Developing Spousal Support Guidelines in Canada: Beginning the Discussion

III. THEORIES OF SPOUSAL SUPPORT

An important starting point in any attempt to articulate spousal support guidelines is the identification and clarification of the basic theoretical principles which ground and structure the obligation. Guidelines then involve an attempt to craft practical and easily-administered rules to implement these theoretical principle; they are acknowledged to be "crude approximations" that will inevitably involve some sacrifice of theoretical purity in the interests of efficient dispute resolution.[22]

This section of the paper attempts to identify the various theoretical bases which have been put forward to justify the spousal support obligation and the possibilities each offers for the development of guidelines. The focus here will largely be on ideas about the purpose of the spousal support obligation articulated in the burgeoning academic literature on the subject, but it will be readily apparent that the various theories are all reflected, to varying degrees, in the evolving law of spousal support in Canada. While many of the theories of spousal support are presented, at least in the academic literature, as exclusive, in practice multiple theories often operate together. As well, very different theories can often lead to similar methodologies for the determination of spousal support outcomes.

It should be kept in mind in reading this section of the paper that the goal in presenting these theories is not to restructure our law of spousal support around a new theory or to force consensus on one particular theory. This project is ultimately a practical one rather than theoretical one. Its goal is to attempt to identify emerging patterns in the current case law and develop a consensus on appropriate outcomes in particular kinds of cases. Part of that process does, however, involve identifying and clarifying the ideas that generate and justify particular support outcomes.

An established feature of our law of spousal support is its recognition of diverse theoretical bases for the spousal support obligation. This diversity has been encouraged in Canada by the multiple purposes for spousal support recognized in our legislation and the significance attached to this legislative choice in Bracklow. Any set of proposed guidelines built on the current law would therefore have to recognize the diverse bases for spousal support. However, as discussed above in Part II, we have now reached the unacceptable point, where there is little coherence to the conceptual structure of spousal support. This is a major source of the uncertainty that now pervades this area.

Any attempt to bring more certainty and predictability into the law will require at least some clarification of the basic, theoretical principles that justify and structure the support obligation and the ways in which these different principles might work together. The review of the different theories of spousal support which follows is directed as assisting in that process.

A. Traditional Spousal Support: Status and Fault; The Promise of a Pension for Life

The law of spousal support—or alimony as it was traditionally known—was once relatively straightforward. A wife, innocent of matrimonial fault, was entitled upon the breakdown of the marriage to support in an amount that would allow her to maintain the marital standard of living for the rest of her life, or until remarriage.

The conceptual foundation of this understanding of spousal support—sometimes labeled the "pension for life" model—was clear. The support obligation was clearly grounded in the status of marriage and was justified through a contractual analysis of the obligations taken on in marriage in which fault played a central role. Essentially, spousal support was a form of expectation damages for breach of contract. Marriage was understood to involve, on the husband's part, a promise of life-long economic support to his wife. If he subsequently decided to abandon the relationship or was responsible for its breakdown through commission of a matrimonial offense, the "innocent" wife was able to claim what she had been promised by marriage—life-long economic security. The traditional law of spousal support involved a large component of "needs and means" analysis. Alimony was intended to provide for the wife's economic needs; and in principle, if not in practice,[23] "need" was to be assessed in the context of the marital relationship and the standard of living the wife had enjoyed during its course.

Given the relatively clear understanding of the basis of the support obligation which prevailed in the past, it is not surprising that early versions of what we might now call spousal support guidelines evolved to determine the quantum of support.[24] The so-called "one third rule," which derived from the practice of ecclesiastical courts, was often applied in cases where the husband was the sole income earner, presumptively entitling the wife to spousal support fixed at one-third of the husband's income. (In practice, the one-third rule often came to encompass both spousal and child support, thus setting an absolute ceiling well-below one half of a payor's income.) In cases where both the husband and wife earned income, courts sometimes applied a formula under which spousal support was calculated so as to leave the wife, after combining spousal support and her own income, with two-fifths of the parties' joint income. Other courts wb-eqhtd the parties' incomes. Spousal support was never completely fixed and determinate, but some presumptive rules evolved.

