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Willick v. Willick, [1994] 3 S.C.R. 670

 

Lori Ann Willick          Appellant

 

v.

 

Bryan Douglas Albert Willick                                                           Respondent

 

Indexed as:  Willick v. Willick

 

File No.:  23141.

1994:  March 16; 1994:  October 27.

 


Present:  La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ.

 

on appeal from the court of appeal for saskatchewan

 

                   Family law ‑‑ Divorce ‑‑ Support ‑‑ Variation ‑‑ Parties entering into separation agreement later incorporated into divorce judgment ‑‑ Appellant  subsequently applying to vary amount of child support ‑‑ Extent to which court bound by original support order ‑‑ Whether conditions for granting variation order met ‑‑ Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), s. 17(4).

 

                   The parties entered into a separation agreement in July 1989 pursuant to which the respondent, an airline pilot, agreed to pay the appellant $450 per month for each of their two children and $700 per month spousal support, subject to a 3 percent annual increase.  The respondent was earning approximately $40,000 a year at the time, while the appellant's only income consisted of support payments and family allowance.  By October 1989 the appellant was aware that the respondent's income had increased to approximately $5,000 a month, plus a monthly housing allowance of about $4,600.  In November 1989 a divorce judgment was granted incorporating the support provisions of the separation agreement.  Two years later the appellant applied for an order increasing the amount of child support.  By then the respondent's gross income totalled over $154,000 a year.  The chambers judge granted the application, increasing the child support order to $850 per month per child.  The Court of Appeal allowed the respondent's appeal, holding that the conditions for a variation order under s. 17(4) of the Divorce Act had not been met.

 

                   Held:  The appeal should be allowed.

 

                   Per La Forest, Sopinka, Cory and Iacobucci JJ.:  While the court is not bound by the terms of a separation agreement in exercising its jurisdiction to award support under the Divorce Act, as against the parties the agreement operates as strong evidence that at the time each accepted its terms as adequately providing for the needs of the children.  Furthermore, where the agreement is embodied in the divorce judgment, it must be assumed that the court's duty to satisfy itself that reasonable arrangements have been made for the support of any children of the marriage has been carried out and that at the date of the judgment it accurately assessed the needs of the children having regard to the means of the parents.

 

                   A previous support order can be varied under s. 17(4), which, interpreted in the context of the Divorce Act, its predecessors and the principles in the cases and without the necessity of reference to extraneous materials, clearly reveals Parliament's intention.  There must be a material change of circumstances, that is, a change that, if known at the time, would likely have resulted in different terms.  If the matter which is relied on as constituting a change was known at the relevant time it thus cannot be relied on as the basis for variation.  An order for child maintenance may be varied when the relationship between the needs of the children having regard to the means of the parents changes in a material way.  There can be a material change in the relation of these two factors if one of them undergoes a significant change because the relationship between them is altered.  Variation of child support orders under s. 17(4) may be based on 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 divorce since escalating needs are provided for and the child may benefit from any improvement in the lifestyle of one or both of the parents.  This interpretation is also fair to payor spouses, who may use s. 17(4) to protect themselves against a drop in income which prevents them from maintaining the existing level of support payments, even in circumstances where the needs of the children have not changed.

 

                   Having found that the conditions for variation exist, the trial judge should proceed to determine what variation should be made.  The trial judge must re‑assess the needs of the children in light of the change.  The needs of children are not assessed in a vacuum but are affected by the standard set by the means of the parents.  The reasonable expectations of the children for future support upon marriage break‑up are not frozen as of the date of the break‑up.  A substantial increase in the means of the payor parent may thus require that the needs of the child include benefits that previously were not available, although there is a limit to the extent to which the reasonable expectations of children to increased support payments can continue by reason of increases in the wealth of the payor spouse.  If the children are already being maintained at a very high standard a change, even a substantial change in the wealth of the payor spouse, will not in itself entitle the children to increased support so as to permit them to live in luxury.  Here the trial judge did not err in her interpretation of s. 17(4), nor was there any other error or misapprehension of the evidence, and her judgment should accordingly be restored.

 

                   Per L'Heureux‑Dubé, Gonthier and McLachlin JJ.:  The interpretation and application of family law, especially the law of support, require sensitivity to the social realities experienced by those most affected.  Under s. 15(8) of the Divorce Act, the objective of a child support order is to recognize the former spouses' joint financial obligation to the children and to apportion that obligation between them according to their relative abilities to contribute to such support.  Under the Paras formula, a court calculates the appropriate quantum of child support by, firstly, arriving at a sum which would be adequate to care for, support and educate the children and, secondly, dividing this sum in proportion to the respective incomes and resources of the parents.  The formula should not be applied rigidly, however:  the court should deduct from each party's total income a sum needed to achieve subsistence, in order to arrive at a more realistic assessment of the respective incomes available for child support.  It has also generally been acknowledged that children's needs ought to be given priority over those of parents when determining support.  Since the real costs associated with bringing up children may not be recognized in many cases, a contextual and broad‑based approach to both original and variation child support orders, which considers the many factors that guide the determination of child support, is necessary.  Judicial notice was taken of the significant levels of child poverty in single parent families and of courts' failure to contemplate hidden costs in their calculation of child support awards.

 

                   The financial burden of divorce should not be borne primarily by children and their custodial parents.  Children's needs cannot be reduced to a bare minimum so that the non‑custodial parent can enjoy a significantly more comfortable lifestyle.  Current child support calculations bear little relationship to the actual costs of raising children.  Children's non‑financial needs continue beyond the dissolution of the marriage and these needs may not be fully reflected by a mere calculation of the direct costs incurred.  For the purposes of calculating child support, the total cost of caring for the children in any given instance is the sum of the direct and hidden costs established by the parties before the court, including reasonable access costs.  This sum represents an estimate of the children's total needs.  The next step is to ascertain the reasonableness of these needs in light of the means of the parents.  The costs of fulfilling these needs are then allocated between the parents in accordance with their relative ability, having regard to those costs already assumed by each parent and having regard to each parent's subsistence level needs as well as to the income tax implications of the order.  Because the division of costs between the spouses begins with the proposition that the financial obligation of raising the children is jointly shared, and because the non‑custodial spouse will generally incur fewer hidden costs than the custodial spouse, the non‑custodial spouse will generally assume a greater percentage of the direct costs than would otherwise be the case if hidden costs had been ignored.

 

                   Courts are not bound by the agreements of the parties as regards child support.  Such agreements can rarely accurately foresee the future and the way in which the circumstances of the parties and their children may evolve and change over the years.  The variation of a support order, be it spousal or child support, is governed by s. 17(4) of the Divorce Act, which requires that a court be satisfied "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".  One such change is sufficient to trigger a variation order.  The second part of the threshold test, namely the sufficiency of the alleged change in circumstances, should more easily be satisfied in cases where the needs of the children are being inadequately or minimally satisfied and where a variation would, on the whole, improve their situation.  Given that child support is the right of the child, the argument that a particular change in circumstances had been contemplated at the time of the original support order must be viewed as only a narrow exception to s. 17(4).  Once a sufficient  change that will justify variation has been identified, the court must next determine the extent to which it will reconsider the circumstances underlying, and the basis for, the support order itself.  While a variation hearing is neither an appeal nor a trial de novo, where the alleged change or changes are of such a nature or magnitude as to make the original order irrelevant or no longer appropriate, then an assessment of the entirety of the present circumstances of the parties and the children which recognizes the interrelationship between the many factors to be considered is in order.  Section 17(8), under which a child support variation order should apportion the support obligation between the former spouses according to their relative abilities to contribute, expands on the preliminary analysis under s. 17(4) and requires that the variation of child support not occur in a vacuum without regard to the present needs of the children and the means of the parties at the time of variation.  Accordingly, once it has been determined that the original or any subsequent order meets the test for variation, the circumstances of the parties and their children may be reviewed in order to establish realistically the overall impact of the change on the quantum of the new order.  Regardless of the fact that child support is deemed reasonable at the time it was ordered, variation must be approached from the perspective that arrangements may only have been reasonable to the extent of the means and other circumstances of the parties at the time.  Where those circumstances, means and needs have changed so as to render the original order irrelevant or inappropriate, an application for variation of child support should assess the needs of the children in light of the present circumstances of both the parents and the children.  While children are not, by reason of income alone, entitled to whatever luxuries they desire, they have a right to benefit from the better lifestyles of their parents as the circumstances permit.  A court may take judicial notice of the fact that it costs more to support children as they grow older.  When this fact becomes compounded by the effect of inflation, it may constitute a sufficient change.

 

                   The threshold test to justify variation has clearly been met in this case.  Both the respondent's income and the children's needs increased, although a change in either of them would have sufficed, and the change in the respondent's income was significant.  Once this condition was fulfilled, the chambers judge was entitled to re‑examine those circumstances affected by the change in the means of the payor and the needs of the children and, given the nature and magnitude of the changes, could have looked anew at the present circumstances of the parties and the children.  Since the chambers judge made no error in principle and considered all evidence, took into account all relevant factors, and awarded an amount well within the range of awards in similar circumstances, the Court of Appeal was not entitled to intervene and substitute its own view of the evidence.

 

Cases Cited

 

By Sopinka J.

 

                   Approved:  Dickson v. Dickson (1987), 11 R.F.L. (3d) 337; referred to:  Symes v. Canada, [1993] 4 S.C.R. 695; Thomson v. Thomson (1988), 69 Sask. R. 62; Langelier (Anwender) v. Anwender (1991), 32 R.F.L. (3d) 135; Pelech v. Pelech, [1987] 1 S.C.R. 801; Richardson v. Richardson, [1987] 1 S.C.R. 857; Lanteigne v. Lanteigne (1988), 91 N.B.R. (2d) 275; Moosa v. Moosa (1990), 26 R.F.L. (3d) 107; R. v. Tapaquon, [1993] 4 S.C.R. 535; Friesen v. Friesen (1985), 48 R.F.L. (2d) 137; Paras v. Paras, [1971] 1 O.R. 130; McKinney v. Polston, [1992] B.C.J. No. 1422 (QL); Snelgrove‑Fowler v. Fowler, [1993] A.J. No. 232 (QL); Bucher v. Bucher (1990), 67 Man. R. (2d) 233; Goncalves v. Goncalves (1986), 49 R.F.L. (2d) 376; Harrington v. Harrington (1981), 33 O.R. (2d) 150.

 

By L'Heureux‑Dubé J.

 

                   Referred to:  Moge v. Moge, [1992] 3 S.C.R. 813; Levesque v. Levesque (1994), 4 R.F.L. (4th) 375; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; R. v. Keegstra, [1990] 3 S.C.R. 697; R. v. Ladouceur, [1990] 1 S.C.R. 1257; R. v. Seaboyer, [1991] 2 S.C.R. 577; R. v. Downey, [1992] 2 S.C.R. 10; R. v. Penno, [1990] 2 S.C.R. 865; Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219; Janzen v. Platy Enterprises Ltd., [1989] 1 S.C.R. 1252; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; R. v. Lavallee, [1990] 1 S.C.R. 852; M. (K.) v. M. (H.), [1992] 3 S.C.R. 3; Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; Symes v. Canada, [1993] 4 S.C.R. 695; R. v. W. (R.), [1992] 2 S.C.R. 122; R. v. Chartrand, [1994] 2 S.C.R. 864; R. v. Finta, [1994] 1 S.C.R. 701; R. v. Rowbotham, [1994] 2 S.C.R. 463; R. v. Sioui, [1990] 1 S.C.R. 1025; Marzetti v. Marzetti, [1994] 2 S.C.R. 765;  Hills v. Canada (Attorney General), [1988] 1 S.C.R. 513; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; Ontario Human Rights Commission and O'Malley v. Simpsons‑Sears Ltd., [1985] 2 S.C.R. 536; Paras v. Paras, [1971] 1 O.R. 130; Murray v. Murray (1991), 35 R.F.L. (3d) 449; Stunt v. Stunt (1990), 30 R.F.L. (3d) 353; King v. King (1990), 25 R.F.L. (3d) 338; Northcut v. Ruppel (1989), 21 R.F.L. (3d) 195; Mitchell v. Mitchell (1988), 18 R.F.L. (3d) 206; Oakley v. Oakley (1990), 260 A.P.R. 266; Conroy v. Conroy (1977), 1 R.F.L. (2d) 193; Menage v. Hedges (1987), 8 R.F.L. (3d) 225; Syvitski v. Syvitski (1988), 86 N.S.R. (2d) 248; Thibaudeau v. M.N.R., [1994] 2 F.C. 189; Brockie v. Brockie (1987), 46 Man. R. (2d) 33; Smith v. Smith (1986), 4 R.F.L. (3d) 210; Pelech v. Pelech, [1987] 1 S.C.R. 801; Caron v. Caron, [1987] 1 S.C.R. 892; Richardson v. Richardson, [1987] 1 S.C.R. 857; Masters v. Masters, [1994] 1 S.C.R. 883; Goncalves v. Goncalves (1986), 49 R.F.L. (2d) 376; Guemili v. Guemili (1989), 19 R.F.L. (3d) 347; Chelmick v. Chelmick (Cochlan) (1992), 41 R.F.L. (3d) 117; Kitson v. Kitson (1986), 1 R.F.L. (3d) 103; Dickson v. Dickson (1987), 11 R.F.L. (3d) 337; Robertson v. Robertson (1989), 23 R.F.L. (3d) 188; Gaudet v. Gaudet (1988), 15 R.F.L. (3d) 65; Michel v. Michel (1988), 18 R.F.L. (3d) 182; Vervoorst v. Vervoorst (1991), 37 R.F.L. (3d) 178; Gillis v. Gillis (1994), 3 R.F.L. (4th) 128; Ryan v. Ryan (1992), 114 N.S.R. (2d) 255; James v. James (1992), 41 R.F.L. (3d) 70; Marshall v. Marshall (1992), 43 R.F.L. (3d) 303; Taplin v. Laurie (1992), 41 R.F.L. (3d) 197; House v. Tunney (House) (1991), 35 R.F.L. (3d) 68; Crowfoot v. Crowfoot (1992), 38 R.F.L. (3d) 354; Weaver v. Tate (1989), 24 R.F.L. (3d) 266 (Ont. H.C.), add'l reasons at (1990), 24 R.F.L. (3d) 372, aff'd (1990), 28 R.F.L. (3d) 188 (Ont. C.A.); Mallen v. Mallen (1988), 13 R.F.L. (3d) 54; Cheng v. Cheng (1988), 13 R.F.L. (3d) 140; Monaghan v. Monaghan (1988), 14 R.F.L. (3d) 308; Heinemann v. Heinemann (1988), 86 N.S.R. (2d) 278 (T.D.), aff'd (1989), 20 R.F.L. (3d) 236 (C.A.); Harrington v. Harrington (1981), 33 O.R. (2d) 150; Re Wilbur and Wilbur (1983), 147 D.L.R. (3d) 69; Lensen v. Lensen, [1987] 2 S.C.R. 672; Reza v. Canada, [1994] 2 S.C.R. 394; Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3; R. v. Burns, [1994] 1 S.C.R. 656.

 

Statutes and Regulations Cited

 

Court of Appeal Act, R.S.S. 1978, c. C‑42, s. 8.

 

Divorce Act, R.S.C. 1970, c. D‑8, s. 11(2).

 

Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), ss. 11(1)(b), 15, 17, 21(5).

 

Reciprocal Enforcement of Maintenance Orders Act, 1983, S.S. 1983, c. R‑4.1.

 

Rules of the Supreme Court of Canada, SOR/83‑74, r. 29(3) [ad. SOR/93‑488, s. 2].

 

Authors Cited

 

Abella, Rosalie S.  "Economic Adjustment on Marriage Breakdown:  Support" (1981), 4 Fam. L. Rev. 1.

 

Canada.  Department of Justice.  Divorce Law in Canada:  Proposals for Change.  Ottawa:  Department of Justice, 1984.

