Melvin to contribute to the maintenance of any children of the marriage.
In my opinion the learned Chambers judge did not err in finding that the mother of the children (the respondent) does not have the financial ability to contribute to the support of the children. The facts disclose that she has remarried and has two young children of her second marriage. Her second husband earns $24,000 per year. She earns $250 per month operating a preparatory school for young children two mornings a week. The appellant argues before the Chambers judge and before us that the respondent should operate five days a week.
It is my opinion that even if she did it would appear that the increase in her income would be so minimal considering what she earns for the two morning a week operation that she would remain unable to contribute any meaningful financial support for the children of her first marriage. In contrast, the Chambers judge found the appellant's income had increased in 1995 to $11,750 per month. His ability to pay was never really an issue.
The finding that the respondent does not have the ability to contribute financially to the support of Leah and Kirsten is essentially one of fact. The learned Chambers judge did not make a palpable error in reaching this conclusion and, therefore, his finding ought not to be disturbed (Toneguzzo-Norvelle et al v. Savein and Burnaby Hospital, [1994] 1 S.C.R. 114).
Issue 3
3. The learned Chambers judge erred in failing to consider the effect of the rejection of a parent-child relationship by a child over the age of majority in determining entitlement to support and the child's responsibility to assist in her own support.
There is nothing expressed in the decision which would indicate the Chambers judge considered this issue. In his affidavit the appellant states:
6. THAT the break-up with my former wife was difficult and acrimonious and had a very negative effect on my relationship with the children. My daughter Kimberley came to live with me in May, 1988, and she is the only one of my daughters with whom I have a genuine parent-child relationship, as my other two daughters have almost no relationship with me, a circumstance which has been exacerbated by their present court applications. Unfortunately, throughout the years, my former wife has made every effort to frustrate my access to the children. If I have more than incidental contact with the children, she claims I am manipulating them. When I reduce my contact with the children, I am accused of deserting them. I believe both girls have been told repeatedly over the years that I deserted the family.
9. THAT it is my understanding it has been some time since my eldest daughter, Cara Leah, has been living at home. It is my understanding that she spent a period of time living with a boyfriend, and I am aware that she has been residing with a roommate in Chester. I understand Leah has chosen not to continue her studies towards her Bachelor of Arts at Dalhousie University. I had been sending Leah $300.00 per month maintenance directly since March, 1995, up to and including August 1, 1995.
10. THAT during the early part of this year, I met with Leah with the object of reviewing her education plan, as I was prepared to consider voluntarily contributing. Before this process was completed, I was served with notice of a court application on her behalf. I consider this a serious breach of good faith on her part and I am no longer prepared to make voluntary payments.
14. THAT I consider it significant and disappointing that both my eldest and youngest daughters have dropped the name of McKenster and have indeed not used that name for some time until using it for the purpose of this application.
A review of the evidence, as contained in the affidavits and the viva voce evidence given at the hearing, does not satisfy me that Leah has rejected her father. The only basis for this argument is that, despite their having had some discussions in 1995 concerning his financial support for her education, an application was made for an additional amount of support over what he had been paying. This offended the appellant.
Although the appellant states that he had almost no relationship with Leah, his affidavit shows there was a relationship. He had continued to support her by a payment of $300 per month after March 19, 1995. This was paid while she was attending Dalhousie University and was paid up until August 1, 1995. The evidence shows that he had met with Leah early in 1995 to discuss ongoing support for her university education. Where the relationship between Leah and her father broke down was over the amount of the support. She obviously felt he should contribute significantly more than he was apparently considering.
Leah's decision to attend George Brown College in Toronto commencing the fall of 1995 to take a 2-year course which would qualify her as a Sous Chef was made without consultation with her father .
In her affidavit Leah states that the nearest college at which she could obtain a comparable diploma would be Holland College on Prince Edward Island and that she understood the tuition at that college is approximately $10,000 per year.
Counsel for the appellant relies on two trial court decisions and a decision of the Ontario Court of Appeal in Re Burgess v. Burgess (1995), 24 O.R. (3d) 547 in support of her argument that rejection of a parent by a child is a basis to refuse support. This is a factor that a judge might consider in determining a support issue. In the Burgess case a son of Mrs. Burgess' first marriage and who had been adopted by Mr. Burgess was 21 years of age at the time of the application and attending university. The son chose not to see his adoptive father who had been granted access. The Ontario Court of Appeal decided that the trial judge was not wrong to have refused support.
