Remedies Available under Provincial and Territorial Legislation

AuthorJulien D. Payne - Marilyn A. Payne
  
Remedies Available under Provincial
and Territorial Legislation
) Diversity under Provincial and Territorial Statutes
Separated spouses may opt to see k spousal support u nder provincia l or
territoria l legislation or by way of coroll ary relief in d ivorce proceedings.
Unmarried coh abitants of the opposite sex or of the sa me sex may also be
entitled to seek “spousal ” support under provincial or territorial leg islation.
Provincia l spousal support legislation th at discriminates again st couples liv-
ing in a “common-law relationship” or in a same-se x relationship has been
struck down a s contravening equality r ights under section  of the Canadian
Charter of Rights and Freedoms.
In most provinces and terr itories, both federal ly and provincia lly ap-
pointed judges may adjudicate spousa l and child suppor t claims t hat arise
independently of divorce.
Provincia l and territorial statutes die r widely from each other i n their
specic provis ions respecting spousal support. e y also dier substantia lly
from the langu age of the federal Divorce A ct, which regul ates spousal support
on or after divorce.
British Columbia provides genera l statutory criteri a for spousal s upport
orders that correspond to the factors a nd objectives dened in t he federal
Divorce Ac t. Several prov inces, including New Br unswick , Newfoundl and
Taylor v Rossu (),  RFL (th)   (Alta C A).
M v H, []  SCR .
Part I of e Constit ution Act, , bei ng Schedule B to the Canad a Act  (UK), ,
c .
Family Law Act, SBC  , c , ss – .
Family Services Ac t, SNB , c F-., s ().
  
and Labrador, Nova Scotia, Ontar io, Prince Edwa rd Island, and the Nor th-
west Territories provide a detaile d statutory list of fac tors that the courts
should take into account in deter mining the right to, duration of, and amou nt
of spousal support. e shor tcomings of an unre ned list of designated
factors, which lead to unbr idled judicia l discretion, have been te mpered in
Newfound land and L abrador, the Northwest Territories, Onta rio, a nd
Saskatchewan by the articulat ion of specic objectives for suppor t orders.
ese objectives are simi lar but not identical to those de ned in the cur rent
Divorce Ac t. Accordingly, they promote consistency between provinci al and
federal statutory c riteria but fall short of prov iding a blueprint for uniformit y.
Provincia l statutory spousal support r ights and obligations are no longer
conditioned on proof of a matrimonia l oence. Alberta, British Columbi a,
Manitob a, New Brun swick, Newf oundland and Lab rador, the Northwest
Territories, Ontario, Prince Edward Island, Quebec , Saskatchewan,
and Yu kon have all abandoned the traditional oence concept i n favour of
economic criteria t hat largely focus on needs and abil ity to pay. In Newfound-
land and Labrador, the Northwest Territor ies, and Ontar io, the spousal
support obligation “exist s without regard to the conduct of either spouse, but
the court may in deter mining the amount of support have regard to a course
of conduct that is so unconscionable as to cons titute an obvious and g ross
Family Law Act, R SNL , c F-, s ().
Maintenanc e and Custody Act, R SNS , c , s .
Family Law Act, RS O , c F., s ().
Family Law Act, S PEI , c , s ().
 Family Law Act, SN WT , c , s .
 Family Law Act, RS NL , c F-, s ().
 Family Law Act, SNW T , c , ss (), (), (), (), (), & ().
 Family Law Act, R SO , c F., s ().
 Family Maintenance Act, SS , c F-., s .
 RSC , c  (d Supp), ss .() and (); see Chapt er , Section G.
 Family Law Act, SA  , c F-., ss – .
 Family Law Act, S BC , c , ss – .
 Family Maintenance Act, CCSM c F, ss  and .
 Family Service s Act, SNB , c F-. , ss  and ().
 Family Law Act, R SNL , c F-, ss  and ().
 Family Law Act, SN WT , c , ss  and (), (), (), (), & ().
 Family Law Act, RS O , c F., ss  and ().
 Family Law Act, SPEI  , c , ss , (), and ().
 Civil Code of Québec, SQ  , c , arts ,  , and –.
 Family Maintenance Act, SS , c F-. , ss  and .
 Family Property a nd Support Act, R SY , c , ss  and  ().
 Family Law Act, R SNL , c F-, s ().
 Family Law Act, SN WT , c , s ().
 Family Law Act, R SO , c F., s ().
Chapter : Reme dies Available under Provincial and Terr itorial Legislation 
repudiation of the [spousal] rel ationship.” Although there has been some
inconsistency in the appl ication of these statutory provisions, t here has been
strong judicial resi stance to spouses engag ing in mutual rec riminations.
Manitoba, which or iginal ly applied a similar criterion of unconsc ionability,
abandoned conduct as a relevant consideration a ltogether by amending legis-
lation in . In Alberta and Br itish Columbia, courts may ta ke misconduct
into account only where it arbitrari ly or unreasonably precipitates, prolongs,
or aggravates the need for suppor t, or aects the abi lity of the obligor to
provide suppor t. In New Brunswick  and Nova Scoti a, the relevant leg is-
lation expressly stipulates that court s may take conduct into account if it
unreasonably prolongs the need for suppor t. ese statutory provi sions are
consistent with the stat utory obligation on each spous e to strive for nan-
cial self -suciency. In Yukon, a court is s pecical ly empowered to deny
support to a spouse who has rem arried or is cohabiting with a th ird party in
a relationship of some perma nence.
) Dierences between Federal Divorce Act and Provincial
and Territorial Leg islation
Dierences in provinc ial and terr itorial legi slation and in the federa l di-
vorce legislation are pri marily dierences of form rat her than of substance,
whether the courts a re dealing wit h conduct or any other matter. If Mrs
Jones is separated from her husband, a judge i s unlikely to allow the r ight to,
duration of, and amount of support to depend on whet her she has invoked
the provisions of the applic able provincial or te rritoria l statute or the rel-
evant provisions of the D ivorce Act.
However, certain import ant dierences remai n between the provi ncial
and territoria l support regimes and the federal d ivorce regime. In particular,
provincial a nd territoria l legislation confers broader po wers on the courts
with respect to the t ypes of orders that ca n be granted in proceed ings for
 Compare Maintenance and Cus tody Act, RSNS , c  , s ().
 See Jul ien D Payne, “e Rele vance of Conduct to the As sessment of Spousal Ma inte-
nance under t he Ontario Family Law R eform Act, SO , c ” ()  Fam L Rev  ,
reprinted in Pa yne’s Digest on Divorce in Canada,  – (D on Mills, ON: R De Boo,
) at . Compare Br uni v Bruni,  ONSC  (p arental alien ation). See also
Menegaldo v Menegaldo,  ONSC .
 Family Maintenance Act, SM , c , s  , now CCSM c F, s ().
 Family Law Act, SA  , c F-., s ; Family Law Ac t, SBC , c , s .
 Family Services Ac t, SNB , c F-., s ()(t).
 Maintenance and Custo dy Act, RSNS , c  , s ().
 Family Property a nd Support Act, R SY , c , s ().
 Snyder v Pictou,   NSCA ; Hrenyk v Berden,  SKQB .

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