Lamb v. Lamb

The Court‑‑This is an appeal from a decision of the Ontario Court of Appeal upholding an order of Rutherford J. in a family law matter.

The proceedings in which the impugned order was made were consolidated proceedings under the Family Law Reform Act, R.S.O. 1980, c. 152, and the Divorce Act, R.S.C. 1970, c. D‑8. Rutherford J. granted a decree of divorce to the wife (respondent) and made an order in her favour under s. 11 of the Divorce Act for maintenance in the sum of $1.00 per year. No appeal is taken in this Court from that order.

The husband does, however, appeal two aspects of the order made under the Family Law Reform Act, namely the grant to the wife of exclusive possession of the matrimonial home for her lifetime and the award of compensation to her under s. 8 of the Family Law Reform Act in respect of her contribution to a non‑family asset.

As far as the merits of the husband's appeal on these two aspects is concerned we are in agreement with the Ontario Court of Appeal that the trial judge had jurisdiction to grant the relief which he granted and that there was evidence to support his determinations. Counsel for the husband raised, however, a constitutional issue of some significance in relation to the award of exclusive possession of the matrimonial home. It is reflected in the following constitutional questions stated for the Court by Mr. Justice Estey:

1. Is Section 45 of the Family Law Reform Act, R.S.O. 1980, Chapter 152, a legislative provision in relation to support and maintenance?

2. Are the provisions of Section 45 of the Family Law Reform Act, supra, invalid by reason of the provisions of the Divorce Act, R.S.C. 1970, Chapter D‑8 relating to support and maintenance?

3. Are the provisions of Section 45 of the Family Law Reform Act, supra, inoperative when a claim thereunder is joined with an application for support and maintenance under the provisions of the Divorce Act, R.S.C. 1970, Chapter D‑8?

Reproduced here for convenience are the relevant provisions of the federal and provincial statutes:

Divorce Act, R.S.C. 1970, c. D‑8:

11. (1) Upon granting a decree nisi of divorce, the court may, if it thinks it fit and just to do so having regard to the conduct of the parties and the condition, means and other circumstances of each of them, make one or more of the following orders, namely:

(a) an order requiring the husband to secure or to pay such lump sum or periodic sums as the court thinks reasonable for the maintenance of

(i) the wife,

(ii) the children of the marriage, or

(iii) the wife and the children of the marriage;

(b) an order requiring the wife to secure or to pay such lump sum or periodic sums as the court thinks reasonable for the maintenance of

(i) the husband,

(i) the children of the marriage, or

(iii) the husband and the children of the marriage; and

(c) an order providing for the custody, care and upbringing of the children of the marriage.

Family Law Reform Act, R.S.O. 1980, c. 152:

18.‑‑(1) A court may, upon application, order a person to provide support for his or her dependants and determine the amount thereof.

...

(5) In determining the amount, if any, of support in relation to need, the court shall consider all the circumstances of the parties, including,

(a) the assets and means of the dependant and of the respondent and any benefit or loss of benefit under a pension plan or annuity;

(b) the capacity of the dependant to provide for his or her own support;

(c) the capacity of the respondent to provide support;

(d) the age and the physical and mental health of the dependant and of the respondent;

(e) the length of time the dependant and respondent cohabited;

(f) the needs of the dependant, in determing which the court may have regard to the accustomed standard of living while the parties resided together;

(g) the measures available for the dependant to become financially independent and the length of time and cost involved to enable the dependant to take such measures;

(h) the legal obligation of the respondent to provide support for any other person;

(i) the desirability of the dependant or respondent remaining at home to care for a child;

(j) a contribution by the dependant to the realization of the career potential of the respondent;

(k) where the dependant is a child, his or her aptitude for and reasonable prospects of obtaining an education;

(l) where the dependant is a spouse, the effect on his or her earning capacity of the responsibilities assumed during cohabitation;

(m) where the dependant is a spouse, whether the dependant has undertaken the care of a child who is of the age of eighteen years or over and unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents;

(n) where the dependant is a spouse, whether the dependant has undertaken to assist in the continuation of a program of education for a child who is of the age of eighteen years or over and unable for that reason to withdraw from the charge of his or her parents;

(o) where the dependant is a spouse, any housekeeping, child care or other domestic service performed by the spouse for the family, in the same way as if the spouse were devoting the time spent in performing that service in remunerative employment and were contributing the earnings therefrom to the support of the family; and

(p) any other legal right of the dependant to support other than out of public money.

(6) The obligation to provide support for a spouse exists without regard to the conduct of either spouse, but the court may in determining the amount of support have regard to a course or conduct that is so unconscionable as to constitute an obvious and gross repudiation of the relationship.

19.‑‑(1) In an application under section 18, the court may order,

...

(d) any matter authorized to be ordered under clauses 45(1)(a) to (d) and subject to subsection 45(3);

40.‑‑(1) A spouse is equally entitled to any right of possession of the other spouse in a matrimonial home.

(2) Subject to an order of the court under this or any other Act, and subject to a separation agreement that provides otherwise, a right of a spouse to possession by virtue of subsection (1) ceases upon the spouse ceasing to be a spouse.

