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Bracklow v. Bracklow, [1999] 1 S.C.R. 420

 

Sharon Marie Bracklow                                                                    Appellant

 

v.

 

Frank Patrick Bracklow                                                                    Respondent

 

Indexed as:  Bracklow v. Bracklow

 

File No.:  26178.

 

1998:  November 6; 1999:  March 25.

 

Present:  Lamer C.J. and L’Heureux‑Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ.

 

on appeal from the court of appeal for british columbia

 

Family law ‑‑ Spousal support ‑‑ Parties living together for seven years including three years of marriage ‑‑ Wife having various health problems from beginning of relationship and becoming disabled and unable to work and support herself ‑‑ Whether disabled spouse entitled to spousal support -- Obligation owed by healthy spouse to sick one when marriage collapses ‑‑ Family Relations Act, R.S.B.C. 1996, c. 128, ss. 89, 93(2) ‑‑ Divorce Act, R.S.C., 1985, c. 3 (2nd Supp .), s. 15.2(1) , (4) , (6) .

 


The parties were married in December 1989 after living together for four years.  During the first two years of their relationship, the appellant paid two‑thirds of the household expenses because she was earning more money than the respondent and because her two children from a previous marriage were living with them.  After 1987, they shared the household expenses equally.  This continued while the appellant was working.  When she became unemployed, the respondent kept the family going.  The appellant had had various health problems from the beginning of the relationship and, in 1991, she was admitted to hospital suffering from psychiatric problems.  She has not worked since and it is unlikely that she will ever work again.  Except for periods when the appellant was too ill, the parties divided household chores.  They separated in 1992 and were divorced in 1995.  The respondent has remarried and his new wife is employed. The appellant obtained an interim spousal support order of $275 per month, increasing to $400 per month on May 15, 1994.  She also receives $787 monthly in disability benefits.  The trial judge found that no economic hardship befell the appellant as a consequence of the marriage or its breakdown.  Nor were her health problems due to the marriage.  He also found that there was no express or implied agreement between the parties that they were responsible for each other’s support.  The trial judge concluded that the appellant was not entitled to support from the respondent.  However, he ordered the $400 per month payments to continue until September 1996, “a decision based upon the [respondent’s] proposal not upon the necessity of law”.  The Court of Appeal affirmed the decision.

 

Held: The appeal should be allowed.  The matter is remitted to the trial judge for assessment of the amount and duration of the support award on the basis that the appellant is legally eligible for post‑marital support.

 


In analysing the respective obligations of husbands and wives, it is critical to distinguish between the roles of the spouses during marriage and the different roles that are assumed upon marriage breakdown.  Absent indications to the contrary, when two spouses are married, they owe each other a mutual duty of support.  Marriage is a joint endeavour.  When a marriage breaks down, however, the presumption of mutual support no longer applies.  This is reflected in the Divorce Act  and the provincial support statutes, which require a court to determine issues of support by reference to a variety of objectives and factors. A general presumption of post‑marital support would be inappropriate because of the presence of two “competing” theories of marriage and post‑marital obligation.  The independent, clean‑break model of marriage provides the theoretical basis for compensatory spousal support.  The basic social obligation model undergirds “non‑compensatory” support.  Both models of marriage and their corresponding theories of spousal support permit individual variation by contract, and hence provide a third basis for a legal entitlement to support. Parliament and the provincial legislatures, through their respective statutes, have acknowledged both models.

 

The Divorce Act  and the provincial support statutes are intended to deal with the economic consequences of the marriage breakdown for both parties.  In determining a support dispute, the starting point is the objectives which the Divorce Act , in s. 15.2(6) , stipulates the support order should serve.  No single objective is paramount; all must be borne in mind.  Against the background of these objectives the court must consider the factors set out in s. 15.2(4)  of the Divorce Act , which include non‑compensatory factors, like need and means.  There is no hard and fast rule. The judge must look at all the factors in the light of the stipulated objectives of support, and exercise his or her discretion in a manner that equitably alleviates the adverse consequences of the marriage breakdown and strikes the balance that best achieves justice in the particular case.  The Divorce Act  is not confined to one type of marriage or one type of support.

 


Like the Divorce Act , the Family Relations Act, through its various provisions, accommodates  the different conceptual bases for spousal support obligations ‑‑ contractual, compensatory and non‑compensatory. While the law has evolved to accept compensation as an important basis of support and to encourage the self‑sufficiency of each spouse when the marriage ends, where compensation is not indicated and self‑sufficiency is not possible, a support obligation may nonetheless arise from the marriage relationship itself.  Spouses may thus have an obligation to meet or contribute to the needs of their former partners where they have the capacity to pay, even in the absence of a contractual or compensatory foundation for the obligation.

 

The factors that go to entitlement have an impact on quantum.  The real issue is what support, if any, should be awarded in the situation before the judge on the factors set out in the Divorce Act  and the Family Relations Act.  For practical purposes, however, it may be useful to proceed by establishing entitlement first and then effecting necessary adjustments through quantum. While some factors may be more important than others in particular cases, the judge cannot proceed at the outset by fixing on only one variable.  The quantum awarded, in the sense of both amount and duration, will vary with the circumstances and the practical and policy considerations affecting particular cases.  Limited means of the supporting spouse may dictate a reduction.  So may obligations arising from new relationships in so far as they impact on means.  Factors within the marriage itself may also affect the quantum of a non‑compensatory support obligation.  Finally, subject to judicial discretion, the parties by contract or conduct may enhance, diminish or negate the obligation of mutual support.  It follows that diverse aspects of the marital relationship may be relevant to the quantum of non‑compensatory support.

 


In this case, while the early years of the parties’ union might indicate the atypical partnership of strict independence, and thus rebut the presumption of intra‑marital mutual interdependency, by the end the parties had established a more interdependent relationship.  In addition to adjusting their expenses to a more even ratio, it is evident that the respondent covered the appellant’s needs in the early stages of her illness.  Accordingly, it follows that divorce did in fact render the appellant in a state of economic hardship, as contemplated by s. 15.2(6) (c) of the Divorce Act .  In view of  the statutory objectives of support and the relevant factors, the appellant is eligible for support based on the length of cohabitation, the hardship marriage breakdown imposed on her, her palpable need, and the respondent’s financial ability to pay. The determination of the quantum of support, however, should be left  to the trial judge, who is in a better position to address the facts of this case.  All the relevant statutory factors must be considered, together with the amount of support the respondent has already paid to the appellant.  The possibility that the respondent’s contributions to date have discharged the just and appropriate quantum is not excluded.

 

Cases Cited

 

Considered:  Moge v. Moge, [1992] 3 S.C.R. 813; referred to: Ross v. Ross (1995), 168 N.B.R. (2d) 147; Story v. Story (1989), 23 R.F.L. (3d) 225; Parish v. Parish (1993), 46 R.F.L. (3d) 117; Ashworth v. Ashworth (1995), 15 R.F.L. (4th) 379.

