C.A. No. 02901
NOVA SCOTIA COURT OF APPEAL
Hallett, Hart and Roscoe, JJ.A.
Cite as: Colp v. Colp, 1994 NSCA 21
BETWEEN:
ISHBELL DAVIDA COLP (SILMARIE) ) M. Elizabeth Wood
) for the Appellant
Appellant )
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- and - )
) Diana M. Musgrave
) for the Respondent
BORDEN PARKER COLP )
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Respondent ) Appeal Heard:
) January 17, 1994
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) Judgment Delivered:
) January 26, 1994
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THE COURT: Appeal allowed and cross-appeal dismissed; appellant's support payment increased to $550. per month without a termination date per reasons for judgment of Hallett, J.A.; Hart and Roscoe, JJ.A. concurring.
HALLETT, J.A.
This is an appeal from a decision of a chambers judge who heard applications by both former spouses for variation of a support order.
The parties were married on September 7th, 1970. Mrs. Colp was a widow. She brought four children and a home to the marriage. The parties separated in June, 1980 and entered into Minutes of Settlement on March 27th, 1981. Under the Terms of the Settlement there was a reasonable distribution of assets and Mr. Colp agreed to pay Mrs. Colp $350.00 a month support until Mrs. Colp remarried or "until further order of the court". At the time of the settlement all but one of the children were on their own; there was a time limited support payment with respect to the child still in Mrs. Colp's custody. The Minutes of Settlement were incorporated into the Decree Nisi issued on May 6th, 1981. Mr. Colp remarried in 1984. His new wife had two children from a previous marriage; he supported them. The youngest of his stepdaughters from this latter marriage is in her early 20s. She has a university degree and at the date of the hearing of the application for variation (July 6th, 1993) was in her first year of a four year programme towards a pharmacy degree. Mr. Colp's financial statements presented on the application showed that he pays $642.00 per month for her university expenses.
Work Record and Financial Circumstances of the Parties
Mrs. Colp married at a relatively young age. She was a housewife and mother during her first marriage. After her first husband's death she obtained some training and then did clerical work at an office for a period of two years until she married Mr. Colp at which time the parties agreed she would cease working outside the home. After ten years of marriage the parties separated. Mrs. Colp then took some training which qualified her as a personal care giver but was unable to find employment in the small town where she lives. She has earned income as a babysitter. At the time of the hearing her financial statement showed she had monthly income of $433.00 from babysitting plus $350.00 support from Mr. Colp and a few dollars miscellaneous income for a total of $800.00 per month. Her monthly expenses are shown at $794.00. She lives in her own home which has a self-contained apartment on the second floor. The apartment was not rented at the time the application was heard. The evidence indicates it needs repairs and the installation of an adequate heating source. She does not have income from babysitting in the months of July and August. She suffers from high blood pressure and arthritis. She is now 59 years of age.
Mr. Colp has had a life long career at the Bowater Mill on the South Shore of Nova Scotia where he has done mechanical work. At the time the parties divorced in 1981 his annual income was about $40,000.00. In 1992 his income tax return shows his income for that year was almost $93,000.00. He is 55 years of age and is considering retiring in the next year or so as he has a problem with his knees. His financial statement shows that his principal source of income is from his employment; he has a small income from part time lobster fishing. His financial statements filed in the proceedings show monthly income of $5,239.00 and expenses of $5,331.00. Apparently he does not anticipate having as much overtime work as he had in previous years. Like Mrs. Colp he owns his home free from encumbrances.
The Proceedings
Mr. Colp filed an application to terminate the support order. Mrs. Colp countered with an application for an increase in support. Mr. Colp argued that his former wife should have achieved self-sufficiency. Both parties filed affidavits, financial statements and gave viva voce evidence on the application. The chambers judge found that there was no "clear cut" change of circumstances that would justify a variation in the support order but then stated:
" In any case, I am saying that there is no change that has taken place as envisaged by the Act that would require a variation in the Order which now is in effect. That is, the payment of Three Hundred and Fifty Dollars ($350.00) a month to continue to the end of December, 1994, at which time it will cease unless continued by Order of the Court because of again, changes in conditions."
It would appear that the learned trial judge may have thought there was a termination date in the original support order. The order taken out to give effect to the decision is dated September 7th, 1993, and provides that Mr. Colp shall continue to pay $350.00 per month support and then provides: "It is further ordered that the payments as set out in that Decree Nisi terminate on the 1st day of December, 1994." The Decree Nisi does not provide for a termination date for the support payments.
Both parties have appealed; Mr. Colp arguing that there should be a cut off date for support and Mrs. Colp arguing for an indefinite continuation of support at an increased amount.
