Remedies Available under Provincial and Territorial Legislation
| Author | Julien D. Payne/Marilyn A. Payne |
| Pages | 536-586 |
Remedies Available under Provincial
and Territorial Legislation
A. SPOUSAL SUPPORT
) Diversity under Provincial and Territorial Statutes
Separated spouses may opt to seek spou sal support under provincial or
territoria l legi slation or by way of corol lary relief in d ivorce proceedin gs.
Unmarried cohabitants of the opposite sex or of the same sex may also be
entitled to seek “spousal” support under provincial or t erritorial legisl ation.
Provincial spousal support legislation that discriminates against couples liv-
ing in a “common-law relationship” or in a same-sex relationship has been
struck down as contravening equal ity rights under section of the Canadian
Charter of Rights and Freedoms.
In most provinces and ter ritories, both fede rally and prov incially ap-
pointed judges may adjudic ate spousal and child support c laims that arise
independently of divorce.
Provincia l and territorial statutes differ widely f rom each other in their
specific provisions res pecting spousal support. ey al so differ substantially
from the language of the federal Divorce Act, which regulates spousal support
on or after divorce.
British Columbia prov ides ver y general s tatutory criteri a for spous al sup-
port orders. Several provinces, including New Brunswick, Newfoundland and
Taylor v. Rossu (), R.F.L. (th) (Alta. C. A.).
M. v. H., [] S.C.R. .
Family Relations Ac t, R.S.B.C. , c. , s. .
Family Services A ct, S.N.B. , c. F- ., s. ().
Chapter : Rem edies Available under Provincia l and Territorial Legisl ation
Lab rado r, Nova Scotia, Onta rio, Prince Edward Island, a nd the Northwest
Territories provide a detailed statutory list of factors that the courts should
take into ac count in determini ng the right to, duratio n, and amount of spous-
al sup port. e shortcom ings of an unrefine d list of designa ted facto rs, which
lead to unbridled judicial discretion, have been tempered in Newfoundland
and Labrador, the Northwes t Territories , Ontario, and Sask atchewan by
the articul ation of specific objectives for support orders. ese objectives are
similar but not identical to those defined in the cur rent Divorce Ac t. Accord-
ingly, they promote consistenc y between provincia l and federal statutory cri-
teria but fall shor t of providing a blueprint for uniformit y.
Provincia l statutory spousal support rig hts and obligations are no longer
conditioned on proof of a matrimonial offence. A lberta, British C olumbia,
Manitob a, New Brunsw ick, Newfoundland and Labrador, the Nort hwest
Territories, Ontar io, Prince Edward Island, Quebec, Saskatche wan,
and t he Yukon Ter ritory have all abandoned the traditional offence concept
in favour of economic criteria t hat largely focus on needs and abil ity to pay.
In Newfoundland and Labrador, t he Northw est Territ ories, and Ontar io,
the spousal support obligation “exists without regard to the conduct of either
spouse, but the court may in determining the amount of support have regard
to a course of conduct that is not unconsciona ble as to constitute an obv ious
Family Law Act, R .S.N.L. , c. F- , s. ().
Maintenance and Custody A ct, R.S.N.S. , 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 A ct, S.S. , c. F-., s. .
R.S.C. (d Supp.), c. , ss. .() and (); see Chapter , Section G.
Family Law Act , S.A. , c. F -., ss. –.
Family Relations A ct, R.S.B.C. , c. , s. .
Family Maintenance A ct, C.C.S.M. c. F , ss. and .
Family Services A ct, 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. , ss. , (), and ().
Civil Code of Québec, S.Q. , c. , art. , , and –.
Family Maintenance Act, S. S. , c. F-., ss. and .
Family Propert y and Support Act, R .S.Y. , c. , ss. and ( ).
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. ().
and gross repud iation of the [spousal] re lationship.” A lthough there h as
been some i nconsistency in t he application of these statutory provisions,
there ha s been strong judicial resistance to spouses engaging in mutua l re-
criminations. Manitoba, which origina lly applied a si milar criter ion of un-
conscionability, abandoned conduct as a relevant consideration altogether by
amending legislation in . In Alberta, the courts may take misconduct
into account only where it arbitra rily or unreasonably () precipit ates, pro-
longs, or agg ravates the need for suppor t, or () affects the ability of the ob -
ligor to provide support. In New Brunswick and Nova Scotia, the rele vant
legislation e xpressly stipulates that courts may take conduct into account if
it u nreasonably prolongs the need for suppor t. ese statutory provisions
are consi stent with t he statutory obligation on each spouse to strive for fi-
nancial self-sufficienc y. In the Yuk on Territory, a court is specifically em-
powered to deny support to a spouse who has remarried or is cohabiting with
a third part y 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 di-
vorce legislation are primar ily differences of form rather than of substance,
whether the cou rts a re deali ng with conduct or any other matter. I f Mrs.
Jones is separated from her husband, a judge is un likely to allow the right to,
duration, and amount of supp ort to depend on whether she has invoked t he
provisions of the applicable provincial or territorial statute or t he relevant
provisions of the Divorce Act.
Certain important differences remain between the prov incial and ter-
ritorial support regimes and the federa l divorce regime. In particul ar, prov-
incial and territori al legislation confers broader powers on the courts with
respect to t he types of order th at can be granted i n proceedings for spousa l
Compare Maintenance and Custody Act, R .S.N.S. , c. , s. ().
See Julien D. Payne, “e Re levance of Conduct to the A ssessment of Spousal M ainten-
ance under the R eform Act, S.O. , c. ” () Fam. L. R ev. , reprinted in Payne’s
Digest on Divorce in Canad a, – (Don Mills , ON: R. De Boo, ) at . Compare
Bruni v. Bruni, ONSC (parental al ienation).
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 A ct, S.N.B. , c. F-. , s. ()(t).
Maintenance and Custody A ct, R.S.N.S . , c. , s. ().
Family Property a nd Support Act, R .S.Y. , c. , s. ().
Snyder v. Pictou, NSC A , [] N.S.J. No. .
To continue reading
Request your trial