Emerging Trends in Spousal Support – Part I

Based upon a presentation made to “Fathers Are Capable Too”

on Tuesday, 1 May 2001

PART I

[IMPORTANT NOTE JUNE 23, 2004: Later in this paper, I will discuss the Miglin case from the Ontario Court of Appeal. The decision in Miglin was overturned on appeal to the Supreme Court of Canada in 2003. In 2004, the Supreme Court of Canada released its decision in Hartshorne. The cumulative effect of both decisions (Miglin re spousal support in the context of separation agreements and Hartshorne re property settlements in the context of marriage contracts) is to give much more primacy to the importance of a written agreement, freely negotiated between the two sides.]

INTRODUCTION

Righting society’s ‘wrongs’

Since the 1993 Supreme Court of Canada (SCC) decision in Moge v. Moge, we have seen an ever-increasing climate where the economic realities of separation and divorce appear to be disregarded. The issue of spousal support has become riddled with the politics of political correctness, that is – feminist political correctness. While the feminist movement has done much to rectify historical inequalities between the genders, the discourse has now escalated. The economic interests of the now reconstructed family unit have been sacrificed in favour of a wealth transfer from men to women. This may favour women in the short run but it surely will result in harm to children overall and contribute to the ever increasing alienation of men. “Wealth transfer” really is not a proper term for it implies that men are generally rich and women are generally poor and this is not always the reality. Rather, separation and divorce tends to impoverish all concerned to varying degrees. Family law assumes that women are the ones who are impoverished. Judges are seeking to rectify this state of affairs. The result is that the courts have often moved away from doing equity and fairness in the individual case in favour of righting the perceived wrongs of society in general. The net result is that it is very difficult to be a man and expect to be treated in an entirely evenhanded manner by the courts when it comes to an issue such as spousal support.

Sources of the problem

It is not that judges are bad and are trying to be unfair to men. Most of the judges I know are very decent, dedicated and hard working individuals and would undoubtedly see themselves as dispensing justice in a fair and equitable manner. I suggest that the problems we face now in family law are the result of two very significant social trends: 1. The legal education system is decidedly feminist in approach. Many judges are simply products of that system. 2. Society is permeated with myths and stereotypes about men and the effects of separation and divorce. The decisions that judges make are simply are a reflection of those myths and stereotypes. The advice that lawyers give are likewise based upon the myths and stereotypes and how those values are likely to be reflected in court decisions.

This paper is not going to focus on those myths and stereotypes although an appreciation of that issue would help us to understand why the law of spousal support is developing the way it is. Rather, I am going to attempt to provide you with an understanding of the main principles of spousal support since 1993, how those developments affect men, how those developments affect the freedom to privately contract into or out of the spousal support obligation, and what steps I feel men need to take in order to bring some balance and sanity back into family law. I will be referring to a number of cases that have been decided recently; by the conclusion of this talk you will all be experts in the law of spousal support!

Death of contract

I believe that the Ontario Court of Appeal has recently confirmed, in the case of Miglin v. Miglin, what other cases have been telling us lately – the law has all but taken away the freedom to privately contract with respect to rights and responsibilities relating to spousal support. This spells the death knell of marriage contracts, cohabitation agreements and separation agreements, at least as they apply to spousal support.

ISSUES TO BE ADDRESSED AT ONE POINT OR ANOTHER

1. Where there is no pre-existing court order or contract that addresses spousal support.
2. Where there is a pre-existing court order that addresses spousal support.
3. Where there is a pre-existing contract that addresses spousal support.
4. When is enough, enough?
5. How much?
6. How long?
7. Suggestions for further action.

