Globe and Mail

A divorced woman wins Supreme Court victory

Support obligations can be 'lifelong,' judges rule

Friday, March 26, 1999
KIRK MAKIN
Justice Reporter

Former spouses may have a special duty to support their sick or disabled ex-partners, the Supreme Court of Canada ruled yesterday.

The court ordered a British Columbia man, Frank Bracklow, to pay an undetermined level of support to his chronically ill ex-spouse, Marie, on the basis that even a short-term marriage carries obligations.

It said Mr. Bracklow's ability to pay support, his ex-wife's illness and the duration of the seven-year marriage render it unjust for him to evade any responsibility for her welfare.

"While it may not prove to be till death do us part, marriage is a serious commitment not to be undertaken lightly," the court said. "It involves the potential for lifelong obligation. There are no magical cut-off dates."

"Divorce ends the marriage. Yet in some circumstances, the law may require that a healthy party continue to support a disabled party -- absent contractual or compensatory entitlement. Justice and considerations of fairness may demand no less."

The court ruled that in an era of shorter marriages and successive relationships, there can be no firm yardstick for determining support obligations.

Ms. Bracklow was pleased that the court ruled that disabled spouses have a right to support. "The message is that we do have rights and just because you become sick in a marriage, it does not mean you can be thrown out," she said.

Mr. Bracklow, speaking through his lawyer, Carol Hickman, said he is frustrated that the case has not been settled. "With this decision, there is not any closure," she said. "He's disappointed with the judicial system."

The decision follows in a steady line of cases stating that while it is desirable for ex-spouses to achieve independence, the unique circumstances of a marriage may create lasting obligations.

It is unclear how much more Ms. Bracklow will receive -- if anything -- in the way of benefits in addition to what Mr. Bracklow has given her in the past.

"I do not exclude the possibility that no further support will be required -- that is, that Mr. Bracklow's contributions to date have discharged the just and appropriate quantum," Madam Justice Beverley McLachlin wrote for a unanimous court.

The ruling said judges have considerable leeway to take into account the greatly varying obligations and interdependencies that can arise in a modern marriage.

"It is critical to recognize and encourage the self-sufficiency and independence of each spouse," the court said. "It is equally vital to recognize that divorced people may move on to other relationships and acquire new obligations which they may not be able to meet if they are obliged to maintain full financial burdens from previous relationships."

Ms. Bracklow was an accountant and data processor when she met Mr. Bracklow -- a heavy duty mechanic -- in 1985. They lived together for four years before getting married.

Ms. Bracklow initially paid a greater share of the household expenses, but a series of psychiatric problems steadily worsened. By 1991, she could no longer work. She now suffers from serious migraines, joint pain, bipolar-mood disorder, obsessive-compulsive disorder and fibromyalgia.

"[Ms.] Bracklow was a highly capable person who brought emotional and physical illness to the relationship," the court said. "Although Mr. Bracklow was aware of her medical history, neither party was prepared for her complete incapacitation."

Mr. Bracklow maintained the family until they separated in 1992. They divorced in 1995, and Ms. Bracklow obtained an interim support order of $275 a month. It increased to $400 a month in 1994, and ended in 1996. Ms. Bracklow receives $787 in monthly disability benefits.

Judge McLachlin said modern marriages fall into broad categories.

In some, the partners remain relatively independent and tend to end their unions in a "clean break."

In others, she said, there is a degree of dependency. When these marriages break down, there is an expectation that one partner will elevate the other to a facsimile of the standard of living they both enjoyed during the marriage.

"The problem with applying either model exclusively and stringently is that marriages may fit neither model -- or both models," she wrote. "Many modern marriages are a complex mix of interdependence and independence."

In recent years, the court said, judges across the country have adopted a philosophy that boils down to this: "One is simply not allowed to abandon a spouse to destitution at the end of a marriage if one has financial resources which might assist in relieving the other spouse's circumstances."

In many cases, it said, it is simply impossible to neatly "disentangle" the many components of a marriage arrangement. "When this happens, it is not unfair to ask the partners to continue to support each other -- although perhaps not indefinitely.

"It is not a question of either one model or the other. It is rather a matter of applying the relevant factors and striking the balance that best achieves justice in the particular case before the court."

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