National Post

Wednesday, November 25, 1998


Four disputes, legal and political, could reshape marriage and family in Canada

Sharon Marie Bracklow with a photo of her husband from happier times.

Bracklow v. Bracklow could be a huge precedent

By Charlie Gillis

The Supreme Court of Canada is expected to rule soon on Sharon Bracklow's claim that her former husband, Frank Bracklow, should pay $400 a month maintenance even though their marriage is long over and his obligations, under their divorce settlement, are ended.

It's a case family lawyers and long-separated spouses are watching intently, because it could redefine the length and legal parameters of maintenance obligations.

Ms. Bracklow says she suffers emotional and physical problems, including obsessive compulsive disorder, that make it impossible for her to work. She lives in Burnaby, B.C., on $787 a month in public disability benefits, while her former husband works as a heavy-duty mechanic living in MacKenzie, B.C.

In 1993, the B.C. Supreme Court ordered Mr. Bracklow to pay $400 a month support for three years, but ruled that's where his obligation ended. Not so, argued his estranged wife, who claims her current problems worsened substantially after their break-up, and that he bears some financial responsibility for her well-being.

On the face of it, the case could give teeth to marriage vows, forcing partners to honour for life their partner "in sickness and in health."

But whether it will benefit the institution of marriage is unclear. A finding in Ms. Bracklow's favour, many observers say, could turn marriage into a "life-long insurance policy" against future misfortune. Previously, the courts have based maintenance orders on whether one partner suffered financially as a result of the marriage, or made gains on the work of his spouse. There is no indication in this case that Ms. Bracklow's material fortunes declined as a result of the union. So a ruling in her favour would effectively place former spouses in a safety-net role normally handled by the state.

The Supreme Court judges themselves noted it might leave Canadians skittish about getting married. Said one jurist hearing the case: "Maybe we would be discouraging people from having relationships that really add a lot to their lives in terms of love and affection."

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Chartier v. Chartier makes step-parents pay
By Charlie Gillis

The Supreme Court of Canada ruled last week that step-parents cannot avoid paying child support after a marriage falls apart - a finding some say will discourage Canadians from taking on the role of stand-in parent.

The court accepted Sharon Chartier's argument that her husband Gerald Chartier was close enough to her youngster that he was her father in the "mind and heart of the child." The couple moved in together in 1989, when the child was one year old, and had a biological daughter the next year. They divorced in 1995.

In a rare ruling from the bench, the court ordered Mr. Chartier to pay $200 a month on an interim basis, sending the case back to the Chartiers' home province of Manitoba to set a permanent amount.

The case poses some interesting questions. What, for instance, constitutes a "stand-in" parent, and what are that parent's long-term obligations to the child? Written reasons for the judgement are not yet available, but the court appears to have accepted arguments by Ms. Chartier's lawyers that her former husband's long, affectionate bond with the child, the fact the child accepted his name, and the child's distant relationship with his natural father are the controlling factors.

The court said it issued its judgement based on the long-term interests of the child involved. However, Supreme Court decisions carry wide implications, and some critics wonder whether the finding really will benefit the interests of all children. The ruling may discourage people from getting too close to their spouse's child, they say, because they would be left with a greater obligation than they thought.

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Hedy Fry, minister of state for the status of women, sparked an uproar with comments that a parliamentary committee studying child custody should not recommend awarding joint custody of children.

Fry v. Cools, bitter political showdown
By Charlie Gillis

It's not a court battle, but the increasingly rancourous showdown between Hedy Fry, minister of state for the status of women, and Anne Cools, a Liberal senator who has vocally supported men in their complaints over the federal Divorce Act, is the best show in Ottawa since Andy Scott came out of hiding.

The issues, however, run deeper than a simple personality clash between Liberal middleweights. At stake are sweeping changes to the much maligned act, proposed by a parliamentary committee on which Sen. Cools sits (and strongly influences, insiders say).

In a newspaper commentary published last week, Ms. Fry took aim at several committee recommendations that were leaked to the press, and provided links on her secretariat's Web site to a group that asks feminists to complain about the committee to Justice Minister Anne McLellan.

She was most incensed at provisions to substitute notions of custody and access with "parental responsibility," describing it as "forced joint custody." A proposed onus on parents to provide a parenting plan, explaining how each will be involved in their children's lives, was in Ms. Fry's eyes "mandatory mediation."

Other provisions the committee has proposed:

Sen. Cools joined forces with Roger Gallaway, a Liberal MP and co-chair of the committee, to respond to Ms. Fry's complaints. They denounced her letter as a "bald ministerial attack on a parliamentary committee" in a press conference last Friday that drew a good deal more attention than the recommendations might otherwise have won.

Ms. Cools and Mr. Gallaway accused Ms. Fry of discrediting their efforts by publicly rebuking proposals to make joint custody mandatory. Opposition to the committee is being driven by "a minority of gender-based feminist ideologues who are having difficulty accepting the fact that history has passed them by" said Ms. Cools.

Ms. Fry said yesterday the government should not make "radical changes" to the Divorce Act to settle the grievances of a few parents. Divorce courts need flexibility to award sole custody to one parent in situations where another is guilty of abuse or "lousy parenting," she said.

The committee's report is to be tabled next week in Parliament.

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M v. H, a question of gay spouses
By Charlie Gillis

In a decision expected within weeks, the Supreme Court of Canada will rule on whether one partner from a broken lesbian relationship has to pay support to the other, who had been financially dependent on her mate for 12 years.

The decision promises profound legal and social consequences, as the claimant, known to the public as "M", is asking the court to strike down Ontario's Family Law Act and redefine "spouse" to include members of same-sex couples. A finding in her favour would place gay couples on the same legal footing as heterosexual couples when it comes to sharing employment benefits, getting married, and living together - not to mention the messy business of breaking up.

M met H in 1980 and the two lived together in Toronto, where H ran a profitable advertising business. M left the home in 1992 and within a month filed a claim for support, to which H responded with a claim that the law does not consider her a spouse.

Ontario's Progressive Conservative government has weighed in on H's side, saying the relevant act is constitutionally sound.

Most experts think the court will rule in H's favour: The high court has already ruled that constitutional protection against discrimination extends to sexual orientation, and the previous provincial government had actually argued its own law was discriminatory.

Lower court decisions so far have been split. The Ontario Court, General Division ruled in M's favour, while the Ontario Court of Appeal overturned that finding, saying such a sensitive issue was best left to legislators. The appeal court noted that in 1994, the Ontario legislature defeated a bill that would have resolved the matter.

If M does win, the long-term relationships of homosexual couples will be akin to marriage.

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