Disposition
Mrs. Colp's appeal should be allowed and Mr. Colp's cross-appeal dismissed. The learned chambers judge clearly erred in his findings. The decision to terminate support on December 31st, 1994, is inconsistent with his finding that there is no change in circumstances. There are sufficient facts before the Court that there is no need to send the matter back for a new hearing. This Court has the comfort of knowing that the chambers judge found both parties to be credible and straight forward in their testimony.
Sections 17(4) and (7) of the Divorce Act, 1985, are relevant to these applications:
" 17. (4) Before the court makes a variation order in respect of a support order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of either former spouse or of any child of the marriage for whom support is or was sought occurring since the making of the support order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration that change.
(7) A variation order varying a support order that provides for the support of a former spouse should
(a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown;
(b) apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above the obligation apportioned between the former spouses pursuant to subsection (8);
(c) relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time."
What is the test to be applied on this variation application? In the so-called trilogy of cases Pelech v. Pelech (1987), 38 D.L.R. (4th) 641, [1987] 1 S.C.R. 801,17 C.P.C. (2d) 1, 7 R.F.L. (3d) 225, [1987] 4 W.W.R. 481, 14 C.L.L.R. (2d) 145. 76 N.R. 81; Richardson v. Richardson (1987), 38 D.L.R. (4th) 699, [1987] 1 S.C.R. 857, 17 C.P.C. (2d) 104, 7 R.F.L. (3d) 304, 77 N.R. 1; and Caron v. Caron (1987), 38 D.L.R. (4th 735, [1987] 1 S.C.R. 892, 7 R.F.L. (3d) 274, [1987] 4 W.W.R. 522, 14 B.C.L.R. (2d) 186, 75 N.R. 36 the Supreme Court of Canada has established that where parties entered into a final settlement agreement the level of support payments to the wife should not be increased unless there has been a radical change in her circumstances and that the change is a result of a pattern of economic dependency generated by the marriage relationship. The principle behind these decisions is that the courts should uphold settlement agreements unless they are unconscionable as otherwise parties will not be inclined to settle their affairs on marriage breakdown.
The agreement reached between Mr. and Mrs. Colp provided that the support payment would be in the amount of $350.00 a month "until further order of the court". The agreement was signed in 1981 prior to the enactment of the 1985 Divorce Act and prior to the decisions in Pelech v. Pelech and the Richardson and Caron cases. At the time the parties entered into the agreement the 1968 Divorce Act was the law. It authorized a court to grant corollary relief including the requirement of one spouse to pay to the other maintenance and provided in s. 11(2) for variation of maintenance so ordered. Section 11(2) stated:
" An order made pursuant to this section may be varied from time to time or rescinded by the court that made the order if it thinks it fit and just to do so having regard to the conduct of the parties since the making of the order or any change in the condition, means or other circumstances of either of them."
When the agreement was signed in 1981 there was a substantial body of case law that divorcing spouses ought to be held bound by their settlement agreements. Del Santo v. Del Santo (1975), 21 R.F.L. 117 (B.C.S.C.); Sherwood v. Sherwood (1980), 18 R.F.L. (2d) 200 (Ont. U.F.C.); and Newman v. Newman (1980), 19 R.F.L. (2d) 122, 114 D.L.R. (3d) 517, 4 Man. R. (2d) 50 (C.A.). These decisions were referred to with approval by Mr. Justice Zuber in the oft cited opinion of the Ontario Court of Appeal in Farquar v. Farquar (1983), 35 R.F.L. (2d) 287.
I have concluded that when the parties agreed that maintenance in the amount of $350.00 a month would be paid until further order of the court it evidenced an intention that the level of support could be varied under appropriate circumstances.
The law applicable on these two applications to vary is as contained in the 1985 Divorce Act and the case law that has developed since its enactment. As the agreement reached between the parties contemplated a possible variation in the future it is my opinion that the principles developed in Moge v. Moge (1992), 99 D.L.R. (4th) 456 should apply rather than those in Pelech, Richardson and Caron even though the parties had entered into minutes of settlement. In short, the parties did not intend that the $350.00 a month was fixed and could never be varied; there was no finality to their agreement on the issue of support. Consequently the statutory criteria found in the legislation should apply and all four of the objectives set forth in s. 17(7) of the Divorce Act are to be considered provided, of course, that there has been the change of circumstances required by s. 17(4). No single objective is paramount. Mrs. Colp does not have to prove there has been a radical change in her circumstances and that the change was a result of a pattern of economic dependency generated by the Colp's marriage relationship.
