Emerging Trends in Spousal Support - Part III

PART III

BUT I HAVE A CONTRACT THAT WAIVES THE RIGHT TO SPOUSAL SUPPORT!!!!!!

If you want to have a contract that has a chance of surviving a later challenge, then note the following:

  • Required prerequisites: Domestic contracts (marriage, cohabitation, separation) must be part of a process that has the following characteristics to even have a chance of being found to be legally binding later [see Family Law Act, s. 56(4).]:
    §Full financial disclosure;
    §No common law grounds that might enable one side to set aside the contract. These are - fraud, duress, undue influence.
    §These contracts invariably had a very expansively worded release clause that would make it perfectly clear that the spousal support was being paid for say, two years, and after that, no matter what, then no more spousal support was to be paid.
  • Each side should have his/her own independent lawyer throughout the process. Trotting down the hall for a quickie half hour consultation won't help at all.
  • The contract cannot be one sided. Courts will not hesitate to discount or ignore a domestic contract, certainly with respect to the support provisions, when that contract treats one side unfairly. [See Family Law Act, s. 33(4).] Also, if you have assumed financial obligations under a domestic contract and you don't live up to them, don't expect the court to later enforce a provision waiving spousal support. Under s. 33(4) of the FLA, the court can make a support order even though you have a domestic contract saying there should be no support where the waiver of support "results in unconscionable circumstances". [See: Scheel v. Henkelman (2001), 52 O.R. (3d) 1 (Ont. C.A.).] Secondly, if the lack of support forces the dependant onto public assistance, then forget the contract. Thirdly, if you default in any support that was required under the contract, then the whole issue of support (both spousal and child) is thrown wide open.
  • It probably doesn't need to be noted here but for those who have been asleep the last ten years, I will say it. Waivers of child support in domestic contracts are not enforceable at all and courts routinely ignore those clauses. If you need legal authority for that proposition, then you can have a glance at FLA s. 56(1.1) but there are loads of cases that say the same thing, even before the Child Support Guidelines were but a twinkle in Alan Rock's eyes (former Justice Minister of Canada).

Let us consider the historical background to the assault on the sanctity of contract:

  • Time limited orders were once popular: Contracts (and court orders) during the 1980's and 1990's routinely provided for time limited spousal support. The parties assumed that the wife could become economically self-sufficient within a certain number of years.
    §Contracts might have provided for the husband to pay spousal support while the wife went back to school and for a period of time thereafter. Contracts might have provided for a limited term of spousal support to coincide with the time period that older children were expected to remain at home.
    §There were myriads of reasonable reasons for providing time-limited support.
    §These contracts invariably had a very expansively worded release clause that would make it perfectly clear that the spousal support was being paid for say, two years, and after that, no matter what, then no more spousal support was to be paid.
    §But all was not well. The political climate during the 1990's became increasingly hostile to non-custodial parents and to men in particular. Men failed to organize effectively in order to put a reasoned and rationale view forward. Lenore Weitzman's misleading data about the feminization of poverty became the most often-quoted social science data in American and Canadian case law and legal literature. It was a bad time to be a man.
    §Others have noted the negative atmosphere for men: A number of commentators have agreed that the 90's and years subsequent are decidedly man-unfriendly.
    §Prof. James McLeod wrote in an annotation to the case of Munro v. Munro (1997), 33 R.F.L. (4th) 464 (Ont. C.A.): "If anyone needed proof that it is a bad time to be a husband or to represent a husband in family law proceedings, the Ontario Court of Appeal reasons in Munro v. Munro should provide that proof."
    §Lawyer and editor of Money and Family Law, Lorne Wolfson, wrote in The Lawyers Weekly (January 14, 2000):
    If the development of Canadian family law is seen as a struggle between the rights and obligations of husbands and those of wives, the past few years have seen few victories for husbands. In the view of many family law practitioners, these days are bad for husbands.
    §University of Western Ontario Law Professor, Robert Martin, commented in Law Times (April 10, 2000, p. 8) that much of public policy appears to respond to hysteria. So called "deadbeat dads" are a prime example of a group that is not given a fair shake. Martin concludes that: "…the courts, just like any other institution, seem to get caught up in each wave of hysteria."

