Remedies Available under Provincial and Territorial Legislation
| Author | Julien D. Payne/Marilyn A. Payne |
| Pages | 519-563 |
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 provincia l or
territoria l legislation or by way of corollar y relief in divorce proceedi ngs.
Unmarried cohabitants of the opposite sex or of the same sex may al so
be entitled to seek “spousal” support u nder prov incial or territorial legis-
lation. Provincial spousal support legi slation that discriminates aga inst
couples living in a “common-law relationship” or in a same-sex relation-
ship has b een struck dow n as contraven ing equal ity right s under sect ion
of the Canadian Charte r of Right s and Freedoms.
In most provinces and territories, b oth federally and provincially ap-
pointed judges may adjudicate spousal and child support claims that ar ise
independently of divorce.
Provincial and territoria l statutes differ widely from each other in
their specific provisions respe cting spousal support. ey also d iffer sub-
stantially from the language of the federal Divorce Act, which regulates
spousal supp ort on or after divorce.
Taylor v. Rossu (), R.F.L. (th) (Alta. C.A.).
M. v. H., [] S.C.R . .
519
520 CANADIAN FAMILY LAW
British Columbia provides very general st atutory criteria for spousal
support orders. Several provinces, including New Bruns wick,Newfound-
land and Labr ador,Nova Scotia, Onta rio, Prince Edward Island, and
the Northwest Territorie s provide a detailed stat utory list of factors t hat
the courts should take into account in determining the right to, duration,
and amount of spou sal support. e shortcomings of an unrefi ned list of
designated factors, which lead to unbridled jud icial discretion, have been
tempered in New foundland a nd Labrador, the Northwes t Territories,
Ontario, and Saskatchewan by the ar ticulation of specific object ives
for support orders. ese objectives are similar but not identical to t hose
defined in the current Divorce Act. Accordingly, they promote consist-
ency between provincial a nd federal statutory criteria but fall short of
providing a bluepr int for uniformity.
Provincial statutory spous al support rights and obligations are no
longer conditioned on proof of a matrimonial offence. Alberta, Brit ish
Columbia, Manitoba, New Brunswick, Ne wfoundland and Labrador,
the Northwest Territories, Ontario, Prince Edward Island, Quebec,
Saskatchewan, and the Yukon Terr itory have all abandoned the trad-
Family Relati ons Act, R.S.B.C. , c. , s. .
Family Serv ices Act, S.N.B. , c. F-., s. ().
Family Law Ac t, R.S.N.L. , c. F-, s. ().
Maintenance and Custody Act, R.S .N.S. , c. , s. .
Family Law Act, R.S.O. , c. F., s. ().
Family Law Ac t, S.P.E.I. , c. , s. ().
Family Law Act, S .N.W.T. , c. , s. .
Family Law Act, R.S. N.L. , c. F-, s. ().
Family Law Act, S.N.W.T. , c. , ss. (), (), (), (), (), & ().
Family Law Act, R.S.O. , c. F-, s. ().
Family Maintenance Act, S.S. , c. F-., s. .
R.S.C.(dSupp.),c.,ss..()and();seeChapter,SectionG.R.S.C. (d Supp.), c. , ss. .() and (); see Chapter , Section G.
Family Law Act, S.A. , c. F-., ss. – .
Family Relations Act, R.S.B.C. , c. , s. .
Family Maintenance Act, C.C.S.M . c. F, ss. and .
Family Services Act , S.N.B. , c. F-., ss. and ().
Family Law Act, R.S. N.L. , c. F-, ss. and ().
Family Law Act, S.N.W.T. , c. , ss. and (), (), (), (), & ().
Family Law Act, R.S.O. , c. F-, ss. and ().
Family Law Act, S.P.E.I. , c. , s s. , (), and ().
Civil Code of Québe c, S.Q. , c. , art. , , and – [C.c.Q.].
Family Maintenance Act, S.S. , c. F-., ss. and .
Family Property and Suppo rt Act, R.S.Y. , c. , ss. and ().
521Remedies Available u nder Provincia l and Territorial Leg islation
itional offence concept in favour of economic criteria that la rgely focus on
needs and ability to pay. In Newfoundla nd and Labrador, the Northwest
Territories, and Ontario, t he spousal support obligation “exists with-
out 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
not unconscionable as to constitute an obvious and g ross repudiation of
the [spousal] relationship.” A lthough there has been some inconsistency
in the application of these statutory provi sion s, there has been strong ju-
dicial resistance to spouses engaging in mutual recriminations. Mani-
toba, which originally applied a si milar criterion of unconscionabil ity,
abandoned conduct as a relevant consideration altogether by amending
legislation in . In Alberta, the courts m ay take misconduct into ac-
count only where it a rbitrarily or unrea sonably (i) precipitates, prolong s,
or aggravates the need for support, or (ii) affects the abil ity of the obligor
to provide support . In New Brunsw ick and Nova Scotia, the relevant
legislation expressly stipulates th at courts may take conduct into account
if it unrea sonably prolongs the need for support. e se statutory provi-
sions are consistent with the statutor y obligation on each spouse to strive
for financial self-sufficiency. In the Yukon Territory, a court is speci fic-
ally empowered to deny support to a spouse who has remarried or is co-
habiting with a thi rd pa rty in a relationship of some permanence.
) Differences between Federal Divorce Act and
Provincial and Territorial Legislation
Differences in provincial and terr itorial legislation and in the federal
divorce legislation are primarily differences of form rather than of sub-
Family Law Act, R.S. N.L. , c. F-, s. ().
Family Law Act, S.N.W.T. , c. , s. ().
Family Law Act, R.S.O. , c. F-, s. ().
CompareCompare Maintenance and Custody Act, R .S.N.S. , c. , s. ().
SeeJulienD.Payne,“eRelevanceofConducttotheAssessmentofSpousalSee Julien D. Payne, “e Rele vance of Conduct to the Assessment of Sp ousal
Maintenance u nder the Reform Act, S.O. , c. ” () Fam. L. Rev. ,
reprinted in Payne’s Digest on Divo rce in Canada, – (Don Mills, ON: R . De
Boo, ) at .
Family Maintenance Act, S.M. , c. , s. , now C.C .S.M. c. F, s. ().
Family Law Act, S.A. , c. F-., s. .
Family Services Act , S.N.B. , c. F-., s. ()(t).
Maintenance and Custody Act, R.S .N.S. , c. , s. ().
Family Property and Suppo rt Act, R.S.Y. , c. , s. ().
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