Basic Principles of Spousal Support - Revision history

Nate Russell: Redirected page to Spousal Support

2022-07-13T19:26:38Z

Nate Russell: /* Links */

2019-07-31T22:11:42Z

Links

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	* [http://mysupportcalculator.ca Free Basic Spousal Support Calculator from DIVORCEmate]		* [http://mysupportcalculator.ca Free Basic Spousal Support Calculator from DIVORCEmate]
	* [http://childview.ca/ ChildView Spousal Support Calculator Software]		* [http://childview.ca/ ChildView Spousal Support Calculator Software]
	* [http://www.justice.gc.ca/eng/fl-df/spousal-epoux/ss-pae.html Department of Justice: About spousal support]		* [http://www.justice.gc.ca/eng/fl-df/spousal-epoux/ss-pae.html Department of Justice's website "About spousal support"]
	* [~~http~~://clicklaw.bc.ca/resource/1641 Legal Services Society's Family Law website: Spousal support]		* [https://clicklaw.bc.ca/resource/1641 Legal Services Society's Family Law website's information page "Child & spousal support"]
	* [~~http~~://clicklaw.bc.ca/resource/1239 ~~Canadian Bar Association BC Branch:~~ Script ~~on spousal~~ support]		**See "Spousal support"
			* [https://clicklaw.bc.ca/resource/1239 Dial-A-Law Script "Spousal support"]

	{{REVIEWED \| reviewer = [[David Dundee]] and [[Gillian Oliver]], May 15, 2019}}		{{REVIEWED \| reviewer = [[David Dundee]] and [[Gillian Oliver]], May 15, 2019}}

Nate Russell at 18:55, 30 July 2019

2019-07-30T18:55:04Z

Nate Russell: /* Spousal support when the payor dies */

2019-07-16T22:18:49Z

Spousal support when the payor dies

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	When a payor dies, the recipient can apply to court for an order under s. 171(3)(b) of the ''[[Family Law Act]]'' that the payor's support obligation will continue and be paid from their estate.		When a payor dies, the recipient can apply to court for an order under s. 171(3)(b) of the ''[[Family Law Act]]'' that the payor's support obligation will continue and be paid from their estate.

	When a recipient applies to continue a support obligation or if a support order says that the obligation will continue past the payor's death, the payor's ''personal representative'', the person managing the payor's estate and will, has the right to defend the recipient's application or to vary or terminate a continuing obligation.		When a recipient applies to continue a support obligation or if a support order says that the obligation will continue past the payor's death, the payor's ''personal representative'', the person managing the payor's estate and will, has the right to defend against the recipient's application or to vary or terminate a continuing obligation.

	==The objectives and factors of spousal support==		==The objectives and factors of spousal support==

Nate Russell: /* Spousal support, fault and misconduct */

2019-07-16T22:17:23Z

Spousal support, fault and misconduct

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	The Supreme Court of Canada, in a 2006 ''[[Divorce Act]]'' case called ''[http://canlii.ca/t/1nmrd Leskun v. Leskun]'', [2006] SCC 25, confirmed that the misconduct of the spouses must not be taken into consideration in making a decision about whether spousal support should be paid following the end of their marriage. But even in ''Leskun'', the court distinguished between ''misconduct itself'' and the ''effects of misconduct'' on the parties after separation:		The Supreme Court of Canada, in a 2006 ''[[Divorce Act]]'' case called ''[http://canlii.ca/t/1nmrd Leskun v. Leskun]'', [2006] SCC 25, confirmed that the misconduct of the spouses must not be taken into consideration in making a decision about whether spousal support should be paid following the end of their marriage. But even in ''Leskun'', the court distinguished between ''misconduct itself'' and the ''effects of misconduct'' on the parties after separation:

	<blockquote~~><tt~~>21. There is, of course, a distinction between the emotional consequences of misconduct and the misconduct itself. The consequences are not rendered irrelevant because of their genesis in the other spouse’s misconduct. If, for example, spousal abuse triggered a depression so serious as to make a claimant spouse unemployable, the consequences of the misconduct would be highly relevant (as here) to the factors which must be considered in determining the right to support, its duration and its amount. The policy of the [''Divorce Act''] however, is to focus on the consequences of the spousal misconduct not the attribution of fault.~~</tt>~~</blockquote>		<blockquote>21. There is, of course, a distinction between the emotional consequences of misconduct and the misconduct itself. The consequences are not rendered irrelevant because of their genesis in the other spouse’s misconduct. If, for example, spousal abuse triggered a depression so serious as to make a claimant spouse unemployable, the consequences of the misconduct would be highly relevant (as here) to the factors which must be considered in determining the right to support, its duration and its amount. The policy of the [''Divorce Act''] however, is to focus on the consequences of the spousal misconduct not the attribution of fault.</blockquote>

