May 15th, 2020
It is surprising how understudied the topic of “support for men” is in the Academic Legal Literature. It could be that the topic has simply not been politically correct enough to merit discussion. It also could be that there is simply no proof of gender bias in Canadian case law. Perhaps there is a lack of discourse because judges consistently state that:
“It is important to ensure that any spousal support decision does not have an unintended “gender bias”. Gender is, of course, irrelevant in determining spousal support.”[1]
or words to that effect. What is clear is that the proportion of men who receive support in Canada is a meager 3%. In Alberta, a woman is the higher income earner in 27.7% of couples. You might think that men would have entitlement to support in more than 3 out of 100 cases. Is the discrepancy because men simply do not seek support? Is the legislation female centric? Does the judicial system have a gender bias?
When then, does a man receive support?
The record of cases is quite clear … rarely.
___________________________________
“Spousal support legislation and the important
spousal support cases have emerged because of a
need to aid women in tragic circumstances. It is
natural that the legal tests developed are female
centric. This gender bias is not overt. It is simply a
product of the result that the legislators and Courts
have been trying to achieve.”
____________________________________
The development of the case law and social trends have naturally developed in such a way that the situations that men usually find themselves in (upon a relationship breakup) have historically not fit the criteria for entitlement. That may be changing.The wording of the Divorce Act uses the gender-neutral term “spouse”. Care was taken by the legislators to ensure that there was no gender preference.
According to Statistics Canada “the face of the typical Canadian stay-at-home parent has changed over the last four decades. It’s gotten a little more masculine. In 1976, stay-at-home fathers accounted for approximately 1 in 70 of all Canadian families with a stay-at-home parent. By 2015, the proportion had risen to about 1 in 10.”
“The number of stay-at-home mothers declined in almost every year between 1976 and 2015.”
Could it be that Court decisions have simply not caught up with societal trends? Is it too early to see the rise in successful masculine spousal support claims? The simple answer is this:
When a Judge in Alberta determines the amount of spousal support and duration of periodic payments, that Judge will consider, at the very least, the following:
Up until recently, in most relationships, the factors noted above have naturally suggested spousal support for the economically disadvantaged stay-at-home parent. Statistically, the vast majority of the successful spousal support decisions have been made in favour of women, not men. One of the major factors contributing to this result is that the “vast majority” of stay-at-home parents have been women and not men. The simple fact is there have not been many stay-at-home dads to make a successful application for spousal support.
There may be a feeling that there is “gender bias” in this issue. At least one reason attributable to an apparent bias is demographics. According to Statistics Canada, those demographics are changing. “From 1976 to 2015, the proportion of stay-at-home fathers … in Alberta increased by 6 percentage points.”
It stands to reason that if the face of the typical stay-at-home parent continues to masculinize, we should expect to see more successful spousal support awards in favour of men.
[1] N.R.I.H. v. M.G.S.H., [2015] O.J. No. 2668 para 338