Donate Child Support Calculator
Skip navigation

Moge Vs Moge Canadian case often quoted in Australian law

http://csc.lexum.umontreal.ca/en/1992/1992rcs3-813/1992rcs3-813.html

This Canadian case if often quoted by Judges in their judgements. This case is mainly about spousal maintenance; however this case also mentions a lot of Canadian research in to female poverty after divorce. This research is often quoted in Australian cases. I will try to find out more about this research, as it is taken as gospel by the legal system.

Moge v. Moge, [1992] 3 S.C.R. 813

Andrzej Moge             Appellant

v.

Zofia Moge                Respondent

1992:  April 1; 1992:  December 17.

Authors Cited

Abella, Rosalie S.  "Economic Adjustment on Marriage Breakdown:  Support" (1981), 4 Fam. L. Rev. 1.

Artinian, George.  "The Application of Pelech to Variation of Maintenance in Quebec" (1989), 5 C.F.L.Q. 265.

Bailey, Martha J.  "Pelech, Caron, and Richardson" (1989‑90) 3 C.J.W.L. 615.

Baker, Katharine K.  "Contracting for Security:  Paying Married Women What They've Earned" (1988), 55 U. Chi. L. Rev. 1193.

Bala, Nicholas.  "Recognizing Spousal Contributions to the Acquisition of Degrees, Licences and Other Career Assets:  Towards Compensatory Support" (1989), 8 Can. J. Fam. L. 23.

Bala, Nicholas, and Martha Bailey.  "Canada:  Controversy Continues Over Spousal Abortion and Support" (1990‑91), 29 J. Fam. L. 303.

Brinig, Margaret F., and June Carbone.  "The Reliance Interest in Marriage and Divorce" (1988), 62 Tul. L. Rev. 855.

Canada.  Department of Justice. Bureau of Review.  Evaluation of the Divorce Act ‑‑ Phase II:  Monitoring and Evaluation.  Ottawa:  Department of Justice, 1990.

Canada.  Law Reform Commission.  Working Paper 12.  Maintenance on Divorce.  Ottawa:  Information Canada, 1975.

Canada.  National Council of Welfare.  Women and Poverty Revisited.  Ottawa:  Minister of Supply and Services Canada, 1990.

Canada.  Statistics Canada.  Family History Survey: Preliminary Findings.  By Thomas K. Burch. Ottawa: Minister of Supply and Services Canada, 1985.

Canada.  Statistics Canada.  "Alimony and child support", by Diane Galarneau. In Perspectives on Labour and Income. Ottawa: Summer 1992, 8.

Canada.  Statistics Canada.  Women in Canada:  A Statistical Report, 2nd ed.  Ottawa:  Minister of Supply and Services Canada, 1990.

Canada.  Statistics Canada.  "Work and relative poverty", by John M. Evans and Raj K. Chawla.  In Perspectives on Labour and Income.  Ottawa:  Summer 1990, 32.

Carbone, June.  "Economics, Feminism, and the Reinvention of Alimony:  A Reply to Ira Ellman" (1990), 43 Vand. L. Rev. 1463.

Carbone, June, and Margaret F. Brinig.  "Rethinking Marriage:  Feminist Ideology, Economic Change, and Divorce Reform" (1991), 65 Tul. L. Rev. 953.

Cook, Gail C. A.  "Economic Issues in Marriage Breakdown".  In Rosalie S. Abella and Claire L'Heureux‑Dubé, eds., Family Law:  Dimensions of Justice.  Toronto:  Butterworths, 1983, 19.

Côté, Pierre‑André.  The Interpretation of Legislation in Canada, 2nd ed.  Cowansville:  Yvon Blais, 1992.

Davies, Christine.  "Judicial Interpretation of the Support Provisions of the Divorce Act, 1985" (1992), 8 C.F.L.Q. 265.

Duff, David G.  "The Supreme Court and the New Family Law:  Working through the Pelech Trilogy" (1988), 46 U.T. Fac. L. Rev. 542.

Eichler, Margrit.  "The Limits of Family Law Reform or, The Privatization of Female and Child Poverty" (1990‑91), 7 C.F.L.Q. 59.

Ellman, Ira Mark.  "The Theory of Alimony" (1989), 5 C.F.L.Q. 1.

Florida.  Supreme Court Gender Bias Commission.  Report of the Florida Supreme Court Gender Bias Study Commission, March 1990.

Glendon, Mary Ann.  The New Family and The New Property.  Toronto:  Butterworths, 1981.

Goldfarb, Sally F.  "Marital Partnership and the Case for Permanent Alimony" (1988‑89), 27 J. Fam. L. 351.

