Remedies Available under Provincial and Territorial Legislation

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 647-702



  

Remedies Available under Provincial

and Territorial Legislation

A. SPOUSAL SUPPORT

) 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 .