TILL DEATH DO US PART?
Prepared by: Ricardo Alcolado Perez
Although spousal support is governed by the Divorce Act ¹ and by provincial and territorial laws, this area is highly intricate and leaves an immense room for judicial discretion based on the peculiarities of each case.
In Moge v. Moge ², the Supreme Court of Canada recognized the importance of the presiding judge’s discretion and the difficulty of setting down principles that would guide every case. At para. 77, Justice McLachlin stated:
The four objectives set out in the Act can be viewed as an attempt to achieve an equitable sharing of the economic consequences of marriage or marriage breakdown. At the end of the day however, 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.
As a result of this excessive discretion there has been a considerable inconsistency in spousal support awards, leading to a large degree of uncertainty and unpredictability. Entitlement, quantum, and duration are the most significant aspects in spousal support cases. There is a significant interconnection between these three aspects. In this paper, I will focus my analysis on the duration aspect of spousal support obligations.
Arguably, the duration of spousal support obligations is as important as the quantum. Determining the fair and reasonable time frame for the supported ex-spouse to achieve selfsufficiency is a task that can be as difficult as it is controversial. This research paper hopes to enhance the reader’s understanding of the evolvement of this particular aspect of the spousal support, and its interpretation at the present time.
This paper will examine what the legislative framework, more specifically the Divorce Act ³, provides regarding duration of spousal support. Subsequently I will summarize the evolution of spousal support parting from the “clean-break/self-sufficiency model” to the “compensatory model” and “non-compensatory model” of spousal support determination, as well as examine how these models have been applied by the Supreme Court of Canada in Moge v. Moge 4 and in Bracklow v. Bracklow 5, and by the Ontario Court of Appeal in Fisher v. Fisher 6 and the Alberta Court of Appeal in Shields v. Shields 7.
I will review the role played by the Spousal Support Advisory Guidelines 8 (“Advisory Guidelines”) and the influence they have had on judges and other practitioners working in the
Finally, I will compare the treatment that duration of spousal support has received in Canada with other jurisdictions.
The Legislative Framework
The determination of duration of spousal support has its starting point in the Divorce Act. As noted above there are also provincial and territorial statutory regimes that govern spousal support but in practice there is much overlap between them and the Divorce Act. Provincial and territorial laws regarding spousal support will be applied as long as a court application is presented before the divorce is granted; otherwise, the claim must be made under the Divorce Act.
According with the Divorce Act, the amount and duration of spousal support shall be determined taking into consideration the condition, means, needs and other circumstances of each spouse.
Section 15 of the Divorce Act provides:
- 2(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including
- the length of time the spouses cohabited;
- the functions performed by each spouse during cohabitation; and
- any order, agreement or arrangement relating to support of either spouse.
- In making an order under subsection (1) or an interim order under subsection (2), the court shall not take into consideration any misconduct of a spouse in relation to the marriage.
- An order made under subsection (1) or an interim order made under subsection (2) that provides for the support of a spouse should
- recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
- apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
- relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
- in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
Self- sufficiency is a central objective in the Divorce Act and it is particularly connected to the duration aspect of spousal support. This objective has been adopted by the courts since 1968 and was formally added in the 1985 Divorce Act 9. In interpreting this objective the Supreme Court of Canada in Moge, stated at para. 106:
- Finally, the judge’s order must “in so far as practicable” promote the economic self-sufficiency of each former spouse within a reasonable period of time. This subhead raises the question of the degree to which ex-spouses should be expected to become self-sufficient, a contested point on this appeal. Several things about this subhead should be noted. First, unlike the first three factors, this one is stated in qualified language, beginning with the conditional phrase, “in so far as practicable”. Second, economic self-sufficiency is not to be required or assumed; the verb used is “promote”. By this language Parliament recognizes that actual self-sufficiency, while desirable, may not be possible or “practicable”.
