Appeal court takes tougher line on spousal support

When the Quebec Court of Appeal recently overturned an order that compelled a financial analyst to pay his ex-wife spousal support for an indefinite period, it caught family law experts by surprise.

Even though s. 15.2(3) of the Divorce Act, which came into force in 1985, allows judges to make an order requiring a spouse to secure and pay his ex-spouse sums for a definite period or until a specified event occurs, the appeal court has traditionally shunned from applying such orders and almost always have overturned lower court rulings that issued that time-limited support orders, particularly if children are in the picture and the spouse – usually women – have been out of the workplace for a long time.

“Lower court judges – and family lawyers — have a monolithic vision of the appeal court’s position regarding time-limited support,” noted Michel Tétrault, a Université de Sherbrooke professor and family law expert.

“A court of first instance has very rarely imposed a timeline, unless the marriage lasted less than a few years and the spouse receiving the support clearly stated she had no willingness to work. Aside from those exceptions, it has been exceptionally rare for a lower court to impose time-limited support orders, and if they did, the appeal court would very rarely uphold the order. When you examine the jurisprudence and the doctrine, you realize that it’s almost impossible to obtain a time-limited support order in Quebec.”

That is likely to change. In Droit de la famille – 09408, the Quebec Court of Appeal unanimously ruled that its jurisprudence (notably in Droit de la famille 2190 and 3187) is not an impediment to time-limited support orders. “Indeed, while imposing a time-limited support order is a measure that must be employed with prudence, as we have seen (in the jurisprudence), it can be the appropriate response to a situation where the facts are well established by the evidence and the actual circumstances justify it,” said Judge Marie-France Bich.

The couple was married 11 years before they separated. Beginning in December 2005, J.G, a financial analyst now living in New York City with a new spouse and family, paid $1,533 monthly in child support for his two children, now 13 and 11 years old, and monthly installments of $1,600 in spousal support. Last summer the former couple came to a new agreement over child support, and J.G. is now doling out $1,633 monthly.

The two parties, however, were divided over the issue of spousal support, and the matter ended up before Quebec Superior Court Justice Jean-Yves Lalonde who determined that their marriage was a traditional one because the woman put her career in hold, followed her husband when his job led him to Australia, France and New York City, and took care of the children. Judge Lalonde found that the wife was not self‑sufficient and remained in need of spousal support.  He granted the wife $1,710.06 in spousal support – an order that was appealed.

Informed by Moge v. Moge, [1992] 3 S.C.R. 813, Bracklow v. Bracklow, [1999] 1 S.C.R. 420, and Leskun v. Leskun,  [2006] 1 S.C.R. 920, 2006 SCC 25, the Quebec Court of Appeal noted that while self‑sufficiency is one of the objectives that must be considered when spousal support is claimed, it is not the pre-eminent objective. All of the terms and conditions enumerated under s.15.2 of the Divorce Act must be examined to ensure a fair and equitable distribution of resources to alleviate the economic consequences, for both parties, of the marriage and its breakdown. As a result, the appeal court held that the lower court judge did not err in deciding that the woman was in need, “at least at this moment and for a certain period of time,” of spousal support.

The appeal court recognized that the nature of the marriage and the organization of the family had a negative impact on the woman’s career, and that the 41-year old engineer (and holder of a Master’s degree in applied science) needed a period of transition to re-establish herself professionally.

“After being out of the workforce for about a dozen years, one cannot demand Madame to, as of the separation, find a job as an engineer or as the lawyer of Monsieur suggested during proceedings at the court of instance to take on a series of small jobs that would have likely condemned her to precariousness,” said Judge Bich, who added that the fact that the wife has custody of the children, while no longer babies, does impose certain constraints that must be taken into account.

But Madame’s efforts to make the necessary transition towards self-sufficiency after the separation were tepid at best, points out Judge Bich. She made no serious and realistic effort to either work or re-orient her professionally before 2007, that is three years after her separation, aside from undertaking in a rather “dilettante” manner courses to become an illustrator and work at home – a project that did not succeed. Given the failure of her project, she is now taking college courses to complete a degree in illustration and design.

“Obviously it is not a question of carping over Madame’s professional choices: she can certainly lead her life as she chooses and decide to reduce or limit her current or future professional activities,” said Judge Bich. “However, these choices, which respond to a personal need, should not be indefinitely financed by Monsieur. An equitable distribution of the economic consequences of the marriage, its breakdown and the cost arising from the care of children does not mean that Madame can escape the consequences of her own decisions after the separation.”

The appeal court granted the wife $1,710.06 in spousal support until December 31, 2010, essentially giving her six months to look for a job after she completes her degree in design and illustration.

According to Josée Cantin, the lawyer who represented the husband, this case represents a significant shift in Quebec family law. Following separation, spouses will have to take steps to become self-sufficient and not cling on to spousal support in order to make ends meet.

“This ruling represents a step forward,” said Cantin. “Everyone has the right to redo their lives without having to lug around the financial responsibility of former spouses who have a capacity to make a living. This ruling is not a step forward for men nor for women. Nor is it a step backwards for women. On the contrary. It demonstrates that one must take oneself in hand and go forward.”

Marie Christine Kirouack, the president of the Quebec Association of Family Lawyers, believes that with this ruling the Quebec Court of Appeal has re-examined its jurisprudence to reflect today’s economic and social realities.

“When the Divorce Act came into force in 1985, the women who needed spousal support were the women of my mother’s generation, women who separated after 25 years of marriage,” said Kirouack. “The court has really veered direction when it says that Monsieur should not indefinitely meet the financial needs of Madame. That is really quite a turn.”

Tétrault warns however that time-limited spousal support orders will likely only be granted in limited circumstances. In this case, the woman was young, well-educated, and the children almost teenagers. More damaging, she deployed little effort to become self-sufficient.

“The appeal court has just opened a door,” noted Tétrault, author of several books on family law. “Couples today are no longer like those of a generation ago. They both work now. That should change the manner in which spousal support should be viewed but judges have had a lot of difficulty with that. But with this ruling the Quebec Court of Appeal has indicated that there are situations where time-limited spousal support is appropriate. It’ll be very interesting to see how it will be applied in the future.”

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