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FAMILY, SOCIAL INEQUALITIES, AND THE PERSUASIVE FORCE OF INTERPERSONAL OBLIGATION(1) |
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FAMILY, SOCIAL INEQUALITIES, AND THE PERSUASIVE FORCE OF INTERPERSONAL OBLIGATION(1)
International Journal of Law, Policy and the Family, April, 2008
Lucinda Ferguson [FNa1]
Copyright © 2008 by Oxford University Press; Lucinda Ferguson
ABSTRACT
To date, the privatization of the costs of social inequalities for women and children has been criticized predominantly from a policy perspective. This article seeks to make a stronger case against remedying social inequalities through private law obligations by addressing the theoretical difficulties with such privatization with a particular focus on familial obligations. I take my core examples from the current Canadian understanding of the spousal and child support obligations.
My analysis proposes and proceeds on the basis of a new discourse for obligations traditionally grouped together as "Family Law" obligations: first, interpersonal obligations, which arise from and tie together two citizens through either a single interaction or through their relationship as a whole; second, social obligations, which are owed by the community as a whole to individual citizens.
I argue that the persuasive force of the focus on an individual's responsibility for another's financial need has obscured the reality of the state's obligation, the broader social obligation, to respond to this need. I conclude with a discussion of the consequences of my analysis for the future of the spousal and child support obligations. If we deny an expanded role to these support obligations, can we do so in a way that avoids leaving the impoverished in an even more precarious position?
1. SOCIAL AND ECONOMIC INEQUALITY IN CANADA
Thirty years after Canada ratified the International Covenant on Economic, Social and Cultural Rights, [FN1] there is little evidence of the adequate standard of living and social security to which Articles 9 and 11 of the Covenant tell us that Canadians have a right. Ratification of the United Nations Convention on the Rights of the Child, [FN2] which contains similar provisions on the right to social security (Article 26) and an adequate standard of living (Article 27), has had little impact on the quality of Canadian children's lives.
In this article, I discuss the privatization of the costs of social inequalities for women and children. It is commonly accepted that public policy concerns inform various aspects of family law legislation and judicial analysis. There is little discussion, however, as to whether, and if so in what circumstances, it is defensible or justifiable for public policy matters to underpin family law obligations that are enforced against private citizens.
My discussion is divided into three parts. First, I outline the extent to which private law, particularly the spousal and child support obligations, have been molded into tools to address social inequality. For the purposes of this analysis, I draw on examples from current Canadian law. I question the theoretical basis for this prevailing social interpretation of interpersonal obligation. Second, I analyse how a state's social obligations should be understood and applied in a framework of obligation that delimits the scope of interpersonal obligation. Third, I consider the consequences of my analysis for both the spousal and the child support obligations, as well as for impoverished women and children. I ask whether a proper understanding of the scope of interpersonal obligation actually worsens the situation of those most in need.
Before I begin my analysis, it is worth considering why the courts and legislatures may have turned to private law to remedy public problems. The reality of poverty, even in developed countries such as Canada, cannot be ignored. Social inequality is felt most acutely by women and children, particularly single mothers, separated and divorced women, and children of these women. In 2003, for example, 40.9 percent of children living in a one-parent family were living below the low income cutoff, [FN3] while only 11.5 percent of all Canadians were living below the cutoff. [FN4] In its Concluding Observations on Canada's fourth and fifth periodic reports in May 2006, the Committee on Economic, Social and Cultural Rights praised the overall decrease in individuals living below the low income cutoff but expressed particular concern over the "very high" rates of poverty among disadvantaged and marginalized Canadians, such as youth, single mothers, and Aboriginal people. [FN5]
Various public policy decisions have led to this disparity of poverty. One key example is the 1995 federal government's decision to repeal the valuable Canada Assistance Plan in favour of the less demanding Canada Health and Social Transfer block transfer plan. [FN6] Federal funding cuts followed this repeal, and provincial governments cut *63 social assistance. Recent Supreme Court of Canada decisions, such as that in Gosselin v. Québec (Attorney General) [FN7] on differential welfare payments, reveal a less progressive approach to addressing social inequality than one might hope for under the Charter. [FN8]
In Gosselin, the Supreme Court of Canada was asked to determine whether it violated an individual's equality right under s.15(1) of the Charter to receive reduced welfare payments on the basis of age. Under Québec law, individuals under 30 years of age were not entitled to the same amount of welfare benefits as older individuals. The Québec government defended this provision on the grounds that younger individuals affected by this distinction were more likely to live with their parents. [FN9] In other words, the government was relying and indirectly prevailing upon loving families to fulfill the government's obligation to support a specified subset of welfare recipients.
The majority of the Court held that this age-based distinction did not violate the s.15(1) equality right. The majority reasoned that the claimant had failed to demonstrate that differential payments treated her as less worthy than older individuals who received greater payments, and who were not required to engage in further training or education in order to qualify to receive those benefits. The decision in Gosselin is made possible by the view that there is nothing wrong in privatizing social inequality to families. This article explores the extent to which it is justifiable as a matter of theory to take a family-first approach to social -- structural -- inequality.
2. A CLASSIFICATION OF FAMILIAL OBLIGATIONS INTO INTERPERSONAL AND SOCIAL TIES
In this section, I present an account of two distinct types of legal obligation that arise in the family context; interpersonal and social obligations. It is on the basis of this distinction that I argue through discussion of legislation and case law that important familial obligations, particularly the spousal and child support obligations, have been misinterpreted and manipulated to serve social ends.
2.1 Interpersonal Obligations
Interpersonal obligations have a distinct character. They arise out of the interactions between private citizens. [FN10] The interactions that give rise to interpersonal obligations may be of two types: first, a single event or series of events that are reducible into different events giving rise to specific obligations; second, a series of events that are so intertwined that they need to be treated together for the purpose of understanding their role in grounding rights and obligations.
Type 1: Interpersonal Obligations Triggered by a Single Event
Private law, as distinct from public law, purports to concern itself with the affairs of citizens interse. Key types of obligation classified within the private law of obligations can be analysed as single events that generate interpersonal obligation. One example is the formation of a contract, with its requisite acts of offer and acceptance and the presence of consideration. The act of injuring another in a car accident through breach of a duty of care owed to that other provides another example of an interpersonal obligation.
One might object that, while it is relatively easy to accept the interpersonal status of voluntaristic contractual obligations, [FN11] [FN12] it is less than clear that the typical non-voluntaristic duty to compensate owed by tortfeasor to victim is interpersonal, rather than simply imposed by the state. I suggest that these obligations are interpersonal. The duty not to injure, and the right not to be injured by another through certain kinds of conduct (here: negligent conduct) may be understood as state-imposed, owed by citizens to all other citizens with equal and reciprocal measure. [FN13] But the tortfeasor's doing and the victim's suffering of same injury [FN14] introduces a special connection between the parties; any obligations that arise to the tortfeasor as a result of the injury relate to the special relationship between her and the victim generated by the act of causing injury, not to the general responsibility not to injury that she owes to everyone at large, including the victim.
Type 2: Interpersonal Obligations Grounded in an Inextricably Intertwined Series of Events
My analysis of private law obligations as examples of interpersonal obligation arising from a series of inextricably intertwined events is more contentious and turns on two related propositions. First, certain familial obligations -- "family law" obligations -- are properly understood as part of the private law of obligations. Key examples are the spousal and child support obligations. Second, the basis of the interpersonal obligations that arise in particular familial situations cannot be reduced to a single triggering event. [FN15]
As regards the classificatory concern, the leading private law taxonomist, Peter Birks, understood family law as part of private law, but preferred to see it as an aspect of the law of persons, rather than the law of obligations or property. [FN16] To the extent that family law, as an area of law, is designed to address relationships, their formation, ongoing management, and termination, one might accept that the field is appropriately considered as concerned with the law of persons. Careful observation of the difference between family law as a field and individual familial obligations, however, reveals the weakness of using *65 the general nature of the field as a whole to determine the categorization of that field's pertinent legal obligations. It is the overarching aims of family law as a whole that suggest a place within the private law of persons. But an awareness that particular legal obligations are aimed at regulating relationships tells us nothing about the substantive ways in which those relationships should be regulated. Thus, if individual familial obligations are, like other private law obligations, generated through citizens' interactions interse, it makes sense not to categorize them elsewhere.
Having established that certain familial obligations are properly seen as private law obligations, the question remains as to why their interpersonal nature is best understood as grounded in a series of inextricably intertwined events, rather than in a single event. This proposition can be best illustrated through discussion of a typical situation in which such familial obligations arise. Consider marriage or a period of cohabitation. While we can point to individual decisions made during the relationship and the effects that each decision had for the parties involved, each decision can only truly be understood within the broader context of the relationship as a whole. In making each decision, each party understood him- or herself relationally as part of a larger whole.
Scheffler explains this non-reductionist account of interpersonal obligations in the following terms:
If a stranger is suffering and I am in a position to help, without undue cost to myself, then I may well have a reason to do so. This much is true simply in virtue of our common humanity. However, if I have a special valued relationship with someone, and if the value I attach to the relationship is not solely instrumental in character ... then I regard the person with whom I have the relationship as capable of making additional claims on me, beyond those that people in general can make. For to attach non-instrumental value to my relationship with a particular person just is, in part, to see that person as a source of special claims in virtue of the relationship between us. [FN17]
On Scheffler's understanding, the distinction between single-event interpersonal obligations and inextricably-intertwined-series-of-events interpersonal obligations turns on whether there needs to be the performance of an act to bring about the valued connection between the parties:
In the promising case, I have reason to perform an act which, if performed, will generate an obligation. But the nonreductionist's claim about special responsibilities is different. The claim is not that, in having reason to value our relationship, I have reason to perform an act which, if performed, will generate responsibilities. The claim is rather that, to value our relationship is, in part, to see myself as having such responsibilities, so that if, here and now, I have reason to value our relationship, then what I have reason to do, here and now, is to see myself as having such responsibilities. [FN18]
If the critical distinction between the two types of interpersonal obligation turns on the presence of a relationship that one has reason to value, how can we reconcile this with the knowledge that every interaction between individuals can, and perhaps should, be understood within its surrounding factual context? [FN19]
Consider a contract made in the context of an ongoing long-term business relationship. In some situations, the contract is seen as the source of any obligations, whereas in others situations, we draw on the surrounding relationship. Scheffler's suggested touchstone for distinction -- the need for the performance of an act -- appears to have difficulty distinguishing contracts that generate obligations from contracts whose relationship context generates obligations. Another aspect of his theory may be employed for this purpose, however, particularly the idea that one has reason to value a relationship only if one has reason to value it non-instrumentally. [FN20]
One can extend this argument to provide guidance as to when contracts and when the relationship in the context of which the contract was made are properly seen as the source of any interpersonal obligations. Imagine a contract is valued because of its role in regard to the furtherance of a particular relationship. In this situation, the contract remains the source of any interpersonal obligations if the broader relationship is valued only instrumentally. Only when the broader relationship is valued non-instrumentally -- as an end in itself -- does the relationship, and not any contracts made in the context of that relationship, become the source of any interpersonal obligations.
The importance of the nature of the value one places upon any contextual relationship is illustrated in the following example. Amy has a long-standing arrangement with a general contractor, Bob, that he will do any and all necessary maintenance and renovation work on her home. Bob generally quotes for an individual job, and then bills Amy after completion. After one particular repair job, Bob comes to Amy and says that he underestimated how long it would take him; Bob asks Amy for an additional amount to represent the hours he worked over and above the amount he quoted.
While Amy could choose to hold Bob to his binding quote, she may choose instead to simply pay Bob the increased amount. Why would she do this? Because she wants to preserve their long-term relationship. But the value she places on this relationship is instrumental; Bob is good at what he does, and generally affordable, so she wishes to remain on good terms with him. If Amy's neighbour happened to recommend a contractor to her whose work was of the same standard as Bob's and who was even more reasonably priced, she would likely choose to hire him instead. Thus, any obligations should be seen as based in the individual contracts Amy makes with Bob, regardless of Amy's motivation.
Contrast the obligations that arise between Amy and her husband, Carl. Amy and Carl make various joint decisions over the course of their relationship. They decide to relocate to another part of the country so that Carl can pursue an exciting career opportunity, even though this means that Amy will have to take a lower-paid job. They decide that Amy should stay home for the first few years to raise their children. When their relationship breaks down, Amy is left much worse off financially than she was when she was with Carl, and than Carl is now. If Carl owes any interpersonal obligation(s) to support Amy, their source can only be the relationship as a whole. When viewed upon marriage breakdown, each and every decision that caused financial detriment to Amy or brought additional advantage to Carl, was one that cannot be severed from the surrounding relationship of intimacy. The joint decision that Amy leave her job to stay home and raise the children, for example, did not need to reference what would happen were the parties' marriage to dissolve because it was made in the context of a marriage relationship that both parties had reason to value in and of itself.
The non-instrumental weight of the relationship, its status as an end in the parties' reasoning, means that it is only just and fair to view as legitimate the assumption implicit in all of their interactions that the marriage would last forever. Indeed, this assumption of longevity is a state of affairs in which the state is at least complicit, if not actively encouraging that belief. [FN21] As a result, the non-instrumental value of the marriage relationship means that the costs and benefits of the decisions made during the relationship, such as Amy staying home to raise the children, need to be split between Amy and Carl in a way that most closely resembles the position had they remained together and shared those costs and benefits over time within the relationship.
The interpersonal rights and obligations that arise in intimate relationships more generally can only be properly understood as stemming from the relationship as a whole, a sum greater than the adding together of all of the individual decisions within that relationship. The distinction drawn here between two types of interpersonal obligation, and the analysis of the nature of interpersonal obligations that arise in the context of intimate relationships will prove useful in understanding the nature of the obligations that are legally recognized and enforced in the context of intimate relationships.
2.2 Social Obligations
In contrast to interpersonal obligations, social obligations form the substance of the relationship between a private citizen and the state. The basis for social obligations lies in the community at large, in a shared understanding of the place of individuals and the role of the state in that community.
The state is the primary addressee of social obligations. [FN22] We have a shared understanding, or at least sufficiently shared understanding, of the very least that each citizen requires in order to have a minimally adequate standard of living -- the "social minimum." [FN23] This shared understanding is also generally accompanied by the shared view that it is the state that is obligated to secure this minimum for its citizens. The content of the social minimum is embodied in legal instruments such as the ICESCR, although some of the rights contained therein go beyond what many would see as being required on a social minimum conception. [FN24]
While it is usually governments that are seen to be subject to social obligations, it is also possible for individual citizens to owe certain social obligations that are expressed through performance in favour of other citizens, although the scope of these obligations is more limited. [FN25] Individuals must respect the state's performance of its social obligations to others, but are not generally obliged -- other than indirectly via support of the government and its social welfare system -- to ensure that other citizens receive the social minimum.
In the context of Amy and Carl's marriage, for example, Carl owes an obligation to Amy as a voter, taxpayer and fellow citizen, to promote a government that provides Amy with the social minimum. Nickel goes further and suggests that individuals owe back-up responsibilities to fulfill the social obligations that the state owes to others. [FN26] If the social welfare payments Amy receives from the state post-marital-breakdown are inadequate, the implication is that Carl bears the responsibility for making additional payments to Amy to ensure that she benefits from a minimally decent standard of living. On this account, it is justifiable to legally enforce the spousal support obligation against Carl where that obligation is aimed at securing the social minimum to Amy.
The difficulty with this result lies in the idea that Carl's obligation to provide the social minimum to Amy arises only if the state fails to meet its obligation. The question whether one person is under an obligation vis-à-vis another person should be capable of being answered by examination of those two persons and their relationship to the exclusion of all other matters. The existence of an obligation owed by Carl to Amy should not require us to ask whether a third party (here: the state) has pre-empted the obligation through its actions.
Furthermore, Nickel's view would place an obligation upon not just Carl, but also every other citizen, to support Amy in the event of insufficient state support. There is no justification for enforcing an obligation against one citizen, such as Carl, and not others, if they all share in the obligation. Yet, if we were to enforce this obligation against everyone, the only economically viable means of enforcement would be by way of enforcement against the state, which would pass on the cost to its citizenry. It is unlikely that Amy would be better-off financially *69 were Carl or others forced to support her in addition to her welfare payments since "social assistance is likely to be cut exactly by the amount of the court-ordered support payment." [FN27]
As a result, I suggest that one should consider the state as the primary addressee of social obligations, particularly the positive obligation to provide the social minimum, and citizens as obliged to respect and encourage the state's performance of this obligation. This understanding of social obligations is critical when we ask whether certain apparently interpersonal obligations are truly interpersonal rather than social obligations whose performance has been downloaded by the state onto private citizens. In the following two sections, I use the Canadian legal obligations of spousal and child support both to illustrate the distinction between interpersonal and social obligations in practice, as well as to demonstrate how often and how deeply interpersonal familial obligations have been imbued with social aims.
3. SPOUSAL SUPPORT: A RESPONSE TO SOCIAL INEQUALITIES
The Supreme Court of Canada's spousal support jurisprudence suggests that the support obligation has been employed, at least in part, as a remedy for social inequality. Two of the Court's landmark decisions, Moge v. Moge [FN28] and Bracklow v. Bracklow, [FN29] make this clear.
Before I discuss those decisions, a brief comment on the legislative context is in order. Spousal support following divorce is a federal matter, and is governed by s.15.2 of the Divorce Act. [FN30] When determining whether an award is appropriate, and if so, what quantum and duration are appropriate, the court must consider all the factors in s.15.2(4), as well as all of the objectives listed in s.15.2(6). Subsection 15.2(4) provides that, in order spousal support, the court consider:
... the condition, means, needs, and other circumstances of the spouse, including
(a) the length of time the spouses cohabited;
(b) the functions performed by each spouse during cohabitation; and
(c) any order, agreement or arrangement relating to support of either spouse.
Subsection 15.2(6) lists the various objectives of spousal support:
(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the spouse arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
These two subsections reveal a particular understanding of the spousal support obligation as an obligation that is not entirely interpersonal, but that also has a social character. This social aspect is evidenced most clearly by the requirement that the court consider the needs of the spouse (s.15.2(4)), and make any order for spousal support with the aim of responding to disadvantages arising from, and economic hardship caused by the breakdown of the marriage (s.15.2(6)(a) and (c)).
If the legislative vision of spousal support were entirely interpersonal, only the marriage itself could generate the support obligation. The social nature of the obligation is revealed by the fact that the obligation may rest on the absence of the marriage -- the absence of the continuing support from another. The words "or its breakdown" in s.15.2(6) of the Divorce Act make plain that spousal support may be payable even where the marriage itself has not caused the hardship. In a society in which a high-earning husband shelters his wife from the reduced earning capacity of mothers and women more generally, any man who marries thereby opens himself up to compensating his wife for that reduced earning capacity if their marriage breaks down.
Of course, the aspects of ss.15.2(4) and 15.2(6) that support the social aspect of the support obligation are not intended to be used as sole justification for a spousal support order in any one case. Rather, all the factors in s.15.2(4) and all of the objectives listed in s.15.2(6) together determine entitlement to, and the amount and duration of an award of spousal support. As a result, one might suggest that a support award should always evince at least some interpersonal basis, even if the social aspects affect quantum and duration. The judicial interpretation and application of the Divorce Act provisions indicates otherwise.
The Supreme Court of Canada's landmark decision in Moge [FN31] marks a highpoint in the compensatory model of spousal support. The facts involved a long marriage of nearly twenty years prior to separation, during which the couple raised three children. The wife had little education. During the marriage she cared for their children and the house, and worked as a night cleaner. Mr Moge worked as a welder. After separation, Mrs Moge was awarded custody and $150 a month as spousal support; she continued to clean offices, but was made redundant from her job. Although she got part-time and occasional cleaning work, she was still not economically self-sufficient two years later, when a trial judge granted the husband an order terminating support.
In Moge, the Court recognized both the feminization of poverty and that very significant financial contribution was necessary if the husband was to fully compensate the wife for losses inflicted upon her by their relationship and its breakdown. Both the majority and concurring judgments were shaped through the rhetoric of compensation. Speaking for the majority, L'Heureux-Dubé J. favoured compensatory support over a "clean break" model focused on self-sufficiency. A compensatory approach, L'Heureux-Dubé J. asserted, was better able to respond to the range of legislative objectives for spousal support set out in the Divorce Act. [FN32] While the message of compensation for losses already suffered tends to be what most have taken from L'Heureux-Dubé J.'s speech, she did not understand the law to focus on compensation to the exclusion of the broader interpretation of loss:
Sections 15(7)(a) and 17(7)(a) of the [Divorce Act] are expressly compensatory in character while ss.15(7)(c) and 17(7)(c) may not be characterized as exclusively compensatory. These latter paragraphs may embrace the notion that the primary burden of spousal support should fall on family members not the state. In my view, an equitable sharing of the economic consequences of divorce does not exclude other considerations, particularly when dealing with sick or disabled spouses. While the losses and disadvantages flowing from the marriage in such cases may seem minimal in the view of some, the effect of its breakdown will not, and support will be in order in most cases. [FN33]
Madam Justice L'Heureux-Dubé thus explicitly embraced the social aspect of spousal support, and used social inequality to justify an expansive understanding of the loss resulting from the marriage and its breakdown. [FN34]
In the years following the Moge decision, the courts moved away from this broad understanding of loss, and emphasis upon compensation for loss. [FN35] The rhetoric of loss thereby lost its ability to redress social inequality through the imposition of a spousal support obligation. This weakening of the social aspect of spousal support was reversed by the Supreme Court of Canada's decision in Bracklow, in which a unanimous court explicitly employed the support obligation as a panacea for the social inequality suffered by formerly married or cohabiting individuals. [FN36]
In Bracklow, the parties lived together for a total of seven years before they separated. They were married for three of those years. When they married, the wife had some health problems. She brought two children from a previous relationship into the marriage. The parties shared expenses. Shortly after they started living together, the wife left her position as an accountant and data processor to look for a management position; her husband supported that decision. However, she found the overtime work stressful and suffered from migraine headaches. The husband was adamant that she leave this position; she did, and was able to secure only odd jobs after that time, in between periods of severe health problems. When the wife was unemployed, the husband supported the family. One year before the parties separated, the wife was hospitalized for psychiatric problems, after which she never returned to work.
How should a judge have responded to the wife's situation? Knowing that the available social assistance was and would continue to be inadequate for the wife's basic financial needs, should the judge have required that the husband continue to meet his former wife's minimum needs? Should it matter whether the permanence of the wife's condition emerged before or after the couple separated? What about the husband's right to move on with his own life? Our moral intuitions provide no obvious answers.
The various levels of court disagreed on the correct outcome. The British Columbia Supreme Court concluded that the wife was not entitled to spousal support from her former husband but, based on the husband's proposal, ordered spousal support in the order of $400 a month for 18 months. [FN37] The British Columbia Court of Appeal confirmed that the husband had no obligation to provide ongoing support to his former wife. [FN38] The Supreme Court of Canada then reversed these decisions.
The evidence in Bracklow is somewhat ambiguous as to when exactly it became clear that the wife would be incapable of ever returning to work. The Supreme Court noted that she had had health problems when she met the husband; that she had been hospitalized for a couple of periods, including one 3-month period, prior to separation; as well as that there was evidence that the fibromyalgia from which the wife suffered was aggravated by the break up. [FN39] The fact that the Court did not reach a conclusion as to precisely when the wife's inability to seek future employment emerged, suggests that this was not a critical issue. Rather, the Court was concerned to respond to the simple fact that the wife was in financial need after the separation; indeed, McLachlin J. reasoned that "[n]eed alone may be enough" to generate a support obligation, [FN40] a principle which would extend to include need that resulted from the absence of continuing support even if the marriage itself had not put that party in a needy position. Madam Justice McLachlin was explicit in the Court's intention:
"The real question [in cases in which financial independence is not possible for both parties upon separation or divorce] is whether the state should automatically bear the costs of these realities, or whether the family, including former spouses, should be asked to contribute to the need, means permitting." [FN41]
There was no one philosophy or basis for spousal support, McLachlin J. reasoned, and the "basic social obligation" model, with its non-compensatory understanding of support, could ground a support obligation as justifiably as the independent, clean-break model of marriage. Yet the Court offered no reasons for its resort to a social model of spousal support as justification for using the support obligation to redress social inequality.
Canadian courts' self-awareness as to the social nature of spousal support contained in both the governing legislation and judicial interpretation is particularly clear in the context of applications to vary court-ordered support based on remarriage or cohabitation. [FN42] If the original order was primarily needs-based, remarriage or cohabitation may be grounds for termination or reduction in quantum and/or duration. If the original order was primarily compensatory, however, remarriage or cohabitation may not of itself be sufficient to justify variation. [FN43] Subsection 17(4.1) of the Divorce Act simply requires that there be "a change in the condition, means, needs or other circumstances of either former spouse." Judicial interpretation of this provision that links the basis of the original award to the type of changes that may underpin variation reveals that courts do not see spousal support as fundamentally interpersonal in nature. Instead, interpersonal and privatized social obligations seem to be understood as two different aspects to a larger support obligation whose basic nature is uncertain.
Taken together, the governing legislation and its judicial interpretation and application, indicate a view of spousal support that recognizes the interpersonal element but that, in contradiction to that recognition, seeks to expand the support obligation as a response to social -- structural -- inequalities. In his discussion of the role of friendship in personal relations, Eekelaar seems to suggest that this apparently social approach to support may be understood as interpersonal. His argument draws on the American Law Institute's compensation-based model of support, though his expression of that approach modifies it in a subtle, but important way.
Eekelaar rejects compensation based on "opportunity costs incurred by one party by the way the parties conducted their relationship" [FN44] because of difficulties determining how much compensation would be due. Instead, he prefers compensation for the disparity that occurs upon breakdown, but suggests that it should be understood through a particular lens. He reasons:
It ... seems right to regard the compensation as being for exposure to the consequences of the economic disadvantages which the claimant has incurred as a result of the failure of the relationship, and not for those disadvantages in themselves. [FN45]
And later:
[A] person would be entitled to compensation after having shared a household with another in the context of a life plan for the financial loss caused by separation to such an extent and for such a time as is reasonable, having regard to the duration of the relationship and the opportunities to reduce the loss. [FN46]
If one considers this position in light of that taken by the Supreme Court of Canada in Moge and Bracklow, it appears to adopt a Moge-style broad understanding of compensation to respond to economic hardship that extends to include Bracklow-type need.
Eekelaar's argument here seems to be that the wealthier spouse is responsible because, through the presence of a joint life plan, he assumed responsibility for protecting his spouse from the consequences of both her economically-disadvantageous decisions (eg. leaving work to raise children) as well as structural economic disadvantages (eg. undervaluation of women in the workplace). When the relationship sours and the spouse experiences need, the joint life plan connects the wealthier spouse to the impoverished spouse's need because he was responsible not necessarily for the disadvantages she has suffered, but for protecting her from the financial impact of those disadvantages.
Difficulties arise with various aspects of this broad approach to compensation. First, the limits on compensable losses are hard to sustain. On Eekelaar's account, we compensate for disparity in standard of living following separation, but exclude loss of potential future career opportunity. [FN47] It is not clear that the disparity that exists immediately after separation is other than the current instantiation of the loss of future opportunity. If this is so, practicality concerns regarding the quantification of future-oriented losses seem to provide insufficient justification to deny recovery of such losses into the future while permitting recovery of their currently-quantifiable manifestation.
Second, the role of the joint life plan in the justification of obligation is more complex than it first appears. If we attribute responsibility to the wealthier spouse for post-separation disparity because the disparity results from decisions made in the context of a joint life plan, this suggests we must look to the terms of each life plan in order to determine which aspects of the disparity should be seen as compensable, and which not. Further, it is not clear that the idea of a joint life plan is capable of bringing within the relationship all of the disparity that arises upon separation. Elsewhere, Eekelaar rejects the idea of a joint project reaching into the future beyond the end of the marriage, arguing that" [i]t is inappropriate for someone to be entitled to a share in the fruits of another's talents and labours into the indefinite future regardless of their own circumstances." [FN48] Focus on disparity, however, is also necessarily grounded in matters outside of the interactions within the context of the relationship. Disparity necessarily includes various structural concerns, such as the immediate reality that women are less able to achieve an adequate standard of living for themselves and their children than men, that even if she worked during the marriage, the wife is less likely to be able to have sufficient income to be self-sufficient, and so forth.
We might try to avoid this conclusion by focusing on the "exposure to the consequences of the economic disadvantages" element of the failed life plan. It is not clear, however, that this concept moves much beyond the rejected direct concern for the mere fact of post-separation disparity. The exposure concept suggests itself as a causative, or at least in some sense attributive, tie between the wealthier spouse and the impoverished spouse's straightened circumstances. Yet, Eekelaar does not address how the wealthier spouse has exposed the other to the negative consequences of detrimental decisions made during the marriage. If each decision were part of a joint life plan, why should we presume that the now-impoverished spouse did not make those decisions for her benefit? Why does her lifestyle during the marriage not sufficiently offset any apparently financially-disadvantageous decisions she made jointly with her husband?
The character of the self-sacrificing wife is attributed to her retrospectively. Without more, however, there is no necessary reason for understanding her role in that way. The language of exposure to consequences suggests we should understand the nature of responsibilities and risks assumed under the joint life plan in a particular way, but does not give us sufficient reason for doing so. In the absence of such reasons, there is no clear basis for bringing within the interpersonal dimension of the relationship, those broader societal matters that have contributed to the disparity. As a result, it is hard to understand Eekelaar's compensatory model as responsive to interpersonal obligation, rather than social or, potentially, a mix of both interpersonal and social obligations. In this sense, his approach fits well with that of the Canadian courts.
[FNa1]. University Lecturer in Family Law, University of Oxford; Tutorial Fellow in Law, Oriel College, Oxford. I am grateful to the Law Commission of Canada, Canadian Association of Law Teachers, Canadian Law and Society Association, and the Canadian Council of Law Deans' 2006 Legal Dimensions Initiative for funding this research as well as my attendance at the Social Sciences Congress 2006 in Toronto. I am also grateful for insightful comments from John Eekelaar, as well as my co-panelists and attendees at the Congress.
[FN1]. G.A. res. 2200A (XXI), 21 U.N.GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3 (entered into force Jan. 3, 1976) [ICESCR].
[FN2]. 20 November 1989, 1577 U.N.T.S. 27531 (entered into force September 2 1990, signed by Canada May 28, 1990, ratified by Canada December 13, 1991) [CRC].
[FN3]. Statistics Canada, 2005.
[FN4]. Ibid.
[FN5]. United Nations Committee on Economic, Social and Cultural Rights, 2006.
[FN6]. See Canada Assistance Plan, 1966 c. C-1, repealed, 1995, c. 17.
[FN7]. 2002 SCC 84 [Gosselin].
[FN8]. Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK) 1982, c. 11 [Charter].
[FN9]. SCC, Gosselin at para.246.
[FN10]. I distinguish interpersonal obligations from all obligations that arise in the private law context. In explanatory terms, interpersonal obligations may be understood as a subset of those obligations that are recognized and enforced as private law obligations. I prefer to consider interpersonal obligations as constituting the full range of obligations that should be recognized by the private law, though I concede that this argument is entirely normative -- and not at all explanatory -- in nature.
[FN11]. This simplified understanding of contractual obligations itself obscures the continuing theoretical difficulties one experiences when one seeks to justify the enforcement of claims for breach of contract. Theories of contractual obligation cluster around some conception of autonomy. See, e.g., Fried, 1981; Kraus, 2002; Markovits, 2004. Yet, these arguments are vulnerable to criticism on practical and theoretical grounds.
There is significant and growing evidence to suggest that contracting parties do not know, read, or understand the terms to which they agree. See, e.g., Robertson, 2006. In addition, no autonomy-based understanding of contract yet presented has satisfactorily connected the notion that parties are bound by their contractual obligations with the measure of the remedy awarded when the contract is breached. See, e.g., Craswell, 2006.
[FN12]. The correctness of concluding that offer, acceptance and consideration coalesce to create a moment at which binding rights and obligations are generated is also challenged by relational contract theory. If one favours a relational approach, one might consider contractual obligation to be an example of the second type of interpersonal obligation, namely based in relationship, rather than individual interactions. For an introduction to relational contract theory, see Macneil, 2001.
[FN13]. This conception of the nature of tort law obligations draws on Ripstein's argument for a reciprocal conception of justice. See Ripstein, 2004.
[FN14]. The language of "doing" and "suffering" in this context is Weinrib's. See Weinrib, 1995, especially c.8. In Weinrib's discussion, this point forms part of his larger argument for the autonomy of private law.
[FN15]. Peter Birks first advocated for an events-based classification of the private law of obligations. See e.g, Birks, 2003: c.1. Birks' taxonomical model is now widely accepted, though the contents of particular categories remain contested. Edelman, for example, argues for a revised understanding of the place of restitution for wrongs within the Birksian scheme. See Edelman, 2002.
[FN16]. Birks, 2000: 1.
[FN17]. See Scheffler, 2001: 100.
[FN18]. Scheffler, 2001: 104.
[FN19]. The idea that we cannot truly understand individuals' actions unless we view them within the context of that individuals' relationships with others is embodied in the feminist concept of "relational autonomy." For an introduction to this approach, see Mackenzie and Stoljar, 2000; Nedelsky, 1989. Reece also discusses the idea of the relationship as the source of identity within post-liberal theory. See Reece, 2003: 93-98.
[FN20]. Scheffler, 2001: 101.
[FN21]. If it were otherwise, one would expect to various government action, such as government-funded awareness campaigns regarding the divorce statistics and support obligations, as well as mandatory pre-marriage counseling that included coverage of the risks of marriage and the chances of failure.
[FN22]. Nickel makes this claim in relation to social rights. See Nickel, 2007: 147.
[FN23]. For an introduction to the "social minimum," see e.g. White, 2000; Nickel, 2005 (advancing the 'Vance conception' of economic and social rights as the minimum required for each citizen).
