Equality and Support for Spouses
| Published date | 01 September 1994 |
| Date | 01 September 1994 |
| DOI | http://doi.org/10.1111/j.1468-2230.1994.tb01969.x |
| Author | Helena Orton,Alison Diduck |
THE
MODERN
LAW
REVIEW
Volume
57
September
1994
No.
5
Equality
and
Support.
for
Spouses
Alison
Diduck* and Helena
Orton
**
Introduction
Divorcees ‘to lose mealticket.
’I
How
long
does
a
divorced
man
have
to pay
alimony
to
his
ex-wife?*
The view of the former wife as ‘alimony drone’ drawing upon her hardworking
former husband for support for life captured public consciousness in the United
Kingdom and Canada in the last decade and the early
1990s.
In both places
headlines were prompted by anticipated changes in the law of spousal support: in
the former by legislative amendments promoting a ‘clean break’ philosophy of
divorce, and recently in the latter by a legal review of the social and economic
consequences of such a philosophy.
Important questions of entitlement to, and quantum of, financial support on
divorce or separation have faced Canadian trial courts, like many of their common
law counterparts, on almost a daily basis. In April
1992,
these same questions
came before the Supreme Court of Canada and, in a far-reaching and practically-
based decision issued in December of the same year, the Court gave clear
indications as to the answers for Canada in the
1990s.
Indeed, in
Moge
v
Moge3
the court discussed ideological models of marriage and support in contemporary
Canadian society, and the decision constitutes part of an important shift in the
conceptualisation of economic relationships within the family and within society
more broadly. In reviewing this decision, its jurisprudential approach and its
*Lecturer in Law, Brunel University.
**Barrister and Solicitor. Cavalluzzo, Hayes
&
Shilton, Toronto, Canada.
The authors acted as Counsel for the Women’s Legal Education and Action Fund in its intervention in the
Supreme Court of Canada in
Moge
v
Moge.
Ms
Orton was previously Director of Litigation of LEAF. We
gratefully acknowledge the work of a number of family law experts across Canada, as well as the National
Legal Committee of LEAF, in the development of the arguments in LEAF’S factum in
Moge.
We also wish
to thank Christine Piper, David Seymour and Felicity Kaganas for taking time to read and comment upon
earlier drafts of this article.
1
2
3
The
Guardian,
3
November
1983.
‘Supreme Court Deciding Whether Alimony Exists Ti1 Death Does Them Part,’
Winnipeg
Free
Press,
2
April
1992.
119921 3
SCR
813;
(1993) 99
DLR (4th) 456. All references herein are to DLR.
0
The Modern Law Review Limited
1994
(MLR
575.
September). Published by Blackwell Publishers,
108
Cowley Road, Oxford
OX4
IJF
and
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Main
Street.
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USA.
68
1
The
Modern
Law Review [Vol.
57
approach to principles of ‘equality,’ we shall suggest that the court also
participated in a further important shift in the legal construction
of
‘husband,’
‘wife’ and ‘marriage.’
Divorce in Canada is a matter of federal rather than provincial jurisdiction.
While each of the provinces and territories is competent to legislate on matters
such as custody and income and property distribution within the marriage or with
respect to unmarried partners, when the issues
of
custody and support are raised
ancillary to divorce, the matter falls within the federal jurisdiction of the Divorce
Act 1985.4 The sections relevant to spousal support are as follows:
15
...
(2)
A
court of competent jurisdiction may, on application by either
or
both spouses, make an
order requiring one spouse to secure
or
pay, or to secure and pay, such lump sum
or
periodic
sums,
or
such lump sum and periodic sums, as the court thinks reasonable for the support of
(a) the other spouse;
(b) any
or
all children of the marriage;
(c) the other spouse and any
or
all children
of
the marriage
(4)
The court may make an order under this section for a definite or indefinite period or until
the happening of a specified event and may impose such other terms, conditions
or
restrictions
in
connection therewith as it thinks fit and just.
(5)
In making an order under this section, the court shall take 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 spouses during cohabitation and
(c) any order, agreement or arrangement relating to support
of
the spouse
or
child.
(6)
In making an order under this section, the court shall not take into consideration any
misconduct of a spouse
in
relation to the marriage.
(7)
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.
Section 17
of
the Act deals with applications to vary previously made orders of
support and subsection 17(1) provides that a court ‘may make an order varying,
rescinding or suspending, prospectively or retroactively, a support order or any
provision thereof.’ Section 17 continues:
(4)
Before the court makes a variation order in respect
of
a support order, the court shall
satisfy itself that there has been a change in the condition, means, needs or other
circumstances
of
either former spouse
or
of any child of the marriage for whom support is
or
was sought occurring since the making of the support order or the last variation order made
in respect of that order, as the case may be, and in making the variation order, the court shall
take into consideration that change.
4
RSC
1985,
c
3.
682
0
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Modern
Law
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