Pelech+c.+Pelech


 * Pelech v. Pelech**

1987 SCC


 * Facts:**
 * Parties divorced in 1969. Appellant ex-wife agreed to accept payment of lump sum maintenance agreement over thirteen months, and agreed that this would fully satisfy all future maintenance claims.
 * During the years following the divorce, the appellant's mental and physical health deteriorated. She was unable to work and forced to live on her maintenance fund. In 1982, the fund was deteriorated and she was on welfare.
 * Notwithstanding the agreement, she applied to have a variation of the maintenance order under s.11(1) of the Divorce Act (DA). The trial level allowed the application, but it was reversed on appeal.

(1) Does the Court of Appeal have the jurisdiction to review orders made under s. 11 of the DA? Does the SCC have jurisdiction to entertain appeals from such orders made at the lower courts? (2) What is the effect of a valid and enforceable settlement agreement on the court's discretionary power under s.11(2) of the DA to vary maintenance orders?
 * Issue:**


 * Held:** Appeal dismissed. (1) Yes, (2) The court's supervisory jurisdiction over a spouse's maintenance cannot be extinguished by contract. However, where the spouses have freely negotiated a contract, the agreement should be respected unless it is unconscionable in the substantive law sense. It is only where there is future misfortune, arising from the fact of the marriage, should the court be able to override the agreement.

__(1) Does the Court of Appeal have the jurisdiction to review orders made under s. 11 of the DA? Does the SCC have jurisdiction to entertain appeals from such orders made at the lower courts?__ __(2) What is the effect of a valid and enforceable settlement agreement on the court's discretionary power under s.11(2) of the DA to vary maintenance orders?__ La Forest:
 * Reasoning:**
 * S.17(2) DA does not confer on courts the power to review discretionary decisions made by lower courts. The Court of Appeal can only interfere where the trial judge's reasons disclosed material error. The case cannot be decided anew upon appeal.
 * However, the criteria for the exercise of judicial discretion is a legal criteria, and as such, its non-application and misapplication raises a question of law. The question of law grounds the Court of Appeal's and, upon further appeal, the SCC's jurisdiction to vary a lower court's application of discretion.
 * The SCC has jurisdiction under s.18 DA and, where not in conflict with the DA, s.41(1) of the Supreme Court Act.
 * WILSON J.:**
 * The court's supervisory jurisdiction over a spouse's maintenance cannot be extinguished by contract. However, where the spouses have freely negotiated a contract, the agreement should be respected unless it is unconscionable in the substantive law sense. It is only where there is future misfortune, arising from the fact of the marriage, should the court be able to override the agreement.
 * The court may exercise its s.15(2) DA power to vary a maintenance order where the applicant establishes that she has suffered a radical change in circumstances flowing from an economic pattern of dependency within the marriage.
 * In the case at bar, no link was found between the new misfortune (i.e., change in circumstances of the appellant) and the former marriage. Therefore, the maintenance order should stand.
 * Where the parties have attempted to finally settle their financial situation in a court, and the judge found that order to be "fit and just" under s.11(1) DA, the arrangement must be respected in the absence of the most congent reasons.
 * There are exceptional cases, beyond those of unconscionability in the technical sense, where a variation will be justified. The judge will not so much consider the material change in circumstances since the original agreement was made, but the circumstances arising around the time the original order was made (I.e., misrepresentation, duress, undue influence, etc?).
 * In the case at bar, agreement with DIckson. And finds, "The obligation to support her in such a case is on the public."

(1) Judicial discretion under s. 11(1) DA may be reviewed by the Court of Appeal and SCC as a matter of law. (2) The court's supervisory jurisdiction over a spouse's maintenance cannot be extinguished by contract. However, where the spouses have freely negotiated a contract, the agreement should be respected unless it is unconscionable. It is only where there is future misfortune, arising from the fact of the marriage, should the court be able to override the agreement.
 * Ratio:**