I. Overarching Principle of Equitable Sharing

Author:Julien D. Payne - Marilyn A. Payne

Page 276

Moge v Moge provides a comprehensive rationale for all four of the statutory objectives of spousal support orders by endorsing the overarching principle of an equitable sharing of the economic consequences of the marriage and divorce.303This overarching principle, which applies not only to the amount of a spousal support order but also to its duration,304does not imply the equalization of the parties’ net disposable income but the equalization of the economic consequences of the marriage or its breakdown.305An equitable sharing can be achieved by spousal property division, by spousal support, by child support, or by any combination thereof. In order to achieve an equitable distribution of economic resources on or after divorce, it is necessary to consider the circumstances of the parties as they existed during the marriage and at the time of the application for support or variation, and as they may reasonably be expected to emerge in the future.306On an application for a spousal support order brought pursuant to section 15.2 of the Divorce Act, it may be unproductive to characterize the marriage as traditional or non-traditional. Instead, a functional analysis should be undertaken by examining the choices that the spouses made and their economic consequences. A wife who postponed her career aspirations to advance those of her husband may be entitled to substantial periodic spousal support for an indefinite term, where their marital roles resulted in ongoing economic disparity between the spouses in terms of their future earning capacity on the dissolution of their long marriage. The fact that the wife will

Page 277

continue to earn a reasonable annual income after the divorce does not preclude an order for permanent periodic spousal support because of her alleged self-sufficiency, where the economic consequences of the marriage and its breakdown continue to operate to the husband’s advantage and to the wife’s disadvantage after their divorce.307

[303] MacLean v MacLean, [2004] NBJ No 363 (CA); Richards v Richards, 2014 NSSC 270; Lepage v Lepage, [1999] SJ No 174 (QB); Riley v Riley, [2009] SJ No 142 (QB).

[304] MacDonald v MacDonald, 2004 NSCA 153.

[305] Armstrong v Armstrong, 2012 BCCA 166 at para 69.

[306] Smyth v Smyth (1993), 48 RFL (3d) 280 (Alta QB); Beaulac v Beaulac, [2005] SJ No 15...

To continue reading