J. Needs and Capacity to Pay Not Excluded by Compensatory Model

Author:Julien D. Payne - Marilyn A. Payne

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The judgment of L’Heureux-Dubé J in Moge v Moge endorses the concept of an equitable redistribution of resources, rather than a fixed compensation model. If the notion of compensation were regarded as paramount, this would fly in the face of the four objectives identified in the Divorce Act and could prove prejudicial rather than beneficial to spouses in certain cases, especially those where sickness or disability exists. It would also open the door to spousal misconduct, which is explicitly rejected as a relevant consideration by sections 15(6) and 17(6) of the Divorce Act.

As is amply demonstrated by Bracklow v Bracklow, needs and capacity to pay as the basis of spousal support have not been superseded by the notion of compensatory support. They have been complemented by it.308As Moge v Moge categorically points out, there are four objectives of spousal support set out in the Divorce Act - not one, not two, not three, but four. Every case must be reviewed in light of the potential applicability of each and all of these objectives. Moge v Moge pays special attention to the disservice to women that has resulted from undue emphasis being placed on the self-sufficiency objective defined in paragraphs 15.2(6)(d) and 17(7)(d) of the Divorce Act. Lawyers and judges must avoid moving from one extreme to another. A compensatory model of spousal support, like that of deemed self-sufficiency, if applied as the sole criterion of spousal support, would provoke more problems than solutions. The concept of compensatory support espoused in Moge v Moge was intended to foster a more equitable distribution of economic rights on divorce. It was not intended to provide a straitjacket where litigants, lawyers, and courts would debate the legitimacy of so-called expert valuations of the losses and gains flowing from marriage or its breakdown, nor was it intended to exclude the possibility of spousal support orders on bases other than compensation. Needs and means (or the ability to pay) have not been relegated to

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an inferior status by the notion of compensatory support.309Even if compensatory-based spousal support is no longer appropriate, ongoing needs-based spousal support may be required where a divorced wife would be left with no viable means of support and the divorced husband has the continuing ability to pay.310As McLachlin J, as she then was, observed in Bracklow v Bracklow,

Judges must exercise their discretion in light of the...

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