It’s All in the Family Part 2

August 23, 2011

We’ve talked about how relationships of the past can create ties that last into the future.   Another example of this is spousal support.  In BC, after a legal separation, the party wanting spousal support has 2 years to make their claim.  Our system in Canada also says that payments are to be made regardless of the cause for the divorce.

When dealing with spousal support, the Department of Justice of Canada states that the dissolved marriages are divided into 2 categories: and those with children and those without.

If a couple did not have children, the length of the marriage and the difference in gross income are considered.

If a couple had children, the issue gets more complex.  If the child lives with the former partner who receives child support, part of the spousal support may include a portion to make sure that the conditions and standard of living are appropriate for that child. They look at how old the child is at the time, which helps to determine the length of time the child will be with that parent. The amount of child support being paid is also considered.  

If the partners had been married a long time, the courts will try to provide a standard of living similar to what was shared during the marriage.  Emphasis is placed on encouraging the recipient to do what they can to become self sufficient.  However, if the recipient was unemployed for a long period of time during the marriage, self sufficiency may not be possible.

There were 2 court cases that shaped the way spousal support claims are handled today.  The first was Moge vs. Moge in 1992, followed by Bracklow vs. Brackow in 1999.

In Moge vs. Moge, the husband was the primary income earner for the family. The wife stayed home with their three children and worked evenings cleaning offices. Upon their separation after a 16 year marriage, she received both child support and spousal support.  Once the children were all grown and moved out, the husband appealed to terminate support, and payments were stopped.  However, the wife appealed the court decision, claiming that due to her time given to her family, she would never be able to achieve the same standard of living that she had with her former husband.  The Supreme Court agreed, and she was awarded a continuing spousal support payment.

However, in Bracklow vs. Bracklow, the partners were together for a total of 7 years, and 3 of those were as a married couple.  She suffered from an illness and became disabled though the illness was not related to, or as a result of the marriage.  During the first 2 years of their relationship, she had paid most of the bills. After that, they split the bills until she became unemployed and he became the sole provider for the family.    Due to her illness she was unable to work, and began to receive a disability pension as she was not expected to be able to work again. As a result of the pension, it was determined that she could sustain a very modest existence.  However, she continued to pursue an equalization payment even though she was receiving a small temporary payment amount from him during the court proceedings.  A trial judge decided that larger payment should continue for 2 years after the appeal.  The Court of Appeal upheld the decision. 

This decision has since raised a series of questions with regards to spousal support.  Spousal support had previously been given to keep the spouse out of financial hardship, as a direct result of their contribution to the marriage or family.  If after a short marriage, a partner wants a support payment, how much should they receive and for how long?  If they are no longer able to become self sufficient does that become the responsibility of the previous marriage partner?  This case seems to have opened the door as precedent for more like it.  It is interesting to see how the interpretation of the law develops with the cases that are presented.  However, the harsh reality of lengthy battles around divorce and separation seem to caution us towards the penning of a solid prenuptial agreement.  As they say… if you can’t talk about it when things are going well….

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