Family Law: The Moge Case Of Causal Support In Canada

Spousal support has emerged as a critical issue in family law in Canada, with the Moge case setting a critical precedent. Describe the provisions underlying spousal support and the issues that govern awards of spousal support, drawing upon the text, case law from the text, and the three online readings, Aspe, L.M.P. and G.M.W. Given what you have read, how would you describe the current state of the law of spousal support in Canada?

Family Law in Canada has evolved over the past century. In the 1960’s divorce was very rare and the traditional family was viewed as the norm. Nowadays, there are many more variables to a marriage, including mixed marriages, common-law relationships and single-parent families. Expectations in a family setting have

changed along with these variables. Nowadays, child custody and support is often a complex decision that requires both parties to negotiate. Something else that is newer in the realm of family law is spousal support. Since the Divorce Act of 1985, sections were added to take into consideration the effects divorce may have on a spouse who is used to a certain way of living. If after the divorce their living circumstances change drastically, in particular for the negative, the other spouse could be required to support that person for a set period of time to allow them to assume self-sufficiency. As will be evident in the cases presented below, the provisions in the sections surrounding spousal support can be quite intricate and debatable. The five cases presented will allow for a better understanding of the provisions and the issues that govern awards of spousal support, as well as portray the current state of the law of spousal support in Canada.
The first case I will be addressing is the Moge v. Moge case as it is a case that is commonly used as a precedent for the factors related to determining spousal support. Notably, this case addressed the prevalent gender imbalances that create economic hardships for the woman after the breakdown of a marriage. This case was referred to in the three following cases as well. Mr. Moge and Mrs. Moge were married in the mid 50’s. She was mainly the homemaker but also worked at night to supplement Mr. Moge’s salary. When they were divorced Mr. Moge was ordered to pay $150 a month in spousal support and child support. For many years, the amount of spousal support and child support fluctuated as Mrs. Moge found it difficult to earn enough with her grade 7 education to support her and her children. She eventually found stable employment but she appealed the judge’s decision to cease all spousal support. Mr. Moge then brought Mrs. Moge back to court to counter-appeal that decision, saying that he should not continue to pay Mrs. Moge. The judge found that that because of the traditional nature of the marriage, Mrs. Moge was disadvantaged economically because of the marriage and divorce. Her level of self-sufficiency would always be lower than Mr. Moge’s and she would continue to suffer economic hardships because of the divorce. Because she made every effort to become self-sufficient, but failed because of reasons related to the marriage, Mr. Moge lost his counter-appeal. This case demonstrated the relationship between “marriage breakdown and the economic status of the respective spouses” (Boyd, 2015, p. 254), as well as the factors that come into play when deciding spousal support, of which many are argued in the proceeding cases.
In Aspe v. Aspe, Mr. Aspe filed an appeal over a judge’s decision to order retroactive support from Mr. Aspe, to increase the amount of spousal support instead of terminating it, to permit a review in two years’ time. (Aspe v. Aspe, 2010, sec. 2). The couple was married in 1978 and had three daughters together. They separated in 1993 and were divorced on January 20, 1995. Mr. Aspe paid child support for the three daughters and spousal support to Ms. Aspe every month. In 2008 a judge made the decisions mentioned above and Mr. Aspe made an appeal to the supreme court of B.C. What is important in this case is the idea of retroactive support, self-sufficiency and economic situations in deciding spousal support, and section 15.2 of the Divorce Act. Retroactive support refers to support that was not paid or where someone fails to make the payment. Mr. Aspe was ordered form the judge to retroactively increase the amount of spousal support to April 1, 2008. This means he would have had to pay for the difference in support since the judge changed the spousal support amount. Retroactive support requires many factors in order to be passed. “Those factors are the needs of the recipient, the conduct of the payer, the reason for the delay in seeking the order, and any hardship a retroactive award may cause the payer spouse” (Aspe v. Aspe, 2010, sec. 56). It was found during the appeal that there was no basis for a retroactive order and that Mr. Aspe was not displaying inappropriate conduct. Because the reason for the delay was that of Ms. Aspe and not Mr. Aspe, no blame should have been put on him. Lastly, the hardship of the payer is analysed. Mr. Aspe had spent more than necessary on supporting Ms. Aspe and had incurred debts on his business to pay for his family, so this factor also weighs in Mr. Aspe’s favour. This explains why the appeal judge accepted Mr. Aspe’s attempts at undoing the retroactive support.
In regards to the second issue, the increasing of spousal support Mr. Aspe was expected to pay to Ms. Aspe, section 17(7) of the Divorce Act was used. Section 17(7) of the Divorce Act “sets out the factors to be considered in deciding whether spousal support should be varied” (Aspe v. Aspe, 2010, sec. 30). These factors include: recognition of any economic disadvantage from either the marriage or the divorce, division of financial consequences from the unforeseen special care of a child, relieving of economic hardships arising from the divorce, and the promotion of economic self-sufficiency of each spouse “within a reasonable period of time” (Aspe v. Aspe, 2010, sec. 30). These factors, along with section 15.2 of the Divorce Act, which looks at the initial decision of spousal support, were the deciding factors in allocating more spousal support to Ms. Aspe. However, the appeal judge found that the chambers judged put too much emphasis on section 15.2 without considering section 17. It is important to note that section 15 can only be used at the time of the order of spousal support, because any change afterwards is in relation to section 17. Therefore, the appeal judge found that the chambers judged erred in increasing the spousal support by 134%. Because Mr. Aspe, at this point, had the daughters in his care, he faced the economic hardship of housing and caring for them. With this in mind, the chambers judged lowered the spousal support to $1 500, a slighter increase. This demonstrates that many factors go in to deciding how much spousal support should be, and how to address changes in financial situations in both parties. The economic hardships of both spouses are taken into consideration.
The last decision addressed in the appeal was the continuation of spousal support for two years and the waiting of two years before reviewing the spousal support.

The appeal judge agreed that two more years of spousal support was appropriate. The judge’s reasoning was that Ms. Aspe’s financial struggles were not related to the marriage or divorce, but that she needed a period of time to become self-sufficient and financially stable. This is seen in many cases where the female stayed at home to care for children and is in need of extra time to find work and stability. This is similar to the Moge v. Moge

case.
In summary, this case demonstrates the factors related to retroactive and varied spousal support and how these factors come into play in today’s Divorce Act. Specifically, the economic situations and hardships that arise because of the marriage or divorce.
The L.M.P. v. L.S. case brings up a similar situation of spousal support and variation of said support. It varies in that it does not look into retroactive support. It does; however, analyse the same two sections in the Divorce Act, in particular, self-sufficiency and financial situations. This case also recognized that sections 15 and 17 have different purposes and therefore are used differently in court. Section 15 refers to the creation of the agreement and section 17 refers to any change or variation to the order as per request of either participating party. In this case, L.S. was required to pay spousal support to his former wife, L.M.P., after their divorce in 2003. L.S. appealed to have the spousal support decreased and then eventually finished by 2010. L.S. was granted this in the Quebec Court of Appeal, but the wife counter-appealed that decision by stating that she did not have the capacities to work and she therefore could not be self-sufficient. This fact distinguishes this case from the Aspe case and Moge case, as the wife in this situation did not have the option of becoming self-sufficient. L.M.P. argued that there was “no material change of circumstance since the order was made and that there was therefore no basis on which to vary it under s. 17(4.1) of the Divorce Act” (L.M.P. v. L.S., 2011, sec. 3). Material change of circumstance is the main point of argument in this case. The wife argued that spousal support was being ceased because of what the husband had alleged instead of viable proof of change of circumstance. The wife, because she had multiple sclerosis, was unable to work outside the home. The husband was aware of this fact but argued that she made it seem worse than it really was. The trial judge agreed with the husband without finding proof of change of circumstance with the wife. Material change of circumstances must meet the Willicks test. This means that “a change is not material if it was known to the parties or must reasonably be taken as having been contemplated by them” (L.M.P. v. L.S., 2011, sec 84). It also must not be a temporary circumstance. The more specific an order of spousal support is, the more helpful the Willicks inquiry is to the court. If the order is very general, it is harder for the court to answer the Willicks inquiry to find out the parties’ circumstances during the separation. L.M.P. won her case in demonstrating that material change of circumstances had not been proven and therefore, the order of spousal support could not be varied. She proved that the change was not material and that her circumstance is not temporary nor unknown by both parties. Because of her disability, it was not expected for her to find work, and the husband is expected to continue paying support.
In the G.M.W.

v. D.P.W. case, the outcome has less to do about spousal support than child support. The father in this case kept trying to diminish the amount of support he owed to the mother because of changing financial situations. He wanted the support to be retroactively reduced. However, despite establishing a material change of circumstance, as was described in the L.M.P. v. L.S. case, the relevant D.B.S. case that describes a relevant factor was not considered. The D.B.S. case established that four factors need to be taken into consideration for retroactive support, two of which are relevant to spousal support: the circumstances surrounding the delay and the payer’s conduct (L.M.P. v. L.S., 2014, sec. 42). In this case, the father did not notify the mother of any changes in a timely manner and his delay was considered unreasonable. This demonstrates that in Canada’s law system that acting in a timely matter is important. It also shows that child support is viewed as more vital than child support as child support is harder to modify. Children require stability, and retroactive changes in support can alter that stability. In sum, this case shows that acting within a reasonable amount of time is necessary in successful retroactive spousal support

cases.
In conclusion, I have learned that the current state of the law on spousal support looks at economic hardships and circumstances as the most important factor in determining spousal support amounts. Marriage is viewed as an economic endeavor and the breakdown of that marriage has economic effects on both spouses. The ideas of material change of circumstance, retroactive support, variation, and due process all play a role in determining the outcomes of these cases in relation to the Divorce Act.