Remedies Available Under Provincial and Territorial Legislation

• Jurisdiction: Canada
• Author: Julien D. Payne,Marilyn A. Payne
• Date: 25 July 2022

674

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 provincial or territorial legislation.1

In most provinces and territories, both federally and provincially

appointed judges may adjudicate spousal and child support claims that arise

independently of divorce.

Provincial and territorial statutes dif‌fer from each other in their detailed

provisions respecting spousal support. Many of them also dif‌fer substantially

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

on or aer divorce.2

British Columbia3 provides general statutory criteria for spousal support

orders that correspond to the factors and objectives def‌ined in the federal

Divorce Act. Several provinces, including New Brunswick,4 Newfoundland

1 See Chapter 3.

2 See Chapter 8.

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

4 Family Law Act, SNB 2020, c 23, s 18(1).

Chapter 12: Remedies Available Under Provincial and Terr itorial Legislation 675

and Labrador,5 Nova Scotia,6 Ontario,7 Prince Edward Island,8 and the North-

west 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 unref‌ined list of designated

factors, which lead to unbridled judicial discretion, have been tempered in

Newfoundland and Labrador,10 the Northwest Territories,11 Ontario,12 and

Saskatchewan13 by the articulation of specif‌ic objectives for support orders.

ese objectives are similar but not identical to those def‌ined in the current

Divorce Act. Accordingly, they promote consistency between provincial and

federal statutory criteria but fall short of providing a blueprint for uniformity.

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 of‌fence 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 court 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 application

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

6 Parenting and Support Act, RSNS 1989, c 160, s 4, as amended.

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

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

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 Compare Family Law Act, SNB 2020, c 23, s 18(1)(q).

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, 33(6), and 33(9).

22 Civil Code of Québec, SQ 1991, c 64, arts 493, 511, and 585–96.

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

24 Family Property and Support Act, RSY 2002, c 83, ss 32 and 34(5).

25 See Chapter 1, Section 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).

Canadian family law676

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

spouses engaging in mutual recriminations.29 Manitoba, which originally

applied a similar criterion of unconscionability, abandoned conduct as a rel-

evant consideration altogether by amending legislation in 1983.30 In Alberta,

British Columbia, and New Brunswick, courts may take misconduct into

account only where it arbitrarily or unreasonably precipitates, prolongs, or

aggravates the need for support, or af‌fects the ability of the obligor to provide

support.31 ese statutory provisions are consistent with the statutory obliga-

tion on each spouse to strive for f‌inancial self-suf‌f‌iciency. In Yukon,32 a court

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

is cohabiting with a third party in a relationship of some permanence.

2) Dierences Between Federal Divorce Act and Provincial and

Territorial Legislation

Dif‌ferences in provincial and territorial legislation and in the federal divorce

legislation governing spousal support are primarily dif‌ferences of form

rather than of substance,33 whether the courts are dealing with conduct or

any other maer. 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 Act but have since been extended to applications for

spousal support under provincial statute.

However, certain important dif‌ferences remain between the provincial

and territorial support regimes and the federal divorce regime. In particu-

lar, provincial and territorial legislation expressly confers broader powers on

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

ings for spousal support. e federal Divorce Act34 empowers a court to grant

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

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

29 See Julien D Payne, “The Relevance of Conduct to the Assessment of Spousal Main-

tenance Under the Ontario Family Law Reform Act, SO 1978, c 2” (1980) 3 Fam L Rev

103, reprinted in Payne’s Digest on Divorce in Canada, 1968–1980 (Don Mills, ON: R De

Boo, 1982) at 419. Compare Bruni v Bruni, 2010 ONSC 6568 (parental alienation). 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 166; Family Law

Act, SNB 2020, c 23, s 18(1)(q).

32 Family Property and Support Act, RSY 2002, c 83, s 34(5).

33 Snyder v Pictou, 2008 NSCA 19; Hrenyk v Berden, 2011 SKQB 305.

34 RSC 1985, c 3 (2d Supp), s 15(2).