B. Modern Spousal Support: The Challenge of Finding New Theories

The introduction of no-fault divorce, which in Canada became available under the 1968 Divorce Act, eliminated the rationales of status and fault that sustained the traditional model of spousal support. A status-based support obligation assumes that marriage in and of itself entails a promise of life-long support, an assumption at odds with premise of the terminability of marriage on which no-fault divorce rests. And status was intertwined with fault, which was the linchpin of the traditional model.

With the disappearance of fault, an explanation of spousal support as an innocent wife's expectation damages for her husband's breach of his marital obligations was no longer sustainable.[25] To the extent that spousal support was understood as simply giving a spouse what he or she would have gotten had the marriage continued, the imposition of the obligation was rendered illegitimate. Absent a finding of wrongful breach of promise, why was one spouse required to use his or her "means" to meet the "needs" of the other post-divorce? Logically, either a new explanation had to be found to justify the obligation, or the obligation had to be eliminated.

The modern law of spousal support can be seen as a series of on-going responses to the theoretical challenge of justifying the imposition of a post-divorce support obligation between spouses in the context of modern family. The challenge has been to come up with new justifications for the imposition of a continuing spousal support obligation after divorce to replace explanations based on status and fault.

As the following review will show, it is not clear that status has been entirely eliminated from all of the new theories. Some of the more generous theories retain a significant status component. Fault has been eliminated, but elements of status have remained. But serious questions can be raised about whether status-based theories can be theoretically coherent and legitimate without the framework of fault. In the post-Bracklow case law one finds a tendency on the part of some judges and lawyers to assume that non-compensatory or "needs-based" support is essentially a revival of the traditional model of spousal support, where the obligation is founded on an expectation of life-long support that is triggered by the fact of marriage and having enjoyed a particular standard of living during the marriage.[26] The theoretical basis for such awards, absent a framework of fault which assigns responsibility for marriage breakdown, is dubious.

C. Rehabilitation, Self-Sufficiency and the "Clean Break"

The first response to the theoretical challenge of justifying spousal support in the new world of no-fault divorce is by now a very familiar one: the answer was that it was not possible, given the assumptions of no-fault divorce, to justify the imposition of extensive support obligations post-divorce. Spousal support was to be provided for a limited transitional period to allow spouses a period of time to "rehabilitate." For unemployed spouses, spousal support would provide a period of time in which they could acquire or upgrade skills to enable them to seek employment and become self-sufficient. In other situations, where no change in a spouse's earning capacity was contemplated post-divorce, spousal support would provide a period of time for lower-earner spouses to reorganize their lives and "gear down" their standard of living. Under these rehabilitative and transitional theories, the purpose of spousal support was to facilitate spousal self-sufficiency and to encourage a "clean break" between the spouses as quickly as possible.

On these theories, a former spouse's "needs" were, after a period of transition, to be satisfied by his or her own income, or barring that, the state. The Law Reform Commission of Canada's very influential 1975 Working Paper on Maintenance[27] placed considerable emphasis on the rehabilitative and transitional nature of the spousal support obligation. In 1987 the Supreme Court of Canada's Pelech trilogy[28] further encouraged wide-spread reliance upon such concepts.

It is possible to imagine a rehabilitative model of spousal support under which awards would be based upon a highly individualized assessment of the amount and duration of support that would be required for the training and integration into the workforce of a particular spouse based on his or her individual capacities. On-going support could also be contemplated where rehabilitation was not possible. In practice, however, the rehabilitative model of spousal support collapsed into a "clean break" model of spousal support characterized by the predominance of time-limited orders and relatively stringent ceilings on quantum. Support was provided for what often appeared to be arbitrarily defined periods of three or five years. Whatever its failings on the fairness front, the clean break model did have an element of predictability and certainty—support was limited, both in terms of duration and quantum, by ideas of spousal self-sufficiency.

