The law of spousal support has become so repugnant to me lately that I often ponder giving up the practice of family law altogether. It’s almost impossible to feel good about what you’re doing. If you act for wives, you have to inform them about the kinds of claims they can make—including claims which I consider to be unjust or downright ridiculous. If you act for husbands, you have to be prepared to be on the losing side most of the time.
It seems that no matter what course a couple’s married life took, the wife can always find some reason to claim spousal support. If she worked outside the home and supported her husband while he became a brain surgeon, her claim is for "compensatory support." If she did just the opposite, sitting around eating bonbons while the brain surgeon supported her, her claim is for "developing a pattern of economic dependency."
I’ve even seen cases where the wife has claimed both grounds in the same action, oblivious to the possibility that the bonbon-eating lifestyle she enjoyed in the later years of marriage has already more than compensated her for whatever work she did in the early years, or to the idea that if she was such a great provider in the early years, there was nothing stopping her from maintaining her lucrative career throughout the marriage.
In fact, the only common thread running through most support orders is this: males pay.
I remember reading once about the peculiar notion held by some eastern philosophy that if you rescue a person from impending death, you become responsible for him for the rest of his life. Canadian courts seem to apply a similar prescript to support cases. Once a man has kindly provided a woman with a higher standard of living than she could reasonably have hoped to achieve on her own, he’s stuck with providing it for years to come—maybe even the rest of her life--regardless of how she has behaved toward him or the reason they separated.
The Divorce Act enshrines this principle. It tells judges to alleviate any economic disadvantage arising from either "the marriage or its breakdown." That "or" is a powerful word. Suppose the marriage gave the wife an advantage rather than a disadvantage: a more affluent, leisured lifestyle than she would have earned on her own. Then, obviously, the termination of the marriage constitutes a disadvantage.
So here’s the upshot: if a man genuinely caused his wife some disadvantage during the marriage, he pays for that reason. But if instead he bestowed an advantage upon her, he pays for having stopped. Heads she wins, tails he loses.
Another objectionable thread woven through both the legislation and the case law is the notion that if a woman can’t support herself after separation, the courts should make her ex-husband support her rather than see her go on welfare. Maybe the legislators and judges who came up with this idea thought it would placate opponents of welfare. If so, they’ve misunderstood the nature of the objection to welfare.
Welfare is objectionable because it is coercive and one-sided. It’s not like charity, which is voluntary. It’s not like a contract, from which both parties benefit. No, welfare simply forces some people to hand over money to others whose predicament they didn’t cause and who have provided no value in exchange.
The same could frequently be said about spousal support. Take, for instance, the recent Ontario case, B. v. B. The trial judge accepted the husband’s evidence that this was a marriage "made in Hell." The wife, whose IQ was only 68, didn’t work outside the home, but also didn’t do housework. She watched a lot of television, while the husband assumed responsibility for cooking and cleaning, in addition to being the sole breadwinner. They argued a lot, and she was occasionally violent towards him. The trial judge awarded her only time-limited support, saying "…this husband started to pay for this marriage about three months after it occurred, and then he paid for the next 15 years, and I am not prepared to make him pay for the rest of his life."
On appeal, the Divisional Court removed the time limit on the wife’s support, stating explicitly that the burden of the wife’s support should fall on family members, not on taxpayers. Why? What principle of justice or morality warrants making Mr. B. pay, as opposed to some unrelated taxpayer? Neither of them caused the wife’s need for support. Neither of them ever received any benefit from her existence.
In fact, we’ve thrown out just about every principle there ever was—from the notion of contract to the notion of fault—that made matrimonial law rational, comprehensible, predictable, controllable or just. While some people may feel that no-fault support has been a liberating event, it’s clear that for others, it has meant nothing but grief and involuntary servitude. It’s about time we re-examined the unfashionable idea of marital conduct to see whether justice can ever again form part of matrimonial law. More on this in next month's article, Spousal Support--Time to Consider Misconduct.
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