Remedies Available under Provincial and Territorial Legislation

• Author: Julien D. Payne, Marilyn A. Payne
• Pages: 546-596



 

Remedies Available under Provincial

and Territorial Legislation

A. SPOUSAL SUPPORT

) Diversity under Provincial and Territorial Statutes

Separated spouses may opt to seek s pousal support under prov incial or

territoria l legislation or by w ay of corollary rel ief in divorce proceedings.

Unmarried coh abitants of the opposite sex or of the same se x may also be

entitled to seek “spousal ” support under provincial or ter ritorial legi slation.

Provincia l spousal support legislat ion that discriminates aga inst couples liv-

ing in a “common-law relationship” or in a same -sex relationship has been

struck down a s contravening equality rig hts under section  of the Canadian

Charter of Rights and Freedoms.

In most provinces and terr itories, both federally a nd provincially ap -

pointed judges may adjudicate spous al and child supp ort claims t hat arise

independently of divorce.

Provincia l and territorial st atutes dier widely from each other in their

specic provis ions respecting spousal support. e y also dier substantial ly

from the langu age of the federal Divorce Act, which reg ulates spousal suppor t

on or after divorce.

British Columbia  provides general statutor y criteria for spousa l support

orders that correspond to the factors and objec tives dened in the federa l

Divorce Act. Several provinces, including New Bru nswick, Newfou ndland and

Taylor v Rossu (),  RFL (th)   (Alta C A).

M v H, []  SCR .

e Constitution Act, , being Schedule B to the Canada Ac t  (UK), , c .

Family Law Act, SBC , c , ss  –.

Family Services A ct, SNB , c F-., s  ().

Chapter : Remedies Available under Provincial an d Territorial Legislation 

Labrador, Nova Scotia, Ontario, Prince Edward Island, and the Northwest

Ter ri to ri es  provide a detailed st atutory list of factors that the cour ts should

take into account in determ ining the right to, duration, and a mount of spous-

al support. e shortcomings of an unrened list of designated factors, which

lead to unbridled judicial discretion, have been tempered in Newfoundland

and Labrador, the Northwest Territories, Ontario, and Saskatchewan by

the articul ation of specic objectives for support orders. ese objectives are

similar but not identica l to those dened in the current Divorce Act. Accord-

ingly, they promote consistency bet ween provincial and federa l statutory cri-

teria but fall shor t of providing a blueprint for unifor mity.

Provincia l statutory spousal supp ort rights and obligations a re no longer

conditioned on proof of a matri monial oence. Alberta, Br itish Columbia,

Manitoba, New Brunswic k, Newfoundla nd and Labrador, the Northwest

Ter ri to ri es , Ontario, Prince Edward Island, Quebec, Saskatchewan,

and the Yukon Territory have a ll abandoned the traditiona l oence concept

in favour of economic criter ia that largely focus on needs and abil ity to pay.

In Newfound land and Labrador, the Nort hwest Territories, and Ontario,

the spousal supp ort obligation “exists w ithout regard to the conduct of either

spouse, but the court may i n determining the amount of supp ort have regard

to a course of conduct that is so unconscionable as to constitute an obvious

Family Law Act, RSNL , c F- , s ().

Maintenance and Custody A ct, RSNS , c , s .

Family Law Act, RSO , c F., s ().

Family Law Act, SPEI , c , s ().

 Family Law Act, SNWT , c , s .

 Family Law Act, RSNL , c F- , s ().

 Family Law Act, SNWT , c , ss ( ), (), (), (), (), & ().

 Family Law Act, RSO , c F., s ().

 Family Maintenance Act, SS , c F-., s .

 RSC  (d Supp), c , ss .() and (); see Chapt er , Section G.

 Family Law Act, SA , c F-., ss  –.

 Family Law Act, SBC , c , ss  –.

 Family Maintenance Act, CCSM c F, ss  and .

 Family Services A ct, SNB , c F-., s s  and ().

 Family Law Act, RSNL , c F- , ss  and ().

 Family Law Act, SNWT , c , ss  and  (), (), (), (), & ().

 Family Law Act, RSO , c F., ss  and ().

 Family Law Act, SPEI , c , ss ,  (), and ().

 Civil Code of Québec, SQ  , c , art. ,  , and –.

 Family Maintenance Act, SS , c F-., ss  and .

 Family Propert y and Support Act, RS Y , c , ss  and  ().

 Family Law Act, RSNL , c F- , s ().

 Family Law Act, SNWT , c , s ().

 Family Law Act, RSO , c F., s ().

    

and gross repudiat ion of the [spousal] relationsh ip.” Although there has

been some inconsistency in the application of these statutory provisions,

there has been strong judicial resistance to spouses engaging in mutual re-

criminations. Manitoba, which orig inally appl ied a similar cr iterion of un-

conscionabilit y, abandoned conduct as a relevant consideration altogether by

amending legisl ation in . In Alberta and Br itish Columbia, court s may

take misconduct into account only where it arbitrarily or unreasonably pre-

cipitates, prolongs, or aggrav ates the need for support, or aec ts the ability

of the obligor to provide sup port. In New Brunswick  and Nova Scotia, the

relevant legisl ation expressly stipu lates that courts may t ake conduct into

account if it unreasonably prolongs the need for support. ese statutor y

provisions are consistent with the statutory obligation on each spouse to

strive for nanc ial self-su ciency. In the Yukon Territory, a court is spe-

cical ly empowered to deny support to a spouse who has remarried or is co -

habiting with a t hird party in a relationsh ip of some permanence.

) Dierences between Federal Divorce Act and Provincial

and Territorial Legislation

Dierences in provinc ial and territor ial legislat ion and in the federal di-

vorce legislation are pr imarily dierences of for m rather than of substance,

whether the courts are dealing with conduct or any ot her matter. If Mrs.

Jones is separated from her husband, a judge i s unlikely to allow t he right to,

duration of, and amount of support to de pend on whether she has invoked

the provisions of the appl icable provincia l or territoria l statute or the rel-

evant provisions of the Di vorce Act.

However, certain import ant dierences remain be tween the provinci al

and territori al support regimes and the federa l divorce regime. In particu lar,

provincial a nd territorial le gislation confers broader powers on the cour ts

with respect to t he types of order that ca n be granted in proceedings for

 Compare Maintenance and Custody Act, RSNS  , c , s ().

 See Julien D Payne , “e Relevance of Conduc t to the Assessment of Spousa l Mainten-

ance under the O ntario Family Law Reform Act, SO , c ” ()  Fam L Rev ,

reprinted in Payne’s Digest on Divorce in Can ada, – (Don Mills, ON: R De Boo,

) at . Compare Bru ni v Bruni,  ONSC  (pa rental alienation). See a lso

Menegaldo v Menegaldo,  ONSC .

 Family Maintenance Act, SM , c , s , now CC SM c F, s ().

 Family Law Act, SA , c F-., s ; Family Law Act, SBC , c , s .

 Family Services A ct, SNB , c F-., s  ()(t).

 Maintenance and Custody A ct, RSNS , c , s ().

 Family Propert y and Support Act, R SY , c , s ( ).

 Snyder v Pictou,  NSCA ; Hrenyk v Berden,  SKQB .