National Post

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Friday, March 26, 1999

Supreme Court ducked key issues in ruling: experts
How much? how long?: Top court leaves the details to divorce-court judges

Mark Hume and Charlie Gillis
National Post

Frank and Marie Bracklow on their wedding day.

VANCOUVER - When Marie Bracklow heard yesterday morning that she'd won her appeal to the Supreme Court of Canada -- that her former husband was financially responsible for her because of needs related to her illness -- she declared a victory for "disabled women."

"I'm pretty thrilled," she said. "I'm quite glad they thought the way they did. I think it means a lot to a lot of people besides me."

But if Ms. Bracklow was triumphant, family-law experts and social commentators were left scratching their heads over the decision's precise meaning and impact: While Justice Beverley McLachlin's written decision established that an ill or destitute person could be entitled to compensation from a former spouse based on need, it left wide open the questions everyone wanted answered: How much compensation, and for how long?

"I think it's disappointing," said James McLeod, a family law professor at the University of Western Ontario, who has lectured on the case and studied the ruling carefully yesterday. "It doesn't come to grips with the key issues."

Added Carole Rodgerson, a marital-law expert at the University of Toronto law school, "Justice McLachlin has clearly established entitlement, but I think the case law was evolving in that direction any way . . . this judgment simply lists a range of factors to be considered and sends it back to the trial judge. It doesn't even apply those considerations to the Bracklow case."

Ms. Bracklow went to court six years ago seeking sustained support from her former husband, Frank Bracklow, arguing that the marriage vows, which include the promise to care for the other "in sickness and in health," should guarantee her continued support.

Her case was complicated and emotional because she was diagnosed with fibromyalgia, which causes constant muscle ache, memory loss, and dizziness, just weeks before her husband left her in 1992. There is no known cause or cure for the disease, which forced her to give up her job as an accountant.

Lower courts in British Columbia granted her support payments of $400 per month until 1996. But she started her court odyssey in 1993, seeking continued support throughout her life. In the meantime, she quickly slipped below the poverty line, and soon found herself living alone in a $300-per-month basement suite in Burnaby, B.C.

Yesterday's finding upheld Ms. Bracklow's claim her husband's marriage vows carried obligations beyond the previously established responsibility to compensate her for any lost income as a result of the marriage.

"Mrs. Bracklow is eligible for support based on the length of co-habitation, the hardship marriage breakdown imposed on her, her palpable need, and Mr. Bracklow's financial ability to pay," Judge McLachlin wrote.

But the court balked at granting Ms. Bracklow compensation for life, leaving the terms entirely to the pair's original trial judge in New Westminster, B.C. A hearing is expected within three months.

The finding leaves judges in an awkward position, said Prof. McLeod, because they must now consider such cases with no concept of what constitutes need, nor what price they should attach to that need. "The trick isn't just to say it's [a] matter of discretion, but to give some clear factors to structure that discretion," he said.

Mr. Bracklow, who says he has spent $20,000 on the case, was unhappy with the finding, saying he was desperately hoping for a final resolution. Now, six years after his legal journey began, he feels he's back where he started.

"I went through two court cases where four judges agreed with us," he said, referring to his trial and appeal in B.C. "And now nine [Supreme Court] judges can't make up their minds. They've kicked it back to the original trial judge.

"It's really disappointing. Now I'm going to have to turn around and pay more in legal fees."

Social analysts had an equally tough time assessing the ruling's impact on the institution of marriage. While some argued it could discourage people from getting married for fear of taking on unforeseen financial obligation, others applauded the court's finding that marriage comes with intrinsic responsibilities.

"I find it kind of encouraging," said Moira McQueen, a theology professor at St. Michael's College at the University of Toronto, who specializes in marriage and sexuality. "This judgment is putting the focus on personal relationships, and the obligations that come with them. It seems to me they're trying to strengthen human relationships. That sounds like a much more personalist approach to the law."

Roxanne Mykitiuk, a family law specialist at Osgoode Hall Law School, said the finding for the first time forces individuals to share the onus of caring for the needy.

"This suggests people have to go to spouses or even former spouses for support, and not go to the state first for it," she said. "That would be a fairly significant shift."

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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