In that appeal the court applied the well known principles of appellate review. At the outset of the decision, Weiler J.A. stated:
A trial judge's decision with respect to support will not be interfered with unless an appellate court is persuaded that the reasons disclose a palpable and overriding error or unless there is no evidence to support the trial judge's conclusion: Pelech v. Pelech, [1987] 1 S.C.R. 801 at p. 824, 7 R.F.L. (3d) 225 at p. 250, per Wilson J., adopting the comments of Morden J.A. in Harrington v. Harrington (1981), 33 O.R. (2d) 150 at p. 154, 22 R.F.L. (2d) 40 (C.A.).
The trial judge gave his judgment without indicating his findings of fact and without giving reasons in relation to his award of support. While this is not in itself an error (see R. v. Burns, [1994] 1 S.C.R. 656 at p. 664, 89 C.C.C. (3d) 193; R. v. Barrett, [1995] 1 S.C.R. 752 at p. 753, 96 C.C.C. (3d) 319), it would have been highly desirable for the trial judge to have given reasons.
In order to properly deal with the submissions advanced by the appellant relating to the issue of support, it is necessary to decide if the trial judge's conclusions are supported by the evidence or if they disclose error in principle.
These cases turn on their facts, both as to whether support should be ordered and in what amount. Unless the judge hearing the application has erred in law or made a palpable or overriding error in his findings of fact, a court of appeal ought not to interfere (Pelech v. Pelech, [1987] 1 S.C.R. 801, 7 R.F.L. (3d) 225, 38 D.L.R. (4th) 641).
Leah's relationship with her father cannot be equated with that of the adopted son in Burgess. The fact that the Chambers judge did not expressly consider the strained relationship between Leah and her father is not fatal to his award. Therefore, I would not, on this ground, interfere with the Chambers judge's decision.
Issue 4
4. The learned chambers judge erred in failing to give proper weight to the effect of the Separation Agreement between the parties; which agreement later became incorporated as an Order of the court in the Decree Nisi dated December 21, 1983.
This issue is partly encompassed in Issue 1 in that the Chambers judge did not appear to give consideration to the implications of s. 17(10) of the Act or the fact that the separation agreement was incorporated into the Decree Nisi. However, he did consider the fact that the separation agreement provided for termination of child support at age 19 but properly rejected the argument on the basis that child support is the right of a child and cannot be bartered away by the parties in a divorce settlement (Spousal and Child Support After Moge, Willick and Levesque by Julian D. Payne, Q.C. (1984), 41 R.F.L. (2d) 376).
I will deal more fully with the s. 17(10) argument later in this decision.
Issue 5
5 The learned Chambers judge erred in failing to properly consider the effect of Leah Melvin living as an independent adult in ordering support on her behalf.
This issue was dealt with by the Chambers judge as he found that Leah was a child of the marriage within the meaning of s. 2(1) of the Act by reason of her status as a bona fide student still dependent on her parents. The Chambers judge would have been well aware that between January and September, 1995, Leah resided in the Chester area with a friend and did not live in her mother's home. She had graduated from high school in 1994 and attended Dalhousie University in an Arts Degree program commencing in the fall of 1994. She had a summer job in 1995 and left for George Brown College in the fall of 1995.
While living away from home for eight months exhibited a degree of independence, it was an incidental aspect of the totality of the evidence the Chambers judge had to consider. It was not determinative itself on the issues before him. A review of the decision shows that the Chambers judge considered the circumstances in which Leah found herself, her needs and, as well, the means of the parents to support her. The Chambers judge applied recognized case law in his finding that Leah was a child of the marriage within the meaning of s. 2(1) of the Act. His finding is supported by the evidence and should not be disturbed. A judge need not articulate in a decision every argument put before the Court. This issue of her living away from home is not one which he would have overlooked as it was stressed in the appellant's case as presented to the Chambers judge.
Issue 6
6. The learned Chambers judge erred in deeming Kirsten Melvin a child of the marriage "until she completes her high school education" with regard to the possibility that the child might not complete her high school education and further erred in restricting variation until that point.
It has been conceded by counsel for the respondent that the provisions of the Order:
AND IT IS FURTHER ORDERED that Kirsten McKenster should be deemed a child of the marriage until she completes her high school education at which time the matter is open for an application for variation;
do not prevent the appellant from applying to vary the order with respect to Kirsten based on a change of circumstances (Lidstone v. Lidstone (1993), 45 R.F.L. (3d) 203 N.S.C.A.)
Disposition of the Appeal
With respect to Issues 2, 3, 4 and 5, the appellant has not persuaded me that the Chambers judge committed any error that would warrant this Court allowing the appeal.
