Nov 29, 2014

Facts

The parties were married in the mid-50’s in Poland and moved to Canada in 1960. They separated in 1973 and divorced in 1980. The wife has a grade seven education and no special skills or training. During the marriage, she cared for the house and their three children, and except for a brief period, worked six hours per day in the evenings cleaning offices. After the separation, she was awarded $150 per month spousal and child support and continued to work cleaning offices. The husband remarried in 1984 and continued to pay support to his former wife. She was laid off in 1987 and as a result of an application to vary, her spousal and child support was increased to $400. She was later able to secure part-time and intermittent cleaning work. In 1989, the husband was granted an order terminating support.

Legal Issues

Is the wife entitled to ongoing support for an indefinite period?

Holding

Yes.

Ratio

“Continuing support is in order in this case since the four objectives set out in s. 17(7) are met: (1) the wife has sustained a substantial economic disadvantage “from the marriage or its break-down” (s. 17(7)(a)); (2) the wife’s long-term responsibility for the upbringing of the children of the marriage after the spousal separation in 1973 has had an impact on her ability to earn an income (s. 17(7)(b)); (3) the wife continues to suffer economic hardship as a result of the “breakdown of her marriage” (s. 17(7)(c)); and (4) the wife has failed to become economically self-sufficient notwithstanding her conscientious efforts (s. 17(7)(d)).

Comments

·“Under the 1985 Divorce Act, the “means and needs” test is no longer the exclusive criterion for support. All four of the objectives defined in ss. 15(7) and 17(7) of the Act must be taken into account when spousal support is sought to be varied. No single objective is paramount.”

·“The support provisions of the 1985 Divorce Act are intended to deal with the economic consequences, for both parties, of the marriage or its breakdown. What the Act requires is a fair and equitable distribution of resources to alleviate these consequences regardless of gender.”

·“Studies indicate that women have tended to suffer economic disadvantages an hardships from marriage or its breakdown because of the traditional division of labour within that institution. The Act now recognizes that work within the home has undeniable value and transforms the notion of equality from the rhetorical status to which it was relegated under a deemed self-sufficiency model to a substantive imperative.”

·“The promotion of self-sufficiency remains relevant, but it does not deserve unwarranted pre-eminence. While spouses would still have an obligation after the marriage breakdown to contribute to their won support in a manner commensurate with their abilities, the ultimate goal is to alleviate the disadvantaged spouse’s economic losses as completely as possible, taking into account all the circumstances of the parties, including the advantages conferred on the other spouse during the marriage.”