judicial interpretation of the spousal and child …...reprinted from canadian family law quarterly...

Reprinted from Canadian Family Law Quarterly with the permissionof Carswell, a division of Thomson Reuters Canada Limited.

Judicial Interpretation of the Spousal and Child Support Provisions of the Divorce Act,

1985 (Part 1)*

Carol J. Rogerson **

1. INTRODUCTION

Support after marriage breakdown remains a contentious issue in family law. The appropriate principles of support in an era which accepts no-fault divorce and yet is at the same time committed to gender equality and the protection of children's interests is a subject that has been debated for the past decade or more. In many jurisdictions new legislation has been enacted reflecting revised conceptions of both spousal support and child support. Additional fuel has recently been added to the debate by research documenting the severe financial consequences of marriage breakdown for women and children I

* This article is a revised version of a study prepared for the Department of Justice, Canada, June 1989. Part I of this article, dealing with spousal support, appears in this issue. Part II, dealing with child support, will be published in the following issue of C.F.L.Q. .

** Associate Professor, Faculty of Law, University of Toronto, Toronto, Ontario. See J. Eekelaar & M. Mclean, Maintenance After Divorce (Oxfor'd: Clarendon Press, 1986) for research respecting the situation in England; P. McDonald, The Economic Consequences of Marriage Breakdown in Australia: A Summary (Melbourne: Institute of Family Studies, 1985) for Australia; and L. Weitzman, The Divorce Revolution: The Unexpected Social and Economic Consequences for Women and Children in America (New York: The Free Press, 1985) for the

156 CANADIAN FAMILY LAW QUARTERLY [7 C.F.L.Q.]

and the extent to which the law contributes to this situation by failing to make adequate awards for financial provision.2 The factors most often highlighted as contributing to this situation are an overemphasis on the values of a clean break and spousal self-sufficiency after divorce, and a serious underestimation of the costs, both direct and indirect, of child-rearing.

Most of the existing research deals with the United States, although some significant research has also been conducted in England and Australia.3 Very little documentation yet exists with respect to the situation in Canada.4 The written text 'of the Divorce Act, 1985,5 examined on its own, might lead one to expect that some of the problems experienced in other jurisdictions have been avoided in Canada, at least with respect to cases of spousal and child support being decided under federallegislation.6 Unlike its predecessor legislation, the 1968 Divorce Act, which gave very little guidance to

United States, specifically California. These studies are reviewed in C. Rogerson, "Winning the Battle, Losing the War: The Plight of the Custodial Mother After Judgment" in M. Hughes & D. Pask, National Themes in Family Law (Toronto: Carswell, 1988) 21.

2 Not all of the impoverishment of women and children after divorce can be blamed upon a faulty regime of 'legal entitlements and inadequate support awards. In some cases income levels of the spouses are so low that there are insufficient resources to maintain two households at an adequate standard of living. Solutions to this problem lie in the public rather than in the private realm.

3 See above, note 1. 4 For a summary of existing research in Canada see M. McCall, J. Hornick &

J. Wallace, The Process and Economic Consequences of Marriage Breakdown (Calgary: Canadian Research Institute for Law & the Family, 1988); and D. Pask & M. McCall, How Much and Why? Economic Implications of Marriage Breakdown: Spousal and Child Support (Calgary: Canadian Research Institute for Law & the Family, 1989).

5 Divorce Act, R.S.c. 1985 (2nd Supp.), c. 3 [formerly Divorce Act, 1985, S.C. 1986, c. 4].

6 This study examines only cases decided under the federal Divorce Act. Each province also has its own support legislation to deal with requests for support other than in the context of divorce. Although in many cases the same support would be awarded under provincial legislation as under federal legislation, there are some significant differences between the provincial and federal statutes, both in wording and structure. These differences may result in divergent outcomes on some issues, such as the ability to order support other than as provided by contract, the availability of compensatory support, and the entitlement to support absent a causal connection between the claimant's need and the marriage.

SPOUSAL AND CHILD SUPPORT (PART I) 157

judges in directing them to award support as th-ey thought it "fit and just to do so having regard to the conduct of the parties and the condition, means and other circumstances of each of them,,,7 the Divorce Act, 1985 contains an explicit articulation of the objectives and factors which are to govern the awarding of spousal and child support.

~. With respect to spousal support, the promotion of spousal self

ufficiency after divorce is only one of four listed objectives, and it is qualified by the phrases "within a reasonable period" and "in so far as practicable." The other three objectives are the recognition of the economic advantages or disadvantages to the spouses from the mar-riage or its breakdown; the apportionment between the spouses of the financial consequences arising from the care of children; and the relief of financial hardship. The courts are also directed to take into account the length of the marriage and the functions performed by the spouses during marriage. In addition, with respect to child support, the legislation expressly directs courts to recognize the joint financial obligation of the spouses to maintain the child and to apportion that obligation between them accordi~g to their relative abilities to contribute.

Nonetheless, concerns have been raised that the legislation is being interpreted in such a way that the objective of promoting spousal self-sufficiency after divorce is being given precedence over the other objectives, with the result that the economic disadvantages suffered by women as a result of marriage, in particular women who have been full-time homemakers leaving long marriages, are not being adequately recognized by support awards.8 As well, concerns have been raised that children are not being adequately provided for

7 Divorce Act, R.S.C. 1970, c. D-8, s. 11 (1). 8 Although in theory support may be claimed by either spouse, in all but the

smallest percentage of cases it is claimed by former wives rather than by former husbands. Wives are generally left in a weaker financial position as a result of marriage breakdown than men, both because of their assumption of homemaking and childcare responsibilities and their weaker position in the labour force. I have therefore chosen to use terminology which reflects this social reality. In light of s. 15 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B ofthe Canada Act 1982 (U.K.), 1982, c. II, and a growing social commitment to gender equality, the gender-based impact of spousal support laws is central to the definition and understanding of the problem of inadequate spousal support.


and that women as custodial parents are bearing a disproportionate share of the costs of their care.9 In light of these concerns a systematic review was undertaken of all reported cases interpreting and applying the support provisions of the Divorce Act, 1985 in order to determine the extent to which the various objectives listed for support in the legislation are being met. 1 0 What follows are the results of that reVIew.

Questions may, of course, be raised about the usefulness of relying upon reported cases in assessing the operation of the legislation. The representativeness of reported cases is certainly open to question. Reported cases constitute only a very small subset of divorce cases; in most divorce cases issues of corollary relief are settled by the parties rather than litigated, and even of those cases which are litigated, only a small percentage are reported. Reported cases may be atypical in a number of ways, including the income levels of the parties II and the degree of conflict between them, and these factors may affect support outcomes. It is also possible that reported cases are reported for the very reason that they are atypical or unusual. 12

9 In the majority of cases women have post-divorce custody of the children. In those cases where fathers have custody, because of their higher incomes the same concerns of inadequate economic provision for children are not raised.

10 The review of case law was undertaken in response to a request from the federal Department of Justice, which was conducting an evaluation of the impact of the Divorce Act, 1985 on support and custody. The survey of case law was only one component of the evaluation, which also included empirical research comparing support awards before and after the introduction of the new legislation. The central concern which I was asked to address in reviewing the case law was the impact of the legislation on women who had been full-time homemakers, particularly those leaving long marriages. The review of the case law which follows reflects that emphasis. The impact on other vulnerable groups, such as the chronically ill and disabled, was not posed as a central concern, and thus extensive treatment has not been given to the issue of appropriate spousal support awards in cases involving illness and disability.

11 Given the expense of litigation, the income levels i~ the reported cases are likely higher than average, and this may be reflected in higher than average support awards. Sampling problems are also created by the inclusion only of cases decided under the Divorce Act, which are heard in superior court; lower income families are more likely to litigate support in provincial court under provincial legislation.

12 The criteria by which cases are chosen for reporting are unclear.


These considerations must certainly be kept in mind when assessing the results of this review. They also caution against exclusive reliance upon reported cases and suggest the need for empirical research based upon more representative samples of the divorcing population at large. On the other hand, given the role of reported cases as precedent, they do constitute an important repository of information about the operation of the legislation. Reported cases are read by lawyers and judges and relied upon in subsequent cases, whether those cases are litigated or settled against the backdrop of predicted court outcomes. In the long run one would expect reported cases to exert a significant influence in shaping support outcomes. As well, reported cases offer something that bare financial statements in court files and abstracted dollar values of support awards cannot - the stories of the litigants' lives. In the reported cases one finds rich documentation both of the ways in which the families involved had organized their lives during the marriage and of their circumstances after divorce, thus providing a social context for the interpretation of the support objectives in the legislation.

(a) Methodology

All reported decisions dealing with child and spousal support under the Divorce Act, 1985 from the inception of the legislation until the middle of May 1989 were examined. 13 Included were original applications for support brought under section 15 of the Act, as well as applications to vary preexisting support orders brought under section 17 of the Act. Although variation applications do involve a threshold test that distinguishes them from original applications, i.e., the test of a material change in circumstances, courts are also directed to consider the same objectives as in an original application. 14 Thus variation cases also constitute an important source of evidence respecting the judicial interpretation of support objectives.

13 Significant cases decided between May 1989 and publication have been noted in the footnotes where relevant.

14 Judicial interpretation of what constitutes a material change in circumstances was not systematically analyzed, the focus of the review being on judicial interpretation of the support objectives.


Many of the cases, whether original applications or variation applications, involved contracts in which the spouses had reached their own agreement on support. All of these cases were also examined. Those contract cases in which the courts made an award of support different from that agree~ upon in the contract are of obvious relevance to this review: no longer bound by the contract, the courts were left to interpret and apply the objectives in the legislation in order to arrive at their own support award. However, those cases in which courts decided simply to enforce the contract also contribute to an overall understanding of the factors which influence support outcomes.

Excluded from the pool of relevant cases were those support cases dealing solely with procedural and jurisdictional issues, as well as with issues of enforcement. 15 As well, with respect to child support, those cases dealing solely with the threshold definitional issue of whether a child was a "child of the marriage" were excluded.

In total 267 cases were examined. Some of the cases dealt exclusively with either child or spousal support; other cases dealt with both. Issues of spousal support were raised in 197 cases and issues of child support were raised in 110 cases.

A brief summary of the findings of the review will be followed by a more detailed discussion of the cases, first those dealing with spousal support issues and then (in Part II of this article, to be published in the next issue of C.F.L.Q.) those dealing with child support. The separation of the two issues in this way is dictated by the legislation itself, which clearly distinguishes between the objectives for spousal support and those for child support. The courts also generally adhere to this distinction in their reasoning about issues of support. 16 The distinctions are, however, difficult to sustain. Because the custodial parent and children share the same household, the children cannot effectively be guaranteed a particular standard of living if the same is not enjoyed by the custodial parent. As well, the

15 However, many cases involving applications for the enforcement or rescission of arrears also involved variation applications by the payor spouse to reduce or terminate support, and the treatment of those issues was examined.

16 See Richardson v. Richardson, [1987] 1 S.c.R. 857, 7 R.F.L. (3d) 304.


costs of child-rearing involve not just direct costs but also indirect costs in the form of limitations on the income-earning capacity of the custodial parent. An accurate assessment of the impact of the Divorce Act's support provisions thus requires taking into account the combined effect of spousal support awards and child support awards, and this review has attempted to do that where relevant. Indeed, one of the main themes informing the review is the inseverability of the issues of spousal support and child support. ,

(b) Summary of Findings

The review of the case law proved in the end to be a much more difficult and frustrating task than originally envisioned. One of the strongest impressions left by a reading of the reported cases was the diversity of judicial approaches to issues of support, both in terms of the principles applied and the quantums awarded. Cases involving very similar facts were resolved in very different ways. That diversity in the case law reflects, in part, t~e absence of clear nonnative standards in the legislation. The legislative objectives articulated ;n the support provIsIons of th~ Divorce Act are vague and, particularly with respect to spousal support, potentially irreconcilable, thus failing to offer sufficient guidance to judges and creating the conditions for a wide range of judicial approaches. These problems are, of course, intensified in a new law's first few years of existence, before appellate courts have had the opportunity to establish authoritative interpretations binding on trial courts - a process which takes longer in family law, where relatively few cases are appealed.17

The absence of clear norms in the support provisions of the Divorce Act, 1985 is also symptomatic of a more fundamental problem - the absence of a strong social consensus on the appropri~te principles of support after marriage breakdown. Principles of support

• I

are ultimately rooted in social understandings of the meaning of mar-

17 This process now appears to be taking place. Since completion of this study in May 1989 there have been several significant appellate court decisions; see Story v. Story (1989), 23 RF.L. (3d) 225 (B.c. C.A.); Heinemann v. Heinemann (1989), 20 RF.L. (3d) 236 (N.S. c.A.); Mullin v. Mullin (1989), 24 RF.L. (3d) I (P.E.I. C.A.); Doncaster v. Doncaster (1989), 21 R.F.L. (3d) 357 (Sask. c.A.).


riage and parenthood. Those understandings are currently in a state of confusion as a result of significant social changes during the past two decades, in. particular the increasing acceptance of divorce and the changing social roles of women.

The pervasive randomness of results revealed by the review is disturbing because of the significant departure it constitutes from one of the basic norms of our legal system, that of universal application of the law. With respect to this review, the diversity of results made the drawing of general conclusions about the interpretation of the legislation difficult. For every general tendency perceived, exceptions were to be found.

To the extent that it was possible to reach conclusions, they are mixed. The case law contains some exceptionally fine decisions which attempt to take seriously all of the legislative objectives and produce commendable outcomes in terms of spousal support and child support. There are also some decisions open to strong criticism, which confirm the worst fears that have been voiced about blind adherence to the values of spousal self-sufficiency after divorce and disregard for children's interests. Both of these types of cases are in the minority, however. The vast majority of cases fall somewhere in the middle. The reported cases suggest that the legislation is, on the whole, not operating quite as harshly and inequitably as might have been feared. On the other hand, the fact that the "worst-case scenario" has not materialized should not lead to complacency. Serious problems remain and in some areas difficult political and social choices must be made. It is important, however, to have an accurate sense of the nature of the problems which exist in order to develop effective responses.

With respect to spousal support, in general courts now operate un4er a model of support which sees the primary goal of support law as promoting the self-sufficiency of the spouses after divorce. Of the four legislative objectives this is the one most frequently discussed in the reported cases. However, within this model many courts are not operating as arbitrarily as they might, and often take what might be termed a moderate rather than a stringent approach to defining selfsufficiency.


Concepts of self-sufficiency are generally not being applied in such a way as to disentitle full-time homemakers leaving very long traditional marriages from support. Women who are over 50 at the time of divorce typically fall safely into this category. Courts tend to recognize that complete self-sufficiency is not possible for these women, who are limited by age, lack of job skills, and in many cases health 'problems; as a result they generally refuse to make timelimited orders and award permanent support. The problem in these cases is the level of support rather than the issue of entitlement. Often the amounts of support awarded provide at best a very modest income, given the absence of other substantial sources of income, and in almost all cases the final income position of former wives is significantly lower than that of their former husbands. 18

It would appear that those suffering even more under the legislation, however, are younger women whose marriages break down when they are in their 30s and 40s, who had reduced or ceased their participation in the labour force during the marriage, and who are often left with the post-divorce responsibility for the care of the children. In these cases concepts of self-sufficiency are being given more weight, resulting in either time-limited orders or, as is more often the case, an eventual variation application by the husband to terminate what was originally an indefinite order for support. In these cases it is generally accepted that the support obligation must be brought to an end.

To be fair, even here notions of self-sufficiency are not being applied as unreasonably as they might. Admittedly, there are cases in which courts make unrealistic assessments about the possibilities for self-sufficiency and/or the speed with which it can be achieved and others where support is terminated with the explicit recognition that the spouse is not and never wil1 be self-sufficient. However, in many of the cases where wives were not employed at the point of marriage breakdown support is provided for several years and in some cases

I

until the children are grown. Contrary to expectation, many judges express caution about the use of time-limited orders, preferring to

18 The issue of the standard of living former spouses should be entitled to after divorce and whether equal standards of living is an appropriate standard will be discussed more fully below at 174-176.

164 CANADIAN FAMILY LA W QUARTERLY [7 C.F.L.Q.]

make indefinite orders because of the uncertainty about when selfsufficiency will be achieved. Courts generally look to see whether full-time employment has been achieved and do not terminate support simply because of the passage of time or simply because women have begun work of any sort, even if it is part-time.

The real problem in these cases is the level at which selfsufficiency is being set. One court stated it quite explicitly: selfsufficiency means full-time employment or earning $20,000 per year. 19 A striking aspect of the case law in this area is the relatively low income levels women have achieved at the point at which they are deemed to be self-sufficient and the disparity between their income-earning positions and those of their former husbands.20

Courts on the whole fail to understand that while the attainment of such income levels may be understood, for social security purposes, as the achievement of self-sufficiency, it does not constitute adequate compensation for the economic losses suffered by these women who have spent the first half of their adult lives giving priority to marriage and children rather than paid employment. Furthermore, in those cases where children remain in the mother's custody, the termination of spousal support results in the indirect deprivation of children, thus undermining the objectives of child support.

A final problem with respect to spousal support concerns the role of contracts. Courts have generally adopted a position of strict enforcement of contractual provisions dealing with spousal support. Admittedly in some cases women recei ve more generous spousal support in a negotiated settlement than they would if support had been court-ordered . . However, with respect to those contracts which are the subject of subsequent dispute and which thus find their way into the law reports, there are indications of a disturbing pattern of contracts in which women have agreed to support much less generous than that which they would have been awarded by the courts. In particular, some women contractually agree to time-limited support, which, as indicated above, many courts are unwilling to impose. This suggests that lawyers negotiating contracts on behalf of wives may assume a

19 Cymbalisty v. Cymbalisty (1989), 56 Man. R. (2d) 28 (Q.B.). 20 See above, note 18.


model of spousal support in which spousal self-sufficiency plays an even greater role than is actually accepted by the courts.

With respect to child support, the problem continues to be, as it has been in the past, not with the basic principles of child support but with their implementation. Courts assert that children should, to the extent possible, be guaranteed the standard of living of the predivorce family and that the amounts necessary to accomplish that objective should be shared by the parents in proportion to their respective incomes. However, in most cases the amounts transferred do not ensure that. Part of the problem is the continued failure to include within the costs associated with children the overhead costs of the household. While the data from the cases reviewed suggests that child support awards may be somewhat higher than they were in the past, in many cases the levels are still not adequate. In cases where mothers have custody, children continue to experience lower standards of living than their non-custodial fathers, and custodial mothers are left bearing a disproportionate share of the costs of child-rearing.

2. SPOUSAL SUPPORT

(a) Principles of Spousal Support

Section 15(7) of the Divorce Act, 1985 lists four objectives for orders of spousal support made under the Act:

An order made under this section that provides for the support of a spouse should (a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (b) 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); (c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

The same objectives are also found in section 17(7), which sets out the objectives for variation of orders for spousal support. In addition, section 15(5) lists certain factors to be taken into account in making~upport orders either for a spouse or child:


In making an order under this section, the court shall taken 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

(a) the length of time the spouses cohabited; (b) the functions performed by the spouse during cohabitation; and (c) any order, agreement or arrangement relating to support of the spouse or child.

As noted above, the appropriate principles of support after marriage breakdown are a contentious issue, and this is particularly true of spousal support. While the articulation of legislative objectives in the Diyorce Act constitutes an admirable attempt to provide some guidance, the objectives for spousal support are still noticeably vague and in potential conflIct. InterpretatIOns of the obJectlyes varyenorm5'usly, as do understandings of the kinds of support awards required if the objecti ves are to be met. A brief review o~ the contending philosophies of spousal support and the normative principles which have informed this review is thus a necessary prelude to an assessment of the case law.

The current debate about principles of spousal support must be viewed against the backdrop of the principles which prevailed in the past. The traditional model of spousal support, often referred to as the "pension for life',', was, understood to entitle a wife innocent of matrimonial fault to be maintained,at the marital standard of living for the rest of her life;21 The concepts on ~hich the traditional model of support was based - fault, life-long obligations flowing from marriage, and the inherent dependency of women -lost their validity with the acceptance of no-fault divorce and the changing social roles of women. The articulation of a coherent modem philosophy of spousal support to replace the traditional philosophy has proved, however, to be a difficult task.

The desire to reduce and bring an end to support obligations in order to recognize new social understandings of the terminability of marriage competes with the recognition that marriage can have long-

21 Although this was the principle articulated, it is doubtful whether it was the reality, if quantums of support and problems of enforcement are taken into account. Eekelaar's study, above, note 1, which was done prior to the reform of the spousal support laws in Britain and hence under a fairly traditional legal regime, found support awards to be tow.


term economic consequences, particularly if there are children involved. As well, it is clear that if spousal support obligations are reduced or eliminated those former spouses who are unable to provide adequately for their own economic needs will lose their only effective source of income security. Hardship will be the result in the absence of other social institutions taking over the support role traditionally played by the family.

The response of the federal government to these dilemmas of modem spousal support is found in the list of four objectives found jn section 15(7) of the Divorce Act, 1985. What is immediately apparent on the face of thelegislation is the diversity of the objectives. In their potential breadth they would appear to offer a basis for generous provision for spousal support in those cases where notions of spousal self-sufficiency are most unrealistic and where there is a cleaT need for support to compensate for the continuing economic disadvantages flowing from the division of functions in the marriage: cases involving older women who have been full-time homemakers leaving longterm marriages with few job skills and those involving younger women who both during and after divorce have primary responsibility for the care of children. On the other hand, the way in which the objectives have been presented in the legislation - in the form of a list of diverse objectives - indicates a legislative failure to articulate a clear philosophy of spousal support.22 Although in some cases the criteria and objectives reinforce each other, in other cases they are inconsistent and suggest very different philosophies of spousal support.

I have elsewhere attempted to describe three different models ~ .

of spousal support, each of which has some grounding in the legis-lation: the clean break model; the income security model; and the' compensatory model. 23 A brief discussion of these may assist Tn ~ .

22 Some courts have found significance in the ordering of the objectives and thus inferred that the objective of promoting of self-sufficiency has the lowest priority; see Gagnon v. Gagnon, case no. 299-09-000269-883 (200-12-027480-830), an unreported decision of the Quebec Court of Appeal cited in Vigneault c. Cloutier (1989),65 D.L.R. (4th) 598 (C.A. Que.).

23 C.J. Rogerson, "The Causal Connection Test in Spousal Support Law" (1989) 8 Can. J. Fam. L. 95.


providing an understanding of the possibilities open to judges in their interpretation of the spousal support provisions of the Divorce Act.

Under the income security model, which is closely related to the traditional model of support,24 the support obligation is understood to flow from the existence of a spousal relationship per se. The primary purpose of spousal support is to provide economic security to former spouses after marriage breakdown and the relevant factors in determining support are the needs and means of the parties.25

Support is to be paid whenever claimant spouses have economic needs they are unable to meet on their own, regardless of the source of those needs, to the extent the other spouse has available means.26

Under the clean break model, the primary objective of support law is to cut the economic ties between spouses as quickly as possible in order to recognize the termination of the marriage and allow spouses to go their separate ways.27 Support is provided for a short transitional period and then terminated. This rule is a uniform one, applicable to a]] marriages, regardless of their length and the division of responsibilities between spouses during the marriage. At the end of the time period spouses are deemed to be self-sufficient, without regard to their actual economic circumstances. The fu]] economic consequences of the arrangements chosen during the marriage are not recognized: after the passage of a certain period of time responsibility for the post-divorce situation of former wives is assigned to them as individuals rather than to the marriage.

24 Except that conduct and fault no longer playa role. 25 Legislative support for this model of support is found in the s. 15(7)(c) objective

of relieving economic hardship arising from the breakdown of the marriage, and s. 15(5), which makes the needs and means of the parties relevant criteria. The standard of living to which a former spouse is entitled under this model is unclear. If the income security aspect is emphasized, the level might be that required to cover the necessities of life; if the criteria of needs and means are emphasized, an equalization of the spouses' standards of living may be required.

26 Thus needs arising from illness, disability, bad economic conditions and unfortunate career choices might all be covered.

27 This model of support emphasizes the fourth objective for spousal support found in s. 15(7)(d).


Finally, under the compensatory model support is conceptualized as compensation for the economic consequences - "advantages and disadvantages," in the language of the Act - flowing from the actual ' relationship between the parties, rather than from the fact of marriage per se.28 Such compensation would cover both contribu-

4

tions to the well-bein~ of the famj]y and economic losses suffured because of the assuml2tion of fp,miJ): gb1iiatiQn~. Although under this model a variety of bases for compensation are possible, including contributions to the other spouse's income-earning capacity, performance of domestic duties and detrimental reliance, the most significant would be the greater assumption by one spouse of childrearing responsibilities, both during the marriage and post-divorce.

Today the most significant economic consequences of marriage generally flow from the birth of children rather than from marriage itself. 29 Although there are exceptions, the typical marriage continues to involve children and an arrangement in which wives cut back on their paid labour force participation in order to care for the children, thus jeopardizing their ability to provide for their own income security.30 Under this arrangement husbands are able to have

28 The legislative grounding for this model is found in ss. 15(7)(a) and (b) as well as the s. 15(5) criteria of length of marriage and functions performed by the spouses during the marriage. The compensatory model can be seen as entailing a causal connection test. Where it departs from the causal connection test derived from the Supreme Court of Canada trilogy, below, note 58, which is now being applied in the courts is in a much broader understanding of what constitutes a causal connection.

29 This is a difference from the past, when it was often marriage itself which meant the cessation of a woman's involvement in the labour force.

30 There is an extensive literature establishing the link between women's family responsibilities and their lower earnings from employment. The American literature is summarized in I. Ellman, "The Theory of Alimony" (1989) 71 California L. Rev. I at 59, reprinted in (1989) 5 C.F.L.Q. 1. For a review of Canadian research see Pask & McCall, above, note 4 at 56-71 . One relevant Canadian study is Statistics Canada, Family History Survey: Preliminary Findings (Ottawa: Ministry of Supply & Services, 1985), which showed that women were three times as likely as men to experience major interruptions in their employment, and also that the major reasons for women's withdrawal from the labour force were related to the family: marriage, pregnancy and childcare. These considerations had a negligible effect on men's workforce participation.

170 CANADIAN FAMILY LAW QUARTERLY [7 c.F.L.Q.]

the benefits of a family without having to sacrifice their employment prospects and their income security. 31

Under the compensatory model spousal support would thus be primarily directed at compensating spouses who have sacrificed their own economic security by caring for children both during the marriage and also, depending upon the facts of the case, after divorce. Support would recognize the invaluable contribution to the family entailed in child-rearing, the economic sacrifices involved on the part of the child-rearer and the economic advantages retained by the spouse who did not make such sacrifices. Thus under a compensatory model the distinction between marriages involving children and childless marriages would be salient.

As well, under the compensatory model the other determinative factor would be the length of the marriage.32 The longer the marriage, the greater the degree of economic interrelatedness that will have developed between the spouses and the more difficult it is to separate them as economic actors. If there has been a traditional division of labour, the longer the wife has been out of the workforce, the more unlikely wi11 be the possibility of her becoming economically self-sufficient after the marriage breakdown.

