Emerging Trends in Spousal Support – Part II

PART II

1. Compensatory support: Look to the factors in the Divorce Act that address “condition, means, needs and other circumstances”. This may include lack of ability to support oneself due to foregoing career opportunities during the marriage. Look to the “functions performed by each spouse during cohabitation”; this may support the same argument. Compensatory provisions of the Divorce Act can be seen to embrace the independent, clean-break model of marriage and marriage breakdown.
2. Contractual support: See Divorce Act, s. 15.2(4). Such considerations may create or negate the support obligation under appropriate circumstances.
3. Non-compensatory support: Where compensation is not indicated and self-sufficiency is not possible, a support obligation may nonetheless arise from the marriage relationship itself. See Divorce Act section 15.2 (6)(c) and (d):
   • relieve any economic hardship of the spouses arising from the breakdown of the marriage; and insofar as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

Economic hardship arising from the marriage breakdown can include:

• health disadvantages;
• career disadvantages arising from the marriage breakdown; and,
• the fact that a person who formerly enjoyed support during the marriage from the other spouse now finds herself or himself without it.Non-compensatory support includes recovery for the economic disadvantages of the marriage breakdown as distinct from “disadvantages of the marriage”.
• The artificial division of spousal support into the three theoretical bases needlessly confused and over complicated the law of spousal support. All one needs to do, in my opinion, is look to the ALL of the factors in the Divorce Act and apply them in a manner that is fair to all concerned. No single factor should trump another. Indeed, the SCC itself gives credence to this view, that all factors must be considered, when Justice McLaughlin wrote at paragraph 37:
  

  Turning to the specific provisions, the factors judges must consider in resolving support issues reveal the three different conceptual bases for spousal support obligations — contractual, compensatory, and non-compensatory. The judge must consider them all, and any or all of them may figure in the ultimate order, as may be appropriate in the circumstances of the case.

• Justice McLachlin appears to argue that the mere fact of the marriage relationship may be enough to found a support obligation. In other words, even where there is no compensatory or contractual basis for ordering spousal support, support can still be ordered. Her reasons are replete with references to this “basic social obligation” for the foundation of spousal support. For example, note the quote from paragraph 37 above. In addition, consider the following excerpts from her reasons:
  

  From para 40: Even if a spouse has foregone no career opportunities or has not otherwise been handicapped by the marriage, the court is required to consider that spouse’s actual ability to fend for himself or herself and the effort that has been made to do so, including efforts after the marriage breakdown. Similarly, “economic circumstances” (s. 89(1)(e)) invites broad consideration of all factors relating to the parties’ financial positions, not just those related to compensation. The same may be said for the broad injunction of the Divorce Act that the court consider the “condition, means, needs and other circumstances of each spouse”. To be sure, these factors may support arguments based on compensation for what happened during the marriage and its breakdown. But they invite an inquiry that goes beyond compensation to the actual situation of the parties at the time of the application. Thus, the basic social obligation model may equally be seen to occupy the statutory provisions.

  From paragraph 41: “[E]conomic hardship … arising from the breakdown of the marriage” is capable of encompassing not only health or career disadvantages arising from the marriage breakdown properly the subject of compensation (perhaps more directly covered in s. 15.2(6)(a): see Payne on Divorce, supra at pp. 251-53), but the mere fact that a person who formerly enjoyed intra-spousal entitlement to support now finds herself or himself without it.

  42 Similarly, the fourth objective of s. 15.2(6) of the Divorce Act — to promote economic self-sufficiency — may or may not be tied to compensation for disadvantages caused by the marriage or its breakup. A spouse’s lack of self-sufficiency may be related to foregoing career and educational opportunities because of the marriage. But it may also arise from completely different sources, like the disappearance of the kind of work the spouse was trained to do (a career shift having nothing to do with the marriage or its breakdown) or, as in this case, ill-health.