Grassby, Miriam.  "Women in Their Forties:  The Extent of Their Rights to Alimentary Support" (1991), 30 R.F.L. (3d) 369.

Gunderson, Morley, Leon Muszynski and Jennifer Keck.  Women and Labour Market Poverty.  Ottawa:  Canadian Advisory Council on the Status of Women, 1990.

Halvorson, K. R.  "Causal Connection and Spousal Support" (1989), 5 C.F.L.Q. 195.

Heeney, Thomas A.  "The Application of Pelech to the Variation of an ongoing Support Order:  Respecting the Intention of the Parties" (1989), 5 C.F.L.Q. 217.

Higginson, Katherine.  "Causal Connection:  The Development of a Threshold Test for Entitlement to Spousal Support:  A Commentary on Willms v. Willms, Payne v. Payne, Weppler v. Weppler and Brace v. Brace" (1989), 4 C.F.L.Q. 107.

Joshi, Heather, and Hugh Davies.  "Pensions, Divorce and Wives' Double Burden" (1992), 6 Int'l J. L. & Fam. 289.

Kerr, Richard.  An Economic Model to Assist in the Determination of Spousal Support.  Paper prepared for the Department of Justice and Status of Women Canada. Ottawa, 1992.

Krauskopf, Joan M.  "Recompense for Financing Spouse's Education:  Legal Protection for the Marital Investor in Human Capital" (1980), 28 Kan. L. Rev. 379.

Krauskopf, Joan M.  "Theories of Property Division/Spousal Support:  Searching for Solutions to the Mystery" (1989), 23 Fam. L.Q. 253.

Land, Hilary.  "Changing Women's Claims to Maintenance".  In Michael D. A. Freeman, ed., The State, the Law, and the Family:  Critical Perspectives.  London:  Sweet & Maxwell, 1984, 25.

McDermid, D. R.  "The Causal Connection Conundrum" (1989), 5 C.F.L.Q. 107.

McLeod, James G.  Annotation (1987), 7 R.F.L. (3d) 225.

McLindon, James B.  "Separate But Unequal:  The Economic Disaster of Divorce for Women and Children" (1987), 21 Fam. L.Q. 351.

Meulders‑Klein, M. T.  "Famille, état et sécurité économique d'existence dans la tourmente".  In M. T. Meulders‑Klein and J. Eekelaar, eds., Family, State and Individual Economic Security, vol. II.  Brussels:  E. Story‑Scientia, 1988, 1077.

Morgan, Edmund M.  "Judicial Notice" (1944), 57 Harv. L. Rev. 269.

O'Connell, Mary E.  "Alimony After No‑Fault:  A Practice in Search of a Theory" (1988‑89), 23 New Eng. L. Rev. 437.

Ontario.  Social Assistance Review Committee.  Transitions.  Toronto:  Ministry of Community and Social Services, 1988.

Pask, E. Diane, and M. L. McCall.  "How Much and Why?  An Overview" (1989), 5 C.F.L.Q. 129.

Payne, Julien D.  "The Dichotomy between Family Law and Family Crises on Marriage Breakdown" (1989), 20 R.G.D. 109.

Payne, Julien D.  "Further Reflections on Spousal and Child Support After Pelech, Caron and Richardson" (1989), 20 R.G.D. 477.

Payne, Julien D.  "Management of a Family Law File with Particular Regard to Spousal Support on Divorce" (1988‑89), 10 Adv. Q. 424.

Payne, Julien D.  Payne on Divorce, 2nd ed.  Toronto:  Butterworths, 1988.

Payne, Julien D.  "Permanent Spousal Support in Divorce Proceedings:  Why?  How Much?  How Long?" (1987), 6 Can. J. Fam. L. 384.

Perry, Twila. L.  "No‑Fault Divorce and Liability Without Fault:  Can Family Law Learn from Torts?" (1991), 52 Ohio St. L.J. 55.

Proudfoot, Patricia, and Karen Jewell.  "Restricting Application of the Causal Connection Test:  Story v. Story" (1990), 9 Can. J. Fam. L. 143.

Quijano, G. M., and N. A. Trott.  "How Broadly Is the Causal Connection Test to Be Applied?" (1989), 5 C.F.L.Q. 247.

Rogerson, Carol.  "Evidentiary Issues in Spousal Support Cases".  In Special Lectures of the Law Society of Upper Canada 1991, Applying the Law of Evidence:  Tactics and Techniques For the Nineties.  Toronto:  Carswell, 1992, 219.

Rogerson, Carol J.  "Judicial Interpretation of the Spousal and Child Support Provisions of the Divorce Act, 1985 (Part I)" (1990‑91), 7 C.F.L.Q. 155.

Rogerson, Carol J.  "The Causal Connection Test in Spousal Support Law" (1989), 8 Can. J. Fam. L. 95.

Salhany, Roger E.  "Causal Connection ‑‑ Is There a New Test for Spousal Support?" (1989), 5 C.F.L.Q. 151.

Scutt, Jocelynne A.  Women and the Law:  Commentary and Materials.  Sydney:  Law Book, 1990.

Sopinka, John, Sidney N. Lederman and Alan W. Bryant.  The Law of Evidence in Canada.  Toronto:  Butterworths, 1992.

Steel, Freda M.  "Alimony and Maintenance Orders".  In Sheilah L. Martin and Kathleen E. Mahoney, eds., Equality and Judicial Neutrality.  Toronto:  Carswell, 1987, 155.

Stewart, Dana G., and Linda E. McFadyen.  "Women and the Economic Consequences of Divorce in Manitoba:  An Empirical Study" (1992), 21 Man. L.J. 80.

Trebilcock, Michael J., and Rosemin Keshvani.  "The Role of Private Ordering in Family Law:  A Law and Economics Perspective" (1991), 41 U.T.L.J. 533.

Weitzman, Lenore J.  The Divorce Revolution:  The Unexpected Social and Economic Consequences for Women and Children in America.  New York:  Free Press, 1985.

Wexler, Cottonwood.  "Causal Connection in British Columbia:  A Critique" (1989), 5 C.F.L.Q. 257.

Wolfson, Lorne H.  "The Legacy of Pelech v. Pelech" (1989), 4 C.F.L.Q. 115.

Brief background

Mrs. Moge was born in 1937.  The parties were married in Poland in the mid‑50's.  It is unclear from the evidence or the recollection of the parties whether the marriage took place in 1955 or 1957 but the discrepancy is immaterial for the purposes of this appeal.  They decided to emigrate and moved to Manitoba in 1960.  Three children were born of the marriage.  The two elder children, Elizabeth and Victor, were born in Poland prior to the family's coming to Canada.  The youngest, Edward, was born in 1966 and at the time of the application at issue was studying at the University of Manitoba.

Mrs. Moge has a grade seven education.  Prior to coming to this country she worked briefly as a sales clerk.  During the marriage she was responsible for the day‑to‑day care of the children and did the laundry, housework, shopping, cooking and so on.  She was also employed in the evenings working from 5:00 p.m. until 11:00 p.m. cleaning offices except for a brief period in 1963‑64 when she worked as a seamstress.  In his pleading, Mr. Moge attempted to persuade the Court that this was a marriage in which both contributed to the domestic chores, she during the day while he worked as a welder with Motor Coach Industries, and he in the evening while she worked

In 1973, the parties separated and on November 22, 1974, Nitikman J. of the Manitoba Court of Queen's Bench granted the separation and made an order awarding custody of the children to Mrs. Moge.  Mr. Moge was ordered to pay $150 per month spousal and child support.  After the separation Mrs. Moge continued to work outside the home.  From 5:00 p.m. until 11:00 p.m. she cleaned at the Fort Garry Hotel in Winnipeg.  During this time she remained responsible for the care of the children, and while she was out of the home in the evenings, the older children apparently helped out with Edward.

A divorce petition was filed by Mr. Moge in 1980.  It was not opposed by Mrs. Moge and she did not appear on the hearing of the petition to oppose her husband's proposal that he continue to pay $150 per month towards her maintenance and that of the remaining dependant child.  Mr. Moge remarried in 1984 but continued to pay support to his former wife.

Note: Moge is the Polish word for 'may I', as in may I have it? Perhaps the Canadian legal system has a Polish speaker with a sense of humour, when naming this case!


Executive Member of SRL-Resources, the Family Law People on the site (Look for the Avatars).   Be mindful what you post in the public areas. 

Probably based of the same piece of research as all the others

This judgement, and similar Australian, US and British decisions, are all based on the same core piece of research that came out of California (I think) back in the seventies.

The author of the particular piece of research (who's name escapes me) has since been discredited. For a long time, she refused to allow any peer review of the original data. It was only recently that the author was forced to allow others access to the data. The review that was conducted found that the data did not support the conclusions presented.

This is why we are now hearing political rhetoric about sharing the "COST" of family breakdown. Unfortunately, case law is well and truly set.

For me - Shared Parenting is a Reality - Maybe it can be for you too!

Moge research

Is sharing the costs, the politically correct way of saying the male can pay?

I recall that there was a problem with the research, but not sure what the actual problem was - well, apart from lack of truth!

Executive Member of SRL-Resources, the Family Law People on the site (Look for the Avatars).   Be mindful what you post in the public areas. 
I think the days when women were in underpayed or un-paid work are well and truly over in Australia and the requirement that men should "support" women post-divorce is anachronistic.