But the implications of a long marriage go beyond this. In a long marriage spouses typically come to view all of their efforts as joint contributions to a shared way of life, including a shared standard

31 This point is explored in detail by Ellman, above, note 30. It is misleading to argue, as some have, that men too are disadvantaged by marriage, in that they would have been better off economically if they had not married and had children; see J. Knetsch, "Some Economic Implications of Matrimonial Property Rules" (1984) 34 V.T.L.J. 263. The relevant question is whether they would have been able to have the benefits of children and to retain their advantaged employment position if their wives had not taken on primary responsibility for organizing the household and caring for the children, '

32 This is not to say that no claims flow from a short marriage. In a short marriage where children are born, significant economic consequences may flow from the assumption by one spouse of childcare responsibilities, As well, in short marriages there may be claims for compensatory support based upon one spouse's contributions to the other's attainment of a professional degree or licence,


of living.33 The longer the marriage, the more difficult it becomes to say that one spouse's economic position is the result only of his or her efforts. As well, the expectations of permanency created by a long relationship inevitably generate reliance. Opportunities to provide for one's own economic security are not pursued on the assumption that the resources of the marital partnership may be relied upon. These expectation and reliance interests generated by long marriages also require protection under a compensatory mode1.34

I have argued elsewhere that the compensatory model offers the best philosophical grounding for a modern law of spousal support, one which achieves an acceptable balance between recognition of the terminability of marriage and fair treatment of former spouses. UndS this model, the promotion of spousal self-sufficiency would certain!y piay a role, but a secondar rather than a primary role. Spouses

ou have an obligation, post-divorce, to contribute to their own §"upport to the extent of their abilities.35 In some cases tran~itional • support to allow for reintegration of former wives into the labour force would be all that would be required to adequately compensate for the economic consequences of the marriage. Such a result is most likely in cases involving fairly short marriages and hence younger wives, and/or marriage in which wives had acquired significant job skills prior to marriage or had maintained a significant connection to the labour force during marriage. In many cases, however, it will be

33 It is likely that most people expect their marriages to last forever and thus spouses in short marriages may also have seen their efforts in this way and expected to reap significant future benefits. However, the argument here is not based only on expectations or intentions. Rather, it is based on reliance and contributions to the relationship, both of which are significantly influenced by the length of the marriage.

34 An excellent analysis of the relationship between entitlement to spousal support and the length of the marriage is found in S. Sugarman, "Dividing Financial Interests on Divorce" in S. Sugarman & H. Kay, eds, Divorce Reform at the Crossroads (New Haven: Yale University Press, 1990) c. 5. Sugarman postulates two bases for making support claims a function of length of marriage. One is the merger of the spouses' human capital over time, giving each spouse a percentage interest in the other's human capital/future earnings based upon the duration of the marriage. The other is the right to fair notice of termination of the relationship, the length of the notice period being related to the length of the marriage.

35 This may be thought of as analogous to the duty to mitigate damages in contract law.

172 CANADIAN PAMIL Y LAW QUARTERLY [7 c.P.L.Q.]

recognized that despite their best efforts at achieving self-sufficiency, former wives will continue to suffer the disadvantages of the marriage and its breakdown while their husbands retain its advantages. · In such cases, in the absence of a very generous property settlement, the compensatory model would require long-term support or at least a substantial lump sum payment. One of the best judicial articulations of this vision of support is found in the decision of the Manitoba Court of Appeal in Hom v. Horn:

There are many factors connected with a marriage which contribute to the ability of a spouse to earn an income. Due to the support which one spouse receives from the other (support which is not necessarily financial), one spouse may have gained advantages such as educational opportunities or job experience. The other may have been prejudiced in his or her income earning capacity by reason of time spent away from the work force attending to the comforts of the other or of children of the marriage. When the couple separates, it is unreasonable to say in every case that each must be financially independent thereafter. Sometimes, financial independence may follow quickly. In other cases, the prejudice to the income earning capacity of one resulting from the marriage may last a lifetime. The amount of maintenance, if any, which one should pay the other and the length of time over which payment must be made will vary according to the personal circumstances of the parties.36

In a compensatory model the objective of remedying the economic hardship caused by the marriage breakdown and the loss of the former standard of living would also be subordinate to the primary objective of compensating for the economic consequences of the relationship. Where a spouse's inability to provide for himself or - , herself after marria e breakdown is clearl due to causes extrinsic to t e marriage the compensatory model would call only for transi~onal siipport and not permanent or long-term support.37 However, it - . would also be recognized that in a long marriage the complex inter-connection of the spouses' lives over a long period of time would make it difficult to say that a spouse's economic needs were not related to the marriage and that the marital resources, including the

36 Horn v. Horn (1987), 11 RF.L. (3d) 23,49 Man. R (2d) 301 at 303-304 (C.A.), affd (1987), 48 Man. R (2d) 142 (Q.B.). On its facts the case involved a separation agreement providing for indefinite spousal support which the Court refused to terminate.

37 Transitional support would be based upon an obligation to give the lowerincome earning spouse time to reorganize his or her life, a claim Sugarman, above, note 34, would view as based upon a right to fair notice.


other spouse's income, should not be available as a source of support.38

The review of cases which follows has, to a large extent, been inforrried by the compensatory philosophy of spousal support which has been outlined above. Thus the primary concern has been whether adequate compensation has been provided to those spouses who have sacrificed their own economic security in order to further the wellbeing of the family, particularly through assumption of childcare responsibilities both during the marriage and post-divorce; and secondarily, whether the complex economic interdependencies generated in long-term marriages are adequately recognized. It must be acknowl-

• edged, however. that the current Divorce Act has not made an un-

• • equ!vocal commitment to the compensatory model of support. G!£unding for each of the models may be found JD the JegisJationJijid coug:s are faced with the difficult task of trying to establish priorities -38 I must admit that this is a point on which I still feel some uncertainty. I earlier

believed that length of marriage was irrelevant and that even in cases of long marriages, if both parties had remained relatively independent economic actors, there would be no claims to long-term support where a spouse's inability to support himself or herself after divorce was a result of illness or unemployment due to labour market forces. I am now coming to believe that length of marriage in itself may ground claims to support based upon the reliance and merger of human capital arguments put forward by Sugarman, above, note 34. The implications of a long marriage are also addressed by Anderson l.A. in Story v. Story, above, note 17 at 242-244: "While, in modem society, it may be unreasonable to assume that permanent financial support obligations will arise immediately upon entering marriage, it is equally unreasonable to assume that, in the case of a disabling injury or illness, a permanent obligation will never arise. The duration of the support obligation must relate directly to the duration of the marriage. Pursuant to s. 15(5)(a) of the Divorce Act, 1985, the Court, in fixing maintenance, shall take into account 'the length of time the spouses cohabited' .

In my view, the obligation to support arises from the expectations of the parties having regard to the circumstances of each case. The expectations of the parties will expand as time goes on and at some point the marriage will be regarded as permanent in nature. At this point the obligation to support will also become permanent.

While society may no longer regard marriage as constituting a permanent union, it is my view that society would strongly disapprove of the concept that after a long marriage one could unilaterally terminate the marriage and by so doing terminate his or her support obligations on the ground that the need for support did not result from the marriage."


and relationships among the various objectives envisioned for spousal s~pP9rt.3~

One important uestion that will arise throughout the review is the standard of living at which former spouses s ou e mamtained under a fair scheme of spousal supp,.ort. The traditional model of

. support promised wives, in principle, the marital standard of living. Research critical of the operation of modem schemes of spousal support often· focuses on the disparities in standard of living between spouses after divorce, thus implying that the traditional standard for spousal support should continue to govem.40 To what extent should the provision of equal post-divorce standards of living for former spouses be the goal of a compensatory model of spousal support? The answer is complicated.

Under a compensatory model of spousal support there would be no universal standard of either the marital standard of living or equal standards of living post-divorce. Compensation would be a response to the economic consequences of the particular relationship and outcomes would thus vary depending upon the length of the relationship, the roles adopted during the marriage, the degree of interconnectedness of the spouses' economic lives, and the talents and ambitions of the particular individuals involved. The compensatory model would certainly contemplate situations where spouses end up in very different economic positions after divorce. In some cases, because of the shorter length of the marriage and/or domestic arrangements whereby the spouses remained relatively41 independent economic actors, differences in the spouses' economic positions after

39 The choice between these different philosophies of spousal support becomes relevant not only in those cases (which are the primary focus of this review) where the choice appears to be between the compensatory model and the clean break model, but also in cases involving illness and disability where the choice is between an income security model and a compensatory model.

40 See, for example, Weitzman, above, note 1. The use of equal standards of living to judge the fairness of spousal support regime is criticized by Sugarman, above, note 34.

41 I use the term "relatively" because I think it is unlikely that spouses remain completely independent economic actors during a marriage, even if both pursue their own careers. The needs of the relationship and the other spouse inevitably shape decision-making; see S. Prager, "Shifting Perspectives on Marital Property Law" in B. Thorne, ed., Rethinking the Family: Some Feminist Questions (New York & London: Longman, 1982).


marriage breakdown can legitimately be attributed to differences in their own ambitions and capacities. Under the compensatory model, spousal support would not function as a general guarantee of income security nor as a general form of compensation to women as a group for the generally lower wages they command in the marketplace.

On the other hand, the longer the marriage and the greater the role differentiation between the spouses, the more difficult it is to disentangle the economic lives of the spouses. At some point it becomes impossible to determine where the spouses might have been but for the marriage and to assign differences in their post-divorce economic situations to differences in their individual talents and ambitions. As well, it must be remembered that under a compensatory model support exists not only to compensate for the disadvantages experienced by the spouse who sacrifices career opportunities for the family, but also for the contributions made to the well-being of family in general and to the other spouse's income-earning capacity in particular. The understanding of the marital relationship as one in which the spouses work together to build up ajoint way of life and hence a joint standard of living must be given some weight, particularly in a long relationship where a reasonable expectation of permanency has been generated. This suggests that under a compensatory model, the longer the relationship and the greater the degree of economic interdependency between the spouses, the stronger would be the presumptive claim to equal standards of living after marriage breakdown.42

Finally, the inseverability of the issues of child support and spousal support must also be recognized in determining appropriate levels of spousal support and the relevance of the marital standard of living. If a particular standard of living (i.e., the pre-divorce standard) is deemed to be the desired outcome for children, it can only be effectively provided if the former spouse who is the custodial parent is also provided with that standard of living.

At several points in the review of the spousal support cases which follows, attempts have been made, where data is available, to document differences in the respective post-divorce incomes of

42 I envision this operating as a presumption, departures from which could be justified on the basis of the facts of particular cases establishing the inappropriateness of this result.


former spouses. This is done not to suggest that the equalization of post-divorce incomes should be adopted as a uniform standard in judging spousal support outcomes, but to recognize the continued relevance of that standard in many cases. Although differences in post-divorce standards of living may be justifiable under a fair law of spousal support, a pervasive pattern of significant disparties in standard of living between the households of former wives and those of former husbands may be indicative not of support provisions carefully tailored to the specific facts of the case, but of a systemic problem of inadequate support and unfair treatment of women and children.

(b) Judicial Interpretation of the Spousal Support Provisions

The review of the case law indicated that courts are, on the whole, somewhat perplexed by the list of objectives for spousal support and unclear as to their role and weight in determining support '. orders.43 In many of the cases courts noticeably avoided any discussion of the statutory objecti ves in reaching their decisions on spousal support. In several cases courts emphasized that the objectives were merely guidelines and not determinative of outcomes.44 Some judges noted pointedly that the four objectives cannot always be met in any given case.45 One result of the inconclusive nature of the legislation was the diverse and often inconsistent approaches to spousal support found in the cases reviewed. Because cases involving similar facts Were often resolved in very different ways, it is difficult to draw genera] conclusions about the interpretation of the legislation. For every general tendency that is described, exceptions can be found in the case law.

43 Since the writing of this study I have noted more judicial comfort with and reliance upon the objectives in justifying particular support awards; see, for example, Story v. Story, above, note] 7, and Vigneault c. Cloutier, above, note 22.

44 See Smith v. Smith (1986), 5 RF.L. (3d) 398 at 404 (Man. Q.B.); Gray v. Gray (]986), 3 RF.L. (3d) 457 at 462 (Man. Q.B.), affd (1987), 8 RF.L. (3d) ]47 (Man. C.A.); MacKenzie v. MacKenzie (1988), ] 7 RF.L. (3d) 99 (N:B. Q.B.); and Breau v. Breau (1987), 79 N.B.R (2d) 4]2 at 4]5 (Q.B.), where the Court cited a passage in Payne's Commentaries on the Divorce Act, /985 (Toronto: DeBoo, ] 986) to the effect that the objectives are simply guidelines.

45 Smith v. Smith, above, note 44 at 405 (5 RF.L.). The Quebec courts have attached significance to the ordering of the objectives; see above, note 22.


To the extent that generalization is possible, the review revealed that the objective most frequently discussed is that of promoting spousal self-sufficiency. The focus of the reasoning in many of the cases is on the issue of spousal self-sufficiency: Is the spouse yet self-sufficient? Is she capable of becoming self-sufficient? If so, is she making reasonable steps to become self-sufficient? How long' should the attainment of self-sufficiency reasonably be expected to take? This is not to say that in all cases courts are arbitrarily terminating support and deeming spouses to be self-sufficient when they are obviously not. As will be discussed in more detail below, courts are taking divergent approaches to the question of when selfsufficiency has been achieved. The point being made here is simply that, regardless of outcome, the reasoning in the cases is structured around the concept of self-sufficiency.

The other legislative objectives are referred to much less frequently. There are some references to the objective of recognizing the economic advantages and disadvantages to the spouses arising from the marriage or its breakdown. -The discussion of that objective is often ancillary to a discussion of self-sufficiency and mosLoften occurs in cases where courts conclude that a spouse is incapable of becoming self-sufficient. An award of support is then either justified, on the basis that the spouse is suffering a continuing disadvantage due to the marriage, or is denied on the grounds that the incapacity is not a disadvantage flowing from the marriage. The other objectives of apportioning the financial consequences of childcare and recognizing economic hardship are rarely discussed in the case law.46

One partial explanation for the predominant focus on the objective of promoting self-sufficiency may be the dynamics of litigation in this area. A large number of the cases involved husbands who had come to court arguing that support should not be awarded or that an existing order should be terminated either because their spouses were self-sufficient or would have been self-sufficient had they made

46 Again, I think that this has changed somewhat since the completion of this study. I see somewhat more discussion, for example, of the objective of recognizing the disadvantages arising from the marriage and its breakdown and the economic hardship created by the breakdown of the marriage. See, for example, Story v. Story, above, note 17.


appropriate efforts in that regard. The judgments then consist of courts addressing the issue of self-sufficiency, either accepting or rejecting the husbands' arguments.

This dominant focus in the case law on the issue of selfsufficiency as the central organizing concept of spousal support has significant consequences. Even if self-sufficiency is interpreted reasonably rather than unreasonably, a support law which gives priority to spousal self-sufficiency is very different both in philosophical justification and outcomes from a support law structured around concepts of compensation for the economic advantages and disadvantages flowing from marriage and in particular compensation for the past and ongoing care of children. In a support law focused on spousal self-sufficiency, questions of what constitutes adequate compensation for performance of the childcare role and the disadvantages suffered as a result of having forgone the serious pursuit of employment opportunities in early adulthood are never directly addressed. Nor are the issues of the advantages conferred on the other spouse by the marriage or the reasonable expectations generated by a long marriage. It is thus no surprise that undercompensation is the result.

What follows is a more detailed examination of the case law and an attempt to draw some general conclusions despite the diversity of judicial approaches taken. The review has been organized topically with respect to recurrent fact situations. A striking aspect of the case law is the frequency with which variants of two basic fact situations appeared. One involved traditional homemakers who possessed few job skills leaving long marriages ! at a point where the children had already left home. The other involved women in their 30s and early 40s leaving what might be called mid-length marriages in which there were still dependent children. In these cases the women, who had been the primary caregivers of the children, were either not working outside of the home or, if working, had been absent from the labour force for some period of time in the past and were earning significantly less than their husbands. What is notable about both of these situations is that the marriages involved children and that the wives' economic positions at the time of divorce were clearly related to their past and/or present responsibility for children. In many cases the marriages were also fairly lengthy, lasting 15 years or longer.


Because of their typicality, these cases became the focus of the review and the primary test of the fair operation of the spousal support legislation.47

(i) Older homemakers leaving long marriages

The strongest concerns about the new legislation have generally been directed at its impact on older homemakers with no job skills leaving long-term marriages. The fear has been voiced that concepts of spousal self-sufficiency will be applied to this very vulnerable group of women, with the result that they will be given limited-term support for a few years and then deemed to be selfsufficient. It is in these cases that application of the principles of the clean break and spousal self-sufficiency after divorce is most apparently unrealistic and unfair: unrealistic because women in this group are so obviously incapable of reintegrating fully into the workforce and becoming self-sufficient; unfair because of the grossly , inadequate compensation offered to women who had, on the basis of the social norms prevailing at the time they married, devoted most of their lives to the roles of mother, wife, and homemaker with the understanding that their husbands would provide for their economic needs. After marriage breakdown these women wi11 ,continue to suffer pennanent disadvantage from the roles adopted in marriage if they are not provided with support. Furthermore, in these cases of very long traditional marriages in which the children are grown, the wives had virtually completed their part of the bargain which marriage has traditionally been understood to entail. To deprive them of the promised return - economic security - would be unjust.48

One interesting and, in a somewhat qualified way, encouraging aspect of the reported case law is that in these· obvious cases judges

47 Cases involving childless marriages, many of which are also short marriages, were thus not dealt with extensively. There is a somewhat cursory discussion of support claims in the context of short marriages when one spouse suffers from a chronic illness, or disability below at 233-235.

48 The timing of the spousal contributions in a traditional marriage, with the wife performing her most significant obligations at the beginning and the husband's obligations coming into play at the end, and the incentive problems created thereby, are discussed by Ellman, above, note 30.


have not applied the objective of spousal self-sufficiency after divorce in such a way as to terminate spousal support. Although there are examples to the contrary, courts are generally sympathetic toward older women - older typically being interpreted to mean women who are in their 50s49 - leaving very long traditional marriages in which they have never worked outside the home. In these cases courts generally express the view that the objective of promoting self-sufficiency is not to be applied arbitrarily but must be interpreted and applied in context. They recognize that despite their best efforts these women are, because of age, health and limited skills, incapable of becoming self-sufficient. Husbands' requests t,o impose time-limited orders or to terminate support are usually rejected and permanent support is awarded, either as a sole source of income in cases where former wives are unable to work, or as a permanent "top-up" to the usually

I minimal earnings of those women who are able to find some employment.

This is not to say that all is well with respect to the operation of the spousal support law in this area. Problems remain with respect to the quantum of the awards and thus the standard of living provided, as well as with respect to the narrow category of former wives who are entitled to this special treatment. However, a realistic understanding of the ways in which the law is operating well, as well as those in which it is not, is important, both to facilitate effective reform and to inform women and their lawyers of the benefits which courts are currently willing to confer upon former wives.50

49 This is one of the serious problems in the current interpretation of the law. Women under 50 who have been full-time homemakers in marriages as long as 20 years may be expected to achieve full self-sufficiency. The treatment of women in their 40s varies. Sometimes they are treated as older homemakers leaving long marriages who are entitled to permanent support: see Horn v. Horn, above, note 36. But sometimes they are not; see Bast v. Bast, below, note 114, in which support was terminated for a 45-year-old woman leaving a 21-year marriage in which she had been a homemaker.

50 One of the explanations for spousal support agreements in which women agree to less support than they would receive from the courts may be a misperception of the state of the law and a belief that spousal self-sufficiency is being given more weight than at least some courts are willing to assign it. It is thus important that lawyers become aware of those decisions which suggest the possibility of more generous support entitlements.


A. Entitlement to permanent support. One case frequently referred to, which illustrates the contest between contrasting judicial approaches to the support claims of an older homemaker and the victory ' of the more generous approach, is White v. White.51 White involved a former wife who was 57 years old, in poor health, and without job skills and who had never worked outside the home, having spent her time during the 24-year marriage raising three children. She was on welfare at the time of the application. The divorce decree in 1983 provided for spousal support for 2 years, with a further review of the issue at that point. On a subsequent application by the wife for continued support, the husband applied to eliminate support because the wife had not been diligent in looking for work.

The decision of the trial Judge confirms one's worst fears about the inappropriate application of the objective of spousal selfsufficiency and the failure of courts to recognize and compensate former wives for the continuing economic disadvantages which flow from ~arriage. On the trial Judge's reading of the facts, there was no continuing economic disadvantage from the marriage. He found that:

neither the marriage nor its breakdown caused one party to be placed in a position of economic advantage or disadvantage over the other. Likewise, I am unable to conclude that the ex-wife's present economic hardship is directly related to the breakdown of marriage; rather, as I see it, it is attributable to Mrs. White's financial mismanagement and her resistance, towards cultivating economic autonomy.52 .

He then went on to apply the clean break principle and awarded support of $300 per month for 3 years:

It is now well recognized that, at some stage following divorce, spouses are expected to make a clean break with each other and be unburdened from marital responsibilities. What cannot be forgotten is that this is one of the objects of the legislation. The need for support must be balanced with each spouse's ability and willingness, or lack thereof, to find his or her own road in life. One cannot tax the other without limit on the. sole basis that at one time they were married.53

Mr. Justice Hoyt, writing for a majority of the New Brunswick Court of Appeal, removed the time limit on the award, reasoning very

51 White v. White (1988), 13 R.F.L. (3d) 458 (N.B. C.A.), rev' g (1987), 8 R.F.L. (3d) 388 (N.B. Q.B.).

52 Ibid. at 391-392 (8 R.F.L.). 53 Ibid. at 392.

182 CANADIAN FAMILY LAW QUARTERLY [7 c.P.L.Q.]

differently about the application of the concept of self-sufficiency to the case:

[T]he trial judge significantly misapprehended the evidence in that he failed to place sufficient emphasis on the fact that at Mrs. White's age, presently 57, and circumstances it is most unlikely that she will be able to support herself fully. Section 15(4) of the Divorce Act, 1985, S.C. 1986, c. 4, gives legislative recognition to time-limited support orders .... It is my view, however, that they have little place where, as here, the ex-wife is in her mid-fifties, has uncertain health, is without marketable skills or special training and has been part of a lengthy traditional marriage. Focussing more closely on the present situation, there is nothing in the evidence to lead to the conclusion that Mrs. White, even with an aggressive attitude towards work, will ever possess the skills necessary to reach a state of self-sufficiency. For these reasons I would remove the time-limited portion of the order. 54

The case law contains many other examples where, following the pattern in White, courts recognized the inability of older homemakers to achieve self-sufficiency and award permanent support.55 Generally former wives' difficulties in achieving self-

54 Ibid. at 462 (13 R.F.L.). 55 See Gray v. Gray, above, note 44 (husband's request to terminate support of

$700 per month for 66-year-old former wife, who had only pension income of $450 per month, dismissed); Anderson v. Anderson (1987), 8 R.F.L. (3d) 161 (B.C. S.C.) (husband's application to terminate support for 61-year-old wife who had obtained social work degree dismissed); Breau v. Breau, above, note 44 (Court ordering support for 50-year-old wife leaving 25-year marriage who was medically incapable of working); Hickey v. Hickey (1987), 8 R.F.L. (3d) 416 (Nfld. T.D.) (Court dismissing husband's application to terminate support for 57-year-old former wife leaving 23-year marriage who suffered from health problems and had had difficulty finding employment); Linton v. Linton (1988), 64 O.R. (2d) 18, II R.F.L. (3d) 444 (H.C.) (Court awarding 50-year-old wife who had been homemaker during 26-year marriage and who was earning $1,400 per month as clerk-typist permanent top-up support); Rednall v. Rednall (1986), 4 R.F.L. (3d) 337 (B.C. S.c.) (53-year-old wife leaving 24-year marriage awarded $700 per month top-up support).

There are also several contracts cases involving older homemakers leaving long marriages in which courts refuse to terminate agreements to pay spousal support on the grounds that the wife has become self-sufficient: see Brown v. Brown (1988), 17 R.F.L. (3d) 281 (N.B. Q.B.) (bimonthly support of $230 retained for wife after 29-year marriage who was earning $6,500 per year); Cohn v. Leboff (1987), II R.F.L. (3d) 379 (Que. C.A.) (wife aged 55 at time of divorce failing to achieve self-sufficiency 12 years later; spousal support of $345 per month continued); Fetterley (Fetterly) v. FetterLey (FetterLy) (1988), 14 R.F.L. (3d) 47 (Alta. Q.B.), affd (1989), 24 R.F.L. (3d) 61 (Alta. C.A.) (Court refusing to terminate support of $1,200 per month for wife aged 60 at time of divorce after 35-year marriage). In Fetterley the Court, at 54, explicitly noted the tension between "the need to compensate for systemic gender-based inequality and 'the need for finality."


sufficiency are seen to flow from the roles of mother and homemaker adopted during the marriage, and courts also recognize that these economic disadvantages flowing from the marriage will never be overcome. Many of the cases refer to the unfairness of imposing concepts of spousal independence on marriages entered into at a time when social conventions were very different and wives were not expected to be independent.56 In Breau v. Breau, for example, in awarding support for a 50-year-old wife who had been married for 25 years and was medically incapable of work, the Court recognized that:

[T]he financial needs of the respondent originate, in large measure, from her long term assumption of her responsibilities as a mother and homemaker under the complete financial dependency of the applicant. The marriage breakdown has brought about a serious financial disadvantage for her.

Considering her age, her ill health, the duration of the marriage, the nature and origin of her needs, it would be unreasonable, in my view, to look upon the respondent as having an obligation to assume responsibility for herself at this time.

While it may seem obvious that the policy objectives already referred to suggest quite strongly that spouses should be encouraged to attain economic self-sufficiency after a divorce or that the purpose of financial provision on dissolution of marriage should be one of rehabilitation to overcome economic disadvantages caused by the marriage or its breakdown, the facts of this case are not necessarily compatible with such policy objectives and, in my view, it is not unreasonable to require the a~.plicant to continue to bear some responsibility for the respondent's support.

Many courts in awarding spousal support under the Divorce Act are now applying a test of causal connection as a condition of entitlement to support. The test has its origin in three cases, commonly referred to as "the trilogy", decided under the Divorce Act, 1968, and which involved claims for spousal maintenance in the face of provisions in separation agreements which had terminated the sup-

56 See Brickman v. Brickman (1987), 8 R.F.L. (3d) 318 (Man. Q.B.). 57 Above, note 44 at 416. See also Hickey v. Hickey, above, note 55, in which the

Court recognized at 425: "In this case, the work skills possessed by the petitioner at the time of the marriage became, during the course of the marriage, unmarketable because she spent most of her married life as a homemaker. The respondent has made a supreme effort to become sell-sufficient, but without success, and I conclude she has demonstrated a meritorious need for continued financial support from her former husband."


port obligation. 58 Although its extension beyond contract cases remains contentious, many courts have extended the causal connection test to "pure" support applications not involving final agreements. In essence the test requires a connection between the claimant spouse's economic needs and the marriage before an entitlement to support will be found to exist. As will be discussed below, in many spousal support cases the test is being applied very restrictively to deny the economic disadvantages flowing from the marriage and to assign responsibility for a former wife's economic circumstances to her own lack of efforts or to social factors extrinsic to the marriage, thus absol ving the former husband of responsibility. 59

Interestingly, in the cases involving older homemakers leaving very long traditional marriages, concepts of causal connection tend not to be strictly applied so as to deny entitlement to support. Courts tend to be fairly sensitive to the difficulties faced by older workers attempting to reintegrate into the labour force after a long absence: former wives tend not to be blamed for making insufficient efforts60

and husbands are not absolved of responsibility for their former wives' support on the grounds that the labour market or the economy is responsible for discrimination against older women. Causal connection to the marriage tends to be acknowledged rather than denied.

58 Pelech v. Pelech, [1987] 1 S.C.R 801, 7 RF.L. (3d) 225; Richardson v. Richardson, above, note 16; Caron v. Caron, [1987] 1 S.C.R 892, 7 R:F.L. (3d) 274. For a fuller discussion of the causal connection test see Rogerson, above, note 23. Two appellate court decisions reported after completion of this study have concluded that the causal connection test does not apply to pure support applications where there is no agreement: see Story v. Story and Doncaster v. Doncaster, above, note 17.