Assault on contract

Against this backdrop, let us try to understand how the assault on what the reasonable man on the street would term "the sanctity of contract" has escalated in the Canadian judicial system. We are dealing here with domestic contracts that were usually properly negotiated and supported by full financial disclosure. We are dealing with contracts that in some cases were shepherded through by senior and respected legal counsel. Nonetheless, recent case law has witnessed the demise of the domestic contract to an unprecedented extent. Courts have ordered spousal support where the parties themselves had agreed to but time limited spousal support or even no support.

  • Lest you think that Gene Colman is simply exaggerating, please permit me to quote another respected senior family law counsel. He wrote in a recently published article as follows:
    §Since the high water mark of judicial restraint in 1987, there has been a steady erosion on the limits of private ordering. Using both legislative sanction and judicial activism, the courts will generally override a domestic contract it finds substantially unsatisfactory in one fashion or another. This is usually so when it is the woman who stands to lose if the contract is enforced, certainly on the spousal support issue. When it's the man who stands to lose, the judicial relief is less predictable.

    Stephen M. Grant, "The Limits of Private Ordering, or "You Can't Make Too Good a Deal", Matrimonial Affairs, Vol. 12, No. 3, October 2000, p. 1

The "high water mark" of judicial restraint was the so-called SCC trilogy of cases decided in 1987. The SCC, which was then interpreting a predecessor version of the Divorce Act, and told us that generally, a court should not override the provisions of a final settlement agreement unless there was a radical, unforeseen change in circumstances that was causally connected to the marriage.

§See: Pelech, Richardson and Caron cases starting at (1987), 7 R.F.L. (3d) 225 (S.C.C.); cf. for a review: Rousseau v. Rousseau, [2001] O.J. No. 531 (Ont. S.C.J.)

The question was hotly debated in the cases and literature as to how far the trilogy philosophy should be extended. Some argued that it did not even apply after the Divorce Act was amended in 1986. Some argued that it still applied.

Some cases have taken the position that a binding waiver of spousal support in a separation agreement might preclude a further order of spousal support unless the need for support constitutes a "radical unforeseen change in circumstances". An agreement was still considered by these cases to be only one factor (under the current Divorce Act) and would be upheld only to the extent that the agreement promotes the four statutory objectives in the Divorce Act. In these cases, it has been held, however, that there must be a causal connection between the changed circumstances and the pattern of dependency during the marriage.

  • Santosuosso v. Santosuosso (1997), 97 O.A.C. 42, 32 O.R. (3d) 143, 27 R.F.L. (4th) 234 (Ont. Div. Ct)
  • Gates v. Gates (2000), 7 R.F.L. (5th) 87 (Ont. S.C.J.); appeal dismissed in Ont. Div. Ct (January 2001) in a brief endorsement; citation not available.
  • Leopold v. Leopold (2000), 51 O.R. (3d) 275, 12 R.F.L. (5th) 118 (Ont. S.C.J.) [In this case, Wilson J. indicates that she would nonetheless award support in face of a contract that was unconscionable. See paragraphs 5, 91 – 146. This case notes, citing Moge, that the causal connection test may need to be revisited. See paragraph 146 – 2.]
  • Rizzo v. Rizzo, [2000] O.J. No. 4990 (Ont. S.C.J.)

On the other hand, there was a very strong tendency in the case law to award even interim spousal support in the face of a spousal support release provision in a domestic contract. The award appears to be made on the basis of an interpretation of the Divorce Act to the effect that a domestic contract is only one of the factors that a court must consider when deciding whether or not to award spousal support:

  • The trial decision in Miglin v. Miglin (1999), 3 R.F.L. (5th) 106 (Ont. S.C.J.) [In Miglin, Tobias J. found that the support claimant had been treated unfairly in the Separation Agreement. See paragraph 27.]
  • Bailey v. Plaxton (2000), 47 O.R. (3d) 593, 6 R.F.L. (5th) 29 (Ont. S.C.J.)
  • Lanthier v. Lanthier, [2000] O.J. No. 2949 (Ont. Sup. Ct) [The separation agreement in this case was supported by independent legal representation and financial disclosure. There was no suggestion that the contract was unconscionable when it was made.]
  • Taimoori v. Fanaian, [2000] O.J. No. 2997 (Ont. S.C.J.)
  • Kennedy v. Kennedy (2000), 11 R.F.L. (5th) 150 (Ont. S.C.J.) [Release of spousal support in separation agreement without I.L.A, without financial disclosure, without understanding of rights and responsibilities, not in accordance with objectives of spousal support provisions of Divorce Act, where wife alleges emotional abuse, and wife now on welfare –the contract is set aside!]
  • Bailey v. Plaxton was released on 30 March 2000. In Bailey v. Plaxton, Madam Justice Frances Kiteley allowed interim spousal support for an ex-wife in the face of a separation agreement that had already been fully completed as to its spousal support obligations. The wife came back for more and was successful on an interim basis.
  • Leopold was heard in June, 2000; the decision by Madam Justice Janet Wilson was released on 6 December 2000. This is well after the decision in Bailey v. Plaxton. In Leopold, the gender roles were reversed. The support claimant in Leopold was the ex-husband who was seeking more spousal support even though he had bargained for and received support of 6 & ½ years after a seven-year marriage that produced three children who remained in the custody of the wife. I would imagine that the husband claiming support in Leopold would have been quite encouraged by the precedent of Bailey v. Plaxton. In Bailey v. Plaxton we discount the contract for the ex-wife because it did not conform to the philosophy of the Divorce Act. In Leopold, we have a man who is now claiming more support even though the wife has fulfilled all of her obligations under the separation agreement. The court takes the position that this ill spouse in great need who is claiming more support against a fabulously wealthy spouse (net worth of $6 million at the time of trial) should get nothing. The court essentially tells Mr. Leopold to get a job. Had Mr. Leopold been female would the result have been different?
  • Miglin v. Miglin was a case where the wife had signed off her spousal support rights in a separation agreement. The trial judgment was released on 17 December 1999, prior to Bailey v. Plaxton. In Miglin, the husband had an annual income of $186,130 and the wife had no income. The couple was married in 1979, had four children, separated in 1993 and divorced in 1997. They signed a separation agreement in 1994 that provided for payment by the husband's hotel business to the wife of a consultation fee of $15,000 per annum until December 1998 but this 'consulting agreement' had a cost of living increase component in it. The consultation fee looked suspiciously like spousal support but the separation agreement itself had the wife sign off any spousal support rights. It was open to the parties to renew the consulting agreement, which the wife took to mean that she would continue to be supported. These are a very bad set of facts if one is trying to argue in favour of the sanctity of contract to exclude continuing spousal support! It was a simple matter for the trial judge, on these and other facts, to find against the husband and assess spousal support free of the strictures of the separation agreement. [Trial Judgment: (1999), 3 R.F.L. (5th) 106 (Ont. S.C. J.)]

Miglin in the Court of Appeal

The husband appealed to the Ontario Court of Appeal where the judgment had been anxiously awaited by all. It was released on Thursday, April 26, 2001 and can be found at www.ontariocourts.on.ca. The Court of Appeal's reasons were penned by Madam Justice Rosalie Abella. She characterized the issue on the appeal like this:

[From paragraph 1] ... The new threshold for variation delineated in the trilogy was, however, so high as to appear almost inaccessible, requiring that there be a radical unforeseen change in circumstance which is causally connected to the marriage. Under the trilogy, if the threshold is not met, even if a former spouse is in financial need, it is the duty of the state, not a former spouse, to provide support.

[2] The support provisions under which the trilogy was decided were substantially amended in the 1985 Divorce Act, R.S. 1985, c. 3 (2nd Supp.). The main issue in this appeal is whether the threshold established in the Pelech trilogy survives those amendments and continues to apply under the new 1985 Divorce Act.

WARNING: The decision of the Ontario Court of Appeal was overturned on appeal to the Supreme Court of Canada - [2003] 1 S.C.R. 303. Therefore, what follows here is no longer an accurate representation of the law. Domestic contracts are not dead in Canada.

Trilogy no longer the law

Justice Abella decided that the trilogy approach is not the law in the province of Ontario. At paragraph 60 and elsewhere in her reasons, Justice Abella explained that the language of the current Divorce Act is dramatically different from the language of the former Divorce Act under which the trilogy was decided:

[60] In my view, based on the new language in the 1985 Divorce Act, and the revised approach to support developed by the Supreme Court of Canada in accordance with those statutory changes, it is difficult to justify the continued application of the trilogy which emanated from a completely different statutory scheme. The language in s. 15 of the 1985 Divorce Act is so dramatic a departure from the linguistic and conceptual minimalism of s. 11 of the former Divorce Act that statutory interpretations emanating from the old legislation, such as the trilogy, cannot, it seems to me, continue to apply.

