Case reference: Bracklow v. Bracklow, [1999] 1 S.C.R. 420
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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 twothirds 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 postmarital 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 postmarital support would be inappropriate because of the presence of two “competing” theories of marriage and postmarital obligation. The independent, cleanbreak model of marriage provides the theoretical basis for compensatory spousal support. The basic social obligation model undergirds “noncompensatory” 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 noncompensatory 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 noncompensatory. While the law has evolved to accept compensation as an important basis of support and to encourage the selfsufficiency of each spouse when the marriage ends, where compensation is not indicated and selfsufficiency 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 noncompensatory 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 noncompensatory 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 intramarital 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.
