The Globe and Mail
Thu 13 Nov 2008
Page: L3
Section: Globe Life
Byline: Sarah Hampson
Remember those wonderful years in your marriage when you and your husband decided that the whole have-it-all thing that you were trying to do with the career and the kids didn't make sense? He supported your decision to stay at home, and it was bliss.
In divorce, that decision is often the source of the most mean-spirited, painful fight. If you thought the mommy wars were bad, this related war - call it the spousal support slaughter - is worse.
Some men receive spousal support, of course, but in the vast majority of cases - at least 99 per cent, family lawyers say - women do. As the most contentious issue in divorce, it is where the choices that people and their former spouses made about how to manage their family are addressed - and not always fairly.
Not for those most likely to pay it, that is. The husbands. And it hurts women, too, but in unexpected ways.
Almost everything else about divorce is formulaic and decided by law. There are rules about property division, and legislated guidelines for child support. But spousal support is discretionary. There is a complex calculation based on, among other factors, length of the marriage, age of the children, and age of the spouse to be supported. But the guidelines are not law, and therefore subject to argument.
Those guidelines have changed significantly in recent years, and in many ways the amendments were important. In 1992, a landmark case at the Supreme Court of Canada introduced the notion of compensatory support. If, for example, a woman had adjusted her work habits to accommodate the care of the couple's children, she could argue for a payment from her ex that was indefinite in endurance. Even when the children left home, even if she remarried, and even if she re-entered the work force full time, she could get support to make up for her diminished lifetime income that resulted from a decision years earlier to shift her work-life priorities in favour of caring for the children.
But ironically, what is a victory for women's choices and an important effort to address the feminization of poverty post-divorce is also, in many cases, a harmful disincentive for women to find identity, meaning and self- sufficiency through work.
It is both an advancement and a regression, if taken too far, for women's issues. But few in the legal community are willing to publicly discuss the politically sensitive topic.
"The mindset among the judiciary is that women need to be sheltered and helped," explains one family lawyer, who asked for anonymity. "They are afraid of appearing heartless if they don't side with women."
Stories about the fights between ex-spouses over this issue are legion. Men often argue that their exes should get back to work, even if they once encouraged their wives' decision to stay home, a choice that had clearly facilitated their own careers. "They often don't appreciate how difficult it is for women to switch gears," says Linda Meldrum, a family lawyer in Toronto. Many can also be oblivious to the lack of opportunities faced by an older woman who has been out of the work force for a number of years.
But women often abuse the system. "There are women who see it as a sense of entitlement," another lawyer says. "And there are cases where women cry wolf to try to get themselves off the hook for having to work," he adds.
Many divorced men complain about having to support an ex-wife who finds a reason - medical, emotional or circumstantial - why she cannot work.
One male reader wrote to me about having to pay spousal and child support to his ex-wife, who is living with a boyfriend in comfortable circumstances.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
2 comments:
How about musings on child support for "adult child" plus contributions for post-secondary expenses with commentary on discretion of the judge concerning deviating from the Guidelines. Please also opine on how the court factors in the tax credit received by the Recipient spouse for university expenses and child's duty to contribute. Throw in the issue of costs and the deductibility of recipient's legal fees (but not payor's legal fees) from taxes.
I am never accurately able to predict for my clients the court's decision. In one case I recently did the payor who earned exactly the same as the receipent mother paid 105% of the extraordinary expense plus 2/3 of regular amount of child support for the summer months!
In another case the daughter received OSAP which was completely discountd by the Judge because in the Judge's opinion the child should not be saddled with debt for her post-secondary studies.
That issue is at least as cumbersome and difficult as spousal support following the advent of the Advisory Guidelines.
Thanks for this very solid comment!
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