Relief Sought by the Appellant:
In the amended Notice of Appeal the appellant requested that the judgment appealed from be varied as follows:
1. The maintenance for Leah Melvin be terminated effective to the month after she turned age nineteen, being April, 1995;
2. The maintenance for Kirsten Melvin be reviewable in accordance with the terms of the Divorce Act 1985, until she reaches age nineteen (February, 1999) at which time maintenance will terminate in accordance with the Decree Nisi herein;
3. Costs
On Issues 1 and 6 the relief sought by the appellant is described in the Factum as follows:
66. The appellant submits that the decision to reinstitute maintenance for Leah McKenster should be set aside and that this Honourable Court make a finding that the standard set out in s. 17(10) had not been met.
. . . . . .
69. The appellant also seeks an order amending the Order of Justice Davison to provide for the payment of maintenance to Kirsten Melvin subject to variation in accordance with the terms of the Divorce Act, 1985, supra.
A final question is whether we should remit the matter to the Chambers judge to decide the issues that arise under s. 17(10) of the Act or deal with those issues.
I have concluded that we should deal with the issues based on the evidence rather than remit, as there are no questions of credibility but, rather, application of the criteria imposed on the applicant for resumption of child support.
I am satisfied that the respondent has met the burden imposed on her by s. 17(10)(a) in that I am satisfied that the economic hardship being experienced by Leah is related to the marriage simply because she is a child of the marriage. The marriage led to Leah's very existence and, thus, her dependency on her parents so long as she is a child of the marriage as defined in s. 2(1) of the Act. Children, as a rule, cannot support themselves. Thus, the economic hardship of Leah is related to the marriage even though it also relates, in part, to her decision to further her education. An order for support is necessary to relieve this economic hardship which arises from a change in both her needs and the means of the appellant to pay support as found by the learned Chambers judge, a finding which is supported by the evidence. This change has occurred since the making of the last support order in 1987 which increased support for the two children to $800 per month. Leah's needs have increased greatly due to her attendance at college. It is clear from the evidence that the appellant has the means to pay a greater amount of support for his children due to his increased income which has occurred since the last variation order was made. The circumstances and the means and needs of the parties were weighed by the Chambers judge and he was satisfied support in the amount of $1,100 per month was warranted for Leah who had initially sought $1,500 per month.
With respect to sub-paragraph (b) of s. 17(10), the applicant has satisfied me that the changed circumstances, had they existed at the time of the making of the last variation order, would likely have resulted in a more substantial order.
These conclusions do not involve making any new findings of fact. It is simply a matter of applying s. 17(10) to the facts as found by the Chambers judge.
Conclusions
The Chambers judge did not make palpable or overriding errors in his assessment of the evidence which led him to order that the appellant pay Leah $1,100 per month support and pay Kirsten's support of $900 per month. Accordingly, this Court should not interfere with these conclusions.
The learned Chambers judge did err in law in ordering
"that Kirsten McKenster should be deemed a child of the marriage until she completes her high school education at which time the matter is open for an application for variation;"
I would declare that the aforesaid provision of the Order of January 4th, 1996, does not prevent an application for variation of the order for support for Kirsten should there be a change of circumstances that would warrant such an application.
Counsel for the appellant advised us in oral argument that the appellant did not seek costs on the appeal but submitted that the costs paid pursuant to the Order of January 4, 1996 be repaid to the appellant. The respondent seeks costs should the appeal be dismissed. In my opinion, the appeal having been largely unsuccessful on the key issues, the appellant ought to pay the respondent costs of the appeal in the amount of $700 plus disbursements.
Hallett, J.A.
FREEMAN, J.A.: (Concurring)
I agree with Justice Hallett that the appeal should be dismissed but, with respect, I do not agree that an issue arises under s. 17(10) of the Divorce Act on the facts of the present appeal.
The trial judge found that Cara Leah McKenster was a child of the marriage within the meaning of s. 2(1) of the Divorce Act as "a bona fide student striving to attain sufficient training to assist her in self-sufficiency." I agree that this is a proper finding on the evidence. Leah has a right to be supported by one or both parents.
In Richardson v. Richardson [1987] 1 S.C.R. 857 at pp. 869-70, (3d) 304 (S.C.R.), Wilson, J. held:
The legal basis of child maintenance is the parents' mutual obligation to support their children according to their need. That obligation should be borne by the parents in proportion to their respective incomes and ability to pay: Parias v. Parias (supra). The duration of the obligation of support varies with the provisions of each provincial statute. As a general proposition, it can be stated that the obligation of support lasts until a child is between 18 and 21 years of age. It can last longer than that if there are special circumstances, such as the presence of physical or mental handicaps in the child or the child is in full-time attendance at an educational institution. Child maintenance, like access, is the right of the child. For this reason, a spouse cannot barter away his or her child's right to support in a settlement agreement. The court is always free to intervene and determine the appropriate level of support for the child. . . . Further, because it is the child's right, the fact that child support will indirectly benefit the spouse cannot decrease the quantum awarded to the child.
