J. Q.B. A.D. 1992 No. 04166 J.C.P.A. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF PRINCE ALBERT BETWEEN: CHERYL MAE KATCHUR (previously Cheryl Mae Oystryk) APPLICANT (RESPONDENT) and LESLIE MICHAEL OYSTRYK RESPONDENT (PETITIONER) G. Chovin for the applicant A. Logue for the respondent FIAT NOBLE J. May 28, 1998 [1] The parties were married May 5, 1973 and separated January 4, 1992. The husband petitioned for divorce and other corollary relief on June 19, 1992. The wife (applicant herein) counter-petitioned on March 22, 1993 and included in her claim "lump sum and periodic spousal support". [2] The matter proceeded from there and it is apparent that the parties negotiated settlement of all of the outstanding issues in the dispute including divorce, custody of the children, division of matrimonial property, and spousal support payable by the husband to the applicant. AnInterspousal Contract dated July 21, 1993 was entered into bythe parties which includes the following provisions relevantto this dispute: 1. In the preamble the agreement reads: D. The Parties to this agreement wish to divide their marital property and settle the outstanding issues between them. 2. Paragraph 12 which reads: The Husband, Leslie Oystryk, shall pay tothe Wife, Cheryl Oystryk, periodic spousalsupport in the sum of $350.00 per monthcommencing on the 1st day of January, 1993and continuing on the 1st day of each andevery month thereafter until the 31st dayof December, 1995 inclusive. In the event of the death of the Leslie Oystryk prior to conclusion of his obligation to pay spousal support herein, then the Parties hereby agree that the said obligation shall be chargeable to and payable by the estate of Leslie Oystryk. [3] The parties both acknowledged that they were aware of the nature and effect of the Interspousal Contract and each had independent legal advice before the agreement was signed. [4] Subsequently, the clause with respect to spousal support above noted was incorporated, apparently by consent of the parties, into the judgment of the Court which was dated November 26, 1993. [5] It appears from the material that the husband paid the applicant the periodical spousal support of $350.00 month up to and including the 31st day of December, 1995 in accordance with the terms of the order. [6] On March 13, 1998, the applicant launched thisapplication to vary the order for spousal maintenance ofNovember 26, 1993 on the grounds that there has been a changein circumstances in that the applicant's annual income iscurrently less than half of what it was at the time the orderwas made and that the applicant's economic hardship can betraced to the breakdown of her marriage to the respondent dueprimarily to the fact that his job required him to move fromplace to place during the years of the marriage and thisprevented her from entering the work place or furthering hereducation to upgrade her skills and confined her to the roleof homemaker and/or housewife during that period of time. In addition, although the applicant following the separation did obtain some training as special care aide she alleges that she is unable to maintain her income at the level it was when the separation took place. By her own affidavit, she swears that her income from 1994 through 1998 (up to March) has been as follows: 1994 $20,662.00 1995 $26,847.37 1996 $11,329.04 1997 8,425.59 1998 (to the month of March) $223.10 [7] The applicant further contends that she has done everything possible to become self-sufficient and that her inability to successfully increase her income has caused her to become overstressed and ill. She relates this back to the circumstances of her marriage before the separation saying that because of the nature of the marriage she was in effect unable to acquire the skills that she would need once the marriage broke up. [8] It appears that the two children of the marriage are now of an age where they are not factor that the Court need take into account with respect to the applicant's motion. [9] The application is brought pursuant to section 17(4) and s. 17(7)(c)(d). Essentially these sections authorize the Court to vary an order of spousal support where there has been change in the condition, means, needs or other circumstances of one of the spouses. Subsection suggests that the Court should take into account any economic disadvantages to one of the spouses arising from the marriage or its breakdown, that it should relieve any economic hardship of spouse arising from the breakdown of the marriage and so far as is practicable promote the economic self-sufficiency of each spouse within reasonable period of time. [10] Against that background the applicant seeks an order not only restoring the spousal support previously ordered but increasing it over and above the $350.00 per month originally prescribed and making such support payable until further order of the court. [11] Counsel for the respondent husband takes the position that the applicant has failed to prove that she is no longer self-sufficient particularly since there is no independent evidence (such as medical evidence) which would suggest that she cannot pursue employment or career that would earn her living due to illness whether it be physical or stress related. In addition, counsel points out that in December of 1995, the applicant brought similar variation application (which is confirmed by reading of the file) even though she earned in excess of $25,000.00 in 1995. That application does not appear to have proceeded but the arguments in the material filed are much the same as those that are before the Court on this occasion and include the contention of the applicant that she found it necessary to work long hours and adopt heavy work schedule from which she became stressed and ill, suffered from exhaustion and anxiety. The file indicates that that application was struck from the list in February of 1996. The applicant has waited two years before pursuing the variation of the spousal maintenance