59 In Rogerson, above, note 23, I am critical of the application of the test rather than of the concept of causal connection per se.

60 See, for example, White v. White, above, note 51. One example of a case in which the Court terminated the support of a long-term traditional homemaker was Bodor v. Bodor (1988), 12 RF.L. (3d) 425 (Alta. Q.B.). The wife, who was 53 years old and had been a full-time homemaker during a 28-year marriage, was denied support because she had done nothing since separation to seek employment, had emotional problems for which she had not sought help, and had mishandled the more than $200,000 she had received as a result of matrimonial property division. The case was perhaps somewhat unusual on its facts because of the relatively large amount of matrimonial property involved and also because of an economically "parasitical" (to use the Court's term) relationship which had developed between the wife and a young woman and which obviously troubled the Court.


Most notable in this respect is Rednall v. Rednall, in which a court awarded indefinite support to top-up the earnings of the 53-year-old wife who had been married for 24 years and had found employment after the marriage breakdown at $700 per month. The Court did not blame the wife's difficulties in finding employment on the labour market rather than the marriage:

I am not surprised that [Mrs. Rednall] has found the transition to her new single state to be somewhat overwhelming. This difficulty is a natural consequence of the role which she played for some 24 years as a mother, wife and homemaker. In these circumstances, while I consider it to be in the spirit of the Divorce Actto promote the concept of self-sufficiency, I cannot ignore that the achievement of such a state will be thwarted, firstly, by the realities of the market place and, more subtly, by her own diminished level of selfconfidence. Training may overcome the first hurdle, but some determined effort will be required to overcome the more subtle problem of asking a 50-year-old woman, with no real history in the work force, to muster the courage and confidence to strike out on her own.

In the circumstances, I consider that Mrs. Rednall is indeed entitled to permanent maintenance. I do not believe that in the next seven years she will ever attain a level of complete self-sufficiency.61 [Emphasis added.]

As will be discussed below, in cases involving younger women, the attainment of full-time employment of any sort is often interpreted as the achievement of self-sufficiency and the severing of any causal link with the marriage. However, in at least some of the cases involving older homemakers, top-up support was awarded even in cases where wives had attained full-time employment. The courts are sometimes able to infer from the nature of the employment available to , older unskilled homemakers the existence of a continuing economic disadvantage flowing from the marriage. There is a recognition, in at least some of the cases, that the former wife's "needs", the standard _against which self-sufficiency is judged, are to be interpreted in light of the former standard of living.

Rednall, just discussed, is one example of this generous interpretation of needs and self-sufficiency. An even more striking example is Linton v. Linton, in which top-up support was awarded to a former spouse who was divorced at the age of 50, after having been primarily a homemaker during a 26-year marriage. The Court recog-

6] Rednall, above, note 55 at 358. See also the comments in Anderson v. Anderson, above, note 55 at ] 63: "[T]he respondent ... is 6] years of age; to become fully employed as a social worker, while competing with younger people in the present job market, is not particularly realistic."

186 CANADIAN PAMIL Y LA W QUARTERLY [7 c.P.L.Q.]

nized the continuing disadvantage Mrs. Linton suffered as a result of the marriage and its breakdown and found her not to be self-sufficient in the clerk-typist position paying $1,400 per month that she had attained after marriage breakdown:

On the facts of this case I am presented with a 50-year-old woman who participated largely as a homemaker in a 24-year marriage. At 21, she gave up a job which could have led in many positive directions and went into that marriage. There were many struggles for her and her husband in the early years but, after 1972 or so, they led a very comfortable upper middle-class lifestyle.

It is clear that I must take into account in Mrs. Linton's favour the long duration of the marriage and the functions she was required to perform under the division of labour peculiar to the marriage. Since the break-up of the marriage she has done everything she could to obtain gainful employment at a maximum level consistent with her age and abilities. Still, however, she has suffered and will continue to suffer economic disadvantage from the break-up when measured against the current and future position of her husband.62

Nor, with respect to the causal connection test, do judges in cases involving older long-term homemakers use the wife's illness as a ground for disentitlement by claiming that it, is the illness which is responsible for the wife's inability to work and attain self-sufficiency rather than the marriage. One typical example is Breau v. Breau,63 in which permanent support was awarded to a 50-year-old former wife who had been married for 25 years and was medically incapable of working. In these cases illness is not usually isolated as a factor but is seen in the overall context of the long-term relationship of economic dependency established during the marriage.64

62 Linton, above, note 55 at 462 (R.F.L.). See also Payne v. Payne (1988), 16 R.F.L. (3d) 8 (Ont. H.C.) (49-year-old wife leaving 27-year marriage awarded permanent support of $500 per month to top-up anticipated earnings of $1,000 per month).

63 Above, note 55. 64 See Story v. Story, above, note 17, decided since completion of this study, for

the recognition that in a long marriage in which the wife has been economically dependent upon the husband, she has given up the opportunity to accumulate resources and make economic provision for future misfortunes such as illness. Story is a significant case because that reasoning is extended to a wife who was in her 40s at the point of marriage breakdown. The Court recognized a 20-year marriage as a long marriage, thus extending the scope of the more generous support principles being discussed in this section.


B. Counter-examples: limitations on support in long-term marriages. The commendable aspects of the case law dealing with the support entitlement of older homemakers having been recognized, it must also be acknowledged that exceptions do exist to the general tendency to recognize that older homemakers are not capable of achieving self-sufficiency and thus require permanent support. As in all areas of spousal support, the case law here is not entirely predictable. The exceptions draw on themes and modes of reasoning that are far more common in the next grouping of cases to be examined, those involving middle-aged women leaving somewhat shorter marriages.

In some cases courts express their discomfort with the idea of permanent support and indicate that even in those cases involving long-term, traditional marriages some end must eventually be brought to the support obligation, even if the wife is not self-sufficient. This may be referred to as the "timing" factor: the idea that the passage of time itself requires the termination of support in order to give some effect to the objective of bringing about a clean break between the spouses. One such example is Walsh v. Walsh.65 In Walsh the New Brunswick Court of Appeal did uphold an award of indefinite support to a 53-year old woman who had left a lengthy traditional marriage, was without marketable skills, and who, despite her best efforts, had been unable to become self-sufficient. However, after making many sensitive observations about the wife's inability to become selfsufficient, the Court refused to subscribe to the trial Judge's opinion that the husband was under a duty to see to the wife's support until she obtained ·a sure source of income. This suggests that the Court contemplated a possible termination of the support obligation even if the wife were not economically secure.

Another, more significant set of exceptions concerns older wives leaving long-term marriages who have worked at some point during the marriage, albeit at unskilled, lowly paid, perhaps part-time jobs. In these marriages the wives have clearly subordinated their employment prospects to family obligations and after marriage breakdown will continue to suffer economic disadvantage from their roles In the marriage. However, because of their involvement in the

65 (1988),16 R.F.L. (3d) I (N.B. C.A.).


workforce during the marriage, they conform less completely to the conventional image of the traditional homemaker and as a result they elicit a somewhat less sympathetic response from the courts. These cases illustrate that the category of former wives exempt from the normal rule of eventual termination of support and economic selfsufficiency is very narrowly defined. It includes only women who conform perfectly to the conventional image of the traditional homemaker who, at the age of 50, has devoted her entire adult life to home and family. As will be discussed more fully below, women who are even slightly younger may not qualify for this more generous treatment. Women in their late 40s leaving long marriages may be viewed as still capable of reintegration into the labour force. Excluded as well are those women who have departed ever so slightly from the traditional role of homemaker by having engaged in some form of paid employment during some part of the marriage.

One such case is Ellis v. Ellis,66 which involved a 29-year marriage, dissol ved in 1980 when the wife was 48 years of age. The wife had a grade 10 education and few job skills, although she had worked on and off during the marriage. After the marriage breakdown she had tried but failed to achieve self-sufficiency. She had been receiving support of $1 ,000 per month. In 1988, when she was 56, she applied to increase the support to $1,500 per month, while the husband applied to reduce support to $550 per month. The Court rejected the husband's position that the wife was capable of achieving complete economic self-sufficiency and recognized the wife's limited possibilities for integration into the labour force given her age and health. They nevertheless awarded the wife support of only $750 per month, rather than the $1,500 she had requested or even the $1,000 she had been receiving. In reaching this result the Court concluded that although the wife did experience economic disadvantages be-

66 (1988), 15 R.F.L. (3d) 252 (Sask. Q.B.). See also MaLnar v. MaLnar (1986), 46 Man. R. (2d) 122 (Q.B.), in which a 57-year-old wife leaving a 37-year marriage was denied interim support. Because she had worked as a seamstress in Europe and in Canada between 1972 and 1978 the Court concluded that she 'would be found capable of working as a seamstress and thus denied support at trial. Although the reasoning on the support issue is very troubling, the result is not as open to criticism, given the wife' s assets of $157,000 which earned an income of $1,000 per month. . Nonetheless, her income position was much weaker than that of her husband. .


cause of her primary responsibility for children during the marriage, these disadvantages ceased once the children were in school because she had then re-entered the labour force:

This wife was never just a homemaker. She was not absent from the work force continuously. Her absence from the work force was not such that it prevented her from returning to work once the children were in school. Her ability to find suitable employment may have been impaired for a certain number of years but that time period has now long expired.67

A different and stricter standard was applied to Mrs. Ellis because of her prior connection to the workforce, and the judgment is infused with a judicial suspicion that she is making insufficient efforts at attaining self-sufficiency. Despite statements in the judgment recognizing the limits on the wife's ability to become self-sufficient, the Court imputed that a modestly low award was perceived as necessary to spur efforts towards self-sufficiency:

Will a continuing order at the level of $1 ,000 per month simply encourage the wife not to reintegrate into the work force but maintain her state of dependency? If so, this would be contrary to the broad objective of promoting economic self-sufficiency. 68

C. Quantum. The cases which have just been discussed must be placed in context. They are, as has been noted, exceptions to the general tendency to moderate the application of the concept of selfsufficiency in cases involving older homemakers and to award permanent support. These exceptions are indicative of concepts which surface much more frequently in cases involving somewhat younger women and . somewhat shorter marriages. Generally, traditional homemakers aged 50 years and older are not being completely abandoned and left to their own resources because of a dogmatic adherence to the philosophy of spousal self-sufficiency. This does not mean, however, that there are no problems with support awards in this area; it only means that the problems are somewhat less extreme and less obvious than might have been anticipated. The problems in these cases are to be discovered not so much in the express reasoning on matters of principle, but rather in the results - the quantum of the awards and the standard of living experienced by former wives after divorce.

67 Ellis, above, note 66 at 259-260. 68 Ibid. at 260.


The cases involving long traditional marriages constitute the strongest case for spousal support orders made in accordance with the traditional notion that wives are to enjoy the marital standard of living after divorce - or more realistical1y, that the spouses should enjoy a similar standard of living after divorce, sharing equal1y the drop in standard of living necessitated by the divorce and the maintenance of two households. In long marriages, particularly those characterized by a traditional division of labour, the complex interconnection of the spouses' lives over a long period of time makes it impossible to segregate them as economic actors and determine where they would have been but for the marriage. Where wives have had little or no serious connection to the labour force for over twenty years it is impossible to determine with any accuracy the income level and standard of living they might have been able to attain for themselves had they not married and instead engaged in the serious pursuit of employment opportunities.

But resort to the accustomed standard of living in determining levels of spousal support is more than a default position adopted in the absence of accurate evidence of the employment losses suffered by former wives. Fora compensatory model of support compensates not only for losses experienced, but also for advantages conferred. The standard of living built up during a long marriage, particularly a traditional marriage, must be understood as the result of the joint contributions of the spouses.69 In a traditional marriage the most significant contributions of the wife are made in the earlier part of the relationship, in the form of rearing the children and providing a supportive environment in the crucial early years when her husband is establishing his position in the labour force. At the point in time when the long-term marriages now under consideration break down, the wives have essential1y completed their part of the traditional bargain understood to be entailed in the marriage.70 They should thus be entitled to enjoy the economic fruits of the marital partnership - the

69 See Sugarman's idea of the merger of human capital over time, above. note 34. Horn v. Horn, above, note 36 is one of the few cases recognizing the advantages occurring to the husband in a long traditional marriage in having been able to pursue a career and achieve secure employment.

70 For a discussion of the implications of this see Ellman, above. note 30.


standard of living built up during the marriage which is based not just upoh the capital assets acquired during the marriage but also upon the income-earning capacity of the husband.7]

Judged by the standard outlined above - the enjoyment by the spouses of equal standards of living post-divorce - almost all of the reported cases involving long, traditional marriages fall short. In only one case, Butler v. Butler,72 did the Court, which awarded the wife support of $2,000 per month out of her former husband's monthly income of $4,600, articulate the idea that because of her contributions to the family over the course of a 34-year marriage, she was entitled to a standard of living equal to that enjoyed by her husband. In all of the other reported cases reviewed husbands were left in much better income positions after divorce than their wives. Thus while the principle of self-sufficiency is not being applied in these cases at the more abstract level of entitlement, it asserts itself less obviously in the assessment of quantum.

In Veres v. Veres, which involved a 31-year marriage, the Court expressed a fairly typical view, stating that while it was the purpose of new family legislation to equalize property, such was not the case with respect to income. Marriage was "not to be viewed as an insurance policy providing a guaranteed income.,,73 As a result, the term "need" in the support legislation was to be interpreted in light of the objective of promoting self-sufficiency as early as possible and the principle of the clean break. Applying those principles, the Court ordered the husband, who earned $73,000 a year, to pay his 54-yearold wife spousal support of $1,000 a month. When this was combined with her own earnings of $19,000 per year, the wife was left with an annual income of $31,000. Judged on its own this is not an unreasonable income, and is certainly above bare subsistence. Nonetheless, it is only 50 per cent of the income retained by the husband even after he had paid support.

7] The same would not necessarily pertain in shorter maniages. The salient feature in the cases being discussed is that the wife has substantially completed her end of the bargain:

72 (] 987), 9 R.F.L. (3d) 70 (Nfld. U .F.C.). 73 (1987),9 R.F.L. (3d) 447 at 452 (Ont. H.C.).


In some cases support was still generous and although former wives were not left with the marital standard of living they were given, in the terminology frequently adopted by the courts, support sufficient to maintain a "reasonable" standard of living judged in light of the former standard of living.74 The case involving the highest support award in dollar amounts and in which the former wife enjoyed the highest post-divorce income level is Linton v. Linton.15

Mrs. Linton, who was 53 years old and had been part of a traditional marriage for 26 years, was awarded permanent spousal support of $2,500 a month to top-up her own earnings of $1,400 per month. This gave her a gross annual income of $46,000 and a net income of $33,000. Mr. Justice Killen's reasons are to be commended for their recognition of the serious financial impact of marriage breakdown on women. Indeed, he refers in the course of his reasons to Lenore Weitzman's research on the subject. The award is a generous one compared to the other cases examined and is hardly to be scoffed at; nonetheless, even Mrs. Linton was left with a net income of only 50 per cent of that enjoyed by her husband. Mr. Justice Killen made clear that the objective was to guarantee a "reasonable" standard of living, rather than the standard · of living enjoyed during the marriage or an equalization of any drop in standard of living.

The result in Linton, despite the possible criticisms which may be levelled against it from a theoretical perspective, appears all the more acceptable as an outcome when contrasted with the majority of the cases reviewed involving long-term marriages. In many of the cases, although permanent support was awarded, the amounts awarded were very low, providing at best a minimal standard of living. The worst cases were those where former wives were unable to supplement spousal support with any earnings of their own, either because of an inability to work or the unavailability of jobs. Wives

74 In a decision of the Nova Scotia Court of Appeal handed down since completion of this review in Heinemann v. Heinemann, above, note 17, the Court concluded that in traditional marriages spousal support should be awarded to enable the former wife to enjoy a "reasonable" standard of living assessed against the former standard of living. The notion that the provision of equal standards of living' should be the objective of spousal support in traditional marriages was explicitly rejected by the P.E.I. Court of Appeal in Mullin v. Mullin, above, note 17, discussed more fully below at n.ote 124.

75 Above, note 55.


who were able to supplement support with their own earnings were left somewhat better off. , Perhaps the starkest example is offered by Breau v. Breau,76 a

case'discussed earlier. Although the case contains commendable passages recognizing the wife's continuing claims on her husband because of the long marriage and the role she had played in it, the end result in the case was an award of $100 per month to supplement the wife's pension income of $475 per month. Admittedly the case was a difficult one because the husband, who was supporting a new wife and child, was unemployed and collecting $244 per week in unemployment insurance benefits. However, the disjuncture between the principle and the actual outcome is extreme. Similarly in White v.

White,77 although the New Brunswick Court of Appeal removed the 3-year time limit on support, speaking harshly of its inappropriateness in the context, the amount of the award was only $300 per month; When supplemented by the $250 a month that the wife received from her daughter, the wife was left with $550 per month, only 23 per cent of what her husband, who had pension income of $2,500 per month, retained after paying support. In Anderson v. Anderson,78 a former wife who was unable to find employment and whose unemployment insurance benefits had run out was subsisting on support payments of $300 per month. The husband, meanwhile, had an income of $5,000 per month. .

" in Cymbalisty v. Cymbalisty,79 the Court expressed its understanding that self-sufficiency meant either full-time employment or an income of approximately $20,000 per year, thus explicitly articulating an unacknowledged rule which appears to be operating in many of these cases. The former wife, who had been married for 27 years and was working part-time and earning approximately $10,000 per year, was awarded support of $750 per month. This brought her to the

76 Above, note 44. 77 Above, note 51. Ironically, White is often referred to as the leading precedent

for the entitlement of an older homemaker to permanent support. 78 Above, note 55. In dismissing the husband's application to terminate spousal

support the Court, bound on a variation application by an assumption that the original awarclwas correct at the time it was made, explicitly commented on the low amount of the original award.

79 Above, note 19.


Court's desired outcome, an annual income of approximately $20,000. Her husband, an accountant, earned an income of $70,000 per year, leaving him, after support payments, with an income almost 70 per cent greater than that of his wife. As further evidence of the effect of the principle of self-sufficiency in assessments of quantum, in two cases, Gray80 and Ellis,8) amounts were consciously set at a modest level to "encourage" the former wives to become selfsufficient, although on the facts there was little evidence of their ability to find remunerative employment.

In order to provide some evidence to support the impression concerning outcomes left by a reading of the cases, 27 cases involving long-term marriages and the award of permanent support to women in their 50s were analyzed.82 Although there were cases at either extreme (two cases involving awards in the $100-$199 per month range; two cases involving awards in the $200-$299 range; four cases in the $1,000-$1,999 range; and two cases in the $2,000 and over range),83 the majority of cases fell in tpe, middle 'range (five cases involved awards in the $300-$499 range; two cases in the $500-$699 range; and 10 cases in the $700-$999 range). A large number of cases involved awards of $750 or $800 per month.

Dollar amounts of awards mean very little on their own. Of more significance is the final income position of these wo~en when support payments are combined with their other sources of income, to the extent that they exist. Of the 25 cases which provided enough relevant information for the analysis, in six cases women were left with incomes under $10,000 per year; in five cases they had incomes

80 Above, note 44. 8) Above, note 66. 82 Only those cases involving initial applications for support at a time when the

wife was 50 years of age or older were considered. Variation applications brought when wives were this age but where the marriage breakdown had actually occurred some years before, when the wives fell into the judicial category of "middle-aged" rather than "older", were excluded. As will be discussed in more detail below, different principles are applied in these cases because of the longer period of time involved in a permanent support obligation. The o.bligation is thus often terminated after the passage of.a certain number of years.

83 This is an example of the sampling problems created by reliance upon reported cases where it is likely that cases involving wealthy parties are disproportionately represented.


between $12,000 and $16,000 per year; in four cases between $16,000 and $20,000; in seven cases between $20,000 and $30,000 per year; and in three cases above $30,000 per year. Thus, in the majority of cases women were left with incomes below $20,000 per year, confirming the rule articulated in Cymbalisty. "

The most significant analysis is that which compares the respective income positions of the former spouses after the payment of support is taken into account. The low income position of former spouses, while obviously a serious social problem, cannot be attributed to the unfair operation of spousal support law if the case is one of inadequate family resources and former husbands who also suffer from inadequate incomes. Nineteen cases offered sufficient information in this respect. In two of the cases wives were left with incomes less than 10 per cent of those enjoyed by their former husbands; in three cases between 10 and 29 per cent; in four cases between 30 and 49 per cent; in seven cases between 50 and 69 per cent; in two cases between 70 -and 89 per cent; and in only one case between 90 and 100 per cent. 84 Thus in all but one case former wives had lower income levels than their husbands and, more significantly, in many cases the discrepancies were quite large.

D. Conclusion. Although wives leaving long-tenn traditional marriages are not generally left completely on their own by support law, the support awarded gives them in many cases only a very

. modest standard of living, and in almost all cases one that is significantly below that enjoyed by their husbands. It is clear even in these cases that the courts do not seriously approach support as a matter of compensation; they approach it through the lens of selfsufficiency and attempt to ensure a standard of living at which the former wife can meet her minimal needs and at best her "reasonable" needs. Spousal support appears to operate by analogy to a social security scheme, the goal being to provide a basic standard of living for former spouses; it is not analogized to schemes of matrimonial

84 In five other cases specific financial data was not available, but one would suspect a fairly large gap in incomes given the professional or business nature of the former husbands' employment.


property law designed to compensate for spousal contributions to the marriage and the family. There is no sustained analysis in t~e cases of what fair compensation for the advantages and disadvantages resulting from the marriage and its breakdown would require. Judged by that standard, the awards, even in this part of the case law where the awards are most generous, generally fail. Women leaving longterm marriage are not being adequately compensated either for their contributions to the family and to the creation of the marital standard of living, or for the losses they have suffered in terms of their own employment potential. As well, because in almost all of these marriages women have removed themselves from the labour force to care for children, it can also be said that the costs of past child-rearing are not being equitably shared by the spouses.

(ii) Mid-length marriages: working wives and custodial mothers

Although they have tended to be the primary focus of public concern respecting the impact of new spousal support laws, the group of cases just examined involving wives in their 50s leaving very long traditional marriages constitutes a relatively small proportion of the reported cases examined. So, too, does another group of cases, divorces involving short childless marriages, which may be either first marriages or second marriages and in which spouses, in general, tend to suffer fewer economic disadvantages because of arrangements adopted during the marriage.85 The majority of cases involved situations in which the breakdown of the marriage occurs when wives are

85 This is not to say that no claims may flow from such marriages. There may be claims to compensatory support based on contributions to the other spouse's acquisition of an educational degree or professional licence. See discussion below at 214-217. There may also be disadvantages suffered from marriage breakdown in terms of loss of the former standard of living. In these cases the claim to support is not as strong as in cases involving a spouse's withdrawal from the labour force to care for children. The claim is based upon reliance alone. The strength of the claim increases with the length of the marriage and thus will not create an extensive entitlement to support in short marriages. See discussion above at note 38 and the discussion in the text of the treatment of illness in the case of short marriages below at 233-235. It should be noted that some childless marriages do fall into the category of long marriages: see Pick v. Pick (1987), 11 R.F.L. (3d) 14 (Sask. Q.B.), varied (1990), 25 R.F.L. (3d) 331 (Sask. C.A.). .


in their mid-30s or early 40s, and in which there are often children still living at home.86

There are undoubtedly marriages of this sort in which both spouses have pursued their employment prospects relatively unimpeded by family responsibilities - or perhaps more realistically, equally impeded. However, these "modem" marriages were not represented in the reported cases reviewed.87 Typically in the reported cases, the wives will have worked during the early parts of the marriage, often helping their husbands to establish their careers, then withdrawn from the labour force once children were born . . In some of the cases the wives are not working outside of the home at the point of marriage breakdown because of continuing childcare responsibilities; in others they have returned to work in the latter part of the marriage as the children have grown older, often working parttime and usually earning much less than their husbands.88 These marriages differ from the traditional marriages examined above in that the

86 It should be noted that included in this category may be cases involving women leaving fairly long marriages of 15 to 20 years, and in some cases situations where the children may already have left home. However, because of their age (i.e., below 50) these women are viewed as young enough to achieve selfsufficiency. There are also cases involving short marriages, but where children have been born. In these cases wives may not have been out of the workforce for as long as women in what I am calling mid-term marriages and are also younger, therefore tending to make successful reintegration more possible. However, continuing childcare responsibilities, if these women receive custody, place them more accurately in the same grouping as mid-term marriages. In particular see BroCkie v. Brockie, below, note 143. There are also, hypothetically, mid-term marriages involving children . but where both parties have worked continuously and to their full potential, unaffected by childcare responsibilities, and where neither spouse has been economically disadvantaged by the marriage; No such cases were discovered in the review. Although judges treated some of the cases as if they conformed to this model, the significantly lower earnings of the wives cast doubt upon this: see Sookocheff v. Sookocheff (1988), 15 R.F.L. (3d) 303 (Sask. Q.B.); Theriault v. Theriault (1987), 10 R.F.L. (3d) 256 (N.S. Fam. Ct.).

87 See above, note 86. The distinction between traditional and modern marriages in terms of entitlement to support was articulated by the Nova Scotia Court of Appeal in Heinemann; see below, note 125. Under this test there is a danger that courts may interpret any involvement by the wife in the labour force as evidence that the marriage is a modern one.

88 Although significant differences in income do not always indicate a traditional marriage and an employment disadvantage suffered by the wife because of family responsibilities, there is a strong correlation between the two; see above, note 30.


wives have not devoted themselves exclusively to the homemaker role and have had some involvement in the paid labour force.89

However, to the extent that family obligations have taken priority over the wives' employment, but not their husbands', these marriages are more accurately thought of as traditional marriages rather than modem marriages.

After divorce these women, who have limited income-earning capacity because of the roles adopted during marriage, usually retain custody of the children.90 This responsibility will continue to limit their ability to earn income. The responsibilities of childcare, depending upon the ages and number of children and their special needs, may in some cases make full-time employment difficult and limit them to part-time employment. As well, continuing childcare responsibilities limit former wives even more in their ability to engage in extensive upgrading of'skills and re-education. They have neither the time nor, in the absence of significant support or payments, the financial luxury of giving up needed earnings during the period of retraining.

When the children leave home and custodial mothers are freed from their post-divorce childcare responsibilities, they are either in their late 40s or early 50s. At this point in their lives the possibilities of reintegration into the labour force in any way commensurate with where they might have been had they entered in their 20s and fully developed their income-earning capacity are remote. These women thus begin to resemble the group of "older" wives leaving very long marriages, even though their marriages may have ended 10 or 15 years earlier.

Two cases have been selected from those reviewed because, on their facts, they illustrate in a very graphic way the long-lasting and potentially devastating economic consequences on women of having performed the childcare function both pre- and post-divorce. The first is Gowland v. Kubsch.91 In Gowland the marriage itself was a very short one: the parties separated in 1965 when their child was 15

89 Often because of a need to supplement the family income. 90 This is true in most, but not all cases. For the custody arrangements in the

reported cases reviewed see Part II of this article, note 7. 91 (1987),8 R.F.L. (3d) 207 (N.S. Fam. Ct.).


months old. The mother quit her nursing job in 1968 to look after the daughter. The husband paid combined spousal and child support of $300 per month until 1982. At that point the daughter had turned 18 and the' support was varied to $200 per month for the wife. The wife had been unable to secure a job as a nurse in Quebec because bilingualism requirements had been imposed since she last worked. Because of her limited funds she had been unable to retrain, and as well was hindered both by her age and health problems. She had an income of only $525 per month from part-time work.

