“The foregoing review of some of the noteworthy cases dealing with the issue of need arising post separation since Bracklow reveals that the courts have been struggling with the issue, attempting to balance considerations respecting the expectations that arise within marriage with the concern that a spouse should not become an insurer for life for their former spouse’s future misfortune that is unconnected to the marriage or its breakdown. Based on the fundamental principles which the Supreme Court of Canada set out in Moge and Bracklow, and a review of the factors and considerations which have figured prominently in the relevant case law since those decisions were released, I conclude that the following general principles and guidelines for dealing with these cases have emerged:
a. The starting point for analyzing non-compensatory support claims based on need arising post separation is whether there is evidence during the period prior to separation to rebut the presumption of mutuality and interdependence arising from the marriage relationship itself. Where there is no evidence to rebut this presumption, it may be reasonable to expect that the parties will support each other for a reasonable period of time in the event of need that does not exist at the time of separation but that arises at a later date.
b. The existence of mutuality and interdependence prior to separation is not, however, a determinative factor favouring a spousal support obligation in the event of need arising post separation. As the Supreme Court of Canada stated in Moge and Bracklow, all of the objectives underlying a spousal support order must be considered, including the objective of promoting self sufficiency within a reasonable period of time. The question that must be determined is whether, taking into account all of the circumstances of the particular case, it is reasonable on an objective analysis to expect the parties to continue to be “safety nets” for each other in the event of post separation need, and if so, for how long.
c. The passage of time may be an important consideration, particularly where the parties both take steps post separation to unravel their interdependencies and to effect a clean break from each other. In these circumstances, the mutual obligation of support arising from the marriage itself may wane with the passage of time, and the objective of promoting self sufficiency within a reasonable time frame may come more to the forefront of the analysis. This would include an expectation that former spouses implement plans for their own care in the event of possible disability in the future.
d. On the other hand, the passage of time may be given less weight in the analysis of entitlement if, despite the passage of a number of years, the parties have not effected a clean break, and their relationship continues to be characterized by mutuality and interdependence. In such circumstances, an objective analysis of the situation may lead to the conclusion that the expectation of mutual support and dependency arising from the marriage relationship has continued.
e. Where the marriage was short lived, the objective of promoting self sufficiency may be given greater weight when considering the expectations of the parties.
f. Situations where a spouse has been awarded time limited compensatory support, and then suffers an unexpected disability which creates need on their part may need to be approached with a somewhat unique lens. In such cases, the passage of time from the date of separation may not be as compelling a consideration as in cases where no entitlement to support exists at the time of separation. Time limited compensatory awards are intended in part to provide the recipient with an opportunity to regroup and recover from the economic consequences of the marriage. If an intervening disability impedes their ability to do so, the objectives of the award are undermined, and the claimant spouse may remain disadvantaged as a result of the marriage. In these circumstances, the objectives set out in section 15.2(6)(a) and (b) of the Divorce Act may weigh more heavily than the objective of promoting self sufficiency.”