Chapter 12: Remedies Available Under Provincial and Territorial Legislation

• Date: 14 April 2025

547

 

Remedies Available Under Provincial and

Territorial Legislation

A. SPOUSAL SUPPORT

1) Diversity Under Provincial and Territorial Statutes

Separated spouses may opt to seek spousal support under provincial or territori al legislation

or by way of corollary relief in divorce proceedings. Unmarried cohabitants of the opposite

sex or of the same sex may also be entitled to seek “spousal” support under provincial or ter-

ritorial legislation.1

In most provinces and territories, both federally and provincially appointed judges may

adjudicate spousal and child support claims that arise independently of divorce.

Provincial and territorial statutes dier from each other in their detailed provisions

respecting spousal support. Many of them also dier substantially from the language of the

federal Divorce Act, which regulates spousal support on or after divorce.2

British Columbia3 provides general statutory criteria for spousal support orders that cor-

respond to the factors and objectives dened in the federal Divorce Act. Several provinces,

including Manitoba,4 New Brunswick,5 New foundland and Labrador,6 Nova Scotia,7 Ontario,8

Prince Edward Island,9 and the Northwest Territories10 provide a detailed statutory list of

factors that the courts should take into account in determining the right to, duration of, and

amount of spousal support. e shortcomings of an unrened list of designated factors, which

 See Chapter .

 See Chapter .

 Family Law Act, SBC , c , ss –.

 e Family Law Act, SM , c .

 Family Law Act, SNB , c , s ().

 Family Law Act, RSNL , c F-, s ().

 Parenting and Support Act, RSNS , c , s , as amended.

 Family Law Act, RSO , c F., s ().

 Family Law Act, SPEI , c , s ().

 Family Law Act, SNWT , c , s .

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548   

lead to unbridled judicial discretion, have been tempered in Newfoundland and L abrador,11

the Northwest Territories,12 Ontario,13 and Saskatchewan14 by the articulation of specic

objectives for support orders. ese objectives are similar but not identical to those dened

in the current Divorce Act. Accordingly, they promote consistency between provincial and

federal statutory criteria but fall short of providing a blueprint for uniformity.

Provincial legislation across Canada has long abandoned the commission of a matri-

monial oence as the basis for determining spousal support rights and obligations in favour

of economic criteria that largely focus on needs and ability to pay.15 In Newfoundland and

Labrador,16 the Northwest Territories,17 and Ontario,18 the spousal support obligation “exists

without regard to the conduct of either spouse, but the court may, in determining the amount

of support, have regard to a course of conduct that is so unconscionable as to constitute

an obvious and gross repudiation of the [spousal] relationship.”19 Although there has been

some inconsistency in the application of these statutory provisions, there has been strong

judicial resistance to spouses engaging in mutual recriminations.20 Manitoba , which ori-

ginally applied a similar criterion of unconscionability, abandoned conduct as a relevant

consideration altogether by amending legislation in 1983.21 In Alberta, British Columbia,

and New Brunswick, courts may take misconduct into account only where it arbitrarily or

unreasonably precipitates, prolongs, or aggravates the need for support , or aects the ability

of the obligor to provide support.22 ese statutory provisions are consistent with the statu-

tory obligation on each spouse to strive for nancial self-suciency. In Yukon,23 a court is

specically empowered to deny support to a spouse who has remarried or is cohabiting with

a third party in a relationship of some permanence.

2) Differences Between Federal Divorce Act and Provincial and

TerritorialLegislation

Dierences in provincial and territorial legislation and in the federal divorce legislation gov-

erning spousal support are primarily dierences of form rather than of substance,24 whether

the courts are dealing with conduct or any other matter. is is underlined by the Spousal

 Family Law Act, RSNL , c F-, s ().

 Family Law Act, SNWT , c , ss (), (), (), (), () & ().

 Family Law Act, RSO , c F., s ().

 Family Maintenance Act, SS , c F-., s .

 See Chapter , Section C .

 Family Law Act, RSNL , c F-, s ().