GENERAL STATUTORY PRINCIPLES OF SPOUSAL SUPPORT

Consider the situation where there is a first application for support under Divorce Act (examine statutory provisions): [Click here for a reproduction of the main provisions addressing the issue of spousal support]

• S. 2: Spouse?
• S. 15.2 (4) Liability for support
  • § Consider the current position of each spouse: Condition, means, needs and other circumstances of each spouse
  • § Consider the past relationship of the spouses: duration of relationship, functions performed during cohabitation
  • § Consider previous orders and agreements re spousal support. Did you do something foolish already? [See sub ( c )]
  • § S. 15.2 (5) Conduct should not matter but it often does anyways.
  • § S. 15.2 (6)(a) “economic advantages or disadvantages”: used to argue liability
  • § No one factor in 15.2(4) and 15.2(6) should be predominant although the courts have given varying amounts of emphasis on different factors at different times – eg. Economic self-sufficiency was big in the late 80’s.

• S. 15.2 (6) Assuming spousal support to be ordered, then consider the four economic or financial objectives of spousal support.
• S. 15.3 Child support takes precedence.

Is there a way to prevent a spousal support order from being granted?

• Probably not given the current climate, but try McCowan v. McCowan (1995), 14 R.F.L. (4^th) 325 (Ont. C.A.) and Cotter v. Cotter (1986), 2 R.F.L. (3d) 124, 53 O.R. (2d) 449, 13 O.A.C. 81, 25 D.L.R. (4th) 221 (Ont. C.A.): If a spousal support claim is dismissed on the merits, then it might be beyond the jurisdiction of the court to open up the issue later. However, for a case where the court proceeded to grant a “non-compensatory” interim spousal support order under the Divorce Act after the ex-wife’s support claim under the Family Law Act had been dismissed at trial and the dismissal upheld in 2000 by the Ontario Court of Appeal, see: Radcliff v. Radcliff, [2001] O.J. No. 1195 (Ont. S.C.J. per Kurisko, J., decision dated 9 March 2001)

Consider where one side wants to change the order later.

• S. 17(1) You can come back and change the order (even backdate it) if you like.
• S. 17(4.1) Before a court can simply change the order, there has to be a “change in the condition, means, needs or circumstances of either former spouse” since the date of the last order. If there is such a “change”, then the court has to “take that change into consideration”. But watch out! Once you’re in, you’re in and all those factors re the economic or financial objectives of spousal support discussed above will apply. See s. 17(7).
• Time limited orders in first instance allegedly have a further hurdle to get over as per s. 17 (10) but it might not mean too much in practice.

THE CASE AUTHORITIES FRAMEWORK FOR GENERAL SPOUSAL SUPPORT PRINCIPLES

Factual frameworks that have found their way to S.C.C. are not particularly helpful for spouses who are the ones that have to pay. (An aside: That is why constitutional challenges that I have heard about are ill advised. You need a good factual framework if you want the court to expound general principles that will help all support payors.)

• Moge v. Moge, [1993] 1 W.W.R. 481, (1992) 43 R.F.L. (3d) 345, 145 N.R. 1, 81 Man. R. (2d) 161, 30 W.A.C. 161, [1992] 3 S.C.R. 813, 99 D.L.R. (4th) 456 (S.C.C.)
  • Moge was a variation case but has been cited across the board for general principles pertaining to spousal support.
  • Facts: Long term marriage from the 50’s; wife with grade 8 education; raised three children; did household chores; worked six hours a night cleaning offices to supplement husband’s income; husband a welder; wife awarded $150 monthly on 1973 separation for self and three kids; wife worked as hotel room cleaner after divorce to 1987 and then worked part time to 1989 cleaning; lower court terminated support in 1989 and the court of appeal overturned this and awarded wife spousal support of $150 monthly, indefinite; SCC sustained the court of appeal.
  • Compensation: This case conceptualizes spousal support around the idea of “compensation” (although later cases tell us that “compensation” is certainly not the only basis for spousal support).
    • § This means we look at the impact of the relationship and the roles assumed by the spouses during the marriage. The focus of the analysis therefore becomes: How do these factors affect each spouse’s future ability to earn income?

  • Earlier SCC “trilogy” cases (Pelech, Richardson, Caron) dealing with issue of spousal support in the face of a contract do not apply to other applications for spousal support. [paragraph 27 et seq.]
  • Self-sufficiency: The SCC rejects the view that self-sufficiency is the only model for spousal support. This conclusion is correct, as self-sufficiency is but one factor mentioned in the Divorce Act. However, on the route to reaching this conclusion, the court relied heavily upon faulty social science literature that to this day severely prejudices the position of men.
  • From Justice L’Heureux-Dube’s reasons (Colman’s emphasis added):
    

    56 That Parliament could not have meant to institutionalize the ethos of deemed self-sufficiency is also apparent from an examination of the social context in which support orders are made. In Canada, the feminization of poverty is an entrenched social phenomenon. Between 1971 and 1986 the percentage of poor women found among all women in this country more than doubled. During the same period the percentage of poor among all men climbed by 24 per cent. The results were such that by 1986, 16 per cent of all women in this country were considered poor: M. Gunderson, L. Muszynski and J. Keck, Women and Labour Market Poverty (1990), at p. 8.

    57 Given the multiplicity of economic barriers women face in society, decline into poverty cannot be attributed entirely to the financial burdens arising from the dissolution of marriage: J.D. Payne, “The Dichotomy between Family Law and Family Crises on Marriage Breakdown” (1989), 20 R.G.D. 109, at pp. 116–17. However, there is no doubt that divorce and its economic effects are playing a role. Several years ago, L.J. Weitzman released her landmark study on divorce, The Divorce Revolution: The Unexpected Social and Economic Consequences for Women and Children in America (1985), and concluded at p. 323:

    For most women and children, divorce means precipitous downward mobility — both economically and socially. The reduction in income brings residential moves and inferior housing, drastically diminished or nonexistent funds for recreation and leisure, and intense pressures due to inadequate time and money. Financial hardships in turn cause social dislocation and a loss of familiar networks for emotional support and social services, and intensify the psychological stress for women and children alike. On a societal level, divorce increases female and child poverty and creates an ever-widening gap between the economic well-being of divorced men, on the one hand, and their children and former wives on the other.

    (See also J.B. McLindon, “Separate But Unequal: The Economic Disaster of Divorce for Women and Children” (1987), 21 Fam. L.Q. 351.)

    58 The picture in Canada seems to follow a similar pattern. In the federal Department of Justice (Bureau of Review), Evaluation of the Divorce Act — Phase II: Monitoring and Evaluation (1990), it was found, based on client interviews that, following divorce, 59 per cent of women and children surveyed fell below the poverty line, a figure that dropped to 46 per cent when support was included in the calculation of their incomes (see pp. 92–93). However, a more realistic picture, as it is not restricted to the more affluent segment of the divorcing public, is probably revealed by an analysis of court files, which determined that in 1988, overall two-thirds of divorced women had total incomes which placed them below the poverty line. When support was excluded, 74 per cent of divorced women fell below the poverty line (see pp. 94–95). It is apparent that support payments, even assuming they are paid, are making only a marginal contribution to reducing economic hardship among women following divorce. In contrast, a previous study released in 1986, Evaluation of the Divorce Act — Phase I: Monitoring and Evaluation, found that only 10 per cent of men were below the poverty line after paying support, and the average income was $13,500 above the poverty line in such one-person households after the payment of support.

    59 Other studies confirm the trend. According to Statistics Canada, “Alimony and child support,” in Perspectives on Labour and Income (Summer 1992), p. 8, at p. 18, the per capita income of those paying support in 1988 was $25,800 while the per capita income of those receiving it in the same year was $10,500.

    60 An examination of the economic position of single mothers is also useful in assessing the effects of dissolution of marriage since about 30 per cent of single mothers are divorced: Statistics Canada, Women in Canada: A Statistical Report, 2nd ed. (1990), at p. 16. In 1987, 57 per cent of single mothers lived below the poverty line: National Council of Welfare, Women and Poverty Revisited (1990), at p. 58. Gunderson, Muszynski and Keck report a figure of 44.1 per cent in 1986 (p. 18). (See also Statistics Canada, “Work and Relative Poverty,” in Perspectives on Labour and Income (Summer 1990), p. 32).

    61 Reports such as these have led many Canadian commentators to draw direct links between female poverty and the financial consequences of the dissolution of marriage. While M. Eichler emphasizes the limits of family law in addressing poverty in “The Limits of Family Law Reform or, The Privatization of Female and Child Poverty” (1990–91), 7 C.F.L.Q. 59, she recognizes that family law nevertheless has a role to play in alleviating poverty for single mothers when she writes at p. 60:

    What are the consequences of divorce for women, men and children, besides emotional pain? They are very different. Men tend to maintain the standard of living they had before the divorce, while women and children sink into instant poverty.

    (See also E.D. Pask and M.L. McCall, “How Much and Why? An Overview” (1989), 5 C.F.L.Q. 129, at pp. 139–40.)

    62 Findings in the Report of the Social Assistance Review Committee, Transitions (1988), show that support can be a significant factor in alleviating some of these negative economic effects. The report notes that recipients of social assistance who receive support payments are more likely to leave the programme than those who do not and that the length of time a recipient receives social assistance is inversely proportional to the total amount of support received. At p. 44, the report states:

    The nearly 50% of single parents receiving [family benefit allowance] who receive no support payments at all averaged between 3.5 and 4 years in the program. The 11% receiving between $10 and $100 per month averaged 2.5 to 3 years, while those receiving between $100 and $200 per month averaged 2 to 2.5 years. Finally, the mere 6% receiving in excess of $200 per month averaged less than 2 years in the program.

    These socio-economic observations in my view support the objectives set out in the Act in as much as they provide background information useful in determining the intent of the legislators should that intent ever be in doubt.

    63 As Lamer C.J.C. stated in R. v. Multiform Manufacturing Co., [1990] 2 S.C.R. 624, 113 N.R. 373, 32 Q.A.C. 241, 1 C.B.R. (3d) 290, 58 C.C.C. (3d) 257, 79 C.R. (3d) 390, at p. 630 [S.C.R.], “when the courts are called upon to interpret a statute, their task is to discover the intention of Parliament.” It is also axiomatic of statutory interpretation that Parliament must be taken as being aware of the social and historical context in which it makes its intention known: P.-A. Côté, The Interpretation of Legislation in Canada, 2nd ed. (1992), at p. 346.

    64 It would be perverse in the extreme to assume that Parliament’s intention in enacting the Act was to financially penalize women in this country. And, while it would undeniably be simplistic to identify the deemed self-sufficiency model of spousal support as the sole cause of the female decline into poverty, based on the review of the jurisprudence and statistical data set out in these reasons, it is clear that the model has disenfranchised many women in the courtroom and countless others who may simply have decided not to request support in anticipation of their remote chances of success. The theory, therefore, at a minimum, is contributing to the problem. I am in agreement with Professor Baily, at p. 633 that:

    The test is being applied to create a clean break between the spouses before the conditions of self-sufficiency for the dependent partner have been met, and will undoubtedly cause an increase in the widespread poverty (at least relative poverty) of women and children of failed unions … [emphasis added]

    65 In the result, I am respectfully of the view that the support model of self-sufficiency which Mr. Moge urges the court to apply, cannot be supported as a matter of statutory interpretation, considering in particular the diversity of objectives set out in the Act.

    92 Based upon the studies which I have cited earlier in these reasons, the general economic impact of divorce on women is a phenomenon the existence of which cannot reasonably be questioned and should be amenable to judicial notice. More extensive social science data are also appearing. Such studies are beginning to provide reasonable assessments of some of the disadvantages incurred and advantages conferred post-divorce (see, for example, the study by Kerr). While qualification will remain difficult and fact related in each particular case, judicial notice should be taken of such studies, subject to other expert evidence which may bear on them, as background information at the very least. In the face of these complex evidentiary problems, I take comfort from Professor Ellman who argues at pp. 99–100 that:

    Even crude approximations of theoretically defensible criteria are probably better than intuitive estimates of what is “fair” under a system lacking established principles of “fairness” in the first place. Moreover, the establishment of rules clearly specifying the facts that are relevant in judging alimony claims, and the precise impact of these facts on the amount of the claim, may itself motivate studies that increase the amount of relevant data. In the end, precision is not obtainable. The determination of alimony claims, even more than most legal questions, will necessarily depend, at least in part, upon the rough justice of trial judge discretion. That is, in fact, one of the lessons of this inquiry. But we are still better off knowing what we should be doing, even if we cannot do it perfectly, than not knowing it at all. [emphasis added; footnotes omitted]

  • Mr. Moge’s tactical error: By attempting to foist upon the court an unrealistic view of the statutory model of spousal support (that unrealistic view being that only self-sufficiency was the primary philosophical underpinning for spousal support), Mr. Moge and his lawyers can take the credit for contributing to a backlash that has done immeasurable harm to the cause of fairness and equity in family law. To contradict the model advanced by Mr. Moge, the court found itself relying upon one-sided data that severely distorted the true economic reality of separation and divorce for separating and divorcing spouses. The data that was surely submitted to the court by LEAF would only have presented the feminist analysis. A much more balanced economic analysis as to the effects of separation and divorce can be found in the (as yet unpublished) paper prepared by Brian Jenkins, Peter Cornakovic and Paul Mineiro, “Comments on the Child Support Guidelines”, as well as in: Sanford Braver and Diane O’Connell: Divorced Dads: Shattering the Myths. The surprising truth about fathers, children and divorce, Penguin-Putnam, New York, 1998.
  • No federally funded lobby group for men was intervening in Moge to place the social science literature, upon which the court says we should take judicial notice, in some sort of balanced perspective.
  • SCC promotes in Moge a theory or model that compensation underpins the philosophy of spousal support. The court emphasizes how the goals of spousal support enumerated in the Divorce Act appear to emphasize compensation.
  • Historical analysis in the SCC: The court discusses how women have historically suffered economic disadvantages and hardships from marriage or its breakdown and how their paid work outside of the home is but secondary. [See paragraph 71 et seq.] Such an approach marginalizes women and makes it difficult for a man to even argue that there was true equality in his particular relationship or at least not the one sided type of relationship described by the SCC. By “equality”, I mean division of responsibility for domestic labour, child care, and economic provision. Indeed, the learned SCC justice seems to make fun of any man who would have the gall to say that his relationship indeed did not conform to the court’s stereotypical view of marriage. See paragraph 75:
    

    75 The equitable sharing of the economic consequences of marriage or marriage breakdown, however, is not a general tool of redistribution which is activated by the mere fact of marriage. Nor ought it to be. It is now uncontentious in our law and accepted by both the majority and the minority in Messier v. Delage, supra, at pp. 416–17, that marriage per se does not automatically entitle a spouse to support. Presumably, there will be the occasional marriage where both spouses maximize their earning potential by working outside the home, pursuing economic and educational opportunities in a similar manner, dividing up the domestic labour identically, and either making no economic sacrifices for the other or, more likely, making them equally. In such a utopian scenario there might be no apparent call for compensation. The spouses are able to make a clean break and continue on with their respective lives. Such cases would appear to be rare. In most marriages in which both partners make economic sacrifices and share domestic responsibilities, or where one spouse has suffered economic losses in order to enable the other spouse to further a career, their roles should be considered in the spousal support order.

  • Ability to pay is important: On a more positive note, there is one part of the SCC judgment in Moge that appears to have unfortunately been largely ignored. That relates to the importance of assessing the ability to pay, a factor to which judges tend not to pay too much attention. The judge acknowledges that ability to pay is a factor in the Divorce Act and that responsibility for redressing the economic consequences of divorce cannot necessarily fall solely on the man’s shoulders. But note how the judge views the paying spouse already as the “debtor spouse” and the receiving spouse as the “disadvantaged spouse” as if all of the responsibility was on one side and all of the “disadvantage” was on the other side:
    

    77 As economic consequences have to be shared in an equitable manner by both partners, it is my view that the Act, while envisaging compensation for the economic advantages and disadvantages of marriage or marriage breakdown, does not necessarily put the entire burden of such compensation on the shoulders of only one party. I stress here that in the discussion of spousal support one must not lose sight of the fact that the real dilemma in most cases relates to the ability to pay of the debtor spouse and the limits of support orders in achieving fair compensation and alleviating the economic burdens of the disadvantaged spouse. While the disadvantages of the kind I mention hereunder are compensable, though not necessarily automatically or fully compensated in every case, the ultimate goal is to alleviate the disadvantaged spouse’s economic losses as completely as possible, taking into account all the circumstances of the parties, including the advantages conferred on the other spouse during the marriage.

