While several jurisdictions in the US, including New Jersey, Maine, and Massachusetts, have made efforts to rein in life-time spousal support, I predict that Canadian law makers will not jump on the bandwagon anytime soon. In fact, I believe Canadian spouses (read “women”) will hold their place as the “most likely to succeed” financially post-separation, particularly in relation to their American sisters.
Yes, it’s true that it hasn’t always been this way. In the early 1980’s a majority of the Supreme Court of Canada in Messier v. Delage held strong to the philosophy that the obligation of support between ex-spouses “should not continue indefinitely when the marriage bond is dissolved,” and decried the notion that “one spouse could continue to be a drag on the other indefinitely; acquire a lifetime pension as a result of the marriage; or luxuriate in idleness at the expense of the other.”
The support noose got even tighter in 1987 after a trio of cases made their way up to Canada’s highest court. In Pelech v. Pelech, Caron v. Caron and Richardson v. Richardson the Court determined that spouses who had signed agreements dealing with spousal support could not easily shake loose of them.
The test to challenge an agreement that denied a spouse spousal support, or an attempt to increase or extend the time period for support required the applicant spouse to show there had been a radical change in circumstances causally linked to the marriage.
The first part of the legal requirement, establishing that a change was radical, was relatively easy. If a wife agreed to take no support and later became disabled or unemployable it was not difficult to characterize the change in her ability to work as radical.
More stringent, however, was the additional requirement that the radical change be attributable to the marriage. So, for example, if a wife signed a separation agreement that gave her no spousal support because she was fully self-supporting, and she later became disabled from an illness that did not manifest itself until after the divorce, her financial need could not be linked to her marriage. No link, no support.
For women who found themselves in this situation, their only hope was family support, welfare, or a second marriage.
Meanwhile, the federal government overhauled the Divorce Act 1968 and replaced it with a new Divorce Act in 1985. The new model for support called for an analysis of the economic advantages and disadvantages suffered by both spouses from the marriage or from the breakdown of the marriage. The stage was now set for a groundbreaking Supreme Court of Canada decision.
In 1992 the support pendulum swung hard in the opposite direction with a case that involved a spousal support payment of a mere $100.00 per month. In Moge v. Moge the Supreme Court of Canada introduced a new way of thinking about spousal support, with a support rationale that was based on compensation to a spouse, instead of just a consideration of “means and needs”.
In this ground breaking decision the Court directed judges to explore the economic consequences of divorce with a greater focus on women’s work at home as mothers and wives and the aftermath of staying at home, while their husbands worked.
The Court recognized that women in this position typically had no job skills, limited opportunities for education, and no pensions, savings, or health benefits.
Fast forward to 2006 when the federal government introduced Canada’s Spousal Support Advisory Guidelines, a further move to a more generous system of spousal support. The Guidelines provided a scheme to ensure that supported spouses received support that could be as high as 43% of their partner’s gross income. They also set a formula to determine how long support would be paid.
The upshot was that spouses who were married for 20 years or more typically received indefinite support that could be reviewed or varied if there was a material change in circumstances. Spouses in marriages under 20 years would receive support equivalent to the length of their marriage, also subject to variation if the supporting spouse could show a material change in circumstances.
While this analysis is a simplification of the Guidelines, there can be no doubt that the Spousal Support Guidelines benefitted women, and men were burdened with higher support payments, paid for a greater length of time.
In recent cases in British Columbia, men seeking to decrease their support have only been mildly successful, while most obtain no relief at all. Even men in their 60’s and 70’s who legitimately wish to retire, are often forced to keep working in order to pay support to their former wives. Yes, even if they have second wives and families.
In 2012 the Supreme Court of Canada reinforced their model of generosity in L.M.P.v. L.S. when they decided that spouses receiving support pursuant to an agreement were not necessarily bound by the terms of their agreement because recipient spouses may have been under intense emotional strain at the time they negotiated their agreements. In other words, even if the agreement called for the end of support, a court may well ignore the agreement.
As a result of this decision husbands in Canada can now wave good-bye to well-established principles of certainty and finality when they settle support issues.
Hearkening back to my original point, the Canadian trend in spousal support in no way resembles the burgeoning alimony reform sweeping through the United States. In fact, Canada continues to move in a direction that will eventually financially cripple husbands, particularly those that pay both child support and spousal support.
Yes, we need alimony reform, directed at spouses who are able to contribute to their own support, but choose not to, but we are unlikely to get it anytime soon.
Lawdiva aka Georgialee Lang