From Monday's Globe and Mail
April 27, 2009 at 3:36 AM EDT
After ending a two-year marriage that had produced no children, Rod Refcio had every reason to believe that his spousal support obligations would be modest.
Ontario Court Judge Thomas Granger instead shocked the young London, Ont., lawyer in 2006 by ordering him to pay his ex-wife $1,500 a month - indefinitely.
Last week, a Divisional Court panel capped the award, saying that it will end next year. There must be a realistic end to the compensation to which Katia Refcio is entitled, the court said. "There needs to be a finality and a clean break at a reasonable point in time."
Legal experts said the Refcio case illustrates how dysfunctional and unpredictable the spousal support system can be.
"The problem with spousal support right across Canada is that there really is not the kind of predictability that lawyers and clients want and need," said Michael Cochrane, a Toronto family lawyer.
"This case is a very good example, under a microscope, of some of the wild swings that can occur in opinions about spousal support. For many payers of support, the duration of an order is the part they really fear. In this case, the court really had to step in and put a cap on what this woman's entitlement was."
Phil Epstein, a Toronto family law expert, said that both Judge Granger and the Divisional Court panel appeared to award more than they should have on the basis that Ms. Refcio has since had twins with another man and is bringing them up alone.
"I'm not sure why her former partner should be responsible for that - particularly when she will be receiving child support for her two children," Mr. Epstein said. "Even if she was upset by the breakup, she should be back in the work force in a reasonable period."
Mr. Cochrane said erratic support orders prevent lawyers from being able to adequately advise their clients. They also cause estranged spouses to be less inclined to accept settlement offers, he said.
Several years ago, the federal government tried to reform spousal support by asking two respected family law experts - Carol Rogerson and Rollie Thompson - to come up with a set of guidelines that incorporate factors such as the duration of marriage and the number of children.
Mr. Epstein, who was on an advisory committee that oversaw their creation, said the guidelines are gradually improving the system.
Only Alberta has failed to embrace them, he said. "I think the guidelines have caused a major stride toward uniformity. I think they are doing the job they were meant to do."
But Mr. Cochrane disagreed, saying the guidelines are observed in " a very spotty way" in most provinces. Judges frequently depart from them based on their view of how much a payer possesses and how much a payee needs, he said.
(In the Refcio case, the guidelines would have suggested $180 to $300 a month - a far cry from the $1,500 that Judge Granger awarded.)
Thanks to a 10-year-old Supreme Court of Canada decision - Housen v. Nikolaisen - trial decisions are often close to impregnable, unless they deviate in an excessive way from previous case law. In its decision, the Supreme Court stated that as a rule, trial decisions must contain a "palpable and overriding" error before they can be altered on appeal.
"You have to defer to these trial judges," Mr. Cochrane said. "They are the ones sitting there beside the witnesses and looking at their demeanour."
He said the effect of judicial decisions that adhere to the spousal support guidelines has been "to drive spousal support up." This can encourage some spouses receiving support to avoid returning to work.
"Why would they return to a work force and have a job if they are making more than they ever made before in their lives?" he asked. "It very quickly becomes a disincentive. At the same time, most people do genuinely want to get back to work and have careers and look after themselves."