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(PUBLICATION BAN IN CASE AND ON PARTIES)

Family law - Support - Spousal support - Variation - Support recipient having multiple sclerosis - Allegation that support recipient able to work but refusing to try to return to labour market - Whether courts below could reduce support in circumstances - Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 17.

The parties, who married in 1988, have been divorced since 2003. They have two children, born in 1993 and 1998. When they married, the appellant, who was 23, was a representative for a cosmetics company. The respondent, then aged 27, was a lawyer. A year after they married, the appellant learned that she had multiple sclerosis. She stopped working and began receiving permanent disability benefits from her former employer’s health insurance plan ($16,956 a year, tax free). The 2003 divorce decree certified a consent to corollary relief which, inter alia, established the support payable in respect of the appellant ($44,256 a year) and the children ($9,108.67 a year), apportioned the responsibility for certain special expenses between the two parents according to their means and effected partition of the family patrimony. The respondent’s annual taxable income was determined to be $165,000. The preamble to the agreement stated that the parties acknowledged having taken into account the criteria set out in s. 15.2(6) of the Divorce Act, and the agreement did not provide for a term.

In May 2007, the appellant served a motion to vary corollary relief concerning the child support and special expenses. She submitted that the respondent’s income had increased considerably. The respondent objected in part and claimed that the appellant’s support should be reduced to $2,500 a month until December 2007 and then rescinded. He submitted that the appellant was refusing to look for work even though she was able to work outside the home. The Superior Court granted the motion with respect to the children but ruled that the appellant’s support should be reduced, as the evidence showed that the appellant could work outside the home and that she should make an effort to find work. In September 2010, the appellant would therefore be required to show what she had done to look for work. The Court of Appeal essentially upheld the judgment.