UNDER THE DIVORCE ACT:
A NEW DIRECTION
Law and Government Division
Revised June 1993
FEDERAL JURISDICTION REGARDING SPOUSAL SUPPORT
THE CRITERIA UNDER THE DIVORCE ACT
WHERE ARE WE NOW?
STORY v. STORY
LINTON v. LINTON
MOGE v. MOGE
SPOUSAL SUPPORT UNDER THE
A NEW DIRECTION
past several decades have seen dramatic changes in the law of spousal
support in Canada. Legislatures and courts have wrestled with social change,
particularly new attitudes toward women and their roles in society, and
the altered financial realities that have resulted from them. In some
instances, the legal systems attempts to recognize women as equal
members of society have created harsh financial consequences, both for
women and their children. This paper explores the most recent authorities
on this subject, and examines the current policy issues facing Canadian
judges and legislators.
to 1968, only women were able to apply under the Divorce Act for
spousal support, and wives found guilty of adultery were disentitled.
The inability of husbands to sue for support represented a clear policy
statement by Parliament on the roles assumed by the sexes during marriage.
This aspect of the law was changed by the Divorce Act, 1968 (S.C.
1967-8, c. 24), which allowed either spouse to claim support from the
other; it retained the conduct of the applicant as a factor to be considered
in an award of spousal support, though not child support.
Divorce Act, 1985 (R.S.C. 1985, c. D-3.4) severed the tie between
the parties conduct and either spouses entitlement to support.
Similar adjustments were made in provincial matrimonial legislation throughout
Canada. This reflected a recognition, perhaps premature, of how the roles
of men and women within marriage were changing. It accommodated the possibility
that husbands might be financially dependent on their wives, and was intended
to make the law gender-neutral in its application. Although such a change
was clearly called for by advocates of womens equality, reality
has not kept pace with this key demand. The rate of womens participation
in the paid labour force has increased, but women continue to perform
nearly all of the child-care and housework across Canada, while in their
paid jobs women on average receive only two-thirds of the wages received
by men. For the most part, judges have been slow to treat divorcing couples
in a gender-neutral way, perhaps to allow the impact of the legislative
change to be felt more gradually. Nonetheless, the change has resulted
in an exacerbation of the financial difficulties faced by many divorced
and separated women in Canada.
National Council of Welfares 1979 report entitled Women and Poverty
was updated in 1990 as Women and Poverty Revisited. This report
makes specific reference to reformed divorce and matrimonial property
legislation, as well as to other legislative changes that affected the
situation of women in the 1980s. It highlights the "shocking fact"
that, in spite of the major changes in legislation, the proportion of
women among Canadas poor has not changed noticeably. The group most
at risk of poverty in Canada consists of single-parent families headed
by women: 57% of this group live below the poverty line.
breakdown affects women and children more adversely than it affects men.
The courts award of inadequate levels of spousal and child support
orders and inadequate enforcement have been identified as the main causes
of the poverty of many women and their children. Lawyers have reported
that the 1985 Divorce Acts expectation of accelerated self-sufficiency
of spouses after marriage breakdown is responsible for its harsh and unfair
REGARDING SPOUSAL SUPPORT
issue of spousal support is resolved under the federal Divorce Act,
rather than under provincial legislation, wherever a divorce judgment
is granted or has previously been granted. Provincial legislation applies
only to support applications by unmarried cohabitees and married spouses
who have not divorced and are not seeking a divorce. In addition to the
decree of divorce that ends the marriage, the Divorce Act provides
for two forms of "corollary relief": support and child custody.
make an application for a divorce under the Divorce Act, there
must have been a breakdown of the marriage. Such breakdown is defined
as including separation of the parties (for at least one year before the
divorce judgment can be granted), adultery, or cruelty. Only when this
requirement for breakdown is fulfilled can an application for support
be made under the Act. The Act defines a spouse as either the man or the
women of a couple who are or were married to each other. A claim for support
under the Divorce Act may be made by a spouse only as a corollary
to a claim for a divorce (unless the divorce has already been granted),
and it will be granted only after the divorce is granted. The Divorce
Act does provide for interim support to be ordered for the duration
of the divorce action, but if there is no divorce decree, permanent support
will not be granted.
most provincial family law legislation, there is no limitation period
within which a claim for spousal support must be commenced under the Divorce
Act. However, there may well be an onus on a claimant to explain any
lengthy delay in applying for support. In the absence of a satisfactory
explanation, an applicant could be denied spousal support.
UNDER THE DIVORCE ACT
predecessor Divorce Act provided the following test for the courts
use in the determination of the amount of support that should be paid
to the dependent spouse: the court was to order support of a certain amount
"if it thinks it fit and just to do so, having regard to the conduct
of the parties and the conditions, means and other circumstances of each
of them." More elaborate principles evolved in the cases decided
under the 1968 Divorce Act, and they were often influenced by the
more detailed provisions of provincial family law statutes.
15(5) and (7) of the Divorce Act, 1985 provide much more detailed
criteria, to some extent codifying developments in the case law under
the predecessor Act:
In making an order under this section, the Court shall take into
consideration the condition, means, needs and other circumstances
of each spouse and of any child of the marriage for whom support
is sought, including,
the length of time the spouses cohabited;
the functions performed by the spouse during cohabitation; and
any order, agreement or arrangement relating to support of the spouse
An order made under this section that provides for the support of
a spouse should:
recognize any economic advantages or disadvantages to the spouses
arising from the marriage or its breakdown;
apportion between the spouses any financial consequences arising
from the care of any child of the marriage over and above the obligation
apportioned between the spouses pursuant to subsection (8);
relieve any economic hardship of the spouses arising from the breakdown
of the marriage; and
insofar as predictable, promote the economic self-sufficiency of
each spouse within a reasonable period of time.
15(6) expressly provides that any misconduct of either spouse shall not
be taken into account. Coupled with the move away from a means/needs test
and towards the criteria of subsections 15(5) and (7), the new Divorce
Act provisions regarding spousal support are a dramatic departure.
When read together, these new provisions allow the court to evaluate the
specific features of each case, and the nature of each family and marital
relationship. Section 15(7)(d) enshrines the legislative objective of
economic self-sufficiency, which has given rise to some of the most controversial
results, and has led to the development of the "clean break"
theory of spousal support law, the "legally justifiable reason"
test and the "causal connection" test in matrimonial litigation.
tests, which have served to restrict the rights of dependent spouses seeking
long-term or permanent spousal support, began to be developed almost a
decade ago, but were strengthened in 1987 by three decisions of the Supreme
Court of Canada. Prior to 1987, there was already authority in Canada
for the proposition that spousal support orders would not be awarded that
would outlive any connection between a spouses inability to support
himself or, more usually, herself, and the marriage. In other words, a
financially dependent spouse was required to show a legally justifiable
reason for his or her need for spousal support in order to establish an
entitlement. In Messier v. Delage,  2 S.C.R. 401,
the Supreme Court of Canada held that the fact of marriage does not create
an entitlement to a pension for the financially dependent spouse. Because
the wifes unemployment was in no way related to the marriage, an
increase in the quantum of support was not justified. This case also illustrates
the judicial perspective that spousal support is a private matter between
the spouses, a perspective that has further narrowed the "legally
justifiable reason" test.
applicant for spousal support may move for an interim order after the
commencement of the divorce action. An interim order is temporary, lasting
until further order of the court or the judgment (which is the final order)
is rendered in the action. The case law in the area of interim support
is currently in flux, with the courts resolving questions such as whether
the causal connection test has any application at the interim stage of
a proceeding and if so, whether the onus is on the support applicant to
establish a causal connection, or on the payer spouse to show that there
is no causal connection. Some decisions have held that the means and needs
test is the one to be applied at the interim support stage, with consideration
of the support motion being denied only if there is clearly no entitlement
to support on the basis of a previous decree or agreement.
issue of spousal support entitlement often arises in the context of an
application to vary an existing order. Financially dependent former spouses
may apply to vary either a court order or a separation agreement, and
the courts have to wrestle with the degree of finality these provisions
are to be afforded. Section 17 of the Divorce Act, 1985 allows
the court to vary a support order on application by either or both former
spouses. The criteria and purposes of a variation order are set out in
subsections 17(4), (7) and (8).
any variation can be made, the court must first be satisfied that there
has been a change in the condition, means, needs or other circumstances
of either former spouse. Section 17(4) has been interpreted as requiring
the court to satisfy itself that there has indeed been such a change before
deciding to exercise its discretion in favour of making a variation. It
is the overall change in the parties lives that must be considered,
and not small changes that leave the parties in financial circumstances
not very different from what they were when the divorce judgment was granted.
The policy objectives set out in section 17(7) must also be considered.
recently, the test applied by the courts in deciding whether the change
was sufficient to warrant a variation was that applied under the Divorce
Act, 1968: the change had to be "catastrophic, radical and unforseen."
More recent cases have required the change to be catastrophic, radical,
unforeseen and also causally connected to the marriage, particularly where
the variation application was made following a pre-divorce judgment separation
was rendered in the Supreme Court of Canadas trilogy of spousal
supports cases, Pelech, Caron and Richardson, on 4 June
1987. The cases explored the scope of appellate review in family law cases,
the factors that govern in spousal support applications, and the purpose
of the law of spousal support.
Pelech decision (Pelech v. Pelech, (1987) 7 R.F.L.
(3d) 225) dealt with parties who had been divorced since 1969. In 1982,
Mrs. Pelech applied to vary the support order under section 11 of the
Divorce Act, 1968. Having exhausted her maintenance entitlement,
and unable to work because of severe physical and psychological problems,
Mrs. Pelech was on welfare at the time the application was made. Mr. Pelech,
on the other hand, had increased his net worth since the divorce from
$128,000 to $1,800,000.
Justice Bertha Wilson, for the unanimous Court (although Mr. Justice La
Forest chose to express his reasons in his own words) favoured the principle
of finality in the settlement of the financial affairs of ex-spouses over
the need to compensate for systemic gender-based inequality. She held
that "where the parties have negotiated their own agreement, freely
and on the advice of independent legal counsel, as to how their financial
affairs should be settled upon the breakdown of their marriage, and the
agreement is not unconscionable in the substantive law sense, it should
be respected." She upheld the right of the individual to end a relationship,
and stated that the financial responsibility that arises upon marriage
should not be treated as continuing indefinitely into the future.
Court in Pelech held that a causal connection between the changed
circumstances and the marriage must be shown before a court should intervene
and set aside or vary the agreement of the parties. The decision had the
effect of adding this third stage to the variation process under section
17 of the Divorce Act, 1985; the first two stages being the finding
that there has been a change in circumstances, and the finding that the
change was unforeseen at the time of the agreement.
the Caron v. Caron case, (1987) 7 R.F.L. (3d) 274, the parties
separation agreement provided that spousal support was to cease if the
wife cohabited with another man; the wife applied to the court for a reinstatement
of support after it had been validly terminated by the husband under the
terms of the separation agreement. The agreement contained a material
change in circumstance clause which allowed the court to vary quantum
of support only (not the entitlement itself). The Court found that the
support entitlement had ended by reason of a factor expressly considered
in the agreement and which was not causally connected to the marriage
(the wifes cohabitation with another man); thus, it was held that
the Court did not have the power to reinstate support. Reinstatement of
support, unlike a variation of quantum, was barred by the separation agreement.
wifes spousal support application was also denied in Richardson
v. Richardson, (1987) 7 R.F.L. (3d) 304, where she sought a divorce
and an order for spousal support contrary to minutes of settlement in
an earlier Family Law Reform Act action. Madam Justice Wilson,
for the majority, held that a court should override the spousal support
terms of a valid settlement agreement only in the event of a radical change
in circumstances resulting from a pattern of economic dependency generated
by the marital relationship. Although the wife was dependent upon public
assistance at the time of her divorce action, this fact in itself was
held not to justify variation of the agreement.
Justice La Forest dissented in Richardson, holding that the parties
to a divorce action cannot oust the jurisdiction of a judge to award spousal
support on divorce. Although their settlement agreement was an important
factor to be considered, he felt it did not bind the trial judge.
they did not create it, the decisions of the Supreme Court of Canada in
the trilogy were referred to and followed as having established the "clean
break" theory of support law and the causal connection test. Professor
James McLeods annotation to Pelech (7 R.F.L. (3d) 226)
emphasized the significance of the "advancement" these decisions
represented, and suggested that the trilogy reasoning would be influential
not just in variation cases, but also in originating applications for
support. His annotation argues that the cases set out a support model
which emphasizes the "individualistic nature" of the support
obligation, stressing the idea that parties freely enter and leave marriages,
and negotiate their own arrangements as equals.
application of the causal connection test in originating support applications
has been the subject of controversy across Canada since the trilogy was
released, particularly in cases of long-term, traditional marriages. In
these marriages it was difficult to justify the application of the individualistic
model of marriage and marriage breakdown, especially in the face of the
reality of financially dependent women, and women for whom self-sufficiency
seems unrealistic. In view of the economic realities faced by women who
have been absent from the paid work force for many years, courts began
to assess "self-suffiency" at a mere survival level. A wifes
poverty-line income, though often deemed adequate for the purpose of terminating
spousal support, could be in stark contrast to the standard of living
she had enjoyed before separation, and to the income of her former husband,
whose material wealth had significantly increased after separation in
almost all cases.
harsh decisions resulting from the application of the clean break approach
even in cases of long-term, traditional marriages were not restricted
to those cases decided in the courts. Counsel in many other cases recommended
settlement packages to their clients which reflected their uncertainty
about the amount and duration of support a court would order. This was
so even in cases where the likelihood of the wifes becoming self-sufficient
was slim. Thus, many negotiated settlements concluded since 1987 bear
the stamp of the harsh causal connection test.
WHERE ARE WE NOW?
Justice Beverley McLachlin, in her keynote address to the National Family
Law Program in Calgary on 2 July 1990 (Canadian Journal of Family Law,
Vol. 9, Fall 1990, p. 33), discussed the controversy surrounding the law
of spousal maintenance. Although she had supported the reform of matrimonial
law in Canada in the 1980s, Madam Justice McLachlin said that the law
had been changed too quickly, so that it had outpaced the reality of the
situation with respect to men and women in Canadian society today.
said that new legislation had "embraced the promotion of economic
self-sufficiency and self-reliance upon separation" with the goal
of allowing the parties to be economically independent as quickly as possible
in order to permit the termination of relations between them. Madam Justice
McLachlin saw these values as being reflected in the Supreme Courts
decisions in the trilogy. The Pelech decision underlined the individualism
of the parties: they have the freedom to act, to negotiate, to claim or
alienate their rights, and to choose their own outcome. These values,
maximizing the sovereignty of each spouse, were appropriate for the "joint
venture" model of marriage, which is based on the assumption that
men and women function equally in economic matters. Although this equality
is an ideal, it is "tragically untrue for a large number of women
in our society."
Madam Justice McLachlin pointed out, the clean break approach is not appropriate
for long-term, traditional marriages, which she identified as the "union
for life" model. Wage equality is not a reality for all Canadian
women, particularly those who have been out of the paid labour force for
some time. This undermines the validity of the trilogys assumption
that separating spouses have equal bargaining power. The Court should
not bind itself to "inapplicable liberal stereotypes" but must
recognize "real inequality" when it sees it.
suggestion that the courts should assess the economic realities
facing each separating couple individually permits us to work toward
economic equality as a society but without unjustly penalizing those who
do not have the benefits of it. Very recent caselaw supports the idea
that spousal support has to be assessed in the context of the facts of
each particular marriage and separation.
British Columbia Court of Appeal reviewed the application of the causal
connection test in Story v. Story ((1989) 23 R.F.L. (3d)
225). The parties had been married for 18 years, had two children, and
had had a traditional marriage in the sense that the wife had ceased her
employment on marriage and had performed household management and child-care
duties throughout the parties cohabitation. The husband had worked
in paid employment. A decree nisi was granted in 1985, terminating the
marriage and providing for maintenance for the wife, as well as child
support. In 1988, the husband sought to terminate, or to vary the spousal
maintenance order to provide for a termination date. By that time it was
clear that the wife was unemployable as a result of the mental illness
she had suffered throughout the marriage.
the husbands application to vary was being considered by the British
Columbia Court of Appeal, the fact that it arose under section 17 of the
Divorce Act (because it was a variation and not an originating
application) became important. Chief Justice McEachern found that the
now known likelihood that Mrs. Storys disability would be a continuing
one, was not a sufficient change of circumstances to permit a variation
of the support order. Chief Justice McEachern reviewed the reasons for
granting spousal support, as provided in section 15 of the Act, and noted
that the breakdown of the marriage had left the wife seriously disadvantaged
economically. He said that the most significant fact in the case was not
Mrs. Storys mental illness, but her "economic dependency caused
by a lack of training and employment experience prior to marriage and
her role as homemaker for such a long period."
an article commenting on Story (Canadian Journal of Family Law,
Vol. 9, 1990, p. 143), Madam Justice Proudfoot of the B.C. Court
of Appeal disagreed with the idea that the emphasis on individual responsibility
and finality in relations between former spouses is a progressive development
in gender equality. She stated that this emphasis "often leads to
a failure to appreciate the practical barriers to financial independence
which confront many ex-wives" (p. 151). Rather than emphasizing the
benefit to parties from an immediate termination of their relationship
and obligations, Madam Justice Proudfoot suggested that the approach ought
to recognize the economic disability that falls on many women who undertake
the role of homemaker, and to recognize the advantages that womens
assumption of this role affords to their husbands.
"clean break" approach to spousal support has also been weakened
or abolished in Ontario, as a result of the decision of the Ontario Court
of Appeal in Linton v. Linton ((1990) 1 O.R. (3d) 1). The
Lintons separated after a 24-year marriage, and divorced six years later.
At the time of their trial, Mrs. Linton earned $17,000 as a secretary,
and Mr. Linton earned about $140,000 as a senior executive with a major
corporation. Mrs. Linton had worked at home until the couples children
were all in school.
Court of Appeal reviewed in detail the Supreme Court of Canada trilogy
and subsequent Ontario decisions. The objectives of Parliament in enacting
the Divorce Act, 1985 were also discussed in detail. Mr. Justice
Osborne, writing for the unanimous Court, found that the support scheme
established by Parliament reflects the judgment that valid support needs
arise from the economic aspects of the division of responsibilities within
the marriage. He held that it can almost be presumed that economic disadvantage
will arise upon the breakdown of a long-term marriage where one spouse
has been absent from the paid workforce for a lengthy period. The objective
of self-sufficiency must be assessed within the context of the particular
marriage in order to recognize adequately the economic value of the functions
of child care and household management, and the economic disadvantage
accruing as a result of a long absence from paid work.
the Moge v. Moge decision ( 3 S.C.R. 813), handed
down 17 December 1992, the Supreme Court of Canada rejected the "self-sufficiency"
model for spousal support, and developed a series of policy considerations
based on an equitable sharing of economic consequences, to be applied
by the courts in future cases. Rather than creating a set of concrete
rules to guide the lower courts, the Court discussed the economic and
social realities facing divorcing couples in Canada today. It recognized
the harsh consequences faced particularly by women in the years since
the Courts last major pronouncements on spousal support in
the 1987 "trilogy" of cases: Pelech, Caron and Richardson.
for the Court, Madam Justice LHeureux-Dubé began her reasons by
stating that, although the matter to be determined involved the circumstances
in which spousal support should be terminated or varied under section
17 of the Divorce Act, 1985, the case "in a broader sense
turns upon the basic philosophy of support within the Act as a whole"
(p. 824). The factual determination made in the case occupies relatively
few of the pages that follow, and most of the analysis is devoted to more
general principles drawn from the words of the support provisions in the
view that the trilogy reasoning could be applied beyond the facts in those
cases was expressly rejected. Madam Justice LHeureux-Dubé reinforced
the importance of the statutory tests for spousal support set out in sections
15 and 17 of the Act, and, citing Story v. Story, observed
that stereotypes of "traditional" versus "modern"
marriages are misleading. She discussed a series of statistics illustrating
the feminization of poverty in Canada, and concluded:
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.
is no doubt that divorce and its economic effects are playing a
role. (p. 854)
model of spousal support envisioned in Moge is one in which spouses
are compensated for economic loss occasioned by marriage, and in which
the advantages or disadvantages arising from the marriage and its breakdown
are apportioned between the spouses, with regard to the standard of living
enjoyed by the parties during the marriage. The courts, in exercising
discretion, must consider "a wide variety of factors and decisions
made in the family interest during the marriage which have the effect
of disadvantaging one spouse or benefiting the other upon its dissolution"
has seen fit to provide Canadian courts with a list of issues that should
be considered in awarding spousal support in a divorce action. These issues
have not been prioritized in terms of their relative importance, which
indeed, can be established only within the context of each particular
case. In making a spousal support determination, the courts evaluate the
contribution each spouse has made to the economic partnership, and attempt
to ensure that neither is unfairly economically disadvantaged as a result
of marriage breakdown. Rules applied in a uniform, gender-neutral way
cannot adequately protect women against unfair economic disadvantage because
of the reality of the wage gap between men and women, which is exacerbated
by the frequent pattern of long-term absences from the paid labour market
by wives and mothers.
the trilogy of 1987 cases, the Supreme Court of Canada embraced the principle
that divorcing spouses should be able to enter into agreements that would
sever their relationship with the other spouse permanently, without the
fear that the courts could intervene to throw their lots back together.
These decisions recognized the desire of many Canadians that women should
be treated as equal to men, able to determine their own destinies and
fend for themselves. That desire has been found to be less compelling
than societys desire to provide for former spouses equally on marriage
breakdown, or at least to spread economic disadvantage fairly between
both spouses. The landmark Moge decision contains a series of considerations
intended to guide the courts in applying the Divorce Act objectives
in awarding spousal support. In view of todays changing patterns
for dividing responsibilities in marriage, the courts will be engaged
in a continuing process of applying these considerations and awarding
spousal support at a level appropriate to the particular circumstances
of each relationship.