order [12] was referred to the case of Gessner v. Gessner (1996), 1996 CanLII 6848 (SK QB), 150 Sask. R. 298 (Sask. Q.B.) decision of my colleague Gunn J., where the minutes of settlement relating to the divorce proceedings contained provision that the husband would pay to the wife $550.00 per month spousal maintenance on an open-ended basis. The first application to vary made by the husband came before Malone J. who concluded that the agreement was meant to be open ended and he refused to vary it. Subsequent applications were made to Grotsky J. and McLellan J. but the result was the same. In the application to McLellan J. he relied on the decision in Masters v. Masters (1990), 1990 CanLII 7490 (SK QB), 82 Sask. R. 190 (Sask. Q.B.) (also decision of Malone J.) in which the order of the Court called upon the petitioner husband to pay to the respondent the sum of $700.00 per month until the respondent should remarry or die whichever shall first occur or until further order. This order reflected the wording of separation agreement the parties had entered into before the matter got before the Court. Malone J. held that when the husband applied to vary the order that the application must be dismissed because as he said, quoting from the decision in Gessner, supra, at page 302: "Furthermore, the agreement was worded in such manner that it is obvious it was intended by the parties to be final settlement of their obligations to each other. The decision of Malone J. in Masters went all the way to the Supreme Court of Canada where it was upheld. [13] It is apparent from Gunn J.'s review of the Masters decision that Malone J. was influenced by the so called trilogy of cases in the Supreme Court of Canada (Pelech v. Pelech, 1987 CanLII 57 (SCC), [1987] S.C.R. 801; 1987 CanLII 57 (SCC), [1987] W.W.R. 481; 1987 CanLII 57 (SCC), 76 N.R. 81; 1987 CanLII 57 (SCC), R.F.L. (3d) 225; 1987 CanLII 57 (SCC), 38 D.L.R. (4th) 641; Richardson v. Richardson, 1987 CanLII 58 (SCC), [1987] S.C.R. 857; 1987 CanLII 58 (SCC), 77 N.R. 1; 1987 CanLII 58 (SCC), 22 O.A.C. 1; R.F.L. (3d) 304; 1987 CanLII 58 (SCC), 38 D.L.R. (4th) 699; Caron v. Caron, [1987] S.C.R. 892; [1987] W.W.R. 552; 1987 CanLII 59 (SCC), 75 N.R. 36; 1987 CanLII 59 (SCC), Y.R. 246; R.F.L. (3d) 274; 1987 CanLII 59 (SCC), 38 D.L.R. (4th) 735) and in particular the comments of the Court in Pelech: "It seems to me that where the parties have negotiated their own agreement, freely and on the advice of independent counsel, as to how their financial affairs should be settled on the breakdown of their marriage, and the agreement is not unconscionable in the substantive law sense, it should be respected. People should be encouraged to take responsibility for their own lives and their own decisions. This should be the overriding policy consideration." [14] In light of the position that Malone J. took in the Masters case Gunn J. found that the agreement in the Gessner case was intended to be final and since there was no unforseen or radical change in the circumstances that had been demonstrated the application was dismissed. [15] While this application is by the wife to restore previously expired spousal maintenance order and differs from most of the cases where variation is usually applied for by the husband as opposed to the female spouse it seems to me the principles are just as applicable albeit in the reverse situation. While it is true the income of the applicant herehas dropped I agree with the respondent's counsel that she hasnot established that she cannot be self-sufficient. During at least some of the years since the separation she has been very self-sufficient and if she has fallen upon hard days of late, while it is regrettable, the terms of the agreement which limited the payment of spousal support to the 31st of December, 1995 appear applicable. There is no suggestion thatthe agreement was unfairly negotiated or that she wassubjected to undue influence or pressure in any way beforesigning the agreement and was, in fact, advised by counselbefore doing so. I am left with the conclusion that theagreement with respect to spousal maintenance was intended tobe final. In light of those conclusions, I have noalternative but to dismiss the application. [16] The respondent is seeking costs of the application but in my view while the applicant has failed to make out her case this is not an instance where costs should be granted and decline to do so. Each party shall pay their own costs.
FIAT. The parties were married in 1973 and separated in 1992. The husband petitioned for divorce and corollary relief in 1992. The wife counter-petitioned in 1993 claiming a 'lump sum and periodic spousal support'. An interspousal contract entered into 1993 provided for periodic monthly spousal support of $350. Both acknowledged that they were aware of the nature and effect of the agreement and each had independent legal advice before signing. The husband paid periodic spousal support until December 1995. The applicant sought to vary the 1993 order on the grounds there had been a change in circumstances in that her annual income was currently less than half of what it had been at the time the order was made and her economic hardship could be traced to the breakdown of her marriage primarily because his job had required them to move from place to place during the marriage. HELD: The application was dismissed. 1)The agreement was intended to be final. While the applicant's income had dropped she had not established that she could not be self-sufficient. The terms of the agreement which limited the payment of spousal support to December 1995 appeared to be applicable. The applicant had previously brought a similar variation application even though she earned in excess of $25,000 in 1995. 2)There was no suggestion that the agreement was unfairly negotiated or that she was subjected to undue influence or pressure in any way prior to signing and she had been advised by counsel.  3)Costs sought by the respondent were refused.