  • No primacy in Divorce Act to "agreement": Justice Abella correctly points out that in the Divorce Act the existence of an "agreement" is given no more primacy than the other factors:

    [65] The scheme for spousal support under the new legislation attempts to accommodate the realities of a marriage when determining the economic consequences of its dissolution. One of the factors to be taken into account, along with others, is whether there is an arrangement or agreement for support. Agreements are not, notably, given any primacy, nor is there any explicit statutory direction for how the existence of an agreement is to be factored into an assessment of whether or how much support should be awarded. Given the absence of any legislative requirement to defer to separation agreements, what role does the Act appear to assign such agreements?

  • Policy reasons for maintaining contracts: What the court of appeal Justice does not really come to grips with in her reasons, however, is the cogent policy argument behind preserving the sanctity of contract. What are the social implications for society in general when we cancel contracts that were valid when first negotiated and signed, and we overturn them now based upon shifting concepts of political and legal correctness in 2001? What was acceptable in 1987 (when the trilogy was decided) and what is acceptable in 2001 are certainly miles apart. But are not those who made those contracts in good faith in 1987, in 1988, in 1989 entitled to any sort of protection? While the trilogy may have stipulated too strict of a test, the current wholesale discounting of contracts in Miglin swings the pendulum too far in the other direction. It is going to get worse in the case law before it gets better. We need legislation to reverse Miglin.
  • Domestic contracts may be dead: As I read the entire Miglin judgment, I believe that domestic contracts are essentially dead when it comes to spousal support. In other words, I believe that under the law, it is now most difficult, if not impossible, to construct a domestic contract that will protect a man from future spousal support claims. And with spousal support now open, can property settlements be far behind? I must concede that Justice Abella does pay some lip service to the importance of contract but the thrust of her reasons negates the few sops she throws to the sanctity of contract in paragraphs 66 and 67:

    [from paragraph 66] ...A valid separation agreement represents an attempt by two parties to negotiate the terms of their social and economic disengagement. In the case of both an order and an agreement, it can be presumed that the parties feel entitled to conduct themselves as if the order or agreement represents something relatively binding.

    [67] This shared presumptive understanding should not be easily disturbed. There is, in most cases, an inherent financial and psychological vulnerability that flows from the dissolution of a spousal partnership, an anxiety about future viability, and a fear of uncertain consequences. But among the certainties the parties add to the reconstructive mortar that accompanies their departure from a marriage, is an order or agreement they assume will not cavalierly be interfered with by either of them.

  • I have further support for my view that domestic contracts are now dead. If you sign a contract, a court acting under the authority of Miglin, may decide ten years down the line that your contract is not in accordance with the philosophy of the Divorce Act. However, if you have a court order (which obviously would only pertain in the separating spouse situation and not in the marriage or cohabitation agreement situation), then perhaps you have better protection. Justice Abella tries to demonstrate that the test for varying a court order and a separation agreement should be the same. In the process of doing that, I believe that she has opened the door to inviting more litigation because she implies that "imposed orders" are presumed to be in compliance with the philosophy of the Divorce Act. See her paragraph 73:

    [73] Moreover, imposed orders can, I think, be presumed to be in reasonable compliance with the objectives of the Act by virtue of their having received judicial screening or scrutiny. Agreements, on the other hand, can be deemed to be in reasonable compliance only with the negotiated wishes of the parties regardless of such compliance, negotiated, moreover, on the tense faultline of a relationship. If it is possible to vary a binding order which presumptively meets the objectives of the Act by meeting the threshold of a material change in circumstance, why would the legislature have intended to make it more difficult to vary an agreement which, while similarly binding, does not enjoy a similar presumption. I would not, however, assume that a lower threshold was intended for agreements, but rely instead on their inherent fallibilities to support the conclusion that the legislature, by putting agreements and orders together in the same subsection, may have intended that they be subject to the same, albeit significant, threshold for variation. This fact, in combination with the revised statutory language and the Supreme Court's resulting revised approach to spousal support, persuades me that a tenable argument can be made for a similar threshold.