In 1987 the husband applied to terminate support because he had remarried and because of a drop in his income from $43,000 to ' $25,000, due to health problems. The application was allowed and support of $100 per month continued for only another year. The support was terminated in the face of an explicit acknowledgement by the Court that the former wife's inability to attain self-sufficiency stemmed from her responsibilities to the child:

I am satisfied that Ms. Kubsch has not been economically selfsufficient in the past because she has had to care for her daughter. She has borne the greater financial responsibility in the care of the daughter, much to her economic and social detriment.92 '

The second example is Smith v. Smith.93 Smith involved a 23-year marriage which ended in divorce in 1970. Although the marriage was a long one, because the wife was middle-aged at the time of the divorce, it was not treated according to the principles discussed above whereby permanent support is awarded to older, traditional homemakers.94 The wife was 44 at the time of the divorce and in somewhat poor health, having had two strokes and a heart attack during the marriage.95 There were six children of the marriage, five of whom were still dependent at the time of the divorce and who were left in the custody of the wife. The husband had been paying com-

92 Ibid. at 210. 93 (1986),5 R.F.L. (3d) 398 (Man. Q.B.). 94 In cases where wives are middle-aged at the time of divorce, courts are in

fluenced by the length of time support would have to be paid if permanent support were ordered. Courts thus impose an eventual termination of the obligation.

95 For a fuller discussion of the effect of illness on entitlement to spousal support see the discussion below at 231-236.

200 CANADIANFAMILYLAWQUARTERLY [7 C.F.L.Q.]

bined spousal and child support of $175 per month pursuant to a separation agreement, as well as the wife's rent.

In 1986 the wife, who was 60 years old and on social assistance, applied for an upward variation while the husband applied to terminate support. The Court allowed the husband's application and awarded the wife lump sum support of $3,500. The result was justified on the grounds that the wife's hardship was not related to the marriage, and that any economic disadvantage she suffered as a result of the marriage and its breakdown had been dissipated over the ensuing 16 years. It is difficult to read the facts of the case, however, and not believe that Mrs. Smith found herself in the position she was in because she had had primary responsibility for raising six children. · Although both Gowland and Smith offer fairly extreme fact situations, they effectively illustrate the continuing economic disadvantage suffered upon divorce by those who have devoted themselves to childrearmg.

A support law which took seriously not only the objective of promoting self-sufficiency, but also the objectives of recognizing the economic advantages and disadvantages of the marriage and apportioning the costs of childcare, would, in the absence of a very large property settlement, provide generous support in many of the cases involving mid-length marriages. Support would be awarded both because of what went on during the marriage and also because of the continuing post-divorce care of children. With respect to the past, such a support law would recognize two things. It would recognize, first, the economic loss former wives have suffered by sacrificing their own career development for family purposes, particularly for the purposes of child-rearing.96 Reintegration into the labour force for these women, although not as difficult as for traditional homemakers in their 50s, is still not easy and not something which can be accomplished quickly, especially if few job skills were acquired prior to the birth of the children. It will often require significant retraining and upgrading of skills if more than minimum-wage, unskilled employment is to be attained. Substantial spousal support for a sig-

96 For a discussion of the significant economic consequences of women's withdrawal from the labour force, for even relatively short periods of time, see Pask & McCall, above, note 4.


nificant period of time will thus be required for these women to realize their current income-earning potential.

Furthermore, even if these women do successfully reintegrate into the labour force, in many cases it is unlikely that they will ever realize the income-earning capacity they would have had if they had given priority to their employment future in their 20s. This becomes more true the longer the marriage, and hence the older the wife and the longer her absence from the workforce. In many cases, that loss may never be recovered. This suggests that if a compensatory model of support were taken seriously, many of these cases would require, in the absence of very generous property awards, either permanent topup support or a large lump sum payment.

In addition to compensation for economic loss and economic disadvantages suffered because of the marital division of labour, compensation may also be required for spousal contributions made to the marriage. Sections 15(7)(a) and 17(7)(a) of the Divorce Act speak of support recognizing the economic advantages as well as disadvantages of the marriage and its breakdown, thus suggesting the possibility of spousal support being used to compensate for benefits and advantages conferred on the other spouse. In many cases wives contribute, both directly and indirectly, to the development and enhancement of their husbands' income-earning capacity. Their efforts are typically understood as part of a partnership directed at building up a standard of living for the family and ensuring the family's financial security through a divis,ion of labour. As well, the personal performance of childcare responsibilities can be thought of as the conferral of a valuable benefit on the family unit and one which requires adequate compensation. Again, the longer the marriage, the longer the period of contribution, and hence the greater the claim to compensation.

All of the above consequences with respect to support law flow simply from what happened during the marriage and would apply even if the former spouse did not receive custody of the children after the marriage breakdown. However, as discussed above, in many cases the former spouse does retain primary responsibility for childcare after divorce, thus creating even further demands for spousal support. A spousal support law which took seriously the ob-


jectives found in sections 15(7)(a) and (b) would be required to recognize, as the indirect costs of childcare, the further economic disadvantages suffered by custodial parents during the post-divorce period and the limits this childcare responsibility places upon their ability to become self-sufficient. Furthermore, during this period spousal support would also be understood, in part, as an adjunct of child support, . for if the custodial parent is deprived of support the household as a whole, including the children, suffers a reduction in standard of living.

Finally, if significant retraining or reintegration into the labour force is not possible while the former wife remains responsible for post-divorce childcare, spousal support would likely have to continue after the children have left home. It must be recognized that these former spouses, despite the passage of time since their divorce, are, because of their long-ter'm performance of the childcare function, in a position similar to the "older" wives discussed above for whom full self-sufficiency is not realistic and who will never be able to recover from the economic disadvantage of having had primary responsibility for the care of children.

The specific contours of a truly compensatory spousal support law in these circumstances with respect to quantum and post-divorce standard of living are more difficult to define than in cases involving long-term traditional marriages. Leaving aside issues of child support,97 the claim to the marital standard of living is not as uniformly strong in these cases. Because of the variety of fact situations covered, it is more difficult to develop a single standard to be applied in all cases. The appropriate amount and duration of support will be a function of the length of marriage, the age of the spouses at the point of breakdown, the degree to which the wife's employment prospects were sacrificed during the marriage, and the degree to which childcare responsibilities and financial constraints limit her post-divorce possibilities for retraining and labour force reintegration.

97 This is a major qualification, for if the goals of child support are taken seriously, it can be argued that in all cases where former wives have custody of children there should be a claim to, if not the marital standard of living, at least equal standards of living. This is discussed extensively in the second half of this review devoted to issues of child support.


In shorter marriages and/or those in which wives have maintained a significant involvement in the labour force during the marriage, a period of limited-term support for retraining or a lump sum compensatory order, after which the wife is consigned to the standard of living she can provide as a result of her own earnings, may be appropriate.98 The longer the marriage and the greater the degree to which the wife has sacrificed her employment prospects for the family, however; the more difficult it becomes to segregate the spouses as economic actors and to isolate their individual losses and gains from the marriage. The claim to a post-divorce sharing of the marital standard of living thus becomes stronger, requiring either permanent top-up support or a very generous capital transfer.

Given the younger ages of spouses at the point of marriage breakdown in these cases and hence their longer post-divorce lives, the imposition of permanent financial obligations involves a much more onerous burden than in the cases discussed previously.99 The desire to eventually terminate the support obligation is understandable and one which must be given some weight. The maintenance of economic ties between former spouses long after the marriage has broken down is not a desirable situation, either from the perspective of former husbands or of former wives. 100 But the objective of severing the ties between the spouses must not be accomplished at the cost of fairness to children and to spouses who, relying upon the availability of marital resources, have sacrificed their own economic security in taking on the role of primary responsibility for children. In some cases complete reintegration into the labour force is a feasible goal if support is provided for periods of time and in amounts realistic for such a purpose. In other cases, because the age of the spouse and/or the ongoing responsibility for childcare, even this will not be sufficient - the consequences of the marriage and its breakdown will be long-term and permanent support may be the lesser of

98 Brockie v. Brockie, below, note 143. 99 In Smith, above, note 93, for example, the divorce took place in 1970 and the

husband had paid support for 16 years at the point when he requested a termination of the obligation; in Gowland, above, note 91, the husband paid spousal support for 22 years.

100 Support maintains ties between the parties and creates possibilities for contact and control that may not be desired by former wives.

204 CANADIANFAMILYLAWQUARTERLY [7 c.F.L.Q.]

two evils if fairness to children and those who care for them is to be achieved.

What has just been outlined are the contours of a spousal support law which takes seriously the objectives found in sections 15(7)(a) and (b)lOt with respect to mid-length marriages and applies them in a way which moderates the force of the objective of promoting spousal self-sufficiency. What follows is a review of the case law, judged against the backdrop of the ideal model which has been sketched. It should be noted that the case law in this area reveals very significant diversity in judicial approaches, much more so than with respect to long-term traditional marriages. Any generalizations must, therefore, always be read with caution. and wherever possible examples of contrasting approaches in the case law are given.

To the extent that any generalizations can be made, it appears that the dominant emphasis in the grouping of cases involving middle-aged women leaving mid-length marriages is on the value of promoting spousal self-sufficiency. The philosophy of spousal support that is continually articulated in these cases is a philosophy of spousal self-sufficiency after divorce.102 Messier v. Delage · is constantly referred to for the principle that spousal support is not to be regarded as a pension for life and thus that the support obligation · must end at some point. 103 Some courts explicitly acknowledge that a clean break philosophy is inherent in the new Divorce Aci. 104 It is obvious in these cases that courts are concerned with the onerous burden entailed by permanent support obligations where spouses divorce in middle age and will have many years of post-divorce life ahead of them, often involving remarriage.

The dominant approach in this area is to see former wives as capable of becoming self-sufficient, with the resulting assumption

101 And ss. 17(7)(a) and (b) with respect to variation applications. 102 See, for example, Goering v. Goering (1988), 13 RF.L. (3d) 383 (Ont. H.C.), in

which the Court emphasized at 393 that s. 15 of the Divorce Act, /985 "constitutes a significant departure from previous divorce legislation. It specifically contemplates the promotion of self-sufficiency as one of the primary aims of support provisions." [Emphasis added.]

103 Messier v. Delage, [1983] 2 S.C.R 401, 35 RF.L. (2d) 337. For an example of reliance upon Messier see Baker v. Baker (1988), 16 RF.L. (3d) 121 at 125 (B.C. S.C.).

104 See Holland v. Holland (1988), 13 RF.L. (3d) 404 at 405-406 (N.B. Q.B.).


that there will be an end to the support obligation. Permanent support is not generally contemplated. Middle-aged women, and this group could include women in their late 40s, are looked at in a different way from ' "older", traditional wives. Being younger, they are seen as capable of overcoming any disadvantages suffered by the marriage through full reintegration into the labour force and the achievement of financial self-sufficiency. This is felt to be particularly so in cases where wives have maintained some connection to the labour force during the marriage. As well, judges assume that these younger women married under a changed set of social assumptions respecting the role of women both in the labour force and marriage.

The most explicit articulation of the clear distinction courts make between older and younger wives is found , in Seward v. Seward. 105 In referring to a wife who was divorced in 1978 at the age of 34 after a 14-year marriage and two children, the Court stated:

She was'only 34 at the time of the divorce in 1979. This is not a person who has spent all of her mature life in the married state and who has reached an age when she is no longer able to compete in the job market. 106

Because of the assumptions held by courts about the employability of former spouses in these cases, if reintegration and self-sufficiency are not achieved, it is generally understood to be because of lack of effort, initiative or ability on the part of the former wife or because of extrinsic factors, such as illness, disability or the job market, having no connection to the marriage and for which the former husband is not responsible. Differences in post-divorce incomes between husbands and wives are seen as reflective of differences in ability, ambition and individual occupational preferences. ,

Where the diversity in the case l~w primarily exists is with regard to the length of time which is allowed for self-sufficiency to be achieved, some courts being much more responsive than others to the difficulties of achieving self-sufficiency. Somewhat surprisingly, many of the cases are not as open to criticism on this point as one might hay~ ,expected, and many courts do allow a fairly generous readjustment period during which support is provided. However, support is in most cases eventually terminated and almost invariably that

105 (1988), 12 R.F.L. (3d) 54 (N.S. Fam. Ct.). 106 Ibid. at 58.


will occur at a point where former wives are still earning significandy less than their former husbands.

What follows is an overview of the case law dealing with midlength marriages, organized around certain recurring themes which provide the dominant conceptual structure in this area.

A. Assumptions respecting women's employment. A pervasive theme in these cases is that of women's employment. One aspect of this theme is the general idea that in light of social changes, women (with the rare exception of older wives in traditional marriages who married under a different set of social expectations) are no longer to be thought of as dependent, but as capable of working. Many statements of the new philosophy of spousal support in the case law are grounded in references to the changing role of women in the labour force. In Goering v. Goering, for example, the Court, in elaborating upon the social changes which the new Divorce Act takes into account, commented:

Dependency was the cornerstone on which the concept of support was built. With the industrial revolution, the labour force has opened its ranks to married women and many have achieved a status of complete financial autonomy.IO?

The second aspect of the theme of women's employment, and one suggested in the above quotation, is the assumption that if women are working then they are financially autonomous. Thus when courts are confronted with a woman who is fully employed, either having been employed during the marriage or having become so after the marriage breakdown, they assume that she is self-sufficient. Full employment, regardless of the income level, is seen as evidence either that the wife suffered no economic disadvantage from the marriage or that she has recovered from any disadvantage suffered. Employment per se, regardless of its nature, is used as a strong indicator of selfsufficiency and the signal for the termination or non-award of spousal support. However, in many cases the income levels achieved by the I ·

wives at the point where they are found to be self-sufficierit are low and in most cases significandy below those attained by their hus-

107 Above, note ]02 at 387.


bands. The judicial rule of thumb articulated in Cymbalisty I08 appears to be operating: self-sufficiency means either full-time employment or earning $20,000 per year. 109

There is no recognition in these cases that the relatively low income levels achieved by former wi ves, either during marriage or after marriage breakdown, may 'indicate a continuing economic disadvantage flowing from the marriage and post-divorce childcare responsibilities. Nor is there a recognition that husbands' higher incomes may be due, in part, to the contributions of their former wives.

!

Generally, fortner wives in these cases are found to have no basis for a claim to an income higher than they are capable of earning on their own. Claims to a standard of living nearer that enjoyed during the marriage are viewed as anachronistic, rooted in the traditional law of support which viewed women as inherently dependent and support as a pension for life.

This reasoning is well illustrated in Seward, in which the wife, who Was 34 at the time of divorce, was found to be self-sufficient because she had found employment earning $21,000 per year:

It is my opinion that the court should promote the individuality of the spouses by promoting their financial independence in keeping with the stated objective in the Act. In the present case, the wife is employed with an adequate income. If she wishes to pursue a lifestyle which requires more income that is entirely up to her, as long as she has not been limited by some inability having a causal connection to the marriage.

Once she enters the work force, no one would dispute the fact that she has once again attained single status.

The former spouse must satisfy the court that, unless she is able to be self-sufficient because of a circumstance linked to the prior marriage, she must deal with financial problems in the same way as any single person would - by self reliance.

She had had a period of nine years to rethink her situation since the divorce. She has not attempted to upgrade her skills. I 10

108 Above, note 19. 109 The difference between these cases and those discussed previously involving

women the courts recognize as "older" homemakers is that many of the former wives here are capable of earning this amount and thus support is terminated, while many of the "older" wives were incapable of full-time employment.

110 Above, note 105 at 58.


Wives who are working at the point of marriage breakdown are the most likely to be found self-sufficient and not entitled to any support, or at best to transitional support to enable them to "gear down" to their new standard of living. In Matthews v. Matthews,lll for example, the wife had worked throughout the last 1 ° years of an I8-year marriage in which two children had been born. At the point of marriage breakdown she was earning $14,000 per year and the husband $33,000. The wife was awarded limited-term spousal support of $100 per month for 1 year. The Court found that she had suffered no economic disadvantage because of the marriage itself. Time-limited support was justified as compensation for the temporary economic disadvantage she had suffered from the marriage breakdown, which had resulted in her moving and being able to find only temporary employment.

While it is true that a disparity in the income levels of spouses is not per se a sign that one spouse has been economically disadvantaged by the marriage and may accurately reflect the abilities and preferences of the spouses and/or systemic gender discrimination within the labour force, it is also true . that the majority of married women modify their labour force participation in order to accommodate family responsibilities. What is disturbing about Matthews and similar cases 112 is the absence of any inquiry into the issue of whether the wife's employment has been affected by the marriage, and most obviously by responsibility for childcare.

The other set of cases involves wives who did not work during the marriage but who, having found permanent employment after separation, are deemed to be self-sufficient. To be fair to the courts here, they are not acting as arbitrarily as might have been expected. As will be discussed in more detail below, they are somewhat tolerant

111 (1988),]] R.F.L. (3d) 43] (Nfld. T.O.). 1 ] 2 See also Blanchard v. Blanchard (] 987), 64 Nfld. & P.E.I.R. 15 (Nfld. T.O.), in

which a wife who had worked during the last 8 years of a 14-year marriage in ' which three children had been born and who earned $] ,200 per month compared to her husband's $2,383 was found to be self-sufficient; Theriault v. Theriault

. I

and Sookocheff v. Sookocheff, above, note 86. In Theriault the Court em-phasized that support should not be used to equalize gender-based inequality ~I\

" 1 .. ,

the labour force. In Theriault, the wife did receive $]40,000 in assets, a factqr " mitigating to some extent the problematic implications of a termination hof spousal support. '

" "


of the problems experienced by former homemakers reintegrating into the labour force. They do not typically go so far as to view part-time employment as entailing self-sufficiency; they look to see whether full-time employment has been attained. And in many cases support is granted for several years after separation if it is obvious that the former spouse is still retraining or having difficulty finding full-time employment or is hampered by childcare responsibilitIes. However, once full-time employment is found, self-sufficiency is understood to have been achieved and support is terminated.

What becomes apparent on reading many of these cases is the disturbing reality that many women are not undertaking significant retraining or upgrading of skills, but are instead moving quickly into relatively unskilled, · poorly paid jobs. This failure to undertake significant upgrading of skills is explained by a variety of reasons - the confusion in women's lives in the period after marriage breakdown; their lack of information and confidence; their need to find some form of paid employment quiCkly in 'order to make ends meet; 113 and continued childcare responsibilities. As , a result of the termination of spousal support in these cases, for~er wives are consigned to a standard of living very much below that of the marriage and also below that which they would have been able to obtain had they concentrated on education and employment in the earlier part of their adult lives.

One such example is Bast v. Bast,114 in which the wife had assumed primary responsibility for home- and childcare during a 21-year marriage. At the time of the divorce in 1986 she was awarded spousal support of $500 per month. After the divorce she found employment earning $14,000 a year and the husband, who was earning $40,000 a year, subsequently brought a variation application. The application was allowed and a time limit of 2 years imposed on the spousal support. The Court essentially concluded that while Mrs.

113 Most spousal support is not provided in amounts high enough to allow the wife to forgo earnings and engage in retraining. See the original spousal support provision in Brockie v. Brockie, below, note 143, of $100 per month for 3 years, which, was intended to enable the wife to complete a university degree while caring for a young child.

114 (1988), 13 R.F.L. (3d) 98 (Ont. H.C.). See also Baker v. Baker, above, note 103, in which a wife who remained at home during a 17-year marriage caring for three children was found to be self-sufficient, having found a position as a secretary in a hospital after separation.


Bast had suffered economic disadvantage from the marriage, that disadvantage would effectively have been remedied at the end of the time limit and Mrs. Bast would then be self-sufficient. The Court made clear that her former spouse bore no responsibility for the much lower income she would enjoy post-divorce:

The prospects for achieving the kind of lifestyle that she enjoyed during marriage through her own economic efforts are not promising. However, that is not Mr. Bast's fault. I 15

The causal connection test, discussed above,116 is used in these cases to reinforce the theme of employment as self-sufficiency. One might have expected the causal connection test, which appears to connote a compensatory model of support, the direct judicial attention to the objective of recognizing the economic advantages and disadvantages which flow from the marriage. Instead, however, the test is being used to reinforce the objective of promoting self-sufficiency. In justifying the conclusion that former wives are self-sufficient once they have entered the paid labour force, courts use causal connection reasoning to conclude that a former wife's low income is attributable to causes outside of the marriage: either to the woman herself or to the labour market. 117

The use of causal link reasoning to obscure rather than to recognize the economic disadvantages flowing from the marriage in order to justify termination of support is well illustrated in Fenwick v. Fenwick. 118 Fenwick involved a lO-year marriage which ended in 1971. Mrs. Fenwick was a secretary before marriage and had resumed that work 2 years before the marriage breakdown. She retained custody of the children after the breakdown of the marriage. In the words of the R.F.L. headnote, "Although the wife had obtained full-time employment, she continued to have need."

115 Bast, above, note 114 at 102. 116 See above, notes 58 and 59 and accompanying text. 117 The other way in which the causal connection test is used to limit support is by

finding the need for support to be caused by illness. This is discussed below at 110-115 . .

118 (1988), 15 R.F.L. (3d) 18 (Alta. Q.B.). The case involved a separation agreement providing for spousal support. Because of the husband's inability to pay, support payments were suspended for 2 years. The discussion of causal connection provides further justification for the order .

• I , '


In analyzing the wife's situation the Judge found no causal connection between her financial needs and the marriage:

At this stage, there is no evidence before me of any economic disadvantages to the wife arising from the breakdown of the marriage. Prior to the marriage, she was a secretary; she is now a secretary. There is no evidence that she ftave up or failed to initiate any other career as a result of the marriage. 9

Nor were continued childcare responsibilities after divorce found to have had any effect on the wife's economic position, given the husband's payment of (meagre) child support of $125 per month per child. Admitting that the wife was not self-sufficient, the Judge again assigned responsibility for her financial situation to extrinsic, systemic causes:

I am satisfied that the respondent is currently in financial need; her home is being foreclosed. There is, however, no relation established between her need and her marriage. Her current situation is a result of career choices she has made during the last several years. If it is the case, as she believes, that her chances of reasonable employment in her chosen field are dim because employers prefer younger, more attractive women, that is a systemic problem, not attributable to the applicant, for which society may be responsible. 120

The reasoning in Fenwick fails to recognize that the marriage likely had an effect on the wife's employment position. If she had not had primary responsibility for childcare both during and after the marriage she would likely have advanced in her employment and would not have been in her current position facing the hurdles the job market creates for older workers.

It is certainly possible to imagine cases where causal connection arguments are legitimate and where it is truly possible to say that a former spouse's economic situation is due to her own career choices or the labour market. 121 Weppler v. Weppler l22 is one such example. In Weppler the wife had run a business during the marriage and in 1986 began a new career as a stockbroker. The parties separated in

119 Ibid. at 26. A similar argument was rejected in Story v. Story, above, note 17, decided after completion of this review; see also Pask & McCall, above, note 4, for a discussion of the serious economic consequences of even relatively short periods of withdrawal from the labour force.

120 Fenwick, above, note 118 at 27. 121 The legitimacy of the use of causal connection reasoning in the illness cases will

be dealt with below at 231-236. 122 (1988), 15 R.F.L. (3d) 279 (Ont. H.C.).


1987 and shortly thereafter, as a result of the stock market crash, the wife's income from commissions dropped substantially. Holland v. Holland l23 is another such example. Holland involved a second, childless marriage of 12 years during which the wife worked. After the marriage breakdown she lost her job and was on welfare. The husband's application to terminate support 3 years after the divorce was allowed. In cases such as Seward, Bast and Fenwick however, cases in which it appears that spouses have sacrificed employment opportunities because of family responsibilities and in which a dependency relationship has been established because of the marriage, the application of causal link reasoning to deny support is inappropriate.

The case law on middle-aged wives does contain examples of a contrasting approach where, although former wives find employment, their support is not terminated and as in the cases involving older wives, permanent support is awarded to top-up their earnings in order to recognize the continuing disadvantages suffered because of the marriage. In Mullin v. Mullin I 24 the wife, who was 40 years old, had worked as a nurse before and during the first part of the marriage, but had not worked outside of the home for the last 12 years. There had been one child who was no longer a dependant. The husband earned $100,000 per year. The Court awarded support to the wife of $1,200 per month to top-up the $23,000 to $28,000 a year she was assumed capable of earning as a nurse if she could find full-time employment. In doing so, the Court asserted that its goal was to maintain the stan-dard of living of the parties when they separated. ' . ,

123 Above, note 104, although Holland is perhaps somewhat harder because of the length of marriage.

124 (1989), 73 Ntld. & P.E.I.R. 80 (P.E.I. T.D.), rev'd in part (1989), 24 R.F.L. (3d) I (P.E.I. C.A.). The award was modified on appeal after completion of this study. The P.E.1. Court of Appeal followed the approach established by the Nova Scotia Court of Appeal in Heinemann, below, note 125, which distinguishes between modem and traditional marriages. The P.E.1. Court of Appeal explicitly rejected the objective of maintaining the former standard of living and instead stated that the wife was entitled to a reasonable standard of living judged against the former standard of living. However, the Court of Appeal actually increased the award to $2,200 per month, on the grounds that the trial Judge should have taken into account the wife's actual earnings and not her potential earnings if she were to find full-time employment.


Similarly, in Heinemann v. Heinemann,125 which involved a 17-year marriage, the Court took an approach to self-sufficiency very different from that in the majority of cases previously examined where self-sufficiency is defined by reference to the standard of living dictated by the former wife's own earnings. On the facts of the case the wife had been a registered nurse at the time of the marriage and the husband in the process of completing his studies as an accountant. Although the wife h':ld worked during the marriage, she had moved to be with the husband wherever he found employment and had very much subordinated her job to his. In Heinemann the Court reasoned:

To. determine the fDrm and substance Df an Drder in this case, I ShDUld promDtethe eCDnDmic self-sufficiency Df the spDuse in "need", in accordance with s. 15(7)(d) Df the Divorce Act, supra.

What dDyS "self-sufficiency" mean in this cDntext? To. me, it dDesn't mean bare survival. If Dne has received and has becDme accustDmed to. a certain standard Df living, and IDses her ability to. maintain that standard (because Df the marriage breakdDwn in this case), she dDes nDt, to. iny mind, regain her self-sufficiency until she regains her ability to. maintain herself as befDre. "Self-sufficiency" is a relative term and its meaning must be fDund in the eCDnDmic circumstances Df the marriage at the time Df its breakdDwn. 126 .

Applying that reasoning to the facts of the case, the Court awarded the wife spousal support of $1,500 per month in addition to the $21 ,000 a year she earned as a medical secretary. The Court explicitly rejected the idea that the wife should live a~ the standard of living of a nurse. 127 In justifying its results, the Court referred to the

125 (1988), 86 N.S.R (2d) 278 (N.S. T.D.). Since cDmpletiDn Df this review the decisiDn in Heinemann has been upheld by the NDva SCDtia CDUrt Df Appeal (1989), 20 RF.L. (3d) 236. The CDurt Df Appeal reasDned sDmewhat di fferently than the trial Judge, hDlding that a distinctiDn must be made between mDdern marriages and traditiDnal marriages. With respect to. mDdern marriages, the primary gDal of spDusal SUPPDrt ShDUld be placing the parties in a pDsitiDn Df eCDnDmic self-sufficiency as SDDn as pDssible and the need to. be met is the standard Df living which wDuld have been attained had the marriage nDt interfered with the career develDpment Df the parties. With respect to. traditiDnal marriages, the practicality Df the gDal Df achieving self-sufficiency must receive greater attentiDn and IDnger peri Dds Df maintenance Dr permanent maintenance will be required. The CDurt Df Appeal fDund no. errDr in the trial Judge's applicatiDn Df these principles, thus implying that the trial Judge cDrrectly categDrized the Heinemanns' marriage as a traditiDnal Dne even thDugh the wife had wDrked during the marriage.

