Claim by disabled spouse for spousal support based on need denied by court in recent decision.
Epstein’s This Week in Family Law
By: Philip Epstein
No Spousal Support for a Disabled Spouse - Post Separation Need
Peters v. Peters, 2015 CarswellOnt 9285 (Ont. S.C.J.): This is a carefully reasoned spousal support decision by Justice Gorman of the Ontario Superior Court of Justice. It raises extremely important issues about entitlement to spousal support and tries to address the difficult question discussed in Fyfe v. Jouppien, 10 R.F.L. (7th) 336 (Ont. S.C.J.). As was noted in that case:
The difficult question that the Supreme Court of Canada was not required to address head-on in Moge v. Moge and Bracklow v. Bracklow was whether a spousal support obligation can arise where there is no entitlement on any basis at the time of separation, the parties were both self-sufficient at that time, but need on that part of one of the spouses arises post separation. This case squarely raises the challenging question of how the courts in these types of cases should balance the obligations that marriage entails with the natural wish on the part of spouses to move forward with their lives, free from the threat of unforeseen support obligations in the future.
Madam Justice Chappell in Fyfe does a superb job in canvassing the law of non-compensatory support and reviewing the fundamental principles established in Bracklow v. Bracklow, 44 R.F.L. (4th) 1 (S.C.C.). It is important to remember that in Bracklow the parties lived together for four years and were married for three years. The Supreme Court of Canada recognized that the husband knew that the wife had health problems at the outset of the relationship and these health issues worsened during the course of the relationship to the point where the wife was unable to work at the time of separation and was completely dependent on the husband financially.
The fundamental principles set out in Bracklow are known to all family law counsel and the courts, but Bracklow was decided almost 16 years ago and is worth rereading. To save you some time, I quote from Madam Justice Chappell in Fyfe wherein she set out the following general principles and guidelines that have emerged from Bracklow:
a. The presumption in marriage is that spouses owe each other a mutual duty of support. The court emphasized, however, that this premise of mutual support is rebuttable; parties to a marriage may alter this presumption, either through explicit contracting or “through unequivocal structuring of their daily affairs, to show disavowal of financial interweaving.” [21]
b. When a marriage breaks down, the presumption of mutual support no longer applies. However, there is no “judicially created statute of limitations on marriage.” McLachlin, J. emphasized that “marriage . . . is a serious commitment, not to be undertaken lightly. It involves the potential for lifelong obligation. There are no magical cut-off dates.”[22]
c. Section 15.2(6)(c) of the Divorce Act broadens the right to spousal support beyond situations where a party has suffered losses or disadvantages that are causally connected to the marriage, and recognizes that entitlement may exist where the breakdown of the marriage in itself has caused economic hardship. In discussing this issue, the court clarified that this provision encompasses situations where “a person who formerly enjoyed intra-spousal entitlement to support now finds herself or himself without it.”[23]
d. Marriage does not in and of itself automatically entitle a spouse to support. “To hold otherwise would swing the pendulum too far back and completely ignore the independent, clean-break model of marriage.”[24] The court stressed that it is not the bare fact of marriage so much as “the relationship that is established and the expectations that may reasonably flow from it [emphasis added] that give rise to the obligation of support under the statutes.” [25]
e. Contract and compensation are not the only sources of a spousal support obligation. “The obligation may alternatively arise out of the marriage relationship itself.”[26] However, the court added that where a spouse achieves economic self sufficiency on the basis of his or her own efforts, or by means of a compensatory support order, “the obligation founded on the marriage relationship itself lies dormant.”
f. Where need is established that is not based on compensatory or contractual grounds, “the fundamental marital obligation may play a vital role. Absent negating factors, it is available, in appropriate circumstances, to provide just support.” [27]
g. The court did not specifically elaborate on the “negating factors” that would preclude a finding of spousal support entitlement in non-compensatory cases, or conversely on “the appropriate circumstances” that would give rise to a finding of entitlement. However, in discussing the issue of non-compensatory support in the context of the facts in Bracklow, the court emphasized the importance of analyzing the nature of the parties’ relationship during the marriage, and in particular to determine whether there was any evidence as of the separation date to rebut the presumption of mutuality and interdependence in the parties’ relationship. The court emphasized the importance of starting this analysis using the correct judicial lens, with the presumption of interdependence between the parties. McLachlin, J. noted that although the Bracklows were relatively financially independent at the outset of their marriage, by the end of the marriage they had established an interdependent relationship. It was on this basis that the court determined that Mrs. Bracklow was in state of economic hardship resulting from the breakdown of the marriage as contemplated by section 15.2(6)(c) of the Divorce Act.
h. It follows from this reasoning that if there was evidence that the parties’ relationship was not characterized by interdependence and mutual reliance during the period leading to the marriage breakdown, this would be a relevant factor that could lead the court to conclude that the spouse claiming support did not suffer economic hardship as a result of the marriage breakdown.
i. In determining the issue of entitlement, the court emphasized the point established in Moge that all of the objectives set out in section 15.2(6) must be considered, with no one objective being paramount. Therefore, the objective of promoting self sufficiency with a reasonable period of time is always a consideration.
j. In cases involving spouses who become disabled toward the end of the marriage, where no compensatory or contractual claim for support exists, it may be unfair to the other spouse to order support on an indefinite basis. The court left open the possibility that spousal support could be time limited, even if the disabled spouse will not be able to achieve self sufficiency. It should be noted that on the re-hearing of Bracklow,[28] the court ordered five years time limited support despite the fact that the wife would never be able to support herself adequately on her own.
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