 

Statutes and Regulations Cited

 

Divorce Act, R.S.C., 1985, c. 3 (2nd Supp .), s. 15.2(1)  [ad. 1997, c. 1, s. 2], (4) [idem], (6) [idem].

 

Divorce Act, S.C. 1967‑68, c. 24.

 

Divorce Act, 1985, S.C. 1986, c. 4 [now R.S.C., 1985, c. 3 (2nd Supp .)].

 

Family Law Act, R.S.O. 1990, c. F.3, preamble.

 

Family Relations Act, R.S.B.C. 1996, c. 128, ss. 89(1), 93(2)(a), (e).

 

 

Authors Cited

 

Martin, Craig.  “Unequal Shadows:  Negotiation Theory and Spousal Support Under Canadian Divorce Law” (1998), 56 U.T. Fac. L. Rev. 135.

 

Payne on Divorce, 4th ed.  Scarborough, Ont.:  Carswell, 1996.


Rogerson, Carol J.  “Judicial Interpretation of the Spousal and Child Support Provisions of the Divorce Act, 1985 (Part I)” (1991), 7 C.F.L.Q. 155.

 

Rogerson, Carol J.  “Spousal Support After Moge” (1996‑97), 14 C.F.L.Q. 281.

 

United Kingdom.  Scottish Law Commission.  Family Law:  Report on Aliment and Financial Provision.  Edinburgh:  H.M.S.O., 1981.

 

 

APPEAL from a judgment of the British Columbia Court of Appeal (1997), 37 B.C.L.R. (3d) 375, [1997] 8 W.W.R. 696, 94 B.C.A.C. 153, 152 W.A.C. 153, 30 R.F.L. (4th) 313, [1997] B.C.J. No. 1376 (QL), affirming a decision of the British Columbia Supreme Court (1995), 13 R.F.L. (4th) 184, [1995] B.C.J. No. 457 (QL), dismissing an application for permanent maintenance.  Appeal allowed.

 

Barbara M. Young, for the appellant.

 

Carol W. Hickman and Bruce B. Clark, for the respondent.

 

The judgment of the Court was delivered by

 

//McLachlin J.//

 

McLachlin J. --

 

I.  Introduction

 


1                                   What duty does a healthy spouse owe a sick one when the marriage collapses?  It is now well-settled law that spouses must compensate each other for foregone careers and missed opportunities during the marriage upon the breakdown of their union.  But what happens when a divorce -- through no consequence of sacrifices, but simply through economic hardship -- leaves one former spouse self-sufficient and the other, perhaps due to the onset of a debilitating illness, incapable of self-support?  Must the healthy spouse continue to support the sick spouse?  Or can he or she move on, free of obligation?   That is the question posed by this appeal.   It is a difficult issue.  It is also an important issue, given the trend in our society toward shorter marriages and successive relationships.

 

II.  Facts

 

2                                   Sharon Marie Bracklow, an accountant and data processor, began living with Frank Bracklow, a heavy duty mechanic, in 1985.  Four years later, in December 1989, they married.  Both Marie and Frank Bracklow had been married before.  She had two children, which she brought to the marriage.  The children were supported by both parties and thought of Mr. Bracklow as “Dad”.  The Bracklows functioned as a family.  They looked after each other.   Except for periods when she was too ill, Mrs. Bracklow looked after the house and the cooking, while Mr. Bracklow did the outside work, save for the flowers.  Both parties worked outside the home.

 

3                                   The Bracklows shared expenses.  For the first two years of their relationship, Mrs. Bracklow paid two-thirds of the household expenses because she was earning more money than Mr. Bracklow and her two children were living with them.  Mr. Bracklow complained that this arrangement made Mrs. Bracklow “too independent”.   So the couple decided to split the expenses equally.  It was “more of a marriage”.   This continued while Mrs. Bracklow was working.  When she became unemployed, Mr. Bracklow kept the family going.  They lived from pay cheque to pay cheque.

 


4                                   When the relationship started, Mrs. Bracklow held employment with full health and disability benefits.  Shortly after the couple started living together, she left this job to look for a management position.  Mr. Bracklow supported this decision. Mrs. Bracklow took a year off and collected unemployment insurance.   She went back to work in May 1988.  However, her health was not good.  She suffered from migraine headaches and found the overtime she was required to work very stressful.   Mr. Bracklow was not keen on her working overtime (according to Mrs. Bracklow) and was adamant for a time that she leave this position.  In December 1989, she did so.  From December 1989 to November 1990, Mrs. Bracklow worked at odd jobs such as pizza delivery, house cleaning and making chocolates for craft fairs.  In late 1990, she found a more permanent position with a firm, where she worked from November 1990 to October 1991.  In October 1991, Mrs. Bracklow was admitted to hospital, suffering from psychiatric problems.  She has not worked since. 

 

5                                   In December of 1992, the Bracklows separated.  They were divorced on February 28, 1995.  Mr. Bracklow has remarried and his new wife is employed.  They share expenses.  At the time of trial, Mr. Bracklow was earning $3,764 per month and his portion of the new household expenses was $2,284 per month.

 

6                                   When Mr. and Mrs. Bracklow separated, Mrs. Bracklow was ill and with no means of support.  Mr. Bracklow agreed to pay her $200 a month.  He stopped making the payments almost immediately.  Mrs. Bracklow obtained an interim order for spousal support of $275 per month, increasing to $400 per month on May 15, 1994. The trial judge terminated the support as of September 1, 1996.  This was upheld on appeal.  Mrs. Bracklow used a Canada Pension disability lump sum payment ($8,300) to purchase a vehicle and some furniture, and a pay-out of her pension from earlier employment ($11,650) to pay debts and living expenses.   She lives in subsidized housing and receives $787 monthly in disability benefits.

 


7                                   Mr. Bracklow knew when the relationship started that Mrs. Bracklow had health problems.  In the first year of the relationship she “got [to] the point where she would come home and just go to bed”.  “[T]hat carried on for quite a while.”  She had a hysterectomy in this period, which involved two months’ sick leave.  In 1989, she developed a migraine headache that lasted for seven months.  She started experiencing joint pain and trouble sleeping at night.  In 1991, she experienced acute psychiatric problems, involving a month’s hospitalization.  She was again in hospital from February to April 1992 and July to October 1994.  She continues to suffer from bipolar mood disorder, obsessive compulsive disorder, and fibromyalgia.  There was evidence that the fibromyalgia was aggravated by the stress of the marriage breakup.  Mrs. Bracklow is unlikely ever to work again.

