Justice

Parting as a sweeter sorrow: one half for him, the other for her

SHEILA GORMELY November 15 1976
Justice

Parting as a sweeter sorrow: one half for him, the other for her

SHEILA GORMELY November 15 1976

Parting as a sweeter sorrow: one half for him, the other for her

Justice

For more than a century family law in Canada has preserved the inequality of the sexes. When a marriage failed, the husband was entitled to the fruits of his earnings—home, car, investments—while the wife, regardless of her contribution to the union, was entitled only to support payments; common-law wives were denied even that right. That formula for inequity was underlined by the celebrated Murdoch case of 1974, in which the Supreme Court of Canada rejected a bid from divorced housewife Irene Murdoch fora half interest in the prosperous Alberta ranch she had helped build through 24 years of marriage—because the ranch was legally in her husband’s name. Since then, Irene Murdoch has won a $65,000 court-ordered settlement from her husband and law reform commissions in half-a-dozen provinces have recommended sweeping changes in family law. Last month, in a move expected to be repeated across the country, the Ontario government took the first, long-awaited step toward making those recommendations reality, tabling the Family Law Reform Act.

In the words of Attorney General Roy McMurtry, the proposals “sweep away centuries of legal tradition and the ramshackle structures of marriage law.” Specifically, in making spouses separate but equal, the Act provides for a 50:50 split of family assets (home, car, cottage, etc.), but gives precedence to other arrangements agreed upon in a formal marriage contract. In the absence of a contract, family court judges will have wide powers to determine the exact distribution of family property. “Maybe I’m a little old-fashioned,” says McMurtry, who has been married 20 years and is the father of six children, “but I’m not going to sit down and enter into a marriage contract with my wife. I’d prefer to rely on mutual trust and fairness.” Still, McMurtry acknowledges that such decent motives attend few marriage dissolutions and that for people who want to set their own rules for property, support and the raising of children, the marriage contract may have strong appeal.

Scheduled to take effect next July, the new laws also apply to common-law relationships of longer than two years; force parents to support children (including those born out of wedlock) until the age of 16; and compel children of 18 years to help maintain needy parents. The philosophical premise of the bill is that all members of the family entity must sustain its weakest individual, husband, wife or child.

McMurtry’s family assets law, retroac-

tive to existing marriages, is a unique blending of the two systems of deferred community property and judicial discretion. Although it has never been tried anywhere in the world, it is by no means radical. It falls more within McMurtry’s own description of “moderate but progressive.” Lawyers practising family law generally laud the reform package as long overdue but voice a few reservations. One complaint is that it doesn't go as far as the Ontario Law Reform Commission’s 1974 recommendation that spouses have an equal share in all assets, including businesses. Except in individual cases where a spouse has contributed labor or money to a business, family assets are generally restricted to the matrimonial home and its contents, the car. boat and cottage. Explains lawyer Karen Weiler, of the Attorney General’s policy development division: “The consensus was that people are willing to share family assets, but that businesses should be considered separate property because they are built up on individual initiative. Conceivably, the exemption of businesses from the property split may be an escape clause for some spouses.” “What about the man

who rents a home and puts his money in savings bonds or into an art collection?” asks Ottawa lawyer and broadcaster, Karin Wells. The answer: the judge may look at a husband's or wife’s business assets if family property is insignificant. Notes McMurtry: “Contributions of spouses, directly or indirectly, will be recognized.” The judge can also use the duration of marriage as a criterion to deal with situations in which a spouse holds considerable property and the marriage breaks down in a matter of months.

Another criticism is that even though common-law spouses are now obliged to support dependent partners, they do not have the right to spell out financial obligations in a marriage contract or to share in family assets. “This is bad,” says Toronto lawyer Harriet Sachs. “There is no equality between common-law and legal marriages. A lot of peoplejust don't want to get married but they are just as aware of their legal liabilities, especially when they have children.” Ironically, one of the strongest opponents of the bill is McMurtry’s own brother, John, a University of Guelph professor who lives common-law and has four children. “The government has no business regulating these relationships,” the younger McMurtry says. “The very reason two people live together without getting

married is to escape the legal hassles that pervade married relationships.”

Lawyers also argue that the wide discretion allowed judges, especially the right to alter the 50:50 division of assets, which Ontario’s Law Reform Commission is against, will simply increase civil litigation. “There’s no doubt a lot will be happening in lawyers’ offices,” says Sachs. For example, she asks: “What does the law really mean when it defines common-law spouses as people who have lived together as man and wife for two years? Does the woman have to use the man’s name and do they have to represent themselves to the community as a married couple?” McM urtry privately hopes the new regulations will motivate couples to divide assets outside the courtroom. If couples assume equal sharing of property, court proceedings would be an expensive waste of time. On the other hand, somejudges have told him that the courts may become further jammed, especially with common-law wives seeking redress.

Since equal status law means that each partner, man or woman, bears ultimate responsibility for his or her well-being, the new law makes it possible for husbands to win financial support from working wives. To date, only two such support cases have been successful in Canada, but there is now the potential for many more. Some 41 % of married women in Ontario work on a fullor part-time basis; as they begin to earn as much, or more, as their husbands, theoretical equality of the sexes will become de facto equality. Alimony payments have been abolished and no woman can automatically expect to be maintained by a departing spouse in the style to which she became accustomed.

One scarcely discussed section of the law will help to alleviate “90% of the heartbreak of marriage breakdown,” says Toronto lawyer Clayton Ruby. If a spouse defaults on support payments, employers may be ordered to garnishee wages, and the court can compel provincial agencies and private individuals to disclose their current addresses. Says Ruby: “This means anytime he pays a light bill, gets a driver’s license or takes out insurance, he’s down on the record and it’s available to the court, but not to the plaintiff. They’ll be able to get at the average wage earner who has a job, and a car, but who is refusing to meet his obligation to his family.”

Ontario is breaking new territory with family law reform and lawyers predict it will take several years before workable guidelines are established. The creation of unified courts will help to relieve the jurisdictional muddle that typically occurs when a marriage falls apart. Family law is governed by both federal and provincial governments. The granting of divorces is strictly federal—a right enshrined in the British North America Act. The settlement of matrimonial property is a right claimed by the provinces, but custody and support may fall within either jurisdiction. To

streamline the process, Ottawa is cooperating with Ontario in an experiment in a Hamilton court next year that could give provincial family court judges a temporary right to grant divorces. Two unified courts, in which federal judges handle all details, are proposed for Manitoba and Prince Edward Island and in British Columbia federal and provincial judges are already working in tandem on divorce cases.

Just one day before McMurtry tabled his proposals, Justice Minister Ron Basford told the House of Commons that the federal government would implement the recommendations of the Law Reform Commission of Canada, unless the prov-

inces started introducing equitable matrimonial laws. (The federal commission favors the division of all assets, except inheritances and gifts.) Basford says Ontario’s law “substantially” meets the property-sharing problems of the average Ontario couple—given that most couples don’t own business assets.

Inevitably, the new law will face a shakedown period of adjustment. But the consensus is that Ontario has struck a modest but progressive blow for reform. Says McMurtry: “Any system of rules for economic sharing must be designed for the average couple. No single solution will be appropriate in all cases.”

SHEILA GORMELY