 

Canada.  Department of Justice.  Bureau of Review.  Evaluation of the Divorce Act ‑‑ Phase II:  Monitoring and Evaluation.  Ottawa:  Department of Justice, 1990.

 

Côté, Pierre‑André.  The Interpretation of Legislation in Canada, 2nd ed.  Cowansville:  Yvon Blais, 1991.

 

Durnford, John W., and Stephen J. Toope.  "Spousal Support in Family Law and Alimony in the Law of Taxation" (1994), 42:1 Can. Tax J. 1.

 

Federal/Provincial/Territorial Family Law Committee.  The Financial Implications of Child Support Guidelines:  Research Report.  Ottawa:  The Committee, 1992.

 

Federal/Provincial/Territorial Family Law Committee.  Child Support:  Public Discussion Paper.  Ottawa:  The Committee, 1991.

 

Grassby, Miriam.  "Women in their Forties:  The Extent of Their Rights to Alimentary Support" (1991), 30 R.F.L. (3d) 369.

 

La Novara, Pina.  A Portrait of Families in Canada.  Ottawa:  Statistics Canada, 1993.

 

McLeod, James G.  Annotation on Silverman v. Silverman (1987), 7 R.F.L. (3d) 292.

 

McKie, D. C., B. Prentice and P. Reed.  Divorce:  Law and the Family in Canada.  Ottawa:  Statistics Canada, 1983.

 

Monahan, John, and Laurens Walker.  "Judicial Use of Social Science Research" (1991), 15 Law & Hum. Behav. 571.

 

Monahan, John, and Laurens Walker.  "Social Authority:  Obtaining, Evaluating, and Establishing Social Science in Law" (1986), 134 U. Pa. L. Rev. 477.

 

Neave, Marcia.  "Resolving the Dilemma of Difference:  A Critique of `The Role of Private Ordering in Family Law'" (1994), 44 U.T.L.J. 97.

 

Pask, Diane E.  "Gender Bias and Child Support:  Sharing the Poverty" (1993), 10 C.F.L.Q. 33.

 

Payne, Julien D.  Payne on Divorce, 3rd ed.  Scarborough, Ont.:  Carswell, 1993.

 

Perry, Gail S., and Gary B. Melton.  "Precedential Value of Judicial Notice of Social Facts:  Parham as an Example" (1983‑84), 22 J. Fam. L. 633.

 

Rogerson, Carol J.  "Judicial Interpretation of the Spousal and Child Support Provisions of the Divorce Act, 1985 (Part II)" (1991), 7 C.F.L.Q. 271.

 

Rogerson, Carol J.  "Winning the Battle, Losing the War:  The Plight of the Custodial Mother After Judgment".  In M. E. Hughes and E. D. Pask, eds., National Themes in Family Law.  Carswell:  Toronto, 1988.

 

Walker, Laurens, and John Monahan.  "Social Frameworks:  A New Use of Social Science in Law" (1987), 73 Va. L. Rev. 559.

 

Zweibel, E. B.  "Child Support Guidelines:  An Ineffective and Potentially Gender‑Biased Response to Child Support Issues".  In Feminist Analysis II: Family Law: Voodoo Economics for Women.  1993 Institute of Continuing Legal Education.  Canadian Bar Association -- Ontario, 1993.

 

                   APPEAL from a judgment of the Saskatchewan Court of Appeal (1992), 100 Sask. R. 211, 18 W.A.C. 211, 41 R.F.L. (3d) 107, reversing a judgment of the Unified Family Court (1992), 98 Sask. R. 239, granting an application for variation.  Appeal allowed.

 

                   Donna Wilson and Gary Bainbridge, for the appellant.

 

                   Deryk J. Kendall and F. Neil Turcotte, for the respondent.

 

                   The judgment of La Forest, Sopinka, Cory and Iacobucci JJ. was delivered by

 

//Sopinka J.//

 

Sopinka J. -- In this appeal, the Court is asked to determine the proper interpretation of s. 17(4) of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.).  A subsidiary question to be dealt with regards the extent of the powers of the Court, under the Divorce Act, to vary child support which has been agreed to by the parties in a separation agreement and which has subsequently been incorporated into the decree nisi.  I have had the advantage of reading the reasons of my colleague Justice L'Heureux-Dubé and I agree with her conclusion.  I am able, however, to arrive at the same result on the basis of the rules of statutory construction without resort to extensive extrinsic materials. 

 

I.                 I do not disagree with my colleague that a contextual approach to the interpretation of the statutory provisions is appropriate.  Indeed, I have applied this approach in my reasons.  In the context of the Divorce Act, its predecessor and principles set out in the cases, I have been able to conclude that the intention of Parliament is clear.  Given the narrow focus of this case, it does not in my opinion require an examination of the broad policy grounds to which my colleague refers.  Following that course would require us to resolve the thorny question of the use of extraneous materials such as studies, opinions and reports and whether it is appropriate to take judicial notice of them and what notice to counsel, if any, is required.  We would also have to consider the extent to which our approach is different in a case such as this from a constitutional case in which wider latitude is allowed.  No constitutional issue arises in this case.  No attack was made on the section and neither party relied on the Canadian Charter of Rights and Freedoms as an interpretative tool.  In any event, I have serious reservations about the use of the Charter as an interpretative tool where the other rules of construction make the intention of the legislature plain.  Use of the Charter in this manner means that the clear intention of Parliament is blunted by confining it within Charter values without resort to s. 1.  If this approach is legitimate, resort to s. 1 of the Charter would be unnecessary.  The legislature's intention would be headed off by a benign interpretation.  The result would be to prevent the legislature from exercising the full extent of its powers as permitted by s. 1.  See Symes v. Canada, [1993] 4 S.C.R. 695, at pp. 751-52, per Iacobucci J. for the majority.

 

Facts

 

II.                The parties were married on August 25, 1979, separated on March 1, 1989 and entered into an interspousal agreement on July 28, 1989.  Under the terms of that agreement, the respondent, Bryan Willick, agreed to pay to the appellant, Lori Ann Willick, $450 per month for each of their two children and $700 per month spousal support.  Child support payments were to continue so long as the two children were "children" within the meaning of the Divorce Act.  Spousal support payments were to continue for three years following the birth of their youngest child plus an additional 26 months to allow the appellant to undergo a retraining program.  All payments were subject to an annual increase of 3 percent on September 1 of each year, with the first increase taking effect on September 1, 1990.  All support payments were to be tax-free in the hands of the appellant and were not to be tax deductible by the respondent for so long as the respondent maintained his non-Canadian residency.  The respondent was required to maintain a scholarship fund for the children and a life insurance policy of $150,000, naming the appellant and the children as beneficiaries.  Renewal discussions with respect to the agreement were to take place in October 1993, at the latest.

 

III.               At the time of entering into the interspousal agreement, in July 1989, the appellant had no source of income outside of the support payments and family allowance payments.  The respondent, an airline pilot, was earning approximately $40,000 per year.  By October 30, 1989, the appellant was aware that the respondent's income had increased to approximately $5,000 per month, subject to a 15.5 percent withholding tax, plus a housing allowance of about $4,600 per month.  The appellant also swore in an affidavit that the spousal and child support payments provided for in the interspousal agreement, totalling $1,600 per month, were sufficient to cover her expenses and the expenses of the two children.  No evidence as to the expenses of the respondent at that time was provided.

 

IV.              On November 8, 1989, Carter J. of the Unified Family Court for Saskatchewan granted a judgment of divorce which included, inter alia, the terms of the interspousal contract, except for the provisions relating to tax status, the scholarship fund and the insurance policy.  Approximately two years later, on October 7, 1991, the appellant commenced an application, pursuant to the Divorce Act and the Reciprocal Enforcement of Maintenance Orders Act, 1983, S.S. 1983, c. R-4.1, to increase the child support payable under the terms of the divorce judgment, on the basis that the children's needs had become too great a financial burden on her and the respondent had experienced a significant increase in earnings.

 

V.                At the time of the application for variation, the appellant's gross monthly income was $2,088, including $325 earned through part-time employment, $66 in family allowance payments and child and spousal support payments of $1,697.  Her monthly expenses were $3,597, with $1,903.50 apportioned to the children.  The gross monthly income of the respondent at the time of the variation application was $8,569.52, plus a $4,212.91 housing allowance.  Apart from standard deductions from his earnings, plus the expense of maintaining leased premises in Hong Kong, the respondent's expenses at the time of the variation application, including child and spousal support payments, totalled $5,083.80.  His net income (take-home pay) was pegged at $5,390.72.

 

VI.              Based on the affidavit evidence, Carter J. issued a fiat increasing the child support order from $450 per month per child to $850 per month per child:  (1992), 98 Sask. R. 239.  The respondent's appeal from that decision was allowed by the Saskatchewan Court of Appeal on May 12, 1992:  (1992), 100 Sask. R. 211, 18 W.A.C. 211, 41 R.F.L. (3d) 107.  The appellant now appeals that decision to this Court.

 

Judgments Below

 

Unified Family Court (1992), 98 Sask. R. 239

 

VII.             In the affidavits filed in relation to the application for variation, the appellant swore that at the time of negotiating the interspousal agreement, the respondent was earning $40,000 per year.  The respondent attested that the interspousal agreement was made based on a mutual expectation of the parties that he would soon be earning in excess of $75,000 per year.  The appellant denied that the negotiations were premised on this expectation.

 

VIII.            Carter J. found that at the time of negotiating the interspousal agreement the respondent was earning $40,000 per year, but that his income had increased to $12,882 per month (including a $4,212.91 housing allowance) by the time of the variation application.  She found that the appellant incurred monthly expenses totalling $3,597, but that the appellant's total monthly income was only $2,088, leaving a shortfall of $1,509 per month.  In contrast, Carter J. concluded that the respondent had $3,693 per month to live on, excluding his support payments.

 

IX.              Carter J. noted that courts are not bound by agreements providing for support for children:  see Thomson v. Thomson (1988), 69 Sask. R. 62 (C.A.), and Langelier (Anwender) v. Anwender (1991), 32 R.F.L. (3d) 135 (Sask. C.A.).  She then found that, even if one accepted that the appellant was aware that the respondent had income of $75,000 per year when the agreement was entered into, the respondent's income now far exceeded that figure.  She therefore ordered an increase in child support from $450 per month per child to $850 per month per child and made no variation with respect to spousal support.

 

Court of Appeal (1992), 100 Sask. R. 211

 

X.                Vancise J.A. wrote the reasons for himself, Cameron and Lane JJ.A.  In addition to the facts found by Carter J., Vancise J.A. concluded that the interspousal agreement was intended by the parties to be complete and final and that the appellant had agreed in her affidavit at the time of the original order that the children had no exceptional needs.

 

XI.              He then indicated that the variation of a judgment pursuant to s. 17(4) of the Divorce Act was to occur only where a "material change", within the meaning of the section, had occurred.  He found that Carter J. had erred in principle by failing to first determine whether there had been a material change in the needs of the children and the circumstances of the parties before ordering an increase in support.  He concluded as follows in that regard (at p. 213):

 

                   In our opinion, there was a serious error of principle here.  The chambers judge concluded that the changes in the husband's income alone justify varying the amount of support.  In our opinion, she erred in failing to first determine whether there had been a material change in the needs of the children and the circumstances of the parties.  The evidence is clear that the needs of the children were being adequately met as at the time of judgment but there is no evidence of a change which would justify the increase of the magnitude granted by the chambers judge.  In our opinion, the threshold test of a change of circumstances sufficient to justify a variation in maintenance had not been met and the order of the chambers judge must be set aside.

 

Issues

 

1.In a variation proceeding under s. 17 of the Divorce Act, to what extent can a court review and correct the original child support order and to what extent should a court feel bound by the original support order in deciding whether to vary the amount presently being paid for support?

 

2.Did the Court of Appeal err in concluding that there must be a material change in the needs of the children and the circumstances of the parties in order to justify the variation of a support order pursuant to s. 17(4) of the Divorce Act?

 

 

 

Relevant Legislative Provisions

 

 

 

XII.             The relevant subsections of s. 17 of the Divorce Act state:

 

                   17. (1)  A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively,

 

(a) a support order or any provision thereof on application by either or both former spouses; or

 

(b) a custody order or any provision thereof on application by either or both former spouses or by any other person.

 

                                                                   . . .

 

                   (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.

 

                                                                   . . .

 

                   (8)  A variation order varying a support order that provides for the support of a child of the marriage should

 

(a)  recognize that the former spouses have a joint financial obligation to maintain the child; and

 

(b)  apportion that obligation between the former spouses according to their relative abilities to contribute to the performance of the obligation.

 

XIII.            Paragraph 11(1)(b) and certain subsections of s. 15 of the Divorce Act should also be kept in mind:

 

                   11. (1)  In a divorce proceeding, it is the duty of the court

 

                                                                   . . .

 

(b)  to satisfy itself that reasonable arrangements have been made for the support of any children of the marriage and, if such arrangements have not been made, to stay the granting of the divorce until such arrangements are made; . . .

 

 

                   15. . . .

 

                   (2)  A court of competent jurisdiction may, on application by either or both spouses, make an order requiring one spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of

 

(a)  the other spouse;

 

(b)  any or all children of the marriage; or

 

(c)  the other spouse and any or all children of the marriage.

 

                                                                   . . .

 

                   (4)  The court may make an order under this section for a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just.

 

                   (5)  In making an order under this section, the court shall take into consideration the condition, means, needs and other circumstances of each spouse and of any child of the marriage for whom support is sought, including

 

(a)  the length of time the spouses cohabited;

 

(b)  the functions performed by the spouse during cohabitation; and

 

(c)  any order, agreement or arrangement relating to support of the spouse or child.

 

                                       . . .

 

                   (8)  An order made under this section that provides for the support of a child of the marriage should

 

                (a)  recognize that the spouses have a joint financial obligation to maintain the child; and

 

(b)  apportion that obligation between the spouses according to their relative abilities to contribute to the performance of the obligation.

 

Reviewability

 

XIV.            Submissions were made by the respondent as to the reviewability of the support provisions, having regard to the fact that they resulted from a complicated separation agreement which was incorporated into a decree nisi.  Clearly the court is not bound by the terms of a separation agreement in exercising its jurisdiction to award support under the Act.  See Wilson J. in Pelech v. Pelech, [1987] 1 S.C.R. 801, at p. 849.  As stated by Professor McLeod in his annotation on Silverman v. Silverman (1987), 7 R.F.L. (3d) 292 (N.S.S.C.A.D.), at pp. 293-94, the true question is the effect of the agreement in restricting the court's discretionary jurisdiction.

 

XV.             The reasoning which supports the restrictions with respect to interspousal support does not apply to child support.  In Richardson v. Richardson, [1987] 1 S.C.R. 857, at pp. 869-70, Wilson J. explained the different nature of the two rights: 

 

                   This inter-relationship [between spousal maintenance and child support] should not, however, lead us to exaggerate its extent or forget the different legal bases of the support rights.  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:  Paras v. Paras, supra....  Child maintenance, like access, is the right of the child:  Re Cartlidge and Cartlidge, [1973] 3 O.R. 801 (Fam. Ct.).  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.

 

XVI.            As against the parties, the agreement operates as strong evidence that at the time each accepted its terms as adequately providing for the needs of the children.  The correct approach was adopted by Anderson J.A. in Dickson v. Dickson (1987), 11 R.F.L. (3d) 337 (B.C.C.A.), at p. 358, who regarded the agreement as affording strong evidence "that the agreement made adequate provision for the needs of the children at the date the agreement was made". 

 

XVII.          Where as here the agreement is embodied in the judgment of the court, it is necessary to consider what additional effect is to be accorded to this fact.  Section 11(1)(b) of the Act provides that "it is the duty of the court ... to satisfy itself that reasonable arrangements have been made for the support of any children of the marriage and, if such arrangements have not been made, to stay the granting of the divorce until such arrangements are made".  It must be assumed that as long as the provisions of the judgment of the court stand unreversed this duty was carried out and that at the date of the judgment it provided reasonable arrangements for the support of the children.  In this regard, I agree with Angers J.A. in Lanteigne v. Lanteigne (1988), 91 N.B.R. (2d) 275, when he states at p. 277:

 

                          [TRANSLATION] I am of the opinion that an application for a variation order is not an appeal of the original order.  The finality and binding nature of all court judgments should consequently be respected here.  The judge rendering the variation order must be guided by the nature of the change in the parties' condition.  The variation must reflect the changes that are disclosed.