Courts have the power to vary spousal support orders when has been a change in the condition, means, needs or other circumstances of either former spouse. Subsection 17(4) of the Divorce Act
17.—(4) Factors for spousal support order—Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of either former spouse (or of any child of the marriage for whom support is or was sought occurring) since the making of the spousal support order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take that change into consideration.
Evolution of the Duration Aspect of Spousal Support
Prior to 1968, the granting of a divorce was associated to the commission of a “matrimonial offence”. Marriage was seen as a life-long obligation and so too, therefore, the obligation of spousal support. The 1968 Divorce Act consolidated several regimes into a single code and suppressed the concept of matrimonial fault 10. Subsequently, the “clean-break” model emerged to theoretically justify the spousal support obligation, after the evolution of the divorce from the fault to the non-fault basis divorce, where no marital misconduct is considered by the court in determining spousal support or making arrangements in regards to the children 11.
This model is based on the equality and independence of both spouses and encourages the achievement of economic self-sufficiency and self- reliance of the dependent spouse by providing spousal support for a limited transitional period of time, to facilitate the return and integration of the dependant spouse into the work force and thus satisfy her own needs. The purpose is to terminate all relations between the two spouses, including the economic interdependency. In Pelech12, the Supreme Court of Canada stated at paras. 89-90:
- Inherent in the nature of divorce is the element of finality. Spouses wish to put an end to their relationship and Parliament has provided a legal procedure for doing so. All aspects of the marital relationship should, as much as possible, come to an end on divorce. As Lamer J., McIntyre and Wilson JJ. concurring, put it in Messier v. Delage,  2 S.C.R. 401, at p. 421: “If the divorce terminates the marriage, it is desirable that the Divorce Act should apply to ensure the termination of all relations, even those that are financial, provided [page854] — this must be borne in mind -that such a thing is possible.” Lamer J. was dissenting in that case, but I see no real difference on this point between him and Chouinard J. who gave the majority judgment. At page 416, Chouinard J., speaking of the situation in that case, made it clear that “the obligation of support between ex-spouses should [not] continue indefinitely when the marriage bond is dissolved, or that one spouse can continue to be a drag on the other indefinitely …”.
- Yet as the proviso in Lamer J.’s judgment indicates, it is often not possible for all financial ties to be severed on divorce, and it becomes necessary to “require that the former spouse who does not have an economic need created by the marriage to assist the one who has such a need to become financially rehabilitated”. (The words are those of the Law Reform Commission of Canada in its Working Paper No. 12, Maintenance on Divorce (1975), p. 30, which is cited with approval by Lamer J. at pp. 421-22.). Moreover, both the Commission and Lamer J. recognize that in some cases maintenance must be permanent.
The clean-break model has been criticized for ignoring the disadvantages faced by the former wife in a dependant relationship, whose earning capacity has suffered as a result of the child care obligations and to the benefit of the other spouse. It also fails to recognize the disadvantages faced by many women in the workforce that preclude them from achieving self-sufficiency. This model thus contributes to the decline in the economic conditions of women and children after marriage breakdown 13.
The amendment of Divorce Act in 1985 placed greater emphasis on compensation 14. The compensatory model justifies support obligations by reference to foregone opportunities or hardships suffered as a direct consequence of the role assumed by a spouse. The aim is to have the separating spouses share equitably the economic advantages and disadvantages of the
In Moge 15 McLachlin J. writing for the majority of the Court, said at para. 107:
- … the judge’s task under … the statute is to make an order which provides compensation for marital contributions and sacrifices, which takes into account financial consequences of looking after children of the marriage, which relieves against need induced by the separation, and, to the extent it may be “practicable”, promotes the economic self-sufficiency of each spouse. Neither a “compensation model” nor a “self-sufficiency model” captures the full content of the section, though both may be relevant to the judge’s decision. The judge must base her decision on a number of factors: compensation, child care, post-separation need, and the goal, insofar as practicable, of promoting economic self-sufficiency.