  43 In summary, nothing in the Family Relations Act or the Divorce Act suggests that the only foundations for spousal support are compensatory. Indeed, I find it difficult to confine the words of the statutes to this model. It is true that in 1986 the Divorce Act was amended to place greater emphasis on compensation. This represented a shift away “to some degree” from the “means and needs” approach of the 1968 Act: Payne on Divorce, supra, at p. 267. But while the focus of the Act may have shifted or broadened, it retains the older idea that spouses may have an obligation to meet or contribute to the needs of their former partners where they have the capacity to pay, even in the absence of a contractual or compensatory foundation for the obligation. Need alone may be enough. More broadly, the legislation can be seen as a sensitive compromise of the two competing philosophies of marriage, marriage breakdown, and spousal support.

  44 Turning to the jurisprudence, Mr. Bracklow cites L’Heureux-Dubé J.’s statement in Moge, supra, that “marriage per se does not automatically entitle a spouse to support” (p. 864). That is true. To hold otherwise would swing the pendulum too far back and completely ignore the independent, clean-break model of marriage. But, in certain circumstances, marriage may give rise to an obligation. It is not the bare fact of marriage, so much as the relationship that is established and the expectations that may reasonably flow from it that give rise to the obligation of support under the statutes. This Court in Moge, per L’Heureux-Dubé J., emphasized that the court must consider all the objectives of support and all the factors relating to its award. These include non-compensatory factors, like need and means.

  From para 49: Indeed, a review of cases suggests that in most circumstances compensation now serves as the main reason for support. However, contract and compensation are not the only sources of a support obligation. The obligation may alternatively arise out of the marriage relationship itself. Where a spouse achieves economic self-sufficiency on the basis of his or her own efforts, or on an award of compensatory support, the obligation founded on the marriage relationship itself lies dormant. But where need is established that is not met on a compensatory or contractual basis, the fundamental marital obligation may play a vital role. Absent negating factors, it is available, in appropriate circumstances, to provide just support.

• Entitlement not an issue: It is therefore not at all surprising that entitlement to spousal support, since Bracklow, now takes a back seat to the simple questions: How much? How long?
• Prof. Rogerson writes [at page 18 of her article noted above]:
  

  …the Bracklow framework shifts most of the analysis in spousal support cases away from issues of entitlement, which become almost irrelevant, to issues of quantum…

• And at page 26, Prof. Rogerson states:
  

  With Bracklow’s clear recognition of non-compensatory support, entitlement is effectively no longer a serious issue in spousal support. Even if there is no compensatory basis for support, “need alone may be enough” to ground an award of support; and if need is interpreted broadly to cover any significant drop in standard of living, the basis for entitlement is very broad.

• SCC remits key questions back to the trial level: Quite incredibly, the SCC did not resolve the “how much” or “how long” issues. They sent the case back to the trial judge for reconsideration in accordance with the principles that they had enunciated. When the case came back before the trial judge, he ordered $400 monthly for five years [Bracklow v. Bracklow (1999),181 D.L.R. (4th) 522, [2000] 3 W.W.R. 633 (B.C.S.C.)] . This left Mr. Bracklow with arrears of $16,000.00 that he was permitted to pay off at the rate of $400 per month. The court noted that Mrs. Bracklow had a minimal income and that Mr. Bracklow was much better off than her. At paragraph 26, the court clarified:
  

  26 At issue, is the extent to which Mr. Bracklow should be responsible for Ms. Bracklow’s financial needs that are caused by her permanent health problems.

• Analyzing the nature of the non-compensatory support that pertained in this case, referring to the SCC decision, the trial judge stated:
  

  42 While these consequences are not casually related to any factors in the parties’ relationship, Bracklow now establishes they are still relevant to continuing obligations of a spouse following marriage breakdown. However, the extent of those obligations must be tempered by the relevant statutory criteria, considerations relating to the length and nature of the marital relationship, as well as any new obligations assumed by an ex-spouse.

• Thus, once again, we simply come back to the statutory criteria, that I have argued all along must form the basis of any intelligent analysis of the spousal support obligation. “Length of marriage” is a relevant criterion [Divorce Act, s. 15.2 (4)(a), Family Law Act, s. 33(9)(l)]. While it is only one factor, it is a factor that in the non-compensatory situation can temper what might otherwise be a life long obligation.

• For academic support re the above proposition, see: Prof. Carol Rogerson, “Spousal Support Post Bracklow”, pp. 37 – 51; Stephen M. Grant, “The New Realities of Support” (2000), 1 R.F.L. (5^th) 205.
• Ross v. Ross, 1993 CarswellOnt 301, 45 R.F.L. (3d) 230, 12 O.R. (3d) 705, 62 O.A.C. 384 (Ont. C.A.) This case is after Moge but before Bracklow. It sets the tone – time limited orders are not favoured. A self-employed wife was awarded three-year time-limited support after a 23-year traditional marriage. The Court of Appeal reversed: “In particular, it [the trial judge’s order] does not sufficiently recognize the economic disadvantages to the appellant caused by the marriage breakdown, and her 23 year absence from employment outside the home.”
• Van Blaricom v. Van Blaricom (1996), 92 O.A.C. 29, 29 O.R. (3d) 793, 24 R.F.L. (4th) 410 (Ont. Div. Ct), motion for leave to appeal dismissed at 1996 CarswellOnt 3502, 29 O.R. (3d) 793n, 24 R.F.L. (4th) 410n (Ont. C.A.): Any changes in the parties’ material circumstances should be dealt with by a variation application under s. 17, not by an arbitrary cut-off of support. The Divisional Court overturned a three-year limitation upon spousal support imposed upon a mentally challenged wife of 15 years. Moge was commented upon at length with respect to the importance of taking into consideration all of the factors relevant to support in the Divorce Act. The trial judge had appeared to recognize that his time limited order might result in the wife having insufficient support in the future but he was prepared to leave that problem to the taxpayers. However, that is contrary to the principle stated by L’Heureux-Dubé J. in Moge at p. 386 that the primary burden of spousal support should fall on family members, not the state.”
• Kent v. Frolick (1996), 23 R.F.L. (4^th) 1 (Ont. C.A.): A 15-year marriage that yielded two children where the wife requalified after separation as a teacher resulted in the overturning of the time limited support order imposed by the trial judge. A time-limit was found to not be appropriate where it was not reasonable to speculate that the payee spouse would be fully employed within the time limit.
• Forler v. Forler (1997), 28 R.F.L. (4^th) 33 (Ont. C.A.) This was a 24-year traditional marriage during which the wife was primarily occupied as a full-time homemaker and mother. In the later years of marriage, the wife worked as a permanent part-time teaching assistant. By the time of trial she was working four hours per day and earning $28,000; the husband’s income was $79,000. The Court of Appeal disagreed with the trial judge’s imposition of a five year limitation, which it deleted on appeal. The Court of Appeal noted that the trial judge had “failed to consider the disparity between the earning ability of each former spouse. He failed to have regard to the fact that the wife, having married in a traditional arrangement, was disadvantaged by it on an ongoing basis.
• Pope v. Pope (1999), 43 R.F.L. (4^th) 209 (Ont. C.A.): On the facts, it is difficult to appreciate the rationale for the husband’s argument that spousal support should have been time limited. The couple had cohabited for a total of 16 years (but were married for less than five). At the end of the marriage, the wife had no assets and no employment. She had suffered from mental illness that “impaired all of her life skills” [paragraph 12]. “Mr. Pope admitted at trial that he did not expect that Mrs. Pope would be able to work in the future.” [paragraph 12]. The court noted that she had been economically disadvantaged as a result of her marriage and cohabitation [paragraph 37]. The court reiterated the factors that militate against making a time-limited order at paragraph 38:
  

  This court held in Krauss v. Krauss (1991), 33 R.F.L. (3d) 233 (Ont. C.A.) that the following factors militated against making a time limited spousal support order:

  • a long marriage;
  • during most of the marriage the wife devoted most of her time to child care and household management and was therefore unable to work outside the home;
  • the age of the parties;
  • the wife’s health which in the circumstances compromised her ability to obtain gainful employment;
  • limited employment opportunities.

• Tremblay v. Tremblay (1999), 1 R.F.L. (5^th) 177 (Ont. C.A.): Even if the wife remarries, this in itself is no guarantee that spousal support will terminate. During this 17-year marriage, the wife was a traditional homemaker and mother. She had a grade 10 education. By the time of the appeal, she had remarried and was working for her new husband. There is no mention made in the appeal judgment as to how much she and her new husband earned. Nonetheless, the appeal court found that the trial judge had erred in placing an onus upon the wife to show cause why her support should be continued at the expiry of 2.5 years.

• I note two instances during 1999, when the Court of Appeal made a review order. Yet, in a third 1999 decision a differently constituted panel of the same court discouraged the use of review orders.
• Bildy v. Bildy, 1999 CarswellOnt 497, 44 R.F.L. (4th) 81, 42 O.R. (3d) 737, 127 O.A.C. 44 (Ont. C.A.) A thirteen-year marriage yielded two children with the youngest just having started school prior to the trial. The husband was a successful lawyer while the wife (who had a grade 12 education) had never earned more than $27,000 before the marriage and had been a traditional stay at home mom raising the two children. This was encouraged by the husband following separation but only until the youngest was no longer at home full time. The wife was 39 years of age and the husband was 40. The trial judge appeared to find that the wife harboured resentment against the husband and perhaps this influenced her lack of real effort to obtain employment. Accordingly, he ordered spousal support of $30,000.00 per year for only five years at which time support would terminate. The appeal court, however, analyzed the situation a little more carefully. Justice Finlayson pointed out at paragraph 14:
  

  … it is acknowledged that figure [i.e. $30,000 spousal support per year] by itself would not make her self-sufficient. The goal in this case must surely be to encourage her to be self-sufficient, while still recognizing that support payments will be necessary from the respondent for some time in the future. With respect, the trial judge was in error in placing so much emphasis on self-sufficiency in this case.

  The court of appeal noted that self-sufficiency was not the only factor to be considered. Therefore, what the appeal court did was to extend spousal support from five years to nine years. After nine years there would NOT be an automatic termination. Rather, both sides would have the right to “review” the support order. In other words, no one would have to demonstrate a material change in circumstances. At the end of nine years, support would be reassessed using the various factors discussed in the Divorce Act.

• Munn v. Munn (1999), 44 R.F.L. (4^th) 179 (Ont. C.A.): This was a long-term traditional marriage of 17 years, two children and a wife who had not yet completed grade 12. The trial judge granted her 18 months of spousal support but the Court of Appeal granted her five years. The time frame appeared to dovetail with the wife’s “reasonable and laudable” plans to upgrade herself. Whether that upgrading would result in self-sufficiency was an open question; hence, the Court of Appeal permitted either party to seek a review on or before the expiry of the five years. At that time, neither side would have to demonstrate a change in circumstances. Rather, support would be reassessed afresh applying the factors stated in the Divorce Act.
• Andrews v. Andrews, 1999 CarswellOnt 3019, 50 R.F.L. (4th) 1, 124 O.A.C. 259, 45 O.R. (3d) 577 (Ont. C.A.): Unlike Bildy and Munn, here the Ontario Court of Appeal discouraged the use of review orders. This case involved a 17-year marriage and three children and huge income disparities between the two sides. This case states that review orders are difficult to obtain whether at trial or on appeal. At paragraph 37, Justice Laskin stated:
  

  Moreover, I do not think that the court should routinely make review orders, especially on appeal, when the trial judge has not seen fit to do so. The concern raised by Mr. Andrews is far better addressed on a variation application. Failing to make reasonable efforts to obtain a full-time job when able to do so can amount to a material change in circumstances.

  In his annotation to Andrews, Prof. McLeod points out that unlike in Bildy, there was no indication in this case that the wife would not make reasonable efforts at self-sufficiency.

• Two trial level decisions discuss the philosophy and theory of the review order. Both refer to the Bildy and Munn decisions. Neither refer to Andrews. Judgment in Andrews was released 21 July 1999. The first decision referred to below was released August 12, 1999; the second one was released August 20, 1999.
  

  §	Schmuck v. Reynolds-Schmuck (1999), 50 R.F.L. (4th) 429 (Ont. S.C.J.) (Justice Himel): This is a very good review as to under what sorts of circumstances a time limited order will be granted, or not. See paragraphs 15 to 35 and paragraph 57.
  §	Bergeron v. Bergeron, 1999 CarswellOnt 2712, 2 R.F.L. (5th) 57 (Ont. S.C.J.) (Justice Aston): The case itself was a review where, on the facts, a further review with more stringent conditions was ordered by Justice Aston. See paragraphs 11 to 14 for Justice Aston’s analysis of the review order versus the limited-term order.

• Issue: Before we leave the issue of how the courts are approaching the general principles, let us consider the second most recent case from the Ontario Court of Appeal that addresses the general principles of spousal support: Arvai v. Arvai was heard in October and the reasons were released on February 20, 2001. This case raised the following issue: After a long term marriage (another 17 year marriage here) where both spouses are left with similar assets and very modest income earning potential, should the wife still obtain spousal support?
• Facts: Both spouses had farmed but the farm was to be sold and the proceeds divided. The husband’s projected income in the year of trial was fixed by the trial judge at just under $21,000.00. The wife did not want to stay in farming, so had gone to school was on the verge of entering the financial services field. Her projected income was $20,000.00.
• Trial decision upheld by Court of Appeal: Despite the equality of their situations, in addition to paying child support, the husband was ordered to pay $1,000.00 per month from 1 September 1999 to 1 December 2000 with a review to take place as of 1 January 2001.
• Analysis: Clearly, given the husband’s modest income and obligation to pay child support, the spousal support had to come from his capital. It may very well be that the wife was somehow more prejudiced by the marriage due to the roles assumed during the marriage or due to biologically being the one to have the children but we can’t really tell for sure from the reported decision. A portion of the trial judgment reproduced in the appeal decision is yet another indication that entitlement is no longer an issue: [from paragraph 56] “Entitlement arises on both the compensatory and non-compensatory bases. The quantum is based on a balancing of the financial needs of the parties.” It mattered not that the two sides came out of this marriage in a similar economic position. The husband still had to pay.

Trends

What we can derive from Moge, Bracklow and the other cases discussed thus far are a number of very disturbing trends:

1. Poverty is the lot of women; the courts have to remedy that with little or no attention truly paid to the man’s ability to pay.
2. Women are economically disadvantaged by the roles assumed during marriage. It is the task of the court to undo that disadvantage upon separation and divorce.
3. Men shall be required to compensate women.
4. Even relatively short relationships can result in the imposition of a spousal support obligation.
5. The obligation to pay spousal support can arise by virtue of the marriage relationship itself (although there is some hint that the court really means that the obligation flows from the expectations that flow from the marriage relationship).
6. If the man can afford it and the woman needs it (in the most liberal interpretation of that word), then the man pays.
7. Courts shall not burden themselves with the issue of whether the woman is entitled to support. We are to assume entitlement. Simply, the judge shall answer the two-pronged question: How much? How long? If you are lucky, maybe we will temper the open-ended obligation with a review order at which time we will require you to compensate your ex-wife some more.

Education and reform are required

Do not count on the courts to change our current direction. Legislative reform is required. The public needs to be educated about the true costs of separation and divorce. We have to dispel the misinformation that permeates popular culture. We have to overcome the gender based and gender biased myths and stereotypes (that I have already spoken about to this group and published articles concerning this matter). We have a challenge before us. Are we up to this challenge or do we wish to simply sit around and complain about legal system?

HOW MUCH SPOUSAL SUPPORT IS ENOUGH?

Introductory Remarks

• The assumption in today’s society appears to be that women simply cannot earn enough money and it is the obligation of men, post separation and divorce, to provide that money. In many situations, the biological imperative of having assumed obligations for the care of babies might have prejudiced the wife’s career path and there should be compensation for that. Of course, this assumes that only women can feed babies, change diapers, and attend to all the other childcare tasks. There are ever increasing family configurations where men have primarily or equally fulfilled those roles and it becomes a real challenge to convince a court or an assessor that the man “really did do all of that stuff.” Tied up with issues of “how much” spousal support to pay are issues of division of day-to-day responsibility for the care of children (be they younger or somewhat older) and here too, men have a tough go of it to convince others (courts, assessors, mediators, ex-spouses, etc.) that they are equally qualified to assume these roles and did, in fact, assume such roles during the marriage. Historical roles within the family (à la 1950’s) have heavily influenced both the statutory and theoretical underpinnings for spousal support. These stereotypes have heavily influenced the current approach of the courts to all spousal support issues and, in my view, particularly to that of quantum, or “how much”.
• If you want to be certain that you will pay the maximum amount of spousal support possible on your separation / divorce, then you should structure your life and relationship as follows:
  

  §	Have as many children as you possibly can.
  §	Don’t lift a finger to assist in their care.
  §	The wife should have a minimal education and all her efforts to upgrade her education during the marriage should be vigorously resisted.
  §	The longer you remain in the marriage the better.
  §	When the separation first occurs, be sure to not give her a penny. Try to starve her out. Default on your interim support payments. [Just in case this is misinterpreted, let me make it clear that I certainly do not advocate such tactics. I am merely emphasizing that where a man does not meet is legal obligations, there will certainly be repercussions.]

Standards of Living

There is a very clear trend in Ontario to require husbands, particularly where there are dependent children, to part with the majority of their income. The courts articulate the view that they are attempting to make certain that the standards of living in the two households are approximately equal. If the wife earns some money, then this may moderate the bite. If she doesn’t, the middle-income earning husband can all too frequently count on not having enough money to pay for basic necessities such as rent, food and transportation. Post separation and divorce, many men are left below the official Statistics Canada “low income measure”. In other words, they’re officially in poverty. The same cannot be said, generally, for their spouses and children. (There is a research paper by Jenkins, Cornakovic and Mineiro of the FACT group that professionally analyzes the data and suggests these conclusions.)

Commentators have noted the tendency to equalize standards of living (sometimes calling it equalizing net disposable income), using a combination of both child and spousal support:

• Tom Bastedo, Q.C., “Impact of Child Support Guidelines on Spousal Support”, Matrimonial Affairs, Vol. 11, No. 3, November 1999, CBAO, Toronto;
• Prof. Carol Rogerson: “Spousal Support Post Bracklow: The Pendulum Swings Again?”, CBAO Annual Institute, 2 February 2001, at pp. 55 – 63. Rogerson notes that outside of Ontario, equalization is not universally the pattern.
• Rogerson notes [at pp. 56 – 57] that in long-term marriages where there no longer are dependent children, the trend appears to be to afford to each spouse “roughly equivalent standards of living”.

Importance of evidence

I suggest that it is incumbent upon litigants to introduce evidence of standards of living post separation. One must show, through actual evidence, just how he spends his money and what he has left after FRO would get through with each pay cheque. I suggest that you can’t simply rely on your court form Financial Statement. You have to track your actual expenditures or have very good evidence of what your projected expenditures will truly be. If you are living in a dark and depressing basement apartment, then prepare photographs of your living quarters and compare your current accommodations with those of the other spouse. If you have expenditures that you must make to earn a living – then explain them fully (e.g. vehicle expenses to get to work). If you are suffering from clinical depression or you are seeing a psychologist at $150 per hour, then show the receipts. Get a report from the psychologist as well. Demonstrate your expenses; demonstrate your standard of living. Chart it all out on a spreadsheet that then takes the net disposable incomes of each side after support at different levels. Show the court what the ramifications truly are at each possible level of support. In short, demonstrate what will be the economic effect of support at different levels. And further, if you can demonstrate how the support order (both spousal and child) will impact upon the children when they are with you, then that is all the better.

In conclusion for this part of the article, I must say that the quantum, the amount, of spousal support is clearly on the rise. If you have any money left after determining child support, and even if you don’t, then you will likely still be required to pay spousal support. I believe that children should not be disadvantaged by their parents’ divorce, where at all possible. Men must be left with sufficient income, in my view, to provide for their children when the children are with them. In order to have a chance at retaining some of your income, you have to clearly show whoever will listen (mediator, judge, etc.) what are the true costs of moving forward with your life. That’s on the micro level. On the macro level, we need to reform the law of spousal support and more on that matter later.

CONTINUED ON PART III CLICK HERE