  • Primacy of court orders: Justice Abella says the individual is presumed to be in compliance under a court order. On the other hand, who knows whether there is compliance under a Separation Agreement? The implication for the lawyer is that agreements may have less legal standing later than a court order. Once the legal community integrates the lessons of Miglin,, there will be a lot less incentive for lawyers to encourage a settlement in cases of spousal support. If the lawyer advises to settle say for three years of spousal support, or for a lump sum of spousal support, and the court five years down the line decides that this settlement was not within the philosophy of the Divorce Act, as it is understood five years down the line, then the lawyer may be at risk for negligence. On the other hand, it is a much more difficult task to sue your lawyer because the judge ordered three years of spousal support or a lump sum and then another judge thinks differently five years later.
  • Self-sufficiency downgraded: Justice Abella discusses not only the statutory proofs for nixing domestic contracts but she also analyses the case law. The goal of "self-sufficiency" in the Act is downgraded severely while the goal of providing open-ended spousal support is promoted. In taking this approach, Justice Abella is in full synchronization with Moge and Bracklow.
  • Criticism of Justice Abella's analysis: I would suggest, with great respect, that Justice Abella's analysis of the non-importance of "self-sufficiency" is quite debatable. The Act does say that an objective of spousal support is indeed "in so far as practicable" to "promote the economic self-sufficiency of each spouse within a reasonable time period". But I would suggest that the emphasis she places on the words "in so far as practicable" is not entirely fair. These words simply recognize economic and social realities of individual situations. They do not mean that a court cuts a woman off from support where the evidence of the case does not support some time limit. You have to look at the actual evidence in each case. Just as Justice Abella and others have correctly observed that self-sufficiency is not the be all and end all principle of spousal support, so too can it be argued that you should not, in a knee-jerk manner, disregard this part of the Divorce Act. What the SCC has done and what Justice Abella has done is tell us that self-sufficiency is not an important factor. I say, as a matter of statutory construction (that is, how we interpret statutes), self-sufficiency is of equal importance to all of the other factors set out in the Act.
  • Judicial requirements for all domestic contracts: Justice Abella has provided guidelines that all domestic contracts must consider and I say, specifically address from this point forward. The first point she makes is that the sole test to change a domestic contract is simply whether there has been a material change in circumstances from the time that the agreement was made [paragraphs 94 & 95]. If that test is passed, then the court has to consider what amount of spousal support, if any, is justified under the statutory principles of the Divorce Act and refined in leading SCC cases [paragraph 95]. At paragraph 96, she lists the factors to consider and I will present them, for convenience in outline form here:
    1. the extent, source and impact of the change in circumstances;
    2. whether the agreement reflects a clear and unequivocal intention to insulate it from review or variation;
    3. the extent to which the agreement satisfies the objectives of the Act; and,
    4. where there is an agreement to waive support or limit its duration to a fixed event or time, how lengthy a period has elapsed since the waiver, event or expiration of the time limit.
    5. This is not an exhaustive list, but represents the view that the terms of a valid agreement, while clearly not determinative, ought to be given significant weight.
  • Comment on the requirements: I grant you that Justice Abella's second and fourth criteria above might appear to place some emphasis on the fact that the parties in a domestic contract can, through the words of their contract, make it very clear that they intend the contract to apply, no matter what. However, I maintain that in light of the balance of the reasons in Miglin, it will still be next to impossible to have any assurance that a court in the future will abide by the contract. Justice Abella makes it eminently clear in her reasons: If the contract does not accord with some judge's view in the future of whether or not your contract complies with the philosophy of the Divorce Act, as determined based upon facts that have not yet happened, then too bad. The contract must fall and the spouse in the economically inferior position five or ten years down the line is now entitled to spousal support!
  • Higher test if support obligation has expired?: If the support obligation under the agreement has already expired when the spousal support application is brought, it may be that there is a higher test to meet, although this issue is expressly left open by the Justice Abella [paragraph 97].
  • Mrs. Miglin's lawyer comments: There will be considerable quantities of ink spilled over this decision of the Ontario Court of Appeal. The first article that I saw was in the National Post of April 28th. Mrs. Miglin's lawyer, Philip Epstein is quoted. Mr. Epstein is a leading family law practitioner in Toronto. The article states that Mr. Epstein "agreed the decision makes it difficult, if not impossible, for people to settle their own affairs via agreements with full confidence that they have permanently severed their financial ties with their former partners." … Mr. Epstein is quoted directly as follows:

