What is the test for compensation in the context of periodic maintenance under the Divorce Act?

British Columbia, Canada


The following excerpt is from Toth v. Toth, 1995 CanLII 1917 (BC CA):

38 The emphasis of the "compensatory" approach, adopted in Moge v. Moge with respect to periodic maintenance under the Divorce Act, and in Lodge v. Lodge with respect to reapportionment of family assets under the Family Relations Act, is in both cases on a wife's loss of opportunity to acquire or advance in a calling, suffered as a result not simply of the marriage but rather of unequal assumption of child-raising and housekeeping duties during the marriage, and her consequently diminished or limited earning capacity on marriage breakup. The compensation is not, of course, for breach by the husband of the arrangement under which his wife can be said to have assumed these duties--that is to say to continue to provide a home and support for her thereafter--because that would be a fault-based form of compensation, and fault can play no part in determining the allocation of assets on matrimonial break-up; the same compensation will be due where the marriage is terminated by the actions of the wife as when the husband is responsible for its termination. Nor can the purpose of the compensatory approach be to achieve greater equality of income as between previously-married parties on the basis of a presumption that the one with the larger earning capacity must be held responsible for the lower earning capacity of the other. There must be an evidentiary basis for compensation in the facts of the particular case, and any compensation must, of course, meet the test of fairness to both parties.

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