 

III.  Statutory Provisions

 

8                                   Family Relations Act, R.S.B.C. 1996, c. 128

 

Obligation to support spouse

 

89 (1)  A spouse is responsible and liable for the support and maintenance of the other spouse having regard to the following:

 

(a)         the role of each spouse in their family;

 

(b)        an express or implied agreement between the spouses that one has the responsibility to support and maintain the other;

 

(c)         custodial obligations respecting a child;

 

(d)        the ability and capacity of, and the reasonable efforts made by, either or both spouses to support themselves;

 

(e)         economic circumstances.  [Emphasis added.]

 

(2)   Except as provided in subsection (1), a spouse or former spouse is required to be self sufficient in relation to the other spouse or former spouse.

 

Order for support and maintenance

 

93 . . .

 


(2)   If a spouse . . . will be living separate and apart from the spouse . . . against whom the application is made, the court may, as it considers appropriate, adjust the amounts of its order ... to take into account the needs, means, capacities and economic circumstances of each spouse . . . including the following:

 

(a)         the effect on the earning capacity of each spouse arising from responsibilities assumed by each spouse during cohabitation;

 

                                                                   . . .

 

(e)         the capacity and reasonable prospects of a spouse . . . obtaining an education or training.

 

                                                                    

 

Divorce Act, R.S.C., 1985. c. 3 (2nd Supp .)

 

 

15.2 (1)  [Spousal support order] A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.

 

                                         . . .

 

(4)  [Factors]  In making an order under subsection (1) . . ., the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including

 

(a)   the length of time the spouses cohabited;

 

(b)   the functions performed by each spouse during cohabitation; and

 

(c)   any order, agreement or arrangement relating to support of either spouse. 

 

                                         . . .

 

 

(6)  [Objectives of spousal support order]  An order made under subsection (1) . . . that provides for the support of a spouse should

 

(a)   recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

 

(b)      apportion between the spouses any financial consequences arising from the care of any child of the marriage . . .;

 

(c)   relieve any economic hardship of the spouses arising from the breakdown of the marriage; and

 


(d)    in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.  [Emphasis added.]

 

 

 

IV.  Judicial History

 

A.   British Columbia Supreme Court (1995), 13 R.F.L. (4th) 184

 

9                                   On the facts, the trial judge found that the relationship was not a long one.  He also found that no economic hardship befell Mrs. Bracklow as a consequence of the marriage or its breakdown.  Nor were her health problems due to the marriage, although the falling away of affection probably exacerbated them.   Thus, in his view, she was “in no different circumstances than she would have been in had they not married” (p. 185).  Mrs. Bracklow was a highly capable person, who brought emotional and physical illness to the relationship.  Although Mr. Bracklow was aware of her medical history, neither party was prepared for her complete incapacitation.  While Mrs. Bracklow had contributed more to monthly expenses in the first part of the cohabitation, she contributed little in its latter stages, and Mr. Bracklow had assumed the bulk of the family debts on the marriage breakdown. 

 

10                               On the law, the trial judge held that the marriage vow to support in sickness or in health carried no legal significance.  He took Moge v. Moge, [1992] 3 S.C.R. 813, to require a tort-based approach to the question of support -- compensation or support is ordered only where the marriage or its breakup caused economic disadvantage to one party.  That, in his opinion, had not occurred here.  The case differed from “traditional” cases in which the wife relinquished her career and financial security by assuming the child-rearing and domestic role in the family and thus impaired her ability to become self-supporting.  He found that there was no express or implied agreement between the parties that they were responsible for each other’s support.

 


11                               Applying these principles to the facts, the trial judge concluded that Mrs. Bracklow was not entitled to support from Mr. Bracklow.  However, he ordered the $400 per month payments, earlier ordered on an interim basis, to continue for 18 months, “a decision based upon the Defendant’s proposal not upon the necessity of law” (p. 190).

 

B.   British Columbia Court of Appeal (1997), 30 R.F.L. (4th) 313

 

12                               The Court of Appeal, per Proudfoot J.A., affirmed that Mr. Bracklow owed his wife no obligation of support.  The trial judge’s reference to tort principles was seen as directed to the need for a “causal connection” between the economic disadvantage and the marriage breakdown.   His findings of fact, including the disputed division of the family debts, should stand.  This was a “non-traditional” marriage, in which each party paid his or her own way.  The trial judge’s finding that the parties did not have an express or implied agreement that one would be responsible for the other’s support would not be disturbed.

 

V.  Issue

 

13                               Is a sick or disabled spouse entitled to spousal support when a marriage ends, and if so, when and how much?  More precisely, may a spouse have an obligation to support a former spouse over and above what is required to compensate the spouse for loss incurred as a result of the marriage and its breakdown (or to fulfill contractual support agreements)?  I would answer this question in the affirmative.

 

VI.  Analysis

 

14                               As did the courts below and the parties, I will discuss the issues of entitlement to and quantum of support separately.


 

A.  Entitlement to Support

 

15                               The lower courts implicitly assumed that, absent a contractual agreement for post-marital assistance, entitlement to support could only be founded on compensatory principles, i.e., reimbursement of the spouse for opportunities foregone or hardships accrued as a result of the marriage.  I conclude, however, that the law recognizes three conceptual grounds for entitlement to spousal support: (1) compensatory; (2) contractual; and (3) non-compensatory.  These three bases of support flow from the controlling statutory provisions and the relevant case law, and are more broadly animated by differing philosophies and theories of marriage and marital breakdown.

 

(1)  The Historical Perspective

 

16                               The support obligation in Canada for most of the country’s first century was governed by the common law and Quebec civil law, supplemented by a patchwork of legislative provisions aimed at alleviating its worst failings.  In general terms,  the law held that husbands were under a duty to support their wives and  provide for their necessaries during and (in the case of separation) after marriage.  The logic of support was simple.  Marriage gave the husband power and property and made the wife correspondingly dependent.   This dependence gave rise to a support obligation on the part of the husband toward the wife.

 


17                               As the twentieth century progressed, women came increasingly to be seen as equal and autonomous.  The old dependence model of support seemed out of step with the emerging conception of women as equal partners in the marriage endeavour.  The adoption of the federal Divorce Acts of 1968 and 1986 reflects that new perspective.  The 1986 Act formally added, as a legislative objective, spousal self-sufficiency, espoused by the courts since 1968.  In the 1970s and 1980s the legislatures of each province passed statutes radically changing the provincial support and property legislation.  The new legislation was animated by the view that the spouses were equal.  Marriage was an economic partnership to which each party contributed.    

