Law Times

PAGE 6 u EDITORIAL OBITER By Glenn Kauth Trust key to First Nations reforms A s the federal government and First Nations lead- ers proclaimed their wish to reset the relationship between the Crown and aboriginals in Canada last week, there was predictable criticism about the lack of concrete action. The five priorities agreed to, including declarations about remov- ing barriers that hinder First Nations governance, are hardly a sign of the radical change many people want to see. Certainly, they're not going to address the long-standing demand to scrap the Indian Act. Instead, the meeting offers the promise of incremental change. That might be disappointing, but given past efforts at more significant reforms, last week's resolutions were probably the most we could realistically expect. In 2002, the former Liberal government failed in its attempt at reform through the first nations governance act. Among other things, the act would have required bands to develop clear rules on how they spend their money. First Nations leaders fought back, saying the proposal went against the notion of self- government and involved little consultation with them. There's a difficult contradiction in the issue given that, on the one hand, First Nations leaders quite legitimately say the real prob- lem is the lack of federal funding for basic services. But while calling for more funding, they insist on the notion of self-government as a barrier to being more accountable and transparent to the fed- eral government in how they handle those funds. The government, meanwhile, isn't willing to hand over cash without accountability. The result is inertia. That's a big part of the reason why we case clarifi ed the test to use in a variation ap- plication under s. 17 of the Divorce Act. Th e parties in L.M.P. were married in I 1988 and separated some 14 years later. Shortly aſt er the marriage, the wife was di- agnosed with multiple sclerosis. She didn't work during the marriage. In fact, the hus- band gave statements and information to various benefi t providers attesting to his wife's inability to work in order to facilitate her receipt of benefi ts. Aſt er the parties separated in 2002, they entered into a comprehensive separa- tion agreement that provided for a month- ly spousal support payment of $3,688 that was indexed with no review or termina- tion date. In 2003, they obtained an order for divorce that incorporated the support provisions of the separation agreement. In 2007, the husband and the respon- dent, L.S., brought a variation proceeding under s. 17 of the act. Th e trial judge reduced the wife's support and then terminated it ef- fective in 2010. Th e judge made no fi ndings as to whether there was in fact a material change warranting a variation. Law Times LT Masthead.indd 1 L.M.P. t was certainly a happy holiday season this past December for the former wife and appellant in the Supreme Court of Canada's recent case of L.M.P. v. L.S. Th e Th e wife then appealed. Th e Quebec Court of Appeal found that there had been a material change in circumstances. Th at change was the fact that the wife could work yet hadn't made any eff ort to do so. Th e court re- versed the incremental decrease in support but affi rmed the de- cision to terminate it in 2010. Th e wife appealed further. Family Law once there has been an order under the act, even if it's simply a consent order incorporating the terms of a prior separation agreement without actual fi nd- ings by a court, the only question we're interested in is whether there has been a material change in circumstances. Simply put, when seeking to Th e thrust of the issues before the top court was the approach to take on a variation applica- tion under s. 17 and, specifi - cally, to what extent it ought to consider the parties' separation agreement and its over- all compliance with the objectives of the act. Due to earlier comments by the court in Miglin v. Miglin, there was a belief that whether or not the proceeding was for a variation under s. 17 or it was for an ini- tial order under s. 15.2 of the act, the ulti- mate decision needed to comply with the overall objectives of the legislation. Th at included all of the elements under s. 15.2 that would require having regard to the terms of the parties' separation agreement. But what we now have with L.M.P. is an indication from the Supreme Court that Marta Siemiarczuk vary an order under s. 17, the test is limited to whether there has been a material change since making it. Th is, the court con- fi rmed, is a change that couldn't be or wasn't reasonably foreseeable at the time of the agreement and subsequent order. Clearly, there's much more need for cau- tion now in negotiating and draſt ing support provisions, including the recitals upon which the parties base the support agreement. Using this case as an example, a clause re- lated to self-suffi ciency or the best eff orts to obtain employment may have been