	The ''[[Family Law Act]]'' takes a slightly different approach. Section 166 says this:		The ''[[Family Law Act]]'' takes a slightly different approach. Section 166 says this:
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	<blockquote><blockquote><tt>(b) affects the ability to provide spousal support.</tt></blockquote></blockquote>		<blockquote><blockquote><tt>(b) affects the ability to provide spousal support.</tt></blockquote></blockquote>

	In other words, under the ''Family Law Act'', the court cannot consider misconduct generally (the same as under the ''Divorce Act''), but the court can look at the effects of the parties' behaviour on whether the recipient is doing the things that need to be done to become economically self-sufficient or whether the payor ~~is being undermined in their~~ ability to pay support.		In other words, under the ''Family Law Act'', the court cannot consider misconduct generally (the same as under the ''Divorce Act''), but the court can look at the effects of the parties' behaviour on whether the recipient is doing the things that need to be done to become economically self-sufficient or whether the conduct has undermined the payor's ability to pay support.

	===Securing a spousal support obligation===		===Securing a spousal support obligation===

Nate Russell: /* Entitlement and the Divorce Act */

2019-07-16T19:00:15Z

Entitlement and the Divorce Act

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	====Entitlement and the ''Divorce Act''====		====Entitlement and the ''Divorce Act''====
	The objectives that the court will look at in deciding whether a spouse is entitled to spousal support are set out at s. 15.2(6) of the ''[[Divorce Act]]''. If a spouse is entitled to spousal support, the factors that the court will <span class="noglossary">review</span> to determine the amount of support and the length of time for which it should be paid are set out in s. 15.2(4)~~. [[The Spousal Support Advisory Guidelines]] may also be used to help decide how much support should be paid and for how long it should be paid~~.		The objectives that the court will look at in deciding whether a spouse is entitled to spousal support are set out at s. 15.2(6) of the ''[[Divorce Act]]''. If a spouse is entitled to spousal support, the factors that the court will <span class="noglossary">review</span> to determine the amount of support and the length of time for which it should be paid are set out in s. 15.2(4).

	====Amount and duration of support====		====Amount and duration of support====

Nate Russell: /* Interim orders and agreements */

2019-07-04T05:59:17Z

Interim orders and agreements

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	*Does the other person, the ''respondent'', have the means to pay it?		*Does the other person, the ''respondent'', have the means to pay it?

	The court will not usually attempt to decide whether the applicant's need is related to the relationship or its breakdown in making an interim order for spousal support. In a case called ''[http://canlii.ca/t/1mtw3 L.C.M. v. M.A.C.M.]'', 2005 BCSC 1786 (a 2005 decision of our Supreme Court), the judge said that interim spousal support should only be awarded where an obvious case for entitlement is made out.		The court will not usually attempt to decide whether the applicant's need is related to the relationship or its breakdown in making an interim order for spousal support. In a case called ''[http://canlii.ca/t/1mtw3 L.G.B. v. M.A.C.M.]'', 2005 BCSC 1786 (a 2005 decision of our Supreme Court), the judge said that interim spousal support should only be awarded where an obvious case for entitlement is made out.

	Spousal support will often be awarded on an interim basis where:		Spousal support will often be awarded on an interim basis where:

Corinne Shortridge: /* Links */

2019-06-26T20:02:51Z

Links

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	* [http://childview.ca/ ChildView Spousal Support Calculator Software]		* [http://childview.ca/ ChildView Spousal Support Calculator Software]
	* [http://www.justice.gc.ca/eng/fl-df/spousal-epoux/ss-pae.html Department of Justice: About spousal support]		* [http://www.justice.gc.ca/eng/fl-df/spousal-epoux/ss-pae.html Department of Justice: About spousal support]
	* [http://clicklaw.bc.ca/resource/1641 Legal Services Society's Family Law ~~Website~~: Spousal support]		* [http://clicklaw.bc.ca/resource/1641 Legal Services Society's Family Law website: Spousal support]
	* [http://clicklaw.bc.ca/resource/1239 Canadian Bar Association BC Branch: Script on spousal support]		* [http://clicklaw.bc.ca/resource/1239 Canadian Bar Association BC Branch: Script on spousal support]