That passage was cited with approval by Sopinka, J. writing for a majority including LaForest, Cory and Iacobucci, JJ. in Willick v. Willick (1994), 3 S.C.R. 670 at p. 686. It is noteworthy that in listing the subsections of s. 17 of the Divorce Act relevant to the variation of child support Sopinka, J. did not include s. 17(10). Section 17(4) is the governing provision. Sopinka, J. wrote at p. 688:
This subsection authorizes the court to vary a previous support order if a change of circumstances occurs. The approach which a court should take is to determine first, whether the conditions for variation exist and if they do exist what variation of the existing order ought to be made in light of the change in circumstances.
He wrote at p. 690:
. . . variation of child support orders would logically flow from either a change in the child's circumstances or a change in the circumstances of one or both of the former spouses. In this way the child is sheltered as much as possible from the consequences of the divorce by providing for escalating needs and by permitting the child to benefit from any improvement in the lifestyle of one or both of the parents.
Leah's right to support results from and is defined by her status as a child of the marriage, not an agreement between the parents or an order based upon it. She remains a child of the marriage because, while over nineteen, she is unable to withdraw from her parents' charge or to obtain the necessaries of life because she is a full-time student. Therefore, I do not consider it material that the court order in question was to terminate with respect to Leah's support when she became 19. Her right to maintenance exists independently of the expired court order. It is independent as well of the requirements of economic hardship or changed circumstances which are considerations set out in s. 17(10)(a). Leah is entitled to have this ongoing right continued and defined by the court, and, in my view, it is not material whether this be done by a new order or by reviving the old one.
The earlier order merely regulated and quantified the parents' duty to pay support, which also existed independently of the order. The period governed by the order was fixed long before current circumstances could be known, and it was therefore subject to variation in the event of changes. "The court is always free to intervene and determine the appropriate level of support for the child."
I accept that the evidence in the present appeal establishes that the mother is unable to contribute to Leah's support, and that the duty must be discharged by the appellant.
I agree with Justice Hallett that the language of s. 17(10) is broad enough to include child support as well as spousal support. Nevertheless, it is not easy to visualize such a role for that provision, particularly a beneficial role as opposed to a potentially mischievous one. Unlike spousal support, the right to child support cannot be extinguished by an agreement or order fixing rights and duties between the spouses. For purposes of this appeal, it is not necessary to determine whether, as a matter of statutory interpretation, Parliament considered that s. 17(10) could apply to child support orders in appropriate circumstances. It is enough to conclude that such circumstances do not exist in this case.
In all other respects, including the result, I concur with Justice Hallett. My view that the trial judge made no reversible error would extend, however, to the s. 17(10) question.
Freeman, J.A.
CHIPMAN, J.A.: (Dissenting in Part)
I agree with my colleague, Hallett, J.A. that the Chambers judge erred in failing to consider or apply the criteria set out in s. 17(10)(a)(b) of the Divorce Act in determining whether child support should have been increased. The Chambers judge's conclusion that there was a change in the needs of the children and the means of the appellant is supported by the material in the record. Such a conclusion would justify a variation pursuant to s. 17(4) of the Act.
However, s. 17(10) requires more. It requires the judge to focus specifically on the factors set out in subsections (a) and (b) thereof. Parliament expressed this in strong terms:
. . . a court may not, on an application instituted after the expiration of that period or the happening of that event, make a variation order for the purpose of resuming that support unless the court is satisfied that . . .
(emphasis added)
There was viva voce evidence before the Chambers judge from Kirsten McKenster, Janice Melvin, Marci Melvin and the appellant. There was cross-examination of each witness. There was also evidence by way of affidavits presented. In performing the functions required by s. 17(10) of the Act, a judge of the first instance must carefully weigh the material before him, particularly viva voce evidence. In domestic matters in particular, his assessment of the parties is critical. This is not a function for which this Court is fitted. I am uncomfortable with the implied conclusion that the Chambers judge would, but for his errors in overlooking the important directive in s. 17(10), have necessarily reached the same result.
I would therefore allow the appeal without costs, set aside the order of the Chambers judge and remit the matter to the Supreme Court for a new hearing.
Chipman, J.A.
C.A. No. 124372
NOVA SCOTIA COURT OF APPEAL
BETWEEN:
RICHARD EDISON McKENSTER
)
Appellant )
- and - ) REASONS FOR
) JUDGMENT BY: )
JANICE CATHERINE McKENSTER )
(MELVIN) ) HALLETT,
) J.A.
Respondent )
) FREEMAN,
) J.A.
) (Concurring in
) part)
)
) CHIPMAN,
) J.A.
) (Dissenting in
) part)
)