Witzel v. Witzel: Compensatory or Need Based? The Difficulties Inherent in Spousal Support
Most family law practitioners would probably agree that entitlement to spousal support is one of the most fluid areas in family law, and therefore, one of the most problematic. In stark contrast to the area of equalization and property sharing where technical rules are rigidly applied and adhered to, the area of law dealing with spousal support witnesses a tremendous deal of fluidity and judicial discretion.
There are four main principles respecting entitlement to spousal support, which although at times may seem contradictory, are found enshrined within the Divorce Act and the Family Law Act:
- The clean break principle
- The personal autonomy and choice principle (ie. separation agreement present)
- The need based principle
- The compensatory principle.
It is the latter two principles which are the subject of discussion and contention in the Witzel v. Witzel case.
The compensatory model of spousal support requires that a court recognize a couple’s length of marriage and the respective roles each party assumes during the relationship. More specifically, if an individual in a longstanding relationship has assumed the non-lucrative duties of the household (ie. child care, household management), then that person can be viewed as having freed up the other spouse from having to perform such duties. As a result, the freed-up spouse had the opportunity during their relationship to pursue or advance his or her career potential in the paid labour force, while the tied-down spouse was not so fortunate in this regard. Recognizing this unfortunate circumstance, the Supreme Court of Canada in Moge v. Moge held that a spouse who has forgone economically prosperous opportunities during a longstanding relationship in favour of non-lucrative household duties should be compensated for their lost opportunities. In other words, on marriage breakdown, the economic advantage that has been conferred on the wage-earning spouse and the economic disadvantage that has been suffered by the spouse who has performed the non-lucrative household duties is recognized and taken into account by courts when determining one’s eligibility for spousal support.
The compensatory model may seem quite logical and equitable when it operates in tandem with the need based model. In other words, most people would agree with and can fully appreciate a court order for support for a spouse who is needy as a result of foregone economic opportunities during a longstanding relationship. But what happens when the compensatory model and the need based model for spousal support entitlement collide? The Witzel case provides us with an answer to this question and essentially tells us that courts are very reluctant to vary or drastically alter an order for support that was based on the compensatory model, even when the spouse receiving the award is no longer in need.
In Witzel, the parties had been married for over 22 years and had occupied traditional roles during their marriage. These two combined factors influenced the court’s decision in entitling the wife to a compensatory support award and hence ordering the husband to pay to the wife $2,000.00 on a monthly basis. At the time of the court order, the wife was 55 years of age. In making the order for support, the court also took into account that as a result of Mrs. Witzel’s age and lack of education she would unlikely be able to work on a full-time basis in future. Mrs. Witzel’s annual income was minimal at the time of separation and was predicted to continue as such long after the parties’ divorce. Mr. Witzel, on the other hand, was educated as a pharmacist and therefore was making a respectable annual salary. As a result, the court decided that in addition to a compensatory award, Mrs. Witzel was also entitled to a non-compensatory support award based on her ongoing need and Mr. Witzel’s ability to pay. As is evident, the need based model and compensatory model operated in harmony in this scenario.
However, when Mrs. Witzel inherited assets in excess of $400,000.00, Mr. Witzel applied to court to vary the original spousal support order. Although the application was granted in part due to an obvious material change in the circumstances, the support was not eliminated entirely. Instead, the court ordered Mr. Witzel to continue paying Mrs. Witzel $1000.00 in monthly spousal support. Justice Templeton stressed that ‘compensatory support was awarded to recognize the length of the marriage and the roles each of [the parties] had adopted in their relationship throughout those years’, and that such factors are ‘retrospectives’ and resultantly not amenable to change. Even though Mrs. Witzel’s asset base had nearly doubled since the original support order, and even though her current net worth was about $180,000.00 more than Mr. Witzel’s current net worth, compensatory support was ordered to continue, albeit at a reduced rate. In other words, although Mrs. Witzel’s financial situation had improved vastly and she was no longer in need per se, this did not vitiate Mr. Witzel’s obligation to pay spousal support to her. This second scenario reflects the conflicting tension that exists when the compensatory model and need based model no longer operate in unison.