 

XVIII.         Therefore, in a variation proceeding, it must be assumed that, at the time it was made, the original child support order or the previous variation order accurately assessed the needs of the children having regard to the means of the parents.  As such, the correctness of the previous order must not be reviewed during the variation proceeding.  The previous order will not be departed from lightly and will only be varied if the requirements under s. 17(4) of the Divorce Act are properly satisfied.  I now turn to this issue.

 

The Interpretation of s. 17(4) of the Divorce Act

 

XIX.            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. 

 

XX.             In deciding whether the conditions for variation exist, it is common ground that the change must be a material change of circumstances.  This means a change, such that, if known at the time, would likely have resulted in different terms.  The corollary to this is that if the matter which is relied on as constituting a change was known at the relevant time it cannot be relied on as the basis for variation.  The controversial aspect of this appeal is whether it is also a pre-condition to variation that there be a change in the circumstances of the payor spouse and the child or children in whose favour the support provisions were made.  In determining this issue it is important to bear in mind that an order for maintenance of children is made by assessing the needs of the children having regard to the means of the parents.  The purpose of s. 17(4) appears to be to permit the court to vary the order when the relationship between those factors changes in a material way.  There can be a material change in the relation of the factors if one of them undergoes a significant change because the relationship between them is altered.  The following passage from the reasons for judgment of Keenan Dist. Ct. J. in Moosa v. Moosa (1990), 26 R.F.L. (3d) 107 (Ont. Dist. Ct.), at pp. 110‑11 is apt:

 

                   It is established beyond dispute that a dependent child is entitled to look to both parents for support.  It is also established beyond dispute that each parent has an obligation to provide for the support of the child.  The amount of the support to be provided is the amount that will meet the needs of that particular child.  The measure of those needs depends on a number of factors including the age of the child and the standard at which that child could reasonably expect to be supported. The reasonableness of the expectation is to be measured against the means and circumstances of the parents who have the obligation to provide the support.  I know of no reason why that expectation should be any different for a child who is the innocent victim of the breakdown of the relationship between its parents.  If the ability of the parents or either of them increases or decreases, it is reasonable to expect that the level of support of the child will increase or decrease.  [Emphasis added.]

 

XXI.            It remains to determine whether the application of the rules of statutory construction yields a different result.

 

XXII.          In my opinion, on any method of statutory interpretation, the above interpretation of s. 17(4) is correct.  If the literal approach is adopted, the words in the statute should be given their ordinary meaning:  Pierre-André Côté, The Interpretation of Legislation in Canada (2nd ed. 1991), at p. 219.  Section 17(4) explicitly states that a change in the circumstances of either former spouse or of any child of the marriage must be demonstrated to the satisfaction of the court before an order for variation can be considered.  Moreover, in making any variation order, the court is instructed to take "that change" (rather than "those changes") into account.

 

 

XXIII.         With respect to the application of the contextual approach advocated by the respondent, the objective is to interpret statutory provisions to harmonize the components of legislation inasmuch as is possible, in order to minimize internal inconsistency:  Côté, supra, at p. 257, and R. v. Tapaquon, [1993] 4 S.C.R. 535.  If one peruses s. 15, other subsections of s. 17 and the overall pattern of the Divorce Act, especially compared with the 1970 version of the Act, it is my view that the interpretation advocated by the appellant must prevail.  In rendering original divorce orders pursuant to s. 11(1), courts are to ensure that reasonable arrangements have been made for the children and may withhold the decree until such time as satisfactory arrangements are undertaken.  Under s. 15, in granting support orders, courts are to consider, among other things, the needs of the children, the relative ability of the spouses to pay and the joint obligation of parents toward their children.  This suggests a child-centred approach to rendering support orders, with a recognition that because of relative income differences, spouses may be in unequal positions with respect to their capacity to pay.

 

XXIV.         Moreover, a number of decisions in the area recognize that, as much as is possible, the children of the marriage should be sheltered from the economic consequences of divorce:  Dickson, supra, Friesen v. Friesen (1985), 48 R.F.L. (2d) 137 (B.C.C.A.), and Paras v. Paras, [1971] 1 O.R. 130 (C.A.).  Taken together, other sections of the Act and certain of the case law in the area suggest that 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 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.  If the respondent and the Court of Appeal are right, it would mean that if the custodial parent suffered a serious reduction of means, this could not be the subject of a variation unless, independently of the reduction in the circumstances of the parent, the needs of the children also increased.  In my opinion, the reason why the subsection provides that a change in the means of either parent on the one hand and the needs of the children on the other are alternate grounds for variation is the recognition that the former almost invariably has an impact on the latter.  Moreover, this interpretation is a fair one to the payor spouses who may use s. 17(4) to protect themselves against a drop in income which prevents them from maintaining the existing level of support payments, even in circumstances where the needs of the children have not changed:  see, for example, McKinney v. Polston, [1992] B.C.J. No. 1422 (S.C.), Snelgrove-Fowler v. Fowler, [1993] A.J. No. 232 (Q.B.), and Bucher v. Bucher (1990), 67 Man. R. (2d) 233 (Q.B.).

 

XXV.          Having found that the conditions for variation exist, the trial judge should proceed to determine what variation should be made.  The trial judge must re-assess the needs of the children in light of the change.  The needs of children are not assessed in a vacuum but are affected by the standard set by the means of the parents.  When the means of parents are limited, the children's needs may be satisfied by the bare necessities.  In these circumstances the children are required to do without some things which would be available to them if the means of the parents were greater.  The reasonable expectation of the children for future support upon marriage break-up is conditioned by the standard of living of the parents at the time.   This expectation is not frozen as of the date of marriage break-up.  If there is a significant change in the circumstances of one of the parents subsequent to the support provisions, the reasonable expectations of the children will be affected.  In this regard I agree with the statement of Kelly J.A. in Paras v. Paras, supra, at p. 134, when he states: 

 

                   Since ordinarily no fault can be alleged against the children which would disentitle them to support, the objective of maintenance should be, as far as possible, to continue the availability to the children of the same standard of living as that which they would have enjoyed had the family break-up not occurred. 

 

Accordingly, a significant increase in the means of the payor parent may require that the needs of the child include benefits that previously were not available.  See Goncalves v. Goncalves (1986), 49 R.F.L. (2d) 376 (B.C.S.C.) and Friesen v. Friesen, supra.  If the situation is reversed, the needs of the children may require that the needs of the children be scaled down.  There is, however, a limit to the extent to which the reasonable expectations of children to increased support payments can continue by reason of increases in the wealth of the payor spouse.  It must not be forgotten that we are dealing with maintenance and not income sharing.  If the children are already being maintained at a very high standard a change, even a significant change, in the wealth of the payor spouse will not in itself entitle the children to increased support so as to permit them to live in luxury simply to emulate the lifestyle of their parent.  Such an expectation on the part of children would not be reasonable.

 

Application to this Appeal

 

XXVI.         The Court of Appeal reversed the trial judge on the basis of an error in law in the interpretation of s. 17(4) of the Act.  It is not clear that absent this error it would or could have reversed the trial judge.  Both of the parties agree that the appropriate standard for appellate intervention in a trial decision is that set out in Harrington v. Harrington (1981), 33 O.R. (2d) 150 (C.A.), at p. 154, and approved by this Court in Pelech, supra, at p. 824.  Applying that standard, an appellate court should not intervene absent a material error in principle, a significant misapprehension of the evidence or an award which is clearly wrong.

 

XXVII.        I have concluded that the trial judge did not err in her interpretation of s. 17(4) of the Act.  Nor do I find any other error or misapprehension of the evidence.  Moreover, the judgment cannot be said to be clearly wrong.  A complaint was made in oral argument that the respondent was denied the right to cross-examine on the affidavit filed by the appellant.  It would have been preferable for the trial judge to have acceded to the request to cross-examine.  Figures put forward in support affidavits often do not stand up when tested on cross-examination.  This point was not set out as a ground for upholding the judgment of the Court of Appeal as required by our Rule 29(3).  Moreover, if successful on this point, the respondent would be entitled to a new trial.  In these circumstances, leave to cross-appeal was required.  No leave having been sought or granted, the issue cannot be raised.

 

XXVIII.      In the result, I would set aside the judgment of the Court of Appeal and restore the judgment of Carter J. with costs to the appellant both here and in the Court of Appeal.


 

                   The reasons of L'Heureux-Dubé, Gonthier and McLachlin JJ. were delivered by

 

//L'Heureux-Dubé J.//

 

I.                 L'Heureux-Dubé J. -- This appeal raises the issue of the variation of child support following a divorce judgment which incorporated the parties' separation agreement as to spousal and child support.  More specifically, this Court is asked to consider the proper statutory interpretation of s. 17(4) of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), which authorizes courts to vary a previous support order if "there has been a change in the condition, means, needs or other circumstances" of the parties or the children.

 

Facts

 

II.                The appellant, Lori Ann Willick, and the respondent, Bryan Douglas Albert Willick, were married in 1979 and have two daughters, Nicole and Kirsti, aged four and one at the time of divorce, now aged nine and six respectively.  The parties separated in March 1989 and by the terms of a separation agreement entered into on July 28, 1989 incorporated into the divorce judgment of November 8, 1989, the appellant was to have custody of the two children and the respondent was to pay $450 per month per child for child support and $700 per month spousal support.  Both spousal and child support were subject to a 3 percent annual increase, with the first increase to take place September 1, 1990.  In addition, the parties agreed that the appellant would not seek full-time employment outside the home until the youngest daughter reached three years of age.  After that time, the appellant would continue to receive support for a 26-month retraining period, that is until October 31, 1993.  Child support payments were to continue for as long as the two children were "children" within the meaning of the Divorce Act.  As well, the parties agreed that, in addition to spousal support, the appellant could earn up to $500 per month without any reduction in support; any income over $500 per month would, however, be reduced dollar for dollar from support payments made by the respondent.  Finally, the maintenance payments were to be paid tax‑free to the appellant wife and were not to be a tax deduction to the respondent husband for so long as the husband maintained a non-Canadian residency.  The respondent husband was also to maintain a life insurance policy of $150,000 for the benefit of the appellant and the children, as well as a children's scholarship fund.

 

III.               With regard to the division of property, the separation agreement provided that the wife was to retain $8,541 from the sale of the matrimonial home and from her registered retirement savings plan for her own use and in order to repay certain matrimonial debts, in addition to personal possessions and furniture.

 

IV.              At the time of negotiating the separation agreement, in July 1989, the respondent, a pilot, was earning approximately $40,000 per year.  However, at that time, he had accepted a position in Hong Kong which he indicated would entail an increased salary of up to $75,000, although the appellant denies this contemplated increase was the basis for negotiations.  The appellant, on the other hand, was not working outside the home and her sole income consisted of spousal and child support from the respondent and family allowance, for a total of $1,666 per month.  The respondent's income appears to have increased quite rapidly for, in October 1989, the appellant attested that the respondent was earning $5,000 per month income and received $4,600 per month as a housing allowance.

 

V.                In October 1991, the appellant applied to the Unified Family Court of Saskatchewan for a variation of the existing child support order pursuant to s. 17(4) of the Divorce Act and the Saskatchewan Reciprocal Enforcement of Maintenance Orders Act, 1983, S.S. 1983, c. R‑4.1.  She requested an order to increase child support to $850 per month per child in addition to her spousal support of $700 per month as agreed upon in the separation agreement.

 

VI.              A brief overview of the parties' respective financial statements entered into evidence at the time of the application for variation in November 1991 indicates that the respondent's gross income was $8,569.52 per month including salary and bonuses, in addition to a $4,212.91 per month housing allowance, for a total of $12,782.43 per month or $153,389.16 per year.  This income represents a very significant increase in the respondent's gross income from his projected income of $75,000 per year at the time of the separation agreement as well as from that stated by the appellant in October 1989.  The respondent has remarried and supports a wife who is not working.  He assessed his expenses in 1991 at $5,083.80 per month or $61,005.60 per year in addition to income tax of $1,932.36, union dues, unemployment insurance, pension benefits of $856.95 and the Cathay lease for his accommodation in Hong Kong of $4,460.83 per month.

 

VII.             In contrast, at the time of the variation application, the appellant was earning $325 per month as a part-time tour guide and received family allowance of $66 per month for a total income of $391 per month.  At the time of filing her financial statement with the application for variation, she appears not to have been in receipt of spousal or child support.  However, spousal and child support at that time consisted of the original $1,600 per month plus 3 percent for each of the two years since the making of the original order.  Thus, her total income would have amounted to $2,088.44 per month, a 25 percent increase from $1,666 per month she received in 1989.  The appellant's expenses for herself and the children were established at $3,597 per month, a 125 percent increase from the 1989 figure of $1,600 per month.

 

VIII.            The appellant's financial statements reveal that her assets have, essentially, remained stagnant from the minimal amount she received at the time of the marital property division.  Her financial statement dated September 27, 1991, indicates that she held securities in the amount of $ 8,389.13, $847.22 in savings and pensions and $879.99 in bank accounts.  She has not accumulated any substantial assets since the divorce.

 

IX.              At the time of the application for variation, the respondent had purchased a home in Palm Springs valued at $135,000 U.S. with a $108,000 mortgage. Other than this, the respondent has not specified in detail the extent of his assets, although it is clear from his financial statements that he invests $856.95 per month in a pension plan and mentions debts in the amount of $151,900. 

 

X.                With this evidence regarding the financial positions of the parties, Carter J. granted the appellant's application for variation:  (1992), 98 Sask. R. 239.  The respondent appealed to the Saskatchewan Court of Appeal, which allowed the appeal holding that the conditions for a variation order under s. 17(4) of the Divorce Act had not been met: (1992), 100 Sask. R. 211, 18 W.A.C. 211, 41 R.F.L. (3d) 107.  It is this judgment which the appellant appeals before us.

 

Judgments

 

Unified Family Court (1992), 98 Sask. R. 239

 

XI.              The application for variation proceeded entirely by way of affidavits and on the written material submitted by the parties.  Carter J. wrote brief reasons allowing the appellant's application on January 9, 1992.  She concluded that the appellant was presently experiencing a shortfall with respect to meeting the financial obligations relating to her children, while the respondent enjoyed a surplus in his monthly finances.  She noted that, even if it were accepted, as the respondent alleged, that the parties had contemplated the increased income when the agreement was negotiated, the respondent's income now "far exceeds" the anticipated salary and that "[i]t is trite law that the court is not bound by agreements providing for maintenance for children" (p. 240).  Accordingly, she varied the child support order from $450 per month per child to $850 per month per child, with spousal support left at $700 per month.

 

Court of Appeal (1992), 100 Sask. R. 211 (Vancise, Cameron and Lane JJ.A.)

 

XII.             On appeal to the Court of Appeal, Vancise J.A. for the court held that a variation of an order made pursuant to a divorce judgment can only be granted where there is a change of circumstances under s. 17(4) of the Divorce Act, which would include a "change in circumstances of the parties or of the means and needs of the children".   In the court's view, courts should only interfere with such an order as made by the trial judge if the "reasons contain material error, including significant misapprehension of the evidence or having been wrong in principle" (p. 213).  Upon examining the reasons of the chambers judge, the Court of Appeal concluded that Carter J. had committed a serious error in principle by looking only to the respondent's income without first inquiring as to whether there had been a material change in the children's needs and the parties' circumstances.  Absent evidence as to a change in the children's circumstances and needs, given that their needs were supposed to have been adequately met at the time of the divorce incorporating the separation agreement, Vancise J.A. held that the threshold requirement of a change in circumstances had not been met in this case.  As a consequence, the appeal was allowed and the appellant ordered to repay the sum of $2,400, which the respondent had paid over and above the amount set by the divorce judgment as a result of Carter J.'s judgment, in monthly instalments of $200, with costs against the appellant.

