Remedies Available under Provincial and Territorial Legislation

• Author: Julien D. Payne, Marilyn A. Payne
• Pages: 600-651



  

Remedies Available under Provincial

and Territorial Legislation

A. SPOUSAL SUPPORT

) Diversity under Provincial and Territorial Statutes

Separated spouses may opt to seek spousal support under provincial or

territorial legislation or by way of corollary relief in divorce proceedings.

Unmarried cohabitants of the opposite sex or of the same sex may also be

entitled to seek “spousal ” support under provincial or territorial legislation.

Provincia l spousal support legislation th at discriminates again st couples liv-

ing in a “common-law relationship” or in a same-sex 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 territories, both federally and provincially ap-

pointed judges may adjudicate spousal and child support claims that arise

independently of divorce.

Provincia l and territorial statutes dier 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 general statutory criteria for spousal support

orders that correspond to the factors and objectives dened in the federal

Divorce Act. Several provinces, including New Brunswick, Newfoundland

 Taylor v Rossu (),  RFL (th)   (Alta C A).

 M v H, []  SCR .

 e Constitution A ct, , being Sche dule B to the Canada Act  ( UK), , c .

 Family Law Act, SBC  , c , ss – .

 Family Services Ac t, SNB , c F-., s ().

Chapter : Reme dies Available under Provincial and Terr itorial Legislation

and Labrador, Nova Scotia, Ontario, Prince Edward Island, and the North-

west Territories provide a detailed statutory list of factors that the courts

should take into account in deter mining the right to, duration of, and amou nt

of spousal 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 articulation of specic objectives for support orders.

ese objectives are similar but not identical to those dened in the current

Divorce Ac t. Accordingly, they promote consistency between provincial 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,

Manitoba, New Brun swick, Newf oundland and Lab rador, the Northwest

Territories, Ontario, Prince Edward Island, Quebec, Saskatchewan,

and the Yukon Territory have al l abandoned the traditional oence concept

in favour of economic criteria that largely focus on needs and ability to pay.

In Newfoundla nd and Labrador, the Northwest Territories, and Ontar io,

the spousal suppor t obligation “exists without regard to the conduct of either

spouse, but the court may in dete rmining the amount of support have regard

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

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 .

R SC  (d Supp), c , ss .() and (); see Chapter , Sec tion 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 , art. ,  , 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 ().

  

and gross repudiation of the [spousal] relationship.” 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 originally applied a similar criterion of un-

conscionability, abandoned conduct as a rele vant consideration altogether by

amending legislation in . In Alberta and British Columbia, courts may

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

cipitates, prolongs, or aggravates the need for support, or aects the ability

of the obligor to provide support. In New Brun swick and Nova Scot ia, the

relevant legisl ation expressly stipulates that cour ts may take conduct into ac-

count if it unreasonably prolongs the need for support. ese statutory pro-

visions are consistent w ith the statutory obligation on each spouse to str ive

for nancial self-suciency. In the Yukon Territory, a court is specically

empowered to deny support to a spouse who has remarried or is cohabiting

with a third pa rty in a relationship of some perma nence.

) Dierences between Federal Divorce Act and Provincial

and Territorial Leg islation

Dierences in provincial and territorial legislation and in the federal di-

vorce legislation are pri marily dierences of form rat her than of substance,

whether the courts are dealing with 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 whether she has invoked

the provisions of the applicable provincial or territorial statute or the rel-

evant provisions of the D ivorce Act.

However, certain important dierences remain between the provincial

and territoria l support regimes and the federal d ivorce regime. In particular,

provincial and territorial legislation confers broader powers on the courts

with respect to the types of order that can be granted in proceedings for

 Compare Maintenance and Cus tody Act, RSNS , c  , s ().

See Julie n D Payne, “e Relev ance of Conduct to the Asse ssment of Spousal Mai nte-

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 .