Spurred in part by growing evidence of the severe decline in the economic circumstances of women and children after marriage breakdown, the clean break model came under increasing criticism for its unfair treatment of former spouses. Numerous alternative theories, reviewed below, have been put forward to justify a more extensive spousal support obligation. In practice, while transitional or rehabilitative support is no longer the exclusive basis for an award of spousal support, these ideas have not disappeared from the law and still continue to inform spousal support awards in certain circumstances. As alternative theories generate more extensive support obligations, they continue to struggle with the issue of how to maintain incentives for spouses to realize their post-divorce earning capacity. As will be shown in the review below, some of the alternative theories that have been proposed in place of the clean break theory are essentially schemes of transition payments. However, the payments proposed under these newer transitional theories are more generous and more responsive to the length of the marriage than those generated under the clean break model.

D. Compensation for Economic Loss; Forgone Careers and Loss of Opportunity

Compensatory theories have loomed very large in modern attempts to justify the spousal support obligation. These theories, of which Ira Ellman's "The Theory of Alimony" is the best-known example,[29] draw heavily on economic theory[30] to suggest that imposition of a post-divorce support obligation can be justified by the need to compensate a spouse for earning capacity or "human capital" losses arising as a result of the roles adopted during the marriage.[31] Although the various compensatory theories differ in their details, the central principle is one of compensation for economic loss. Under such theories the marital standard of living or the other spouse's income is, in principle, irrelevant. The benchmark for assessing spousal support is the earning capacity the spouse would currently have in the paid labour market had he or she not married.

Under compensatory theories, which have an element of "causal connection" built into them, spousal support will not be available in all marriages to respond to post-divorce economic need; rather, it will only be available in cases where an earning capacity loss traceable to the marriage can be established. While offering a fairly restrictive basis for spousal support awards, such theories have the potential to support fairly generous awards in cases where there have been significant losses of earning capacity because of lengthy periods of work-force interruption—certainly more generous awards than those under a strict clean break approach.

In terms of our evolving law of spousal support, compensatory theories have clearly had a significant impact. The Law Reform Commission of Canada's 1975 working paper on maintenance[32] gave indirect support to the compensatory principle in its articulation of the idea that the right to spousal support flows not from the fact of marriage but from a division of functions within the marriage which has had the effect of hampering the ability of a spouse to provide for himself or herself. More direct and explicit endorsement of the compensatory principle came with Moge, where the Court actually drew upon the emerging academic literature supporting compensatory theories.

The compensatory principle, as articulated in Moge, was admittedly an extremely broad one—at its broadest a principle requiring the equitable distribution between the spouses of the economic consequences of the marriage and its breakdown. This principle could be (and over time has been) interpreted in many different ways in light of many different theories of spousal support. However, at the core of the judgment was a concern with providing compensation for loss of economic opportunity as a result of roles adopted in the marriage, particularly roles with respect to the past and on-going care of children which had resulted in one spouse's greater sacrifice of labour force participation.

Compensatory theories have attracted substantial support as offering a sound, theoretical justification for a post-divorce spousal support obligation within the structure of modern family law.[33] They have, however, run into problems on both practical and theoretical fronts. These problems manifested themselves in the post-Moge case law and paved the way for the subsequent restructuring of the spousal support framework in Bracklow so as to encompass alternative theories under the label of non-compensatory support.

On the practical front, compensatory theories are difficult to implement. Establishing a support claim requires individualized evidence of earning capacity loss. This can be costly to the extent it requires expert evidence. Evidence of earning capacity loss can also be difficult to obtain, particularly in cases of long marriages where the spouse claiming spousal support had no established "career" before assuming the role of homemaker.[34] Estimates of earning capacity loss thus become very hypothetical. Difficult factual issues of causation can also be raised: Why did a spouse remain out of the labour force or choose lowly-paid employment? Was it because of personal choices and interests, or because of the marriage? And of what of choices that were shaped by societal expectations?

Not surprisingly, in the post-Moge case law judges responded to these "implementation" problems by developing proxy measures of economic loss. "Need" became a convenient proxy measure of economic disadvantage, such that a spouse in economic need was presumed to be suffering economic disadvantage as a result of the marriage; and conversely a spouse not in need was presumed not to have suffered any economic disadvantage as a result of the marriage. And, at least in longer marriages, need was measured against the marital standard of living. The goal of spousal support was toprovide the support claimant, when combined with what she might reasonably be expected to earn, a "reasonable" standard of living judged in light of the marital standard of living.[35] Thus the compensatory model of spousal support started to collapse into something that resembled a more traditional support model where the governing concepts were need and standard of living.

The ALI proposals, which will be discussed in more detail in Part IV, below, also illustrate a resort to proxy measures for earning capacity loss by primary care-givers that appears to be at odds with the basic premises of the compensatory theory. In the case of the ALI, the choice was made to measure loss of earning capacity by the disparity in spousal incomes at the end of the marriage, thus making the income of the payor the measure of economic loss. The explanation offered by the ALI drafters is the somewhat contestable assumption that people tend to choose spouses of similar economic status.[35a] Income-sharing, a methodology whereby spousal support is determined as a percentage of the difference in spousal incomes, was thus chosen as a practical mechanism to implement the compensatory principle.

The emergence of proxy measures for economic loss which focus on the marital standard of living and the payor's income can be explained as crude compromises driven by the practical need to sacrifice theoretical purity in the achievement of workable principles. However, the gap between the proxy measures and the compensatory theory also suggests that other theories of spousal support may actually be operating. While some have identified implementation problems as the major weakness of the compensatory theory, others have found it wanting on theoretical front, generating an array of alternative theories that are grouped below under the broad label of income-sharing theories.

E. Income-Sharing Theories

On the theoretical front, the early compensatory theories, grounded in the loss of opportunity principle, have been criticized as being based on a distorted and inadequate conception of the marital relationship, one which is unduly individualistic and market-based.[36] New theories of spousal support have emerged which emphasize the relational aspect of marriage and the merger of economic (and non-economic) lives that marriage involves. While these theories vary in their details and their basic justificatory principles, they all rest to some degree on a view of marriage as a community or partnership informed by norms of trust and sharing. Marital incomes are understood as being, for one reason or another, joint incomes and the spouses are understood to be entitled to share those incomes for some period of time after marriage breakdown.

Generically, these theories may be called "income-sharing" theories, for they focus directly on spouses' post-divorce incomes, generating an obligation on the higher-income spouse to transfer a portion of his or her income to the lower-income spouse. These theories, as compared to theories directed at compensation for economic loss, more easily generate formulaic rules for post-divorce income sharing, with length of marriage often being a crucial factor in determining the extent of the sharing. Under these theories, income-sharing is justifiable as a matter of principle, not simply as a methodology which serves as a very crude proxy measure for something else (i.e. economic loss). Some of the different variants of income-sharing theories will be reviewed in more detail below.

While the concerns with a principle of compensation for economic loss were perhaps not articulated with the same precision as in the academic literature, the post-Moge case law reveals, at least indirectly, the operation of many of these theories. Initially dissatisfaction with a strict economic loss approach manifested itself in reconfigurations of the Moge compensatory principle to provide a broader basis for the support obligation. Courts began to stretch the compensatory principle to include the idea of compensation for economic advantages conferred by marriage, as well as the idea of compensation for the economic consequences of the marriage breakdown (i.e. loss of access to the other spouse's income and drop in standard of living). In Bracklow, however, the Supreme Court of Canada responded by explicitly recognizing an alternative basis for spousal support—non-compensatory support based on "need alone".

Given some of the limitations of a narrow compensatory theory based on economic loss, it was not surprising to see some expansion of the basis for spousal support. However, the basis of Bracklow's non-compensatory support is conceptually confused. The Bracklow judgment, which did not draw on any of the academic literature articulating alternative theories of spousal support, failed to articulate a coherent theoretical basis for non-compensatory support, giving rise to widely differing interpretations by judges and lawyers. Some of the newer income-sharing theories reviewed below offer possibilities for developing a more principled approach to thinking about non-compensatory support—in particular the theory of "merger over time".

(a) Income Sharing Model I: sharing of marital gains; compensation for contributions and advantages; marital partnership

Some versions of income-sharing are still broadly compensatory in orientation, in that they retain a focus on the economic aspects of the marital relationship. In particular, they remain concerned with the economic implications of the gendered division of labour within the family, and are directed to providing compensation for that. But these income-sharing theories reject the individualized calculation of the wife's loss of earning capacity as an appropriate way to measure or assess the value of her non-financial contributions to the marriage. Rather, these theories draw upon an understanding of marriage as a partnership to which the spouses contribute their joint efforts, entitling them upon breakdown to share equally the profits of the marriage.

This concept of partnership is utilized to justify compensating the wife for her contributions to the marriage through an on-going share of the earning capacity or human capital her husband acquired during the marriage. On this view, the wife's loss of earning capacity is related to the husband's ability to retain and develop his earning capacity. Post-divorce income is understood to involve returns on joint efforts within the marriage, thus justifying sharing. Under these income-sharing theories, which focus on enhancements of human capital, contribution replaces loss as the primary principle justifying spousal support. Spousal support is thus, like matrimonial property, an earned entitlement; a reward for marital labours. The challenge under such theories is to determine what portion of post-divorce income is attributable to marital efforts, with many relying upon length of marriage as a central factor.

One example of an income-sharing proposal based on sharing marital investments in human capital is that of Jana Singer, who offered an "equal partnership" model of spousal support that would require full income sharing (i.e. income equalization) on a formula of one year of sharing for every two years of marriage.[37] Other theories with a similar focus on sharing the product of marital joint efforts have attempted to more precisely identify the gains in spousal earning capacity or human capital during the marriage, with formulas then being developed to share such gains based on the length of the marriage.[38]

Existing case law certainly offers examples of courts using spousal support to compensate one spouse for contributions to the other spouse's earning capacity. However claims for "reimbursement" support grounded in restitutionary principles have typically only been recognized in cases where one spouse has made a very "direct" contribution, either of labour or money, to the career enhancement of the other spouse. The most common context in which such claims arise is that where one spouse has funded the other's education and received no "return on the investment" because of a marriage breakdown shortly after graduation.[38a] In cases where the spousal contributions in issue are those of child-care and home-making, the wife's contributions have typically been analyzed in terms of her loss rather than her husband's gain.

However, there are some recent decisions which have adopted a broader "marital partnership" approach to valuing a wife's non-financial contributions to the marriage, particularly the assumption of a disproportionate share of child-rearing responsibilities. In these cases, of which a good example is the Ontario case of Marinangeli,[39] the wife's assumption of responsibility for child-rearing is seen as having provided the husband with the freedom to devote himself to work while being able to enjoy the benefits of children. In these cases, courts have began to emphasize the economic "advantages" the husband has acquired through the marriage. They have thus justified awarding the wife a portion of his post-divorce earnings on the basis that she has contributed to his earning capacity—even if she is earning what she might have earned apart from the marriage. In Marinangeli, for example, this idea of "compensation for advantages" was used to justify an increase in spousal support to allow the wife to share the increase in the husband's post-divorce income.

While the idea of "compensation for contributions" or "compensation for advantages conferred" may provide an appropriate justification for spousal support in certain fact situations—and one can debate which—it is difficult to use this idea to sustain broad-based schemes of income-sharing that apply to all marriages. In some cases it will simply be difficult to argue, factually, that the higher-income spouse experienced any economic "gains" as a result of the marriage or that his or her earning capacity at the end of the marriage was affected in any significant way by contributions made by the other spouse. Other justifications for broad-based schemes of income-sharing are thus required.

(b) Income Sharing Model II: recognizing marital interdependency, transition payments, marriage as a community, merger over time

In other versions of income-sharing, the justification for sharing does not rest exclusively on the gains and losses in human capital during marriage. Instead the rationale for sharing is the interdependency or merger of lives that takes place during marriage. This might include pooling of efforts and sharing of gains, but also involves significant elements of expectation, reliance, obligation and responsibility. Periods of income sharing are thus provided to recognize the difficulty of unraveling intertwined lives, with the extent of sharing typical increasing with the length of the marriage. Two different ideas dominate these theories—that of "transition payments" and that of "merger over time". Each will be described in turn.

(i) Transition Payments

Many of these income-sharing theories essentially conceptualize spousal support as a set of "transition payments," but of a much more generous nature than provided under clean-break theories of spousal support. Many of them generate guidelines which mandate periods of income equalization related to the length of the marriage, while in some cases the quantum of the payments (i.e., the percentage of income shared) is also influenced by the length of the marriage.

Jane Ellis put forward an early proposal for what she explicitly labeled "transition payments" which would provide an initial period of income equalization (for example one year for each five years of marriage) followed by a sharing of declining percentages of income down to zero over the remaining period of time to a maximum of one-half the duration of the marriage.[40]

One of the two models for income sharing subsequently proposed by Stephen Sugarman[41] was based on a concept of "fair notice" (the other—the "merger over time" model—will be discussed below). The "fair notice" model provided for equal sharing of income for a period of time proportionate to the length of the marriage, for example one year of sharing for every two years of marriage.

More recently, Milton Regan has built a justification for spousal support on a vision of marriage as a community involving a shared life identified by norms of collective welfare and obligation rather than self-interest. He envisions spousal support as providing a cushion for the transition from the marital community to a single individual—the longer the marriage the longer the transition period. Specifically, he proposes a model of post-divorce income-sharing that would involve income equalization for a period of time equivalent to the length of the marriage.[42]

(ii) Merger over Time

Stephen Sugarman's second model of income sharing, which is based on the idea of what he calls "merger over time,"[43] differs from the "transition payments" models described above in that it is not structured around limits on duration, but rather around limits on quantum. His "merger over time" model would provide for indefinite sharing of post-divorce income, but with the percentage related to the length of the marriage. He suggests, by way of example, that each spouse might gain a 1.5 percent or 2 percent interest in the other spouse's human capital/future earnings for each year of marriage, with a possible ceiling of 40 per cent or 20 years. This model of income-sharing is based on the idea that the human capital of spouses merges over time—that over time their human capital becomes intertwined rather than being affixed to a particular individual. In part the "merger over time" theory is based on the idea of joint spousal contributions to human capital. But it also involves recognition of interdependency and the kind of merger of economic lives that takes place over time whereby spouses stop thinking of their human capital as their own, and whereby a dependent spouse "submerges her or his independent identity and earning capacity into the marital collective."[44]

Sugarman's "merger over time" theory of income-sharing has been influential in the American context where, as will be seen in Part IV, it has played a central role in structuring the ALI's proposed guidelines and the guidelines subsequently adopted in Maricopa County, Arizona. In both cases, a central feature, derived from Sugarman's work, is the so-called "durational factor" which relates the percentage of income shared to the length of the marriage.

(iii) Bracklow and Income-Sharing Theories

While no explicit reference was made in Bracklow to any of the theoretical literature offering alternatives to the compensatory model, some of the language of "interdependency" used to describe the rationale for non-compensatory support[45] is suggestive of either the "merger over time" or "transition payments" models described above. These theories may offer possibilities for a principled way in which to understand and structure non-compensatory support obligations. Certainly some of the post-Bracklow case law on non-compensatory support can be seen as an indirect and at least partial reflection of these theories. Thus in some cases, including the re-trial of Bracklow itself,[46] courts have related the extent of the support obligation to the length of the marriage and have been willing to impose time limits on the obligation to pay non-compensatory support in cases of shorter and even medium-duration marriages. But the language used in Bracklow is ambiguous and confusing, suggesting an alternative view that non-compensatory support is grounded in "need alone" and a "basic social obligation" assumed in marriage. Furthermore, the Court refused to unequivocally endorse the use of length of marriage as a "proxy" for interdependency.

(c) Implications of income-sharing theories

Income-sharing theories, whether based on sharing enhancements of human capital or recognizing the interdependency that comes from the merger of lives over time, are clearly attractive in that they generate easily-administered rules for the determination of spousal support. From a theoretical perspective, however, their appropriateness remains a matter of debate. For some these theories more accurately capture the nature of the marital relationship and offer a fairer distribution of economic resources at its end than either the clean break or compensatory (economic loss) theories. The use of the length of the marriage to structure and limit the extent of the support obligation is seen as sufficient to distinguish these theories from the traditional, and now indefensible, model of spousal support that rests on the promise of life-long support flowing from the status of marriage itself.