126 Ibid. at 282 (N.S.R). 127 This stands in cDntrast to. the reasDning in Bast, abDve, nDte 114 and Fenwick~

abDve, nDte 118.


career sacrifices that the wife had made for the family and asserted that to terminate the wife's support would leave the husband with economic advantages and the wife with economic disadvantages. Heinemann and Mullin are atypical in this area. 128 They are cases that appear not to be strongly focused on self-sufficiency, but are rather rooted in a more decidedly compensatory model of support law which recognizes the complex economic interdependencies in cases involving what are still fairly lengthy, essential1y traditional marriages. The result is an entitlement to at least a "reasonable" level of support judged against the former standard of living.

B. Compensatory support129 based on contributions and unjust enrichment. A factor that is absent from almost aU of the cases involving mid-length marriages now under consideration in the discus-

128 This situation may change given the precedents established by the Court of Appeal judgments in these cases. Another similarly strong precedent has been established by the British Columbia Court of Appeal in Story v. Story, above, note 17. The case involved an 18-year marriage during which the wife played the role of a traditional homemaker. She had worked briefly as a postal clerk before the marriage and was 38 years old when the parties separated. The case was complicated by the fact that the wife suffered from a mental illness which pre-dated the marriage and prevented her from working after the marriage breakdown. The case is significant for its recognition of the economic disadvantages flowing from the pattern of economic dependency created by the marriage, and the recognition that even apart from the illness, the wife would not have been able to achieve self-sufficiency. In Vigneault c. Cloutier, above, note 22, the Quebec Court of Appeal refused to terminate support in a case where the husband had been paying support since the breakdown of the parties' 14-year marriage in 1969. The wife had married when she was 20 and given up pursuit of a career to care for their four children. In 1986, when the husband requested a termination of support, the wife was earning $11,000 per year and had a total annual income of $21 ,000. The Court of Appeal found that the wife was not self-sufficient and continued to suffer disadvantage from the marriage.

, Mullin, Heinemann, Story and Vigneault are extending the scope of the principles courts had initially tended to confin,e to the cases discussed above involving women over 50 leaving very long marriages. For a lower court decision following Heinemann and continuing an order of indefinite support where the parties had separated in 1976 after a 13-year marriage, see Swift v. Swift (1989), 23 R.F.L. (3d) 140 (N.S. T.D.).

129 Some clarification of terminology is required. The term compensatory support may be used in two ways. Throughout much of this article the term is being used very generally to refer to a model of support which compensates for the economic advantages and disadvantages of the marriage. Such a model of sup-


sions of what constitutes self-sufficiency and whether there exists a causal connection between the claim for support and the marriage is any discussion of former wives' contributions to the marriage, and more particularly to the income-earning capacity of their husbands. 130

Most cases do not even refer to contributions made to the family and the conferral of economic benefits. To the extent they speak of anything but self-sufficiency, they speak of economic disadvantages and the loss of opportunities, not of contributions made and advantages retained. The entire focus of support law is thus backward-looking, with the goal being to imagine the economic position the wife would have been in but for the marriage. Claims to the marital standard of living, which are essentially claims for a share of the husband's higher income-earning capacity, are thus viewed as completely illegitimate.

In cases of fairly lengthy marriages the exercise of trying to imagine where the spouses would have been but for the marriage is highly artificial. As well, this approach is flawed in that it ignores spousal contributions to the economic well-being of the family unit and, more specifically. contributions by one spouse to the incomeearning capacity of the other. In cases such as Mullin and Heinemann the issue of spousal contributions is not raised directly, although one may infer that it constitutes one factor justifying the entitlement to a reasonable standard of living judged against the marital standard. In the few cases where the issue was expressly raised, the courts found

port stands in contrast to a welfare-based model of support (which looks to economic need regardless of its source) and a clean break model. However, in the case law the term "compensatory support" is used more narrowly to denote support which compensates for spousal contributions as distinguished from losses and which entitles women who are self-sufficient to claim support on another basis. In this particular section of the article the narrower definition is being used. On compensatory support generally, see N. Bala, "Recognizing Spousal Contributions to the Acquisition of Degrees. Licences and Career Assets; Towards Compensatory Support" (1989) 8 Can. J. Fam. L. 23.

130 The issue of compensatory support is being dealt with at this point because of its relevance to the definition of self-sufficiency in the mid-length marriage cases being examined and to the issue of whether these women have a legitimate claim to a higher standard of living than they are able to earn on their own. It should be recognized, however, that claims to compensatory support may arise in all types of marriages, including short and/or childless marriages and also the longer marriages discussed above.


no basis for using support for such purposes. Thus a factor which, in the absence of a generous property settlement, constitutes an important dimension of a compensatory model of support law, is being ignored.

There are cases where, given the matrimonial property settlement, compensatory support is not required. 131 Other cases are more problematic, however, because they do not involve significant assets. In some the courts simply found, on the facts, that there had been no significant contribution by the former spouse. In McDonell v. McDonell,132 which involved a 15-year marriage, both parties had B.A.s at the time of marriage in 1970. The husband then completed a law degree, working part-time while the wife worked full-time. In 1975, when he commenced practice, the wife left work to raise a family. She later returned to university in ] 984 and started a business which she continued to pursue after the separation in 1985, although not very successfully. At the time of the divorce proceedings in 1988 the husband was earning $9,000 per month. There were no significant assets to divide. The wife was given time-limited support for another 2 years, support thus being provided for 5 years after the separation. The wife's claim for compensatory support was dismissed, the Court finding that she had made no contribution to her husband's income-earning capacity:

On the evidence in this case, I find that the wife's financial contribution during the three-year period referred to, while no doubt helpful, was not crucial. The husband had been financially independent since the age of 17 and no doubt would have made it on his own. There is no suggestion that the wife delayed or gave up her career ambitions so as to advance his career.

I find that there is no factual or legal basis for an award of compensatory maintenance in this case. 133

Apart from the problematic finding that the wife had not suffered any career disadvantage, ~he reasoning on the contribution issue is troubling. Not only did the Judge fail to find any significant contribution by the wife in the years the husband was acquiring the de-

131 See Storey v. Storey (1987), 49 Man. R. (2d) 235 (Q.B.) (wife contribllting to husband's career as chartered accountant not awarded compensatory support because awarded more than half of family assets resulting in net worth of $150,000); Theriault v. Theriault, above, note 86.

132 (1988), 16 R.F.L. (3d) 174 (B.C. S.c.). 133 Ibid. at 179-180.


gree, but he also completely failed to recognize that the contributions to the husband's career extended beyond the initial 3 years and lasted throughout the marriage as the wife relieved the husband of family responsibilities and the career sacrifices those responsibilities would have entailed.

In two other cases, Cole v. Cole 134 and Johnson v. Johnson,135 the courts simply conCluded that compensatory support, in the specific sense of compensation for contributions to a spouse's income-earning potential, did not exist under the Divorce Act, 1985. In Cole no reasons were given; in Johnson, the Court justi1fied its position by stating: "Specifically, I see no indication that [maintenance payments] were to be a mechanism for dividing capital between the parties.,,136

This passage suggests an understanding of spousal support which appears to run implicitly through much of the case law, i.e., the idea that one spouse's contributions to the other's income-earning capacity, or more generally to the economic well-being of the family, are to be dealt with through matrimonial property sharing. Spousal support is understood as serving the quite different purposes of remedying economic loss and promoting self-sufficiency. This categorization of financial relief is arbitrary. It ignores the fact that in many cases sufficient assets have not been accumulated in the form of traditional property to adequately compensate for spousal contributions. The main asset at the end of many marriages is the husband's income-earning capacity.

C. Continued childcare responsibilities. Women leaving midlength marriages are often left with custody of children after marriage breakdown. This has two consequences. First, it constrains women's ability to retrain and become self-sufficient. Second, it means that if women's incomes are l.ow and spousal support is terminated, children will be indirectly deprived because the household income will drop. As will be discussed in more detail below, child support payments

134 (1987), 65 Nfld. & P.E.I.R. 192 (Nfld. T.D.). 135 (1988), 16 R.F.L. (3d) 113 (B.C. C.A~). 136 Ibid. at 119.


alone are rarely sufficient to maintain the children at the standard of living expressly stated in the case law to be the objective of child support awards - the standard enjoyed during the marriage or as close to it as possible. Sections 15(7)(b) and 17 (7)(b) of the Divorce Act would appear to make both of these considerations relevant in the award of spousal support.

The case law in this area is very divided - perhaps this is the issue on which there was the most di versity in the cases reviewed. Trere appear to be two conceptual dynamics at work. In some cases the concept of the modem working woman appears to have taken hold, leading to the idea that all women should work regardless of the presence of children. The other dynamic relies upon more traditional thinking. Women in their role as mothers, rather than as wives, are treated generously because of a judicial concern for the welfare of children; it is only when they are no longer obviously connected to children that they begin to be treated as former wives and that the value of spousal self-sufficiency after divorce come into full play.

1. Cases disregarding ongoing childcare obligations. In some cases courts completely disregarded women's ongoing childcare responsibilities and imposed obligations to become self-sufficient within a very short period of time. Perhaps one of the worst decisions in this respect is Desmar:ais v. Desmarais,I37 which involved a 13-year marriage which ended when the parties separated in 1983. The wife had a child from a prior relationship whom the husband had adopted and in addition there were two children born of the marriage, both of whom had health problems (one child was an epileptic and the other had serious eye problems). The wife had a grade 11 education, had stopped working prior to the marriage and had been a full-time homemaker during the marriage. When the parties separated the wife retained custody of the two children of the marriage. A separation

. agreement provided for spousal support of $200 per month until the wife was earning $800 net per month and child support of $300 per month for the two children.

137 (1988), 13 R.F.L. (3d) 64 (Alta. Q.B.).


After the separation the wife eventually found unskilled employment as a proofreader of business cards earning approximately $7,000 per year. She worked only 30 to 35 hours per week and not in July and August because of her need to spend time with the children, and in particular to attend at doctor's offices because of the children's health problems. The wife claimed that in order to. gain job advancement she would have to upgrade her typing and bookkeeping skills, and that it was not possible for her to do so because to take time off would result in her losing income. The husband was earning approximately $48,000 per year. In divorce proceedings in 1988 the wife claimed support. The spousal maintenance was not increased above the $200 provided for in the contract, although the Court did award increase child support to $275 per month per child.

Admittedly, the result on spousal support was affected by the presence of the separation agreement. As well, the costs of childcare, which are the specific concern of this analysis, were partially met by the increased child support. Nonetheless, the reasoning of the Court on the issue of spousal support re.veals troubling judicial perceptions of women's role in childcare. The Court could have simply relied on the presence of the contract to justify its result. Instead it went on to criticize Mrs. Desmarais for not having made more effective efforts toward becoming self-sufficient, suggesting that the refusal to award increased support was a form of punishment for her unreasonable behaviour:

The evidence does not satisfy me that Mrs. Desmarais is serious about upgrading her typing skills. If she were she could have found a means of doing so by now. She has had ample time and the cost is not unreasonable. She understands it would take her two to six weeks at a cost of $65 to $80 per week. There was no evidence of any attempt being made to seek assistance from a~ source to achieve this result. She does find time to play bingo weekly. I [Emphasis added.]

The decision contains no recognition of the constraints imposed on Mrs. Desmarais by being a single parent, constraints both of money and of time. The image created in the judgment is one of the wife as a lazy parasite luxuriating in idleness at bingo games.

138 Ibid. at 72.


In a similar vein is Storey v. Storey,139 which involved a wife who had custody of a 5-year-old child and who had not worked during the major part of the 12-year marriage. After separation she had commenced work as a substitute teacher earning only about $5,400 per year. Her spousal support was terminated on the grounds that she had the capacity to be self-sufficient, the Court showing very little sympathy to her decision to stay home with the child. In other cases, while courts are somewhat sympathetic to women's choices to cut back on employment because of childcare, they indicate that the obligation to be self-sufficient must prevail after what is felt to be a reasonable period of time, usually after the children are in school. 140

In addition, in several cases spousal support was cut off or denied where the wife's income was very low and where the children would be indirectly deprived by the termination of support, yet the issue was not even addressed by the courts. The underlying assumption in these cases would appear to be that child-related concerns are to be met in child support awards rather than in spousal support. Such ~n assumption is only warranted if child support awards cover all of the costs associated with running a household. As will be discussed in more detail below, this is often not the case.

In Geiler v. Geiler,141 for example, the wife, who had custody of two children, had retrained after marriage breakdown but was un-

139 Above, note 132. 140 Two examples of this approach are Dubois v. Dubois (1987), 8 R.F.L. (3d) 48,

50 Man. R. (2d) 174, additional reasons at (1987), 50 Man. R. (2d) 174 at 176 (Q.B.) and Abbott v. Taylor (1987), 11 R.F.L. (3d) 407 (Man. Q.B.), varied (1988), 14 R.F.L. (3d) 9 (Man. C.A.). While Abbott was actually decided under provincial legislation, the Judge explicitly stated that the result would be the same under the new Divorce Act.

141 (1987), 51 Man. R. (2d) 107 (Man. Q.B.). See also Williams v. Williams (1988), 13 R.F.L. (3d) 321 (Ntld. T.O.), in which the former wife, who suffered from Parkinson's disease and whose only income was a disability pension of $480 per month, was denied spousal support because of the absence of a causal connection between her need and the marriage. The fact that she had custody of the child and was continuing to perform a childcare role was not recognized as creating any causal connection to the marriage or as constituting any grounds for compensation. The husband, who earned $30,000 per year, was ordered to pay only minimal child support of $250 per month. However, given the quantum of the spousal support award ($100 per month), the termination of spousal support would, in reality, make very little difference to the household's standard of living.

SPOUSAL AND CHILD SUPPORT (PART I) 221 /

able to find full-time employment, and was earning only $13,000 per year. She was granted limited-term spousal support for only 1 year. The Court concluded, on no evidence at all, that she would be able to attain self-sufficiency in 1 year. The Court did not even address the fact that the children would be indirectly deprived if she failed to find full-time employment. Child support was increased to $600 per month, again indicating a judicial preference for child support over spousal support.

A disturbing fact situation which recurred in several cases had to do with the support of adult children. In several of the cases former wives were providing support to unemployed adult children who were not entitled to support in their own right. Given the lack of entitlement to child support in these cases, continued spousal support would have been the only way of continuing to share between the spouses those costs which are, in social reality if not in law, a continuation of the parental role. Yet in many cases spousal support was also terminated, the courts using causal link reasoning to find continued support of adult children a matter of voluntary choice by the former spouse.142 .

2. Cases recognizing ongoing childcare obligations. As a counterbalance to the decjsions which have just been discussed, the case law does present another side with respect to the issue of continuing childcare responsibilities. Two decisions of Madam Justice Bowman of the Manitoba Court of Queen's Bench stand out in particular because of thei~ inclusion of a sustained analysis of the section 15(7)(b) objective of recognizing the costs of childcare in spousal support awards.

The first is Brockie v. Brockie. 143 The case involved a very short marriage of 5 years entered into when the spouses were quite

142 Francis v. Francis (1988), 16 R.F.L. (3d) 149 (Ont. H.C.) (wife using most of her share of matrimonial property to support · two sons; time-limited support ordered); Matthews v. Matthews, above, note 111 (children aged 19 and 20 living with mother found to be able to live independently and spousal support limited).

143 (1987),5 R.F.L. (3d) 440 (Man. Q.B.), affd (1987), 8 R.F.L. (3d) 302 (Man. C.A.).

222 CANADIAN FAMILY LA W QUARTERLY [7 c.F.L.Q.]

young because of the wife's pregnancy.]44 The wife, who had been a good student and planned to go to university, gave up her plans and following the marriage and the birth of the child remained at home as a homemaker and mother. At the point of separation she was with "no job skills whatever and no useful experience.,,]45 During the marriage the husband, who also had little in the way of employment skills, obtained employment as a salesman earning $35,000 per year. Following the separation in 1985 the parties entered into an agreement providing for child support of $300 per month and spousal support of $100 per month for 3 years. The understanding of the parties was that during that 3-year period the wife would attend university and obtain a degree.

The wife found that her financial situation did not permit her to attend university and obtained part-time employment as a clerk in a shoe store earning approximately $520 per month. In 1987 the wife petitioned for divorce and requested support in excess of that provided for in the agreement. Bowman J. awarded both increased child support of $600 per month and increased spousal support of $600 per month for approximately 3 years in order to enable the wife to obtain a universit y education.

The decision is remarkable in several respects. First, it awards significant spousal support even in the case of a short marriage, recognizing the financial consequences to a women's career that flow from even short 'periods spent in childcare at crucial points in her career development. Second, it takes a realistic approach to selfsufficiency, recognizing the substantial amounts of money that will realistically be required to allow upgrading, in this case the wife's return to university. The amounts provided for in the separation agreement were clearly not realistic. Third, in assessing the wife's capacity to become self-sufficient, the Court recognized the financial consequences of being a custodial parent, referring explicitly, as few decisions do, to the support objective found in section 15(7)(b) of apportioning the financial consequences arising from the care of children:

]44 Brockie is an example, like Gowland v. Kubsch, above, note 9], in which even a short marriage can have serious economic implications for women if there are children.

]45 Brockie, above, note ]43 at 44] (5 R.F.L.).


This is a new provision and I have given some thought as to what might be encompassed within that consideration. It must be recognized that there are numerous financial consequences accruing to a custodial parent, arising from the care of a child, which are not reflected in the direct costs of support of that

, child. To be a custodial parent involves adoption of a lifestyle which, in ensuring the welfare and development of the child, places many limitations and burdens upon that parent. A single person can live in any part of the city, can frequently share accommodation with relatives or friends, can live in a high-rise downtown or a house in the suburbs, can do shift work, can devote spare time as well as normal work days to the development of a career, can attend night school, and in general can live as and where he or she finds convenient. A custodial parent, on the other hand, seldom finds friends or relatives who are anxious to share accommodation, must search long and carefully for accommodation suited to the needs of the young child, including play space, closeness to daycare, schools and recreational facilities. If finances do not permit ownership of a motor vehicle, then closeness to public transportation and shopping facilities is important. A custodial parerit is seldom free to accept shift work, is restricted in any overtime work by the daycare arrangements available, and must be prepared to give priority to the needs of a sick child over the demands of an employer. After a full day's work, the custodial parent faces a full range of homemaking responsibilities including cooking, cleaning and laundry, as well as the demands of the child himself for the parent's attention. Few indeed are the custodial parents with

. strength and endurance to meet all of these demands and still find time for night courses, career improvement or even a modest social life. The financial consequences of all of these limitations and demands arising from the custody of the child are in addition in the direct costs of raising the child, and are, I believe, the factors to which the court is to give consideration under subs. (7)(b).

In the present case, the wife faces all of these limitations and obligations and is totally unable at this time to become self-sufficient without substantial further education. She is well qualified intellectually to take such trainin~ and the question is what amount of money will enable her to do that. 146 .

The other notable decision is Thorsteinson v. Thorsteinson. 147

In Thorsteinson the spouses had separated after 14 years of marriage. There was one child of the marriage, who was 2 years old at the point of separation. The husband was a doctor, earning at the time of trial approximately $85,000 per year. The wife had essentially quit work after the marriage in order to have time to devote to the husband. After separation thF wife, who retained custody of the child, restricted herself to working four-fifths time at two part-time jobs, earning a gross income of $1,300 per month. She was looking for a full-time job, but one that would be consistent with the child's interests. ·At trial the husband argued that there should be no spousal support be-

146 Ibid. at 447-448. 147 (1988),52 Man. R. (2d) 115 (Q.B.).

224 CANADIANFAMILYLAWQUARTERLY [7 c.F.L.Q.]

cause the wife was self-sufficient. He characterized the wife as a parasite and as lazy because of her decision to work part-time. Rejecting this claim as "nonsense", Bowman J. ordered child support of $1,000 per month and indefinite spousal support of $500 per month.

In making the order for spousal support Bowman J., unlike many judges, stressed that it was improper in assessing spousal support to focus only on the objective of promoting self-sufficiency given that it was only one of a list of four objectives. She first of all recognized the economic disadvantages suffered by the wife because of the role she had played during the marriage. She then addressed the economic implications of the wife's continuing custodial responsibility for the child. After referring to her comments in Brockie, she went on to find that, given the availability of financial resources, it was reasonable for the wife to reduce her employment because of her childcare responsibilities:

In making my determination, I direct no criticism to Mrs. Thorsteinson for having delayed in obtaining full-time employment to this point, nor do I think it incumbent upon her to do so prior to the date of the child's full-time school attendance. There are many' approaches to child care and child rearing. Some mothers return to work almost immediately after the birth of a child, others work part-time until the child is in school, or even later, and still others have a more traditional approach and feel that they should be full time in the home at least until the child is well established in school. Sometimes there is no option in these matters where economic circumstances are so tight that a custodial parent must work full time almost from the date of the child's birth. This is not such a case. I do not think it appropriate for the court to impose or prefer one approach on this matter to the others. The decision is a very personal one which depends on a number of factors relating to the child and his temperament, to the mother and hers, to her energy level, to her beliefs as to child rearing and to the other matters which may occupy her energies and attention. '

In the case of a single parent who is employed full time, the sheer physical work and energy involved in maintaining a job as well as maintaining a household and giving any kind of quality time and attention to a child is beyond the resources of most people to accomplish without total exhaustion. In my view, under the particular circumstances which apply in her case, Mrs. Thorstein's [sic] decision to work outside the home four-fifths of the time was and is a reasonable one. The financial circumstances here are not so dire as to require her to work full time regardless of her child's needs and to exhaust herself in attempting to do two jobs. Her husband and his counsel have chosen to characterize her as a parasite and as lazy for her decision to work only four-fifths of the time. This is nonsense. 148

148 Ibid. at 119.


Taking into account both the economic disadvantages suffered by the wife and her continuing childcare responsibilities, Bowman J. found that she was not yet self-sufficient, and even further, noted that · she might not be self-sufficient even when fully employed, "bearing in mind particularly the consequences of being a custodial parent." 149

While the Brockie and Thorsteinson decisions are atypical because of the sustained, explicit analysis of both the legislative objectives for spousal support and the social realities of single parenthood, there are other decisions in the case law which, at least in terms of their results, indicate a similar approach. In some cases courts have suspended the impact of the obligation to pursue full self-sufficiency for the entire period during which children remain at home~

As one example, in Publicover v. Publicover150 the Court expressly recognized the wife's continuing childcare responsibilities in dismissing the husband's request to terminate spousal support on the grounds that the wife had failed to satisfy the obligation to be selfsufficient since the separation in 1986. The case involved a 14-year marriage in which one daughter was born. There were, as well, four

149 Ibid. at 120. 150 (1987), 9 RF.L. (3d) 308 (N.s. Fam. Ct.). See also Ciarniello v. Ciarniello

(1988), 16 RF.L. (3d) 130 (B.C. S.c.); and Martin v. Martin (1988), 14 R.F.L. (3d) 388 (B.c. C.A.). In Ciarniello the Court explicitly relied upon s. 17(7)(b). In Martin the Court even recognized the wife's responsibilities toward a dependent adult daughter who was not eligible for child support. The case review included several other cases where, although the issue of continued childcare responsibilities was not explicitly addressed, on their facts the cases involved custodial mothers and the continuation of spousal support to top-up their own earnings in circumstances where, given other case precedents, one might have expected spousal support to be terminated: see Porter v. Porter (1988), 12 RF.L. (3d) 19 (Sask. Q.B.) (wife having custody to two children, and only able to find part-time work; interim spousal support of $700 per month continued in addition to child support of $700); Monaghan v. Monaghan (1988), 14 RF.L. (3d) 308 (Ont. H.C.) (37-year-old wife who had been a homemaker with custody of two children entitled to spousal support decreasing over 7 years from $2,000 per month to $1,000 per month in addition to child support of $1 ,000 per month per child); Tierney-Hynes v. Hynes (1986), 43 Man. R. (2d) 56 (Q.B.) (wife with custody of three children entitled to spousal support of $300 per month to top-up her expected earnings as a teacher of $24,000 in addition to child support of $500 per child); Heinemann v. Heinemann, above, note 125 (wife with custody of child working as a medical secretary and earning $21,000 per year awarded spousal support of $1 ,500 per month as well as child support of $900 per month).


children from the wife's prior marriage who were adopted by the husband, but were no longer children at the time of the divorce in 1986. In divorce proceedings the wife, who was 45, received custody and pursuant to a separation agreement received $1,300 per month combined child and spousal support She obtained employment as the manager of a gift shop in a hospital, which paid $14,000 a year. Although she was looking for other jobs, the wife found her current job ideal given the need to supervise and care for her daughter. The separation agreement not being final and contemplating variation, the husband brought a variation application to split the support award into $750 per month for the child and $650 per month for the wife and to terminate spousal support within 3 months. He argued that the wife was lacking in financial management and failing to satisfy the obligation to be self-sufficient He actually intrqd.uced evidence of a job counsellor, who had never met the wife, to the effect that the wife should be able to earn $20,000 to $28,000 a year. The Court dismissed the husband's application.

The Court did acknowledge that a spou~e's deliberate underemployment or under-utilization of income potential could be considered a change in circumstances justifying a termination of support. However, this was found not to be such a case on the facts, given both Mrs. Publicover's efforts and her childcare obligations:

The obligation to seek economic self-sufficiency is not an obligation that stands independently of the parties' marital history, past agreements, circumstances or children. This is inherent in the wording of s. (17(7)(d) . ...

Having regard to the circumstances before me and particularly the agreement and minutes of settlement, it would seem "practicable" to expect Ms. Publicover to gain self-sufficiency within one year of Jennifer' s having ceased to be a child within the meaning of the Divorce Act, 1985. 151 '

The Court specifically dealt with the argument that because the daughter was older (she was 14), she required less supervision:

There were suggestions that Jennifer was at an age and maturity level where she could "look after herself' for periods of time. Undoubtedly this is so, however, I am not of the view that her supervision and care should be secondary to Mrs. Publicover's obligation to become self-sufficient or the court's responsibility to promote self-sufficiency. Jennifer's care should not be indirectly "deprived" by focus on the spousal issues. 152 '

151 Publicover, above, note 150 at 319-320. 152 Ibid at 319.


In some cases, in dismissing applications to terminate spousal support, courts expressly relied upon the argument that the children would be indirectly deprived by inadequate spousal support. In Fejes v. Feje's,153 for example, the Court continued support payments of $500 per month to the wife who had not managed to achieve full self-sufficiency since the separation in 1983. The decision is a remarkable one: the Court recognized the adverse economic impact the marriage had had on the wife, the constraints imposed on the wife by having custody of four children, and also the deprivation to the children if spousal support were terminated. On the latter point, the Court stated:

Another consideration is what effect, if any, a diminution of Mr. Fejes' spousal support payment would have on the. children and their standard of living. In the present circumstances with Mrs. Fejes earning $600 per month and receiving $1,200 child support, absen~ apy spousal support, she would have income of only $1,800 per month. She was accustomed since the separation in 1983 until May 1987 to having $1,000 per month spousal support in addition. In May 1987 it went down to $400 per month. She indicated that she could not manage on the $400 per month. There can be no doubt that diminution of spousal support would have a negative impact on the standard of living of the children. In the Pelech decision, Wilson J. under the heading of "indirect deprivation of children" approves of the following statement: " ... the courts should acknowledge the reality that the nurture of the children is inextricably intertwined with the well-being of the nurturing parent. Thus, in some circumstances, a denial of spousal maintenance will result in the deprivation of the children of the marriage.,,154 [Emphasis added.]

3. After the children leave home. Those cases where courts responq sympathetically to the parental obligations of former wives during the period when children are dependant should be recognized as positive aspects of the case law and indications that the section 15(7)(b) objective is being reflected in at least some cases, in principle if not in quantum. Problems continue to exist, however, with respect to the situation after the children have ceased to be dependent. Even in those cases where spousal support has continued throughout the.period of the children' s dependency, it is usually terminated at some point shortly thereafter.

153 (1988), 13 R.F.L. (3d) 267 (Man. Q.B.). See also Kearney v. Kearney (1988), 54 Man. R. (2d) 42 (Q.B.), in which the Court refused to terminate spousal support, stating at 43: "[T]o take away from Mrs. Kearney the small maintenance payments being made to her by Mr. Kearney would necessarily have the effect of worsening the economy of the home and this would have a negative impact on the children."

154 Fejes, above, note 153 at 276, quoting Pelech, above, note 58.

228 CANADIAN PAMIL Y LA W QUARTERLY [7 C.P.L.Q.]

One of two reasons is given. In some cases it is assumed that wives, freed from parenting responsibilities, will. easily be able to become self-sufficient. As in the Ellis 155 case, discussed earlier in the section on long traditional marriages, courts seem to believe that the economic disadvantages flowing from child-rearing end when the rearing has ended. Alternatively, courts focus on the long period of time that has passed since separation and take the approach that the support obligation must be brought to an end in -order to give some effect to: the clean break doctrine, even if the former wife is not capable of becoming self-sufficient.

These cases fail to recognize that altho~gh the children may be gone, the costs of their rearing continue into the future. At the stage in their lives where child-rearing is completed, these women are at an age when full integration into the labour force will be difficult. Even if they attain something that might be called self-sufficiency, it will be at a very low income level. bne can question whether these women are being adequately compensated for their past child-Fearing when they are left with such a standard of living at the end bf 'the child-rearing process.

Courts appear more sympathetic to the costs of child-rearing when there are actually children in the picture; after the children have left home they see not mothers but only former wives. Although many of these women, at the end of the child-rearing process, are in a similar position to older wives leaving long-term marriages, they are viewed differently because of the many years that have already passed since the marriage breakdown; they are viewed as women on the verge of self-sufficiency, having been moving towards that point already for several years. 156

155 Above, note 66. 156 One of the clearest examples of this difference in treatment is found in Caufield

v. Caufield (1986), 4 R.F.L. (3d) 312 (Ont. H.C.), in which the Court was faced with a 50-year-old woman who had not managed to become self-sufficient in the 10 years since the divorce. Obviously troubled by the long period of time since the marriage had broken down, the Court put forward, at 316, very unrealistic expectations respecting the wife's capacity to become self-sufficient. The comments here stand in sharp ·contrast to the treatment accorded women whose marriages break down when they are 50 and who are not expected to become self-sufficient:


The difficulties confronting women who are left with no employment skills at the end of the child-rearing process many years after divorce obviously lends support to the idea that the goal of support law should be to facilitate immediate re-entry into the labour

. force when wives are relatively young, rather than deferring it. The goal is an admirable one and should be fostered, but may not be realistic if the former spouse has few job skills and demanding childcare responsibilities.

In the two cases which were introduced at the beginning of this discussion of mid-length marriages to illustrate the continuing costs of childcare, Gowland v. Kubsch l57 and Smith v. Smith,158 suppqrt was terminated after the children had reached 18, even though neither of the wives was self-sufficient and both would continue to bear the costs of past child-rearing. In Gowland, although the Court recognized the former wife's inability to become self-sufficient, it emphasized the long period of time since separation, in addition to relying upon causal link reasoning to delimit the husband's responsibility:

By directing the court to promote economic self-sufficiency (s. 17(7)(d), there is requirement in the Act for a court to deal with a situation such as Ms. Kubsch's. She must understand that her dependency to Mr. Gowland must come to an end~ She must present herself to the employment market. If the market is not receptive to employing her, it is not the responsibility of Mr. Gowland to keep her financially propped up for the rest of her

''The applicant is an intelligent, attractive and well-read person. She has refrained from seeking gainful employment ·because of her stress-related maladies and hypochondria. Her doctor believes she would stick to a job if she found one that she likes. This person is doing a disservice to herself and to others by writing herself out of the useful mainstream of life. I recommend that she attend on an employment counsellor and also take the battery of vocational skills tests .... She will also benefit from personal counselling.

She should develop some insight, particularly with respect to a career preference. If not, there are a number of teaching related and caring jobs (babysitting) available to persons such as the applicant. If the applicant does not make reasonable efforts to become self-supporting in the next year, her entitlement to support should be reviewed. There is a duty on everyone to be self-supporting baITing some disablement." The case was obviously influenced by the Court's perception that the wife had made insufficient efforts towards becoming self-sufficient.

157 Above, note 91. 158 Above, note 93.


l~fe. He has supported her for over 17 ?c;ears, including the last seven when she has had no legal dependent support. 1 9 [Emphasis added.]

A similar combination of the factors of the passage of time and a deemed break in any causal connection with the marriage after the children are grown is found in Smith:

In my opinion, it is not every case where the four objectives can possibly be met. In the present case, for instance, any economic advantage gained by the husband on the breakdown of the marriage and any economic disadvantage suffered by the wife as a result of that breakdown has been dissipated if not ended after the ] 6 years ensuing between the time of the divorce and now. .

Because of the passage of time, between the granting of the decree nisi and now, the former spouses are virtuaL strangers, one to the other. The time has come, I think, to put an end to this mailer with a degree of finality. That can best be accomplished by my making an order varying the decree nisi whereby the husband shall pay to the wife a lump sum amount. 160 [Emphasis added.]

Although, as stated previously, the Gowland and Smith cases are extreme on their facts 'because of the complete lack of incomeearning capacity on the part of the former wives, there are many other ' cases in which the same approach toward the termination of spousal support after the " children have become adults was taken. In Publicover, ]61 for example, the Court indicated that it would be practicable to expect Mrs. Publicover to become self-sufficient 1 year after the daughter ceased to be a child, an assumption perhaps not too unrealistic on the facts of the case where there was a valuable ,

matrimonial home and the wife had some business experience. In Ciarniello 162 such optimism was less warranted. The wife had received spousal support since the separation in 1973; as a result of the husband's application to terminate support after all of the children had reached the age of 18, she was granted an additional 3 years of support at $2,000 per month. The Court assumed, somewhat naively, that the wife, who was a part-time yoga instructor, would easily overcome any barriers in resuming employment:

] 59 Above, note 9] at 2] ] . ] 60 Above, note 93 at 405-406. ] 6] Above, note ] 50. ] 62 Above, note ] 50.


There does not appear to be any good reason to suppose that the petitioner cannot or will not become self-supporting. She may face some age barriers in resuming employment, but she does not lack experience outside the home. Her present skills are in a limited area, but she has the ability to expand her range of skills.163

Again, there is not complete uniformity in the case law. There are also a few cases in which spousal support was continued after the children left home, despite attempts by husbands to have it terminated. 164 In Bartlett v. Bartlett,165 for example, in which the parties had been divorced in 1976 after a 21-year marriage and the wife had custody of the three children, the Court continued spousal support after the youngest daughter left home. The husband at that point was earning $3,600 per month and the former wife was working ' as a nursing assistant earning $1,100 per month arid receiving social assistance. The Court reasoned:

[C]learly there is a disparity in the parties' incomes which may be attributable back to the marriage, or breakdown of the marriage, as Mrs. Bartlett was granted custody of the three children and there is no indication that she was employed at that time. 166

Unfortunately, in terms of quantum, the amount of support awarded was so low - $150 per month - as to barely enable the wife to attain a minimum standard of living.167

D. Causal connection and illness. In some of the mid-length marriage cases it is health problems which limit or prevent a spouse from becoming self-sufficient, rather than or in addition to the economic disabilities which flow from past and ongoing childcare. In the cases discussed earlier involving older spouses leaving long-term

163 Ibid. at 148. See also MacKenzie v. MacKenzie, above, note 44; Hominick v. Hominick (1989), 56 Man. R (2d) 43 (Q.B.); Noseworthy v. Noseworthy (1987), 67 Nfld. & P.E.I.R 66 (Nfld. T.O.); Crawford v. Crawford (1987), 6 RF.L. (3d) 308 (Ont. H.C.).

164 See BartLett v. BartLett (1988), 86 N.S.R (2d) 40 (T.O.); France v. France (1987), 6 R.F.L. (3d) 354 (Man. C.A.); Skoberne v. Skoberne (1987), 58 Sask. R 79 (C.A.); and Hickey v. Hickey, above, note 55.

165 Above, note 164. 166 Ibid. at 43. 167 This is true in several of the cases; in Skoberne, above, note 164, for example,

the payments were $50 per month; and in France, above, note 164, $350 per month. The pattern is that described in the earlier discussion of cases involving long-term traditional homemakers.


. marriages, the courts tended not to use causal connection reasoning to assign responsibility for the former spouse's economic needs to her own health problems rather than to the marriage. The illness was seen in the overall context of a dependency relationship which had been created by the marriage and which created an entitlement to support. In the cases now under consideration, involving somewhat shorter marriages and somewhat younger wives, there is more of a tendency to limit entitlement to support because of the presence of illness. The courts apply the causal connection test to find no causal connection between the illness and the marriage.

In Francis v. Francis,168 for example, support was terminated for a wife who was unable to work for health reasons. The case involved a 23-year marriage in which two children had been born. The wife suffered from health problems which restricted her ability to work. At the time of the divorce in 1984 she was awarded spousal support of $600 per month. At the time of the variation application brought by the husband in 1988 the wife was unable to work at all and a candidate for social assistance, even with the support payments from the husband. . Spousal support was ordered terminated in 2 years, giving the wife in total 6 years of support. The result was justified by the absence of evidence establishing a causal connection between the marriage and the wife's illness.

Fairall v. Fairall l69 illustrates the strength of the selfsufficiency objecti ve as it is applied in these cases, even in the face of a direct causal connection between the. illness and the marriage. In Fairall the spouses were separated after 24 years of marriage, when the husband was 46 and the wife 43. There were two children of the marriage who were adults at the time of the divorce proceedings. During the marriage the husband's position in the Armed Forces had required constant moving, but the wife had worked when~ver possible. The wife suffered from numerous health problems, many of them stemming from pregnancy, but which were not permanently disabling. At the point of separation the wife was earning approximately

168 Above, note 142. See also Smith, above, note 93, where the wife's illness was a factor whiCh contributed to termination of support.

169 (1989),20 R.F.L. (3d) 107,93 A.R. 224, additional reasons at (1990),26 R.F.L. (3d) 128, 106 A.R. 277 (Q.B.).


$1,000 per month, as compared with the husband, who earned $2,200 per month. The Court explicitly recognized, in light of section 15(7)( a) of the Divorce Act, that the wife's medical problems were related to the marriage. The Court nonetheless felt that, given the need to promote spousal self-sufficiency after divorce, this was adequately recognized by a time-limited order of $200 per month for 3 years.

There are different perspectives from which the cases terminating support because of the presence of an illness which is not causally connected to the marriage may be criticized. Relying upon section 15(7)( d), one might argue that one of the objectives of spousal support is to relieve the economic hardship that would be suffered as a result of the marriage breakdown and the loss of the economic security provided by the marriage, regardless of the reason for a spouse's inability to provide for his or her own needs post-divorce. I 70

On the most extreme version of this argument, if a spouse's inability to provide for his or her own needs is permanent, support should also be permanent, regardless of the length of the marriage or of whether there had been a division of roles within the marriage such that a relationship of economic dependency had been created. Thus support, i~d perhaps permanent support, would be the appropriate outcome any time a spouse suffers from an incapacitating illness during the marriage, even in cases of short childless marriages where spouses had been economically independent prior to the onset of the illness. The more moderate version of the argument might recognize an entitlement to support arising from the faCt of marriage, but would then allow factors such as length of marriage and roles adopted during the marriage to influence quantum. 171

170 This is an application of the income-security model of spousal support discussed above at 46.

171 If this is what is meant by those who reject causal connection, there is very little difference between this position and the one which I outline below, based upon proper application of the · causal connection test. Both positions reject the extreme and incorrect version of causal connection which would find no entitlement to any support in cases involving illness. This ignores the fact that in every marriage there are reliance interests created by the relationship, and thus


Although such an approach is clearly not precluded by the ' legislation, I would argue that the cases involving illness are better approached from a perspective which views spousal support as a form of compensation for the economic consequences of the relationship, broadly understood. I72 This approach requires that the illness be examined in the overall context of the relationship in order to determine if, by its nature, the relationship was such as to give rise to a claim to support. The crucial factors would be whether a dependency relationship had existed during the marriage because of the roles adopted by the spouses and the length of the marriage. I73 In cases involving a traditional division of labour the homemaker spouse is not an independent economic actor and can be seen as having given up the opportunity to make provision for her own economic security. A

causally connected to it, which would give rise to a claim for transitional support for the purposes of readjusting to the breakdown of the marriage. The duration of support would be related to the length of the marriage. Entitlement to support beyond this would also flow from any relationship of dependency created by the division of roles within the marriage. Where my position departs from those who reject causal connection is in denying an ,entitlement to permanent support in cases where the illness occurs in the context of a short marriage. Since completion of this study two provincial appellate courts have ruled that the causal connection test is not applicable to support applications where there is no final agreement invplved: Story v. Story and Doncaster v. Doncaster, above, note] 7. It is not completely clear which of the two positions just outlined is entailed by their rejection of the causal connection test.

] 72 See Rogerson, above, note 23. Having made this argument, I also recognize that the problem of support claims brought bya spouse who is ill or disabled is a very difficult one. I have tried, in fitting these claims into a compensatory model of support, to achieve an appropriate balance between making provision for those spouses who have suffered from misfortune and recognition of the terminability of marriage. It may be that a special exception from the normal rules of support should be created for cases of illness and disability, on the ground that as a society we cannot accept abandonment of a spouse in such circumstances and an obligation of support in such circumstances should be recognized as flowing from the fact of marriage. This seems to be an issue which requires a public debate and a clarification of our values. I would add that a scheme of state benefits to all individuals suffering from chronic illness and disability is more rational than lind preferable to a scheme rooted ,in family law, which only provides for those who are fortunate enough to be married to someone with adequate resources. The background problem in many of the current cases is, of course, the inadequacy of state provision.

] 73 For a discussion of the relevance of length of marriage, see Sugarman, above, note 34.


claim for support thus exists against the marital resources, including the husband's income-earning capacity. '1

From this perspective, those cases involving short and/or childless marriages in which one of the spouses suffers from an economically incapacitating illness or disability would give rise only to a claim for limited-term support in order to give the spouse time to adjust to the withdrawal of spousal support. Thus the general tendency in the case'law to limit support in these situations would 'not be open to criticism.174 The cases which would be open to criticism, however, and those which are the primary concern of this review, are those involving mid-length marriages in which children have been born. Many of these cases involve fairly lengthy marriages in which a dependency relationship has been created because of the wife's more tenuous connection to the labour force due to family responsibilities. To terminate spousal support because of the presence of illness is to ignore the economic consequences of the dependency relationship which had been created during the marriage.

In the Francis case discussed above, the Court found no evidence of a causal connection between the marriage and the wife's illness, despite the fact that the case involved a 23-year marriage and two children. Rather than focusing on a connection between the illness per se and the marriage, the Court should have focused on the connection between the wife's inability to meet the economic needs created by the illness and the marriage. The dependency relationship created by the marriage would provide such a link as would the reliance interests created because of the length of the marriage.

174 See Winterle v. Winterle (1987), 10 R.F.L. (3d) 129 (Ont. H.C.) (husband suffering from severe depression and unable to maintain employment denied support after a relatively short, childless marriage); Willms v. Willms (1988), 65 O.R (2d) 151, 14 RF.L. (3d) 162 (C.A.) (support for former wife who was chronically disabled because of severe psychiatric problems terminated after the husband had paid support for 12 years after a lO-year, childless marriage); and Duff v. Duff (1988), 12 RF.L. (3d) 435, additional reasons at (7 June 1988), ND 134294/86 (Ont. H.C.) (I year of support awarded to a wife who developed cancer and was unable to work after the breakdown of a 3-year childless marriage during which she had worked). In Doncaster v. Doncaster, above, note 17, which involved a short marriage, interim maintenance was awarded and the final resolution of the support issue is thus unknown. The position I am advocating is not that there is no entitlement to any support in short marriages, only that the claim is to limited-term rather than permanent support.

236 CANADIAN FAMIL Y LAW QUARTERLY [7 C.F.L.Q.]

Although there is a general tendency in the case law involving mid-length marriage to terminate support because of illness, the case law does offer some contrasting and more appropriate responses in cases where wives have compromised their employment positions because of family responsibilities. Brace v. Brace175 is one such case. The parties had married in 1961 and separated in 1978. There were three children. The wife was a nurse who had stopped working in 1967 in order to assume responsibility for home- and childcare and had not commenced working again until separation. -She had suffered physical and emotional problems during the marriage and the breakdowns continued after separation, affecting her ability to work. She was earning only $12,000 per year.

The Court did not disentitle her to support because of her illness, despite the lengthy separation and an intervening period of selfsupport. Although acknowledging the rule of no indefinite support absent a causal connection between the need and the relationship, the Court found that on the facts there was a causal connection because the wife had been a homemaker and financially dependant, an arrangement in which the husband had acquiesced. Recognizing that the wife might never be self-sufficient because of her medical problems, the Court awarded support of $167 per month to increase on a dollar for dollar basis to a maximum of $825 per month in the event that her income decreased or she lost her employment. To the extent that a problem exists with the award, it is with the quantum rather than with the principle of entitlement.

E. Time-limited support. A fear commonly expressed about the impact of the spousal support provisions was that not only would the objectives of promoting spousal self-sufficiency and implementing a clean break become primary, but also that they would be implemented

175 (1988), 16 R.F.L. (3d) 287 (Ont. H.C.). See also Gammie v. Gammie (1988), 53 Man. R. (2d) 254 (Q.B.) (wife in 2 I -year marriage who had only begun to work outside home in last 5 years of marriage left unable to work after separation because of multiple sclerosis; support ordered). Since completion of the study the British Columbia Court of Appeal has decided Story v. Story, above, note 17. On one reading ofthe case, the wife's entitlement to support was based on factors apart from her illness, i.e., the 20 years she had spent out of the workforce as a homemaker.


in a very arbitrary, Draconian way through the use of tim~--limited orders. Under such orders support would be provided for a very short period of time - 1 or 2 years - after which support would be terminated regardless of whether actual self-sufficiency had been attained. Self-sufficiency would effectively be deemed to have occurred at the end of the time period. The case review yielded very mixed evidence on this point. The situation is not as bad as might have been expected; although courts are operating overall within a self-sufficiency model of spousal support, the model is 'in many cases being implemented less harshly and arbitrarily than might have been expected.

As has . been discussed above, permanent support - albeit often at a low level - is typically felt to be appropriate in cases involving homemakers leaving very long, traditional marriages. Thus in those cases the feared prevalence of time-limited orders- is not an issue. In those case~ where the eventual termination of support is the tendency, while time-limited orders are being used, their use is not as pervasive and problematic as might have been expected. In many cases, even though judges accept that an end must be brought to support obligation, and even though the income level at which they consider selfsufficiency to have been achieved by former wives will be significantly lower than that of their former husbands, judges are reluctant to use time-limited orders. Many prefer to wait until what they consider to ,be a position of actual self-sufficiency has been achieved.

Courts appear to be influenced by the concerns raised in Messier v. Delage] 76 with respect to the uncertainties associated with predicting the 'future. The preferred route in many cases is either a termination of support by a variation application brought by the husband at the point in time where the wife has actually achieved selfsufficiency or an indefinite order with a provision for review within a certain time period. This unwillingness to use time-limited orders is especially true in cases involving longer marriages where courts do recognize to some extent the difficulties a wife who has been primarily a homemaker will face in reintegrating into the labour force. Furthermore, in some cases fairly generous periods of support are be-

176 Above, note ] 03.


ing provided, and judges are sympathetic to the difficulties faced by women who have been fu11-time homemakers in becoming self- sufficient, particularly if they have post-divorce responsibilities for children. 177

In Boisonault v. Boisonault,178 for example, where the wife was only earning $1,500 per month as a part-time grocery-store cashier, the Court, on a variation application by the husband, refused to terminate spousal support or impose a time-limited order, concluding that the wife had still not attained self-sufficiency. In Jackson v. Jackson,179 the parties separated in 1983 after 19 years of marriage. The wife, who had worked part-time during the marriage, obtained a B.Ed. after separation 'and was working as a substitute teacher while looking for a full-time position. The husband had been paying spousal support during the separation, but in divorce proceedings in 1987 requested limited-term support for 2 years on a sliding scale. The trial Judge, with little discussion, rejected that option and awarded spousal support of $1,000 per month. The decision was upheld on appeal, where the Court dealt specifically with the refusal to impose a time limit:

On the question of maintenance the appellant's position is that the award is indefinite and a continuing one thus breaching the so called clean break concept. Again we are not persuaded that the judge erred in crafting this award because it is clear that if the wife becomes established, the maintenance will end. We do not consider this result to impose any unfair burden of uncertainty on the husband. There was a long marriage, the wife was out of the labour market for the bulk of that time ,and the uncertainties of reestablishing herself in that market arise out of the marriage. Under the terms

177 In determining the length of time for which support is provided, account must be taken of the period between separation and divorce in addition to the support provided at the time of the divorce.

178 (1988), 54 Man. R. (2d) 102 (Q.B.); see also Ewatski v. Ewatski (1988), 53 Man. R. (2d) 56 (Q.B.), where the wife was only earning $1,000 per month as a teacher's aide and the Court, on a variation application, refused to terlllinate or impose a time limit, concluding that the wife was not financially self-sufficient and that there was no evidence as to when she would attain self-sufficiency.

179 (1987), 54 Alta. L.R. (2d) 143, 80 A.R. 81, additional reasons at (1988), 87 A.R. 250 (Q.B.), aff d (1989), 64 Alta. L.R. (2d) 298, additional reasons at (1989), 21 R.F.L. (3d) 442, 68 Alta. L.R. (2d) 118,97 A.R. 153 (C.A.).


of the order that was crafted the uncertainties are shared between the parties in a way which we cannot say is unjust or inequitable. 180 ,

In several cases judges indicated that as long as good faith efforts were being made towards the attainment of self-sufficiency, no time limit would be imposed. In Thomas v. Thomas,181 for example, the Court was confronted with a separation agreement incorporated into the decree nisi in 1980, which provided for support for 5 years, during which time period it was expected that the wife would retrain as a teacher's aide. The wife had not succeeded in doing this, largely because of government funding cutbacks. The wife applied for a continuation of support. Because the husband was in arrears under the contract, he was not allowed to rely upon it and the Court, thus able to disregard the contract, extended support. In doing so no time limit was imposed, but a review of spousal support was ordered in 3 years. The Court was very tolerant of the difficulties faced by the wife in achieving self-sufficiency:

Since the separation in 1980, a good deal of Mrs. Thomas' time, effort and energy has been spent managing a household, raising children and waging litigation battles while subsisting in economically depressed conditions. In my opinion, she has never been afforded some period of economic freedom within which to attempt to achieve a measurable degree of economic selfsufficiency. 182

In other cases courts also used provisions for review or conditional orders in an attempt to avoid some of the harshness of time-limited orders and leave flexibility to deal with future uncertainties. 183

180 Ibid. at 299 (64 Alta. L.R.). Similarly, in Johnson v. Johnson, above, note 135, the Court refused to terminate support or even impose a time limit in a case where the wife was completing her training but had not yet found permanent employment. The Court of Appeal, at 118, confirmed the trial Judge's ruling that "the respondent is on the verge of, but has not yet reached the economic self-sufficiency that would warrant maintenance payments closing."

181 (1986), 5 R.F.L. (3d) 406 (B.C. S.C.); see also Porter v. Porter (1988), 12 R.F.L. (3d) 19 (Sask. Q.B.); Fejes v. Fejes, above, note 153.

182 Thomas, above, note 181 at 415. 183 In Abbott v. Taylor, above, note 140, although the Court expected that the wife

would be self-sufficient within another year, they did not make a time-limited order,'but rather indicated that the matter would be reviewed again in I year. In Monaghan v. Monaghan, above, note 150, where the Court felt that the wife had suffered severe economic disadvantage due to the marriage breakdown, spousal support was granted for 7 years with the proviso that support would end thereafter, if the wife had full-time employment.


This is not to say that time-limited orders are never used, but that in cases where homemakers are leaving longer marriages and are making reasonable efforts towards self-sufficiency, courts are in many cases not giving unreasonably short periods of support and are also refusing to use time-limited orders. 184 Termination of support, while inevitable in most of these cases, is not general1y being accomplished by means of time-limited orders, but more typically by a termination, in a variation application, of what had been ongoing support. In the cases reviewed only 22 cases of time-limited orders were found, and it must be remembered that this includes all of the cases reviewed, including short and childless marriages. 185

One fairly predictable situation where time-limited orders are being used is where a former wife is undergoing a specific program of retraining and a time-limited order is provided for that specific period. 186 Time-limited orders are also used in cases wI,ere courts feel that there is essentially no entitlement to support. Rather than terminating support immediately, support for a limited term is given simply to allow a transitional period in which to adjust or "geardown" to a reduced standard of living. This commonly occurs in two situations. One is where wives have worked during the marriage or have found fun-time employment shortly after the separation. I 87 The

184 Provisions for time-limited support may be appearing in spousal separation agreements, however; see Richardson v. Richardson, above, note 16; Brockie v. Brockie, above, note 143; and Wiley v. Wiley (1987), 7 RF.L. (3d) 68 (B.C. S.C.). A fuller discussion of separation agreements is found below beginning at 245.

185 These figures do not include cases involving contractually imposed time limits, which may be a fairly common occurrence; see ibid. Also excluded were lump sum orders which may be viewed as a functional equivalent of a time-limited order. For cases involving the use of time-limited orders after the breakdown of short marriages see Duff v. Duff. above, note 174; Ginter v. Ginter (1988), 15 RF.L. (3d) 203 (Sask. Q.B.); Snyder v. Snyder (1987), 10 RF.L. (3d) 144 (N.S. C.A.); Wright v. Wright (1988), 17 RF.L. (3d) 20 (Ont. H.c.).

186 See Brockie v. Brockie, above, note 143 (support for 3 years to enable wife to attend university); Coulombe v. Coulombe (1988), 84 N.S.R (2d) 172 (T.D.) (support to continue to end of wife's retraining as a registered nurse); Sagoo v. Sagoo (1987), 6 RF.L. (3d) 128 (Man. Q.B.) (3 years support converted into lump sum for purposes of retraining). For a contractual provision to the same effect see Isaacson v. Isaacson (1987), 10 RF.L. (3d) 121 (B.C. S.C.);

187 See Bast v. Bast, above, note 114 (support for 2 years to allow wife to "gear down" from her former standard of living); Fairall v. Fairall, above, note 169; and Merrell v. Merrell (1987), 11 RF.L. (3d) 18 (B.C. S.C.).


other situation is that involving illness, where it is felt that there is no entitlement to support because of the absence of a causal connection to the marriage. 188

In other cases time limits are imposed after former spouses have been in receipt of spousal support for long periods of time, often because of the presence of dependent children. As discussed earlier, the courts then feel that the time has come to bring an end to the support obligation. 189 In these cases the time limits must be seen in the context of a long prior period of support, thus making them appear somewhat less arbitrary. On the other hand, there is no doubt that time limits are being used in these cases to deem self-sufficiency, when it does not exist on the facts, because of a desire to bring the support obligation to an end.