 Family Law Act, SNWT , c , s ().

 Family Law Act, RSO , c F., s ().

 See McConnell v Finch,  ONSC  at para .

 See Julien D Payne, “e Relevance of Conduct to the Assessment of Spousal Maintenance Under the

Ontario Family Law Reform Act, SO , c ” ()  Fam L Rev , reprinted in Payne’s Digest on

Divorce in Canada, 1968–1980 (Don Mills, ON: R De Boo, ) at . Compare Bruni v Bruni, 

ONSC  (parental alienation). See also Menegaldo v Menegaldo,  ONSC .

 Family Maintenance Act, SM , c , s ..

 Family Law Act, SA , c F-., s ; Family Law Act, SBC , c , s ; Family Law Act, SNB

, c , s ()(q).

 Family Property and Support Act, RSY , c , s ().

 Snyder v Pictou,  NSCA ; Hrenyk v Berden,  SKQB .

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Remedies Available Under Provincial and Territor ial Legislation 549

Support Advisory Guidelines, which were devised in the context of applications for spousal

support under the federal Divorce Act but have since been extended to applications for

spousal support under provincial statute.

However, certain important dierences remain between the provincial and territorial

support regimes and the federal divorce regime. In particular, provincial and territorial legis-

lation expressly confers broader powers on the courts with respect to the types of orders that

can be granted in proceedings for spousal support . e federal Divorce Act25 empowers a

court to grant orders to pay and secure a lump sum or periodic sums for spousal support. It

does not empower a court to order a transfer of property in lieu of support payments. Most

provincial and territorial support statutes26 expressly confer wide powers on the courts with

respect to such relief as lump-sum payments, periodic payments, transfers or se ttlements

of property, exclusive possession of the matrimonial home, security for support payments,

and designation of a spouse as a beneciary under a life insurance polic y or pension plan.

For constitutional reasons, orders respecting property rights can be made only by courts

presided over by federally appointed judges.

B. CHILD SUPPORT UNDER PROVINCIAL AND TERRITORIAL

LEGISLATION

Provincial and territorial statutory support regimes in Canada generally stipulate that par-

ents owe an obligation to support their children.27 For example, section 31 of the Ontario

Family Law Act28 currently provides as follows:

Obligation of parent to support child

31 (1) Every parent has an obligation to provide support, to the extent that the parent is

capable of doing so, for his or her unmarried child who,

(a) is a minor;

(b) is enrolled in a full-time program of education; or

(c) is unable by reason of illness, disability or other cause to withdraw from the charge of

his or her parents. 2017, c. 34, Sched. 15, s. 1.

Same

(2) e obligation under subsection (1) does not extend to a child who is sixteen years

of age or older and has withdrawn from parental control. R.S.O. 1990, c.F.3, s.31(2).

 RSC , c  (d Supp), s ().

 See Family Law Act, SA , c F-., s ; Family Law Act, SBC , c , s ; e Family Law Act,

SM , c , s ; Family Law Act, SNB , c , s 21(2); Family Law Act, RSNL , c F-, s ;

Parenting and Support Act, SNS , c , ss , , and ; Family Law Act, SNWT , c , s ;

Family Law Act, RSO , c F., s ; Family Law Act, SPEI , c , s ; Family Maintenance Act,

SS , c F-., s ; Family Property and Support Act, RSY , c , s .

 Family Law Act, SBC , c , s ; e Family Law Act, SM , c , s ; Family Law Act, SNB

, c , s 10; Family Law Act, RSNL , c F-, s ; Parenting and Support Act, SNS , c , s ;

Children’s Law Act, SNWT , c , s ; Family Law Act, RSO , c F., s ; Children’s Law Act,

RSPEI , c C-., as amended by SPEI , c , s ; Civil Code of Québec, SQ , c , s ;

Family Maintenance Act, SS , c F-., s ; Family Property and Support Act, RSY , c , s .

 RSO , c F., as amended by , c , Sched , s . See also Coates v Watson,  ONCJ , text

bel ow.

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