Warning to Men: Just When You Thought It Couldn’t Get Worse– New Alimony Law

You can’t quarrel with the fact that a stay-at-home mom, who has been married for 20 years, has three kids and has never worked, is a worthy recipient of spousal support. And, believe me…she needs it.

It took some time for Canadian men to accept that if they had income and their ex-wife did not, they were bound to pay some spousal support, even if their spouse left the marriage or worse even took up with another partner. Forty-years ago it was not too big a “hit”, as our Courts favored a “clean break” approach, meaning not much support, for not very long.

A few years later, as lawyers, legislators and judges encouraged and promoted support agreements, supported spouses who entered into separation agreements, but wanted or needed more support, had to prove their increased need was based on a “radical” change in their circumstances, causally related to the marriage. That too posed a challenge for women seeking support and carried on the pattern of low support orders for limited periods of time.

In the 1990’s the law changed rapidly and saw more women getting more support for longer periods of time, until 2006 when the federal government empowered law professors Carol Rogerson and Rollie Thompson to create “Spousal Support Advisory Guidelines”, which though never passed into law, were quickly adopted by all the Provinces.

This was real change. It became more difficult for a smooth-talking lawyer to convince a judge that the old rules still applied, namely that spousal support should be “short and not sweet”. The Guidelines provided schedules based on the payor’s income that introduced consistency in support awards across Canada and the new theme meant that men had to dig deeper and pay for a much longer period of time, even indefinitely.

Any hope of reprieve for long-time support payors was that when their financial circumstances changed due to illness, retirement or the vicissitudes of life, they could go back to court and apply for a reduction in spousal support, based on a “material change” in circumstances, theirs or their ex-spouse’s.

Yesterday, the Supreme Court of Canada gave short shrift to support payors’ “faint-hope”. What the majority of the Court said was because a separation “may result in dramatic life changes and emotional stress…these circumstances give rise to the possibility that the ability of separating spouses to realistically and objectively assess their current and future needs and preferences, can be impaired”.

In other words, don’t count on a separation agreement dealing with spousal support to be upheld in Canada. The Court held that the notion that separation agreements should be accorded “significant weight…is problematic”. Now they tell us?

Lawyers, who have been criticized for years, for “promoting” litigation, have just learned that Canada’s highest court eschews long-held contract principles of finality and certainty, comparing them to the condemned “clean break” approach of the 1970’s.

For what good it does, it must be noted that Chief Justice McLachlin and Justice Cromwell took a different view, holding that a support agreement plays a central role in the variation of a support order. They voiced puzzlement at the logic employed by the majority of the court, saying their approach is at odds with the “basic purpose of agreements, namely to apportion the risks of future uncertain events in order to achieve finality and certainty.”

What is certain is that while there is a new wave of American lawmakers restricting long-term alimony, Canada is on the opposite track. If this is the Court’s way of discouraging divorce, they may be on to something.

Lawdiva aka Georgialee Lang