  • Bracklow v. Bracklow (1999), 169 D.L.R. (4th) 577, 236 N.R. 79, 44 R.F.L. (4th) 1, 120 B.C.A.C. 211, 196 W.A.C. 211, [1999] 1 S.C.R. 420, 63 B.C.L.R. (3d) 77, [1999] 8 W.W.R. 740 (S.C.C.)
  • Moge did not resolve all of the issues. Its emphasis on the “compensation” model as the philosophical underpinning of support, tended to leave unresolved other aspects of spousal support.
  • Bracklow has been criticized: The SCC released its decision in Bracklow on 25 March 1999. The case was supposed to clarify matters but it really muddied the waters considerably. Madam Justice McLachlin’s reasons have been severely criticized by commentators: eg. Prof. James McLeod in his annotation to the decision in the RFL’s, and see Prof. Carol Rogerson: “Spousal Support Post Bracklow: The Pendulum Swings Again?”, CBAO Annual Institute, 2 February 2001.
  • Facts of Bracklow:
    • § From 1985 to 1989 – four years premarital cohabitation; Married December 1989; Separated December 1992.
    • § Three years of marriage = total cohabitation approximately 7 ½ years.
    • § Both worked during marriage although the wife experienced some periods of unemployment. Wife was an accountant and data processor.
    • § Trial judge had found that the wife was a highly capable person who brought emotional and physical illness to the relationship. [paragraph 9]
    • § Husband was a heavy duty mechanic. They pooled their resources.
    • § During first two years of their relationship the wife paid two-thirds of the expenses because she earned more than the husband and her two children from a previous relationship were living with them. All functioned as a family. After first two years, they shared household expenses equally.
    • § At the time of proceedings, there were no children of the marriage. The only issue was therefore spousal support.
    • § When relationship started, husband knew the wife had health problems [paragraph 7].
    • § During cohabitation and marriage, wife suffered fatigue, hysterectomy, migraine headaches, joint pain, trouble sleeping at night. In 1991: acute psychiatric problems involving one month’s hospitalization.
    • § At December 1992 separation:
      • Husband assumed the bulk of the family debts;
      • Husband had agreed to pay $200.00 monthly but quickly defaulted;

    • § Husband was ordered to pay interim support of $275.00 which was increased to $400.00 on 15 May 1994
    • § Trial judge terminated support as at 1 September 1996. B.C.C.A. agreed.
    • § Wife hospitalized post separation for some months in 1992 and again in 1994.
    • § Wife continues to suffer bipolar mood disorder, obsessive compulsive disorder, and fibromyalgia. There was evidence that fibromyalgia aggravated by stress of marriage breakup. “Mrs. Bracklow is unlikely ever to work again.” [paragraph 7]

  • The narrow issue in Bracklow was framed as follows [paragraph 13]:
    

    13 Is a sick or disabled spouse entitled to spousal support when a marriage ends, and if so, when and how much? More precisely, may a spouse have an obligation to support a former spouse over and above what is required to compensate the spouse for loss incurred as a result of the marriage and its breakdown (or to fulfill contractual support agreements)? I would answer this question in the affirmative.

  • In other words, if compensation doesn’t provide the theoretical basis, is there another basis upon which a court can award spousal support?
  • Three theoretical rationales for spousal support: The SCC said that indeed there was another basis. In fact, the court told us that there are three theoretical bases upon which we can award spousal support (and here I have relied upon the analysis in David M. Steinberg and Andrew James: Ontario Family Practice 2001, Butterworths, Toronto, p. 42):

CONTINUED ON PART II CLICK HERE