45.‑‑(1) Notwithstanding the ownership of a matrimonial home and its contents, and notwithstanding section 40, the court on application may by order,

(a) direct that one spouse be given exclusive possession of a matrimonial home or part thereof for life or for such lesser period as the court directs and release any other property that is a matrimonial home from the application of this Part;

(b) direct a spouse to whom exclusive possession of a matrimonial home is given to pay such periodic payments to the other spouse as is prescribed in the order;

(c) direct that the contents of a matrimonial home, or any part thereof, remain in the home for the use of the person given possession;

(d) fix the obligation to repair and maintain the matrimonial home or to pay other liabilities arising in respect thereof;

(e) authorize the disposition or encumbrance of the interest of a spouse in a matrimonial home subject to the right to exclusive possession of the other spouse as ordered; and

...

(3) An order under subsection (1) for exclusive possession may be made only if, in the opinion of the court, other provision for shelter is not adequate in the circumstances or it is in the best interests of a child to do so.

The argument presented on behalf of the husband on the constitutional issue is succinctly set out in paragraph 18 of the appellant's factum which reads as follows:

It is respectfully submitted that the provisions of the FLRA dealing with exclusive possession [of the matrimonial home] and orders pronounced thereunder are properly characterized as support or maintenance orders. It is further submitted that such provisions are rendered inoperative when a spouse proceeds with and obtains corollary relief under Section 11 of the Divorce Act , and that, in such cases, the Court has no authority to award exclusive possession of the matrimonial home under the FLRA.

In support of his characterization of an order of exclusive possession under s. 45(1) as a support or maintenance order, counsel points to s. 45(3) and submits that the purpose of such an order is to ensure that the spouse has adequate shelter or, in an appropriate case, that the best interests of a child of the marriage are provided for. These, he says, are the very factors traditionally taken into consideration in making support orders and would in fact be taken into consideration in making a support order under s. 18 and s. 19(1)(d) of the Family Law Reform Act. An order for exclusive possession being a support order and the wife having sought and (according to the husband) obtained a maintenance order ($1.00 per year) under s. 11 of the Divorce Act , s. 45 of the Family Law Reform Act was inoperative to confer jurisdiction on the trial judge to make the order appealed from.

It is readily apparent that if counsel is wrong on his basic premise that an order for exclusive possession is a support order, his appeal on constitutional grounds must fail. Counsel acknowledges that s. 45 of the Family Law Reform Act is intra vires the legislature of the province as legislation in relation to property and civil rights: see Reference re Adoption Act, [1938] S.C.R. 398. He also accepts that s. 11 of the Divorce Act is intra vires the federal legislature as legislation ancillary to divorce: see Jackson v. Jackson, [1973] S.C.R. 205. His whole case is that the two cannot be invoked together. If resort is had to the maintenance provisions of the Divorce Act , the support jurisdiction of the Family Law Reform Act (including s. 45 so characterized) is said to be pre‑empted: see Sniderman v. Sniderman (1982), 36 O.R. (2d) 289 (Ont. H.C.)

We are all of the view that while an order for exclusive possession of the matrimonial home under s. 45 of the Family Law Reform Act is relevant to support, it is not in and of itself a support order: see Reference re B.C. Family Relations Act, [1982] 1 S.C.R. 62, at pp. 88‑89. The Family Law Reform Act authorizes the Court on divorce or marriage breakdown to divide the family and non‑family assets between the spouses in accordance with the provisions of the Act. It also authorizes the Court to make support orders. Although the matrimonial home is a family asset under the Act and as such subject to division under Part I, it is also specifically dealt with under Part III where possessory orders are contemplated. In this case, for example, Rutherford J. divided the matrimonial home equally between husband and wife but gave the wife exclusive possession during her lifetime. It may well be, as counsel for the husband points out, that such a possessory order directly affects the quantum of support required by the wife but so also would an order awarding her the matrimonial home outright under Part I of the Act. A division of assets under the Family Law Reform Act and an order for support under the Family Law Reform Act will usually be interrelated. This is why the courts have recommended that the division of assets be made before the needs of the spouse for support are assessed: see Fogel v. Fogel (1979), 9 R.F.L. (2d) 55 (Ont. C.A.); Stere v. Stere (1980), 15 R.F.L. (2d) 357 (Ont. H.C.) The Court will utilize the statutory provisions to tailor a package to the needs of the parties having regard to the nature and extent of their assets.

We see no difference where an ancillary order for maintenance is sought under the Divorce Act and an order for exclusive possession of the matrimonial home is sought under the Family Law Reform Act. There is no conflict between s. 11 of the Divorce Act and s. 45 of the Family Law Reform Act on the test of conflict articulated in Multiple Access Ltd. v. McCutcheon, [1982] 2 S.C.R. 161. Quoting from the judgment of Dickson J. (as he then was), at p. 191:

In principle, there would seem to be no good reasons to speak of paramountcy and preclusion except where there is actual conflict in operation as where one enactment says "yes" and the other says "no"; "the same citizens are being told to do inconsistent things"; compliance with one is defiance of the other.

The provisions in the two statutes are not mutually exclusive. Indeed, they do not even deal with the same subject matter. Even if the award of the nominal amount of $1.00 per year under s. 11 of the Divorce Act (made no doubt in the belief that it was necessary in order to retain jurisdiction) can be viewed as an award of maintenance based on the considerations set out in that section (which is, to say the least, doubtful), such an order does not, for the reasons given, preclude an order for exclusive possession of the matrimonial home under the Family Law Reform Act. They are independent jurisdictions in relation to different subject matters conferred by intra vires federal and provincial statutes which complement each other. There is therefore no room for the application of the paramountcy doctrine to these two legislative provisions. The appeal is accordingly dismissed with costs.

The constitutional questions are answered as follows: