SPOUSAL SUPPORT EH? SORRY, NOT YOUR AMERICAN ALIMONY.

• Author: Thompson, Rollie

1. ENTITLEMENT TO SUPPORT: A GENEROUS APPROACH A. Moge and Compensatory Support B. Bracklow and Non-Compensatory Support C. Other Entitlement Issues II. THE SPOUSAL SUPPORT ADVISORY GUIDELINES: AMOUNT AND DURATION III. VARIATION/MODIFICATION OF SPOUSAL SUPPORT IV. THE REMARRIAGE OR RE-PARTNERING OF THE RECIPIENT V. RETIREMENT A. Early Retirement B. Pensions, Spousal Support and "Double-Dipping" C. Duration and the End of Entitlement VI. MARRIAGE CONTRACTS, PRENUPS AND SPOUSAL SUPPORT VII. CONCLUSION I tried to pack as many "Canadianisms" into that title as possible, not just the ubiquitous "eh?", but also our cultural tendency to apologise, even if we are not at fault. Canadian spousal support is itself a reflection of our distinctive family law culture and history. We no longer use the terms "alimony" or "maintenance." In this short article, I will spell out some of the distinctive characteristics of our spousal support law, which I can summarise in a series of propositions here:

   1. Entitlement. In Canadian law, there is a very broad basis for initial entitlement to spousal support, on compensatory or non-compensatory (needs-based) grounds or both. In crude terms, a significant disparity in incomes at the end of the marriage or relationship will likely result in spousal support of some kind.

   2. Guidelines. Since 2005, there have been national "Spousal Support Advisory Guidelines", informal guidelines widely used to determine the amount and duration of spousal support in most cases (except for the French-speaking province of Quebec). At the heart of the Advisory Guidelines are two formulas, one for cases with child support and another for cases without child support, that generate ranges for amount and duration.

   3. Variation/Modification. Spousal support can be varied or modified, when there is a material change in circumstances since the previous order. Courts have also created another route to changing support, the "review order." Most of the "hard" issues in spousal support law come up at this stage: the post-separation income increase of the payor spouse, the recipient's remarriage or re-partnering, second families and subsequent children, retirement, retroactive support, and the recipient's efforts to attain self-sufficiency.

   4. Remarriage/Re-partnering. In Canada, the remarriage or re-partnering of the recipient is NOT automatic grounds for termination of support. Much depends upon the basis for continuing entitlement: non-compensatory (or needs-based) support is more likely to be reduced or even terminated than compensatory support.

   5. Retirement. Retirement does not automatically or presumptively terminate spousal support. The Canadian courts have struggled over what constitutes "early" retirement in variation cases. Where a pension has been divided as property, there is a general rule against "double-dipping" by way of spousal support, with a large exception for need or economic hardship.

   6. Marriage Contracts/Prenups. For the most part, attempts to waive, bar, or severely limit spousal support in prenuptial agreements, marriage contracts or cohabitation agreements are unsuccessful, especially now that the Advisory Guidelines are so widely used to provide an objective measure for the amount and duration of support.

   Before digging in to these specific support issues, it is important to sketch out the Canadian constitutional backdrop and the general structure of family law in Canada. I promise it will be brief, but not necessarily painless.

   In Canada, divorce is a matter confided legislatively to the federal government under our constitution. (1) Thus, Canada has a national Divorce Act that addresses parenting/custody, child support and spousal support for divorcing married couples. (2) Apart from divorce, all other family law matters fall under provincial legislation, including the division of family property. (3) This means that the provinces have also enacted legislation affecting spousal support, for those married couples who separate but do not seek a divorce or for common-law spouses. (4) In all the English Canadian provinces and territories, common-law spouses or partners can seek spousal support after cohabiting for two or three years, or where they have a child in a relationship of some permanence. (5) The one province that does not recognise spousal support rights for common-law couples is Quebec, despite its world-record rates of unmarried cohabitation. (6) As we shall see, despite some differences in statutory provisions amongst these federal and provincial statutes, the fundamentals of spousal support analysis are the same.