For others, these income-sharing models entail the re-infusion of too large an element of status-based obligations into spousal support law. This is seen as inconsistent with modern family law's recognition of the autonomy of spouses and the terminability of marriage. Income-sharing is seen as akin to the traditional model of spousal support, where obligations are based on the fact of marriage itself, but without the system of fault which was the linchpin of the traditional model. Those with such concerns tend to favour a more individualistic compensatory theory that would provide spousal support only in cases where the marriage and marital roles have resulted in an identifiable loss of earning capacity. The competing pulls of the compensatory and income-sharing theories of spousal support create a tension that pervades our current law.

F. Basic Social Obligation: the Income Security Model of Spousal Support

One idea about spousal support has received little support in the academic literature as a justifiable basis for spousal support, but it continues to operate as a justification in practice. This is the idea the families have a fundamental social responsibility to meet the basic income-security needs of their members. This idea has a long history in spousal support[46a] and continues to exert its influence. On this "income-security" or "basic social obligation" theory, spousal support is understood as an obligation to make provision for a former spouse's basic needs and is clearly grounded in status—in obligations assumed upon marriage.[46b] Under this model, there would be no time limits on support if a spouse is unable to meet basic needs, but the concept of basic need would limit quantum.

This justification for spousal support draws on public policy concerns about conserving public resources, requiring that the basic needs of former spouses be first satisfied through private sources of support. The family, rather than the state, is understood to have primary responsibility for meeting the basic income-security needs of its members. As well, in the context of the adjudication of individual cases, this theory inevitably draws on judicial sympathy for spouses in desperate financial circumstances and a recognition of the stigma attached to welfare and the meager levels of support provided by the state.

This "basic social obligation" justification for spousal support raises many difficult conceptual issues. If it is based on the idea of the primacy of the family as a source of income-security for individuals in need, it raises questions about the responsibility of other family members for support of persons in need—such as parents and adult children. As well, the theoretical grounding for this "income-security" theory of spousal support is shaky absent a framework of fault. This theory does not generate awards at the level of the traditional model of spousal support, which promised the marital standard of living. It is, nonetheless, a pure status-based obligation and theoretically vulnerable as such. It continues, however, to find support in the case law.

In Moge Justice L'Heureux-Dubé recognized that despite the predominance of compensatory objectives, some the language in the spousal support provisions of the Divorce Act, particularly the references to relief of "hardship." "may embrace the notion that the primary burden of spousal support should fall on family members, not the state."[46c] Bracklow draws on this statement to justify recognition of a non-compensatory basis for support. Although there is language in Bracklow suggesting that non-compensatory support can be understood in light of income-sharing theories based on merger of lives over time, there is also language which strongly suggests the "basic social obligation" theory. Non-compensatory support is said to be based on "need alone" and is explicitly described as a "basic social obligation" assumed in marriage. The Court describes the "mutual obligation" model of marriage, on which non-compensatory support rests as

plac[ing] the primary burden of support for a needy partner who cannot attain post-marital self-sufficiency on the partners to the relationship, rather than on the state, recognizing the potential injustice of foisting a helpless former partner onto the public assistance roles.[47]

G. Parental Partnership

A new variant of income-sharing proposals, which has been identified by June Carbone as the "second wave" of income-sharing,[48] is based on the obligations derived from parenthood rather than the marital relationship per se. These proposals, which might be labeled "parental partnership" theories, respond to the situation of younger women who divorce after shorter marriages with the care of children. The income-sharing theories reviewed above focus on obligations flowing from the marital relationship, and use the length of the relationship as a proxy measure of the extent of the merger of economic lives and hence of the extent of the obligation to share income post-divorce. As a result, they generate relatively limited spousal support obligations in cases of shorter marriages. The newer income-sharing proposals base income-sharing on the presence of minor children; the crucial determinant of the extent of income-sharing is not the length of the marriage, but the length of the child–rearing period, which includes the post-divorce period. The period of income-sharing could thus be much longer than the length of the marriage.

Under these income-sharing proposals, which focus on the presence of minor children, spousal support is justified because child support does not take into account the full costs of child-rearing. More specifically, two justifications are offered for spousal income-sharing when there are minor children. First, these proposals recognize that concerns with the impairment of earning capacity continue to be relevant in the post-divorce period. Spousal support is justified by the need to compensate custodial parents for the effect of on-going child-rearing efforts on their earning capacity.[49] However, many of these proposals also recognize a more direct obligation to children—the obligation of a parent to provide his or her children with a standard of living equivalent to his own. And these theories recognize that the children's standard of living is a household standard of living determined in large part by the income of the custodial parent. Thus in these versions of income-sharing, the boundary between child support and spousal support becomes blurred, with both serving to sustain the standard of living of the custodial parent and children.

