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 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 provincia l or territorial legisl ation.1

In most provinces and territories, both federally and provincially

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 respecting spousal support. Many of them also dier substan-

tially from the language of the federal Divorce Act, which regulates spousal

support on or after divorce.2

British Columbia3 provides general statutory criteria for spousal sup-

port orders that correspond to the factors and objectives dened in the

federal Divorce Act. Several provinces, including 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 Legislation637

the Northwest Territories9 provide a detailed statutory list of factors that

the courts should take into account in determining the right to, duration

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

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

tempered in Newfoundland and Labrador,10 the Northwest Territories,11

Ontario,12 and Saskatchewan13 by the articulation of specic objectives for

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

in the current Divorce Act. Accordingly, they promote consistency between

provincial and federal statutory criteria but fall 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 Northwest Territories,19 Ontario,20 Prince Edward

Island,21 Quebec,22 Saskatchewan,23 and Yukon24 have long abandoned the

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

on needs and ability to pay.25 In Newfoundland and Labrador,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 obvious and gross repudiation of the [spousal]

relationship.” Although there has been some inconsistency in the applica-

tion of these statutory provisions, there has been strong judicial resistance

to spouses engaging in mutual recriminations.29 Manitoba, which origin-

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

25See Chapter 1, S ection C.

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

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

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

29See 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 similar criterion of unconscionability, abandoned conduct as a

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

and British Columbia, courts may take misconduct into account only where

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

for support, or aects the ability of the obligor to provide support.31 In New

Brunswick32 and Nova Scotia,33 the relevant legislation expressly stipulates

that courts may take conduct into account if it unreasonably prolongs the

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 support to a spouse who has remar-

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 governing spousal support are primarily dierences of form

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

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

lines, which were devised in the context of applications for spousal support

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

spousal support u nder provincial statute.

However, certain important 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 property 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.

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

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

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

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

c 160, s 6(1).

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

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

36RSC 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