A. Spousal Support

Author:Julien D. Payne - Marilyn A. Payne

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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. Provincial spousal support legislation that discriminates against couples living in a "common-law relationship"1or in a same-sex relationship2has been struck down as contravening equality rights under section 15 of the Canadian Charter of Rights and Freedoms.3In 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 widely from each other in their specific provisions respecting spousal support. They also differ substantially from the language of the federal Divorce Act, which regulates spousal support on or after divorce.

British Columbia4provides 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,5Newfoundland

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and Labrador,6Nova Scotia,7Ontario,8Prince Edward Island,9and the Northwest Territories10provide 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. The shortcomings of an unrefined list of designated factors, which lead to unbridled judicial discretion, have been tempered in Newfoundland and Labrador,11the Northwest Territories,12Ontario,13and Saskatchewan14by the articulation of specific objectives for support orders. These objectives are similar but not identical to those defined in the current Divorce Act.15Accordingly, they promote consistency between provincial and federal statutory criteria but fall short of providing a blueprint for uniformity.

Provincial statutory spousal support rights and obligations are no longer conditioned on proof of a matrimonial offence. Alberta,16British Columbia,17Manitoba,18New Brunswick,19Newfoundland and Labrador,20the Northwest Territories,21Ontario,22Prince Edward Island,23Quebec,24Saskatchewan,25and the Yukon Territory26have all abandoned the traditional offence concept in favour of economic criteria that largely focus on needs and ability to pay. In Newfoundland and Labrador,27the Northwest Territories,28and Ontario,29the 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 so unconscionable as to constitute an obvious

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and gross repudiation of the [spousal] relationship."30Although there has been some inconsistency in the application of these statutory provisions, there has been strong judicial resistance to spouses engaging in mutual recriminations.31Manitoba, which originally applied a similar criterion of unconscionability, abandoned conduct as a relevant consideration altogether by amending legislation in 1983.32In Alberta and British Columbia, 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.33In New Brunswick34and Nova Scotia,35the relevant legislation expressly stipulates that courts may take conduct into account if it unreasonably prolongs the need for support. These statutory provisions are consistent with the statutory obligation on each spouse to strive for financial self-sufficiency. In the Yukon Territory,36a 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) Differences between Federal Divorce Act and Provincial and Territorial Legislation

Differences in provincial and territorial legislation and in the federal divorce legislation are primarily differences of form rather than of substance,37 whether the courts are dealing with conduct or any other matter. If Mrs Jones is separated...

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