In a relationship, men have traditionally been seen as the "provider," earning more money than their wife or girlfriend. In today's world, there has been a trend developing where women are earning more than men. When divorce occurs in this circumstance, there is a reversal of socially expected roles when it comes to spousal support.
For couples who are married, the federal Divorce Act sets out the spousal support rules. Under the Act, spousal support is most likely to be paid when there is a big difference between the spouses' incomes after they separate.
But what about couples who are not married? Well, in Ontario, the Family Law Act sets out the rules for unmarried couples who were in a common-law relationship and for married couples who separate but who are not divorcing. The law views spousal relationships as financial partnerships. If the spouses are not married, they must have lived together as a couple for at least three years, or for any length of time if they were in a relationship of "some permanence" and had a child together. When the partnership breaks down, the person with more income or assets may have to pay support to the other.
Over the years, as social roles change, in my opinion, the judiciary needs to adjust with the changing realities. This is especially true when it comes to family law in a rapidly changing social landscape.
One of the areas of change, which the judiciary while still lagging behind, seems to be slowly adjusting to, are increasing claims by men for spousal support. At my practice, we are seeing an increase in cases of spousal support now, and more men claiming spousal support. This is a reversal of roles in the 40- to 50-year-old bracket. However, an implicit bias against men does remain while the judiciary adjusts to this social demographic change.
The judiciary is becoming increasingly mindful of this gender bias in an effort to correct it.
The wording of the legislation is gender neutral and provides a number of factors for the court to consider when deciding spousal support. As noted by Justice Wildman in Hamdy v. Hamdy, "gender is, of course irrelevant in determining spousal support. What is important are the roles assumed in the marriage."
There are statistics in the United States that support the movement of women indeed earning more than their boyfriend or husband. According to the United States Department of Labor, Bureau of Labor Statistics (BLS), in 38 per cent of heterosexual American marriages, the woman outearns her husband. This is a significant change from what the numbers looked like in 1987, when less than a quarter of women were the primary earners in their relationships. It should be noted that in these numbers, a lot of those women are earning more because they're the only member of the marriage who is earning anything at all. When the BLS looked instead at marriages where both partners are in paid work, it found that only 29 per cent of women earn more than their husbands. In 2013, the University of Chicago Booth School of Business published a paper that looked at 4,000 married couples in America. It found that once a woman started to earn more than her husband, divorce rates increased. This data showed that "whether the wife earns a little bit more or a lot more doesn't actually make much of a difference. The researchers concluded what really matters is the mere fact of a woman earning more."
When a judge is determining an amount of spousal support and length of time it must be paid, the judge will consider things such as:
- The length of the relationship.
- Whether there are children and what arrangements have been made.
- The roles of the spouses played during the relationship.
- The age of each spouse.
- Each spouse's financial situation.
- The Spousal Support Advisory Guidelines (SSAG).
From my experience, it does appear that the application of the law by the judiciary and even lawyers has often been subjected to an implicit gender bias, which is often unintended but is contextualized in social realities of assumed gender roles. These social realities are fast changing, and so the judiciary is becoming increasingly mindful of this gender bias in an effort to correct it.
Even as early as 20 years ago, claims by men for spousal support in Ontario were far few in between, and even more rarely granted by the courts.
More recently, we are seeing greater numbers of claims, as well as the judiciary making a conscious effort to address the potential bias. As commented by Justice Wildman in Hamdy v. Hamdy (2015) at paragraph 338, "it is important to ensure that any spousal support decision does not have an unintended 'gender bias.'"
Lawyers too are starting to challenge the biases more openly in court, alerting the judiciary to the need for the application of the support provisions to be neutral. In Bechard v. Illingworth (2003), counsel for the husband specifically argued that "if the situation was reversed, if the female spouse were to ask for spousal support after a 15-year relationship during which the male spouse was the sole provider she would be entitled to support," per paragraph 33. While there the court still did not award the support, such arguments bring the potential bias to the forefront for judicial consideration.
A similar argument was advanced in Gibson v. Gibson (2005) at paragraph 15: "counsel for the respondent also argues that in similar circumstances a court would have no difficulty ordering spousal support but because the respondent is male that there may be some sort of perverse logic that entitlement is a reflection of one's gender." Support was awarded.
Spousal support is evolving from the traditional role of a man supporting a woman financially. This is a social trend which will continue to develop, there is no denying this. It's time the courts in Ontario reflect this and treat women and men without bias when it comes to spousal support.
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