What is the case law and academic literature on spousal support?

Saskatchewan, Canada


The following excerpt is from Jahn v Jahn, 2012 SKQB 41 (CanLII):

Wilkinson J. in Stevens v. Stevens, 2004 SKQB 332,(2004) S.J. No. 510(QL)(Q.B.), reviewed numerous appellate decisions and academic journals on matters involving spousal support and summarized these as follows at para. 24: 24 Of all the theories and variants thereof outlined in detail in the background paper, all of which are drawn from the case law and academic literature, the ones that have bearing on the issues in this application can be summarized as follows 1. The compensation theory: which suggests that imposition of a post-divorce support obligation can be justified by the need to compensate a spouse for earning capacity losses arising from the roles adopted during marriage. The benchmark is the earning capacity the supported spouse would currently possess in the paid labour market had he or she not married, and the focus is on the supported spouse's loss in education and career enhancement as a result of the roles adopted during marriage. The challenge under this theory is to estimate loss of earning capacity, while recognizing that some individuals may choose marriage in preference to career (even if the choice is exercised under the pressure of societal expectations), or may consciously choose lower paying work because of personal preferences, or in the interests of job satisfaction. 2. The income-sharing theory: which suggests that the concept of marriage as a partnership justifies support, as post-divorce income involves returns on joint efforts during marriage, and should logically address the unravelling of merged economic interests. "Contribution" replaces "loss" as the primary principle justifying spousal support, and the focus is on one spouse's gains in education and career enhancement as a result of the marriage. The challenge under this theory is to determine what portion of post-divorce income is attributable to joint marital efforts with likely emphasis on the length of marriage as a central factor. ...

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