1. ENTITLEMENT TO SUPPORT: A GENEROUS APPROACH

   Through two leading cases, the Supreme Court of Canada has set out the two primary bases for entitlement to spousal support: compensatory and non-compensatory. Another quirk of Canadian federalism is our unitary court system, with the Supreme Court of Canada at its apex able to hear any case from any court, no matter whether the case arises under federal or provincial legislation. The Supreme Court regularly hears family law appeals. The two leading Supreme Court cases on spousal support entitlement are Moge v. Moge in 1992 (7) and Bracklow v. Bracklow in 1999. (8) In neither case did the Court address the specifics of amount or duration of support, just entitlement. Together, the two decisions propound a generous approach to support entitlement, more generous than most other jurisdictions. (9) In Canada, where there is a significant disparity in spousal incomes after separation, a court will generally find a threshold entitlement to spousal support, of some amount for some duration.

   1. Moge and Compensatory Support

      The Moge decision is a landmark in Canadian family law, and bej'ond our borders too. Justice L'Heureux-Dube ruled that the compensatory approach was the primary basis for spousal support entitlement in Canada, drawing extensively upon case law, academic literature and social statistics. At the same time, the Court rejected the "clean break" model of support, which had gained currency for much of the prior decade in Canada. (10) The Court preferred the theory of Ira Mark Ellman, (11) over the U.S. practice of "rehabilitative alimony."

      Moge was all about continuing entitlement. The couple had been married for 17-18 years, with three children who remained in the wife's custody after separation. The husband worked as a welder, while the wife had worked part-time and intermittently as a cleaner. Her spousal support of $200 per month had been terminated on the husband's variation application, (12) after he had paid support for 17 years. The wife was 52 years old at that time. The Manitoba Court of Appeal reinstated support of $150/mo. (with no time limit). (13) The husband appealed the entitlement issue to the Supreme Court of Canada, but the wife did not appeal the amount. The husband's appeal was dismissed.

      Justice L'Heureux-Dube founded her compensatory analysis upon the objectives of spousal support stated in the 1985 Divorce Act, notably two in particular, (14) but the statutory provisions were not critical to her analysis. Elsewhere, I have set out 17 holdings in Moge, one for each year they were married. (15) The "clean break" model of support was seen as a contributing factor to the feminization of poverty, because judges had underestimated the depth of economic disadvantage faced by women who had made sacrifices during the marriage, notably due to child care. (16) The primary basis for spousal support in Canada after Moge became compensatory, but the lower courts struggled with the determination of amount and duration. (17) Moge gave two important bits of guidance on these issues: (i) most compensatory support orders should not be time limited, but should assess the individual recipient's real ability to become self-sufficient over time; (18) and (ii) "the longer a relationship endures, the closer the economic union, the greater will be the presumptive claim to equal standards of living upon its dissolution." (19) In general, however, Moge's compensatory approach worked better as a theory of entitlement than as a practical guide to amount and duration.

      Rather than delving further into theory, it is best to identify the practical "markers" of compensatory entitlement set out in Moge and further developed in the case law since then:

      (a) a spouse stays home full-time or part-time to care for children during the relationship, while the other spouse maintains full-time employment;

      (b) a spouse takes a less demanding full-time job that permits her or him to assume greater responsibility for child care ("the secondary earner");

      (c) a spouse relocates to further the career or employment of the other spouse, thereby disrupting or modifying her or his own employment;

      (d) a spouse earns income in order to support the other spouse while he or she completes education, training or other qualifications to improve career and income;

      (e) a spouse is primarily responsible for the care of children after separation;

      (f) a spouse works in the family business, acquiring skills specific to that business and of less general use outside of the business, resulting in a loss compared to where she or he would have been if she or he had pursued a career or employment outside the business. (20)

   2. Bracklow and Non-Compensatory Support

      While Moge elaborated the compensatory basis for spousal support. Justice L'Heureux-Dube did not exclude other grounds for entitlement, "particularly when dealing with sick or disabled spouses." (21) That was the very issue which came to the Supreme Court in Bracklow. Sharon Bracklow became disabled late in her 7-year marriage to Frank, unable to work and receiving a public disability income of $10,000 per year, while Frank continued to work as a heavy equipment mechanic earning $45,000/year. The trial judge found no compensatory or non-compensatory entitlement--no children of the relationship and...