a catalyst for the court's fi ndings to go in a diff erent di- rection on the question of a material change. Additionally, had the parties not incorporat- ed the support terms of the agreement into the divorce order, the respondent could have had resort to the broader scope of the s. 15.2 Thomson Reuters Canada Ltd. One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON • M1T 3V4 Tel: 905-841-6481 • Fax: 647-288-5418 • www.lawtimesnews.com Group Publisher ................... Karen Lorimer Editorial Director ................... Gail J. Cohen Editor .............................. Glenn Kauth Staff Writer ....................... Kendyl Sebesta Staff Writer ................... Michael McKiernan Copy Editor ..................... Katia Caporiccio CaseLaw Editor .................. Adela Rodriguez Art Director .......................Alicia Adamson Account Co-ordinator ............... Catherine Giles Electronic Production Specialist ........Derek Welford Advertising Sales ............... Kimberlee Pascoe Sales Co-ordinator ................... Sandy Shutt ©2012 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without writ- ten permission. The opinions expressed in articles are not necessarily those of the pub- lisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any war- ranty as to the accuracy, completeness or cur- rency of the contents of this publication and disclaims all liability in respect of the results of Law Times is printed on newsprint containing 25-30 per cent post- consumer recycled materials. Please recycle this newspaper. any action taken or not taken in reliance upon information in this publication. Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd., 2075 Kennedy Rd., Toronto, ON, M1T 3V4 • 905-841-6481 clb.lteditor@thomsonreuters.com CIRCULATIONS & SUBSCRIPTIONS $175.00 + HST per year in Canada (HST Reg. #R121351134) and US$265.00 for foreign addresses. Single copies are $4.00 Circulation www.lawtimesnews.com 1/18/12 9:47 AM analysis. Th at would have allowed the court to truly consider the wife's actual ability to obtain some form of employment aſt er con- sidering the circumstances of the marriage. Ultimately, if there's any question as to whether a client may need to later review the terms of an agreement, we should be advis- ing against incorporating the support terms into consent divorce orders and vice versa. Finally, notwithstanding the clear direc- tion that we don't have regard to the terms of agreements in conducting the s. 17 analysis, the recitals related to the issue of support can still be a relevant component of a future re- view as, according to L.M.P., they'll assist the court in a determination of what was within the contemplation of the parties. Th at, how- ever, seems to be the limit placed on when a court can look at the agreement under s. 17. Ultimately, it appears the decision may complicate the negotiation of agreements. However, as with any new guidance from the top court, we have yet to see if that's the case. LT Marta Siemiarczuk is a lawyer practising family law litigation and collaborative family law at Nelligan O'Brien Payne LLP in Otta- wa. She can be reached at marta.siemiarczuk @nelligan.ca. inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times One Corpo- rate Plaza, 2075 Kennedy Rd. Toronto ON, M1T 3V4. Return postage guaranteed. Contact Ellen Alstein at ............416-649-9926 or fax: 905-841-6786 ellen.alstein@thomsonreuters.com ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 2075 Kennedy Rd., Toronto, ON, M1T 3V4 or call: Karen Lorimer ....................................647-288-8018 karen.lorimer@thomsonreuters.com Kimberlee Pascoe ..............................416-649-8875 kimberlee.pascoe@thomsonreuters.com Sandy Shutt ...... sandra.shutt@thomsonreuters.com see repeated meetings and events decrying the poor living conditions on reserves with few signs of real prog- ress. Given the conundrum, then, incremental change is probably the most realistic scenario. The goal should be achievable reforms that build trust and ultimately pave the way for a broader transformation. Beyond last week's priorities, it's perhaps wise for the government and First Nations to choose one area — edu- cation is an obvious example — to make a serious effort at fixing the problems. It's clear that the government has to provide more money to bring reserve funding for education on par with other school systems. On the question of accountability, Assembly of First Nations National C hief Shawn Atleo has already shown openness to changes such as having a First Nations auditor general. Having such a person initially assigned to the specific task of monitoring progress in educational stan- dards and financial accountability would be a great way to build the trust necessary for more significant reforms. — Glenn Kauth COMMENT January 30, 2012 • Law Times changes landscape for support agreements

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