Bracklow v. Bracklow, (1999) 120 B.C.A.C. 211 (SCC)

• Judge: McLachlin, Iacobucci, Major, Bastarache and Binnie, JJ.
• Court: Supreme Court (Canada)
• Case Date: March 25, 1999
• Jurisdiction: Canada (Federal)
• Citations: (1999), 120 B.C.A.C. 211 (SCC);[1999] 1 SCR 420;1999 CanLII 715 (SCC);169 DLR (4th) 577;[1999] 8 WWR 740;63 BCLR (3d) 77;44 RFL (4th) 1;120 BCAC 211;236 NR 79;[1999] CarswellBC 532;EYB 1999-11414;JE 99-703;[1999] SCJ No 14 (QL);196 WAC 211;[1999] ACS no 14;86 ACWS (3d) 1109

Bracklow v. Bracklow (1999), 120 B.C.A.C. 211 (SCC);

   196 W.A.C. 211

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [1999] B.C.A.C. TBEd. MR.042

Sharon Marie Bracklow (appellant) v. Frank Patrick Bracklow (respondent)

(26178)

Indexed As: Bracklow v. Bracklow

Supreme Court of Canada

Lamer, C.J.C., L'Heureux-Dubé, Gonthier, Cory,

McLachlin, Iacobucci, Major, Bastarache and Binnie, JJ.

March 25, 1999.

Summary:

Spouses divorced in 1995 after cohabiting for four years and being married for six years. The wife, who suffered serious health problems unrelated to the marriage, sought spousal maintenance. If the husband, who had the means to pay support, was not ordered to support his ex-wife, that obliga­tion fell on the state. The trial judge, in a decision reported in 13 R.F.L.(4th) 184, held that the wife was not entitled to support because she was not economically disadvan­taged by the marriage or its breakdown. However, the trial judge ordered that the $400 per month interim maintenance pay­ments continue for 18 months. The wife appealed.

The British Columbia Court of Appeal, in a judgment reported 94 B.C.A.C. 153; 152 W.A.C. 153, dismissed the appeal, affirming that the husband had no obligation to sup­port his wife. The wife appealed.

The Supreme Court of Canada allowed the appeal. A spouse may have an obligation to support a former spouse over and above what was required to compensate the spouse for the loss incurred as a result of the mar­riage and its breakdown. The law recognized entitlement to spousal support on non-com­pensatory grounds, as well as compensatory and contractual grounds. The court remitted the matter to the trial judge to determine the quantum of support, if any. The court did not exclude the possibility that no further support would be ordered.

Family Law - Topic 4000

Divorce - Corollary relief - Maintenance and awards - General principles - The Supreme Court of Canada held that a spouse may have an obligation to support a former spouse over and above what was required to compensate the spouse for the loss incurred as a result of the marriage and its breakdown - Spousal support, absent contractual entitlement, was not limited to entitlement on compensatory grounds - The law also recognized entitle­ment on non-compen­satory grounds: "spouses may have an obligation to meet or contribute to the needs of their former partners where they have the capacity to pay, even in the absence of a contractual or compensatory foundation for the obli­gation. Need alone may be enough." - To permit support to a spouse disabled by illness acknowledged the goal of equitably dealing with the economic consequences of marital break­down and also accorded with society's sense of what was just and fair - See paragraphs 15 to 49.

Family Law - Topic 4022.1

Divorce - Corollary relief - Maintenance awards - To wife - Extent of obligation - Spouses divorced after seven years of cohabitation and marriage - The wife contributed, when possible, as a self-suffi­cient member of the family - She at times bore the brunt of the financial obligations -The wife was now unable to work because of health problems not caused by the mar­riage or its breakdown - She was supported by the state - The Supreme Court of Canada held that although the wife was not entitled to spousal support by contract or on compensatory grounds, she was eligible for support on non-com­pen­sa­tory grounds where there was a need for support and the husband had the ability to pay - It would be unjust and contrary to the objectives of the Divorce Act and the Family Relations Act for the wife "to be cast aside as ineli­gible for support, and for the [husband] to assume none of the state's burden to care for his ex-wife" - The court remitted the matter to the trial judge to determine the quantum, if any, of sup­port - Given all the relevant factors in fixing quantum (includ­ing a time limit on support and the hus­band's payment of support for 18 months following divorce), the court did "not exclude the possibility that no further support will be required, i.e., that [the husband's] contri­butions to date have dis­charged the just and appro­priate quan­tum" - See para­graphs 50 to 61.

Family Law - Topic 4032

Divorce - Corollary relief - Maintenance awards - Effect of assistance by the state - [See Family Law - Topic 4022.1 ].

Cases Noticed:

Moge v. Moge, [1992] 3 S.C.R. 813; 145 N.R. 1; 81 Man.R.(2d) 161; 30 W.A.C. 161; 43 R.F.L.(3d) 345; 99 D.L.R.(4th) 456; [1993] 1 W.W.R. 481, consd. [para. 10].

Ross v. Ross (1985), 168 N.B.R.(2d) 147; 430 A.P.R. 147 (C.A.), refd to. [para. 36].

Story v. Story (1989), 23 R.F.L.(3d) 225 (B.C.C.A.), refd to. [para. 45].

Parish v. Parish (1993), 46 R.F.L.(3d) 177 (Ont. Gen. Div.), refd to. [para. 46].

Ashworth v. Ashworth (1995), 15 R.F.L.(4th) 379 (Ont. Gen. Div.), refd to. [para. 47].

Statutes Noticed:

Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, sect. 15.2(1), sect. 15.2(4), sect. 15.2(6) [para. 8].

Family Relations Act, R.S.B.C. 1996, c. 128, sect. 89(1), sect. 89(2), sect. 93(2)(a), sect. 93(2)(e) [para. 8].

Authors and Works Noticed:

Martin, C., Unequal Shadows: Negotiation Theory and Spousal Support Under Canadian Divorce Law (1998), 56 U.T. Fac. L. Rev. 135, p. 139 [para. 34].

Payne on Divorce (4th Ed. 1996), pp. 251, 253 [para. 41]; 267 [para. 43]; 269, 270 [para. 27].

Rogerson, Carol J., Judicial Interpretation of the Spousal and Child Support Provi­sions of the Divorce Act, 1985 (Part I) (1991), 7 C.F.L.Q. 155, pp. 234 [para. 32].

Rogerson, Carol J., Spousal Support after Moge (1996-97), 14 C.F.L.Q. 289, pp. 371, 372 [para. 41]; 378 [paras. 46, 47]; 379 [para. 47]; 383 [para. 50]; 384 [para. 47].

Scotland, Law Commission, Report on Family Law: Aliment and Financial Provision (1981), pp. 111, 112 [para. 48].

Counsel:

Barbara M. Young, for the appellant:

Carol W. Hickman and Bruce B. Clark, for the respondent.

Solicitors of Record:

Kendall, Penty & Co., Kelowna, B.C., for the appellant;

McKitrick Gemmill McLeod, Vancouver, B.C., and Baumgartel Gould, New West­minster, B.C., for the respondent.

This appeal was heard on November 6, 1998, before Lamer, C.J.C., L'Heureux-Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie, JJ., of the Supreme Court of Canada.

On March 25, 1999, McLachlin, J., delivered the following judgment in both official languages for the Supreme Court of Canada.