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since June 19, 2001

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Bonded labour by men alive and well in Canada

Falkiner v. Director, Income Maintenance Branch (May 13, 2002

From: R&E Sodhi [mailto:rajeeva@ripnet.com]
Sent: Wednesday, May 15, 2002 5:14 AM
To: Letters@GlobeAndMail.ca
Subject: Ontario to try to maintain spouse-in-house rule, despite court ruling (May 15, 2002)

RE: [Falkiner v. Director, Income Maintenance Branch (May 13, 2002) http://www.ontariocourts.on.ca/decisions/2002/may/falkinerC35052.htm]

Strange. We are now given the perception that it is demeaning to a woman to be supported by a man with whom she cohabits and provides some reciprocal services which, at the very minimum, include companionship and comfort.

However, if they decide to separate, the perception changes and the man is seen to be responsible for her upkeep, no matter who initiated the separation. The fact that the woman is not asked to do anything in return would seem to reduce her status to that of a freeloader and the man becomes a bonded labourer, especially if there are children involved.

As a rule, judges now follow the lead of Judge Martinson (B.C.) who came up with an innovative interpretation of Section 26.1(2) of the divorce Act: "Parents have a joint and ongoing legal obligation to support their children. In order to meet this legal obligation, a parent MUST earn what the parent is capable of earning."*

This ruling, of course, is seen to be applicable only once a parent becomes non-custodial. It does not matter if the payor is the biological parent, any "spouse-in-house" can be seen to have been "in loco parentis" to the children after the adults separate though during the cohabitation he is not seen to be responsible for their welfare. Thus there can be as many dippings as there have been successive cohabitants.

On the other hand, the custodial parent is free to abrogate her (it is usually "her") responsibilities. She can place the children to a foster home or to adoption, or abort the foetuses. She can have relatives to care for the children or draw welfare.The courts may order the non-custodial parent to pay separate support to her so that she can be seen to meet "her" obligations to the children, though the child support alone may be nothing more than alimony in disguise. There may be cases where the custodial parent (or either parent in an intact family) has been ordered to seek employment, though I have yet to come across one, even if the children are in their teens and the mother is sufficiently qualified.

Both parents in an intact family, and custodial parents after separation, are free to choose the amount of earnings that they wish to receive rather than what they are capable of earning. No-one tells them that they have to work 12 months a year instead of six if that's what they wish to do. Or that they have to work at all.

To illustrate the point further, let me just summarize one of the plethora of obscure rulings from the bench:

In Fancy v. Sheppard (Nova Scotia) a woman who was receiving spousal support under a separation agreement, which was registered under the Nova Scotia Family Maintenance Act, had remarried. That statute stipulates that the right to spousal maintenance is forfeited where the recipient "remarries or lives with another person as husband and wife." Justice Glube ruled that this violates both s. 7 and 15 of the Charter. In order to preserve the woman’s independence and self respect, her former husband had to continue to pay her spousal support though she had remarried.

The baffling part of the reasoning is that, according to the judge, "the right to marry or cohabit is rooted in fundamental concepts of human dignity, privacy [and]... personal autonomy, and accordingly are aspects of both liberty and security of the person and protected by s. 7." The statutory provision was considered a restraint on the right to remarry or cohabit, and not in accordance with the principles of fundamental justice since it provided no judicial discretion to assess the significance of the new relationship. The Court also ruled that this legislative provision is based on "stereotypical" discriminatory assumptions about female dependency and hence violated s. 15 of the Charter. Innovative, indeed.  Slavery is alive and well in Canada. Based on biology and social status.


Eeva Sodhi
RR 1 McDonald's Corners
K0G 1M0

Tel. 613-278-2706

*Martinson J. was prompted to say in Hanson v. Hanson [1999 B.C.J. No. 2532 (S.C) [para. 8]: "Parents have a joint and ongoing legal obligation to support their children. In order to meet this legal obligation, a parent MUST earn what the parent is capable of earning. Section 26.1(2) of the Divorce Act says that the Guidelines "shall be based on the principle that spouses have a joint financial obligation to maintain the children of the marriage in accordance with their relative abilities to contribute to the performance of that obligation."

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Posted 2002 01 05