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 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 .

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT