Ruling alters spousal support
Landmark case allows changes in court orders, redefines `till death do us part'

Jun. 29, 2005. 06:30 AM


Eileen Mary Tierney-Hynes and Adrian Hynes married in Ireland in 1975 and divorced in Manitoba 12 years later. She helped pay his way through medical school and stayed at home raising their three children.


After their divorce, Hynes paid $300 a month in spousal support and $500 for each of their children. When his income as a family physician dropped, he decided to return to school to become a psychiatrist and a court terminated the support payments on the understanding that improving his professional credentials would benefit the family.


Three years ago, with her ex-husband earning approximately $250,000 a year as a psychiatrist, Tierney-Hynes asked to have her support payments reinstated to $11,180 a month, plus a lump sum of $500,000.


Last year, her former husband succeeded in having her claim thrown out of court without a trial. The judge based her ruling on precedents that barred courts from changing orders that terminated or denied support payments.


But in a unanimous decision yesterday, a five-judge panel of the Ontario Court of Appeal overturned that long-standing law. The court ruled that judges now have the power to change court orders that dismiss claims for spousal support, effectively expanding the ability of divorced spouses to return to court to seek payments.


The decision means divorced people in Ontario, who were unsuccessful in their bid for spousal support, can now try to have the decision changed. According to some legal experts, the decision also opens the door to the prospect of court battles years or even decades after a marriage breakdown.


It "means there is really no finality," said Toronto family law lawyer Stephen Grant.


"Now, a court dismisses your claim, circumstances worsen, 20 years go by and you can come back and have another kick at the can," he said yesterday.


"It does give `till death do us part' new meaning."


In its decision yesterday, the court reversed two of its own rulings from the past 19 years, which said judicial orders terminating or denying spousal support couldn't be varied. A court's ability to change orders had been limited to those in which support had been awarded or there had been no decision either way.


A philosophical shift in the theory of support payments and new language in the federal Divorce Act supports a change, said Justice Susan Lang, writing for the court.


Thirty-five years ago, the Divorce Act promoted the idea that divorce should be a "clean break" and that former spouses should not be forever liable to each other. It now recognizes that the consequences of a marriage breakdown can't always be seen at the time of divorce and that support payments should be tailored to the circumstances of each case, Lang said.


The most recent version of the legislation also says explicitly that, in certain circumstances, courts can change spousal support orders, including those that minimized payments to a spouse in order to ensure support for a child, she said.


The changes suggest that Parliament intended to give spouses, like the children of divorce, the ability to "move in and out of a support regime," Lang said, writing for a court that included Justices Stephen Goudge, Stephen Borins, Kathryn Feldman and Russell Juriansz.


Yesterday's decision means Tierney-Hynes, who, according to an affidavit, had taken in boarders to make ends meet and mortgaged her house to pay her legal costs, can now ask a judge to have her payments reinstated.


Her lawyer, Esther Lenkinski, said the ruling does away with "outdated" legal principles that guided the court's earlier decisions and left no room to deal with a spouse's changing financial circumstances.


"I'm really delighted," she said.


But while the court's decision may well be based on a "statutorily correct" interpretation of the Divorce Act, "it is a distressing development for those parties who would like to see an end to their disputes," said Grant.


Philip Epstein, a Toronto family law lawyer who represented Dr. Adrian Hynes, said it will deter some people from making lump-sum settlements to their ex-spouse in exchange from being released from an obligation to make support payments.


The court's two previous rulings, known as the Cotter and McCowan cases, were powerful negotiating devices that lawyers could use to discourage an opposing spouse from going to court with a support claim, since losing would bar them from returning again.


Now, rather than negotiating a lump sum settlement, divorcing spouses may end up in court, he said.


"I think it will lead to more litigation," Epstein said yesterday. "How much more is hard to say."


There are conflicting views on whether the ruling will lead to a stampede of ex-spouses claiming support payments.


Lang said it doesn't follow from the decision that "the proverbial `floodgates' will open."


Those seeking support will have to prove they have a meritorious claim, she said, and the possibility of having to pay the other side's costs in the event of a loss will discourage frivolous claims.


"They would primarily have to show there has been a change of circumstances, not contemplated at the time the claim was dismissed," said Epstein, "and there will have to be a change of circumstances that are quite unusual and not foreseeable."


"That category is not closed and will depend on the ingenuity of counsel."