 


18                               The new legislation, while changing much, did not entirely supplant the traditional obligations  to support.   Legal equality did not translate into actual or substantive equality, and in its absence, one spouse might still be obliged to support the other.  Accordingly, the Divorce Acts of 1968 and 1986 and  provincial family support and property legislation recognized that in many circumstances one spouse might still be required to provide support for the other upon marriage breakup.  The new philosophy of spousal equality brought to the fore the idea that parties’ agreements on support should influence their rights and obligations during the marriage and upon its breakup, as well as the idea that compensatory support should be awarded where it would be just to compensate a spouse for his or her contributions to the marriage or for sacrifices made or hardships suffered as a result of the marriage.  Contractual support obligations, while not new, were given new emphasis by statutory stipulations that the  courts take into account support agreements, express or implied, between the parties. The propriety of compensatory support was recognized by this Court in Moge, supra, as flowing from the 1986 Divorce Act .  While a few cases prior to Moge had acknowledged that support criteria extended beyond needs and capacity to pay, the reasons of L’Heureux-Dubé J. in Moge offered the first comprehensive articulation of the view that when a marriage ends, spouses are entitled  to be compensated for contributions to the marriage and for losses sustained as a consequence of the marriage.  The same reasons, however, made it clear that compensatory considerations were not the only basis for support.  Judges must exercise their discretion in light of  the objectives of spousal orders as set out in s. 15.2(6) , and after having considered all the factors set out in s. 15.2(4)  of the Divorce Act .  By directing that the judge consider factors like need and ability to pay (as explored below), the new Divorce Act  left in place the possibility of non-compensatory, non-contractual support.

 

(2)  Modern Marriages: Marriage and Marriage Breakdown

 

19                               In analysing the respective obligations of husbands and wives, it is critical to distinguish between the roles of the spouses during marriage and the different roles that are assumed upon marriage breakdown.

 

20                               To begin, when two spouses are married, they owe each other a mutual duty of support:  1986 Divorce Act .   Marriage, as this Court has said, is a joint endeavour: Moge, supra, at p. 870.  The default presumption of this socio-economic partnership is mutuality and interdependence.  This comports with the statutes and with the reasonable expectations of Canadian society.  Thus the Family Relations Act states: “A spouse is responsible and liable for the support and maintenance of the other spouse ...” (s. 89(1)).  Parties, of course (subject to the Act), may alter this expectation, either through explicit contracting (usually before the union is made with a prenuptial agreement), or through the unequivocal structuring of their daily affairs, to show disavowal of financial interweaving.  The starting presumption, however, is of mutual support.  We need not elevate to contractual status the marital vows of support “in sickness and health, till death do us part” to conclude that, absent indications to the contrary, marriages are generally premised on obligations and expectations of mutual and co-equal support.

 


21                               When a marriage breaks down, however, the situation changes.  The presumption of mutual support that existed during the marriage no longer applies.  Such a presumption would be incompatible with the diverse post-marital scenarios that may arise in modern society and the liberty many claim to start their lives anew after marriage breakdown.  This is reflected in the Divorce Act  and the provincial support statutes, which require the court to determine issues of support by reference to a variety of objectives and factors.

 

22                               The reason that a general presumption of post-marital support would be inappropriate is the presence in the latter half of our century of two “competing” theories of marriage and post-marital obligation: Carol J. Rogerson, “Spousal Support After Moge” (1996-97), 14 C.F.L.Q. 281; Carol J. Rogerson, “Judicial Interpretation of the Spousal and Child Support Provisions of the Divorce Act, 1985 (Part I)” (1991), 7 C.F.L.Q. 155.

 

23                               The first theory of marriage and post-marital obligation is the “basic social obligation” model, in which primary responsibility falls on the former spouse to provide for his or her ex-partner, rather than on the government.  This model is founded on the historical notion that marriage is a potentially permanent obligation (although it revises the archaic concept of the wife’s loss of identity with the voluntary secession of autonomy of two, co-equal actors as the basis for the ongoing duty).  The payment corollary of this theory has been referred to as the “income replacement model”, because the primary purpose of alimony payments, under the basic social obligation model, is to replace lost income that the spouse used to enjoy as a partner to the marriage union.  The advocates of this theory vary in degree of fidelity.  For example, some espouse permanent and indefinite support under this model.  Others argue that the goal should be not just to meet the dependent spouse’s post-marital needs, but to elevate him or her as closely as possible to the standard of living enjoyed during the marriage.  Yet others, like Rogerson, contend that the social obligation entitlement to spousal support need not translate into a permanent obligation. 

 


24                               At the other end of the spectrum lies what may be termed the “independent” model of marriage.  This model sees each party to a marriage as an autonomous actor who retains his or her economic independence throughout marriage.  The parties, while they “formally” commit to each other for life at the time of their vows, regard themselves as free agents in an enterprise that can terminate on the unilateral action of either party.  The theory of spousal support that complements this model is the “clean-break” theory, in which a former spouse, having compensated in a restitutionary sense any economic costs of the marriage on the other spouse, moves on with his or her life, possibly to enter into more such relationships.  Again, the proponents vary in their degree of allegiance.  Some prefer to characterize the clean-break model as encompassing “transitional support”, in addition to straight restitution, due to the general dislocation costs of unwinding the partnership.

 

25                               The independent, clean-break model of marriage provides the theoretical basis for compensatory spousal support.  The basic social obligation model equally undergirds what may be called “non-compensatory” support.  Both models of marriage and their corresponding theories of spousal support permit individual variation by contract, and hence provide a third basis for a legal entitlement to support.

 

26                               These two theories (and I recognize that I paint with broad strokes, creating these two anchors for sake of simplicity) represent markedly divergent philosophies, values, and legal principles.

 

27                            The mutual obligation model of marriage stresses the interdependence that marriage creates.  The clean-break model stresses the independence of each party to the union.  The problem with applying either model exclusively and stringently is that marriages may fit neither model (or both models).  Many modern marriages are a complex mix of interdependence and independence, and the myriad of legislative provisions and objectives discussed below speak varyingly to both models.  As Payne on Divorce (4th ed. 1996), at pp. 269-70, puts it, “the economic variables of marriage breakdown and divorce do not lend themselves to the application of any single objective”.


 

28                               The independent, clean-break model of marriage and marriage breakdown reflects a number of important policies.  First, it is based on the widely accepted modern value of the equality and independence of both spouses.  Second, it encourages rehabilitation and self-maximization of dependent spouses.  Third, through its acceptance of a clean break terminating support obligations, it recognizes the social reality of shorter marriages and successive relationships.  

 

29                               These values and policies support the compensatory theory of support (and, to some extent, the contractual theory as well).  The basic premise of contractual and compensatory support is that the parties are equal.  As such, when the relationship ends, the parties are entitled to what they would receive in the commercial world -- what the individuals contracted for and what they have lost due to the marriage, and its breakdown.  Insofar as marriage may have created dependencies, it is the duty of dependent spouses to strive to free themselves from their dependencies and to assume full self-sufficiency, thereby mitigating the need for continued compensation.

