“In the leading Supreme Court of Canada decisions of Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 S.C.R. 813, and Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420, the court held that spousal support entitlement must be determined in accordance with the Divorce Act with consideration to the following models: (1) compensatory support, which primarily relates to the first two objectives of the Divorce Act; (2) non-compensatory support, which primarily relates to the third and fourth objectives; and (3) contractual support. Entitlement may be established on more than one ground.
In Bracklow, at para. 23, the court emphasized the needs-based model of support, where the primary burden of meeting the needs of the spouse falls on the former spouse rather than the state. Support is aimed at narrowing the gap between the parties’ needs and means upon a breakdown of the marriage.
On the other hand, the compensatory basis for spousal support entitlement recognizes that upon marriage breakdown, there should be an equitable distribution between the parties of the economic consequences of the marriage. Compensatory support recognizes sacrifices, contributions, and benefits of the parties during their interconnected economic lives.
Moge and Bracklow set out the following examples of compensatory support:
a) A spouse’s education, career development or earning potential have been impeded as a result of the marriage because, for example:
a) A spouse has withdrawn from the workforce, delays entry into the workforce, or otherwise defers pursuing a career or economic independence to provide care for children and/or spouse;
b) A spouse’s education or career development has been negatively affected by frequent moves to permit the other spouse to pursue these opportunities;
c) A spouse has an actual loss of seniority, promotion, training or pension benefits resulting from absence from the workforce for family reasons;
d) A spouse has contributed financially either directly or indirectly to assist the other spouse in his or her education or career development.
The Spousal Support Advisory Guidelines (“SSAG”) set out following examples of economic disadvantage:
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- Home with children full-time or part-time;
- Secondary earner;
- Primary caregiver of the children after separation;
- Moving for payor’s career;
- Support for payor’s education or training;
- Working in family business.
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In Bracklow (para 32), the Supreme Court stated, that while it is important to acknowledge and encourage self-sufficiency, it is also critical to recognize that “the goals of actual independence are impeded by patterns of marital dependence.” The Court also stated that marriage is an “economic partnership” based on mutual support.” The legislation requires courts to consider compensatory factors and the “needs” and “means” of the parties. “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”.
Further, the Supreme Court stated that “Even if a spouse has foregone no career opportunities or has not otherwise been handicapped by the marriage, the court is required to consider that spouse’s actual ability to fend for himself or herself and the effort that has been made to do so, including efforts after the marriage breakdown”. The Court states that the legislation requires a consideration of the parties’ financial positions “not just those related to compensation”. The provisions of the Divorce Act require the court to consider the “condition, means, needs and other circumstances of each spouse”. “…they invite an inquiry that goes beyond compensation to the actual situation of the parties at the time of the application” (see:Bracklow, para 40).
Therefore, all of the statutory objectives must be considered as no one objective is paramount, but the court has discretion to determine the weight that should be placed on each objective based on the parties’ circumstances.
In Moge (para 870), the court stated that “the longer the relationship endures, the closer the economic union, the greater will be the presumptive claim to equal standards of living upon its dissolution”.”