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Friday, March 26, 1999

Till death do us part, indeed

Andrew Coyne
National Post

See if you can figure this out. A man and a woman get married. Both have jobs. Both help out around the house. Both contribute in roughly equal measure to the household expenses: she more than he in the early going, he more than she after a time, but in essence neither is dependent on the other. They are equal partners in a joint venture called marriage. They live together like this for three years.

Then they divorce. Question: What does he owe her? I mean as a matter of law: What support is she due? There is no agreement between them providing for either one to support the other, during the marriage or after. They have no children, or none conceived between them, for which he might be responsible. So neither of the traditional grounds for ordering support is present.

Nor can it be said that she is owed compensation for the sacrifices she has made to support the marriage, as more recent jurisprudence would have it. For in truth she has made none. She did not, as many women do, give up years of valuable job experience to look after the housework, freeing him to pursue a career. She had a job, same as he did. They shared the chores, even steven.

So by any construction of the divorce laws, he owes her nothing. Now suppose we learn she is unemployed, indeed unemployable, on account of physical and mental illness. She cannot support herself. Does that change anything?

It shouldn't. True, when they wed, they vowed to support each other, "in sickness and in health." But -- stop me if this gets too complicated -- they are no longer married. Of course she should not be expected to support herself, if indeed she is unable. In such a circumstance, by most moral reckoning, need itself is sufficient entitlement to support. But support from whom? Why is his obligation to this woman, with whom he no longer has any relationship, legal or otherwise, any different from that general obligation to those in need that binds us all? He didn't make her sick.

And so the courts have ruled -- at least, until yesterday's Supreme Court decision in the case of Bracklow v. Bracklow. It is a remarkable bit of mischief, founded upon a tortured reading of the law, which dubious interpretation is, to boot, of no application to the facts of the present case.

To the usual legal grounds for support, contractual or compensatory, the court has added a third, "non-compensatory" category. In other words, he has to support her, even after the split, not because they agreed he would, not because the marriage cost her anything, but just because -- well, because he has money and she doesn't. The court has the gall, what is more, to justify this post-marital shakedown -- what the court prefers to call the ex-husband's "basic social obligation," as distinguished from any conventional notion of liability -- by reference to the statutes.

Now, the relevant provisions do instruct at various points that the relative means and needs of each spouse should be taken into account in any support order. But wherever this is stipulated, it is in the context of certain other grounds on which support might be claimed. Thus the courts are supposed to consider the "condition, means, needs and other circumstances of each spouse [emphasis added], including (a) the length of time the spouses cohabited; (b) the functions performed by each spouse during cohabitation; and (c) any order, agreement or arrangement relating to support of either spouse." Nowhere is it stated that need alone should be sufficient grounds in itself.

Yet Madam Justice Beverley McLachlin, writing for a unanimous court, finds that, while "these factors may support arguments based on compensation for what happened during the marriage and its breakdown," they also "invite an inquiry that goes beyond compensation to the actual situation of the parties at the time of the application." So, too, the law's stated objective of relieving "any economic hardship . . . arising from the breakdown of the marriage" is taken to include "the mere fact that a person who formally enjoyed intra-spousal entitlement to support now finds herself or himself without it."

This is neat. If the marriage costs her money, because she gives up her career, she's entitled to compensation. But if the marriage is to her financial benefit, she's still entitled, on the grounds that she suffers from its absence. Heads she wins, tails he loses.

All of which would be strange enough, even if it had any application to the case before the court. For Mrs. Bracklow neither gained nor lost financially from her brief marriage to Mr. Bracklow. She kept on working for most of their time together. And she paid her share of the household expenses. True, she was too sick to work in the latter days of the marriage, and so came to be dependent on him. But the dependence was not the result of the marriage. It was the result of her illness.

Had they never married, she would be in exactly the same plight she is in now. He may be a louse for leaving her. But that is no concern of the law. He owes her nothing.

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