[FN24]. One example is the Article 12 right to enjoy the highest attainable standard of mental and physical health.
[FN25]. Nickel makes this claim in relation to social rights. See Nickel, 2007: 147.
[FN26]. Nickel, 2007: 147.
[FN27]. Eichler, 1990-91: 83.
[FN28]. Moge v. Moge, [1992] 3 S.C.R. 813 [Moge].
[FN29]. Bracklow v. Bracklow (1995), 13 R.F.L. (4th) 184 (BCSC), aff'd (1997), 30 R.F.L. (4th) 313 (BCCA), rev'd, [1999] 1 S.C.R. 420 [Bracklow].
[FN30]. R.S.C., 1985, c. 3 (2nd Supp.).
[FN31]. Moge, supra note 31.
[FN32]. Moge, supra note 31, L'Heureux-Dubé J., at para.68. Divorce Act (ss. 15(7)(a)-(c) are currently in force as ss. 15.2(6)(a)-(c)).
[FN33]. Moge, supra note 31, L'Heureux-Dubé J. at para.75 [emphasis added]. See also Rogerson, 2001: s.2. Rogerson comments: "Did Moge mean that compensation was the only basis for spousal support or was there a non-compensatory basis for support as well? While this question was often posed, the answer was actually fairly easy -- yes, Moge did contemplate that there could be a non-compensatory basis for spousal support."
[FN34]. Moge, supra note 31, L'Heureux-Dubé J. at para.75.
[FN35]. See e.g. Waterman v. Waterman, [1995] N.J. No. 295 (C.A.).
[FN36]. Another clear example of the use of spousal support to address social inequality that was not caused by the relationship itself, but by the surrounding broader social circumstances, is Philp v. Philp, [1997] O.J. No. 3415 (Ct. J. (Gen. Div.)) [Philp].
In Philp, the wife brought an application for spousal support 11 years after the parties ceased cohabiting. On the facts, the wife had lived in increasing poverty since the breakdown of the relationship, working very physical jobs, selling assets and, finally, relying on friends and family. The wife claimed that her delay in bringing an application was a result of a severe depression that was caused by the parties' break-up. Speaking for the Ontario Court of Justice, Eberhard Prov. Ct. J. held that, while such delay as evident on the facts would normally have barred a claim, the wife's depression and poverty, which could be linked to the end of the relationship, combined to justify making an exception in this case. Madam Justice Eberhard concluded that "[g]reater injustice would arise from the refusal of such a claim on the basis of delay than in granting the rightful claim though the one who has benefited by the failure to bring it [the husband] had taken comfort by the passage of time that it would not be brought." Philp, Eberhard Prov. Ct. J. at para.39. Without the additional element of poverty, it is unclear that the wife's claim for support would have been successful, even though the depression that prevented her from being in a position to make a claim was caused by the marriage breakdown.
[FN37]. BCSC, Bracklow, supra note 32.
[FN38]. BCCA, Bracklow, supra note 32.
[FN39]. SCC, Bracklow, supra note 32, McLachlin J. at para.7.
[FN40]. SCC, Bracklow, supra note 32 McLachlin J. at para.43. As an aside, when it was returned to the British Columbia Supreme Court for determination of quantum and duration, Smith J. imposed only a moderate support obligation of $400 a month for eight years following the separation. The lengthy legal proceedings meant that this period of support ended only three-and-a-half months after the hearing. See Bracklow v. Bracklow (1999), 3 R.F.L. (5th) 179 (BCSC). Mr. Justice Smith ruled that, as of the initial trial in 1995, the appropriate award would have been for a further five years, so that the support obligation terminated in February 2000. Factoring in the interim award, Mrs. Bracklow received eight years of modest support (at $400 a month) for the dissolution of a seven-year relationship.
[FN41]. SCC, Bracklow, supra note 32 McLachlin J. at para.32.
[FN42]. Divorce Act, supra note 33 s.17.
[FN43]. See e.g. Peloquin v. Peloquin, [2004] MBQB 193, aff'd [2005] MBCA 133; Goudy v. Malbeuf, [2002] S.J. No. 466 (Q.B.); Rosario v. Rosario (1991), 37 R.F.L. (3d) 24 (Alta. C.A.). Speaking for British Columbia Supreme Court in Patrick v. Patrick, Baker J. stated that:
The evidence on an application to vary a so-called "compensatory support" order must establish not only that there has been a significant change in the means and needs of the parties since trial but also that the factors which resulted in economic disadvantage during the marriage and after its breakdown no longer exist and that the lost advantage has been recovered.
See (1994), 92 B.C.L.R. (2d) 50 (S.C.), Baker J. at 53-54.
[FN44]. Eekelaar, 2006: 52.
[FN45]. Eekelaar, 2006: 52 [my emphasis].
[FN46]. Eekelaar, 2006: 52 [my emphasis].
[FN47]. Ibid.: 147.
[FN48]. Ibid.
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