Bracklow v. Bracklow

Bracklow v. Bracklow
Collection
Supreme Court Judgments
Date
1999-03-25
Report
[1999] 1 SCR 420
Case number
26178
Judges
Lamer, Antonio; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil
On appeal from
British Columbia
Subjects
Family law
Notes
SCC Case Information: 26178
Decision Content
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 nonethe