Corinne Shortridge: /* Final orders and agreements: lump-sum payments */

2019-06-26T20:02:20Z

Final orders and agreements: lump-sum payments

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	Whether the court is dealing with an application for lump-sum spousal support rather than the more usual periodic-payment support obligation, the court will usually be concerned that the payment of spousal support isn't going to act as a substitute for the division of family property. The court will also be concerned that a lump-sum payment may not actually help the recipient become financially independent.		Whether the court is dealing with an application for lump-sum spousal support rather than the more usual periodic-payment support obligation, the court will usually be concerned that the payment of spousal support isn't going to act as a substitute for the division of family property. The court will also be concerned that a lump-sum payment may not actually help the recipient become financially independent.

	Payors are sometimes interested in lump-sum spousal support payments for the reason that the single payment will allow them to wash their ~~hair~~ of the other party and have done with it immediately, rather than having to deal with the other party on an ongoing basis. Recipients are usually interested in lump-sum spousal support payments where the cash is needed to make a down payment or some other payment that will contribute to their future security.		Payors are sometimes interested in lump-sum spousal support payments for the reason that the single payment will allow them to wash their hands of the other party and have done with it immediately, rather than having to deal with the other party on an ongoing basis. Recipients are usually interested in lump-sum spousal support payments where the cash is needed to make a down payment or some other payment that will contribute to their future security.

	The court may be prepared to make an order for a lump sum, either alone or in addition to a periodic support order, where:		The court may be prepared to make an order for a lump sum, either alone or in addition to a periodic support order, where:
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	Lump-sum awards are available on interim applications, but such awards are unusual. A lump-sum payment may be ordered if it is clear that:		Lump-sum awards are available on interim applications, but such awards are unusual. A lump-sum payment may be ordered if it is clear that:
	*the payment will provide immediate relief for the recipient		*the payment will provide immediate relief for the recipient,
	*ongoing monthly payments will not be necessary and,		*ongoing monthly payments will not be necessary, and
	*the payor has the ability to make the payment.		*the payor has the ability to make the payment.

Corinne Shortridge: /* Indefinite obligations */

2019-06-26T20:00:46Z

Indefinite obligations

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	*the recipient is unable to re-enter the work force because of physical or mental health issues,		*the recipient is unable to re-enter the work force because of physical or mental health issues,
	*the recipient is elderly and unable or likely unable to re-enter the workforce,		*the recipient is elderly and unable or likely unable to re-enter the workforce,
	*the recipient's child care or other obligations make it impossible for them re-enter the workforce, or		*the recipient's child care or other obligations make it impossible for them to re-enter the workforce, or
	*the consequences of the breakdown of the relationship, including mental health issues such as depression, have left the recipient unable to work.		*the consequences of the breakdown of the relationship, including mental health issues such as depression, have left the recipient unable to work.

	An indefinite order or agreement for spousal support can also set out the conditions for the termination of that obligation. The most typical of these conditions are ~~that~~:		An indefinite order or agreement for spousal support can also set out the conditions for the termination of that obligation. The most typical of these conditions are:

	*if the recipient remarries,		*if the recipient remarries,

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	====Entitlement and the ''Divorce Act''====		====Entitlement and the ''Divorce Act''====
	The objectives that the court will look at in deciding whether a spouse is entitled to spousal support are set out at s. 15.2(6) of the ''[[Divorce Act]]''. If a spouse is entitled to spousal support, the factors that the court will <span class="noglossary">review</span> to determine the amount of support and the length of time for which it should be paid are set out in s. 15.2(4).		The objectives that the court will look at in deciding whether a spouse is entitled to spousal support are set out at section 15.2(6) of the ''[[Divorce Act]]''. If a spouse is entitled to spousal support, the factors that the court will <span class="noglossary">review</span> to determine the amount of support and the length of time for which it should be paid are set out in section 15.2(4).

