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Friday, March 26, 1999

Supreme Court Orders man to keep paying ill ex-wife
Decision based on traditional views surprises analysts

Charlie Gillis
National Post

Justice Beverley McLachlin: Couples "owe each other a mutual duty of support," which begins when they are married, she wrote.

Jeff Vinnick, National Post / Marie Bracklow

In one of four key decisions handed down yesterday, the Supreme Court of Canada added considerable weight to the marital vow "in sickness and in health" by finding in favour of a chronically ill woman who sought support from her ex-husband based on pressing financial need.

In a judgment that surprised analysts with the degree to which its reasoning was based on traditional views of marital obligations, the court found that Frank Bracklow owes his former wife, Marie, compensation because her illness and her emotional problems leave her destitute and unable to work.

But the judges stopped far short of handing the B.C. man life-long financial responsibility for Ms. Bracklow, saying the amount and duration of his payments to her would depend on several factors, including the length of their marriage.

"Need is but one factor to be considered," wrote Justice Beverley McLachlin in the unanimous decision. "It may be unfair . . . to order the full payment of that need by the supporting spouse for the indefinite future."

The court then handed the case back to the trial judge in the B.C. Supreme Court to set the amount and terms of the award.

It was one of four key decisions the country's highest court brought down yesterday, ruling on issues as diverse as solicitor-client privilege and natives' rights to use Crown land:

- In a case previously subject to a sweeping publication ban, a 6-3 majority ruled in favour of a psychiatrist's wish to alert authorities about his interview with a Vancouver man who confided his plan to kidnap prostitutes and make them sex slaves. The man's defence lawyer had argued the information was protected under solicitor-client privilege, because the defence lawyer had sent him to the psychiatrist in the first place.

- The court upheld the right of a Cree man to build a log cabin in a Saskatchewan provincial park, finding that his band's treaty right to hunt on Crown land includes the right to build shelter. The finding could strengthen claims by other native groups that they should be consulted over the exploitation of natural resources on Crown land.

- The court dismissed the case of a British Columbia widow who argued age discrimination after a lower court ruled she was too young to receive survivors' benefits under the Canada Pension Plan. Nancy Law, a healthy, 30-year-old woman with no dependents when her husband died, is "advantaged" because of her age, the court said.

The Bracklow decision had been keenly anticipated in family-law circles, where many expected the court to offer unqualified assent to Ms. Bracklow's claim, as an additional means of ensuring women were protected from financial ruin following a divorce.

Supreme Court ducked key issues: experts, Page A8, Day of judgments, Page A9, Till death do us part, indeed, Page A19

In 1992, the court ruled women must be compensated for sacrifices made during the marriage, prompting critics to charge the decision had been driven by feminist ideology rather than a balanced view of marital obligations.

Ms. Bracklow's claim came after a six-year marriage that broke down in 1992. By then, she had been diagnosed with fibromyalgia, an ailment that causes constant muscle ache, memory loss, and dizziness -- troubles that forced her to give up her job as an accountant. Among other things, she suffers from obsessive-compulsive disorder.

Upon the break-up of the marriage, Mr. Bracklow, a mechanic, began paying $275 a month in support, an amount the B.C. Supreme Court raised to $400 a month.

But that was due to end in September, 1996. Ms. Bracklow appealed, seeking indefinite continuation of the payments.

Yesterday's decision did add financial need to the list of reasons for compensation in this case, just as many observers expected.

But it based that decision chiefly on intrinsic obligations it says come with marriage, rather than on contractual obligations or dollars and cents -- a development that took some court watchers by surprise.

Judge McLachlin's reasons were almost devoid of case law set down to protect the interests of women, or of feminist academic language cited in earlier decisions on marital compensation. Rather, they referred to popular concepts of "morality" and "society's sense of what is just."

"It is not the act of saying 'I do,' but the marital relationship between parties that may generate the obligation of non-compensatory support," she wrote.

Roxanne Mykitiuk, a professor of family law at Osgoode Hall in Toronto, described the reasoning as "very traditional."

"It's going back to old ideas to say the fact of marriage itself creates certain obligations between the parties to support each other."

Meanwhile, the impact of the decision on the Bracklows' lives remains uncertain.

While Judge McLachlin left the amount of compensation up to the B.C. trial judge, she hinted Mr. Bracklow may have fulfilled his financial obligation.

Mr. Bracklow's lawyer, for one, denied the decision represented a clear-cut victory for her client's former spouse.

"It could have been a lot gloomier for us if they had said this is a life-long obligation, that he has to pay $400 [a month] until this lady turns 65," she said.

"This leaves a lot of optimism for us. We can go before the [B.C. Supreme Court] judge and still argued he's paid enough."

Marie Bracklow, however, declared the finding a triumph for women.

"I know there are men, too, in this situation, when one partner in a marriage leaves because the other is sick," she said.

"But, for the most part, it is women living under the poverty line.

''I know several women who had started legal proceedings, and were just waiting for this judgment."

Mr. Bracklow was disappointed and circumspect when reached at his home in Mackenzie, B.C., saying he had hoped the Supreme Court would bring an end to a painful and costly chapter in his life.

"Where does it end?" he asked. "And what does this say about our legal system?"

Related Sites

The Supreme Court of Canada
Canada's top court on the Web.

Jurist Canada
The leading judicial website.

Supreme Court decisions
Read the Bracklow vs. Bracklow decision.

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