M. v. H. involved a lesbian couple who lived together in Toronto for five years. When they split-up, M. had no money. She sued H for spousal support.

Section 29 of the Family Law Act allows only heterosexual couples to sue each other. M. said that section 29 should be struck down, because it violated section 15 of the Charter of Rights. Section 15 says that the law must treat everyone equally. The Ontario government was involved in the case, as it was an Ontario lawwhich was in question. When the case first started, Bob Rae was still the premier. During the part of the case when the NDP was in power, the government actually agreed with M and said that its own law should be struck down. When Mike Hams was elected premier in 1995, the government changed its position, and argued in favour of the law which did not allow same-sex couples to sue each other for support The Supreme Court agreed with M and disagreed with the Province of Ontario.

The law treated same-sex couples unequally. The Court said that the human dignity of same sex couples was violated by the inability to sue for support.

Under the Charter of Rights , the Supreme Court has the power to “strike down” any law which is inconsistent with the Charter. The Supreme Court gave the Ontario government six months to rectify thelaw, failing which it will be struck down. This decision will have a wide impact. First, gays and lesbians all over Canada will probably end up having the right to sue each other for support. The Ontario law is similar to the laws of the oilier provinces of Canada, and it is obvious that those laws are no more valid than was the Ontario law. The decision will probably have impact outside of the narrow issue of spousal support. There are many provincial and federal laws which make a distinction between same-sex and opposite sex relationships. If lhe logic of M. v. H. is allied to these laws, they probably also will be found unconstitutional. Some examples of these other laws are:

laws regulating entitlement to benefits out of deceased estate;
laws as to who can make medical decisions for people who are incapable of doing so themselves;
laws as to who can receive employment benefits;

To the critics of the Supreme Court, this is just another example of the Court meddling in moral and political issues. In particular, critics point out that M. and H. actually settled their case before it got to the Supreme Court. The Supreme Court agreed to hear the case as it involved an important issue of law, even though there was no actual dispute between the partics. The Court was making an exception to a long established principle lhat courts will hear only actual disputes between parties and will not rule on hypothetical questions. This the critics argue, is evidence of the Court’s eagerness to make political decisions.

The prerequisites for spousal support are need and ability to pay. In other words, if one spouse needs support at the time of the divorce and the other spouse has the ability to pay, the court will usually older that spousal support be paid.

The question that clients frequently ask is: “For how long?” “When does the obligation to pay, terminate?” “If the parties are 40 years old at the time of the divorce, should the payer make payments for the rest of his or her life?”

The courts have been quite reluctant to impose time limits on spousal support. Usually, the best that the payor can hope for is a review three years or so down the road. At that point, the court can assess whether the dependent spouse has made reasonable efforts to become independent If no such effectshave been made then the court could terminate the support.

A recent case which dealt with this subject was Bildy v. Bildy (1999) 44 R.F.L (4th) 81.

The parties were married for 13 years and had children eleven and nine years old. The husband was a lawyer earning $240,000. The wife had a Grade 12 education, and the most she had ever earned was $27,000 as a secretary.

The wife had not worked outside the home for eight years. She had been the primary caregiver of the children prior to the separation and would continue to be after the divorce.

The trial judge awarded the wife $30,000 per year in spousal support, for five years.

The wife disagreed with the five-year time limitation and appealed to the Court of Appeal.

The Court of Appeal supported the wife, and removed the five-year time limit.

The Court of Appeal said that the trial judge had placed too much emphasis on self sufficiency and not enough on the effect of the wife’s past and future child care duties on her jobprospects. In other words, the trial judge had underestimated the degree to which the wife’s child care duties decreased her ability to earn income.

The Court of Appeal ordered that the $30,000 annual payments continue for nine years, at which point either party could apply for a review. There was no termination date ordered.

This case is typical of the courts’ reluctance to put a firm cut off date on spousal support. The length of time before the first review (nine years) is a bit unusual but not unprecedented.

In my experience, most clients are surprised at the extent of the spousal support obligation. Most people expect their spouse to be self sufficient at the time of the divorce, and that they should be able to “walk away” from a relationship without paying any support. In fact, even people who are in a position to collect spousal support from the other spouse are sometimes reluctant to pursue a claim because that would conflict with their sense of independence and self reliance.

Jim Herbert is a Toronto-based lawyer.

Charter v. Chartier (unreported, reasons released January 28, 1999) was a decision involving a Manitoba couple. The husband and wife lived together starting in 1989 and married in 1991. The wife had a child from a previous relationship, Jenna. The husband and wife then had their own child.

The husband assumed the role of father to Jenna during the marriage. The husband and wife led her to believe that he was her natural father. At one point, they submitted false documents to a government office to get a birth certificate for Jenna in the surname of the father.

The husband and wife separated in 1992. The husband had visits with Jenna and the younger child for a while but these visits stopped, and never resumed.

The husband took the position that he should not have to pay child support for Jenna as he was not her natural parent and he had no relationship with her.

The husband was successful at trial and before the Manitoba Court of Appeal, but this was reversed by the Supreme Court of Canada. The case involved an interpretation of section 2 (2) of the Divorce Act, which extends child support obligations to persons “who stand in the place of a parent.” The question was: can someone who stands in the place of the parent terminate that relationship, and thus eliminate the obligations which go along with the relationship. The Court said no.

The Court ordered the husband to pay $200 per month on a temporary basis, with the final amount to be set by the Manitoba courts.

So how does one come to “stand in the place of the parent”? The following factors are important:

does the child see the step parent as a parent?
does the step parent assume the role of parent to the child?
does the step parent live with the child in a family unit?
does the child participate in the step parent’s extended family?
does the parent discipline the child?
does the child have a relationship with the natural parent?

What about the possibility that this ruling could discourage people from remarrying and getting involved with their new partners’ step children? This was argued by the husband: people will be fearful of child support and will shy away from new relationships.

The Court disagreed. Quoting from an earlier Ontario decision, the Court said that a rule that allowed step parents to walk away from step children would encourage “superficial generosity” towards step children which lasted only as long as the relationship between the spouses. Children would feel “rejected and shattered” when the relationship ended and the support stopped. If the decision discouraged this type of behaviour, that was not a bad result.

Many step parents entering relationships will probably try to protect themselves from child support claims through marriage contracts. This will probably fail as the court always has the right to set aside agreements contrary to the interests of the children.

Jim Herbert is a lawyer practising in Toronto and can be reached at 416-351-0005 and he can be e-mailed at: jherbert@sympatico.ca.