National Post

Page URL:

Tuesday, January 11, 2000

Court imposes five-year limit in B.C. alimony case
Bracklow v. Bracklow: Judge's decision takes length of marriage into account
Janice Tibbetts
Southam News

OTTAWA - Marie Bracklow, a chronically ill woman who asked the Supreme Court of Canada to give new meaning to the marriage vow "in sickness and in health," has been denied indefinite alimony after a short marriage.

The case, which is expected to quell hopes and fears that support payments to needy spouses can last forever, even after a brief relationship, was settled in the British Columbia Supreme Court following a directive from the country's highest court.

Judge Daphne Smith found Ms. Bracklow was entitled to $400 a month in alimony for five years, but she is not eligible for indefinite support, based on guidelines issued last year in the Supreme Court of Canada.

The case inspired a national debate over what, if anything, a healthy spouse owes a sick one after a shorter-term marriage falls apart.

Ms. Bracklow, who lives in a subsidized basement apartment in Burnaby, B.C., and survives on $846 a month in Canada Pension Plan disability payments, said the ruling was bittersweet.

"It's not very much after all these years but I did get money and I proved a point," said the 50-year-old jobless woman, who was so broke after the collapse of her seven-year relationship that she couldn't afford to replace her dog when it died of cancer.

"This shows you just can't put the disabled spouse onto the public coffers and not have any responsibility."

Ms. Bracklow suffers from a mood disorder, an obsessive-compulsive disorder and fybromyalgia, a form of chronic fatigue.

She also has a fear of crowds and people and it's unlikely she will ever work again.

Her lawyers spent five years arguing in three courts that her financial support from her ex-husband, Frank Bracklow, should be based on need. Mr. Bracklow said it should be tied to the duration of a union so that people married for as little as one year shouldn't be on the hook for the rest of their lives.

The Supreme Court of Canada decided last March that both factors must be considered in a ruling that broadened eligibility for spousal support by declaring there are cases when alimony should be awarded even when a recipient suffers financial loss unrelated to the marriage breakdown, such as sickness or unemployment.

But the court sent the battle of the Bracklows back to British Columbia for a judge to decide how much support, if any, Frank Bracklow owes his former wife.

Judge Smith based her recent decision on a Supreme Court of Canada directive that four factors should be considered: need, length of the marriage, ability to pay and the hardship imposed by the marriage collapse.

"While this award will not meet all of Ms. Bracklow's ongoing financial needs, it will assist her in meeting some of her basic requirements," said the 16-page decision. "At the same time, it is an amount that's affordable for Mr. Bracklow."

Judge Smith took into account that the Bracklow marriage was "relatively short" and that Frank Bracklow's new wife depends on him financially. He now earns $71,000 as a shop foreman at Timber Forest Products in MacKenzie, B.C.

Frank Bracklow, who feared he would have to pay his former wife indefinitely, is relieved by Judge Smith's interpretation of the high court ruling, said his lawyer, Carol Hickman.

"We were certainly concerned that the court would set a precedent that in every marital situation, regardless of the type of marriage or the circumstances, that if there was a disabled spouse, you'd have to pay indefinitely," said Ms. Hickman.

Frank Bracklow was the main breadwinner in his former relationship, in which the couple lived from 1985 until 1992. She was a keypunch operator and accountant before her illness, which became acute around the time of the couple's 1989 wedding. The Bracklows separated in 1992, a year after Marie Bracklow last had a job.

Judge Smith said Ms. Bracklow is entitled to retroactive payments of $400 a month dating back to 1995, when her support was cut off after three years because a judge ruled she had already received her fair share.

Judge Smith reinforced the Supreme Court of Canada declaration that even the neediest spouses are not automatically entitled to support and each case must be decided individually.

Copyright © Southam Inc. "National Post Online is a production of Southam Inc., Canada's largest publisher of daily newspapers."