National Post

Page URL: http://www.nationalpost.com/commentary.asp?f=990406/2449383

Tuesday, April 6, 1999

The Supreme cop-out

Karen Selick
National Post

Nine of Canada's top legal talents --the entire Supreme Court of Canada --put their heads together for more than four months to decide how much support, if any, a B.C. man should pay his disabled ex-wife -- and came up with no answer.

Instead, they wrote a lengthy essay describing three different legal justifications for spousal support. When it came to the hard part of their job -- making an actual decision that will gravely affect the lives of two human beings -- they tossed that sizzling grenade back into the lap of a trial judge in B.C. I call that a supreme cop-out.

What the Supreme Court actually said is that Marie Bracklow is "eligible for support," but, they added, there is "the possibility that no further support will be required, i.e., that Mr. Bracklow's contributions to date have discharged the just and appropriate quantum." Clear as mud.

Matrimonial lawyers across the country awaited this decision eagerly, hoping it would provide some guidance for one of the thorniest issues in family law today. No such luck. All we know for sure is that from now on, whenever a trial judge hands down a decision on spousal support, it will pay lip service to the Bracklow decision, reciting the three categories of support justification (compensatory, contractual, and non-compensatory), then selecting some dollar amount between zero and infinity which can still, apparently, come out of thin air.

The B.C. trial judge has no inside information about the Bracklows that was unavailable to the Supreme Court. If he picks a new number that either party disagrees with, or seizes upon and adopts the "possibility" that Mr. Bracklow has indeed already discharged his obligation, will the case be appealed all the way up the ladder again? How much trial and error will they have to go through before someone at the top says they got the number right?

While the Supreme Court deserves castigation for failing to do its job, it is not solely responsible for this sorry state of the law. Much of the problem lies in the statutes, which are broad enough to justify virtually any decision a judge might care to make.

The Divorce Act, for example, directs the court to consider "any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown" (emphasis added). This either-or clause makes spousal support a no-lose proposition for those who are ideologically inclined to view women as perpetual victims. If a wife can't claim to have been economically disadvantaged by the marriage -- if, for example, she was clearly advantaged by the marriage because it gave her a higher standard of living than she would ever have achieved on her own -- then, surely, she'll be economically disadvantaged by the marriage breakdown -- by the cessation of that advantage. Every card she holds is always the trump card.

If we recognize disadvantage, need, or hardship as a blank cheque on a former spouse's bank account, what guidelines do we apply? Where do we to stop? A mere $400 a month (the amount Mr. Bracklow volunteered to pay for 18 months) won't restore Mrs. Bracklow to a middle-class lifestyle. Should Mr. Bracklow be forced to pay to the point where her income equals his? Her need and hardship won't magically disappear after three or five years. Should he be on the hook for life?

When the trial judge considers these questions for the second time, he will have two options. First, he could make a decision that is completely arbitrary, perhaps by pulling numbers out of a hat, or using a dart board. He might try to disguise the capriciousness of his decision by stating it as some sort of formula -- for example: 25% of the husband's income for 50% of the time that the couple cohabited. However, the formula itself would still be entirely arbitrary and the outcome won't necessarily meet the goal of relieving Mrs. Bracklow's hardship.

Alternatively, the judge could attempt to make a decision based on some principle of justice relevant to the individuals whose futures he holds in his hands. If he does so, then he is right back to the spot where the Supreme Court and Parliament said he need not go: the point where he will have to consider the conduct of the parties throughout their relationship. He will have to consider whether any action of Mr. Bracklow's caused his wife's unfortunate condition (what the Supreme Court called the "compensatory" approach), and he will have to consider the consequences that should justly flow from the mutual agreement that the husband and wife entered into (the "contractual" approach). In fact, this is exactly what he did the first time around.

The notion that there is a third approach, a strictly needs-based approach that has any rational underpinnings, is illusory. If relieving hardship can be the sole justification for forcing someone to support a former spouse, why stop at the most recent spouse? Mrs. Bracklow was married twice previously. Why not make all three husbands chip in? Pinning the responsibility solely on the latest husband makes the whole process resemble a perverted game of musical chairs: The guy who's seated at the dependent's breakfast table when the music stops is the one who pays.

There are really only two alternatives: an arbitrary decision, or a principled one. It's time our legislators and judiciary recognized this hard fact of reality and chose principle as the law of the land.

Marriage is a unique form of contract, clearly different from a strictly commercial agreement, but containing no inherent reason for it to be exempt from the ordinary principles of justice. Mrs. Bracklow, through no apparent fault of her own, became unable to perform the role in the marriage which both parties had expected of her. She could not contribute financially to the household, nor could she participate in the chores or leisure activities the couple had previously shared. While she may be deserving of sympathy, her legal position should be no different than that of any other person whose contract becomes frustrated by circumstances beyond her control.

The law does not force one party to perform his duties under a contract when the very essence of the contract has been frustrated by the other party's inability to perform. The law does not force one person to give money to another when the former has not done any harm to the latter.

The sooner our senior judges and legislators come to incorporate these standard contract law principles into matrimonial law, the sooner lawyers, clients, and lower court judges can breathe a sigh of relief that the law will at last become rational, consistent, predictable, and just.

Karen Selick practises matrimonial law in Belleville, Ontario.

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