E. Relevant Factors

Author:Julien D. Payne - Marilyn A. Payne

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Subsection 15.2(4) of the Divorce Act defines the "factors" that a court must consider in determining the right to, amount, and duration of spousal support. It provides that the court shall take into consideration the condition, needs, means, and other circumstances of each spouse, including (a) the length of time the spouses cohabited; (b) the functions performed by each spouse during cohabitation; and (c) any order, agreement, or arrangement relating to support of either spouse. These statutory criteria confer a virtually unfettered discretion on the court to have regard to any facts that the trial judge considers relevant, with the exception of matrimonial misconduct.147Spousal support cases are fact-driven because terms such as "means" and "needs" in subsection 15.2(4) of the Divorce Act and "economic self-sufficiency" in subsection 15.2(6) of the Divorce Act have no absolute meaning. They must be interpreted and applied having regard to the circumstances of the particular spouses.148

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1) Definition of "Condition" of the Spouses

The "condition" of the spouses has been defined to include their age, health, needs, obligations, dependants, and the station in life of the parties.149Courts must look to the economic consequences of the marriage and its breakdown on a sick or disabled spouse and not simply to whether the illness or disability is causally connected to the marriage.150Consequently, previous judicial decisions that denied spousal support on the basis that the applicant’s illness or disability had no causal connection to the marriage must be re-examined in light of the judgments of the Supreme Court of Canada in Moge v Moge151and Bracklow v Bracklow.152Illness does not equate to never-ending support entitlement.153As McLachlin J, as she then was, observed in the latter case,

Divorce ends the marriage. Yet in some circumstances the law may require that the healthy party continue to support a disabled party, absent contractual or compensatory entitlement. Justice and considerations of fairness may demand no less.154It does not follow that divorcing or divorced sick or disabled persons can always look to their healthy spouses or former spouses for support, without limitation as to the amount or duration of such support. As McLachlin J, as she then was, further observed in Bracklow v Bracklow, 53 The quantum awarded, in the sense of both amount and duration, will vary with the circumstances and the practical and policy considerations affecting particular cases. Limited means of the supporting spouse may dictate a reduction. So may obligations arising from new relationships in so far as they have an impact on means. Factors within the marriage itself may affect the quantum of a non-compensatory support obligation. For example,

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it may be difficult to make a case for a full obligation and expectation of mutual support in a very short marriage. (Section 15.2(4)(a) of the Divorce Act requires the court to consider the length of time the parties cohabited.) Finally, subject to judicial discretion, the parties by contract or conduct may enhance, diminish or negate the obligation of mutual support. To repeat, it is not the act of saying "I do", but the marital relationship between the parties that may generate the obligation of non-compensatory support pursuant to the Act. It follows that diverse aspects of that marital relationship may be relevant to the quantum of such support. As stated in Moge, "[a]t the end of the day . . . , courts have an overriding discretion and the exercise of such discretion will depend on the particular facts of each case, having regard to the factors and objectives designated in the Act" (p. 866).

54 Fixing on one factor to the exclusion of others leads Mrs. Bracklow . . . to the false premise that if need is the basis of the entitlement to the support award, then the quantum of the award must meet the total amount of the need. It does not follow from the fact that need serves as the predicate for support that the quantum of the support must always equal the amount of the need. Nothing in either the Family Relations Act or the Divorce Act forecloses an order for support of a portion of the claimant’s need, whether viewed in terms of periodic amount or duration. Need is but one factor to be considered. This is consistent with the modern recognition, captured by the statutes, of the variety of marital relationships in modern society. A spouse who becomes disabled toward the end of a very short marriage may well be entitled to support by virtue of her need, but it may be unfair, under the circumstances, to order the full payment of that need by the supporting spouse for the indefinite future.155

2) Definition of "Means"; Effect of Substantial Property Division

A substantial matrimonial property division with an income-generating potential will almost invariably affect a spousal support analysis. As a matter of law, therefore, the calculation of the division of assets and resulting equalization payment must always precede any support analysis.156While in some cases a division of property on marriage breakdown may address all or most of the objectives of spousal support defined in section 15.2(6) of the Divorce Act and thereby eliminate or reduce the need for a spousal support award,

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that is not necessarily the case, particularly where the conceptual basis for support is predominantly compensatory. The impact of a division of property on a spouse’s right to support is to be determined by the extent to which the property received has adequately compensated that spouse for the economic consequences of the marriage and its breakdown, including any claims for compensatory and non-compensatory support.157In high-end cases, a critical assessment of the means made available from a matrimonial property settlement must be undertaken in the context of the factors and objectives set out in subsections 15.2(4) and (6) of the Divorce Act to determine whether spousal support should be ordered and, if so, in what amount. A very substantial matrimonial property entitlement on the breakdown of marriage does not imply that a spousal support order is inappropriate.158In determining the impact of a matrimonial property entitlement on an application for spousal support, a distinction is to be drawn between income-producing assets derived from the settlement and assets such as a home and an automobile, which are not income-producing. The income-earning capacity of a matrimonial property settlement should be taken into account in determining the "means" factor under subsection 15.2(4) of the Divorce Act, and the pre-separation lifestyle of the spouses is pertinent to the "needs" factor under that subsection.159As was observed in Moge v Moge,160the longer a marriage endures, the greater the presumptive claim to equal standards of living on its dissolution.161But in the absence of an overriding compensatory factor, an onus remains on the applicant to prove need by establishing a shortfall between the amount required to cover a reasonable budget based on the pre-separation standard of living and the means available to the applicant from employment income and investment income from the matrimonial property settlement.162In Leskun v Leskun,163the Supreme Court of Canada considered a divorced husband’s contention that the chambers judge and the British Columbia Court of Appeal had both erred by having regard to his capital assets for the purpose of determining his obligation to pay ongoing periodic spousal support. The Court observed that section 15.2(4) of the Divorce Act empowers

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the court to have regard to the "means" of each spouse. On the authority of Strang v Strang,164which defines the term "means" to include all pecuniary resources,165capital assets,166income from employment or earning capacity,167and any other source from which a person received gains or benefits are received, together with, in certain circumstances, money that a person does not have in possession but that is available to such person, no error was found in the chambers judge’s decision to have regard to the capital assets of the divorced husband in determining his capacity to pay ongoing periodic spousal support. Given that the doctrine of "double dipping" was inapplicable to the divorced husband’s capital acquired after the dissolution of the marriage,168the Supreme Court of Canada observed that the failure of a court to take into account after-acquired capital assets in determining the right to and amount of spousal support can create the potential for injustice where a spouse attempts to shield his or her true worth to avoid paying spousal support, even though his or her financial position is far superior to that of the other spouse. In Leskun, wherein the ex-husband invested earned income in a bagel business, he was found by the chambers judge to have demonstrated a significant earning capacity169and to own assets worth approximately $1 million, and he enjoyed a lifestyle with his new wife that was far superior to that of his divorced wife. The Supreme Court of Canada agreed with the British Columbia Court of Appeal that the chambers judge was entitled to have regard to the husband’s capital assets in determining his capacity to pay continued spousal support. As for the divorced husband’s submission that the chambers judge had overestimated the value of his capital assets, the Supreme Court of Canada affirmed the right of the chambers judge to draw an adverse inference against the divorced husband as a result of his failure to make full and complete...

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