 

Relevant Statutory Provisions

 

Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.)

 

                   15. . . .

 

                   (2)  A court of competent jurisdiction may, on application by either or both spouses, make an order requiring one spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of

 

(a)  the other spouse;

 

(b)  any or all children of the marriage; or

 

(c)  the other spouse and any or all children of the marriage.

 

                                                                   . . .

 

                   (4)  The court may make an order under this section for a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just.

 

                   (5)  In making an order under this section, the court shall take into consideration the condition, means, needs and other circumstances of each spouse and of any child of the marriage for whom support is sought, including

 

(a)  the length of time the spouses cohabited;

 

(b)  the functions performed by the spouse during cohabitation; and

 

(c)  any order, agreement or arrangement relating to support of the spouse or child.

 

                                                                   . . .

 

                   (8)  An order made under this section that provides for the support of a child of the marriage should

 

(a)  recognize that the spouses have a joint financial obligation to maintain the child; and

 

(b)  apportion that obligation between the spouses according to their relative abilities to contribute to the performance of the obligation.

 

                   17. (1)  A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively,

 

(a)  a support order or any provision thereof on application by either or both former spouses;

 

                                                                   . . .

 

                   (3)  The court may include in a variation order any provision that under this Act could have been included in the order in respect of which the variation order is sought.

 

                   (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.

 

                                                                   . . .

 

                   (6)  In making a variation order, the court shall not take into consideration any conduct that under this Act could not have been considered in making the order in respect of which the variation order is sought.

 

                                                                   . . .

 

                   (8)  A variation order varying a support order that provides for the support of a child of the marriage should

 

(a)  recognize that the former spouses have a joint financial obligation to maintain the child; and

 

(b)  apportion that obligation between the former spouses according to their relative abilities to contribute to the performance of the obligation. [Emphasis added.]

 

The Legislative and Social Context

 

XIII.            The task of statutory interpretation requires that courts discover the intention of Parliament.  In Moge v. Moge, [1992] 3 S.C.R. 813, this Court underlined the fact that an integral aspect of discovering Parliamentary intention is the precept that Parliament must be taken to be aware of the social and historical context in which it makes its intention known (p. 857).  Interpretation and application of family law, especially the law of support, in a manner consistent with Parliamentary intention therefore implicitly require sensitivity to the social realities experienced by those most affected: Moge, supra, at p. 874.

 

XIV.            The social context of divorce is an evolving concept.  So, too, are our understandings of the economic consequences thereof.  This Court has recognized the need to take these factors into account as background information for the examination of spousal support objectives under the Act.  Given the particularly vulnerable position of children both at and beyond divorce, the need to bring identical considerations to bear with respect to child support objectives is equally, if not more, pressing.

 

XV.             Moreover, although it may seem trite to say so, I cannot emphasize enough that family law statutes do not exist in a vacuum.  Nor do the provisions governing child support in the Divorce Act.  The Alberta Court of Appeal (per curiam) recently observed that the law of support depends on a "matrix of facts" (see Levesque v. Levesque (1994), 4 R.F.L. (4th) 375, at p. 394).  How, within this matrix, can pivotal terms such as "need" be reliably interpreted and applied without regard to the greater social context in which "need" arises?  Conscientious interpretation and, more importantly, application of statutory family law criteria cannot, in my mind, take place without consideration of both the language of the Act and the reality in which the Act operates.

 

XVI.            Social science research and socio-economic data are longstanding judicial tools in both Canada and the United States.  Since 1908, the Supreme Court of the United States has consistently referred to social science research and socio-economic data to either found or criticize rules of law.  The judicial practice of both seeking out and taking notice of such research in order to formulate a more fully informed analysis of the law is now well established in that court (J. Monahan and L. Walker, "Social Authority: Obtaining, Evaluating, and Establishing Social Science in Law" (1986), 134 U. Pa. L. Rev. 477, at fn 2).

 

XVII.          Ever since the Legal Realist movement and Roscoe Pound's theory of "sociological jurisprudence", moreover, it has been recognized that the law does not operate above or in isolation from our other social institutions.  The widely accepted distinction drawn by eminent scholars such as Kenneth Culp Davis between "adjudicative facts" -- facts that pertain specifically to the case under consideration -- and "legislative facts" -- facts involved in decisions of law or policy -- clearly demonstrates that law and society are inextricably interdependent, and that social facts constitute an integral part of the lawmaking process.  Where social data and research are relevant to the creation of a rule of law, they take on a general character that goes far beyond the specific context in which they have been raised.  They are part and parcel of the rule of law which they help to substantiate.  In effect, they constitute part of the authority upon which that rule of law is founded.  As such, the concept of jurisprudential social authority is intrinsic to the notion of jurisprudence itself.  Intrinsic to jurisprudence, in turn, is the power and, to some extent, responsibility, of the court to actively inform itself of authority that will aid it in evaluating the merits of the legal arguments before it and in ultimately reaching its legal conclusions.  The judiciary's long-recognized function as a policy finder sometimes compels it to consider social authority even when the parties do not, themselves, present relevant evidence on relevant questions of public policy:  G. Perry and G. Melton, "Precedential Value of Judicial Notice of Social Facts: Parham as an Example" (1983-84), 22 J. Fam. L. 633, at p. 642.  In the vast majority of circumstances, judges are perfectly capable of formulating at least a workable understanding of such information, of dealing with it critically, and of assigning it the appropriate weight in their deliberations:  Monahan and Walker, "Social Authority", supra, at pp. 508-12.

 

XVIII.         Even where a rule of law is not itself at issue, it has been recognized that social research can still greatly aid a court by illuminating the social framework in which the facts of the particular case are to be adjudicated.  The pressing social authority component of such a framework recommends a jurisprudential approach that is in many respects similar to that accorded to social authority.  Walker and Monahan, "Social Frameworks: A New Use of Social Science in Law" (1987), 73 Va. L. Rev. 559; Monahan and Walker, "Judicial Use of Social Science Research" (1991), 15 Law & Hum. Behav. 571.  The broader the issue, the more likely the facts of the individual case will not suffice, alone, as the basis for a decision.  Perry & Melton, supra.  This observation explains, in part, why courts commonly resort to independently culled social authority in the context of constitutional questions, but does not preclude that similar methodology be brought to bear in non-constitutional contexts where broad issues of public policy nonetheless come to bear.  Aspects of family law, because of its largely prospective nature and because of the profound impact upon both individuals and, more generally, public attitudes towards the institution of the family, fall squarely within this rubric.

 

XIX.            In the course of Charter interpretations, this Court has often taken judicial notice of reliable social research and socio-economic data in order to assist its contextual s. 1 analysis of a rights violation:  R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, at p. 804 (per La Forest J.); R. v. Keegstra, [1990] 3 S.C.R. 697; R. v. Ladouceur, [1990] 1 S.C.R. 1257; R. v. Seaboyer, [1991] 2 S.C.R. 577 (per L'Heureux-Dubé J., dissenting); R. v. Downey, [1992] 2 S.C.R. 10; R. v. Penno, [1990] 2 S.C.R. 865, at pp. 881-83. In the words of my colleague La Forest J. in Edwards Books, supra, at p. 802:

 

... I do not accept that in dealing with broad social and economic facts such as those involved here the Court is necessarily bound to rely solely on those presented by counsel.  The admonition in Oakes and other cases to present evidence in Charter cases does not remove from the courts the power, where it deems it expedient, to take judicial notice of broad social and economic facts and to take the necessary steps to inform itself about them.

 

Moreover, in cases involving human rights legislation, it has drawn its interpretation of the meaning of statutory terms from the social environment in which those terms are made meaningful: Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219; Janzen v. Platy Enterprises Ltd., [1989] 1 S.C.R. 1252.  All of these cases are examples in which the Court approached the law from a contextual rather than abstract perspective, and on a practical rather than theoretical level:  Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326, at p. 1356 (per Wilson J.) and at p. 1381 (per La Forest J., dissenting in part).

 

XX.             Social authority can be an indispensable element to this approach and this Court has accepted its value in non-constitutional contexts which nonetheless raise broad questions of public policy.  This Court has, for instance, on several occasions in cases involving the interpretation of criminal law, other statutes, and the common law recognized the usefulness of social science research and judicial notice of social context in debunking myths and exposing stereotypes and assumptions which desensitize the law to the realities of those affected by it:  R. v. Lavallee, [1990] 1 S.C.R. 852; M. (K.) v. M. (H.), [1992] 3 S.C.R. 3, at pp. 27-32; Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554 (per L'Heureux-Dubé J., dissenting); Symes v. Canada, [1993] 4 S.C.R. 695, at p. 763; R. v. W. (R.), [1992] 2 S.C.R. 122, at pp. 133-34; R. v. Chartrand, [1994] 2 S.C.R. 864.  It has used social context to help define the requisite elements of an offence:  R. v. Finta, [1994] 1 S.C.R. 701, at p. 816 (per Cory J.).  It has relied on personal knowledge gained through practice as a trial judge to take notice of problems involving directed verdicts:  R. v. Rowbotham, [1994] 2 S.C.R. 463, at p. 465.

 

XXI.            In a similar vein, this Court has taken judicial notice of documents gathered independently for the purposes of assessing the nature and historical context of a treaty.  The justification offered by Lamer J. (as he then was), speaking for the entire Court, in R. v. Sioui, [1990] 1 S.C.R. 1025, at p. 1050, is quite apposite:

 

I am of the view that all the documents to which I will refer, whether my attention was drawn to them by the intervener or as a result of my personal research, are documents of a historical nature which I am entitled to rely on pursuant to the concept of judicial knowledge.  As Norris J.A. said in White and Bob (at p. 629):

 

                   The Court is entitled "to take judicial notice of the facts of history whether past or contemporaneous" as Lord du Parcq said in Monarch Steamship Co., Ld. v. Karlshamns Oljefabriker (A/B), [1949] A.C. 196 at p. 234, [1949] 1 All E.R. 1 at p. 20, and it is entitled to rely on its own historical knowledge and researches, Read v. Bishop of Lincoln, [1892] A.C. 644, Lord Halsbury, L.C., at pp. 652-4.

 

The documents I cite all enable the Court, in my view, to identify more accurately the historical context essential to the resolution of this case. [Emphasis added.]

 

As much as historical context constitutes relevant authority to the interpretation of historical documents, contemporary social context constitutes relevant authority to interpreting the mischief that Parliament sought to address by way of statute, and therefore to present-day statutory interpretation.

 

XXII.          By the remarks above, I do not mean to say that a judge's power to take notice of social authority relevant to legal interpretation should be untrammelled.  I share my colleague's concern that this power be exercised prudently by judges and that, where feasible, the parties should be accorded the opportunity to comment if the matter is susceptible to dispute.  I do not feel that such cautions should preclude me in the present case, however, from taking note of two general facts which are, in my opinion, totally beyond dispute -- the significant level of poverty amongst children in single parent families and the failure of courts to contemplate hidden costs in their calculation of child support awards.  Drawing upon these factors should not be taken to imply that the context itself determines this Court's decision as to the law.  Rather, contemplation of these factors ensures that this Court's decisions will address and interpret the law placed within its social context.  This approach was most recently endorsed in Marzetti v. Marzetti, [1994] 2 S.C.R. 765, by Iacobucci J., speaking for this Court, who considered social reality to be relevant to his interpretation of a provision of the Bankruptcy ActA (at p. 801):

 

                   Moreover, there are related public policy goals to consider.  As recently recognized by L'Heureux-Dubé J. in Moge v. Moge, [1992] 3 S.C.R. 813, "there is no doubt that divorce and its economic effects" (p. 854) are playing a role in the "feminization of poverty" (p. 853).  A statutory interpretation which might help defeat this role is to be preferred over one which does not. [Emphasis added.]

 

I most heartily agree.

 

XXIII.         The impact of the Charter on judicial law- and policy-making provides further support for the acceptance and consideration by courts of independently obtained social authority.  It has been firmly established by this Court that statutory interpretations consistent with values embodied in the Charter must be given preference over interpretations which would run contrary to Charter values:  Hills v. Canada (Attorney General), [1988] 1 S.C.R. 513, at p. 558; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, at p. 1078.  Given the profound economic impact on the parties that may follow from differing interpretations of the Divorce Act's support provisions, it follows that in the present case, as it did in Moge, supra, this Court should seek to assure itself that its preferred interpretation is consistent with Charter values of substantive equality rather than with the values of formal equality which preceded this Court's comments on s. 15 of the Charter in Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, and at numerous subsequent instances.  Specifically, an interpretation of the Divorce Act provisions relating to support and its variation that is sensitive to equality of result as between the spouses must be preferred to an approach that only contemplates equality of treatment and whose effect may be to discriminate by reason of sex.  By this, I do not mean to imply that family law support provisions should be interpreted so as to right singlehandedly the systemic and structural inequalities that contribute to spouses' economic difficulties following marital breakup.  I do stress, however, that it is important that statutory provisions be interpreted in such a way as not to contribute to that inequality in a way that is contrary to the values of substantive equality embodied in our Charter.

 

XXIV.         An assessment of whether a particular interpretation of a statute is consistent with these Charter values necessitates a contextual approach which contemplates the social framework in which the Act operates.  Interpretation consistent with the values of substantive equality espoused by the Charter requires that both words and results be contemplated.  Both under the Charter and in the interpretation of provincial human rights statutes, this Court has firmly pronounced that a finding of discrimination hinges upon the effect of a given action or policy:  Andrews, supra; Ontario Human Rights Commission and O'Malley v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536.

 

XXV.          This Court's interpretation of ss. 15(5), 15(8), 17(5) and 17(8) of the Act must be consistent with those values.  With regard to Iacobucci J.'s cautionary statement in Symes, supra, that interpretation consistent with the Charter should not displace a clear parliamentary intent, I can only say that the parliamentary intent in the present case is far from unambiguous.  Indeed, the significant level of judicial confusion over the appropriate approach with respect to child support and its variation amply demonstrates the ambiguity of these provisions.  Only by looking to social context can this Court meaningfully interpret what is meant in ss. 15(5) and 17(5) of the Act by the open-ended reference to "condition, means, needs and other circumstances of each spouse and of any child of the marriage", and assess what is truly at stake by way of the "best interests of the child", as required by s. 17(5).  Acknowledgement of the alarming level of poverty amongst children in single parent families informs (but does not dictate) my interpretation of these contextually sensitive terms.  Furthermore, only by looking to social context can this Court appreciate the true character of the "joint financial obligation to maintain the child" in the requirement in ss. 15(8) and 17(8) that courts "apportion that obligation between the former spouses according to their relative abilities".  As I point out below, courts' failure to consider hidden costs in this equation indicates a failure to appreciate and interpret these terms in light of indisputable social reality.

 

XXVI.         Since drafting this opinion, I have read the reasons of my colleague Justice Sopinka.  With respect, for the reasons above, I cannot agree that the sections of the Divorce Act at issue in the present appeal should be interpreted without regard to their social context, and without consideration of the indisputable social realities in which the Act operates.  Consequently, I prefer not to confine myself to "ordinary" rules of statutory construction in seeking the proper interpretation and application of the legislation at issue.  The capacity of "ordinary" rules of statutory construction to bring us to the same conclusion, as did my colleague in this particular case, is more fortuitous than probative of their actual worth, and certainly less reliable.  Simply put, the "ordinary" rules of statutory interpretation favoured by my colleague do not give adequate consideration to the degree to which a particular interpretation is consistent with Charter values.  Although the "ordinary" rules of statutory interpretation are time-tested and certainly worthy of respect, we cannot allow them to lead us, unquestioning, down a garden path which risks sidestepping or undermining the Charter.

 

XXVII.        Thus, before examining the question of variation of child support specifically, it is provident to contemplate the rationale underlying child support, the costs of raising children, the present economic state of children following divorce and the variation of separation agreements generally.

 

A.  General Principles Applicable to Child Support

 

XXVIII.      Support of children of divorced parents is governed by s. 15 of the Divorce Act, reproduced in part earlier.  Pursuant to s. 15(8), the objective of such an order is to recognize the former spouses' joint financial obligation to the children and to apportion that obligation between the former spouses according to their relative abilities to contribute to such support.  This objective was emphasized in Divorce Law in Canada: Proposals for Change by the Department of Justice, Canada (1984), when discussing the reform of the Divorce Act, at p. 23:

 

Both parents share the responsibility to support their children; but when determining how much each parent should contribute, the financial resources and needs of both parents, and of the children, should be considered.

 

XXIX.         These general objectives of child support had previously been examined in detail by  Kelly J.A. of the Ontario Court of Appeal in Paras v. Paras, [1971] 1 O.R. 130.  The ratio of this decision, which has become known as the "Paras formula", suggests that a court calculate the appropriate quantum of child support by, firstly, arriving at a sum which would be adequate to care for, support and educate the children and, secondly, dividing this sum in proportion to the respective incomes and resources of the parents. This formula has subsequently been used as a guideline for the determination of the amount of child support payable by a spouse after separation or divorce.  Although the formula was defined with respect to interim support, it has subsequently been held applicable to permanent orders (Payne on Divorce (3rd ed. 1993), at p. 92).  Moreover, although Paras is certainly a valuable guideline, courts have found that the formula should not be applied rigidly, especially in cases where there is a significant disparity of income or where the income of one of the spouses is near subsistence level (see Payne, supra, at pp. 92-93 and accompanying notes; Rogerson, "Judicial Interpretation of the Spousal and Child Support Provisions of the Divorce Act, 1985 (Part II)" (1991), 7 C.F.L.Q. 271, at pp. 280-85).  In my view, even when the income of one of the parties is not so low as to approach subsistence levels, the court should nonetheless strongly consider the approach taken in, amongst others, Murray v. Murray (1991), 35 R.F.L. (3d) 449 (Alta. Q.B.).  (See, also, Stunt v. Stunt (1990), 30 R.F.L. (3d) 353 (Ont. Ct. (Gen. Div.)), contra, Levesque v. Levesque, supra.)  Namely, the court should deduct from each party's total income a sum needed to achieve subsistence, in order to arrive at a more realistic assessment of the respective incomes available for child support.

 

XXX.          Beyond the general principles established by the Divorce Act and the jurisprudence which has developed around the Paras formula, it has also generally been acknowledged that children's needs ought to be given priority over those of parents when determining support (King v. King (1990), 25 R.F.L. (3d) 338 (N.S.S.C.T.D.)) and that payors must put child care payments before car payments, high mortgage payments, entertainment, tobacco, alcohol, recreation, vacation savings and debts (Murray, supra, Northcut v. Ruppel (1989), 21 R.F.L. (3d) 195 (Man. Q.B.), and Mitchell v. Mitchell (1988), 18 R.F.L. (3d) 206 (Sask. Unif. Fam. Ct.)).   When assessing the parents' respective abilities to contribute to child support, all of their assets should be considered as well as the cost of the non-financial contributions of the custodial parent (Oakley v. Oakley (1990), 260 A.P.R. 266 (Nfld. Unif. Fam. Ct.).  A spouse's obligations to a new family cannot sever any obligation to the first family and, finally, as was set out by the court in Conroy v. Conroy (1977), 1 R.F.L. (2d) 193 (Ont. H.C.), an adequate amount of child support cannot necessarily be determined by what was usually spent on the children, given that this may have been too low or restricted by the availability of income.  The needs of children should reflect, to the extent practicable, the standard of living enjoyed during cohabitation.  If this scenario is not possible, then the children's standard of living should not fall significantly lower than that enjoyed by the noncustodial parent.

 

XXXI.         While discretion is, in my view, essential for justice to be rendered on a case‑by‑case basis given the infinite variety of scenarios involving children and their parents, the real costs associated with bringing up children may not be recognized in many cases and, as a consequence, changes to the means, needs or circumstances of the parties or children may not be properly accommodated.  A contextual and broad-based approach to both original and variation of child support orders, which considers the many factors that guide the determination of child support, is therefore necessary. In fact, consistent underestimation of the costs of raising a child, a problem that is currently becoming well-recognized and that I discuss below, is a difficulty common to both original and variation of child support orders.

 

XXXII.        The circumstances to be taken into account in determining the quantum of child support are those enumerated in ss. 15(5) and 15(8) of the Act:

 

                   (5)  In making an order under this section, the court shall take into consideration the condition, means, needs and other circumstances of each spouse and of any child of the marriage for whom support is sought, including

 

(a)  the length of time the spouses cohabited;

 

(b)  the functions performed by the spouse during cohabitation; and

 

(c)  any order, agreement or arrangement relating to support of the spouse or child.

 

                                                 . . .

 

                   (8)  An order made under this section that provides for the support of a child of the marriage should

 

(a)  recognize that the spouses have a joint financial obligation to maintain the child; and

 

(b)  apportion that obligation between the spouses according to their relative abilities to contribute to the performance of the obligation.  [Emphasis added.]

 

There are a number of judges who have provided very useful checklists in the course of a determination of the quantum of support.  Fleury U.F.C.J. is one, in Menage v. Hedges (1987), 8 R.F.L. (3d) 225 (Ont. Unif. Fam. Ct.), at p. 269.  I find the list assembled by Williams Fam. Ct. J. in Syvitski v. Syvitski (1988), 86 N.S.R. (2d) 248, at pp. 253-54, to be the most comprehensive, however:

 

                   The assessment of quantum of child support, broadly speaking, involves:

 

1.an assessment of the needs of the child(ren), including lifestyle.

 

2.an assessment of whether the noncustodial parent is self-sufficient

                   and able:

 

(a)  to contribute financially to the support of the child; and if so

 

(b)  to contribute on an apportionment basis (relative to the incomes of the respective parties); or

 

(c)  to assume responsibility for more than his/her portion.

 

3.an assessment of whether the custodial parent is self-sufficient and

                   able to:

 

(a)  contribute financially to the support of the child; and if so

 

(b)  to contribute on an apportionment basis to the support of the child; or

 

(c)  to assume responsibility for more than his/her portion.

 

4.consider insofar as the evidence allows, other factors, including,

                   but not limited to:

 

(a)  income tax implications of maintenance; [See Thibaudeau v.  M.N.R., [1994] 2 F.C. 189, currently on appeal before this Court]

 

(b)  income tax factors such as equivalent of married deduction, child tax credit, deductibility of child care costs;

 

(c)  visitation expenses;

 

(d)  adjustments for extended visitation;

 

(e)  shared custody;

 

(f)  responsibility for the support of others;

 

(g)  residence/cohabitation with others;

 

(h)  nonfinancial contributions to child care.

 

5.If appropriate, apportion the obligation to financially support the

                   children between the parents.

 

6.If not, make an order that recognizes the resources available,

                   preferably by indicating that the order was based on either the needs

                   of the child(ren) or the limited or excessive resources of one or the             other parent.

 

7.Consider variation proceedings, changes in the above

                   circumstances and the basis upon which the original order was made.         [Emphasis in original.]

 

As I have already mentioned, I believe the jurisprudence supports including in points 2(b), 3(b) and 5 of the above list some consideration of the subsistence needs of each of the spouses.

 

XXXIII.      Although the principles with respect to the objectives of child support are clear, the difficulty lies in quantifying the needs of the children as they relate to the income of each spouse.  As Professor Carol J. Rogerson in "Judicial Interpretation of the Spousal and Support Provisions of the Divorce Act, 1985 (Part II)", supra, at p. 274, has argued, the assessment by courts of the cost of raising children has not been an easy task:

 

                   Problems begin to appear, however, when one examines more closely the way in which the costs associated with children are calculated, the way in which they are apportioned between the parents, and finally, the quantum of child support awarded ....  The end result is that in the majority of child support cases awards are not set at levels which will meet the Paras standard or even at levels which would guarantee an equal standard of living between the children's household and that of the non-custodial parent. Typically the household of the custodial parent (usually the mother) and children is left with an income between 40 and 80 per cent of that enjoyed by the non-custodial parent.

 

Professor Diane Pask, for her part, has pointed out in "Gender Bias and Child Support:  Sharing the Poverty" (1993), 10 C.F.L.Q. 33, at p. 51, that judicial notice of the economic impact of divorce on children may well have a positive effect on the determination of child support:

 

                   Moge v. Moge may prove to be extremely useful in reducing some of the financial burden of adducing evidence in family law cases.  The statements in that case to the effect that expert evidence cannot reasonably be required of such parties, that the general economic impact of divorce on women should be amenable to judicial notice and can be ascertained in the ordinary way, together with the Court's use of legal and socio-economic studies, are as applicable to child support as to spousal support.

 

XXXIV.      The possibility of taking judicial notice of the costs and patterns of costs associated with children makes it worthwhile to examine statistics and commentary with regard to child support orders, single parent families and the cost of raising children.

 

B.  Statistics and Commentary on Child Support

 

XXXV.       Single parent families represent a large proportion of the total number of impoverished Canadian families.  The latest Canadian statistics, released in November 1993 by Statistics Canada in a report entitled: A Portrait of Families in Canada, at p. 34 et seq., indicate that single women and children are becoming poorer: in 1991, 949,000 or 13 percent of Canadian families lived below the low income cut-off set by Statistics Canada for low income families.  Not surprisingly, perhaps, three out of five single parent families fell within this low-income group.  Furthermore, 61.9 percent of female-headed single parent families considered in 1991 fell into this group, whereas only 24.4 percent of male-headed single parent families were similarly affected.  The harsh reality faced by women and their children after divorce is clear, especially when one considers that female-headed single parent families, which constitute 6 percent of the total number of Canadian families, represent 29 percent of all low-income families.

 

XXXVI.      The reality that many women and children suffer financial hardship following divorce cannot be ignored when dealing with child support.  Even though each case must be decided on its own facts and on the evidence, with or without expert assistance, courts cannot ignore the socio-economic context in which their decisions are rendered and the effect that those decisions will have on a family and its future.  As Professor E. B. Zweibel has observed in "Child Support Guidelines: An Ineffective and Potentially Gender-Biased Response to Child Support Issues" in Feminist Analysis II: Family Law: Voodoo Economics for Women (Canadian Bar Association -- Ontario, 1993, Institute of Continuing Legal Education), at p. 1:

 

                   Women and children have a common economic reality.  Most children live with women and share their economic circumstances.  Most women disproportionately assume the direct and indirect costs and responsibilities of child rearing both during and after a relationship.  Unless child support policies recognize existing gender biases and aim at avoiding their further entrenchment, both women and children will continue to live in depressed economic circumstances.

 

XXXVII.     The link between low child support and the severe economic circumstances of many custodial mothers and their children has recently been the subject of considerable discussion in Canada.   For instance, the Canadian Department of Justice, Bureau of Review in Evaluation of the Divorce Act -- Phase II: Monitoring and Evaluation (1990) observes at p. 81:

 

For many years, child support awards have been criticized for being inadequate and thereby placing an unfair burden on the custodial parent.  Comparison of [1985-86] and [1988] data suggests that there has been a deterioration, not improvement, in the average amount of child support awarded.  In [1985-86], clients were, on average, receiving, or in the case of men, paying, $470.00 per month. In [1988], the average amount of child support reported by clients, is now $503.00 per month.  Even with no improvement in amount ordered, we would have expected the average to be about $540.00 per month after taking into account inflation of four percent in each of the years separating the two sets of interviews.

 

It elaborates on the asymmetry of costs between custodial and non-custodial parents at p. 132:

 

It is beyond the scope of the present evaluation to enter into the debate about the most appropriate model for apportioning the costs of raising children.  The data suggest, however, that as in Phase I, the burden falls disproportionately on the custodial parent who is, usually, but not exclusively, the woman.  Some indications of this are that, except in the very lowest income groups, men were ordered to pay about 18 percent of their gross income in support or about $250.00 per child per month.  At the same time, the bare minimum cost of raising a preschool-child in a single parent family has recently been estimated at $350.00 without child care and $790.00 per month with child care.  While some proportion of this cost will be borne by the custodial parent who will generally earn less than the non-custodial parent, the more telling statistics are that most men without custody have incomes after paying support which leave them considerably above the poverty line while a majority of women with custody of the children have, after receiving support, incomes putting them below the poverty lines for various family sizes. [Emphasis added.]

 

XXXVIII.    Having recognized these difficulties, a Federal/Provincial/Territorial Family Law Committee was called upon "to study child support upon family breakdown in the context of the actual costs of raising children in Canada" (The Financial Implications of Child Support Guidelines: Research Report, Report of the Federal/Provincial/Territorial Family Law Committee, May 1992, at p. 1) and to explore the possibility of formulating fixed child support guidelines or schedules to facilitate a realistic, equitable, and administratively convenient system for assessing child support.  Two reports have already been submitted by the Federal/Provincial/Territorial Family Law Committee entitled, Child Support: Public Discussion Paper,  June 1991, and The Financial Implications of Child Support Guidelines, supra.

 

XXXIX.      The Canadian Bar Association, moreover, has voiced the concern that judges and lawyers have internalized maximum amounts of child support, thereby imposing what has been dubbed a "glass ceiling" on child support awards (see M. Grassby, "Women in their Forties:  The Extent of Their Rights to Alimentary Support" (1991), 30 R.F.L. (3d) 369, at p. 390).  This invisible barrier often works to the advantage of the non-custodial spouse but to the detriment of many custodial mothers and their children (R. Abella, "Economic Adjustment on Marriage Breakdown:  Support" (1981), 4 Fam. L. Rev. 1).  In fact, the average amount ordered for support is only 1/5 of the husband's net income, according to D. McKie, B. Prentice and P. Reed, Divorce: Law and the Family in Canada (Statistics Canada, 1983, at p. 198).  These artificial ceilings, in my view, do not stem from the legislation itself but rather from the particular prism through which the Act has been interpreted.

 

XL.             One cannot evaluate the disparity between the cost of raising children and the average support order without first determining the actual cost of raising children.  Two studies referred to by Zweibel, supra, one by the Edmonton Social Planning Council and the other by the Metropolitan Toronto Social Planning Council, have attempted to quantify the amount of support required to provide for "neither a survival income nor a hardship free level of living".  The Edmonton study indicates that, in that city, $8,555 per year is required to achieve a no-frills standard of living for two children, a boy aged 10 and a girl aged 4.  The Toronto study concludes that $8,697 would be required.  Moreover, as Ms. Grassby points out, supra, at p. 397:

 

                   Financial planners know that upon a husband's death, the wife needs 70 per cent of their joint incomes to maintain a comparable standard of living for the children and herself.  The fact that there is a divorce rather than a death in the family does not change the family's needs and yet the wife and children usually retain far less than 70 per cent of the joint income.  This explains why the standard of living of women and children is so severely reduced upon divorce.

 

XLI.            The reality of divorce for many families, however, is that there is not enough money at the time of the divorce to meet all of the children's needs.  For this reason, courts often settle upon a quantum of support that depends primarily upon the means of the payor rather than upon the needs of the children.  An appropriate approach to variation orders must reflect this social reality.   Professor Rogerson argues, supra, at pp. 285‑86, however, that courts have thus far been unable to come to grips with this problem:

 

                   The courts' treatment of variation applications in child support cases, like their treatment of original applications, reflects a disjuncture between principle and outcome.  At the level of principle courts are relatively sympathetic to requests for upward variation.... The difficulty in variation applications is, once again, with quantum.  In variation applications courts operate on the assumption that the original awards, which tend to be low, were appropriate at the time they were made.

 

The key issue to be addressed, therefore, both at the onset of divorce and at the moment of variation, is the question of who should bear more of the hardship arising from the financial burden of divorce, and why.

