Globe and Mail

"Till death do them part"

MARGARET WENTE
The Globe and Mail
Tuesday, May 23, 2000

Not so long ago, an ex-wife's lot in life was raw.

Raise the kids, keep the house, entertain your husband's business pals as he climbed the corporate ladder, and tough tootsies to you when he ran off with his secretary after 30 years of marriage. Not until the 1980s did wives with long service and low earnings prospects start to get a fair deal in court.

Things are different now. How different? A few weeks ago, a highly respected judge ruled that a certain ex-husband must start supporting his ex-wife to the tune of $5,000 a month.

The wrinkle is this: The pair split up in 1985.

The case of Bailey v. Plaxton has sent a rocket through legal circles. It could pave the way for thousands of support agreements to be torn up and renegotiated. Some people argue the decision is a fair-minded and progressive extension of current trends in divorce settlements.

Some people say it's a giant step in the wrong direction.

All agree that it sends an unnerving message to everyone who might be, is now, or ever has been married. The message is: It's never, ever over.

Beverly Bailey and Alan Plaxton wed in 1965. It was a traditional marriage; he worked, she stayed home. They had three kids. After 20 years, they separated, and he became the primary parent. In 1987, when she was 44, they signed a standard separation agreement. He would pay her $2,000 a month in support for another three years, and each would get half the matrimonial assets. She took away $650,000.

Mr. Plaxton paid every penny and, by 1990, they were quits. "The parties realize that their respective financial circumstances may change in the future," said the separation agreement. They "specifically agree that no such change will give either party the right to claim support."

During the next decade, their fortunes diverged. He was a stockbroker, and made a windfall in the mid-1990s when a big bank bought his firm. He worked and prospered, and today has a big income and is worth $5-million. She tried a career in photography, but it didn't work out. She tried a career in real estate, but it didn't work out either. She made some bad investments and lost her money. He says she squandered it. By last year, she was broke and afraid she'd lose her house.

So she took her ex to court. Her argument boiled down to this: She needs money; he's got money.

Mr. Justice Frances Kitely of Ontario's Superior Court agreed, and ordered Mr. Plaxton to cough up. The support order is only temporary, until the case goes to trial next fall, and a trial judge may rule differently. But divorce lawyers are agog. "This is something the courts are very seriously going to consider," says long-time lawyer Linda Silver Dranoff. "If the husband has got the ability to pay something, I think many courts are going to respond to that."

Mr. Plaxton's lawyer, Stephen Grant, says: "It's paternalistic. The courts are supposed to respect the sanctity of private contracts. They wouldn't upset business contracts and reorder them because they don't like the deal."

It's not new for judges to overrule the deal when they think one spouse has been radically disadvantaged by it. An ex-spouse is clearly entitled to be compensated for the consequences of a dependent relationship. But how long after the fact? Five years? Ten? Forever?

"The wife has a need," ruled Judge Kitely. "She does not have the means to meet that need. . . . The husband has the ability to pay."

Ruling in another case last year, the Supreme Court of Canada said, "One is simply not allowed to abandon a spouse to destitution at the end of a marriage if one has financial resources which might assist in relieving the other spouse's circumstances." That case involved an ex-wife who had become disabled. The court said former spouses may have a special duty to support their sick or disabled ex-partners, even if the marriage was relatively short.

But what if the ex is neither sick nor disabled but merely unsuccessful, or hapless or careless or dreamy or lazy or just plain unlucky? Unfortunately, the Supremes were not very helpful.

"From a feminist perspective, the judge made a very defensible analysis," says Hilary Linton, another family lawyer. "But it's a very hard one to digest for people who are going to pay support. This case says if she goes through the money, what then? She can blow through it and come back for more."

As the Supreme Court warned, "While it may not prove to be till death do us part, marriage is a serious commitment not to be undertaken lightly. It involves the potential for lifelong obligation. There are no magical cutoff dates."

As Mr. Plaxton ponders that, he'll have lots of company -- tens of thousands of ex-husbands and a few ex-wives who thought they were off the hook. No such thing. The hook is for life, even if marriage isn't.

E-mail: mwente@globeandmail.ca

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