I recently had the pleasure of appearing in front of the Supreme Court of Canada in the infamous spousal support and spousal misconduct decision of Leskun. That case involved the principles to be applied to deciding the quantum and duration of spousal support in British Columbia and Canada, and in what circumstances it is appropriate to review spousal support.
The recent decision of Enemark provides a nice review of what the court should look at when it orders a review of support. Generally speaking, these reviews are most useful in cases where a judge either does not believe that the spouse has a guaranteed path to economic self-sufficiency, or in those where the paying spouse may be facing some kind of financial uncertainty.
The case also provides a nice summary for the layperson of how the concept of spousal support is applied in Canada. In simple terms, the court can look at what one partner gave up economically during the marriage as result of his or her role. Even if said partner did not give up anything economically during the marriage, the court can use a “Robin Hood” approach when making its decision by looking at both his or her needs and lower income (in comparison to that of a spouse with a much higher income).
[42] In the case at bar my original order was predicated on the compensatory and non-compensatory support principles set out in s. 15.2(6) of the Divorce Act. With respect to compensatory and non-compensatory grounds for spousal support, Madam Justice Rowles, in the recent decision of Chutter v. Chutter, 2008 BCCA 507, said this at para. 49:
[49] Although the compensatory and non-compensatory grounds for spousal support are animated by different models of marriage, the case authorities hold that there is no single basis of support or objective under the Divorce Act that supersedes the other, and that many claims involve aspects of both compensatory and non-compensatory principles (Bracklow, at para. 27; Moge, at 852). A court is not called upon to decide on one basis for support to the exclusion of the other but rather to [apply] the relevant factors and strik[e] the balance that best achieves justice in the particular case‚ (Bracklow, at para. 32). Moreover, the doctrine of equitable sharing is the overarching principle that must be borne in mind (Moge, at 864).
[43] In the Chutter decision, Madam Justice Rowles went on to consider, in detail, compensatory and non-compensatory support commencing at para. 50 through to 61. It is my view that these most recent statements of the law are apropos to the case at bar, and I will set them out in their entirety:
[50] Compensatory support is intended to provide redress to the recipient spouse for economic disadvantage arising from the marriage or the conferral of an economic advantage upon the other spouse. The compensatory support principles are rooted in the independent” model of marriage, in which each spouse is seen to retain economic autonomy in the union, and is entitled to receive compensation for losses caused by the marriage or breakup of the marriage which would not have been suffered otherwise (Bracklow,at paras. 24, 41). The compensatory basis for relief recognizes that sacrifices made by a recipient spouse in assuming primary childcare and household responsibilities often result in a lower earning potential and fewer future prospects of financial success (Moge, at 861-863; Bracklow, at para. 39). In Moge, the Supreme Court of Canada observed, at 867-868:
The most significant economic consequence of marriage or marriage breakdown, however, usually arises from the birth of children. This generally requires that the wife cut back on her paid labour force participation in order to care for the children, an arrangement which jeopardizes her ability to ensure her own income security and independent economic well-being. In such situations, spousal support may be a way to compensate such economic disadvantage.
[51] In addition to acknowledging economic disadvantages suffered by a spouse as a consequence of the marriage or its breakdown, compensatory spousal support may also address economic advantages enjoyed by the other partner as a result of the recipient spouse’s efforts. As noted in Mogeat 864, the doctrine of equitable sharing of the economic consequences of marriage and marriage breakdown underlying compensatory support seeks to recognize and account for both the economic disadvantages incurred by the spouse who makes such sacrifices and the economic advantages conferred upon the other
spouse” (emphasis added).
[52] The Court in Moge discussed the relevance of the parties’ standards of living in the context of compensatory support at 870:
Although the doctrine of spousal support which focuses on equitable sharing does not guarantee to either party the standard of living enjoyed during the marriage, this standard is far from irrelevant to support entitlement. As 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.
[Emphasis added, internal citations omitted.]
[53] In W. v. W., 2005 BCSC 1010, 19 R.F.L. (6th) 453, a frequently cited decision in trial decisions in British Columbia, Justice Martinson made the following helpful observation about the interpretation in this province of the emphasized portion in Moge:
[11] In British Columbia this comment in Moge has been interpreted to mean that in long marriages the result will likely be a rough equivalency of standards of living. Doing so recognizes that the longer a marriage lasts, the more intertwined the economic and non-economic lives of the spouses become.
[12] Throughout the marriage, each spouse makes decisions that accommodate the economic and non-economic needs of the other. The decisions include the way in which child care and other family responsibilities will be handled and the way careers will develop. These decisions can have a significant impact upon the income earning ability of each at the time of separation. Yet it is not easy to determine exactly the relationship between these decisions and the consequent benefits and detriments to each spouse. The rough equivalency of standard of living approach has operated as a workable substitute to assess compensatory claims. See for example, Dithurbide v. Dithurbide (1996), 23 R.F.L. (4th) 127 (B.C.S.C.); Rattenbury v. Rattenbury, 2000 BCSC 722; Rinfret v. Rinfret, [1999] B.C.J. No. 2945 (S.C.); O’Neill v. Wolfe (2001), 14 R.F.L. (5th) 155 (B.C.S.C.); Walton v. Walton, [1997] B.C.J. No. 1089 (S.C.); Ulrich v. Ulrich, 2003 BCSC 192; and Carr v. Carr (1993), 46 R.F.L. (3d) 326 (B.C.S.C.).