 

XLII.           In my view, the financial burden of divorce should not be borne primarily by children and their custodial parents.  Children are our country's most important resource, our future.  Their needs cannot be minimized on account of their parents' divorce.  They are entitled to be looked after properly both before and after divorce.  I do not mean to imply that they must live in luxury.  I strenuously object, however, to situations in which children live at or near the poverty level despite the fact that the means of the non-custodial parent are sufficient to meet their needs.  Children's needs cannot be reduced to a bare minimum so that the non-custodial parent can enjoy a significantly more comfortable lifestyle.  Their needs must be assessed in light of a number of factors which are dependent upon the proper level of care for each child.  The fact that statistics reveal that child support orders are rarely in line with the costs associated with raising children suggests that the realistic needs of children should be kept at the forefront of any examination of the quantum of child support.  The failure of courts in many instances to contemplate the true costs of child care has contributed materially to this problem and cannot be ignored by courts examining the appropriateness and quantum of variation.

 

C.  The Inclusion of Hidden Costs in Child Support Calculations

 

XLIII.          In her review of the hidden costs of child-rearing absorbed by custodial parents,  Professor Ellen B. Zweibel notes that the indirect and direct costs of child-rearing may fall into four groups:

 

The indirect cost of the increased responsibility of child care falling on a single parent and the cost of time spent on household, childrearing and nurturing tasks;

 

The increased direct costs of services purchased for the first time or increased as a result of the needs of the child, such as work-related child care, babysitters, free time for community, social and domestic commitments, assistance with household tasks;

 

The hidden increased costs associated with shopping and housing functions; and

 

The present employment opportunity costs.

 

("Valuing the Custodial Parents' Contribution: Dealing With Increased Monetary Costs and Non-Monetary Costs Absorbed by the Custodial Parent" in Canadian Advisory Council on the Status of Women, Summary Notes (Critical Review of Child Support Guidelines Workshop, Ottawa, May 22-24, 1992) as cited in Pask, supra, at pp. 83-84.)  Professor Carol Rogerson highlights the importance of such costs in "Winning the Battle, Losing the War: The Plight of the Custodial Mother After Judgment" in M. E. Hughes and E. D. Pask, eds., National Themes in Family Law (1988), at p. 44:

 

                   Even if one accepts the current conceptual framework of child support which requires that the costs attributable to the child be isolated from those of the caregiver, child support suffers from additional problems.  Child support calculations bear little relationship to the actual costs of raising children. [Emphasis added.]

 

This social reality cannot be ignored at either the originating or variation stage of child support order determinations.

 

XLIV.         As a practical matter, in most cases, both parties file their respective statements of expenses and income.  The statement of the custodial parent (the mother, in the vast majority of cases) usually includes the children's expenses.  A more appropriate method, in my view, would be to list separately the expenses, both direct and hidden, associated with the children.  Such an approach will make it easier to apportion the costs between the parties, if need be, and to assess more realistically the needs (and hence the costs) of the children.

 

XLV.           Direct costs include the children's share of rent, food, and washing, as well as reasonable sums for clothes, recreational needs, schooling, pocket money, babysitting, and transportation, to name a few. They also include the costs incurred by both parents of making reasonable arrangement for visits by the non-custodial spouse.  Hidden costs, on the other hand, include an estimate of the value of the additional housekeeping, shopping, childrearing and nurturing tasks undertaken by the custodial spouse, as well as the opportunity costs incurred as a result of these responsibilities. Bowman J., albeit addressing the issue of spousal support, elaborates on the nature of these costs in Brockie v. Brockie (1987), 46 Man. R. (2d) 33 (Q.B.), at p. 39:

 

It must be recognized that there are numerous financial consequences accruing to a custodial parent, arising from the care of a child, which are not reflected in the direct costs of support of that child.  To be a custodial parent involves adoption of a lifestyle which, in ensuring the welfare and development of the child, places many limitations and burdens upon that parent....  A custodial parent ... seldom finds friends or relatives who are anxious to share accommodation, must search long and carefully for accommodation suited to the needs of the young child, including play space, closeness to day care, schools and recreational facilities, if finances do not permit ownership of a motor vehicle, then closeness to public transportation and shopping facilities is important.  A custodial parent is seldom free to accept shift work, is restricted in any overtime work by the day care arrangements available, and must be prepared to give priority to the needs of a sick child over the demands of an employer.  After a full day's work, the custodial parent faces a full range of homemaking responsibilities including cooking, cleaning and laundry, as well as the demands of the child himself for the parent's attention.  Few indeed are the custodial parents with strength and endurance to meet all of these demands and still find time for night courses, career improvement, or even a modest social life.

 

XLVI.         Courts have considered such hidden costs in spousal support calculations (see Payne, supra, at p. 93 and accompanying footnotes).  These costs are equally, if not more, relevant with respect to determination of the right to, and quantum of, child support (see Levesque, supra).

 

XLVII.        Few would dispute that if the custodial spouse is employed outside the home then the direct costs of raising the children will also include the cost of work-related child care (see, e.g., Murray, supra).  By contrast, where the custodial spouse is not employed outside the home or is only employed part-time, child support orders generally do not seek to attribute a formal value to the child care provided by the custodial parent.  This apparent discrepancy implies that there is only "value" to the childrearing services being provided if these services are provided by an outside party.  The present Act calls for an approach to marital breakup that clearly rejects such a message.

 

XLVIII.       In Moge, supra, at p. 862, this Court has recognized that non-monetary contributions in the home must be given real value once the marriage has dissolved in order to recognize the significant market disabilities that the wife may suffer as a result of her contributions.  Furthermore, I believe the following observation, at p. 864, to be entirely appropriate:

 

                   The doctrine of equitable sharing of the economic consequences of marriage or marriage breakdown upon its dissolution which, in my view, the Act promotes, seeks to recognize and account for both the economic disadvantages incurred by the spouse who makes such sacrifices and the economic advantages conferred upon the other spouse.  Significantly, it recognizes that work within the home has undeniable value and transforms the notion of equality from the rhetorical status to which it was relegated under a deemed self-sufficiency model, to a substantive imperative.  In so far as economic circumstances permit, the Act seeks to put the remainder of the family in as close a position as possible to the household before the marriage breakdown. [Emphasis added.]

 

XLIX.         Recognition of the value of work within the home -- of which child-rearing may play a significant part -- compels a recognition that this work, as well as the lost career opportunities related to this work, represents a hidden cost to the person assuming these responsibilities.  Concomitantly, for the purposes of child support, recognition of these costs implies a recognition that the services are provided in response to the children's needs.  As I observed in Moge (at p. 862), the fact that women often bear the greater proportion of hidden costs while the family remains together is, at least from an economic perspective, unobjectionable if this represents the wishes of the parties.  Failure to recognize these costs becomes objectionable, however, when a marital breakup occurs and when a court neglects to consider these costs, these needs, as real factors to be considered in the apportionment of both spousal and child support.  The fact that the costs are hidden does not make them consequences that are any less important, any less real, or any less "financial" than any other.  We cannot ignore such costs without also ignoring the need that they fulfil.

 

L.                The hidden costs and needs that are relevant to the assessment of spousal support, however, are not the same as the hidden costs and needs that are relevant to the assessment of child support.  In Moge, supra, this Court recognized that a spouse's past contributions during the marriage toward duties such as child-rearing must be considered for the purposes of determining an appropriate quantum of spousal support.  When a marriage dissolves, however, the work of child-rearing does not.  Thus, the ongoing work of the custodial spouse (most often the woman) in raising the children after the dissolution of the marriage must be recognized for the purposes of determining the right to, and quantum of, child support.  This is not to say that the non-custodial spouse must pay the custodial spouse for the latter's efforts in caring for the child(ren).  Rather, this approach merely accepts that these efforts should be recognized in determining what is a fair apportionment of the child support obligation, since these costs are incurred in direct response to the children's reasonable needs (see Smith v. Smith (1986), 4 R.F.L. (3d) 210 (Ont. Fam. Ct.), at p. 213).

 

LI.               Not all costs related to child care can be included under the rubric of child support, however.  Namely, the custodial spouse will often incur meaningful opportunity costs such as lost career opportunities, diminished or outdated job skills, and lost opportunities for pension contributions, to mention a few.  The impact of these costs may be felt for considerable periods of time even after the custodial parent is no longer formally responsible for the well-being of the children of the marriage.  Courts have considered, quite properly in my opinion, compensation for these types of financial consequences to fall within the rubric of spousal support under ss. 15(7)(b) and 17(7)(b) of the Act (see e.g. Brockie, supra, and Payne, supra, at p. 93 and accompanying footnotes).

 

LII.              For the purposes of calculating child support, the total cost of caring for the children in any given instance is therefore the sum of the direct and hidden costs established by the parties before the court, including reasonable access costs. (See, to similar ends, Levesque, supra.)  This sum, in effect, represents an estimate of the children's total needs.  The next step is to ascertain the reasonableness of these needs in light of the means of the parents.  The costs of fulfilling these needs are then allocated between the parents in accordance with their relative ability -- having regard to those costs already assumed by each parent (including contributions to hidden costs, as discussed above) and having regard to each parent's subsistence level needs (as discussed above) as well as to the income tax implications of the order (see Thibaudeau, supra).  Because the division of costs between the spouses begins with the proposition in s. 15(8)(a) that the financial obligation of raising the children is jointly shared, and because the non-custodial spouse will generally incur (and therefore contribute to) fewer hidden costs than the custodial spouse, it follows that the non-custodial spouse will generally assume a greater percentage of the direct costs than would otherwise be the case if hidden costs had been ignored.  In this way, the resulting support order reflects more appropriately the total economic burden undertaken by both parties in light of the total needs of the children.  Parliament could not have intended to entrench a child support regime which contributes to the systematic underestimation of the costs of child care, and hence of child support payments.  Consideration of the social realities of child support, discussed earlier, therefore requires an approach to the child support objectives of the Act that contemplates as accurately as possible the actual economic consequences of child care responsibilities.

 

LIII.            I wish to address a possible criticism of this child-based approach to child support, of the genre voiced by Professor Rogerson in "Winning the Battle", supra, at p. 43:

 

The law of support, in compartmentalizing on-going financial obligations into child support and spousal support, fails to acknowledge the economic reality that the custodial mother and children, by sharing the same household, will inevitably share the same standard of living.

 

In response to these concerns, I would point out that the approach I suggest should not be viewed as an attempt to further segregate the issues of child and spousal support.  Indeed, the interrelationship between the financial situation of the custodial parents and the children has previously been recognized by this Court in Richardson, supra.  Rather, the approach which the Act mandates is a means to bring some of the usually hidden costs associated with the raising of children into the picture, in order that these may be distributed appropriately between the parties.  Indeed, recognition of hidden costs is rendered all the more pressing by the realization that one does not deprive the child without also depriving the custodial parent, and vice versa (see Levesque, supra).

 

LIV.            To summarize, children's non-financial needs continue beyond the dissolution of the marriage -- in fact, they often increase as a result -- and these needs may not be fully reflected by a mere calculation of the direct costs incurred.  By factoring in the effect of hidden costs and needs, courts can paint a far more accurate picture of the true costs of raising children.  Support orders may then be both more realistic and more reasonable for all parties concerned.  Undoubtedly, the present difficulties encountered by courts in properly assessing and addressing the needs of children have precipitated demand for legal reforms, which in turn has led to proposals for child support guidelines.  Whether or not such guidelines may be necessary, the concerns with regard to inadequate and unrealistic child support orders are certainly real and must be confronted.

 

LV.             It is with this context in mind that I now turn to the main question raised in this appeal, an application for the variation of child support following the incorporation of a separation agreement into a divorce judgment under the Divorce Act.

 

Separation Agreements

 

LVI.            The basis of the respondent's argument opposing the variation order is that courts should not intervene once parties have settled their affairs pursuant to a separation agreement.  Although the appellant's application for a variation order only concerns child support, a brief overview of the principles underlying variation of separation agreements is in order.

 

LVII.           The variation of orders, including consent orders, is governed by s. 17(4) of the Divorce Act.  This Court has already pronounced upon the predecessor sections to the current statutory provisions in the "Pelech trilogy": Pelech v. Pelech, [1987] 1 S.C.R. 801, Caron v. Caron, [1987] 1 S.C.R. 892, and Richardson v. Richardson, [1987] 1 S.C.R. 857.  In those cases, this Court held that the applicant had to establish a "radical change in circumstances" and a pattern of dependence arising as a consequence of the marriage in order to successfully vary a purportedly final agreement governing spousal support.

 

LVIII.          Pelech and Caron both involved applications for the variation of spousal support. In Pelech, Wilson J., for the majority, concluded that variation of a spousal support order determined by a separation agreement between the parties was within the purview of the courts, pursuant to s. 11 of the then Divorce Act, R.S.C. 1970, c. D‑8.  Nonetheless, it was the view of the majority that variation of such agreements requires evidence of a radical change in circumstances which is causally connected with the economic dependency arising from the marriage.   In Caron, the majority, following its reasoning in Pelech, refused to vary a spousal support order where the payee spouse had begun to cohabit with another partner.  The agreement between the parties had indicated that spousal support would cease upon such an occurrence and this Court concluded that it was unable to vary that provision without proof of a radical change in circumstances causally connected to the marriage.  This conclusion has not been free of criticism.  Professors John Durnford and Stephen Toope, for instance, question the wisdom of relying unduly on the sanctity of separation agreements in "Spousal Support in Family Law and Alimony in the Law of Taxation" (1994), 42:1 Can. Tax J. 1, at pp. 17‑18:

 

                   La Forest J penned a powerful dissenting opinion in which he challenged the analysis in Pelech by measuring its effects in a case such as Richardson. According to La Forest J, the majority's emphasis upon protecting the sanctity of spousal contracts was misconceived, as was its supposed promotion of equal autonomy.  The relevant legislation expressly allowed for judicial discretion in weighing the factors that should be considered in awarding support.  The existence of a contract was only one such factor, albeit an important one.  More fundamentally, La Forest J questioned the model of rational choice implicit in the majority reasons in Pelech and Richardson.  He noted that divorce is one of the most stressful occasions in any person's life and that many people do "very unwise things, things that are anything but mature and sensible, even when they consult legal counsel."  Agreements should not be treated as sacrosanct in this emotionally fraught context.  [Footnotes omitted; emphasis added.]

 

See, also, M. Neave, "Resolving the Dilemma of Difference: A Critique of `The Role of Private Ordering in Family Law'" (1994), 44 U.T.L.J. 97.  The case of Masters v. Masters, [1994] 1 S.C.R. 883, did not offer this Court an opportunity to discuss this question.  Since no change in circumstances had occurred, it was "unnecessary to consider the issue of whether, had such change [unforeseen or radical] been demonstrated, that change need be causally connected to the circumstances of the marriage" (pp. 883-84).  Neither does the case before us, since we are not concerned here with the variation of agreements generally or with regard to spousal support.  Rather, this case involves the variation of an order as to child support, to which different considerations must apply.

 

LIX.            The first of these considerations is that courts are not bound by the agreements of the parties when it comes to child support.  In this regard, Richardson, supra, is highly apposite.   In Richardson, Wilson J., for the Court on this point, indicated at p. 869 that variation of child support payments was not subject to the same stringent standards as variation of spousal support arrangements and that child support was the right of the child:

 

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.... [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....

 

The Court concluded that the possibility of an indirect benefit accruing to the custodial spouse through increased child support payments was no reason to deny an increase in child support and, more importantly, that children should be shielded, insofar as possible, from the economic consequences of divorce.  Following Richardson, supra, it is clear that the mere fact that the parties have agreed on the quantum of child support in a separation agreement is not sufficient to bar a re-examination of child support if the circumstances of the case so warrant.  Professor Carol Rogerson shares a similar view in "Judicial Interpretation of the Spousal and Child Support Provisions of the Divorce Act, 1985 (Part II)", supra, at p. 293:

 

In child support cases the legislative objectives for child support are emphasized and given priority and contractual provisions which are inconsistent with those objectives are set aside.

