G. Four Objectives of Spousal Support

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 264-274

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Subsection 15.2(6) of the Divorce Act defines four objectives of spousal support orders. They are as follows:

1) to recognize any economic advantages or disadvantages arising from the marriage or its breakdown;

2) to apportion between the spouses any financial consequences arising from child care;

3) to relieve any economic hardship arising from the marriage breakdown; and

4) to promote the economic self-sufficiency of each spouse within a reasonable period of time, insofar as practicable.

Legislative endorsement of these four policy objectives manifests the realization that economic variables of marriage breakdown and divorce do not lend themselves to the application of any single objective. Long-term marriages

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that ultimately break down may leave in their wake a condition of permanent financial dependence because wives have assumed the role of full-time homemakers.²⁵⁴The legitimate objectives of spousal support in such a case rarely coincide with the objectives that should be pursued with respect to short-term childless marriages. Substantial periodic spousal support for an indefinite term will customarily be granted to an older spouse whose primary role during a long marriage was that of a homemaker or caregiver, whereas a young able-bodied spouse with no children whose marriage was of short duration is unlikely to be granted substantial or long-term spousal support. Childless marriages cannot be treated in the same way as marriages with dependent children. The two-income family cannot be equated with the one-income family. A "clean break," with or without an order for lump sum support in lieu of periodic spousal support, may provide a workable and desirable solution for a wealthy couple or for a two-income family where there is no substantial difference between the spousal incomes, but is unlikely to be feasible for most families on the dissolution of marriage. Quite apart from the question of whether a spouse can afford to pay a lump sum, such an order will not normally accommodate long-term needs, where they exist.

Periodic spousal support orders that are reviewable after a designated period of time may be appropriate where rehabilitative support is required until a dependent spouse returns to economic self-sufficiency by means of gainful employment, although continued support may be appropriate to top up the earned income of a recipient spouse who continues to suffer economic disadvantages in consequence of the marriage and its breakdown. There can be no fixed rules, however, whereby particular types of orders are tied to the specific objectives sought to be achieved. In the final analysis, the court must determine the most appropriate kind of order, having regard to the attendant circumstances of the case, including the present and prospective financial well-being of both the spouses and their dependent children. Much of the above analysis was cited with approval in Moge v Moge.²⁵⁵Judicial implementation of the statutorily defined objectives has, to some degree, resulted in a shift from the former narrow perspective of a "needs" and "capacity to pay" approach, particularly in cases where one of the spouses has substantial means.²⁵⁶In the words of L’Heureux-Dubé J, of the Supreme Court of Canada,

The most significant change in the new Act when compared to the 1970 Divorce Act may be the shift away from the "means and needs" test as the

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exclusive criterion for support to a more encompassing set of factors and objectives which requires courts to accommodate a much wider spectrum of considerations. This change, of course, does not signify that "means and needs" are to be ignored. Section 15(5) [now 15.2(4)] of the Act specifically states that "the court shall take into consideration the condition, means, needs and other circumstances of each spouse."²⁵⁷In Bracklow v Bracklow,²⁵⁸McLachlin J, (as she then was), of the Supreme Court of Canada, observed that there are three bases upon which a court can make an award of spousal support, namely, compensatory; non-compensa-tory; and contractual. The dual operation of compensatory and needs-based considerations under the Divorce Act was specifically acknowledged by Mc-Lachlin J, who observed:

In summary, nothing in the Family Relations Act or the Divorce Act suggests that the only foundations for spousal support are compensatory. Indeed, I find it difficult to confine the words of the statutes to this model. It is true that in 1986 the Divorce Act was amended to place greater emphasis on compensation. This represented a shift away "to some degree" from the "means and needs" approach of the 1968 Act: Payne on Divorce, supra, at p. 267. But while the focus of the Act may have shifted or broadened, it retains the older idea that 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. More broadly, the legislation can be seen as a sensitive compromise of the two competing philosophies of marriage, marriage breakdown, and spousal support.

The four objectives defined in the Divorce Act are not necessarily independent of each other. They may overlap or they may operate independently, according to the circumstances of the particular case.

All four of the objectives defined in the Divorce Act should be examined in every case wherein spousal support is claimed or an order for spousal support is sought to be varied. There is nothing in the Divorce Act to suggest that any one of the objectives has greater weight or importance than any other objective.²⁵⁹The fact that one of the objectives, such as economic

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self-sufficiency, has been attained, does not obviate the need to ascertain whether the remaining objectives have also been satisfied.²⁶⁰The aforementioned objectives, which operate in the context of a wide judicial discretion under subsections 15.2(4) and 17(4.1) of the Divorce Act, provide opportunities for a more equitable distribution of the economic consequence of divorce between the spouses.²⁶¹As has been stated by L’HeureuxDubé J, of the Supreme Court of Canada in Moge v Moge,

Equitable distribution can be achieved in many ways: by spousal and child support, by the division of property and assets or by a combination of property and support entitlements. But in many if not most cases, the absence of accumulated assets may require that one spouse pay support to the other in order to effect an equitable distribution of resources.²⁶²Paragraphs 15.2(6)(a) and 17(7)(a) of the Divorce Act respectively provide that an original order for spousal support or a variation order should recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown. In the words of L’Heureux-Dubé J, of the Supreme Court of Canada in Moge v Moge,

[T]he focus of the inquiry when assessing spousal support after the marriage is ended must be the effect of the marriage in either impairing or improving each party’s economic prospects.²⁶³Thus, a wife who has contributed to her husband’s career development, or a wife whose earning potential has been eroded, restricted, or deferred by reason of the assumption of homemaking responsibilities, is entitled to have these circumstances taken into consideration in any determination of the right to, amount, and duration of spousal support.²⁶⁴It does not follow that a court must compensate for every economic disadvantage, no matter how minimal,²⁶⁵or that one spouse should shoulder the entire responsibility for redressing economic advantages or disadvantages arising from the

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marriage or its breakdown.²⁶⁶Lack of resources may, of course, stand in the way of adequate compensation.²⁶⁷Compensatory spousal support may be granted to a wife who has sacrificed her own earning potential by assuming primary responsibility for homemaking and child care during the marriage²⁶⁸or who has contributed to the career development of her husband.²⁶⁹Cultural dislocation on marriage that does not generate an economic loss will not justify a compensatory spousal support order.²⁷⁰Financial consequences arising from the care of a child of the marriage that are personal to the custodial parent, in that they arise from the limitations and demands of parenting, are additional to the direct costs of raising the children that are addressed by means of the Federal Child Support Guidelines. Such personal financial consequences, therefore, fall properly within the ambit of paragraphs 15.2(6)(b) and 17(7)(b) of the Divorce Act, as well as subsections 15.2(4) and 17(4.1) of the Act.²⁷¹Paragraph 15.2(6)(c) of the Divorce Act provides that an order for spousal support should "relieve any economic hardship of the spouses arising from the breakdown of the marriage." The same criterion...