Case reference: Moge v. Moge, [1992] 3 S.C.R. 813
This historical case summary discusses the decision identified above. Later decisions and legislative changes may affect how it applies today. Obtain legal advice about your circumstances.
Divorce Support Variation Wife not economically self-sufficient 16 years after separation — Court of Appeal setting aside order terminating wife’s support Whether support should be continued or terminated pursuant to s. 17 of Divorce Act Whether objective of self-sufficiency should be given priority — Whether Pelech rule applicable to nonconsensual situations Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), ss. 15, 17.
Courts Jurisdiction Powers of reviewing court Divorce Court of Appeal setting aside order terminating wife’s support Whether Court of Appeal should have interfered with trial judge’s discretion Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), s. 21(5).
The parties were married in the mid50’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, also worked six hours per day in the evenings cleaning offices. After the separation, she was awarded custody of the children and received $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 parttime and intermittent cleaning work. In 1989, the husband was granted an order terminating support. The trial judge found that the former wife had had time to become financially independent and that her husband had supported her as long as he could be required to do. The Court of Appeal set aside the judgment and ordered spousal support in the amount of $150 per month for an indefinite period. This appeal is to determine whether the wife is entitled to ongoing support for an indefinite period of time or whether spousal support should be terminated.
Held: The appeal should be dismissed.
Per La Forest, L’HeureuxDubé, Gonthier, Cory and Iacobucci JJ.: The husband’s support obligation to his wife should be determined not on the basis of the reasoning in Pelech, Caron and Richardson, but on the principles embodied in the 1985 Divorce Act. The principles articulated in the trilogy should not be applied to nonconsensual situations. In the trilogy, this Court did not espouse a new model of support but rather showed respect for the wishes of persons who, in the presence of the statutory safeguards, decided to forego litigation and settled their affairs by agreement under the 1970 Divorce Act. In paying deference to the freedom of individuals to contract, the Court did not intend to extend the principles articulated in the trilogy to all applications for relief between spouses. Such an extension would virtually eliminate the significance of the statutory criteria and, at the same time, close the door to the wise exercise of judicial discretion that can accommodate a diverse range of economic variables on marriage breakdown.
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 claimed or an order for spousal support is sought to be varied. No single objective is paramount. With these objectives, Parliament intended that support reflect the diverse dynamics of many unique marital relationships. The objective of selfsufficiency is only one of the objectives enumerated in the sections and there is no indication that it should be given priority in determining the right to, quantum and duration of spousal support. The Act clearly indicates that this objective is to be made a goal only “in so far as is practicable”. To elevate economic selfsufficiency to the preeminent objective would be inconsistent not only with the proper principles of statutory interpretation, but also with the social context in which support orders are made. There is no doubt that divorce and its economic effects are playing a role in the feminization of poverty in Canada. In most marriages, the wife still remains the economically disadvantaged partner. It would thus be perverse in the extreme to assume that Parliament’s intention in enacting the Act was to penalize women in this country financially.
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. Under this approach, the distinction between traditional and modern marriages may not be as useful as courts have indicated so far. The doctrine of equitable sharing of the economic consequences of the marriage or its breakdown, which the Act promotes, recognizes and accounts for the economic disadvantages or advantages flowing from the role adopted by the spouses in the marriage. Studies indicate that women have tended to suffer economic disadvantages and 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 selfsufficiency model to a substantive imperative. It seeks to put the remainder of the family in as close a position as possible to the household before the marriage breakdown. Legislative support for the principles of compensation is to be found in s. 15(7)(ac) and 17(7)(ac) which are extremely broad in scope. The promotion of selfsufficiency remains relevant, but it does not deserve unwarranted preeminence. While spouses would still have an obligation after the marriage breakdown to contribute to their own 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. Marriage per se does not, however, automatically entitle a spouse to support. In rare cases, the spouses are able to make a clean break. But in most marriages in which both partners make economic sacrifices and share domestic responsibilities, or where one spouse has suffered economic losses in order to enable the other spouse to further a career, their roles should be considered in the spousal support order. As the Act is not exclusively compensatory in nature, an equitable sharing of the economic consequences of marriage does not exclude other considerations, particularly when dealing with sick or disabled spouses. In the final analysis, 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.