	====Amount and duration of support====		====Amount and duration of support====
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	====Entitlement====		====Entitlement====
	The objectives that the court will look at in deciding whether a spouse is entitled to spousal support are set out at s. 161 of the ''[[Family Law Act]]''. If a spouse is entitled to spousal support, the factors that the court will <span class="noglossary">review</span> to determine the amount of support and the length of time for which it should be paid are set out in s. 162. The ''[[Family Law Act]]'' objectives and factors for spousal support are the same as the ''[[Divorce Act]]'' objectives and factors		The objectives that the court will look at in deciding whether a spouse is entitled to spousal support are set out at section 161 of the ''[[Family Law Act]]''. If a spouse is entitled to spousal support, the factors that the court will <span class="noglossary">review</span> to determine the amount of support and the length of time for which it should be paid are set out in section 162. The ''[[Family Law Act]]'' objectives and factors for spousal support are the same as the ''[[Divorce Act]]'' objectives and factors

	====Amount and duration====		====Amount and duration====
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	Divorce in Canada has been ''no-fault'' since the ''[[Divorce Act]]'' was updated in 1968, and the ''Family Relations Act'' followed suit when it was introduced in 1972.		Divorce in Canada has been ''no-fault'' since the ''[[Divorce Act]]'' was updated in 1968, and the ''Family Relations Act'' followed suit when it was introduced in 1972.

	A no-fault system means that the conduct of the spouses during their relationship and the reasons why their relationship has ended have nothing to do with whether spousal support is payable, how the children wind up being cared for, or how property and debt are divided. Whether someone was abusive or a cheater, for example, is not relevant to the court's consideration of these issues. In fact, s. 15.2(5) of the ''[[Divorce Act]]'' says:		A no-fault system means that the conduct of the spouses during their relationship and the reasons why their relationship has ended have nothing to do with whether spousal support is payable, how the children wind up being cared for, or how property and debt are divided. Whether someone was abusive or a cheater, for example, is not relevant to the court's consideration of these issues. In fact, section 15.2(5) of the ''[[Divorce Act]]'' says:

	<blockquote><tt>In making an order [for spousal support] the court shall not take into consideration any misconduct of a spouse in relation to the marriage.</tt></blockquote>		<blockquote><tt>In making an order [for spousal support] the court shall not take into consideration any misconduct of a spouse in relation to the marriage.</tt></blockquote>
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	===Securing a spousal support obligation===		===Securing a spousal support obligation===

	Under s. 170 of the ''[[Family Law Act]]'', the court may make a number of additional orders when it is making an order for spousal support that can help to ensure that spousal support continues to be paid, including after the death of the payor. The court may:		Under section 170 of the ''[[Family Law Act]]'', the court may make a number of additional orders when it is making an order for spousal support that can help to ensure that spousal support continues to be paid, including after the death of the payor. The court may:

	*order that a charge be registered against property,		*order that a charge be registered against property,
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	*order that spousal support continue to be paid after the payor's death and be paid from their estate.		*order that spousal support continue to be paid after the payor's death and be paid from their estate.

	Before the court makes an order that requires spousal support to be paid from the payor's estate, under s. 171(1), the court must consider:		Before the court makes an order that requires spousal support to be paid from the payor's estate, under section 171(1), the court must consider:

	*whether the recipient's need for support will survive the payor's death,		*whether the recipient's need for support will survive the payor's death,
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	===Spousal support when the payor dies===		===Spousal support when the payor dies===

	When a payor dies, the recipient can apply to court for an order under s. 171(3)(b) of the ''[[Family Law Act]]'' that the payor's support obligation will continue and be paid from their estate.		When a payor dies, the recipient can apply to court for an order under section 171(3)(b) of the ''[[Family Law Act]]'' that the payor's support obligation will continue and be paid from their estate.

	When a recipient applies to continue a support obligation or if a support order says that the obligation will continue past the payor's death, the payor's ''personal representative'', the person managing the payor's estate and will, has the right to defend against the recipient's application or to vary or terminate a continuing obligation.		When a recipient applies to continue a support obligation or if a support order says that the obligation will continue past the payor's death, the payor's ''personal representative'', the person managing the payor's estate and will, has the right to defend against the recipient's application or to vary or terminate a continuing obligation.
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	==The objectives and factors of spousal support==		==The objectives and factors of spousal support==

	Under s. 160 of the ''[[Family Law Act]]'', when a spouse applies for spousal support, the court must determine whether they are entitled to support by considering the ''objectives'' set out in s. 161. If the court finds that they are entitled to spousal support, the court must then determine how much support should be paid and for how long by considering the ''factors'' set out in s. 162.		Under section 160 of the ''[[Family Law Act]]'', when a spouse applies for spousal support, the court must determine whether they are entitled to support by considering the ''objectives'' set out in section 161. If the court finds that they are entitled to spousal support, the court must then determine how much support should be paid and for how long by considering the ''factors'' set out in section 162.