Joan Williams' proposal for income-sharing reflects the concept of parental partnership. Drawing on a view of the "ideal worker's wage" as a family wage, she proposes an equalization of household standards of living for the duration of the children's dependence, and thereafter an equalization of income for one further year for every two years of marriage.[50] The principle of equalization Williams adopts while there are minor children present is notably not that of simple income equalization. Rather, the standard is equalization of household standards of living, which takes into account differences in the number of people in each household.

Reflections of the parental partnership theory may be found in decisions such as those of the Ontario Court of Appeal in Andrews[51] and Adams,[52] discussed above in Part II. In these decisions courts have endorsed awards of spousal support which, when combined with child support, result in a 60/40 split of net disposable household income in favour of the custodial parent,. The principle in Andrews, however, is not as generous as the one advocated by Williams. It does not result in an equalization of household standards of living. At best the Andrews methodology involves an equalization between the spouses of whatever income remains after payment of child support.

This "second wave" of income-sharing theories, driven by a principle of sharing parental responsibilities, is even more controversial than the first wave. Many would argue that taking children's interests seriously does require equalization of household standards of living in cases where there are minor children. This is not, however, the understanding of parental financial obligation that informs our current law of child support. Income-sharing proposals based on notions of parental partnership are open to the criticism that they involve the use of spousal support to create a more expansive child support obligation. Indeed, the ALI proposals, which will be reviewed in Part IV below, deal with issues related to post-divorce child-rearing through a reconfiguration of the law of child support, rather than spousal support. Making distinctions between marriages with and without children in the context of claims for spousal support also raises concerns that the law is favouring women who are "breeders" and is failing to value other spousal roles and contributions.[53]

Such proposals also entail a fairly radical shift in norms. Extensive, long-term obligations to a former spouse may be imposed even after a very short relationship if there are children, in order to recognize and support the former spouse's on-going role as caregiver. On a practical level, long periods of post-divorce life lie ahead for each of the spouses in cases of shorter marriages with minor children, which will likely include re-partnering for one if not both of the spouses. To the extent that the support obligation in these models is directed at equalizing household standards of living, difficult questions will be raised about the impact on the support obligation of the reconfiguration of households through the addition both of new incomes and new financial obligations.

H. Drawing Together the Strands: Where Does the Theory Take Us?

Where does this review of theory take us in terms of the project at hand? Several important themes emerge from the review of theory:

  • First, that theory is important. Some understandings of spousal support are inconsistent with the basic premises of modern family law, in particular the removal of fault as a relevant factor in the determination of spousal support. Conceptions of spousal support based on expectations or promises flowing from the fact of marriage are theoretically on shaky ground.
  • Second, that compensatory theories have a tendency, in practice, to merge with income-sharing theories because of the need to develop proxy measures of loss. While there is a tension between compensatory and income-sharing theories, there is also a fair amount of overlap. Particularly in cases of longer marriages, compensatory and non-compensatory theories may generate similar results.
  • Third, that there are many "income-sharing" theories that offer theoretically defensible possibilities for structuring Bracklow-style non-compensatory support, the basis for which is now extremely confused. Particularly promising is the "merger over time" theory. These income-sharing theories are not uncontentious; some see them as bringing too much of an element of "status" back into spousal support. But this does seem to be the direction in which our law has moved, so it seems best to accept this and try to structure income-sharing in theoretically appropriate ways.
  • Fourth, that the "parental partnership" theories, the "second wave" of income-sharing theories, may offer a way of understanding the developments in our law represented by decisions such as Andrews, where one finds extensive spousal support obligations being imposed in cases where there are minor children. But this theory, as well, is not uncontentious. There is some tension between "first wave" and "second wave" theories of income-sharing, which hangs on the significance to be given to children, and in particular the on-going responsibility for the care of children after dissolution, as a crucial determinant of the extent of the spousal support obligation.

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