 


30                               The mutual obligation theory of marriage and divorce, by contrast, posits marriage as a union that creates interdependencies that cannot be easily unravelled.  These interdependencies in turn create expectations and obligations that the law recognizes and enforces.  While historically rooted in a concept of marriage that saw one spouse as powerful and the other as dependent, in its modern version the mutual obligation theory of marriage acknowledges the theoretical and legal independence of each spouse, but equally the interdependence of two co-equals.  It postulates each of the parties to the marriage agreeing, as independent individuals, to marriage and all that it entails -- including the potential obligation of mutual support.  The resultant loss of individual autonomy does not violate the premise of equality, because the autonomy is voluntarily ceded.   At the same time, the mutual obligation model recognizes that actual independence may be a different thing from theoretical independence, and that a mutual obligation of support may arise and continue absent contractual or compensatory indicators.

 

31                               The mutual obligation view of marriage also serves certain policy ends and social values.  First, it recognizes the reality that when people cohabit over a period of time in a family relationship, their affairs may become intermingled and impossible to disentangle neatly.  When this happens, it is not unfair to ask the partners to continue to support each other (although perhaps not indefinitely).  Second, it recognizes the artificiality of assuming that all separating couples can move cleanly from the mutual support status of marriage to the absolute independence status of single life, indicating the potential necessity to continue support, even after the marital “break”.   Finally, it places the primary burden of support for a needy partner who cannot attain post-marital self-sufficiency on the partners to the relationship, rather than on the state, recognizing the potential injustice of foisting a helpless former partner onto the public assistance rolls.

 


32                               Both the mutual obligation model and the independent, clean-break model represent important realities and address significant policy concerns and social values. The federal and provincial legislatures, through their respective statutes, have acknowledged both models.  Neither theory alone is capable of achieving a just law of spousal support.  The importance of the policy objectives served by both models is beyond dispute.  It is critical to recognize and encourage the self-sufficiency and independence of each spouse.  It is equally vital to recognize that divorced people may move on to other relationships and acquire new obligations which they may not be able to meet if they are obliged to maintain full financial burdens from previous relationships.  On the other hand, it is also important to recognize that sometimes the goals of actual independence are impeded by patterns of marital dependence, that too often self-sufficiency at the time of marriage termination is an impossible aspiration, and that marriage is an economic partnership that is built upon a premise (albeit rebuttable) of mutual support.  The real question in such cases is whether the state should automatically bear the costs of these realities, or whether the family, including former spouses, should be asked to contribute to the need, means permitting.  Some suggest it would be better if the state automatically picked up the costs of such cases: Rogerson, “Judicial Interpretation of the Spousal and Child Support Provisions of the Divorce Act, 1985 (Part I)”, supra, at p. 234,  n. 172.  However, as will be seen, Parliament and the legislatures have decreed otherwise by requiring courts to consider not only compensatory factors, but the “needs” and “means” of the parties.  It is not a question of either one model or the other.  It is rather a matter of applying the relevant factors and striking the balance that best achieves justice in the particular case before the court.

 

33                               With these theories and policy concerns of marriage and marriage breakdown in mind, I turn to the pertinent statutes.  They reveal the joint operation, in different provisions, of both legal paradigms, and hence the compensatory, non-compensatory, and contractual foundations for an entitlement to post-marital spousal support.

 

                   (3)  The Statutes

 


34                               The Divorce Act  and the provincial support statutes are intended to deal with the economic consequences of the marriage breakdown for both parties.  See, e.g., Family Law Act, R.S.O. 1990, c. F.3, preamble, which characterizes its purpose as “to provide in law for the orderly and equitable settlement of the affairs of the spouses upon the breakdown of the partnership”.  The statutes require a fair and equitable distribution of resources to alleviate these consequences, regardless of gender.  See C. Martin, “Unequal Shadows:  Negotiation Theory and Spousal Support Under Canadian Divorce Law” (1998), 56  U.T. Fac. L. Rev. 135, at p. 139 (identifying increased equity in distribution as a “primary objective” of the new Divorce Act ).  As this Court pointed out in Moge, supra, per L’Heureux-Dubé J., the Divorce Act  is premised on the doctrine of the equitable sharing of the economic consequences of the marriage and its breakdown.  It is not confined to one type of marriage or one type of support.

 

35                               Moge, supra, sets out the method to be followed in determining a support dispute.  The starting point is the objectives which the Divorce Act  stipulates the support order should serve:  (1) recognition of economic advantage or disadvantage arising from the marriage or its breakdown; (2) apportionment of the financial burden of child care; (3) relief of economic hardship arising from the breakdown of the marriage, and (4) promotion of the economic self-sufficiency of the spouses:  s. 15.2(6) .  No single objective is paramount; all must be borne in mind.  The objectives reflect the diverse dynamics of the many unique marital relationships.

 

36                               Against the background of these objectives the court must consider the factors set out in s. 15.2(4)  of the Divorce Act .  Generally, the court must look at the “condition, means, needs and other circumstances of each spouse”.  This balancing includes, but is not limited to, the length of cohabitation, the functions each spouse performed, and any order, agreement or arrangement relating to support.  Depending on the circumstances, some factors may loom larger than others.  In cases where the extent of the economic loss can be determined, compensatory factors may be paramount.  On the other hand, “in cases where it is not possible to determine the extent of the economic loss of a disadvantaged spouse . . . the court will consider need and standard of living as the primary criteria together with the ability to pay of the other party”:  Ross v. Ross (1995), 168  N.B.R. (2d) 147 (C.A.), at p. 156,  per Bastarache J.A. (as he then was).  There is no hard and fast rule.  The judge must look at all the factors in the light of the stipulated objectives of support, and exercise his or her discretion in a manner that equitably alleviates the adverse consequences of the marriage breakdown.

 


37                               The Divorce Act  and Family Relations Act, through their various provisions, accommodate both models of marriage and marriage breakdown outlined above.  While the law has evolved to accept compensation as an important basis of support and to encourage the self-sufficiency of each spouse when the marriage ends, where compensation is not indicated and self-sufficiency is not possible, a support obligation may nonetheless arise from the marriage relationship itself.  Turning to the specific provisions, the factors judges must consider in resolving support issues reveal the three different conceptual bases for spousal support obligations -- contractual, compensatory, and non-compensatory.  The judge must consider them all, and any or all of them may figure in the ultimate order, as may be appropriate in the circumstances of the case.

 

38                               The contractual or consensual basis for support finds its source in s. 89(1)(b) of the Family Relations Act, which counsels courts to “hav[e] regard to . . . (b) an express or implied agreement between the spouses that one has the responsibility to support and maintain the other”, and s. 15.2(4)  of the Divorce Act  (“In making an order under subsection (1) . . ., the court shall take into consideration . . . (c) any order, agreement or arrangement relating to support of either spouse”).  Consensual considerations may either create or negate an obligation to support, under appropriate circumstances.