The exercise of judicial discretion in ordering support requires an examination of all four objectives set out in s. 17(7) of the Act in order to achieve equitable sharing of the economic consequences of marriage or its breakdown. In the proper exercise of their discretion, courts must be alert to a wide variety of factors and decisions made in the family interest during the marriage which have the effect of disadvantaging one spouse or benefiting the other upon its dissolution. While the most significant economic consequence of marriage or marriage breakdown usually arises from the birth of children, exacerbated by the need to accommodate and integrate those demands with the requirements of paid employment, the financial consequences of the end of a marriage extend well beyond the simple loss of future earning power or losses directly related to the care of children. Further, families need not fall strictly within a particular marriage model in order for one spouse to suffer disadvantages. Although spousal support orders still remain essentially a function of the evidence led in each particular case, to require expert evidence to present an accurate picture of the economic consequences of the marriage breakdown would not be practical or possible for many parties. The general economic impact of divorce on women, however, is a phenomenon the existence of which cannot reasonably be questioned and should be amenable to judicial notice. In any event, whether judicial notice of the circumstances generally encountered by spouses at the dissolution of a marriage is to be a formal part of the trial process or whether such circumstances merely provide the necessary background information, it is important that judges be aware of the social reality in which support decisions are experienced when engaging in the examination of the objectives of the Act.
Under s. 21(5) of the 1985 Divorce Act, a court of appeal should only interfere with the trial judge’s decision where it is persuaded that his reasons disclosed material error. This section does not give a court of appeal an independent discretion to decide a case afresh. Here, the trial judge committed an error in principle in engaging in an analysis premised upon a model of spousal support which is not sustainable on the wording of the Act. The trial judge focused on “financial independence” and failed to consider the disparity between the earning ability of each former spouse and to have regard to the fact that the wife was disadvantaged by the marriage. Correcting such an error fell within the scope of review of the Court of Appeal. 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 breakdown” (s. 17(7)(a)); (2) the wife’s longterm 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 selfsufficient notwithstanding her conscientious efforts (s. 17(7)(d)). These findings are irrefutable even in the absence of expert evidence relating to the appropriate quantification of spousal support.
Per Gonthier and McLachlin JJ.: In the 1985 Divorce Act, Parliament has enacted that judges considering applications for variation of support must consider the four factors set out in s. 17(7). The judge’s task under that section is to make an order which provides compensation for marital contributions and sacrifices (s. 17(7)(a)), which takes into account financial consequences of looking after the children either before or after the separation (s. 17(7)(b)), which relieves against need induced by the separation (s. 17(7)(c)), and, to the extent it may be “practicable”, promotes the economic selfsufficiency of each spouse (s. 17(7)(d)). The need to consider all four factors set out in s. 17(7) rules out the strict selfsufficiency model. The trial judge thus erred in giving no weight to the first three factors of s. 17(7) and in imposing a categorical requirement of selfsufficiency. The majority of the Court of Appeal was correct in rejecting the view that there is an absolute obligation for a spouse to become selfsufficient and that there is a time after which one spouse should no longer have to support another. They placed considerable emphasis on the need to compensate the wife for her contributions to the marriage and on the permanent economic disadvantage she suffered as a consequence. They then concluded that she was entitled to an order of maintenance to supplement her own income because her earning potential had been diminished. This conclusion represented a proper application of s. 17(7) of the Act.
Sections 17(7)(a) and 17(7)(c) raise the requirement of causation by the marriage or its breakdown. The question under s. 17(7)(a) is whether a party was disadvantaged or gained advantages from the marriage, as a matter of fact; under s. 17(7)(c) whether the marriage breakdown in fact led to economic hardship for one of the spouses. Hypothetical arguments after the fact about different choices people could have made which might have produced different results are irrelevant, unless the parties acted unreasonably or unfairly. In the context of s. 17(7), what is required is a common-sense, nontechnical view of causation. The legal or ultimate burden remains with the plaintiff, but in the absence of evidence to the contrary adduced by the defendant, an inference of causation may be drawn although positive or scientific proof of causation has not been adduced.
Although evidence of the spouses’ respective contributions and gains from the marriage is necessary under s. 17(7)(a) of the Act, the evidence need not be detailed, in the sense of a yearbyyear chronology of sacrifices and gains. In most cases it will suffice if the parties tell the judge in a general way what each did. That will allow the judge to get very quickly an accurate picture of the sacrifices, contributions and advantages relevant to determining compensation under s. 17(7)(a), making detailed quantification and expert evidence unnecessary.
*source: Lexbox