The evidence shows that there has been a significant change in circumstances since the Decree Nisi was issued in 1981; Mr. Colp's income increased from $40,000.00 a year to approximately $90,000.00 a year. His monthly income and expenses are about equal. While he is to be commended for contributing $642.00 a month towards his stepdaughter's education he has no legal obligation to do so, as on the facts, she can no longer be considered a child of the marriage. Mr. Colp's expenses also include substantial amounts for life insurance, savings, etc. His expenses are in stark contrast to those of Mrs. Colp. I am not critical of the amount he spends but Mrs. Colp's expenses reflect a bare level of subsistence. The evidence shows that her son, at times, has to help her out to pay her fuel bills. She has not seen a dentist for years; she has had the same pair of glasses for ten years. At times months go by while she tries to accumulate money for repairs to her old car which her son does so as to cut down on expenses. She was cross-examined by counsel for Mr. Colp and I have no hesitancy accepting her response to the following question as being credible. She was asked:
" Q. So you ... you survived the entire year, 1992, on sixty-two hundred dollars."
She responded:
" A. I wouldn't say I survived. My children helped me out when they could.
It comes as no surprise to me that given her limited income she has not put the apartment in decent repair in order to rent it.
In fairness to Mr. Colp he has never taken the position that he could not afford to pay a greater sum for Mrs. Colp's support. His position was that she has had plenty of time to become self-sufficient and as he is going to be facing a reduced income in retirement there should be a termination of the support obligation.
In my opinion the excessive emphasis on the requirement of a spouse to achieve self-sufficiency which originated following the decision of the Supreme Court of Canada in Pelech has been properly put to rest in Moge. There must be an air of reality to court decisions and invariably they turn on their facts. Mrs. Colp is 59 years of age. She was 47 at the time of the divorce. She has few job skills. She lives in an area where jobs are scarce. She is employed as a babysitter and is able to use her own home. She earns $433 a month. This type of employment is not unreasonable given her age, health and skills. She has been a housewife and mother for most of her life. She took some training following the divorce and is qualified as a personal care giver, however, she has not been able to find employment as such. She is not well; her efforts to earn income in my opinion given her circumstances are reasonable. She has attained a degree of self-sufficiency that is reasonable under all the circumstances. The economic advantages and disadvantages to the spouses arising from the marriage and its breakdown more or less off set one another. Mrs. Colp was disadvantaged in the sense that she stayed at home and could not pursue a career but she had the advantage of being supported during the marriage. Mr. Colp had the advantage of a spouse to look after him. To the extent that anyone can say there are economic advantages on marriage breakdown Mrs. Colp was accorded a reasonable degree of support and acquired the right to one-half of Mr. Colp's Canada Pension Plan credits earned during the marriage. On the other hand, she was disadvantaged because she was then in her late 40s with few job skills. Mr. Colp was advantaged in that he was able to limit his payments to his former spouse in a period when his employment income increased significantly.
I am satisfied, despite the fact that Mrs. Colp has presented a balanced budget, that she has obvious needs and Mr. Colp has the ability to pay additional support. I would increase the support from $350 a month to $550 out of which Mrs. Colp should be able to put the apartment in shape to rent. Pursuant to s. 17(7)(d) a variation order should insofar as practicable promote the economic self-sufficiency of Mrs. Colp within a reasonable time. Considering Mrs. Colp's age, her health and job skills there cannot be a cutoff date of support as it is unrealistic to think that Mrs. Colp can improve her employment situation and achieve a greater degree of self-sufficiency from an employment perspective. She has a need for ongoing support. I would vary the order by increasing the support as indicated and by deleting the provision that support terminate on December 31, 1994.
Mrs. Colp has succeeded on her appeal. However, as she was represented by Legal Aid there will not be an order for costs.
There was evidence that Mrs. Colp had applied for and was awarded one-half of Mr. Colp's Canada Pension Plan credits earned during the marriage; her share of his credits amounts to about $40,000.00. The evidence did not indicate what pension income per month these credits would provide for Mrs. Colp when she becomes eligible. There is evidence that Mr. Colp intends to retire. Undoubtedly he will have a reduction in income. If Mrs. Colp repairs and rents the apartment and starts receiving a pension her financial position will improve. These combination of circumstances may warrant a variation in support in the next year or so but these factors cannot be taken into account at this time as an award can only be made on the basis of existing facts. I am not implying that there should be a reduction in support as it may be even with anticipated changed circumstances, that the support level fixed at $550.00 would be reasonable. I do not wish to prejudge that issue. I simply want to make the point that although there is evidence of likely future changes in the circumstances of parties these factors cannot be taken into account on this appeal but will warrant consideration by the parties in the future in assessing what is a reasonable level of support to be paid by Mr. Colp to his former wife.
Hallett, J.A.
Concurred in:
Hart, J.A.
Roscoe, J.A.
C.A. No. 02901
NOVA SCOTIA COURT OF APPEAL
BETWEEN:
ISHBELL DAVIDA COLP (SILMARIE) )
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Appellant )
- and - ) REASONS FOR
) JUDGMENT BY:
BORDEN PARKER COLP )
) HALLETT, J.A.
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Respondent )
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