Junior Executive of SRL-Resources

Executive Member of SRL-Resources, the Family Law People on this site (Look for the Avatars). Be mindful what you post in public areas. 
I think this calls for Jon Pearson who seems to really know his way around the ABS and other Stats to find some current Australian material on these income and standard of living figures

Executive Member of SRL-Resources, the Family Law People on this site (look for the Avatars) Be mindful what you post in public areas. 

A man is not a financial plan

Artemis said
I think the days when women were in underpaid or unpaid work are well and truly over in Australia and the requirement that men should "support" women post-divorce is anachronistic.
There was an article on the news.com.au site that summed it up nicely I think when it stated "A man is not a financial plan". I personally think that there should be better set up super funds for women to take into account time off for child bearing (no matter how equal it is these days a man just CANNOT get pregnant and give birth!).

When you are swimming down a creek and an eel bites your cheek, that's a Moray.

Statistics - Changes last 35 years

Being a 49 year old male growing up in Canberra I have watched the political, feminist and other lobby groups for many years.

Working in ABS for a while gave me some insight to the research world. It's amazing how many research organisations blossomed in recent times - many funded by government. I don't think this was to do with ABS doing a bad job - it was more that there were specific areas needing something 'extra' - or a particular view or answer.

1) Women are paid the same as men - reports to contrary are false.

2) Far more women are getting qualifications than men and outnumber men in some categories. Still more men have higher qualifications.

3) Men work more than women - more hours in paid work. The number of women working has increased but mainly in part time work.

4) In many organisations women are actively promoted ahead of men (positive discrimination) and you can see this publicly when things like a new high court judge position becomes available (women argue that women should be appointed). Also the political groups arguing that women should be selected etc.

5) Generally women tend not to go back to work after having children and if they do for most of them it's only part time.

Given that we already have 50/50 assets splitting at divorce the remaining argument has been how 'women are disadvantaged' after having children - because of their time out of the work force. This revolves around the idea that if they stayed in the workforce they would have more income earning potential. This is a funny concept because is simultaneously has the notion that women DO re-enter the workforce after children (which many don't) and they actively seek to have a career after children (which many don't).

So women feel they need to be compensated by the man for their career.(Even after getting the assets, CSA and any other benefits).

The other notion is that men marry women and force them into slavery or marry them only to have children and stay at home. (The repressed victim female who could have been Prime Minister). Under this model - men are deemed to be responsible for these 'disadvantaged' females - because that's what the man signed up to at marriage - full support of the women (for ever).

I suspect that nowadays most men and women DO NOT conform to old fashioned ideas and really do want a greater sense of equality (whatever that means).

I have written my cathartic book (not published) and in forming my views I did a lot of research.

Here are the references:

Attachment
References to research

 Maybe I am not explaining myself well enough
Hi Jon.

I admit feeling a subtle pressure when I had my children to remain part-time or leave the work force. My ex often said the problems in the marriage were because I didn't want to work part-time (ie keep the house immaculate, take kids to appointments, have dinner on the table at 6 every night, grocery shop and do all the washing). When the reality was HE didn't want to share the load - he wanted someone to do it for him.

I know my career was blighted for having children. I call it the career holding pattern. Even after I worked full time, 3 years straight, people were still leaving me out of invite lists to meetings, assuming I was part time.

I support the idea of choice and decisions made by both partners. These days the norm is pretty much, both parents work to one degree or another and share the unpaid (housework). I think the system should be changed to reflect that.

I don't accept that women need to be supported.

Having a child is a costly exercise, but one that both parties have entered into. If shared parenting is a given, then the cost is shared and this is fair. If one party refuses shared parenting, I don't think it's fair that automatic financial adjustments are made.

I agree with you Jon, most people don't conform to the old fashioned concepts you mentioned. I do know that conniving parties in court will trot out whatever works in their favour.

Junior Executive of SRL-Resources

Executive Member of SRL-Resources, the Family Law People on this site (Look for the Avatars). Be mindful what you post in public areas. 
Ta arti

The thing is that men and women need to encourage each other in their relationship (prior divorce, after marriage) the idea being that forming a partnership and building etc.

Breakup changes all that - its too easy for one party to claim victim status and actively avoid responsibilities- either financially or caring or both.

I raised my kids and did more than my share yet I was faced with court system which saw me as a male dating back to the 1950's. This was unstated but a weight over my head. The effort to overcome this was quite simply bizarre and was based on the 'prove yourself innocent' notion.

 Maybe I am not explaining myself well enough
1 guest and 0 members have just viewed this.

Recent Tweets