	Section 15.2(6) of the ''[[Divorce Act]]'' and s. 161 of the ''[[Family Law Act]]'' set out the objectives for a spousal support order:		Section 15.2(6) of the ''[[Divorce Act]]'' and section 161 of the ''[[Family Law Act]]'' set out the objectives for a spousal support order:

	<blockquote><tt>(a) to recognize any economic advantages or disadvantages to the spouses arising from the relationship between the spouses or the breakdown of that relationship;</tt></blockquote>		<blockquote><tt>(a) to recognize any economic advantages or disadvantages to the spouses arising from the relationship between the spouses or the breakdown of that relationship;</tt></blockquote>
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	The first three objectives are fairly straightforward and are self-explanatory. The last one deserves some comment.		The first three objectives are fairly straightforward and are self-explanatory. The last one deserves some comment.

	The effect of s. 15.2(6)(d) and s. 161(d) is to impose almost an obligation on a recipient to make their best efforts to become self-sufficient at some point following separation. A spousal relationship is not intended to be a lifelong meal ticket; at some point, a dependant spouse must usually become independent.		The effect of section 15.2(6)(d) and section 161(d) is to impose almost an obligation on a recipient to make their best efforts to become self-sufficient at some point following separation. A spousal relationship is not intended to be a lifelong meal ticket; at some point, a dependant spouse must usually become independent.

	These sections of the ''[[Divorce Act]]'' and the ''[[Family Law Act]]'' allow the court to set a date on which spousal support payments will end, in the expectation that by the termination date the recipient will have taken whatever steps are necessary to retrain and find a job which allows them to meet their daily needs.		These sections of the ''[[Divorce Act]]'' and the ''[[Family Law Act]]'' allow the court to set a date on which spousal support payments will end, in the expectation that by the termination date the recipient will have taken whatever steps are necessary to retrain and find a job which allows them to meet their daily needs.
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	While termination dates are often subject to change, unless the recipient is of an advanced age, the relationship was extraordinarily long, or the recipient has a serious medical condition or some other factor that prevents them from becoming independent, there will likely be an end date to support payments.		While termination dates are often subject to change, unless the recipient is of an advanced age, the relationship was extraordinarily long, or the recipient has a serious medical condition or some other factor that prevents them from becoming independent, there will likely be an end date to support payments.

	Section 15.2(4) of the ''[[Divorce Act]]'' and s. 162 of the ''[[Family Law Act]]'' set out the factors for a spousal support order:		Section 15.2(4) of the ''[[Divorce Act]]'' and section 162 of the ''[[Family Law Act]]'' set out the factors for a spousal support order:

	<blockquote><tt>(a) the length of time the spouses cohabited;</tt></blockquote>		<blockquote><tt>(a) the length of time the spouses cohabited;</tt></blockquote>
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	===Spousal support and child support===		===Spousal support and child support===

	Section 15.3 of the ''[[Divorce Act]]'' and s. 173 of the ''[[Family Law Act]]'' state that child support must take priority over an order for spousal support. When the payor cannot pay both spousal support and child support, the court is required to make an order for child support at the expense of an order for spousal support. Children come first.		Section 15.3 of the ''[[Divorce Act]]'' and section 173 of the ''[[Family Law Act]]'' state that child support must take priority over an order for spousal support. When the payor cannot pay both spousal support and child support, the court is required to make an order for child support at the expense of an order for spousal support. Children come first.

	===Statutory provisions===		===Statutory provisions===
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	====Reviewable orders and agreements====		====Reviewable orders and agreements====

	Under s. 168 of the ''[[Family Law Act]]'', an order or agreement that requires the payment of spousal support can be ''reviewable''.		Under section 168 of the ''[[Family Law Act]]'', an order or agreement that requires the payment of spousal support can be ''reviewable''.

	A reviewable order or agreement for spousal support is one that says that spousal support must be paid indefinitely but that the payor's obligation to pay support or the recipient's entitlement to receive it will be reviewed at a later date, called a ''review date''. A review date may be a particular day, usually not sooner than two years after the date of the agreement or order, or it may be triggered by a particular event such as:		A reviewable order or agreement for spousal support is one that says that spousal support must be paid indefinitely but that the payor's obligation to pay support or the recipient's entitlement to receive it will be reviewed at a later date, called a ''review date''. A review date may be a particular day, usually not sooner than two years after the date of the agreement or order, or it may be triggered by a particular event such as: