Alimony

The obligation upon a husband to support his separated wife was embodied in the first written laws, the Code of Hammurabi, about 1792 to 1750 BC. This obligation was known in early English ecclesiastical law, and, in 1867, was shifted into the secular realm by Parliament. Since England allowed for payments to a wife on divorce, Canada, by default, took this provision in the context of divorce. The provinces also had their various forms of alimony, which could only be actions limited to separation (judicial separation), or for alimony or maintenance only (except Nova Scotia, which had its own divorce law prior to Confederation).

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They all originally had several common features: alimony was awarded to a faultless wife, on a periodic basis upon proof of the husband's misconduct. "Fault" had a wide meaning, but generally meant one who had committed adultery; was guilty of cruelty; deserted the other spouse or caused the other spouse to leave. Support, originally called "alimony," was paid when parties where married, and after divorce was referred to as "maintenance." Today these terms are blurred and have been replaced with the term "support." It is to be noted that such payments only went one way: from the husband to the wife. Thus a wife, having left her husband and living with another man, could not claim alimony, even if he had been guilty of a "fault," such as adultery, physical cruelty or desertion. This is now referred to as "conduct."

In the late 1960s spousal mutuality of payment was legislated by Canada in divorce, and later by the provinces. Some of the provinces still maintain conduct provisions, including New Brunswick, Alberta, Newfoundland, Nova Scotia, Ontario and PEI. Some of these provisions limit consideration of conduct and refer to a "gross repudiation of the marriage" as a basis of refusal or diminishing the amount of support. In Canada, Québec, Saskatchewan, BC and Manitoba are either silent on conduct or expressly rule out consideration of it. In a divorce action, in which the vast majority of support applications are made, the rules determining support automatically follow the provision of the Divorce Act (Canada) 1985 and conduct is excluded as a consideration. Alimony is also provided for in provincial domestic relations statutes such that a person does not have to rely only on the Divorce Act to claim spousal support.

The method of payment is usually periodic, being either a weekly or monthly amount. It can be a lump sum depending on the circumstances, but cannot be used to redistribute property. Periodic spousal support made pursuant to a separation agreement or a court order is taxable to the recipient and deductible by the payor.

The court, in arriving at both amount of and entitlement to a support payment, is required to consider the condition, means, needs and other circumstances of the parties. Factors such as the length of cohabitation, the functions each performed and the economic arrangements concerning children must be considered. In addition, the economic advantage or disadvantage of marriage or its breakdown, the relieving of any economic hardship arising from the marriage and the promotion of self-sufficiency are objectives the court should consider. The leading examples of judicial interpretation of the spousal support provisions of the current Divorce Act are the Moge and Bracklow decisions of the SUPREME COURT OF CANADA.

Although all FAMILY LAW legislation in Canada and the provinces is now gender neutral, over 98% of all spousal support orders are granted in favour of the wife mainly because, after a long marriage, the courts recognize the relative economic disadvantage of a woman who has no remunerative occupation because of homemaking. It is difficult to obtain a support order for a fixed term when this consideration is present. Termination of a spousal support order is automatic only on the death of the recipient. It may continue even after the death of the payor or the recipient remarrying or cohabiting with another person. The court will again consider the various factors on an application to end support.

Often, couples whose marriage was breaking down would, in an effort to settle various issues including spousal support, make agreements waiving any claim to support by setting limits on both the amount and duration of the support. Often the spouse who was the recipient or who had waived their spousal support rights would seek to step outside the agreement to change the spousal support arrangements.

The strength of such agreements has been subject to changing trends in judicial thinking over the last 25 years. Initially, the courts were very reluctant to set these agreements aside, favouring a clean break in the affairs between spouses. The clean-break approach came to be de-emphasized by the courts that took the position that they had wide latitude to rewrite the agreements. With the issuance of the Miglin decision in early 2003, the Supreme Court of Canada rejected both of the earlier approaches in favour of a new approach that places emphasis on vulnerability during the negotiation of the agreement and on whether the agreement is in substantial compliance with the objectives of spousal support as defined by the Divorce Act. Spousal support agreements will become more durable as a result of the Miglin decision.

Author LEONARD J. POLLOCK Rev: TIM SNYDER

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