Family Law

Berend Hovius, Professor of Law, University of Western Ontario, London, Canada. There have been significant developments in the law relating to spousal support in Canada over the last few decades and spousal support has become an issue of practical significance on marriage breakdown. While a 'clean break model' of spousal support predominated in the mid-1980s, the current trend is to recognise an expansive basis for entitlement and, provided that there is an ability to pay on the part of the respondent, to award a claiming spouse a substantial amount for an indefinite period. This reformation has been driven largely by a concern to fairly compensate wives for the economic disadvantages flowing from the roles adopted during the marriage relationship and to alleviate the economic dislocation resulting from marriage breakdown. Interestingly, the truly dramatic shift has occurred without legislative reform. Rather, the courts, led by the Supreme Court of Canada, have infused new life into the existing statutory provisions dealing with spousal support.

In this article, Berend Hovius explains the constitutional and legislative framework behind spousal support law, and the role of the federal system in Canada. The federal Divorce Act recognises diverse objectives and various relevant factors, but provides only limited guidance. By encouraging flexibility, it allows courts to respond to the particular circumstances of each married couple. However, this preservation of extensive judicial discretion also means that there is no legislatively articulated, overriding principle underpinning spousal support. The task of providing some coherence to the recipe of objectives and factors within the Act has essentially been left to the courts, particularly the Supreme Court. For the full article, see September [2007] International Family Law.