On the Similarities Between Indefinite Spousal Support and Debt Bondage Slavery
One of the more interesting comments we received from our first round of Facebook promotion for this site was the suggestion by one writer that spousal support is a form of enslavement. Although I’ve been thinking for many years about the legal, ethical, and logical problems with onerous, and especially indefinite, spousal support — orders that have no end date, and in some cases disallow retirement altogether — I was initially tempted to dismiss this as hyperbole.
But I decided to do a bit of research. I looked up Slavery in Wikipedia, which says:
“A slave is unable to withdraw unilaterally … and works without remuneration. In a broader sense … the word slavery may refer to any situation in which an individual is de facto forced to work against their own will. … Slaves may have some rights and protections according to laws or customs.”
It’s unclear what, if any, “rights and protections” are available to a spousal support payor, at least related to the economic arrangement of spousal support — just browse this site. Even payors’ new partners are at risk of losing their assets and having their incomes garnished.
It’s certainly true that a spousal support payor cannot withdraw unilaterally from the exploitation of their labour, or at least a portion of it; and that payors are under duress: it is not permissible to reduce one’s income to take a more interesting job that pays less, or go back to school — one has no say in the matter. And all of this is an imposed, rather than negotiated, arrangement. But the courts also will not adjust support for a reduction of income through no fault of one’s own, such as shifting economic conditions, ageism, or even unemployment. And bankruptcy has no effect on support obligations. There really is no way out – other than suicide.
A key question here may be whether or not the spousal support payor is actually considered to be receiving pay, and simply transferring a portion of their earnings to the support recipient. I suspect this is not merely a question of semantics, because a slave works without pay. This is where a key concept from the Spousal Support Advisory Guidelines (SSAG) may work in favour of the argument from enslavement.
The SSAG talks about “income sharing” rather than support payments. In this sense, the portion of the payor’s income given over to the recipient was never his or her income in the first place, but rather is earmarked as the recipient’s income, even though they had no direct involvement in earning it. The recipient is benefitting directly from someone else’s labour, and the relationship is one-way: there is no relief or benefit to the payor if the recipient was to become wealthy, for instance. (There may also be some parallels here with living off the avails of prostitution, otherwise known as “pimping.”)
The Wikipedia entry goes on to say, “Slavery (or unfree labour) continues through practices such as debt bondage, the most widespread form of slavery today.” The Debt Bondage article continues:
“[Debt bondage] is the pledge of a person’s services as security for the repayment for a debt or other obligation, where the terms of the repayment are not clearly or reasonably stated, and the person who is holding the debt and thus has some control over the labourer, does not intend to ever admit that the debt has been repaid. The services required to repay the debt may be undefined, and the services’ duration may be undefined, thus allowing the person supposedly owed the debt to demand services indefinitely.”
This corresponds very closely to the situation that support payors find themselves in after a long-term marriage in Canada.
Even though the SSAG claims that “an order for indefinite support does not necessarily mean permanent support” (7.5.2, my emphasis), it also says that “courts may sometimes prefer to make the initial order indefinite and later deal with the issue of termination on a subsequent review or variation” (4.3). This can result in a situation in which there is effectively no recourse, if the payor has used all of their funds in an initial court case or review.
This is what happened in my case: I spent all my savings to defend the end date I had negotiated in my separation agreement, and requested that this be honoured, or a new end date be set. However, the judge refused to do so, saying that I could “come back to court later” for an end date. (This is paraphrased from my lawyer’s report of the sentencing hearing, as I am not allowed to see the judgement against me unless I pay $1,000.00.) After three series of negotiations and court appearances over the years, I have no financial means to return to court, and the judge was well aware of this via detailed financial statements I was compelled to submit. (It’s worth noting that taking extra work to earn more for another court challenge would only result in increased support payments, and would set a higher bar for my income, which I would then be expected to maintain until I die.)
So it is certainly true that in spousal support:
- The terms of the repayment are not clearly or reasonably stated, because there is no “principal” to repay, and no end date;
- The court will never admit, or based on the SSAG excerpt above is extraordinarily reluctant to admit, that the debt — whatever it may be — has ever finally been repaid;
- The duration is undefined, and services are demanded, yes, “indefinitely.”
Another factor here is that there is a false prospect offered to the payor for buying their way out of the endless, bottomless debt of spousal support. The amount for this is set so high — in my case, a multiple of my entire net worth — that it is meaningless; and indeed, creates even more stress because it remains forever beyond reach. Indeed, this has parallels to African-American slaves “buying their freedom;” of course, it was not financially feasible for the vast majority of them.
I am not proposing that the plight of Canadian spousal support payors is directly comparable, in experience or degree, to those who were or are fully enslaved. The question here is whether the current spousal support regime in Canada, and particularly in British Columbia and Ontario, has legal, logical, and ethical flaws so egregious that the current state of affairs can arguably be compared to aspects of enslavement. It seems that it can be.
In a future post I plan to investigate how this applies in Canadian law.