Further at para. 853 stated:
- It is also imperative to realize that the objective of self-sufficiency is tempered by the caveat that it is to be made a goal only “in so far as practicable”. This qualification militates against the kind of “sink or swim” stance upon which the deemed selfsufficiency model is premised. (See Bailey, supra, at p. 633, and Droit de la famille -623,  R.D.F. 196 (Que. C.A.), at pp. 201-2.)
After Moge, courts tended to increase the duration of spousal support awards. Despite the increasing “equalization” of men and women and the increased opportunities for former spouses to re-integrate in the labour force, the vast majority of spousal support orders following Moge were for an unlimited period of time16. Spousal support awards for limited duration were generally restricted to cases of very short marriages and/or where there were not children from the marriage. Of course, indefinite support orders do not necessarily mean that the support will go on forever, instead indefinite spousal support orders will be subject to the process of review17 and variation 18.
Later in Bracklow v. Bracklow 19 the Supreme Court of Canada took a more expansive and eclectic approach. The Court recognized compensation as the primary basis for support. However, even though no disadvantage arising from the marriage was found, the Court granted non-compensatory support on the basis of social obligation. Need alone is sufficient to establish entitlement for support 20.
In Bracklow, at para. 37, the Court stated:
- …..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.
In relation to the limitation of spousal support, the Court stated at para. 57:
- ……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.
Since Bracklow, some courts have awarded more time limits for non-compensatory support orders. In Fisher v. Fisher 21, the Ontario Court of Appeal upheld the trial judge’s conclusion that an indefinite order was not appropriate in this non-compensatory case. Justice Lang ruled at para. 115:
- This termination order is designed to provide the appellant with support to enable her to become financially independent, or adjust to a lower standard of living within seven years. It also assumes that the respondent will maintain his income in a manner consistent with his current employment. The order is, of course, subject to variation by reason of a material change in circumstances.
After Fisher there has been a trend on the Ontario courts to set time limits orders, even in cases where there are dependent children in the care of the recipient of spousal support22.
In a recent case, Shields v. Shields 23, the Court of Appeal of Alberta set aside the term of the trial order for ongoing spousal support and limited the original order of an indefinite term to eight years, beginning from the day the marriage broke down. This appellate decision places increasing emphasis on the factor of self-sufficiency. The Court stated at paras. 30 and 32:
- ….While the recognition of any economic advantage or disadvantage arising from the marriage or its breakdown remains an overall objective to be considered by the court, that objective cannot dictate a result which guarantees that the payee spouse must support the other spouse ad infinitum…..
- After a fifteen year marriage followed by an eight year separation, and taking into account the appropriate factors, a spousal support order ought to provide the mother with a realistic time frame to return to the workforce and acquire adequate income to achieve self sufficiency…..
The Spousal Support Advisory Guidelines
The Spousal Support Advisory Guidelines are intended to bring more certainty and predictability to the determination of amount and duration of spousal support under the federal Divorce Act. Unlike the Federal Child Support Guidelines 24, the Advisory Guidelines are not legislated and therefore are not binding. Though mere guidelines, they serve as a useful tool to assist spouses, lawyers, mediators and judges in estimating the reasonable or possible amount and duration of spousal support 25.
In calculating amount and duration of spousal support, the Advisory Guidelines make a distinction between two formulas: “without child” support and “with child” support26. The formulas provide ranges for the amount and duration of spousal support. In determining the amount or duration of support within these ranges, one can consider the strength of any compensatory claim; the claimant’s financial need; the age, number, need and standard of living of any children; the payor’s ability to pay; work incentives for the payor; property division and debts; and self-sufficiency incentives27.
The “without child” support formula is based on the “merger over time” theory, according to which, the amount and duration of support is proportional to the length of the marriage. This formula captures the objectives of the compensatory model supported in Moge and the noncompensatory model recognized in Bracklow 28. With respect to duration, in the without child support formula, the guidelines propose .5 to 1 year for each year of marriage (or cohabitation) and indefinite duration if the marriage is 20 years or longer in duration or, if the marriage has lasted 5 years or longer, when the years of marriage and age of the support recipient (at separation) added together total 65 or more.
On the other hand, the “with child” formula, the guidelines rely more on the compensatory model, taking into account the need to provide care and support to the dependent children29. Unlike the “without child” formula, in the “with child” formula, support does not vary with the length of the marriage. Initial orders will be indefinite, subject to the process of review and variation. However, the formula sets a range in accordance with which support is subjected to review or variation. The Advisory Guidelines present two tests for duration under this formula: the length-of-marriage test which applies the same concept as the “without child” formula and the age-of-children test. In the latter test, the lower end of the duration range is when the youngest child starts full time school; the upper end is when the youngest child finishes high school. This latter test is employed for marriages of less than ten years.
Amount and duration may be traded under the formulas to increase the amount of support beyond the formula’s range and reduce duration, to extend duration beyond the range and reduce the monthly amount of support, or to create a lump sum by combining amount and duration30. Unlike the application of the amount of spousal support, the duration aspect of the without child support formula is often ignored. This practice misapplies the formula because both aspects are interconnected and come as a package31.
Undoubtedly, the Advisory Guidelines leave vast room for discretion. However, its exercise will be narrowed to a more specific range. The Advisory Guidelines have been widely used by spouses, lawyers, mediators and judges in thousands of spousal support cases. As of November 2008, there were over 400 judicial decisions in which the Advisory Guidelines have been
Canada’s approach to spousal support and, more particularly, to the duration of this obligation can be compared to the approach taken in other countries. I have selected two countries from the Continental Law system in which I have legal experience: Spain and Cuba.
In Spain, family matters including divorce are governed by Law 15/2005 33 which modifies the Civil Code regarding of separation and divorce. Article 97 of the Civil Code provides:
“The spouse that the separation or divorce caused an economic imbalance in the relationship with the position of the other, that implies a worsening in his previous situation in marriage, is entitled to a compensation which may be in a temporary pension or for an indefinite period, or a lump sum payment, as determined in the agreement, or by the court sentence.
In the absence of agreement between the spouses, the judge, will determine the amount, taking into account the following circumstances:
- The agreements that have come to the spouses.
- The age and health status.
- Vocational qualifications and chances of access to employment.
- The past and future dedication to the family.
- The contributions with his/her work in the business, or profession of the other spouse.
- The duration of marriage and the marriage.
- The eventual loss of a pension entitlement.
- The financial capacity and needs of either spouse.
- Any other relevant circumstances
The court decision will set the basis for pension update and the guaranties for its effectiveness.”
Instead of spousal support, the denomination used by the Civil Code is “compensatory pension”. Evidently, the basis for entitlement is similar to those established by the Divorce Act. However, point 9 expressly permits consideration of “any other circumstance” that may be relevant, which confers tremendous discretion to the courts.
As in Canada, this obligation is established to redress economic imbalances following marital breakdown and could be subjected to a time limit, or not. However, while in Canada spousal support seeks to compensate the dependent spouse for loss of opportunities as a result of the role assumed during the marriage (compensatory) and or the needs of the recipient (noncompensatory); in Spain the main purpose is to place the ex spouse in a similar standard of living that she/he enjoyed during the marriage. Its duration will depend on the duration of cohabitation and the beneficiary’s ability to obtain financial resources to achieve the said standard of living, thus, the incorporation of the beneficiary to the workforce and the achievement of selfsufficiency does not automatically terminate the obligation.
It has been well-settled by the Spanish jurisprudence the possibility of impose time limit to the compensatory pension obligation. In this course the Supreme Court of Spain in its Sentence 955/2008 34 of October 14, 2008, stated:
In Line with the expressed opinion of the most recent scientific doctrine and jurisprudence of the Provincial Audiences, and now this Court, which rules for the first time and set as the jurisprudential doctrine the possibility of establishing a limited duration for the compensatory pension of the Civil Code on its article 97, in so far it meets its rebalance functions when the circumstances justify the adoption of that time limitation.
Regarding the modification of Court sentences, Articles 100 and 101 of the Civil Code provide:
Once the pension and its bases upgrade are fixed in the sentence of separation or divorce, it may only be modified by substantial changes in the fortunes of either spouse.
“The right to pension is terminated by the cessation of the causes that motivated, by the remarried of the recipient or live in cohabitation with someone else.
The right to a pension is not extinguished by the mere fact of the death of the debtor. However, his heirs may ask the judge to reduce or abolish it, if the estate is unable to meet the needs of the debt or affect their rights on the legitimist”.
It is easy to understand that the pension should terminate because of substantial changes in the fortunes of either spouse or once the causes which gave it origin disappear. Now, contrary to the system in Canada the fact that the recipient remarried or cohabits with a partner automatically leads to the termination of the spousal support. On the other hand, it should be noted that the obligation is not extinguished with the death of the payor, but the support obligation is transfer to his/her heirs.
Cuba takes a peculiar approach to spousal support. All family matters including divorce are governed by the Family Code 35. Article 56 of the Family Code reads:
“If the spouses have lived together for more than a year or procreated during the marriage, the court will grant a pension in favour of one of them in the following cases:
- to the spouse who has no paid work and no other means of subsistence. This pension shall be provisional and will be paid by the other spouse for a period of six months if there are no children in his/her custody and care, or for a year, if any, to the effect that the beneficiary can obtain gainful employment;
- to the spouse that because of disability, age, illness or other insurmountable impediment is unable to work and, lacks of other means of subsistence. In this case the pension will be maintained as long as the impediment”.
The Family Code in Cuba provides two formulas in determining the duration of spousal support. The Code distinguishes between dependent spouses who have custody of the child, in which case support will be for one year, or those without custody, for whom support will be for six months. Certainly, under both scenarios support is extremely short. Before jumping to conclusions, we should analyze the context in which this law governs.
The State of Cuba has made extraordinary efforts to reduce gender inequalities. As part of these efforts, several legal and social institutions have been formed to facilitate the incorporation of women in the workforce, leading to substantial equality in many areas. For instance, women in Cuba have access to free training at all levels of education, there are affordable daycares for children, and strong labour laws protections. Among other provisions, the Labour Code 36 establishes a special regime to protect women.
As a result in Cuba, women are 46% of the workforce in the civil-State sector: 66.1% in the occupational category of technicians and professionals in the country, 48.9% of researchers, 63.3% of the university graduates, 56% of physicians; 71% of Judges and prosecutors and 36% of Deputies to the National Assembly (Members of Parliament) 37.
The starting point in determining the duration of spousal support is the Divorce Act. The Supreme Court of Canada in cases such as Moge and Bracklow have interpreted provisions of the Divorce Act regarding entitlement, amount and duration. Nevertheless, the subject remains highly controversial, and Courts decisions inconsistent.
The Spousal Support Advisory Guidelines have proved to be a useful tool for lawyers, mediators and judges in determining amount and duration of spousal support. Although the guidelines are not legislated and therefore not binding, they have been increasingly used by Courts and other family law practitioners. The Advisory Guidelines provide a range for obligation amount and duration. However, even though these ranges are more precise that the provisions of the Divorce
Act, there is still a great room for discretion.
While the approach taken by the Civil Code in Spain is similar to the solutions found in Canada, there are distinctions. The more significant differences are those concerning the objectives of spousal support. Regarding the duration aspect, both jurisdictions maintain equivalent approaches, conditioning the duration of the obligation to the concurrence of similar factors.
The Family Code in Cuba offers an extremely limited period for transition. This approach may be justified in light of the particular circumstances in which women receive special protection and substantial gender equality is seen in many areas of the workforce. It would be interesting to see what the Canadian state can do in order to address systemic inequalities arising from separation and thus bear part of the responsibility in the issue.
Although in a non-compensatory, short marriage, without children, one would expect a timelimited support order, in compensatory support cases the norm is an initial order of indefinite spousal support. One wonders whether such unlimited time orders properly address the selfsufficiency objective of the Divorce Act. In many cases, a more effective way to promote selfsufficiency may be to impose time-limited orders that, if necessary, can be extended through the same process of review and variation.
As the Spousal Support Advisory Guidelines state, “In the end, however, the real encouragement for self-sufficiency is not found in spousal support law, or in the Advisory Guidelines, but in the harsh economic reality facing most separated or divorced spouses. In all but the highest income cases, a recipient must find more income in order to avoid a drop in her or his standard of living, as spousal support is limited by the payor’s ability to pay”.
In any event, because the determination of self-sufficiency requires a highly individualized analysis the law on time limits is likely to remains fairly uncertain and unpredictable.
- Divorce Act, R.S.C 1985, c.3 (2nd Supp)
- Moge v. Moge,  3 C.R. 813
- Supra note 1
- Moge, supra note 2
- Bracklow v. Bracklow,  1 S.C.R. 420
- Fisher v. Fisher,  O.J. No. 38, 2008 ONCA 11
- Shields v. Shields, 2008 ABCA. 213
- Rogerson and R. Thompson, “Spousal Support Advisory Guidelines” (2008), available online: Department of Justice Canada <http://canada.justice.gc.ca/eng/pi/padrpad/res/spag/ssag_eng.pdf>
- Bracklow, supra note 5 at para.17.
- Supra note 1at ss.15.2(5) and 16(9)
- Carol Rogerson “Developing Spousal Support Guidelines in Canada: Beginning the Discussion” (2002) at c. 3-C, available online: Department of Justice Canada <
- Supra note 11.
- Bracklow, supra note 5 at para. 43.
- Moge, supra note 2.
- Supra note 11 at c.2-D
- The Supreme Court of Canada approved the use of review orders in Leskun v. Leskun,  1 S.C.R. 920
- Supra note 1at ss.17.
- Bracklow, supra note 5.
- at para. 43.
- Fisher, supra note 6.
- Scott v. Scott, 2008 CarswellOnt 1246, Ali v. Williams, 2008 CarswellOnt 1757, Grinyer v. Grinyer, 2008 CarswellOnt 366, Pagnotta v. Malozewski,  O.J. No 1318, 2008
- Shields, supra note 7.
- Rogerson and R. Thompson, “Fisher and After: The Spousal Support Advisory
Guidelines in Ontario” (2008), online: University of Toronto
- The Federal Child Support Guidelines, SOR (1997), 97-175
- Supra note 8 at c. 3.3.4
- at c. 9
- at c. 7.2
- Ibid at c. 3.3.4
- at c. 3.4.2
- at c. 7.5.1
- at c. 2.5.3
- Law 15, BOE [Spain] 2005, 24458-24461 [translated by author]
- Sentence 955/2008, Supreme Tribunal of Spain, [translated by author]
- Family Code Law 1289, GO [Cuba] 1975, online: Gazeta Oficial
<http://www.gacetaoficial.cu/html/codigo%20de%20lafamilia.html> [translated by Author]
- Labour Code Law. 49, GO [Cuba] 1985, at 99, 210, 211,212, – 219 online: Gazeta Oficial <http://www.gacetaoficial.cu/html/codigodetrabajo.html>
- (R.N.), “Women: 66.1% of the technicians and professionals in the country”
Granma[Cuba], March 7,2007, online: Granma
<http://www.granma.cu/espanol/2007/marzo/mier7/mujer–e.html> [translated by author]