Remedies Available under Provincial and Territorial Legislation

• Author: Julien D. Payne/Marilyn A. Payne
• Pages: 636-694

636

Chapter 12

Remedies Available Under Provincial

and Territorial Legislation

A. SPOUSAL SUPPORT

1) Diversity Under Provincial and Territorial Statutes

Separated spouses may opt to seek spousal support u nder provincial or

territoria l legislation or by way of coroll ary relief i n divorce proceedings.

Unmarried cohabitants of the opposite sex or of the sa me sex may also be

entitled to seek “spousal ” support under provincia l or territorial legisl ation.1

In most provinces and terr itories, both federal ly and provincia lly

appointed judges may adjudicate spousa l and child support clai ms that arise

independent ly of divorce.

Provincia l and territorial st atutes dier from each other in thei r detailed

provisions respecti ng spousal suppor t. Many of them also d ier substan-

tially f rom the langua ge of the federal Divorce Act, which regulates spousal

support on or after divorce.2

British Columbia3 provides general statutory cr iteria for spousal sup-

port orders that correspond to the fac tors and objectives dened i n the

federal Divorce Act. Several provinces, inc luding New Brunswick,4 New-

foundland and Labrador,5 Nova Scoti a,6 Ontario,7 Pr ince Edward Island,8 and

1 See Chapter 3.

2 See Chapter 8.

3 Family Law Act, SBC 2011, c 25, ss 16 0–62.

4 Family Services A ct, SNB 1980, c F-2.2, s 1 15(6).

5 Family Law Act, RSNL 1990, c F-2, s 39 (9).

6 Parenting and Support Act SNS 2 015, c 44, s 4. Maintenance an d Custody Act, RSNS 19 89,

c 160, s 4.

7 Family Law Act, RSO 1990, c F.3, s 33(9).

8 Family Law Act, SPEI 1995, c 12, s 33(9).

Chapter 12: Reme dies Available Under Provincial and Territo rial Legislation 637

the Northwes t Territories9 prov ide a detailed statutory list of factors th at

the courts should ta ke into account in determi ning the right to, duration

of, and amount of spousal support. e shortcomings of an unrened list

of designated factors, whic h lead to unbridled judic ial discretion, have been

tempered in New foundland and Labr ador,10 the Northwest Terr itories,11

Ontar io,12 and Sask atchewan 13 by the artic ulation of speci c objectives for

support orders. ese objectives a re similar but not identical to those de ned

in the current Divorce Ac t. Accordingly, they promote consistency bet ween

provincial a nd federal statutory c riteria but fal l short of providing a blue-

print for un iformity.

Alberta,14 British Columbia,15 Manitoba,16 New Brunswick,17 Newfound-

land and Labrador,18 the Northwe st Territories,19 O ntar io,20 Prince Edw ard

Island,21 Quebec,22 Saskatchewan ,23 and Yu kon 24 have long abandoned t he

traditional oence concept in favour of economic criteria t hat largely focus

on needs and ability to pay.25 In New foundland and Labr ador,26 the North-

west Territories,27 and Ontario,28 the spousal support obligation “exists with-

out regard to the conduct of either spouse, but the cour t may in determining

the amount of support have regard to a course of conduct that is so uncon-

scionable as to constitute an obv ious and gross repudi ation of the [spousal]

