Bracklow

// Bracklow v. Bracklow // (Relevant statutory provisions: ss.89(1),(2), 93(2)(a),(e) of the British Columbia //Family Relations Act//, ss.15.2(1),(4),(6) of the //Divorce Act// – these are found at the beginning of the judgment) · A spouse may have an obligation over and above what is required to compensate the sick or disabled spouse for loss incurred as a result of the marriage and its breakdown (or to fulfill contractual support agreements) · Entitlement to and quantum of support are discussed separately // Entitlement to Support: // · The lower courts assumed that a spouse was only entitled to support for compensatory reasons: missed opportunities and hardships suffered as a result of the marriage · However, the law recognizes three grounds for entitlement to support: (1) compensatory (2) contractual (3) non-compensatory · Historically, support obligation has been governed by the common law and Qeuebec civil law as well as some patchy legislation. Husbands owed wives a duty of support during and upon breakdown of marriage. As the conception of women changed to view them as equal partners in marriage, legislation was enacted to reflect this (i.e. 1968 & 1986 //Divorce Acts//). //Moge// articulated that spouses were entitled to be compensated for contributions to marriage and losses sustained as a consequence of marriage. · However, judges must exercise their discretion in light of s.15.2(6) & 15.2(4) of the //Divorce Act//, which leave open the possibility of non-compensatory, non-contractual support · __ Modern Marriages: Marriage and Marriage Breakdown: __ o In determining the respective obligations of spouses, it is critical to distinguish between the respective roles of the spouses during marriage and the different roles that are assumed upon marriage breakdown o The 1986 //DA// sets out that spouses owe one another a mutual duty of support and there is a presumption that a marriage is a partnership of mutuality and interdependence. However, this presumption can be rebutted by prenuptial agreement for instance or the way that parties structure their financial affairs o Upon marriage breakdown, the presumption of mutual support that existed during marriage no longer applies o The //Divorce Act// and provincial support acts require the court to consider a variety of objectives and factors in determining support obligations o There are two competing theories of marriage and post-marital obligation: the “basic social obligation” model and the “independent” model // The basic obligation model: // · Primary responsibility falls on the ex-spouse to provide for their former partner, rather than on the government · The alimony payments under this model are meant to replace the income that the spouse used to enjoy as a partner to the marriage · This model is the theoretical basis for non-compensatory support · This model reflects certain policy ends including recognition of the reality that when a relationship ends, the affairs may become intermingled to such an extent that it is impossible to disentangle them and also recognizes the false idea that all separating couples can move immediately into absolute independence // The independent model: // · This model views both partners as autonomous individuals who retain their economic independence throughout the marriage · This model is supported by the “clean-break” theory, in which a former spouse compensates the other spouse for any costs of the marriage, then moves on with their life · The independent model provides the theoretical basis for compensatory spousal support · This model reflects some important policies: equality and independence of both spouses, rehabilitation, and recognition of the social reality of shorter marriages and successive relationships Both of the above models allow spouses to vary their obligations through contract · The two models espouse very different philosophies, values, and legal principles · It is dangerous to apply one model exclusively because many marriages are a mix of interdependence and dependence · The compensatory theory of support has as its basic premise that both parties are equal. If marriage has created dependencies, it is up to the dependent spouse to free themselves from their dependencies and assume self-sufficiency · The mutual obligation theory of marriage recognizes the interdependencies that marriage may create, these dependencies being between two co-equals · Both models have been recognized by federal and provincial legislation, which require courts to consider not only compensatory factors but also the means and needs of the parties · It is a matter of applying the relevant factors and striking the balance that best achieves justice in the particular case // The Statutes: // · The provincial statutes and the Divorce Act require a fair and equitable distribution of resources to alleviate the consequence of marriage breakdown, regardless of gender · // Moge // sets out the test to be followed in determining a support dispute. The starting point is the objectives in s.15.2(6) of the Divorce Act that a support order should serve: 1. Recognition of economic advantage or disadvantage arising from the marriage and its breakdown 2. Apportionment of the financial burden of child care 3. Relief of economic hardship arising from the breakdown of marriage 4. Promotion of the economic self-sufficiency of the spouses · Against the background of these objectives the court must then consider the factors in s.15.2(4) of the Divorce Act: o Generally the court must consider the “condition, means, needs and other circumstances of each spouse”. The balancing also includes, but is not limited to, the length of cohabitation, the functions each spouse performed, and any other agreement or arrangement relating to support. o Depending on the case, some factors may be more important than the others · “The judge must look at all the factors in the light of the stipuated objectives of support, and exercise his or her discretion in a manner that equitably alleviates the adverse consequences of the marriage breakdown.”(p.440 col. 1) · The different factors and objectives the court must consider reflect both models of marriage and marriage breakdown as outlined above · The contractual basis for support is found in s.89(1)(b) of the Family Relations Act, which asks courts to consider any express or implied agreements between the parties. This is also found in s.15.2(4) of the Divorce Act. · The compensatory basis for support is found in s.89(1)(a) and (d), and perhaps (c) · However, the statutes do not confine support obligations to compensation. S.89(1)(d) of the Family Relations Act suggests a concern with need that transcends compensation or contract and s.89(1)(e) invites consideration of all factors relating to parties’ economic situation, not just those related to compensation · The same can be said for the broad invitation in the Divorce Act, that the court consider the “condition, means, needs and other circumstances of each spouse” · The third and fourth factors of s.15.2(6) are also related to non-compensatory factors · While the Divorce Act was amended in 1986 to place a greater emphasis on compensation, it still retains the older idea that spouses may have an obligation to their former spouse in the absence of compensatory or contractual foundation for obligation. Need alone may be enough. // The Case Law: // · In //Moge,// the court states that marriage //per se// does not automatically entitle a spouse to support · This is true but in certain circumstances marriage may give rise to this obligation · // Moge // involved a claim for compensatory support, however, the court still stated that non-compensatory factors such as the means and needs of the parties were not eliminated from consideration. L’Heureux-Dube in //Moge// even noted that in cases, like those of sick or disable spouses, a support obligation may exist outside of compensatory support · Since //Moge,// courts have showed increasing willingness to award support for sick or disabled spouses // Quantum of the Award: // · The same factors that go for entitlement have an impact on quantum · “The quantum awarded, in the sense of both amount and duration, will vary with the circumstances and the practical and policy considerations affecting particular cases.”(p.450 col.1) · “It is not the act of saying “I do”, but the marital relationship between the parties that may generate the obligation of non-compensatory support pursuant to the Act. It follows that diverse aspects of that marital relationship may be relevant to the quantum of such support.”(p.450 col.1) · One factor should not be considered to the exclusion of others // Application to the facts: // · While in the early years of their relationship, the Bracklows’ union indicated that they each maintained significance independence, by the end they had established a more interdependent relationship. Mr. Bracklow covered Mrs. Bracklow’s needs in the early stages of her illness, thus the divorce did render Mrs. Bracklow in a state of economic hardship · Mrs. Bracklow is eligible for support based on the length of cohabitation, the hardship marriage breakdown imposed on her, her palpable need, and Mr. Bracklow’s financial ability to pay · The determination of quantum of support is left to the trial judge
 * Facts: ** The parties were married after living together for four years. The marriage lasted three years. The household expenses, for the most part were shared equally between the parties. The appellant had various health problems, and in 1991 she was admitted to hospital suffering from psychiatric problems as a result of which it is unlikely she will be able to work again. The following year, the parties separated and in 1995 they were divorced. The respondent is remarried and his new wife is employed. The appellant obtained an interim support order and she also receives disability benefits each month.
 * Issue: ** Is a sick or disabled spouse entitled to spousal support when a marriage ends, and if so, when and how much?
 * Trial judge: ** Concluded that the appellant was not entitled to support from the respondent based on his finding that the appellant suffered no economic hardship as a result of the marriage breakdown nor were her health problems due to the marriage. He also found that there was no express or implied agreement between the parties hat they were responsible for each other’s support.
 * Court of Appeal: ** Affirmed trial decision.
 * Supreme Court: ** The appeal should be allowed. The appellant is legally eligible for post-marital support.
 * The judgment of the Court was delivered by //McLachlin J.//: **