 


39                               The compensatory basis for support finds its source in a number of factors mentioned in the statutes.  In the British Columbia Family Relations Act, these include s. 89(1)(a) and (d).   “[T]he role of each spouse in their family” embraces the contributions made by the spouses to the family for which compensation may be appropriate on the collapse of the marriage.  Similarly, “the ability and capacity of ... either or both spouses to support themselves” permits a court to examine whether spouses have foregone opportunities to develop the ability to support themselves because of the marriage, or have been rendered less able to support themselves by adverse effects of the marriage or the marriage breakdown.  “[C]ustodial obligations respecting a child” (Family Relations Act, s. 89(1)(c)) may relate to compensation.  While spousal support is distinct from child support, the need to care for children has  an impact on factors relevant to spousal support.  Under the Divorce Act , compensation arguments can be grounded  in the need to consider the “condition” of the spouse; the “means, needs and other circumstances” of the spouse, which may encompass lack of ability to support oneself due to foregoing career opportunities during the marriage; and “the functions performed by each spouse during cohabitation”, which may support the same argument.  In sum, these compensatory statutory provisions can be seen to embrace the independent, clean-break model of marriage and marriage breakdown.

 

40                               While the statutes contemplate an obligation of support based on the grounds of contract and compensation, they do not confine the obligation to these grounds.  The “ability and capacity of, and the reasonable efforts made by, either or both spouses to support themselves” (Family Relations Act, s. 89(1)(d)), suggests a concern with need that transcends compensation or contract.  Even if a spouse has foregone no career opportunities or has not otherwise been handicapped by the marriage, the court is required to consider that spouse’s actual ability to fend for himself or herself and the effort that has been made to do so, including efforts after the marriage breakdown.  Similarly, “economic circumstances” (s. 89(1)(e)) invites broad consideration of all factors relating to the parties’ financial positions, not just those related to compensation.  The same may be said for the broad injunction of the Divorce Act  that the court consider the “condition, means, needs and other circumstances of each spouse”.   To be sure, these factors may support arguments based on compensation for what happened during the marriage and its breakdown.  But they invite an inquiry that goes beyond compensation to the actual situation of the parties at the time of the application.  Thus, the basic social obligation model may equally be seen to occupy the statutory provisions.

 


41                               Section 15.2(6)  of the Divorce Act ,  which sets out the objectives of support orders, also speaks to these non-compensatory factors.  The first two objectives -- to recognize the economic consequences of the marriage or its breakdown and  to apportion between the spouses financial consequences of child care over and above child support payments -- are primarily related to compensation.  But the third and fourth objectives are difficult to confine to that goal.   “[E]conomic hardship . . . arising from the breakdown of the marriage” is capable of encompassing not only health or career disadvantages arising from the marriage breakdown properly the subject of compensation (perhaps more directly covered in s. 15.2(6) (a):  see Payne on Divorce, supra, at pp. 251-53), but the mere fact that a person who formerly enjoyed intra-spousal entitlement to support now finds herself or himself without it.  Looking only at compensation, one merely asks what loss the marriage or marriage breakup caused that would not have been suffered but for the marriage.  But even where loss in this sense cannot be established, the breakup may cause economic hardship in a larger, non-compensatory sense.  Such an interpretation supports the independent inclusion of s. 15.2(6) (c) as a separate consideration from s. 15.2(6) (a).  Thus, Rogerson sees s. 15.2(6) (c), “the principle of compensation for the economic disadvantages of the marriage breakdown as distinct from the disadvantages of the marriage”, as an explicit recognition of  “non-compensatory” support  (“Spousal Support After Moge”, supra, at pp. 371-72 (emphasis in original)).

 

42                               Similarly, the fourth objective of s. 15.2(6)  of the Divorce Act  -- to promote economic self-sufficiency -- may or may not be tied to compensation for disadvantages caused by the marriage or its breakup.  A spouse’s lack of self-sufficiency may be related to foregoing career and educational opportunities because of the marriage.  But it may also arise from completely different sources, like the disappearance of the kind of work the spouse was trained to do (a career shift having nothing to do with the marriage or its breakdown) or, as in this case, ill-health.   

 


43                               In summary, nothing in the Family Relations Act or the Divorce Act  suggests that the only foundations for spousal support are compensatory.  Indeed, I find it difficult to confine the words of the statutes to this model.  It is true that in 1986 the Divorce Act  was amended to place greater emphasis on compensation.  This represented a shift away “to some degree” from the “means and needs” approach of the 1968 Act:  Payne on Divorce, supra, at p. 267.  But while the focus of the Act may have shifted or broadened, it retains the older idea that spouses may have an obligation to meet or contribute to the needs of their former partners where they have the capacity to pay, even in the absence of a contractual or compensatory foundation for the obligation.  Need alone may be enough.  More broadly, the legislation can be seen as a sensitive compromise of the two competing philosophies of marriage, marriage breakdown, and spousal support.

 

(4)  The Case Law

 

44                               Turning to the jurisprudence, Mr. Bracklow cites L’Heureux-Dubé J.’s statement in Moge, supra, that “marriage per se does not automatically entitle a spouse to support” (p. 864).  That is true.  To hold otherwise would swing the pendulum too far back and completely ignore the independent, clean-break model of marriage.  But, in certain circumstances, marriage may give rise to an obligation.  It is not the bare fact of marriage, so much as the relationship that is established and the expectations that may reasonably flow from it that give rise to the obligation of support under the statutes.  This Court in Moge, per L’Heureux-Dubé J., emphasized that the court must consider all the objectives of support and all the factors relating to its award.  These include non-compensatory factors, like need and means.  Indeed, L’Heureux-Dubé J. expressly alluded to the propriety of non-compensatory support in Moge.  She held that although the 1986 Divorce Act  shifted the focus of support toward self-sufficiency and compensation, it did not eliminate the traditional consideration of  “means and needs”.  Although Moge was primarily concerned with a claim for compensatory support, L’Heureux-Dubé J. noted that in other cases, like those of sick or disabled spouses, a support obligation might well lie even in the absence of a compensatory underpinning.  She pointed out that while some of the provisions of the Divorce Act  are compensatory in character,  “[they] may not be characterized as exclusively compensatory” (p. 865).  She continued:


 

 

These latter paragraphs may embrace the notion that the primary burden of spousal support should fall on family members not the state. In my view, an equitable sharing of the economic consequences of divorce does not exclude other considerations, particularly when dealing with sick or disabled spouses.  While the losses or disadvantages flowing from the marriage in such cases may seem minimal ...,  the effect of its breakdown will not, and support will still be in order in most cases. [First emphasis in original; second emphasis added.]

 

  

45                               L’Heureux-Dubé J. (at p. 845) cited with approval Proudfoot J.A.’s suggestion in Story v. Story (1989), 23 R.F.L. (3d) 225 (B.C.C.A.), at p. 245, that in cases where self-sufficiency is impossible, there may be a support obligation flowing “from the marriage relationship and the expectations the parties had when they married” (emphasis added).  In concurring reasons in Moge, I also emphasized that while some of the statutory factors permit compensation to be considered, this is not the sole focus of the legislation.   “Neither a ‘compensation model’ nor a ‘self-sufficiency model’ captures the full content of [s. 15.2(6)  of the Divorce Act ], though both may be relevant to the judge’s decision” (p. 879).

 

46                                      Following Moge’s broad view of causation in compensatory support and the concomitant acceptance of the availability of non-compensatory support, courts have shown increasing willingness to order support for ill and disabled spouses.  Sometimes they have done this as a “transition” to self-sufficiency: Parish v. Parish (1993), 46 R.F.L. (3d) 117 (Ont. Ct. (Gen. Div.)).   But more often, they have frankly stated that the obligation flows from the marriage relationship itself.  Collecting cases, Rogerson explains in “Spousal Support After Moge”, supra, at p. 378 (footnotes omitted):

 


The [more dominant] approach, ... particularly in cases of earning capacity permanently limited by age, illness or disability, and the one generally supported by the developing Court of Appeal jurisprudence, has been to award continuing support without regard to the source of the post-divorce need.  On this approach, which I earlier referred to as the “basic social obligation” approach, causal connection arguments have been rejected not only in determining entitlement to support, but also in assessing the extent of the obligation.  The message coming from the cases adopting this approach appears to be that one takes one’s spouse as one finds him or her, subject to all his or her, weaknesses and limitations with respect to income-earning capacity; and a spouse with higher earning capacity has a basic obligation to make continuing provision for a spouse who is unable to become self-sufficient at the end of the marriage.  One is simply not allowed to abandon a spouse to destitution at the end of a marriage if one has financial resources which might assist in relieving the other spouse’s financial circumstances.  [Emphasis added.]

 

47                               Rogerson concludes that “the non-compensatory principle  . . .  has come to play . . . a large role in the subsequent case law, providing in many cases a very generous basis for support” (p. 384): see, e.g., Ashworth v. Ashworth (1995), 15 R.F.L. (4th) 379 (Ont. Ct. (Gen. Div.)) (non-compensatory permanent support ordered for disabled spouse who, on the judge’s findings of fact, benefited from the marriage, as opposed to needing any compensation).  “The current approach is typically justified by reference, first, to Moge’s rejection of the applicability of the causal connection test, and second, to the fact that the spouse who is ill suffers disadvantage from the breakdown of the marriage and the loss of financial support from the other spouse” (Rogerson, “Spousal Support After Moge”, supra, at pp. 378-79 (emphasis in original)).

 

48                               To permit the award of support to a spouse disabled by illness is but to acknowledge the goal of equitably dealing with the economic consequences of marital breakdown that this Court in Moge, supra, recognized as lying at the heart of the Divorce Act .  It also may well accord, in my belief, with society’s sense of what is just.   The Report of the Scottish Law Commission, Family Law:  Report on Aliment and Financial Provision (1981), at pp. 111-12, a thoughtful analysis of the rationale and policy considerations of spousal support and illness, states:

 

Financial provision on divorce is not . . . simply a matter of abstract principle.  It is essential that any system should be acceptable to public opinion and it is clear from the comments we have received that many people would find it hard to accept a system which cut off, say, an elderly or disabled spouse with no more than a three-year allowance after divorce, no matter how wealthy the other party might be.


Divorce ends the marriage.  Yet in some circumstances the law may require that a healthy party continue to support a disabled party, absent contractual or compensatory entitlement.  Justice and considerations of fairness may demand no less.

 

49                               In summary, the statutes and the case law suggest three conceptual bases for entitlement to spousal support: (1) compensatory, (2) contractual, and (3) non-compensatory.   Marriage, as this Court held in Moge (at p. 870), is a “joint endeavour”, a socio-economic partnership.  That is the starting position.  Support agreements are important (although not necessarily decisive), and so is the idea that spouses should be compensated on marriage breakdown for losses and hardships caused by the marriage.  Indeed, a review of cases suggests that in most circumstances compensation now serves as the main reason for support.  However, contract and compensation are not the only sources of a support obligation.  The obligation may alternatively arise out of the marriage relationship itself.  Where a spouse achieves economic self-sufficiency on the basis of his or her own efforts, or on an award of compensatory support, the obligation founded on the marriage relationship itself lies dormant.  But where need is established that is not met on a compensatory or contractual basis, the fundamental marital obligation may play a vital role.  Absent negating factors, it is available, in appropriate circumstances, to provide just support.

 

B.  Quantum of the Award

 


50                               The parties segregate entitlement and quantum for purposes of analysis in their submissions on how the Court should exercise its discretion.  While I am content to deal with the case in this manner, it must be emphasized that the same factors that go to entitlement have an impact on quantum.  In terms of the underlying theories, there is no strong distinction.  The real issue is what support, if any, should be awarded in the situation before the judge on the factors set out in the statutes.  For practical purposes, however, it may be useful to proceed by establishing entitlement first and then effecting necessary adjustments through quantum.  As Rogerson notes, “What is emerging as the dominant approach offers a very broad basis of entitlement, with quantum operating as the only obvious limitation” (“Spousal Support After Moge”, supra, at p. 383 (footnotes omitted)), going on to note that “[i]n most of the cases, the amounts awarded to ill or disabled spouses provide only a very modest or basic standard of living, and do not result in anything approaching equalization of income or even the marital standard of living”.

 

51                                On quantum (which refers both to the amount of support payments and their duration), both parties advance different “rules” for calculation.  Mrs. Bracklow segregates the amount of the monthly payments and their duration.  She argues that since the basis of support is her “need”, that “need” determines the (minimum) amount of the monthly support payment to which she is entitled.  The only issue, in her submission, is of duration -- how long should Mr. Bracklow continue to meet that need?  Her answer is that he must continue as long as her need persists, on the ground there is no principled reason to terminate non-compensatory support while need persists. 

 

52                               Mr. Bracklow, for his part, identifies length of the marital relationship as the critical factor in determining the amount of support.  He sees the length of the marital relationship as a proxy for interdependency (and hence the moral obligation of non-compensatory support), relying on the comment in Moge that “[a]s marriage should be regarded as a joint endeavour, the longer the relationship endures, the closer the economic union, the greater will be the presumptive claim to equal standards of living upon its dissolution” (p. 870).