One other area where time-limited orders are used, and in a troubling way, is in the "no efforts" cases. These are cases where courts feels that former wi ves are not making reasonable efforts to become self-sufficient; a time-limited order is then imposed to force self-sufficiency. Surprisingly, in the cases reviewed this situation was not as frequent as might have been expected.190 Courts on the whole

188 See Duff v. Duff, above, note 174; Schroeder v. Schroeder (1987), 11 RF.L. (3d) 413 (Man. Q.B.) (wife suffering from multiple sclerosis and institutionalized; transitional support awarded for 7 months); White v. White (1988), 18 RF.L. (3d) 216 (Ont. H.C.) (wife who had been working suffering disability; support ordered for I year). The idea that there is no entitlement to support in these cases is incorrect; see above, notes 171 and 174.

189 See Ciarniello, above, note 150 (after receiving support for 15 years wife given a time-limited order for another 3 years after the children ceased being dependent); Gowland, above, note 91 (wife who had been supported for 22 years given a time-limited order for another year); Smith, above, note 93 (support for wife terminated after 16 years and the husband ordered to pay lump sum of $3,500); Dubois, above, note 140, (wife given a further 18 months of support after 4 years of prior support); Geiler v. Geiler (1987), 51 Man. R (2d) 107 (Q.B.) (wife given 1 more year after 7 years of support since separation); and Crawford, above, note 163 (wife who had received support for 9 years since the separation given time limited support for a further 2 years). For a case where a spousal agreement providing for indefinite support was varied and time-limited support imposed see Weir v. Weir (1987), 12 R.F.L. (3d) 160, 50 Man. R. (2d) 41 (C.A.) (husband paying support for 14 years; wife given further support for 23 months).

190 It is often argued by husbands, but not as often accepted by courts. See Thorsteinson, above, note 147. Although courts do sometimes set awards low in order to "spur" self-sufficiency.


seemed to tolerate false starts and slow starts so long as they saw that some reasonable efforts were being made. 191 In many cases they recognize the constraints iJ;11posed both by long years out of the workforce and by continuing childcare responsibilities.

One example of a case where the courts did find "no efforts" is Joyce v. Joyce. 192 There a wife who had been a homemaker during a 19-year marriage was given limited·.;tenn support for 3 years on the grounds that since the separation in 1984 she had made no plans to be self-sufficient and, contrary to an agreement with the husband under which she was allowed to stay in the matrimonial home, had fallen into arrears on the mortgage payments. This case appears relatively harsh and stands in contrast to many other decisions where courts are more tolerant of wives' difficulties in becoming self-sufficient. Another problematic case is Gamer v. Gamer. 193 Garner involved a 16-year marriage which ended when the parties separated in 1983. The wife, who had been a dental assistant at the time of the marriage, had quit work in 1967 when the parties' child was born and worked part-time thereafter. She had suffered from health problems since 1982, and at the time of the application in 1988 was 45 years of age and working part-time at Eatons, earning approximately $4,000 per year and receiving social assista~ce. The child was now an adult. Spousal support was terminated, the Court finding, despite medical evidence to the contrary, that Mrs. Gamer's health problems did not restrict her ability to work full-time and that her failure to find such employment was because of a failure to make reasonable efforts.

In some of the "no efforts" cases one can question whether the failure to achieve self-sufficiency is indeed due to a lack of reasonable efforts. However, even in those cases where there are legitimate

191 More common is the approach in Merrell v. Merrell, above, note 187, in which the Court spoke at 22 of "the impulse toward allowing the [wife] one false start. There is a degree of flexible fairness before parties go their separate ways."

192 (1987),8 RF.L. (3d) 164 (N.B. Q.B.). 193 (1988), 16 RF.L. (3d) 242 (Ont. U.F.C.). See also Ross v. Ross (1987), 6

RF.L. (3d) 259 (Man. Q.B.) (support for 15 months after a 12-year childless marriage and a 2-year separation where wife not making any attempts at selfsufficiency and not taking steps to control diabetes). In Desmarais, above, note 137 the obiter comments concerning the wife's failure to undertake upgrading indicate that the Court might have terminated support in the absence of a contract.


concerns that a former wife is not making reasonable efforts towards self-sufficiency, a time-limited order is a Draconian remedy given that, if the spouse begins to undertake efforts at self-sufficiency, a reasonable time period for achieving self-sufficiency might be much longer than the time period imposed. 194

F. Conclusion. The reported cases indicate that the problems with spousal support in cases involving mid-length marriages are not quite what might have been anticipated. Within an overall conceptual framework which understands spousal support as directed at promoting spousal self-sufficiency after dIvorce, the courts are operating in many cases in a way that could be deemed reasonable. Although there are exceptions, in many cases time-limited orders are not being used and wives who have been out of the workforce are being given fairly generous periods of time in which to become self-sufficient. As well, in many cases ongoing childcare responsibilities are being recognized as a legitimate reason for not attaining full self-sufficiency immediately. On the other hand, the low quantum of awards is a serious problem in these cases, as it is in the cases discussed previously involving awards of permanent support in the context of older homemakers leaving very long traditional marriages.

However, in this area there are also problems of principle which derive from a model of support which contemplates that an end must eventually be brought to the support obligation. As the review of cases has shown, even after the fairly lengthy periods during which "rehabilitative" spousal support is awarded, former wives, in general,

194 The case law offers examples of alternative approaches. In MacDonald v. MacDonald (1986), 75 N.B.R. (2d) 318 (Q.B.), a w.ife leaving a 15-year marriage suffered psychological problems for which she was not receiving proper treatment. The Court ordered support with a condition that it be reviewed in I year. In MacDonald v. Frampton (1987),78 N.S.R. (2d) 258 (Fam. Ct.), where a wife leaving a 23-year marriage suffered from a bowel dysfunction and was not diligent in looking for the kind of work she was capable of doing or in seeking medical treatment, support was given on condition that she obtain medical treatment and apply for a government disability pension. If the wife failed to meet the conditions, support would be reduced to $100 per month, but even then not terminated entirely. The Court indicated that in shaping the order it was trying to encourage self-sufficiency, but also to deal with "probabilities", not "possibilities". .

244 CANADIANFAMILYLAWQUARTERLY [7 C.F.L.Q.]

have low income-earning capacity. Self-sufficiency is understood to have been achieved with the attainment of full-time employment of any sort, however low-paid. For those wives who have worked at such jobs during the marriage, support is rarely available. And, in some cases, after the passage of several years, support is terminated even if wives are not self-sufficient. The continuing economic consequences of the marriage are thus disregarded. As indicated earlier, these cases raise extraordinarily difficult political choices respecting the extent of the obligations to be imposed on marriage, which is now regarded as a terminable union, and the seriousness of society's commitment to a truly compensatory model of support. 195

(c) Contracts and Spousal Support

In many cases spousal support is initially determined not by the courts but by the parties themsel ves, with the assistance of their lawyers, in a separation agreement or minutes of settlement. Judicial involvement comes at a later stage, when one or both of the parties, unhappy with the agreement, request that the court set it aside and make an award of spousal support more appropriate to the parties' circumstances. The relevant question for the purposes of this review is how the support outcomes in these cases fare when judged against the legislative objectives for spousal support.

Contracts are specifically referred to in section 15(5)(c) of the Divorce Act, 1985, which makes an agreement respecting support one of the factors to be considered by a court in awarding support. 196 The legislation itself does not, it should be noted, make an agreement respecting spousal determinative and leaves to judicial discretion the weight to be given to the agreement. 197 Historically, divorce courts have quite ,freely used their discretion to order spousal support other

195 Also the difficult problem of trying to allocate responsibility for differences in spouses' incomes between the marriage, the labour market and the spouses' own abilities and ambitions.

196 Agreements were not explicitly referred to in the 1968 Divorce Act. 197 This is in contrast with provincial legislation, such as the Ontario Family Law . Act, S.O. 1986, c. 4, where a contract is prima facie binding, but where explicit

grounds for setting aside the contract, such as an unconscionable result or the spouse being in receipt of social assistance, are also set out.


than as provided for by contract. 198 Under the 1968 Divorce Act a judicial attitude of increasing deference to contract and decreasing wi11ingness to interfere in contractually determined support arrangements developed.199 These fetters on judicial discretion were justified by a new respect for the value of individual autonomy promoted by contract and also by a desire to promote the out-of-court settlement of family matters in order to reduce pressure on an increasingly overburdened court system. However, until the Pelech200 decision of the Supreme Court of Canada in 1987, some courts were still willing, despite this general tendency, to set aside contracts where the support provisions were felt to be manifestly unfair when judged against what the former wife would have been entitled to from the courts.201

In Brockie v. Brockie,202 one of the early, pre-Pelech decisions under the 1985 Divorce Act, the Court concluded that its jurisdiction to go beyond an agreement of the parties was, if anything, emphasized under the Divorce Act, 1985 since an agreement "is specifically mentioned simply as one factor among many and is given no special weight or prominence.,,203 Madam Justice Bowman quite freely used that discretion to set aside a contract which was improvident and failed to meet the legislative objectives set out in section 15 of the Act. She reasoned as follows:

Looking at all of the circumstances of the case, it appears clear to me that to uphold the provisions of the agreement and incorporate them into the divorce decree would have one thing to recommend it and one only. It would uphold the sanctity of a contract, albeit an improvident one. On the negative side, it would utterly fail to meet the criteria set out in s. 15 of the Divorce Act, 1985. The result of such an order would be to condemn this young

198 See Hyman v. Hyman, [1929] A.C. 601 (H.L.). 199 See Farquar v. Farquar (1983),43 O.R (2d) 423, 35 RF.L. (2d) 287 (C.A.). 200 Above, note 58. 201 These cases are extensively reviewed in Pelech; see, for example, Newman v.

Newman (1980), 19 R.F.L. (2d) 122 (Man. c.A.); Katz v. Katz (1983), 33 RF.L. (2d) 412 (Man. C.A.); and Ross v. Ross (1984), 39 R.F.L. (2d) 51 (Man. c.A.), leave to appeal to S.C.C. refused (1984), 55 N.R. 238n (S.C.C.).

202 Above, note 143. The facts of the case are discussed in the text accompanying the footnote. See Smith v. Smith, above, note 93, for an example of a similar approach to contractual variation in circumstances where the contract provided for indefinite support and the Court terminated the support at the husband's request, finding that because ofthe passage of time there was no longer any link between the wife's inability to meet her needs and the marriage.

203 Brockie, above, note 143 at 444 (5 R.F.L.).


woman, and to a degree her child, to a life at or below the poverty line, while permitting the husband to continue to live in circumstances much better than those which he enjoyed during cohabitation. I conclude that this is indeed one of those cases where the court should exercise its undoubted discretion to make a maintenance order in excess of that contained in the separation agreement. 204

Such exercises of judicial discretion were curtailed in 1987, however, by the Supreme Court of Canada's decision in Pelech and its two companion cases, Richardson and Caron.205 Although the cases were decided under the 1968 Divorce Act, the Divorce Act, J 985 was already in force and it is generally assumed that the Court intended its decision to apply to the new legislation.206 In the trilogy a very restrictive test for variation of final settlements of spousal support was articulated: apart from general contract doctrines such as unconscionability rendering the contact unenforceable, variation is only possible where there has been a radical change in circumstances causally connected to the marriage. In addition, the failure of subsequent events to conform to the assumptions on which the contract was based was held not to count as a radical change in circumstances. So, for example, Mrs. Richardson's failure to achieve self-sufficiency within a year as had been assumed possible by the parties when they agreed to time-limited support for 1 year, did not constitute a change in circumstances: because she had been unemployed when the contract was entered into and was still unemployed a year later, the Court concluded that there had been no change in circumstances.207

The Pelech test, on its face, does not completely preclude judicial discretion to order support other than as provided for by

204 Ibid. at 446-447. 205 Above, note 58. 206 Although there is some dispute about this; see Fenwick, above, note 118, where

the Court held that a husband requesting termination of the support provided for under the contract did not have to meet the Pelech test because the trilogy did not apply to the Divorce Act, /985.

207 In Richardson there was also an extremely stringent application of the last part of the Pelech test, the requirement of a causal connection between the changed circumstances and the marriage. The Court did not acknowledge the deterioration of the wife's skills and her loss of seniority and opportunities for promotion because of her absence from the workforce, nor the constraints on her incomeearning capacity imposed by her post-divo~ce custodial responsibilities.


contract.208 Some power remains to allow for variations in response to significant changes in circumstances since the time when the contract was entered into. The scope of judicial discretion is, however, considerably reduced. What is ostensibly taken away is a judicial power to set aside a contract because of the unfairness of the support awarded when assessed in light of the legislative objectives for spousal support. One judge gave explicit expression to his frustration in being precluded by the trilogy from considering the legislative objectives for support in cases involving an agreement contract and questioned whether such was the result intended by Parliament: '.

I am obliged to say that I have the greatest difficulty in my own mind reconciling the direction that Parliament has given the courts in s. 15(5) and (7), in exercising its discretion to order spousal maintenance and to fix the amount and duration of it, with the application of the principle set forth in Richardson. Section 15(5) specifically directs the court to consider the provisions of a separation agreement as only one of three factors included in the phrase "other circumstances". How then can the agreement be made the only factor to be considered in all but the most exceptional circumstances? Section 15(7) directs the court to fix the amount of and the duration of support with a view to accomplishing certain specified objectives. The almost automatic adoption of the terms of a separation agreement will in many cases - and indeed in this case - at least tend to defeat one or more of these objectives. One would think that any order that would tend to have such a result would not be permissible in the proper exercise of the court's discretion.209

The argument in support of Pelech and the irrelevance of the legislative objectives in cases where spousal support is determined by agreement is that the very purpose of contracts is to allow spouses to make arrangements in accordance with their own sense of fairness and to ignore externally imposed legislative and judicial norms.210

Contract thus furthers another important social value - that of individual autonomy.211 While there is validity to this position, it should nonetheless . be a cause for concern if a systemic pattern

208 As will be discussed below, it is also possible for courts to so stretch the limits of the discretion allowed them under Pelech that they are essentially doing indirectly what Pelech tells them they may not do directly, modifying the contract in light of concerns about its fairness. The discussion, here, however, takes the rule for variation as articulated in Pelech at face value.

209 Corkum v. Corkum (1988), 14 R.F.L. (3d) 275 at 286 (Ont. H.C.). 210 For discussion of this see Horn v. Horn, above, note 36 at 303-304 (49 Man.

R.). 211 Although one may suspect that the courts are as concerned, if not more con

cerned, with reducing litigation and relieving pressure on the overburdened court system.

248 CANADIAN FAMILY LAW QUARTERLY [7 C.F.L.Q.J

develops of women receiving less generous support under agreements than they would receive from the courts.212 The legislative norms are a social benchmark of fairness and significant departures from them at least a presumptive signal of unfairness.213 As has been shown in the preceding discussion of spousal support, the courts themsel ves are often open to criticism for the priority given to the promotion of spousal self-sufficiency above the other objectives. Contractual arrangements such as those in Brockie and Richardson, which provide even less than what the courts would, are even more problematic.

The context in which separation agreements are negotiated raises concerns about the fairness of enforcing those which depart significantly from the statutory entitlement.214 Marriage breakdown is a time of stress, confusion and uncertainty. Realistic predictions about what the future holds are very difficult to make. Women's

212 The issue of whether the opposite problem, of women receiving more than their statutory entitlement, is of equal concern and will be discussed below.

213 This may be more true of support law than of property law. Matrimonial property schemes tend to be fairly rigid, with little judicial discretion to shape a result appropriate to the facts of the case. This suggests a need for contracting out in these cases where the parties' marriage does not conform to the economic partnership model on which such legislation is based. With respect to spousal support, however, the rules are not rigid but highly discretionary and the court's award is a response to the facts of the particular case. A contract which provides for less than the statutorily determined outcome is thus more open to the charge of being unfair.

214 See the comments made by La Forest J. in his dissenting opinion in Richardson, above, note 16 at 322 (R.F.L.): "Assuming courts have authority to develop the policies proposed, I think that the adoption of these rigorous policies in regard to a separation agreement can have little, if any, influence on people who are now or soon will come before divorce courts. On any standard, the suggested educational function can scarcely be expected to have any real impact on those people. Apart from this, I seriously doubt that the adoption of such a judicial policy would have much effect on what people will do at what, for most of them, is one of the most stressful periods of their lives. Lawyers and judges alike are prone to exaggerate the influence legal rules of this kind have on people's behaviour. What we do know for certain is that many people under these circumstances do very unwise things, things that are anything but mature and sensible, even when they consult legal counsel." Mr. Justice La Forest would have confined the strict Pelech test for variation to applications for a variation of an agreement which had been previously incorporated into the decree nisi and not to original applications for support, where he felt that there should be a judicial power to review the contract on fairness grounds.


willingness to accept less than their full entitlement to support may be due to guilt about leaving the relationship, a desire to avoid protracted litigation with which they feel incapable of dealing, or a willingness to trade off economic rights in order to retain custody. Women themselves may find attractive the ideology of spousal independence and self-sufficiency after divorce. Some women, particularly those who have been out of the labour force, may have naive assumptions about the ease of finding employment and the incomes they are capable of earning; they may lack an accurate understanding of the economic realities of life after marriage breakdown. Undoubtedly, in some cases women sign such agreements against the advice of their lawyers. One may speculate, however, whether because of the uncertain state of the law on spousal support, lawyers themselves might be underestimating women's entitlement to support and assuming a model of support in which clean break and self-sufficiency play an even larger role than the courts are willing to allow.215 Taken together these contextual factors cast doubt on the assumption that contracts in which women settle for significantly less their statutory entitlement should be viewed as the embodiment of a fully informed, free choice.216

However, even if one accepts the validity of a general policy of enforcing spousal support agreements on the grounds that the parties themselves are the best judges of a fair outcome, there are still serious problems with Pelech. By failing to take into account the assump-

, tions on which agreements are based, the Pelech rule as applied in Richardson involves a distortion of the parties' intention. Prior to Pelech, it would have been assumed by lawyers, on the basis of the current state of the law, that even without an explicit variation clause it would be possible to modify the support agreement in divorce

215 Especially troubling is the inclusion in agreements of time-limited support, as in Richardson, when the courts themselves, as discussed above, are generally reluctant to impose time limits. Ultimately the solution to this problem may lie in education efforts directed at the bar; however, appropriate judicial responses must also be developed to deal with those contracts negotiated before this takes place.

216 Perhaps one solution would be the development of a more expansive notion of unconscionability which would respond to these contextual concerns. Courts ,appear thus far to have adopted a relatively narrow definition of unconscionability in dealing with separation agreements.


proceedings at the very least in response to material changes jn circumstances. It may, for example, have been assumed in Richardson that an extension of support would have been available if by the end of the time period the wife had not achieved self-sufficiency.217 It is not necessary to resort to norms external to the agreement to find such a result unfair; to ignore the assumptions on which the contract was negotiated is unfair judged by the internal norms of the contract.218

The reported cases were examined in order to determine the implications of Pelech for support outcomes. As a result of Pelech are women being unfairly denied their entitlement to support? Are the legislative objectives for support being undermined? Are courts using Pelech to indirectly reinforce the values of clean break and selfsufficiency in cases where there are long-term economic consequences flowing from these marriages? Or alternatively, are subsequent courts mitigating the implications of Pelech by using whatever discretion they retain to indirectly generate fair support outcomes? The task of answering these questions is somewhat complicated and requires that two issues be addressed: first, the nature of the spousal support provisions in the agreements being litigated; and second, the extent to which courts are willing to use whatever discretion they retain after Pelech to recognize exceptions to the normal rule of contract enforcement.

(i) Content of spousal support agreements

The implications of a strict rule of enforcement of spousal support agreements are very different depending upon the content of the agreement. In the preceding discussion concerns were raised with respect to agreements in which the spousal support agreement provides less generous support than might have been awarded by the courts. However, it must also be recognized that women may receive more generous support under a spousal agreement than they might receive from the courts. In such cases a judicial policy of contractual

217 Mr. Justice La Forest in his dissenting judgment in Richardson, above, note 16, found it relevant that the parties' mutual expectation was that the wife would be able to find work within a year.

218 Again, it appears that courts are applying the general rules of contract law more stringently in the family law context than in other areas of law.


enforcement might result in support awards which more fully realize the legislative objectives than those which would be made by the courts themselves.219 Unless a principled distinction can be made between cases in which contractually determined support is above the statutory entitlement (as judicially interpeted) and those in which it is below,220 the recognition of a judicial power to modify contracts which depart significantly from the statutory norms might result in the withdrawal of support benefits provided to women in a generous spousal agreement. In fact, the Corkum case221 referred to above, in which the Judge expressed his difficulty with a situation in which he felt that enforcement of a separation agreement would defeat the legislation objectives, was one in which the husband was applying for a termination of the long-term support obligation he had undertaken in an agreement, arguing on the grounds that the wife had become self-sufficient.

In some of the reported cases reviewed women had agreed to support less generous than might have been awarded by the courts. In some cases women received lowel:' amounts of ongoing support under the agreement than they would have under the court order;222 in other cases they agreed to a termination of support, either by means of a waiver of support, a lump sum settlement, or a provision for timelimited support, in circumstances where courts would have recog-

219 Of course it is also possible that a contract might provide for support in circumstances where, apart from the contract, it could not be said, even on a generous interpretation of the legislative objectives for spousal support, that there was any claim for support. Enforcement of the contract in these cases could not be said to be a fulfillment of the legislative objectives. One case which might arguably fall into this category is Ritchie v. Ritchie (1988), 16 R.F.L. (3d) 163 (B.C. S.C.), discussed below at 264.

220 I will attempt to make such a distinction below. 221 Above, note 209. 222 See Dickson v. Dickson (1987), II R.F.L. (3d) 337 (B.c. c.A.); Brockie v.

Brockie, above, note 143; and Desmarais v. Desmarais, above, note 137. In Desmarais the amount of spousal support provided under the contract was very low. Although given his views of the wife's laziness, the particular Judge deciding the case would likely not have awarded more in the absence of a contract, another judge might have.


nized some continuing support obligation.223 Whatever their numbers, such contracts are undeniably a problem from the perspective of the individuals involved and one which requires judicial redress. However, to date they constitute only a minority of the cases involving spousal agreements, brought under the Divorce Act, 1985 and do not yet offer evidence of what might be regarded as a systemic problem.224 It is likely that more such contracts will be seen in the future as more agreements are negotiated in the shadow of the new Divorce Act and as the values of clean break and self-sufficiency become emphasized in the negotiation process. The judicial response being developed toward such contracts thus warrants careful scrutiny.

At the present time, however, the majority of the reported cases in which requests were made to vary or set aside spousal support agreements involved contracts in which the support awards were either equivalent to or more generous than what a court would have ordered. Many of the reported cases involved spousal support agreements which provided for indefinite support and the subsequent litigation typically involved claims by husbands to terminate or decrease support, either because their former wives were self-sufficient or because their own economic' circumstances had worsened. The current predominance in the case law of such contracts is easily explained. Many of the contracts were entered into prior to the enactment of the new Divorce Act and also prior to the Pelech trilogy, at a time when

223 For agreements providing for time-limited support see Brockie v. Brockie, above, note 143; Thomas v. Thomas, above, note 181; and Wiley v. Wiley, above, note 184. For agreements providing for a lump sum settlement and a waiver of support see Fyffe v. Fyffe (1988), 63 O.R (2d) 783, 12 RF.L. (3d) 196 (C.A.), rev'g (1986),4 RF.L. (3d) 215 (H.C.); and Pilon v. Pilon (1988), 66 O.R (2d) I, 16 R.F.L. (3d) 225 (C.A.), rev' g (1986), 56 O.R (2d) 573, 4 RF.L. (3d) 189 (H.C.). Pilon is complicated by the fact that the wife suffered from an illness pre-dating the marriage, leading the Court to conclude that there was no entitlement to support because of the absence of causal connection. Thus it may not be correct to say of Pilon that absent the contract the Court would have awarded support. There are also situations where an original support award has been eroded over the years by inflation and wives bring requests for an upward variation. These cases, which involve variation in response to changing circumstances rather than more direct challenges to the fairness of the initial agreement, will be dealt with below.

224 This is not to say that contracts of this sort are not prevalent and do not constitute a problem, merely that this is not documented by the reported cases reviewed for this study.


permanent support was the norm and self-sufficiency and clean break were not being given the priority they now are. The enforcement of these contracts does not pose the same threat to women's entitlement to support as the contracts discussed above; it is instead a too-ready willingness to set aside the contract which poses the threat.

In contracts which provide for long-term support there is an obvious need for some power to vary the contractual support obligation in response to changes in circumstances over time - changes in the circumstances of either the former wife or the former husband.225

This argument is strongest with respect to those contracts negotiated pre-Pelech which did not include a specific variation clause because of the assumption that once the separation agreement was incorporated into the decree nisi it could be varied by the courts if there were a material change in circumstances. Even apart from this consideration, long-term contracts by their very nature require a power of modification to deal with significant changes in circumstances over time.226 These powers of variation are of the sort contemplated by the Pelech test, or at least fairly easily accommodated within it. 227

A more difficult issue is whether there should be a special power to modify these long-term support agreements not on the basis of changes in circumstances, but because of an obvious disjuncture between the contractual provisions and the statutory entitlement as interpreted by courts.228 This situation would arise when the support payments provided for in the agreement are much higher than what a

225 Requests for variation of long-term support agreements may also be brought by wives whose original support awards have been eroded by inflation in a situation where the agreement does not contain an express variation clause.

226 This is simply to state that one can never predict all future contingencies when negotiating an agreement which provides for performance over a long period of time; see the literature on relational contracts, for example I. MacNeil, ''The Many Futures of Contract" (1974) 47 S. California L. Rev. 691.

227 The difference between this power to modify and the one just previously discussed is in the stringency of the threshold requirement for a variation. In the first situation which relies on the parties' understanding of divorce law, the test would simply be a material change in circumstances and the change might have been foreseeable. In the second situation the test would likely be the more stringent one contemplated by Pelech, a radical, unforeseen change.

228 Although, as will be discussed below, some courts try to fit these cases into the Pelech test by finding, for example, that the wife's attainment of employment is a radical change in circumstances.


court would order or when the contract provides for ongoing support, in circumstances where a court today would tenninate support, either because the wife had found employment and would be viewed as selfsufficient or simply because of the passage of time.229

It may be argued in general that the enforcement of contracts which provide for support above the statutory entitlement do not raise the same concerns as those which provide for support significantly below the statutory entitlement. Husbands, in general, do not suffer from the same disadvantages in bargaining power as do wives.230 As well, the statutory scheme can be understood as a set of minimum entitlements and one may legitimately be most concerned about those cases in which the intended beneficiaries of the legislation, who are in a disadvantaged position and for whom the legislation provides a remedy, receive less than this minimum entitlement. Finally, contracts in which support is provided even after wives have achieved what the courts might term self-sufficiency should not necessarily be viewed as situations where there is no entitlement to support. Support above the level of bare self-sufficiency may compensate for a variety of advantages and disadvantages to the spouses flowing from the marriage and its breakdown which the courts themselves may not be willing to recognize, but which the parties themselves do.231

However, even if one is required, as a matter of principle to grant the courts a unifonn power to modify contracts which depart significantly from the statutory entitlement in either direction, there are specific concerns with applying the norms contained in the Divorce Act, 1985 to contracts entered into long before the enactment of that legislation. Many of the contracts in the reported cases were

229 The passage of time serving, in the courts' view, to break the causal link between the wife's needs and the marriage.

230 Husbands will, for example, tend not to suffer the same uncertainty about their economic future, given that they typically leave the relationship with secure employment and will typically not have the same desire for custody and the same willingness to sacrifice economic entitlements to win it. Men may, however, suffer from guilt feelings if they are responsible for initiating the marriage breakdown. For an example of a case in which the husband, may have suffered some bargaining disadvantages, given his failure to consult a lawyer, see Ritchie v. Ritchie, above, note 219. The case will be discussed more fully below at 264.