relationship.” Although there h as been some inconsistency i n the applica-

tion of these statutory prov isions, there has been st rong judicial resist ance

to spouses engaging i n mutual recriminations.29 Man itoba, which origi n-

9 Family Law Act, SNWT 1997, c 18, s 16.

10 Family Law Act, RSNL 1990, c F-2, s 39(8).

11 Family Law Act, SNWT 1997, c 18, ss 16(4), ( 5), (6), (7), (8), & (9).

12 Family Law Act, RSO 1990, c F.3, s 33(8).

13 Family Maintenance Act, SS 1997, c F-6.2, s 5.

14 Family Law Act, SA 2003, c F-4.5, ss 58 –60.

15 Family Law Act, SBC 2011, c 25, ss 160–62.

16 Family Maintenance Act, CCSM c F20, ss 4 and 7.

17 Family Service s Act, SNB 1980, c F-2.2 , ss 112 and 115(6).

18 Family Law Act, RSNL 1990, c F-2 , ss 36 and 39(9).

19 Family Law Act, SNWT 1997, c 18, ss 15 and 16(5), (6), (7), (8), & (9).

20 Family Law Act, RSO 1990, c F.3, ss 31 and 33(9).

21 Family Law Act, SPEI 1995, c 12, ss 30, 3 3(6), and 33(9).

22 Civil Code of Québec, SQ 1991 , c 64, arts 493, 51 1, and 585–96.

23 Family Maintenance Act, SS 1997, c F-6.2, ss 5 and 7.

24 Family Property and S upport Act, RS Y 2002, c 83, ss 32 and 34( 5).

25 See Chapter 1, S ection C.

26 Family Law Act, RSNL 1990, c F-2 , s 39(9).

27 Family Law Act, SNWT 1997, c 18, s 16(10).

28 Family Law Act, RSO 1990, c F.3, s 33(10).

29 See Julien D Payne, “ e Relevance of Conduct to t he Assessment of Spousa l Mainten-

ance Under the Onta rio Family Law Refor m Act, SO 1978, c 2” (1980) 3 Fam L Rev 103,

Canadi an family law638

ally applied a sim ilar cr iterion of unconscionabil ity, abandoned conduct as a

relevant consideration altogether b y amending legislation in 1983.30 In Alber ta

and British Columbia, cou rts may take misconduct into account only where

it arbitrarily or unreasonably precipitates, prolongs, or aggravates the need

for support, or aects the abi lity of the obligor to prov ide support.31 In New

Brunsw ick32 and Nova Scotia,33 the releva nt legislation ex pressly stipulates

that courts may take conduct into account if it unreasonably prolongs t he

need for support. ese statutory prov isions are consistent with the statutor y

obligation on each spouse to st rive for nancial self-su ciency. In Yukon,34 a

court is specically empowered to deny suppor t to a spouse who has rema r-

ried or is cohabiting w ith a third party in a relat ionship of some permanence.

2) Dierences Between Federal Divorce Act and Provincial

and Territorial Legislation

Dierences in provinc ial and territorial le gislation and in the federal divorce

legislation govern ing spousal suppor t are primarily dierences of form

rather than of substa nce,35 whether the courts are dealing with conduct or

any other matter. is is underlined by the Spousal Suppor t Advisory Guide -

lines, which were dev ised in the context of appl ications for spousal suppor t

under the federal Divorce Ac t but have since been extended to applications for

spousal support u nder provincial statute.

However, certain import ant dierences remain between the provincial

and territoria l support regimes and the federal divorce reg ime. In particular,

provincial a nd territorial legis lation expressly confers broader powers on the

courts with respect to the types of orders that can be granted in proceed-

ings for spousal suppor t. e federal Divorce Act36 empowers a court to grant

orders to pay and secure a lump sum or per iodic sums for spousal support. It

does not empower a court to order a transfer of proper ty in lieu of support

payments. Most provincia l and territorial supp ort statutes37 expressly confer

reprinted in Pa yne’s Digest on Divorce in Canada, 19 68–1980 (D on Mills, ON: R De Boo,

1982) at 419. Compare Br uni v Bruni, 2010 ONSC 6568 (p arental alien ation). See also

Menegaldo v Menegaldo, 2012 ONSC 2940.

30 Family Maintenance Act, SM 1983, c 54, s 4, now CCSM c F20, s 4(2).

31 Family Law Act, SA 2003, c F-4.5, s 59; Family Law Act, SBC 2011, c 25, s 16 6.

32 Family Services Ac t, SNB 1980, c F-2.2, s 115(6)(t).

33 Parenting and Support A ct, SNS 2015, c 44, s 6(1). Maintena nce and Custody Act, R SNS 1989,

c 160, s 6(1).

34 Family Property and S upport Act, RS Y 2002, c 83, s 34(5).

35 Snyder v Pictou, 200 8 NSCA 19; Hrenyk v Berden, 2011 SKQB 305 .

36 RSC 1985, c 3 (2d Supp), s 15(2).

37 See Family Law Act, SA 2003, c F-4.5, s 49; Family Law Act , SBC 2011, c 25, s 170; Family

Maintenance Act, CCSM c F20, s 10(1); Family S ervices Act, SNB 198 0, c F-2.2, s 116; Family