 

Professor Payne summarizes the state of the law in this area (supra, at pp. 197-99):

 

                   Significantly different considerations apply to child-support rights and obligations where a spousal settlement prejudicially affects the financial well-being of the children....  Child support, like access, is a right of the child.  Children are not parties to a spousal agreement and neither parent has the authority to waive or restrict the statutory support obligations that each parent owes to dependent children.  The court is always free to intervene and determine the appropriate level of support for a child.  Indeed, the court has a duty to scrutinize any agreement to ensure that the children are not prejudiced by it.  In the words of Trussler J. of the Alberta Court of Queen's Bench in Bailly v. Bailly: "It may be that an agreement between the parties makes adequate provision for the children of the marriage, but all information must be placed before the court so that any agreement can be reviewed."  [Footnotes omitted.]

 

LX.             Although courts should not minimize the advantage for the parties and their children of entering into mutually satisfactory agreements as to spousal and child support, it must be recognized that such agreements can rarely accurately foresee the future and the way in which the circumstances of the parties and their children may evolve and change over the years.  In its reasons in Levesque, supra, the Alberta Court of Appeal (per curiam) has also taken note of the fact that the parties, themselves, are often ill-equipped to estimate reliably the true costs of child support (at p. 391):

 

Typically, the custodial parent has little experience in the pricing of child-rearing in a separated household, or at all.  And even that minimal experience often has been distorted by adoption of a new life style selected, of necessity, after separation because of what the supporting parent, or social services, had offered as interim support.  The non-custodial parent, typically, is also struggling with a new situation.  There is every reason to fear that neither have any great insight into what level of expenditure is appropriate for the child in this new situation.

 

Most importantly, children's rights to support are primarily theirs and not their parents.

 

LXI.            It is against this background that the precise issues raised by this appeal must be determined.  Firstly, under what circumstances will variation of an order arising from an agreement as to child support be justified and secondly, what is the appropriate extent of such variation under the Divorce Act?

 

The Test for a Variation Order for Child Support

 

LXII.           The variation of a support order, be it spousal or child support, is governed by s. 17(4) of the Divorce Act, which requires that a court be satisfied "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".  The appellant argues that s. 17(4) operates where any one of the enumerated changes is demonstrated.  The respondent, on the other hand, argues that this is not sufficient and that, on an application for variation of child support, the applicant must demonstrate a change in the means or circumstances of the parties as well as in the needs of the children.  The respondent's argument, in my view, highlights the confusion which has arisen between, on one hand, the threshold test, which triggers court intervention and, on the other hand, the subsequent task of assessing the extent of the variation of child support.  In the following analysis, I will examine in detail the stages of a variation application, namely (1) the threshold needed to justify variation and, once that requirement has been satisfied, (2) the extent of the variation.

 

A.  The Threshold Required to Justify Variation

 

                   (i)  The nature of the change in circumstances

 

LXIII.          The first consideration governing any application for variation is whether the change in circumstances is of the nature contemplated by s. 17(4) of the Divorce Act.  An inquiry into the legislative history of s. 17(4), its wording, the jurisprudence and the rationale behind this provision is in order.

 

LXIV.         The legislative antecedent to s. 17(4) of the present Act was s. 11(2) of the Divorce Act, S.C. 1967-68, c. 24.  Section 11(2) of the previous Act provided only that support orders could be varied having regard to a change in the condition, means or other circumstances of either of the parties.  No reference was made to the needs of the parties or to the condition, means, needs or circumstances of the children.  One would assume, as the appellant submits, that the restatement by the legislature of the court's variation power in s. 17(4) was meant to clarify the law and to codify the then-established court practice of reading into s. 11(2) that a change in the needs of the child would be sufficient to entertain variation of a child support order.  In my view, s. 17(4) has broadened the power of courts to vary an order to include situations where the condition, means, needs or other circumstances of the child alone have changed.

 

LXV.           The wording of s. 17(4) of the Act supports that view and is worth repeating:

 

                   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.  [Emphasis added.]

 

The use of the word "or" does not support the proposition that more than one change is required.  Furthermore, s. 17(4) refers to "that change" in the singular.  A plain reading of s. 17(4) of the Act therefore leads to the conclusion that a single change in any one of the "condition, means, needs or other circumstances" of the parties or children will justify court intervention.

 

LXVI.         The case law also supports this interpretation.  See, for example, Goncalves v. Goncalves (1986), 49 R.F.L. (2d) 376, in which the British Columbia Supreme Court increased child support payments after the child's father won the lottery; Guemili v. Guemili (1989), 19 R.F.L. (3d) 347, in which the Manitoba Court of Appeal upheld an increase in child maintenance on the basis of an increase in the father's income from $40,000 to $60,000; Chelmick v. Chelmick (Cochlan) (1992), 41 R.F.L. (3d) 117, in which the Alberta Court of Appeal upheld an application for variation in child support on the basis that the payor's income had increased, regardless of the  fact that the child's needs had not; and Kitson v. Kitson (1986), 1 R.F.L. (3d) 103 (Ont. H.C.), in which child support was increased as a result of the father's increased salary.  Quinlan L.J.S.C. stated in Kitson, at p. 106, that "the court must consider that the children must be kept in a position where they can benefit from the improved economic condition of the parents", regardless of the fact that there did not appear to be a change in the needs of the children.

 

LXVII.        Similarly, variation may be justified as a result of a change in the needs of the children.  In Dickson v. Dickson (1987), 11 R.F.L. (3d) 337, the British Columbia Court of Appeal held that a court has the jurisdiction to override settlement agreements with regard to child support where the needs of the child require it.  See also Robertson v. Robertson (1989), 23 R.F.L. (3d) 188 (Ont. H.C.).

 

                   (ii)  The sufficiency of the change in circumstances

 

LXVIII.       That first hurdle passed, the second part of the threshold test pertains to the sufficiency of the alleged change in the parties' or children's circumstances.  The Act does not provide guidelines in this respect.  On one hand, parties should not be encouraged to resort to courts indiscriminately and, as a corollary, should be encouraged to settle their affairs as amicably as possible.  On the other hand, I have underlined at numerous points in my reasons the importance of keeping the children's needs foremost in the court's determination of the right to, and the quantum of, any variation order.  Given that child support is ultimately a right of the child and not of the parent, I emphasize that the threshold of "sufficiency" justifying variation should more easily be satisfied in cases where the needs of the children are being inadequately or minimally satisfied and where a variation would, on the whole, improve their situation.  Adherence to a high threshold of sufficiency in such circumstances would frustrate the purpose of the Act and would run counter to the court's duty to assure itself that the needs of the children are being met appropriately.  Moreover, one cannot ignore, in dealing with variation orders, that the consequences suffered by children of a decrease in support may be markedly more dramatic than the benefits realized by a payor who successfully varies a support obligation downward following an adverse change in circumstances.

 

LXIX.         The standard of sufficiency  was originally prescribed with regard to spousal support in Pelech, supra, at pp. 851‑52:

 

Accordingly, where an applicant seeking maintenance or an increase in the existing level of maintenance establishes that he or she has suffered a radical change in circumstances flowing from an economic pattern of dependency engendered by the marriage, the court may exercise its relieving power.

 

However, as set out above, the standard as regards variation of child support was somewhat different given that, as the court stated in Richardson, supra, at p. 869:

 

The court is always free to intervene and determine the appropriate level of support for the child....

 

Nonetheless, some courts have held that changes in circumstances that had been contemplated by the parties at the time of the support order could not meet the requirement under s. 17(4) of the Divorce Act.  See, e.g., Michel v. Michel (1988), 18 R.F.L. (3d) 182 (Ont. S.C.); Gaudet v. Gaudet (1988), 15 R.F.L. (3d) 65 (P.E.I.C.A.).  In view of the fact that child support is the right of the child, however, I view the occurrence of a future event demonstrably within the contemplation of the parties at the time of the agreement to be a narrow exception to s. 17(4).  To the extent that my colleague perceives this issue differently, I strongly disapprove. (See, also, Levesque, supra.)

 

LXX.           In my view, having regard for the wording of s. 17(4) of the Act, the preliminary threshold test ensures that child support orders will not be re-assessed by courts anytime a change, however minimal, occurs in the circumstances of the parties or their children.  This approach recognizes the value in some degree of certainty and stability between the parties.  Parties must be encouraged to settle their difficulties without coming before the courts on each and every occasion.   Nonetheless, the threshold test cannot be applied properly unless the sufficiency of the change in circumstances is evaluated against the backdrop of the particular facts of the case at hand.  It is important to point out that the Act does not qualify "change" but merely states that "the court shall satisfy itself that there has been a change" (emphasis added).  We must therefore give this term meaning in light of the preceding discussion on the context in which child support orders, and variations, are made.  To begin with, "sufficiency" of the "change" must be defined in terms of the parties' overall financial situation. Moreover, the fact that a change was objectively foreseeable does not necessarily mean that it was contemplated by the parties.  Finally, although any change which is not contemplated may be considered by a judge to be sufficient, it is obvious that not every change will justify variation.  Most importantly, however, and notwithstanding the above observations, while the onus of proving the sufficiency of the change in condition, means, needs or other circumstances rests upon the applicant (Payne, supra, p. 217), the diversity of possible scenarios in family law dictates that courts maintain a flexible standard of judicial discretion which does not artificially limit the adaptability of the Divorce Act provisions.

 

LXXI.         Once a sufficient  change that will justify variation has been identified, the court must next determine the extent to which it will reconsider the circumstances underlying, and the basis for, the support order itself.  For the reasons below, I believe that it is artificial for a court to restrict its analysis strictly to the change which has justified variation.  Moreover, while a variation hearing is neither an appeal nor a trial de novo, where the alleged change or changes are of such a nature or magnitude as to make the original order irrelevant or no longer appropriate, then an assessment of the entirety of the present circumstances of the parties and the children which recognizes the interrelationship between the many factors to be considered is in order.

 

B.  The Extent of the Variation

 

LXXII.        Sections 17(4) and 17(8) of the Act seem to impose conflicting criteria upon the extent to which variation orders should address the circumstances of the parties.  The interrelationship of these sections has been carefully canvassed by Bielby J. in Vervoorst v. Vervoorst (1991), 37 R.F.L. (3d) 178 (Alta. Q.B.), at pp. 184‑85:

 

                   This issue arises because of an apparent inconsistency between subss. 17(4) and 17(8) of the Act.  Section 17(4) reads:

 

"Before the court makes a variation 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 ... since the making of the support order or the last variation order made in respect of that order...  and, in making the variation order, the court shall take into consideration that change."  [Emphasis added by Bielby J.]

 

                   The argument then arises that the variation should reflect, or track the change, rather than simply be an entire reconsideration of the whole issue of maintenance.  For example, if this argument were accepted, a cost of living change should result in the child support being varied only by the amount of the cost of living.  The variation should have a direct relationship with the change.

 

                   However, s. 17(8) appears to indicate the contrary.  It states:

 

"A variation order varying a support order that provides for the support of a child of the marriage should

 

                               ...

 

                   (b)  apportion that obligation between the former spouses   according to their relative abilities to contribute to the       performance of the obligation."

 

                   This may be interpreted to mean that once a court determines there has been the type of change to permit a variation, this proportionality approach should be used, even where it results in increases in support which are over and above the change which brought on the application.

 

                   To resolve these apparent inconsistencies, I turn to the golden rule of statutory interpretation, which directs that statutes should be interpreted in such a way as to avoid any inconsistency, if possible....

 

                   This is accomplished by interpreting s. 17(4) to mean that in making a variation order the court shall consider the originating change as one of the matters in arriving at a decision.  The change may not be of a financial nature.  Where it is not, the  variation should reflect the change that has occurred.  However, where the change has been a financial one, the variation should not be tied to that change but should reflect the proportionality test set out in s. 17(8).  The change is sufficient to give the court jurisdiction to vary, but in exercising that jurisdiction the court should award child support on the basis of the parents' current incomes in relation to one another.  If the change in circumstances is justification for allowing a court to discount the original order at all, it is also justification for proportionally apportioning the responsibility for support between the parents.

 

                   For example ... if the change [that triggers jurisdiction to vary] is that the non-custodial parent has lost his job and been forced to take one at a lower salary, the court, on the variation application, should set maintenance based on the then current incomes of the parents in relation to one another rather than in an amount tied in some way to the amount in the original order for child support.

 

                   Therefore, I am not limited to making direct adjustments to the contractually set $300 figure in making this variation order.  [Emphasis added.]

 

LXXIII.       In my view, s. 17(8) expands on the preliminary analysis under s. 17(4) and requires that the variation of child support not occur in a vacuum without regard to the present needs of the children and the means of the parties at the time of variation.  Accordingly, once it has been determined that the original or any subsequent order meets the test for variation, the circumstances of the parties and their children may be reviewed in order to establish realistically the overall impact of the change on the quantum of the new order.  As I have already noted, questions of support depend upon a matrix of facts.  The family, even after divorce, remains somewhat an interdependent economic unit and, as a consequence, a change in one aspect of the relationship will more often than not precipitate additional developments, therefore requiring a more thorough re-examination of child support needs.  This approach accords with s. 11(1)(b) of the Act, which states that "it is the duty of the court ... to satisfy itself that reasonable arrangements have been made for the support of any children of the marriage ...".  What is "reasonable", after all, will depend, inter alia, upon the extent to which the standard of living of the children is in line with the means of the payor.

 

LXXIV.       I discussed earlier in these reasons how child support and spousal support may differ both in their consideration of the underlying hidden costs and in their relative duration.   I do not see the need to repeat this analysis here.  I raise the point, however, to illustrate how a variation order must inquire into more than just the simple change which has justified the variation.  Consider, for example, an original order which fixed spousal support at $500 per month and fixed the non-custodial spouse's contribution to child support at another $1,000 per month.  At the time of the original order, however, the payor's limited means dictated that this figure did not fully meet the assessed needs of the children.  Five years later, the woman, who had stayed home with the children while they were young, begins to work part-time.  The husband, whose means have not increased appreciably, applies for a reduction in his spousal support payments on the basis of his ex-wife's new job.  The court grants this reduction and, without looking to the other factors that may be affected, diminishes the total amount of spousal and child support by $200 per month.  In my view, such a conclusion is premature, even if there is evidence that the children's needs have not changed.  By not looking to the matters that are affected by its order, the court would have omitted to take into account the fact that the original order had only been reasonable to the extent of the means and needs of the parties.  A proper variation would have demanded inquiry into this matter.  It would have considered the needs of the children as well as the increased income of the mother and could very well have concluded that, although the amount of spousal support should be reduced, the amount of child support should be commensurately raised in order to address realistically the situation of the family and the fact that child support had theretofore been understated because of its interrelationship with the means of the payor.  In Gillis v. Gillis (1994), 3 R.F.L. (4th) 128 (N.S.S.C.), a similar recognition underlay the court's refusal to reduce maintenance notwithstanding the fact that the two youngest children had left the home.  See also Ryan v. Ryan (1992), 114 N.S.R. (2d) 255 (T.D.).

 

LXXV.        Regardless of the fact that child support is deemed reasonable at the time it was ordered, variation must be approached from the perspective that arrangements may only have been reasonable to the extent of the means and other circumstances of the parties at the time.  Where those circumstances, means and needs have changed so as to render the original order irrelevant or inappropriate, an application for variation of child support should assess the needs of the children in light of the present circumstances of both the parents and the children.  For the sake of clarity, I should add that where the payor spouse has a new family, these added financial obligations also should be considered in arriving at an appropriate quantum of support.  These obligations, after all, constitute part of the totality of circumstances which must be examined in determining the extent of the variation.

 

LXXVI.       I emphasize that the approach to variation of child support discussed herein should not be understood to condone extravagance.  If a parent's income is well above the average wages of the general population, the children are not, by reason of income alone, entitled to whatever luxuries they desire.  The fact remains, however, that children's needs cannot be assessed in a vacuum and that children have a right to benefit from the better lifestyles of their parents as the circumstances permit.  Thus, when there is a change in the means of one of the parents for the better, increased support for the children may be amply justified in order to align them with their realistic needs.  A re-examination of factors affected by the change that has triggered variation is required to meet that end.

