Chapter 9 - Spousal Support Flashcards
Three elements of a spousal support analysis?
1) Entitlement
2) Duration
3) Amount
What are the two approaches to spousal support?
1) The compensatory approach: The theoretical foundation here is the “independent/ clean break” model: spousal support is compensatory and each party to the union is independent. This is the primary basis for support: compensation for “foregone careers and missed opportunities”
2) The non-compensatory approach: The theoretical foundation here is the “mutual obligation” model: marriage is all about interdependence and the spouses have mutual obligations to each other that can continue to exist even after the breakdown of the marriage.
What happened in Pelech?
This was a 15 year marriage and the wife had a mental health disease. The husband made periodic payments totallying $28k in support of his support obligations pursuant to a settlement agreement. Sixteen years after the marriage he was worth $1.8million and she was on social assistance. Social assistance made her sue him for more money. The TJ ordered more money, but both the CA and SCC said spousal supported had ended.
What are the facts of Moge v. Moge (1992 SCC)?
The parties had been married in Poland before they arrived in Manitoba. Throughout their 16-year marriage the husband worked full-time outside the home, making no contribution to the work of the household or the care of the children. The wife had been a full-time homemaker, caring for the couple’s three children, and had also worked in the evenings, cleaning offices, to supplement her husband’s income. After the parties separated in 1973, the wife was awarded child and spousal support. In 1989, Mr. Moge applied to vary or terminate his support obligations to his wife. Mrs. Moge was then 55 years old, working part-time cleaning offices, and none of the children were eligible for child support. The variation was successful, but Ms. Moge appealed the decision. The SCC agreed with Ms. Moge and the court ordered spousal support payments.
What is the “Clean Break Theory”?
The Pelech trilogy has been seen as an advocate for the “clean break” theory of spousal support: that spouses should be encouraged to sever their relationships as soon as possible and such agreements will be respected by courts.
What is self-sufficiency?
Self-sufficiency is a relative concept. The starting point is that spousal support should be indefinite until self-sufficiency is achieved. This starting point is based on Dubé’s “feminization of poverty” analysis from Moge.
The ability to achieve self-sufficienty must be considered a realistically. A minimum wage job doesn’t necessarily get you there. The standard must be comparable to that achieved in the marriage.
Moge
What approach to spousal support does Moge use?
The compensatory approach. This approach considers the non-monetary contributions made by the wife during marriage and the subsequent disadvantage in employment she suffers post marriage breakdown.
According to Bracklaw v Bracklaw (1999 SCC), what are the three bases for entitlement to spousal support?
1) Compensation for hardship or lost opportunities due to marriage or its breakdown
2) To fulfill a contractual agreement, express or otherwise implied
3) On a non compensatory basis, to assist a spouse in need.
What are the facts of Bracklow v. Bracklow (1999 SCC)?
Wife was an accountant, with two children from a previous relationship, and husband was a mechanic. Cohabitation began in 1985, married in 1989, separation in 1992, divorce 1995. Before the breakdown of the marriage, they functioned as a family and shared expenses evenly.
The wife became ill in 1988 and couldn’t work full time anymore. Her condition got progressively worse, and by 1991, she was admitted to the hospital for psychiatric problems. She is unlikely to work again.
The husband re-married and makes $3700 per month with household expenses of $2200 per month. Initially, the husband agreed to pay $200 per month, but he stopped making the payments almost immediately. Mrs. Bracklow receives $787 per month in disability and lives in subsidized housing. She received a subsequent order for $400, but the trial judge terminated support in 1996. The Appeal court dismissed the appellant’s case.
SCC allowed the appeal and ordered the matter back to trial for quantum. The court commented on the issue of support to a former spouse who is unable to be self-sufficient by reason of disability:
It was evident that, by the end of the relationship, Mr. B covered Mrs. B’s needs in the early stages of her illness. Accordingly, it follows that divorce did in fact render her in a state of economic hardship. The court concludes that she is eligible for support based on the length of cohabitation, the hardship that marriage breakdown imposed on her, her palpable need, and Mr. B’s financial ability to pay.
Divorce Act directs you to look at “hardship created by breakdown of the marriage”.
What does Bracklow say about measuring the quantum of an award?
Two factors for measuring quantum include the (1) need, and (2) length of the marriage. The same factors that determine entitlement will affect the amount and duration. Needs and means do not necessarily drive quantum.
What are the facts of Leskun v. Leskun (2006 SCC)?
The husband was getting an MBA and so his wife cashed her RRSPs to support the both of them. The wife hurt her back in ‘95 and was laid off four years later. Around the time she was laid off the two parties separated. The previous several years the husband had been cheating on his wife.
The original order required $2250/mth in spousal support until Ms. Leskun could return to full employment. The husband sought discontinuation of support on the grounds that she should be self-sufficient by now.
The TJ denied the application and suggested Mr. Leskun’s conduct left the wife emotionally damaged and that this contributed to her inability to find work. The SCC also dismissed the husband’s appeal.
Why is Leskun v. Leskun important?
It clarifies that while spousal misconduct in itself is irrelevant when considering child support, the emotional consequences arising from that misconduct are releant considerations. Ms. Leskun’s problems arose from her emotional state, which is tied to the way the marriage breakdown happened. As a result of her emotional state she was still not self-sufficent and the court denied the husband’s request for termination.
When can a court vary spousal support agreements?
Courts should only intervene to vary a spousal support settlement if (1) there is a radical and unforeseen change in circumstances, and (2) this change is causally connected to the roles adopted during the marriage [causal connection doctrine]
**Pelech **
How is alimony different from maintenaince?
Alimony is spousal support when couples are separated. Maintenance is spousal support when couples are divorced.
If there is no contractual or compensatory reasons for suppoert, can support be ordered based on another ground?
Yes, support can be non-compensatory and unrelated to the roles adopted in the marriage (Bracklow v Bracklow).
This arises out of idea that one of the bases social obligations of marriage is a promise of mutual support. Court cautions that marriage does not equal entitlement, but it can flow from fact that someone who used to enjoy access to spouse’s income and means now cannot do so. Need and ability to pay might be enough.
What is the relevance of spousal misconduct to spousal support?
Spousal misconduct is irrelevant but the consequences are relevant if it affects the other spouses’ ability to become self-sufficient. Difference b/w misconduct (not relevant) and consequences of misconduct. (Leskun v Leskun, SCC)