    This is a clear message to mostly husbands, and their lawyers, that too good a deal will come back to haunt them. I think for some women who signed agreements at a time when the courts put a huge emphasis on their self-reliance, the doors are potentially re-opened. And for men who made very beneficial agreements, it may turn out that they made too good a deal.

  • Lay v. Lay – Challenging the property settlement: I cannot leave this discussion of Miglin without at least mentioning Justice Abella's decision in Lay v. Lay (2000), 4 R.F.L. (5th) 264, 47 O.R. (3d) 779, 184 D.L.R. (4th) 652, 131 O.A.C. 47 (Ont. C.A.). Lay dealt with the issue of whether a certain spouse, who had signed off property rights in a marriage contract some 13 years earlier, could come back later and make a new claim against property. That certain spouse was not, as is usually the case, the ex-wife. Here it was the ex-husband who was saying that since the matrimonial property legislation had changed since he signed the contract, he should be able to have a share of something that he had bargained away years earlier. In Lay, Justice Abella told the ex-husband that he was out of luck. He could not come back and take from his ex-wife what he had agreed to forego years earlier. If Justice Abella were to be consistent in terms of philosophical approach, one might have expected her to similarly uphold the sanctity of contract in Miglin. In Miglin, it was the woman who wanted more in the face of a contract that said she should get nothing. In Lay, it was a man who wanted more in the face of a contract that said he should get nothing. Prior to the Lay decision, there was solid legal precedent at the Ontario Court of Appeal level that would have indicated that the husband should have succeeded. [Bosch v. Bosch (1991), 36 R.F.L. (3d) 302, 6 O.R. (3d) 168, 49 O.A.C. 346, 84 D.L.R. (4th) 626 (Ont. C.A.) was distinguished. Kerr v. Kerr (1981), 32 O.R. (2d) 146, 22 R.F.L. (2d) 19, 121 D.L.R. (3d) 221 (Ont. H.C.), aff'd (1983), 35 R.F.L. (2d) 363, 41 O.R. (2d) 704, 147 D.L.R. (3d) 384 (Ont. C.A.) was simply ignored.] The precedents held that unless the specific right was bargained away, the contract was no bar to a later claim. In Lay, the contract had been made prior to the Family Law Act coming into force. The husband had not bargained away the specific right to an equalization of net family property. The husband should therefore have succeeded based upon solid precedent. Justice Abella surprised everyone by throwing out the husband's claim.
  • One can only speculate what effect "gender" played on Justice Abella's approach in Lay versus her approach in Miglin.

What if the payor wants to change the contract?: We have learned from Miglin that when a person who has bargained in a domestic contract (sanctioned by the Family Law Act) to receive spousal support for a limited term wants to get support for a greater time period because the universe has not unfolded as one would have liked it to, then that person is perfectly welcome to come back and get more. The contract just will not matter if a judge, with hindsight, says that the contract is not in accordance with whatever is the politically popular view of spousal support at the time the matter later comes back to court.

What about the situation where the universe does not unfold as it should for the one who has been paying the support? Would you not think that if the philosophy of the courts were consistent that the payor of spousal support could come back and say: "I thought that I would be able to pay $x of support for x number of years but my assumptions upon which I based that agreement turned out to be mistaken"? The Ontario Court of Appeal in Harris v. Harris (2000), 10 R.F.L. (5th) 45 (Ont. C.A.) said "no" to that proposition. The Harris decision was released on August 2, 2000. Although Ontario Chief Justice Roy McMurtry sat on the panel in both cases, I am still not surprised that Harris is not even mentioned in Miglin. In Harris, we once again have a fact situation that unfortunately does little to promote the cause of equity and fairness. This is not the sort of fact situation with which the public can readily sympathize. There is more than a strong suggestion that Mr. Harris had hidden millions off-shore and was taking other steps to defeat Mrs. Harris's legitimate claims. However, the legal analysis and inconsistency between the cases that should give one cause for concern.

Some relief might be granted by some judges

While courts tend to favour women, some judges will grant at least partial relief to a payor who has fallen on harder times. See Gowan v. Gowan (2000), 11 R.F.L. (5th) 101 (Ont. S.C.J.). Where the ex-husband, in his mid 50's, had to retire from his employment for legitimate reasons, the judge reduced his spousal support from $920 to $500 per month (indexed). The ex-husband had to support himself from capital only. The ex-wife had upgraded and was now earning $48,000.00. One might have thought that after paying about nine years of spousal support, suffering significant health problems and being forced to retire and rely on his capital while the wife earned a good living, that it might have been the time to eliminate spousal support in accordance with the man's request. The judge refused to go that far, referring to the ex-wife's continuing economic hardship. At least the ex-husband was able to reduce the quantum. Ongoing entitlement for the ex-wife however, was not even an issue. The question was not if the ex-husband would be relieved from paying; the question became how much should he continue to pay.

SUGGESTIONS FOR FURTHER ACTION

  1. Spousal support guidelines should be considered. Some of the cases have mentioned this possibility. Men's groups should organize and present economic data to any governmental branch considering this option. I believe that spousal support guidelines will come. We should start preparing now.
  2. Legislative reform to preserve the sanctity of contract should be advocated in the wake of Miglin.
  3. Public education re economic repercussions in event of separation and divorce, especially where the wife has stayed at home to raise children, needs to be organized. Men have not gotten the message out there. Men are perceived as "dead beat dads". Certainly some men (and women) are deadbeats who have the ability to pay but simply refuse. However, that does not mean that all or most support payors are "deadbeats". We must change the public perception.
  4. There is a need for a national non-custodial parents organization or national men's organization (I am not sure I want to label men exclusively as non custodial parents). This organization would be structured similar to LEAF and should be similarly funded. This organization would, like LEAF, intervene before the Supreme Court of Canada on cases that affected the interests of men.
  5. Individual efforts: You must be realistic. If your marriage was a long one and a traditional one – your wife stayed home and you worked and she did the bulk of the child care and now she has little or no means of earning a living – well, you have what may very well be a life long responsibility. But do not despair – even you are entitled to justice and what you need is a very sober analysis made of your rights and responsibilities so that you will not be drawn into a long and expensive battle that you cannot, under these circumstances, win. None of us should forget that ability to pay is one of the factors that a judge is required to consider. Don't just cry, "I can't afford that much." Gather cogent, organized and documented evidence on your income and expenses. Otherwise, the court (or your lawyer, or the mediator, or whoever) is going to simply look at your gross income and that will be the end of it. Someone might look at your Net Disposable Income as revealed by a computer programme such as Supportmate and if your NDI is more than your wife's, then the court is going to be making some adjustments. The second thing you can do is have a cold, hard look at the history of the marriage and the roles assumed by the spouses during the marriage. If you assumed more of the childcare during the marriage, it will not be sufficient just to say that and expect anyone to believe you. You will have to get the evidence to support that allegation. Women are presumed to have fulfilled that role; if you, the man, fulfilled that role, then you will have to prove it beyond a reasonable doubt. If the two spouses led independent lives to the extent that the wife's career path was not impacted by the roles assumed during the marriage, then here too – you will have to gather that evidence and bring very convincing proof.
  6. Onwards and upwards!: Above all, do not give up and do not despair. Both on the national level and on the level of the individual, there are measures that we can implement. Most Canadians, I believe, would be shocked if they knew how people were treated in our court system. Most Canadians would opt for a system of fairness and equity. It is the task of FACT and similar groups to lead the struggle for public education, law reform and compassion for the individual who is faced with separation and divorce. I firmly believe that the quest for justice, fairness and compassion for all men and women are principles that will find favour in the hearts and minds of Canadians. We can change the course of legal history; we can make Canada a better place for our children. All we need are a few dedicated people (and I believe that FACT already has those people), a fair amount of organization on the national level, a few dollars, and the good sense to make our arguments without rancour, without bitterness, but with a large measure of common sense, good humour and dedication to a cause that we know is just.

© Gene C. Colman, 2001

Prepared and revised May 18, 2001

This article represents the personal opinions of the author. It does not constitute legal advice.

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