 


53                               Both these arguments miss the mark in that they fix on one factor to the exclusion of others.  The short answer to Mrs. Bracklow’s argument is that need is but one of a number of factors that the judge must consider.  Similarly, the short answer to Mr. Bracklow’s contention is that the length of the marital relationship is only one of a number of factors that may be relevant.  While some factors may be more important than others in particular cases, the judge cannot proceed at the outset by fixing on only one variable.  The quantum awarded, in the sense of both amount and duration, will vary with the circumstances and the practical and policy considerations affecting particular cases.  Limited means of the supporting spouse may dictate a reduction.  So may obligations arising from new relationships in so far as they have an impact on means.  Factors within the marriage itself may affect the quantum of a non-compensatory support obligation.  For example, it may be difficult to make a case for a full obligation and expectation of mutual support in a very short marriage.  (Section 15.2(4) (a) of the Divorce Act  requires the court to consider the length of time the parties cohabited.)  Finally, subject to judicial discretion, the parties by contract or conduct may enhance, diminish or negate the obligation of mutual support.  To repeat, it is not the act of saying “I do”, but the marital relationship between the parties that may generate the obligation of non-compensatory support pursuant to the Act.  It follows that diverse aspects of that marital relationship may be relevant to the quantum of such support.   As stated in Moge, “[a]t the end of the day ..., courts have an overriding discretion and the exercise of such discretion will depend on the particular facts of each case, having regard to the factors and objectives designated in the Act” (p. 866).

 


54                               Fixing on one factor to the exclusion of others leads Mrs. Bracklow to an artificial distinction between amount and duration.   The two interrelate: a modest support order of indefinite duration could be collapsed into a more substantial lump-sum payment. It also leads her to the false premise that if need is the basis of the entitlement to the support award, then the quantum of the award must meet the total amount of the need.  It does not follow from the fact that need serves as the predicate for support that the quantum of the support must always equal the amount of the need.  Nothing in either the Family Relations Act or the Divorce Act  forecloses an order for support of a portion of the claimant’s need, whether viewed in terms of periodic amount or duration.  Need is but one factor to be considered.  This is consistent with the modern recognition, captured by the statutes, of the variety of marital relationships in modern society.  A spouse who becomes disabled toward the end of a very short marriage may well be entitled to support by virtue of her need, but it may be unfair, under the circumstances, to order the full payment of that need by the supporting spouse for the indefinite future.

 

55                               Mr. Bracklow’s fixation on the length of the marital relationship leads to other difficulties.  He elevates this Court’s observation in Moge about general expectations in long-term marriages to an immutable rule constraining the factors applicable to determining quantum of support.  And he introduces “morality” into the calculation of quantum.   This is unnecessary, because the statutes already state what the judge should consider.  It is also unhelpful, because it does not in the end explain why the length of the marital relationship should serve as the sole “moral”determinant of support, to the exclusion of need and other factors.  The flexible mandate of the statutes belies such rigidity.

 

56                               Mr. Bracklow makes a final policy argument. In an age of multiple marriages, he asserts, the law should permit closure on relationships so parties can move on.  Why, he asks, should a young person whose marriage lasts less than a year be fixed with a lifelong obligation of support?  When can a former spouse finally move on, knowing that he or she cannot be drawn back into the past by an unexpected application for support?

 


57                               Again the answer is that under the statutes, the desirability of freedom to move on to new relationships is merely one of several objectives that might guide the judge.  Since all the objectives must be balanced, it often will not be possible to satisfy one absolutely.  The respondent in effect seeks a judicially created “statute of limitations” on marriage.  The Court has no power to impose such a limitation, nor should it.  It would inject a rigidity into the system that Parliament and the legislatures have rejected.  Marriage, while it may not prove to be “till death do us part”, is a serious commitment not to be undertaken lightly.  It involves the potential for lifelong obligation.  There are no magical cut-off dates.

 

VII.  Application

 

58                               The trial judge found that this was a modern marriage of two independent people; that the parties did not confirm expressly or by conduct that they owed each other an obligation of support; and that Mrs. Bracklow had suffered no disadvantage as a result of the marriage or its breakdown.  There are two ways of interpreting these findings.  The first is that the judge held that Mrs. Bracklow was entitled to neither contractual nor compensatory post-marital support.  This fails to address the possibility of non-compensatory entitlement to support.  Alternatively, the trial judge may be read as holding that because Mr. and Mrs. Bracklow had no express or implied agreement for intra-marital support, no hardship of any kind was experienced by Mrs. Bracklow on divorce, as she would have been no better off had they stayed married.  To say this, however, is to deny the presumption of intra-marital support that may fairly be imputed to married couples, absent contrary indications.  The trial judge -- by holding that absent affirmative, proactive indications, the Bracklows shared no mutual support expectation during their marriage -- turned the presumption on its head.  This belies the reality that it is artificial to expect spousal couples to expressly “confirm” their mutual obligations and expectations. 

 

59                               Refocusing the facts of this case through the correct juridical lens suggests that while the early years of the Bracklows’ union might indicate the atypical partnership of strict independence (rebutting the presumption of intra-marital mutual interdependency), by the end the Bracklows had established a more interdependent  relationship.  In addition to adjusting their expenses to a more even ratio, it is evident that Mr. Bracklow covered Mrs. Bracklow’s needs in the early stages of her illness. Accordingly, it follows that divorce did in fact render Mrs. Bracklow in a state of economic hardship, as contemplated by s. 15.2(6) (c) of the Divorce Act .


 

60                               Bearing in mind the statutory objectives of support and balancing the relevant factors, I conclude that Mrs. Bracklow is eligible for support based on the length of cohabitation, the hardship marriage breakdown imposed on her, her palpable need, and Mr. Bracklow’s financial ability to pay.  While the combined cohabitation and marriage of seven years were not long, neither were they (by today’s standards) very short.  Mrs. Bracklow contributed, when possible, as a self-sufficient member of the family, at times shouldering the brunt of the financial obligations.  These factors establish that it would be unjust and contrary to the objectives of the statutes for Mrs. Bracklow to be cast aside as ineligible for support, and for Mr. Bracklow to assume none of the state’s burden to care for his ex-wife.

 

61                               I leave the determination of the quantum of support to the trial judge, who is in a better position to address the facts of this case than our appellate tribunal.  My only comment on the issue is to reiterate that all the relevant statutory factors, including the length of the marital relationship and the relative independence of the parties throughout that marital relationship, must be considered, together with the amount of support Mr. Bracklow has already paid to Mrs. Bracklow.  I therefore do not exclude the possibility that no further support will be required, i.e., that Mr. Bracklow’s contributions to date have discharged the just and appropriate quantum. Absent settlement between the parties, these issues are for the trial judge to resolve.

 

VIII.  Disposition

 

62                               I would allow the appeal, set aside the judgment of the Court of Appeal, and remit the matter to the trial judge for assessment in conformity with these reasons of the quantum of the award on the basis that Mrs. Bracklow is legally eligible for post-marital support.

 

63                               The appellant will have her costs throughout.


 

Appeal allowed with costs.

 

Solicitors for the appellant:  Kendall, Penty & Company, Kelowna, B.C.

 

Solicitors for the respondent:  McKitrick Gemmill McLeod, Vancouver; Baumgartel Gould, New Westminster.

 

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