The parties were married in December 1989 after living together for four years. During the first two years of their relationship, the appellant paid two‑thirds of the household expenses because she was earning more money than the respondent and because her two children from a previous marriage were living with them. After 1987, they shared the household expenses equally. This continued while the appellant was working. When she became unemployed, the respondent kept the family going. The appellant had had various health problems from the beginning of the relationship and, in 1991, she was admitted to hospital suffering from psychiatric problems. She has not worked since and it is unlikely that she will ever work again. Except for periods when the appellant was too ill, the parties divided household chores. They separated in 1992 and were divorced in 1995. The respondent has remarried and his new wife is employed. The appellant obtained an interim spousal support order of $275 per month, increasing to $400 per month on May 15, 1994. She also receives $787 monthly in disability benefits. The trial judge found that no economic hardship befell the appellant as a consequence of the marriage or its breakdown, nor were her health problems due to the marriage. He also found that there was no express or implied agreement between the parties that they were responsible for each other’s support. The trial judge concluded that the appellant was not entitled to support from the respondent, however, he ordered the $400/month payments to continue until September 1996, “a decision based upon the [respondent’s] proposal not upon the necessity of law”. The Court of Appeal affirmed the decision.
- Is there an entitlement to support where there was no economic hardship created by the marriage or the marriage breakdown?
Appeal allowed; remitted to trial judge to determine the appropriate level of support.
Justice McLachlin, as she then was, writes the decision for the court. She holds that absent indications to the contrary, when two spouses are married they owe each other a mutual duty of support, upholding the "joint venture" idea from Moge. When a marriage breaks down, however, the presumption of mutual support no longer applies, as reflected in ss. 15.2(4) and (6) of the Divorce Act. A general presumption of post‑marital support would be inappropriate because of the presence of two “competing” theories of marriage and post‑marital obligation. The independent, clean‑break model of marriage provides the theoretical basis for compensatory spousal support as in Moge. The basic social obligation model undergirds "non‑compensatory" support, that is, spouses facing hardship should turn to each other before turning to the state. Both models of marriage and their corresponding theories of spousal support permit individual variation by contract, and hence provide a third basis for a legal entitlement to support.
While the early years of the parties’ union might indicate strict independence, by the end the parties had established a more interdependent relationship. In addition to adjusting their expenses to a more even ratio, it is evident that the respondent covered the appellant's needs in the early stages of her illness, thus it follows that divorce did in fact cause the wife economic hardship pursuant to s. 15.2(6)(c). Based on the length of cohabitation, the hardship marriage breakdown imposed on her, her palpable need, and the respondent’s financial ability to pay, the wife was entitled to at least some level of support, however the determination of the quantum of support was felt better able to be addressed by the trial judge.
- There are three bases for support in Canada – compensatory (Moge), contractual (based on agreement), and non-compensatory (Bracklow).
- Non-compensatory support orders are needed where there is a disparity of needs/means after marriage breakdown, even if that disparity is not causally connected to the marriage.
- Where the support is non-compensatory, it may be that only part of that need can be addressed by spousal support.