Let me preface my remarks by saying that family law seems to be the only area of the law where there is a complete change in the law every few years which sweeps away our existing understanding of what the law was. This happens statutorily, and here I’m thinking of the recent introduction of the Child Support Guidelines and by a change in the case law, and here I am thinking of the decision of the Supreme Court of Canada in Moge v. Moge (1992), 43 R.F.L. (3d) 345 (hereafter "Moge") which I venture to say is probably the most cited and least read decision of the Supreme Court.

Any discussion of terminating spousal support has to start with the decision in Moge.

Having said that, it seems to me that the mistake that we make is not looking at Moge in its context. One has to read Moge, in part, as a reaction to an earlier trilogy of cases from the Supreme Court of Canada: Pelech v. Pelech (1987), 7 R.F.L. (3d), 225, Caron v. Caron (1987), 7 R.F.L. (3d) 274 and Richardson v. Richardson (1987), 7 R.F.L. (3d) 304. In those earlier decisions, the S.C.C. was clearly saying that spousal support was not a lifetime pension and that the Courts should be encouraging dependent spouses to get on with their lives (what is loosely known as "the clean break model"). It was a time of final spousal support releases, time limited support, support orders on a decreasing scale over time. (Although technically these decisions related to the previous Divorce Act and not the Divorce Act, 1985, what was the profession to conclude by the S.C.C. granting leave on these cases and issuing reasons for decision after the Divorce Act, 1985 was passed and in existence? Obviously, the profession concluded that the S.C.C. was sending us a signal on the issue of spousal support).

Given the decision of the Court in the trilogy, the decision in Moge was a thunderbolt turning upside down our understanding of what were the ground rules with respect to spousal support. On one level, it is surprising that the decision had this effect because it states the obvious: the Divorce Act, 1985 was very different legislation from its precursor. Particularly with respect to spousal support, Section 15 of the Divorce Act provided that there were four guiding principles that the Court was to look at and of those principles, the issue of self-sufficiency was just one of four. Clearly, the legislation did not make self-sufficiency the paramount objective.

On that reading of the Act, what Moge stands for is that the Courts and the profession were putting too much emphasis on self-sufficiency and not enough emphasis on the other three guiding principles. At the same time, the Court also gave its imprimatur to the notion of compensatory support.

Arguably then, the Court should award support in sufficient quantity and for sufficient duration of time to address the support objectives in the Divorce Act. And yet, that is not what spousal support orders look like. If the evolution of the law is akin to a pendulum, then one might well argue that now the pendulum has swung too far. If the decision in Moge is seen as a correction and a requirement that the four sections of the Divorce Act be read together and that the concept of self-sufficiency is not the paramount objective, one might well argue that too much weight is being placed on the other three objectives of Section 15 and the objective of self-sufficiency is now too often forgotten. As such, it would seem to me that the time is ripe to push for a recognition of the importance of encouraging self-sufficiency.

In each case, it is helpful to look at the Divorce Act and actually re-read the statutory requirements. The two most important subsections of Section 15 of the Divorce Act are:

Factors:

Section 15.2(4):

In making (a spousal support order), the Court shall take into consideration, the means, needs and other circumstances of each spouse including:

(i) The length of time the spouses cohabited;

(ii) The functions performed by each spouse during cohabitation; and

(iii) Any order, agreement or arrangement relating to support of either spouse.

Objectives of Spousal Support Order:

Section 15.2(6):

An order…that provides for the support of either spouse should:

(i) Recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

(ii) Apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

(iii) Relieve any economic hardship of the spouses arising from the breakdown of the marriage; and

(iv) insofar as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

In looking at spousal support, one must then address the factors enumerated in the Divorce Act:

(a) Length of Marriage: Obviously, different considerations apply between long term traditional marriages and short term marriages. If it is a short term marriage, one would argue for transitional support to assist the other spouse in getting on his or her own feet. By contrast, in Therrien Cliché v. Cliché (1997), 30 R.F.L. (4th) 97, the Ontario Court of Appeal comes very close to saying that an older spouse in a long term traditional marriage does not have an obligation to take minimum wage employment if his or her spouse can afford to pay support;

(b) Functions Performed by Each Spouse: What was the spouse’s career path and income at marriage? Was the spouse employed during the marriage and if so in what capacity? Has the income earning potential of the spouse been impaired by the marriage?

(c) Any Agreements: For example, did the parties agree that one spouse would stay home with the children and the other spouse would be the breadwinner?

(d) Economic Advantages and Disadvantages:

(i) One must keep in mind that support is intended to redress the overall economic consequences of the relationship and not simply the consequences of one economic decision undertaken by the parties: Elliot v. Elliot (1993), 48 R.F.L. (3d) 237 (Ont. C.A.). In short, just because decisions were made during the marriage which affected one spouse more than the other (particularly with respect to staying out of the workforce or being home with the children), this does not necessarily mean that the spouse has sustained an economic disadvantage. One has to look at the relationship as a whole, both at the other spouse and particularly with respect to any property settlement;

(ii) Is one spouse taking on more of the marital debt. This is a factor to be taken into account on the issue of support;

(iii) What was the standard of living of the parties during the marriage and now? Is it sustainable?

(iv) In an interesting annotation to the decision in Kurbegovich v. Kurbegovich (1998), 36 R.F.L. (4th) 220, the editor of the Reports of Family Law notes the following at page 221:

The studies referred to in Moge v. Moge and relied upon by the wife in Elliot v. Elliot to support the conclusion that withdrawal from the workforce adversely affects a spouse’s future job circumstances are interesting. Although women in professional and managerial positions may be disadvantaged when they attempt to re-enter the workforce because it takes time to re-enter their profession or vocation and time to reach the point where they would have been if they had not left the workforce, the same is not true for women in clerical or service industries. An absence from the workforce has little, if any, effect on such person’s ability to re-enter the workforce and re-establish herself. The only variables are whether there are jobs available and the person’s age.

(e) Are there children? Where are the children living? What are their ages? Do they have any effect on the employability of the spouse?

(f) Relieve economic hardship arising from the breakdown of the marriage;

(g) Other circumstances: For example does the spouse have health problems. If so, different considerations will apply; Kloos v. Kloos (1996) 20 R.F.L. (4th) 1 (Man. C.A.)

(h) Promote the economic self-sufficiency of each spouse within a reasonable period of time. This is the crux of the matter. What can the spouse do to become self-sufficient and how long will it take?

Here, we are dealing with competing interests of the payor spouse who wants certainty and finality and the payee spouse who, faced with an uncertain future, wants support to continue indefinitely. This is further complicated by the inherent difficulty in predicting the future and in shaping someone else’s conduct. How do you encourage the spouse so that he or she takes reasonable steps to become self-sufficient?

The problem is further complicated by the question of what’s reasonable for that particular spouse. If one is talking about a 50 year old coming out of a 30 year traditional marriage who has been out of the workforce for 25 years, what is the prospect that she will ever be self-sufficient? That question might have a very different answer if we were talking about a 35 or 40 year old who had a career which was left for five years but to which that person can return. Looking at the notion of compensatory support, it may be that one may be obliged to tell one’s client that he will have to bite the bullet and pay periodic support on an ongoing basis where it can be demonstrated that there is a real and identifiable financial detriment which has fallen on the spouse who stayed at home.

After Moge we were braced for the Court ordering lump sum support orders by way of compensatory support and periodic support, but clearly, the Court has shied away from the notion of granting lump sum support. However, just because the Court won’t do it doesn’t mean that one should ignore the possibility of trading a lump sum for a spousal support release. If there is equity in a house or some other assets, like RRSP's, can that be traded to the wife for a spousal support release? This becomes more practical for those payee spouses who have a trade or career which they interrupted but which they can resume.

Assuming that you are not in the happy position of having a lump sum available of sufficient size to be able to buy a spousal support release, the question then becomes how do you terminate or reduce support. This process has to start before there is a final judgment or agreement. I say this because you want there to be incentives or disincentives built into the judgment. Here, the competition is between the principles in the Divorce Act, Moge and Messier v. Delage (1983), 35 R.F.L. (2d) 337. In that latter case, the Supreme Court of Canada held that the Court should deal only with the facts that exist at the time of the proceedings and leave future contingencies to an application to vary.

It is helpful to try and put your client and yourself in the other party’s shoes. Again, particularly with 20 year traditional marriages, one spouse is ready to move on and get on with his or her life whereas the other spouse, may feel that his or her life has been turned completely upside down. To one spouse the future looks promising whereas to the other spouse it is a scary thing.

From that party’s position, how do you overcome his or her feeling that any positive thing that he or she does to get back into the workforce will only result in having less money? For example, if she gets a job will her husband bring an immediate application to lower support?

The further tension is between what works better in a particular situation: the carrot, the stick or a combination of the two. The further problem is that for some people, the mere fact that the other spouse suggests something is sufficient reason to refuse to do it. Some possible examples of incentives and disincentives are the following:

(a) Will the husband pay for the cost of education or training and what will the wife give up in return?

(b) Could the husband say that he will not seek variation for a particular time period or until the happening of a particular event? E.g. If during the first two years following the separation, the wife obtains employment, the husband will not bring a variation application solely by reason of that employment income. Further, in the third and fourth year after the wife obtains employment, the maintenance will be reduced but only by $1.00 for every $2.00 that the wife earns over $1,000.00 of gross monthly income;

(c) Alternatively, what about staged reductions over time, reduced by X dollars a month every year or every second year;

(d) Can one put in an obligation on the wife to do upgrading within a particular time and that the wife will devote her best efforts to obtaining employment by a particular date. Can you define what those best efforts will be? Will she complete grade 12 by a certain date? Will she complete a course at a business college by a certain date? Will she register with Manpower? Will she enroll in an employment preparation workshop with Women’s Employment Counselling Service? Will she apply to at least 3 employers a week and provide details of her efforts to obtain employment? The possibilities are endless.

(e) Can there be a penalty i.e. a reduction in support if the spouse does not meet his or her obligations under the agreement?

(f) Can you bring forward the review date if the spouse is not doing anything with respect to self-sufficiency?

What is absolutely essential is that there be a provision for review within some defined period and that there be some benchmarks or expectations defined for what the payee spouse will be doing during that intervening period. All to often nothing is done until the eve of a review. The point is to try to define what it is that you want the other spouse to do and by what date it is to be done.

The problem from a purely technical point of view is that unlike the Family Maintenance Act, the Divorce Act does not provide a specific provision for review. What does a review mean? It’s not a variation application as one does not presumably have to show a material change in circumstances. It would appear that a review is ordered pursuant to Section 15 as part of the Court’s power to impose terms and conditions on a support order. As such, is not the onus on the spouse who is seeking support to prove that she or he is still entitled to support? The distinction is important because a Judge can impose conditions on a support order but the Judge cannot extend or restrict the power of a Judge on an application to vary: See Hauff v. Hauff (1997), 31 R.F.L. (4th) 322 (Man. C.A.).

But what does one have to show in order to have the Court intervene? One wants to be able to come back to Court on the review date and say that the other party has done nothing and that the Court has to intervene. The unreported decision of Madam Justice Diamond in Armstrong v. Ternan (June 13, 1996) is both helpful and instructive. At the outset, I should note that the case is under appeal. There, the parties were married in 1968 and separated in 1987 after 19 years of marriage and 2 children (both of whom were adults by the time of the review). The husband earned a substantial income ($140,000.00 in 1989). The parties entered into a separation agreement in 1990 which, amongst other terms, provided that the wife, who was then unemployed, would seek employment in the future. The agreement further provided that spousal support would be fully and completely reviewed on or before January 1, 1995. Following a review hearing, Madam Justice Diamond found that the wife had done virtually nothing to enhance her ability to work. The efforts that she had made to find work had been "feeble". She had taken no courses to improve her skills and qualifications. She then went on to say:

"I am satisfied that had the wife fulfilled her part of the agreement, she would be less dependent upon the husband than she is today. However, I reiterate that it would be unrealistic to expect that the wife would ever become totally independent of the husband. Although the agreement contemplated that the wife would seek employment, there is no evidence that it was ever contemplated that the wife would ever become totally self-sufficient.

Although I am satisfied that the wife has failed to do her part to obtain even some degree of self-sufficiency, I cannot ignore the fact that this was a long term marriage, nor can I ignore the discrepancies in the income earning abilities of the parties. As pointed out by counsel for the wife, at the time of the marriage breakdown, the wife was a homemaker with no job skills, whereas the husband had a very stable and very well paying job, which he still has. Even if the wife had rigorously pursued job training and secured a job, I am satisfied that she would never have been able to make sufficient gains to be totally self-sufficient and maintain the standard of living that the parties enjoyed prior to the separation, and that which the husband is still able to enjoy by virtue of his well paying job.

I am therefore of the view that the husband should continue to pay spousal support but at a lower rate. In an effort to strike a balance between the wife’s obligation to contribute to her own support, as was contemplated by the agreement, and the husband’s obligation to pay some support, I am reducing spousal support to $1,700.00 per month. There will be a further reduction to $1,400.00 per month commencing June 1, 1997, followed by a final reduction to $1,200.00 per month effective June 1, 1998."

A final note of encouragement (and here I’m being ironic), you must warn your client that even if you obtain a time limited order, it may not be final. In Trewin v. Jones (1997), 26 R.F.L. (4th) 418 (Ont. C.A.), the trial Judge found that the wife would be self-supporting by a particular date and ordered time limited support. The wife did not obtain full time employment and, on appeal, the Court held that the wife’s support order should be extended as unmet expectations constitute a material change in circumstances.