231 See the comments of Nasmith Fam. Ct. 1. in Hood v. Hood (1990), 72 O.R. (2d) 1, 25 R.F.L. (3d) 382 (Fam. Ct.).


negotiated on the assumption that the wife was entitled to permanent support. It is unfair, on a subsequent variation application, to import new norms of entitlement into the agreement. 232

, As the preceding discussion has indicated, the implications of the Pelech rule of strict contractual enforcement on women's entitlement to support vary according to the type of contract involved and the circumstances in which it was negotiated. In some cases as a result of Pelech women may receive less support than they would have been awarded by the courts; but in other cases Pelech may serve to protect entitlements to indefinite support contained in contracts beyond the point at which wives achieve self-sufficiency. Arguments advocating a wider judicial power to set aside agreements where they depart too significantly from the legislative objectives must thus be made with some caution, unless courts are willing to distinguish between agreements where women are disadvantaged and those where they are advantaged vis-a-vis the statutory entitlement.

(ii) Patterns of judicial enforcement of agreements post-Pelech

A complete assessment of the implications of Pelech requires a closer analysis of the extent to which courts are, in practice, willing to depart from a spousal agreement and make the support award they feel is more appropriate. Although there is now what might be viewed as a general presumption in favour of enforcement of contracts, many possibilities still remain open to courts within existing doctrine to allow for the variation or setting aside of contractual provisions. Several issues respecting the applicability of the Pelech rule still remain unsettled. The first issue is whether Pelech applies at all to cases under the Divorce Act, 1985 and if so, whether it applies to requests by payors to reduce or terminate contractually agreed upon support as well to requests by payees to increase support. Even if the Pelech rule does apply, there are still questions of whether the case falls, on its specific facts, within the strict limits of Pelech: was

232 The continued existence of the support entitlement would likely have been the basis for the negotiation. As well, many of the pre-Pelech agreements were negotiated at a time prior to the enactment of matrimonial property legislation. Women's primary entitlement then was a claim to permanent support.


the contract a final settlement or were subsequent vanatlons contemplated? Was there a radical, unforeseen change in circumstances? Was it causally connected to the marriage? The determination of these issues still allows significant scope for judicial discretion, and the court's assessment of the fairness of the agreement in light of their reading of the legislative objectives may indirectly influence these exercises of discretion. The cases were examined in order to determine what values are shaping these exercises of judicial discretion and whether certain types of contracts are being enforced more stringently than others. One fear is that rather than using their remaining discretion even-handedly, courts might be more ready to utilize it in cases involving requests by payors to decrease or terminate contractually agreed upon support than in cases where former wives request support beyond what is provided for in the contract.

Although there is some evidence to support this fear, the reported cases at this stage of the judicial interpretation and application of the Pelech rule do not fall into any such clear-cut pattern. The cases reveal a great deal of doctrinal confusion and many variations in judicial approaches to the issue of contractual enforcement. To the extent that any pattern was discernible, it appears that judges are more willing to modify agreements which provide for ongoing support than

. they are to modify agreements in which the support obligation has been terminated.233 Former wives as well as former husbands benefit from this power of modification, which is essentially a power to vary contracts in response to changing circumstances. Indeed, in some of the early cases, former husbands' requests for variation, even in response to radical changes in circumstances, were summarily dismissed.

More recent cases, however, indicate an increasing judicial willingness not just to be even-handed and modify agreements in response to changes in the payor's circumstances, but also to create

233 In Brockie, above, note 143 and text accompanying above, notes 202-204, the Court stated that one of the factors influencing its decision to extend support beyond what the contract provided was that the parties had acknowledged the existence of a support obligation by providing for support for 3 years. Richardson suggests, however, that contracts containing a provision for timelimited support are to be treated as final settlements rather than as arrangements which recognize the existence of a support obligation.


an exception to Pelech which allows courts to terminate contractually agreed upon support if there is no longer any entitlement to support. This is a disturbing development, as the power being asserted to set aside a spousal agreement because of its failure to conform to the statutory objectives benefits only payors. It is not matched by a judicial willingness to benefit payees by extending a statutory entitlement to support in cases where the agreement has either terminated the support obligation or provided for much lower support payments than the courts would award.

A. Judicial response to long-term support agreements. With respect to those agreements which provided for ongoing support, the majority of requests for variation in the reported cases were brought by husbands requesting either a decrease or termination of support. In some cases the ground put forward for variation was a decrease in the husband's ability to pay, either because of decreased income due, for example, to economic misfortune or retirement, or because of his assumption of new family responsibilities. In other cases the basis for the request was that the wife had become self-sufficient and no longer had a need for support, or alternatively that she had lost her entitlement to support because of the passage of time since the marriage breakdown. Although the majority of variation requests with respect to long-term spousal support agreements were brought by former husbands, some cases involved requests by former wives for an upward variation in support. In some cases wives had discovered that the contractually agreed upon support was insufficient to meet their needs; in other cases the amount originally agreed upon had been eroded by inflation over the years, and the contract did not contain an explicit variation clause or a COLA clause.

Many of the requests for an award support other than as provided for ~n the long-term spousal support agreement were essentially requests for variation in response to changes in circumstances. Such a power of modification, which is necessary when dealing with long-term contracts, is essentially of the type contemplated by Pelech. The question to be asked with respect to these cases is how stringent a test for change in circumstances is being imposed and whether it varies depending upon the circumstances of the case. Pelech osten-


sibly imposes a fairly strict test - a radical, unforeseen change in circumstances. Yet, at least in pre-Pelech contracts, the parties might have assumed that, once incorporated into a decree nisi, the contract would be open to variation in response to material changes in circumstances, a less stringent test than a radical unforeseen change. In other cases the requests for contractual modification are based not on changes in circumstances, but more directly upon the unfairness of the agreement, judged in light of the statutory entitlement to support. Such requests are ostensibly precluded by Pelech. The question to be asked with respect to these cases is whether courts are taking these fairness considerations into account, either directly, or indirectly through a very generous interpretation of what constitutes a change in circumstances.

In their response to spousal agreements providing for ongoing support, with the troubling exception of a few recent decisions, courts are generally reaching appropriate results. Pelech is generally being applied so as to protect the basic entitlement to support but not so rigidly as to preclude variation in the face of changing circumstances. Courts appear wi11ing to take into account the assumptions respecting subsequent variation which the parties would have held at the time the agreement was entered into. In considering requests for variation of these agreements courts often engage in an assessment of the fairness of the result in light of the legislative objectives. It is often difficult to distinguish these cases from those in which the court is considering an application to vary court-ordered support.

With respect to those cases in which husbands requested variation based on decreased ability to pay, a power to respond to significant changes is both necessary and justifiable. However, there is also a legitimate fear that relatively insignificant changes in circumstances may be too readily accepted as a ground for variation, thus undermining the entitlement to support recognized by the contract. Another fear is that such claims by husbands wi11 be accepted but not claims by wives in response to changes in their own economic circumstances.

General1y, in the cases reviewed the courts cannot be criticized for too easily allowing decreases in husband's ability to pay to justify variation of contractual support obligations. Indeed it could be


argued that they have gone too far in the opposite direction. In the majority of early cases courts took the position that the Pelech test applies in its strict terms to contract variations sought by payors as we]] as ' payees, variation thus requiring not only a radical change in circumstances but also a change causally connected to the marriage. On this test, because a decrease in the payor's ability to pay can almost never be traced to the marriage, it cannot constitute grounds for a variation of the contract. 234 This approach appears, as a matter of principle, misguided and extreme. There must be a power, at the very least, to respond to drastic, unforeseen changes in the payor's ability to pay. In some of the more recent cases courts are concluding, more appropriately, that the causal connection requirement does not apply to variation requests brought by payors.235

Nonetheless, in most of the cases where a variation was denied on the basis of decreased ability to pay, the facts did not support the existence of a radical change in circumstances not contemplated by the contract and courts referred to this, as well as the absence of a causal connection to the marriage, in justifying their decision. In refusing a variation courts emphasized the continuing needs of the . wife as a result of the marriage236 and often concluded that there was

234 Cases holding that husbands requesting variatiQns of agreements must satisfy both parts of the Pelech test, including a causal connection between the changed circumstances and the marriage include: Cook v. Cook (1988), 17 RF.L. (3d) 35 (N.S. Fam. Ct.); FetterLey, above, note 55; Leman v. Leman (1988), 14 RF.L. (3d) 122 (Ont. H.C.); Sauntry v. Sauntry (1988), 86 N.S.R (2d) 411 (T.D.); Swiderski v. Swiderski (1988), 15 RF.L. (3d) 295 (Sask. Q.B.); and Walsh v. WaLsh (1987), 80 N.S.R (2d) 350 (Fam. Ct.).

235 See Swan v. Swan (1988), 14 RF.L. (3d) 385 (N.B. Q.B.); and two cases decided since completion of this review: Hood v. Hood, above, note 231; and Byers v. Byers (1990), 23 RF.L. (3d) 280 (Ont. H.C.).

236 See Brown v. Brown (1988), 17 RF.L. (3d) 281 (N.B. Q.B.) (Court refusing to terminate support agreed upon after breakdown of 29-year traditional marriage because husband remarrying and contemplating early retirement; Court emphasizing long, traditional nature of marriage and wife's continuing needs); Cook v. Cook, above, note 234 (Court emphasizing wife's continuing needs and lack of self-sufficiency in refusing husband's request for downward variation due to decreases in his income).


still ability to pay despite changes in circumstances.237 With respect to changes brought about by remarriage, the position was taken that the husband entered into the new relationship knowing of his existing obligations238 or that there was no significant change in his means and that he was still able to pay support.239 In those cases where courts did allow variations based upon decreased ability to pay, the changes in the husband's financial position were typically fairly extreme and in some of the cases the wife's entitlement to support not a strong one.240

The power to vary contracts in response to the changing economic circumstances of the parties was not exercised only in favour of husbands, but also in favour of wives. Courts also allowed applications for upward variations brought by wives on the basis of inflation and increases in their husband's economic position.241 That

237 See WaLsh v. WaLsh, above, note 234 (husband responsible for his debts because living beyond his means and support of $400 to wife after 26-year marriage not reduced); Kuntz v. Kuntz (1988), 34 B.C.L.R (2d) 395 (S.c.) (husband losing job but still having comfortable style of living with new wife and child; Court not rescinding maintenance); Swiderski v. Swiderski, above, note 234 (Court finding husband could pay support, despite drastic decline in income, by selling capital asset and refusing to decrease support). In Peterson v. Peterson (1988), 13 RF.L. (3d) 85 (Man. Q.B.) the Court looked at the entire agreement in dealing with the husband's request for a variation after he retired and his income dropped. The Court dismissed his application, noting that the wife did not get any property rights to the husband's pension under the separation agreement and thus implying that it was fair that she should receive a share by means of support.

238 Sauntry v. Sauntry, above, note 234. 239 Brown v. Brown, above, note 236. 240 See Fenwick v. Fenwick, above, note 118 (husband's income dropping dras

tically and Court finding wife's needs not related to marriage); KaLavrouziotis v. KaLavrouziotis (1988), 14 RF.L. (3d) 376 (N.S. c.A.) (husband going bankrupt, remarrying and having second child; support obligation suspended for 1 year); Swan v. Swan, above, note 235 (husband retiring and income dropping by 60%); and Goddard v. Goddard (1988), 16 R.F.L. (3d) 453 (Ont. H.C.) (husband remarrying and retired and would be below poverty level if required to pay support; wife in nursing home and incompetent).

241 See DupLak v. DupLak (1988), 54 Man. R (2d) 70 (Q.B.) (support agreement entered into in 1976 after 30-year marriage providing for support of $350 per month; Court raising support to $500 per month to take inflation into account and noting that agreement was entered into before trilogy and contemplated further variation); Horn v. Horn, above, note 36 (separation agreement entered into in 1979 after 20-year marriage providing for support of $230 per month; husband applying to terminate support and wife requesting increase to $450 per


result was typically justified by a finding that the strict Pelech test for variation did not apply because the parties contemplated subsequent variation and the contract was thus not a final settlement. In reaching that c'onclusion courts acknowledged the assumptions respecting variation of support agreements that prevailed prior to Pelech.

However, the courts' willingness to allow upward variation of ongoing contractual support only goes so far; it does not extend to cases where courts perceive that the reason for variation is not a change in circumstances but rather dissatisfaction with the contract and a realization, after the fact, that the support provided for under the contract is insufficient to meet the wife's needs.242 If the concern is that children are thereby being deprived, the typical response of the courts is to increase child support, rather than spousal support.243

The most difficult issue with respect to variation of spousal agreements providing for indefinite support is whether support should be terminated because the wife has become self-sufficient. Although there may be cases where the parties contemplated a subsequent variation in response to such a change, or cases in which the wife's position has changed so significantly that the whole basis of the contract is changed, such requests for variation should generally be viewed with suspicion. With respect to contracts entered into pre-Pelech, the parties would typically have understood the support

month; Court increasing support to $350 per month and recognizing both long duration of marriage and fact separation agreement contemplated variation); Marshall v. Marshall (1988), 13 RF.L. (3d) 337 (Ont. C.A.), leave to appeal to S.C.C. refused (1988), 31 O.A.C. 160 (note) (S.C.C.) (separation agreement entered into in 1970 after 23-year marriage providing for support of $728 per month; Court increasing support to $1,228 per month' because of inflation and changes in wife's health; Court finding changes constituting radical change in circumstances causally connected to marriage but also noting understanding at time agreement entered into that variation would be possible in case of substantial change of circumstances). For a case in which a wife's request for upward variation was rejected on the grounds that her retirement and a slight shortfall between her expenses and her income did not constitute a substantial change in circumstances, see Troughton v. Troughton (1988), 18 RF.L. (3d) 113 (Alta. c.A.).

242 See Dickson v. Dickson, above, note 222, and Desmarais v. Desmarais, above, note 137.

243 That approach, advocated in Pelech and Richardson, was taken in both Dickson and Desmarais. A similar approach was taken in Kelly v. Kelly (1987), 67 Nfld. & P.E.I.R 304 (Nfld. T.D.), where the agreement was of the type, which will be discussed below, in which there was no provision for spousal support.


entitlement to be permanent. Even if they had contemplated subsequent variation in response to material changes in circumstances, they would not have contemplated the termination of support. As well, a provision for support above the level of bare self-sufficiency may constitute what the parties understood to be fair compensation for the consequences of the relationship.244

Judicial termination of an indefinite support obligation created by agreement because the wife has become self-sufficient is often best understood not as a variation in response to changing circumstances (although the courts may present it as such), but rather as a decision to modify the contract on fairness grounds because of its inconsistency with the current legislative objeCtives for support. This is ostensibly what Pelech precludes and is problematic on several grounds. It favours husbands by granting them a benefit (i.e., judicial review of the contract on fairness grounds) not accorded wives. As well, it involves the importation of new norms of entitlement into the contract on a variation application many years after . the argeement was entered into.

The results in the reported cases were somewhat surprising, and contrary to a hypothesis that courts would inevitably use their discretion in this area to promote the principles of clean break and spousal self-sufficiency. In many of the early cases courts refused to terminate support because wives had found employment. Admittedly some of the cases on their facts involved very long traditional marriages and the courts themselves,absent any contract, would have acknowledged a continuing disadvantage from the marriage and its breakdown and ordered permanent support.245 Other cases, however, involved situations where the courts themseives might have eventually terminated support on the grounds of the wife's selfsufficiency. In these cases former wives benefitted from the contract and the benefit was typically not taken away by the courts.

In most of the cases courts insisted that contracts are not to be lightly set aside and, operating within the Pelech framework of varia-

244 See Hood v. Hood, above, note 231. 245 See Cohn v. Leboff, above, note 55 (wife aged 55 at time of divorce and failing

to achieve self-sufficiency 12 years later; Court stating that wife not expected to be self-sufficient given her age and the roles adopted during the marriage).


tion in response to radical changes in circumstances, concluded that

the wife's finding employment was not a radical change in cir

cumstances but instead something that was foreseeable when the con

tract was entered into.246 In one case, Leman v. Leman, in which the

former wife was earning $27,000 per year and was also entitled under

the contract to permanent support of $2,500 per month indexed to

changes in the cost of living, the Judge explicitly commented on what

he considered to be the unfairness of the result, but nonetheless felt

compelled by the existing state of the law to uphold the contract.247

Although in the majority of cases reported up to May 1989 courts refused to use the wife's attainment of self-sufficiency as a

reason for terminating agreements providing for indefinite support,

the more recent case law does contain exceptions which may be in-

246 In some cases courts found that the wife's employment was foreseeable when the agreement was entered into; in others they concluded that the wife, even though employed, was not yet self-sufficient. See Buri v. Dila (1987), 11 R.F.L. (3d) 373 (Que. C.A.) (separation agreement providing for spousal support until wife dying or remarrying and to be altered annually based on needs and means of parties; wife earning $24,000 and husband earning $200,000; trial Judge terminating support but Court of Appeal awarding wife increased support from $663 per month to $1,000 per month; Court holding that contracts not to be lightly set aside and that contract provided for support based on needs and means); Cook v. Cook, above, note 234 (wife having employment problems at time of divorce but full-time employment foreseeable and thus no radical change justifying variation application brought by husband 19 months later); MacMillan v. MacMillan (1988), 18 R.F.L. (3d) 149 (N.S. T.D.) (support not terminated because wife finding full-time employment after divorce and earning $19,000 per year while husband earning $53,000 per year); Neufeld v. Neufeld (1986), 3 R.F.L. (3d) 435 (Ont. H.C.) (fact wife self-supporting not satisfying requirement for radical change but support terminated because wife cohabiting and separation agreement providing for termination of support in those circumstances); Olson v. Olson (1987), 11 R.F.L. (3d) 141 (Sask. Q.B.) (wife not employed at time of divorce but subsequently finding work; husband's application to terminate spousal support dismissed; Court finding no radical change in circumstances); Tomlin v. Christie (1987), 10 R.F.L. (3d) 292 (Sask. Q.B.) (separation agreement providing for indefinite spousal support of $100 per month after a 3-year marriage; husband remarrying and experiencing decline in income; wife going to university and finding full-time employment; Court refusing to terminate support finding changes not radical and agreement not limiting support).

247 Above, note 234.


dicative of an approach which will become dominant in the future. 248

In these cases courts have judged the contractual arrangement against the legislative objectives for support and, finding a significant disparity, modified the contract. In some cases the courts still operate with the Pelech framework, concluding that the wife's attainment of self-sufficiency constitutes a radical change in 'circumstances.249 In others the courts have articulated an exception to the Pelech rule which grants an independent power to modify a contract if the wife no longer has an entitlement to support.

The case in which this exception was first articulated was Ritchie v. Ritchie,250 which admittedly, on its facts, offered a fairly strong case for termination of spousal support. Even on a very generous interpretation of the support objectives there was likely no further entitlement to spousal support251 and there were also concerns about the fairness of the bargaining process. The marriage had lasted 9 years. The husband was a dentist; the wife, who was a teacher, had taken time off work to care for their infant child but in 1984, after the divorce, she obtained full-time employment with the government, earning $58,000 annually. A separation agreement incorporated into the decree nisi in 1982 provided for spousal support until the wife died or remarried. The husband had not had legal advice when the contract was drafted.

In a variation application brought in 1988, 8 years after the separation and 6 years after the divorce, spousal support was ter-

248 There are also two cases decided prior to Pelech where courts essentially disregarded the contract and imposed the support order they saw fit, that being a termination of support; see Smith v. Smith, above, note 93, discussed, above, note 202; and Weir v. Weir (1987), 12 R.F.L. (3d) 160, 50 Man. R. (2d) 41 (C.A.) (parties divorced in 1974 after 23-year marriage; husband agreeing to pay $400 per month spousal support; Court ordering support to cease after 23 months).

249 See Byers v. Byers, above, note 235. 250 Above, note 219. 251 Although this is not completely certain. The wife had custody of the children

and spousal support may have been required to maintain the appropriate household income for the children. After terminating spousal support, the Court recommended that the amount of child support being paid by the husband be reconsidered. In addition, there may have been claims by the wife to compensatory support respecting contributions to the husband's career. There is no evidence in the reported case on this issue or on the issue of how much matrimonial property the wife received.


minated because of the wife's self-sufficiency. The Court stated that the test of a radical change in circumstances causally connected to the marriage was inappropriate when the application for variation was based upon the absence of need in the payor, and hence the absence of entitlement to support. The Court also held that it was required to give effect to the support objectives of self-sufficiency and economic independence found in section 17(7) of the Divorce Act.

On the facts, the result in Ritchie is not clearly wrong and the case points out that there may be situations where there is such a significant disparity between the agreement and the legislative objectives that some judicial power of modification may be necessary, especially if there are also concerns about the fairness of the bargaining process. Unlike the typical cases in which a wife's post-divorce income is below $20,000 per year and she continues to suffer economic disadvantages from the marriage, in Ritchie it could be said that the wife was truly self-sufficient and that she had been adequately compensated for any losses due to the marriage.252

However, there are examples in the case law of courts terminating the indefinite spousal support provided for by agreement on . facts very different from Ritchie where wives had arguably not recovered economically from the marriage and its breakdown. Typically this · occurs in cases where support has been paid under the contract for many years. Courts feel that the husband has paid enough and the time has come to terminate the support obligation.253

This is extraordinarily unfair if the wife has relied for many years since divorce upon the understanding that the support obligation would be permanent.

252 Although as discussed ibid. there may have been other grounds requiring compensation. Nasmith Fam. Ct. J. has disagreed with the approach adopted in Ritchie, arguing that there may be reasons for compensation beyond selfsufficiency; see Hood v. Hood, above, note 231.

253 For two cases decided prior to Pelech where this was done, see above, note 248. For cases post-Pelech where indefinite support agreements were terminated see Fenwick v. Fenwick, above, note 118, and Byers v. Byers, above, note 249. Fenwick is unlike the other cases in that it did not involve a situation where support had been paid for a long period of time after separation; instead the Court was influenced by the husband's bankruptcy and the absence of a causal connection between the wife's economic circumstances and the marriage once she had found employment.


B. Judicial response to agreements in which support has been . terminated. Another problem with the exception to Pelech recognized in Ritchie, which essentially allows contracts to be set aside because they are found to be unfair, is that only payors benefit from this exception. As discussed above, courts are not willing to vary agreements providing for permanent spousal support in cases where wives have made a bad bargain and settled for less support than that to which they would be entitled under the legislation. And the courts are even more unwilling to extend this fairness review to cases in which the disparity between the agreement and the legislative objectives may be even more extreme - cases where the support obligation has been terminated by the terms of the contract.

As discussed above, these contracts do not yet predominate in the case law and thus there is not a very large sample of cases on which to ba~e conclusions. However, it is likely, on the basis of the trilogy, that the courts will be much less willing to vary agreements in cases where support has been terminated. The cases in which the Supreme Court of Canada articulated its strict test for variation involved final settlements where the support obligation had been terminated. It is therefore much more difficult for subsequent courts to distinguish such cases from Pelech and Richardson and allow a variation of the contract. 254

From the few such reported cases that exist under the Divorce Act, 1985 it appears that courts are taking a much more stringent approach to enforcement of these contracts. In so·me cases where there is not a strong entitlement to spousal support, a contractual termination of support may not be problematic.255 In other cases,' however, a need which is clearly related to the marriage continues to exist after

254 It is harder. for example, for a court to say that the contract was not a final settlement and that the parties contemplated settlement. In Richardson the Court refused to recognize that the contract was based upon the assumption that the wife would find employment within a year and that the parties likely assumed that the agreement could be varied if the wife had not become selfsufficient at the end of the I-year period.

255 See Pilon v. Pilon, above, note 223, where there is an argument that the wife had no entitlement to support because of an illness pre-dating the marriage. On the other hand, the length of the marriage might suggest that there was a claim for support.


the contractual termination of support.256 Although courts, apart from .contract, might have foreseen an eventual termination of support in some of these cases, it is unlikely that they would have imposed a time-limited order, preferring to wait to terminate support at least until the wife found full-time employment.

In the cases involving agreements terminating the support obligation, not only are courts unwilling to set aside contracts directly on fairness grounds (and this is not surprising given Pelech) , they are also unwilling to use the discretion which they retain under Pelech to set aside contracts on the basis of a change in circumstances. Most noticeably, courts refuse to see the failure of certain assumptions on which the contract was based as a radical change in circumstances. They also fail to acknowledge that prior to Pelech even these contracts may have been understood to be subject to variation if circumstances changed.257 This stands in contrast to their approach in dealing with contracts for indefinite support where they do acknowledge the assumptions respecting variation that prevailed prior to Pelech.

It is true that there are a couple of cases where courts have managed to avoid the strictness of Pelech even in cases involving agreements for time-limited support. In one case, Thomas v.

256 See Brockie v. Brockie, above, note 143, in which because the case was decided prior to Pelech the Court felt free to extend support; Fyffe v. Fyffe, above, note 223, where the wife received a lump sum settlement which, because of a drastic drop in interest rates, failed to provide her with the standard of living which she expected and to which she was entitled after a long marriage; Wiley v. Wiley, above, note 184, which like Brockie was decided prior to Pelech but in which the Court upheld an agreement for 2 years of time-limited spousal support. Even though the wife had been unable to find a job and was taking upgrading courses, the Court concluded that there was no evidence the contract was unreasonable.

257 This is particularly true of contracts providing for time-limited support, which are often based on an assumption that the wife will become self-sufficient by the end of the time period. Also, prior to Pelech, there would have been an assumption on the part of lawyers and judges that if the wife had made reasonable efforts, but was not self-sufficient at the end of the time period, she could come to Court and, under the Divorce Act, request an extension of the time limit. See Koncan v. Koncan (1986), 5 R.F.L. (3d) 15 (Man. c.A.), a case decided prior to Pelech where the Court upheld a verbal agreement for limitedterm support but noted that a subsequent variation of the order was possible.


Thomas,258 the Court extended support beyond the contractually set time limit on the grounds that because the husband was in arrears he could not rely upon the contract. In another, Isaacson v. Isaacson,259 the Court extended support in a case where the wife's job training program was extended 6 months, finding that the parties' mutual mistake respecting the length of the training program constituted a radical change in circumstances. However, even if some courts are willing to distinguish Pelech and Richardson in cases involving agreements for limited-term support, such an outcome is still unpredictable and precanous.

Although contracts terminating support are not yet pervasive in the case law, they may become more prevalent in future cases. The very strict judicial enforcement of these contracts may thus become a more serious problem and the inequities between these cases and those in which courts are willing to relieve payors of support obligations because of the wife's attainment of self-sufficiency or the passage of time will become more glaring. The case law at this point is suggesti ve of future problems.

(iii) C(mclusion

The implications of Pelech with respect to spousal support agreements are still fairly difficult to assess at this stage. The developing case law reveals courts' willingness both to create exceptions to Pelech and to stretch their remaining discretion . in determining whether there has been a radical change in circumstances in response to their own assessment of the fairness of the outcome. Some evidence to support the charge that this discretion is being exercised in favour of the values of self-sufficiency and clean break may be found both in judicial unwillingness to vary agreements where the support obligation has been terminated and those cases where courts have terminated contractually agreed upon indefinite support on the

258 Above, note 181. 259 Isaacson would appear to be at odds with Richardson and the Court's refusal

there to find a mutual mistake with respect to the wife's ability to find employment. Subsequent cases will reveal whether Isaacson becomes a broad precedent or confined to its very specific facts.


grounds of the wife's self-sufficiency. On the other hand, courts have also allowed wives' requests for upward variation of support agreements because of inflation and increased costs and have even, in some cases', and contrary to Richardson, extended time-limited support. They have also in many cases refused to terminate support where wives have found employment Although the law in this area still remains unfixed, it is clear that despite Pelech, many courts continue to take into account, some directly and some indirectly, the fairness of the agreement in determining whether or not and how to modify it.

judicial interpretation of the spousal and child …...reprinted from canadian family law quarterly...

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