 

LXXVII.     To summarize, children are entitled to benefit from the new lifestyle of their parents.  Thus, it would be artificial to restrict the analysis of an application for variation strictly to the particular change which has precipitated the application without inquiring into the effect that the change may have had on other factors as regards the quantum of child support.  The determination of quantum at the stage of a variation application should therefore attempt adequately to give consideration to the complexity and social context of the determination.

 

LXXVIII.    Earlier in these reasons, I review the general principles applicable to child support and urge recognition of the multiplicity of factors at work in child support orders, as well as the social context in which that order is made.  These considerations are equally appropriate to the context of a variation.  I do not mean by this observation to suggest that the nature of the court's inquiry will necessarily be the same in a variation as in an originating order.  A variation under the Act is neither an appeal of the original order nor a de novo hearing.  The similarity of the wording of ss. 15(8) and 17(8), however, compels consonant judicial approaches to both variation and original orders.  Thus, whereas s. 15(8) calls for apportionment in light of the original assessment of the totality of the circumstances, the analysis and apportionment under s. 17(8) is contingent upon the nature and magnitude of the change or changes, as I have discussed above.  It is essential to imbue both original and variation orders with similar degrees of sensitivity to the complex interrelationship between means and needs, as well as to the social context of support orders generally, in order to remain faithful to the purpose and spirit of the Act.

 

LXXIX.       To this end, a court may take judicial notice of the fact that it costs more to support children as they grow older.  When this fact becomes compounded by the effect of inflation, it may constitute a sufficient change:  James v. James (1992), 41 R.F.L. (3d) 70 (B.C.C.A.) and Marshall v. Marshall (1992), 43 R.F.L. (3d) 303 (Man. C.A.).  Professor Diane Pask also takes the view that inflation must be provided for in child support orders (supra, at p. 89).  An increase in child support can be justified by reason of increased expenses for the clothing and recreation of children as they grow older:  Taplin v. Laurie (1992), 41 R.F.L. (3d) 197 (Man. C.A.), and House v. Tunney (House) (1991), 35 R.F.L. (3d) 68 (Sask Q.B.).  Professor Julien D. Payne in Payne on Divorce, supra, has made similar observations regarding the quantum of a child support order at p. 96:

 

In overriding a separation agreement in order to increase the quantum of child support, the court will consider the age of the child, the increased costs of education, an increased capacity to pay, increased child-care costs where a parent has resumed full-time employment, the effect of inflation, special circumstances, and whether the application is a guise for increasing the custodial spouse's support.

 

The recent Child Support: Public Discussion Paper, supra, at p. 34, also outlines some problem areas pertaining to variation of child support:

 

The main disadvantages of the present test are:  that it is rather difficult to establish, it does not necessarily take into account two factors which may be important to preserve the buying power of the child support order (age and inflation), and it leaves a considerable amount of discretion to judges.

 

Considerations such as the total income of the family available for support, the current costs associated with raising the children, the fact that these costs tend to increase with age, the cost of living, the original order, the agreement between the parties and the spouses' responsibilities to subsequent families are all highly relevant factors to be examined in any application for variation of child support.

 

Application to the Facts

 

LXXX.        Applying these guidelines to the particular facts of this case, it is clear that the threshold test required to justify variation has been satisfied.  Namely, both the respondent's income and the children's needs increased, although a change in either of them would have sufficed.  Furthermore, Carter J. clearly found that the change in the respondent's income was significant (at p. 240):

 

He says in his affidavit that the interspousal agreement was made in contemplation of the fact that he would be ... earning over $75,000 with an increase of 3% yearly.  His financial statement shows that he grosses $12,882 per month....

 

                                                                    ...

 

Even if one accepts the father's statement that the parties contemplated his employment with Cathay, that was to be $75,000.  His income far exceeds that now.

 

Once this condition was fulfilled, the chambers judge was entitled to re-examine those circumstances affected by the change in the means of the payor and the needs of the children and, given the nature and magnitude of the changes, could have looked anew at the present circumstances of the parties and the children.  This examination constituted a proper reflection of the interrelationship between needs and means and was wholly necessary in order to set the proper amount of child support.

 

LXXXI.       While the chambers judge did not explicitly discuss the needs of the children at length, she clearly considered them when she stated that the "application for variation is based on the fact that he is earning in excess of $100,000 and that the children are involved in ballet, tap dancing, swimming, skiing" (p. 240).  In so doing, Carter J. accepted the appellant's submissions that, given the children's age, the cost of looking after their needs, such as recreational and sporting activities, had necessarily increased.  Taking into account the additional costs associated with the age of the children is a proper exercise of judicial notice and a common sense approach.  These are factors which can and must be taken into account in the assessment of the pertinent circumstances of the parties.  So, too, is the question of whether the standard of living of the children accords with both the means and the standard of living of the non-custodial party, here the respondent.

 

LXXXII.     Moreover, although $1,600 per month for the applicant and the children may have been adequate at the time of the agreement in 1989 given the children's age and given the means of the respondent, there was evidence in the record that the same amount was no longer sufficient given their age now as well as the increased means of their father and the higher standard of living that they should consequently enjoy.  The appellant's statement of expenses showed that she needed $3,597 a month to cope with her needs and those of her children.  The children's needs alone were shown at $1,903.50 per month.  Along these lines, Carter J. noted the wide disparity in the parties' resources (at p. 240):

 

If from his expenses one deducts his maintenance payments ... he has left $3,693 to live on for himself and his new wife who cannot work due to her health, and the ex-wife and the two children have $2,088.  On her expenses she has a shortfall of $1,509.

 

LXXXIII.    The quantum of the child support order is not out of line with awards in other cases where the payor was earning approximately $100,000.  In Crowfoot v. Crowfoot (1992), 38 R.F.L. (3d) 354 (Alta. Q.B.), the father was ordered to pay $2,250 per month for each of two children.  In Weaver v. Tate (1989), 24 R.F.L. (3d) 266 (Ont. H.C.), add'l reasons at (1990), 24 R.F.L. (3d) 372, aff'd (1990), 28 R.F.L. (3d) 188 (Ont. C.A.), child support of $1,200 was awarded for each of two children.  In Mallen v. Mallen (1988), 13 R.F.L. (3d) 54 (B.C.C.A.), the court ordered support of $1,000 per month per child.  In Cheng v. Cheng (1988), 13 R.F.L. (3d) 140 (B.C.C.A.), the court awarded $1,200 per month for the support of a six-year‑old child.  In Monaghan v. Monaghan (1988), 14 R.F.L. (3d) 308 (Ont. H.C.), a husband earning $95,000 per year was ordered to pay $1,000 per month per child for child support.  In Heinemann v. Heinemann (1988), 86 N.S.R. (2d) 278 (T.D.), aff'd (1989), 20 R.F.L. (3d) 236 (C.A.), a husband earning $100,000 per year was ordered to pay child support of $900 per month per child.  Although each case must be decided on its own facts, an order of $850 per month per child is in no way out of line, given the income of the payor and the other circumstances of the parties in this case.

 

LXXXIV.    The Court of Appeal, finding "a serious error of principle" on the part of the chambers judge, questioned the support order and, on the basis that the needs of the children had not increased, held that the variation order was not justified.  In my opinion, however, the intervention of the Court of Appeal was not warranted, both as to the standard of appellate review and on the facts of this case.

 

Appellate Review

 

LXXXV.     The relevant section of the present Divorce Act reads as follows:

 

                   21. (1)  Subject to subsections (2) and (3), an appeal lies to the appellate court from any judgment or order, whether final or interim, rendered or made by a court under this Act.

 

                                                                   . . .

 

                   (5)  The appellate court may

 

                   (a)  dismiss the appeal; or

 

                   (b)  allow the appeal and

 

(i)  render the judgment or make the order that ought to have been rendered or made, including such order or such further or other order as it deems just, or

 

(ii)  order a new hearing where it deems it necessary to do so to correct a substantial wrong or miscarriage of justice.

 

The appropriate standard of review upon an appeal from the exercise of discretion by a trial judge is well known.  It was most recently referred to in Moge v. Moge, supra, following Pelech v. Pelech, supra.  It is not controversial.  In Pelech, supra, at p. 824, Wilson J. quoted with approval the Ontario Court of Appeal in Harrington v. Harrington (1981), 33 O.R. (2d) 150, at p. 154:

 

                   As far as the applicable standard of appellate review is concerned I am of the view that we should not interfere with the trial Judge's decision unless we are persuaded that his reasons disclose material error and this would include a significant misapprehension of the evidence, of course, and, to use familiar language, the trial Judge's having "gone wrong in principle or (his) final award (being) otherwise clearly wrong"Attwood v. Attwood, [1968] P. 591, at p. 596. In other words, in the absence of material error, I do not think that this Court has an "independent discretion" to decide afresh the question of maintenance and I say this with due respect for decisions to the contrary: see, e.g., Piller v. Piller (1975), 54 D.L.R. (3d) 150, [1975] 4 W.W.R. 342, 17 R.F.L. 252 (B.C.C.A.), and Carmichael v. Carmichael (1976), 69 D.L.R. (2d) 297, 27 R.F.L. 325 (B.C.C.A.).  [Emphasis added.]

 

While Pelech was decided under the now repealed s. 17(2) of the Divorce Act, R.S.C. 1970, c. D-8, s. 21(5) of the present Divorce Act does not warrant a different approach given the similarity of both sections.

 

LXXXVI.    The respondent, however, submits that the Court of Appeal can substitute its view of the evidence for that of the trial judge, pursuant to s. 8 of the Saskatchewan Court of Appeal Act, R.S.S. 1978, c. C-42, which reads:

 

                   8.  Upon appeal from, or motion against, the order, decision, verdict or decree of a trial judge, or on the rehearing of any cause, application or matter, it shall not be obligatory on the court to grant a new trial, or to adopt the view of the evidence taken by the trial judge, but the court shall act upon its own view of what the evidence in its judgment proves, and the court may draw inferences of fact and pronounce the verdict, decision or order that, in its judgment, the judge who tried the case ought to have pronounced.

 

The respondent takes further comfort from the fact that this case proceeded before the chambers judge by way of written material only and, in the words of Blair J.A. in Re Wilbur and Wilbur (1983), 147 D.L.R. (3d) 69 (Ont. C.A.), at p. 74:

 

There has been an increasing tendency to restrict the power of appellate courts to interfere with findings and inferences of fact [of the lower court] unless clear error is demonstrated in the assessment of evidence.... This limitation, however, does not apply in a case like the present where there was no trial and the lower court judge heard no viva voce evidence giving him the opportunity to hear and see the parties and other witnesses. [Emphasis added.]

 

LXXXVII.   In Lensen v. Lensen, [1987] 2 S.C.R. 672, this Court held that, despite the broad wording of s. 8 of the Saskatchewan Court of Appeal Act, a court of appeal is not justified in substituting its opinion for the findings of a trial judge unless the trial judge made a palpable and overriding error which affected such findings.  Furthermore, this Court recently reiterated in Reza v. Canada, [1994] 2 S.C.R. 394, at p. 404, a standard set out in Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3, at pp. 76-77:

 

... the test for appellate review of the exercise of judicial discretion is whether the judge at first instance has given sufficient weight to all relevant considerations....

 

LXXXVIII. This being the test, a "serious error of principle" by the chambers judge would have entitled the Court of Appeal to intervene.   While the decision of the chambers judge was brief and not as explicit as perhaps the Court of Appeal may have liked, it is clear from her reasons that she adopted the proper standard for varying a child support order.  Moreover, it is apparent that she  was entitled to consider the present circumstances of the parties since the nature of the change was such that the original order no longer reflected accurately the factors involved.  The evidence was clear and uncontested.  Carter J. considered it and, given the amount awarded, neither misapprehended the evidence nor attributed insufficient weight to the relevant considerations.  Since the chambers judge made no error in principle and considered all evidence, took into account all relevant factors, and awarded an amount well within the range of awards in similar circumstances, the Court of Appeal was not entitled to intervene and substitute its own view of the evidence.

 

LXXXIX.    A further comment is in order.  Courts of appeal must realize that trial judges deal daily with applications in family law for interim and permanent spousal and child support, as well as variation thereof.  They develop considerable expertise yet often do not have the leisure to write long and detailed reasons in all cases.  In fact, most of these cases are dealt with by the chambers judge, as was the case here.  Experienced judges such as Carter J., a member of a specialized division -- the Unified Family Court of Saskatchewan -- deal daily with such matters and are able to dispose of them quickly, grasping the global picture and applying the appropriate standards, particularly in cases such as this one which do not present any exceptional features.  Brief reasons are very often sufficient.  Our Court has recently dealt with this issue in the context of criminal law in R. v. Burns, [1994] 1 S.C.R. 656, where McLachlin J. held for the Court, at p. 664:

 

To require trial judges charged with heavy caseloads of criminal cases to deal in their reasons with every aspect of every case would slow the system of justice immeasurably.  Trial judges are presumed to know the law with which they work day in and day out.

 

The rule should not be different in matters such as the present one.

 

XC.             There was, in my view, absolutely no basis for the Court of Appeal to intervene, given the rules applicable to appellate review, the facts of this case, and the proper disposition by the chambers judge.  Furthermore, the Court of Appeal was wrong in saying that "there is no evidence of a change [in the needs of the children] which would justify the increase of the magnitude granted by the chambers judge" (p. 213), since the evidence here was clearly to the contrary.

 

Conclusion

 

XCI.            In conclusion, both statutory interpretation of the child support provisions of the Divorce Act and public policy concerns regarding the welfare of children following divorce favour the variation of child support orders in circumstances where a sufficient change has occurred in the "condition, means, needs or other circumstances" of the spouses or the children, as set out in s. 17(4) of the Act.

 

XCII.          According to ss. 17(4) and 17(8) of the Act, once variation is in order, a fresh examination of the entire circumstances of the parties and their children at the time of variation  may be warranted in order to determine the quantum of such variation.  The scope of this examination depends on the nature and the magnitude of the change as well as the interplay of potentially fact-specific factors.  It would be artificial to restrict the analysis of an application for variation strictly to the particular change which has precipitated the application without inquiring into the effect that the change may have had on other factors as regards the quantum of child support.  The determination of quantum at this stage of a variation application should therefore attempt to give adequate consideration to the complexity and social context of the determination.  Moreover, while a variation hearing is neither an appeal nor a trial de novo, where the alleged change or changes are of such a nature or magnitude as to make the original order irrelevant or no longer appropriate, an assessment of the entirety of the present circumstances of the parties and the children which recognizes the interrelation between the many factors to be considered is in order.

 

XCIII.         Finally, if an assessment of the present circumstances of the parties and the children is required, this examination should consider both the direct and hidden costs of caring for the children.  Although this list is far from exhaustive, the quantum of support may depend upon such factors as the direct and hidden costs of raising the children, the agreements between the parties, the original order, the age and health of the children, the effect of inflation, the current and reasonably anticipated needs of the children, and the means of the parties.

 

XCIV.         On the facts of this case, there was a sufficient change in the circumstances of the parties and those of the children to warrant variation.  Variation of the child support order was justified.  The chambers judge correctly applied the test for variation pursuant to s. 17(4) of the Act and, given the appropriate scope of her re-examination of the family situation, properly exercised her discretion in granting the appellant's application and in setting the quantum of child support based on the evidence before her.  Since there was no error in the chambers judge's decision, there was no ground for the Court of Appeal to intervene.

 

XCV.          In the result, I would allow the appeal, reverse the judgment of the Court of Appeal and reinstate the order of Carter J., with costs throughout in favour of the appellant.

 


                   Appeal allowed.

 

                   Solicitors for the appellant:  Woloshyn Mattison, Saskatoon.

 

                   Solicitors for the respondent:  Cuelenaere, Kendall, Fisher, Gaucher, Katzman & Duncan, Saskatoon.

 

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