H. Broad Judicial Discretion

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 274-276

Page 274

As McLachlin J, as she then was, observed in Bracklow v Bracklow,

[T]he law recognizes three conceptual grounds for entitlement to spousal support: (1) compensatory; (2) contractual; and (3) non-compensatory. These three bases of support flow from the controlling statutory provisions and the relevant case law, and are more broadly animated by differing philosophies and theories of marriage and marital breakdown.²⁹³As Bracklow v Bracklow further points out, the judicial role is not to select one particular model but to apply the relevant factors to the statutory objectives and strike a balance that best achieves justice in the particular case before the court.²⁹⁴Although Moge v Moge placed great emphasis on the concept that spousal support should seek to redress the advantages and disadvantages arising from the marriage or its breakdown, it does not seek to reduce the issue of spousal support to a simple equation conditioned on the notion of compensation. Moge v Moge confirms that there is a broad judicial discretion to determine the right to, amount, and duration of spousal support under the Divorce Act. This judicial discretion is exercisable having regard to the factors signified under sections 15.2(4) and 17(4.1) of the Divorce Act and having regard to all four of the policy objectives defined in sections 15.2(6) and 17(7). A court cannot bypass the statutory provisions nor formulate criteria that fly in the face of them. The authority to order both spousal²⁹⁵and child²⁹⁶support is statute-based. There is no single model or objective that underlies spousal support orders. The governing statute, be it the Divorce Act or provincial legislation, is central to the right to, duration, and amount of spousal support, if any, to be ordered. It is a discretion-driven analysis that is geared towards overall fairness.²⁹⁷

Page 275

On the dissolution of a long marriage, a spouse is not automatically entitled to a spousal support order solely because that spouse stayed home with the children. The right to, duration, and amount of spousal support, if any, is dependent on all the circumstances of the particular case. Spousal support in Canada is frequently referred to as (1) compensatory; (2) contractual, or (3) non-compensatory. These categories reflect the combined operation of sections 15.2(4) and (6) of the Divorce Act. The law of spousal support continues to evolve, particularly with respect to the balancing of the factors and...