Difference between revisions of "Basic Principles of Spousal Support"

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==Orders and Agreements on Spousal Support==
==Orders and Agreements on Spousal Support==


Spousal support is a very gray area of the law, with few hard and fast rules. As a result, every order or agreement for spousal support will be tailored to the particular circumstances of the parties.
Spousal support is a very gray area of the law, with few hard and fast rules. As a result, every order or agreement dealing with spousal support will be tailored to the particular circumstances of the parties, even orders and agreements that say that no spousal support will be paid.


===Interim Orders and Agreements===
===Interim Orders and Agreements===


''Interim orders'' are temporary orders made once a court proceeding has started. Interim orders are not meant to be permanent and last until another interim order is made or the proceeding wraps up with a trial or a settlement. Likewise, ''interim agreements'' are agreements made when settlement discussions have started that are meant to last only until a final agreement is negotiated.


The court will think about the same things when it hears an application for an interim spousal support order as it does at the hearing for a final order. At least, that's the general rule. In reality, however, the court usually takes a pretty rough and ready approach to interim applications based on something called the ''means and needs'' test.


*Does the person making the application, the ''Applicant'', have a need for support?
*Does the other person, the ''Respondent'', have the means to pay it?


The criteria for determining an application for the payment of spousal support on an interim basis are the same as those applicable to final orders for spousal support, under both the Divorce Act and the Family Relations Act. At least, that's the general rule. In reality, however, the court will generally take a rough and ready approach to interim applications based on something called the "means and needs" test.
The court will not usually attempt to determine 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 ''L.C.M. v. M.A.C.M.'', 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.


Does the person making the application have a need for support?
Spousal support will often be awarded on an interim basis where:
Does the other person have the means to pay the support applied for?
The court will not usually attempt to determine 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 L.C.M. v. M.A.C.M., a 2005 decision of our Supreme Court, the judge said that interim spousal support should only be awarded where a prima facie case for entitlement was made out.


Spousal support will often be awarded on an interim basis where:
#there are young children who need a stay-at-home caregiver;
#the Applicant is unemployed at the time of the application and hasn't worked outside the home for a number of years;
#the Applicant is unemployed and faces barriers to employment, such as a lack of training or poor language skills; or,
#the Applicant is employed but is unable to pay his or her household bills without help.


there are young children which need a stay-at-home caregiver;
Of course, ''need'' alone isn't enough and the person against whom the application is brought must have the ability to actually ''pay'' support. Whether the payor has the means to pay support is usually figured out by looking at the payor's monthly income, less any child support obligations, less his or her reasonable monthly expenses. If there is money left over, if there is ''disposable income'', some or all of that money is available to be paid as spousal support.
the applicant is unemployed at the time of the application and hasn't worked outside the home for a number of years;
the applicant is unemployed and faces barriers to employment, such as a lack of training or poor language skills; or,
the applicant is employed but unable pay his or her household bills without help.
Of course, need alone isn't enough and the person against whom the application is brought must have the ability to actually pay support, hence the "need and means" test. Whether the payor has the means to pay support is usually based on the payor's monthly income, less his or her child support obligation, less the his or her reasonable monthly expenses. If there is money left over, usually described as the payor's "disposable income," some or all of that money is available to be paid as spousal support.


Depending on the respondent's ability to pay, the amount of spousal support awarded may be enough to equalize the parties' incomes and, sometimes, enough to help the applicant enjoy more or less the same standard of living that he or she enjoyed before the parties separated.
Depending on the respondent's ability to pay, the amount of spousal support awarded may be enough to equalize the parties' incomes and, sometimes, enough to help the applicant enjoy more or less the same standard of living that he or she enjoyed before the parties separated.


===Final Orders and Agreements: Definite and Indefinite Periodic Payments===
===Final Orders and Agreements: Periodic Payments===


Under both the Divorce Act and the Family Relations Act, a court may make an order for spousal support for periodic payments for a fixed period of time (a "definite" term), or for forever (an "indefinite" term). Whether an order requires that spousal support be paid for a definite or indefinite term will depend on the particular circumstances of each case. In general, however, the longer the marriage or common-law relationship and the older the parties, the more likely the court will be to make an indefinite order for spousal support.
Under the ''Divorce Act ''and the ''Family Law Act'', a court may make an order for spousal support for regular payments, called ''periodic payments'', to run for a fixed period of time (a ''definite'' term), or to run without a particular end date (an ''indefinite'' term). Whether an order requires that spousal support be paid for a definite or indefinite term will depend on the particular circumstances of each case. In general, however, the longer the relationship was and the older the parties are, the more likely it is that the court will be to make an indefinite order for spousal support.


====Indefinite Obligations====
====Indefinite Obligations====
Indefinite orders for spousal support are often made where one or more of the following conditions apply to a relationship:


the parties' marriage or common-law relationship was quite lengthy;
Indefinite orders for spousal support are often made where one or more of the following circumstances exist:
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 work force;
#the parties' relationship was lengthy;
the recipient's child care or other obligations make it impossible for him or to re-enter the work force; or,
#the recipient is unable to re-enter the work force because of physical or mental health issues;
the consequences of the breakdown of the relationship, such as depression, have left the recipient unable to work.
#the recipient is elderly and unable or likely unable to re-enter the workforce;
An indefinite order or agreement for spousal support can also set out conditions for the termination of that obligation. The most typical of these conditions are that:
#the recipient's child care or other obligations make it impossible for him or 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.
 
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:


if the recipient remarries;
#if the recipient remarries;
if the recipient lives with another person in a marriage-like relationship for longer than a certain number of days, usually two or three months;
#if the recipient lives with another person in a marriage-like relationship for longer than a certain amount of time;
if the recipient obtains employment and earns more than a specified amount;
#if the recipient obtains employment and earns more than a specified amount;
if the payor retires; or,
#if the payor retires; or,
if the recipient or the payor dies.
#if the recipient or the payor dies.


====Reviewable Orders and Agreements====
====Reviewable Orders and Agreements====


A "reviewable" order or agreement for spousal support is one which says that support must be paid indefinitely, but also that the payor's obligation to pay support or the recipient's entitlement to receive it may be reviewed at a later date, called a "review date." Review dates are not usually set for less than two years after the date of the agreement or order.
Under s. 168 of the ''Family Law Act'', an order or agreement which requires the payment of spousal support can be ''reviewable''. A reviewable order or agreement for spousal support is one which 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:


At the time set for the review, either party may seek to cancel or extend the support obligation, or to reduce or increase the amount of support paid. The review will be based on parties' financial circumstances at the time of the review. When the review date arrives, the obligation to pay spousal support does not automatically expire unless the order or agreement expressly says so. The obligation will usually continue until the review finally takes place, whether the review is started by the recipient or the payor.
#the children leaving home;
#the recipient recovering from an illness;
#the recipient becoming employed or finishing a course of training or education;
#the recipient or the payor reaching a certain age or retiring;
#the recipient or the payor beginning to receive pension benefits;
#the sale of a property; or,
#the recipient entering into a new spousal relationship.


If a recipient has failed to become self-sufficient at the time of a review, the court may need to hear evidence as to why this is the case. Where the failure is the fault of the recipient, the court may decide to cancel the support order. If the recipient's failure to become self-sufficient and find gainful employment is because of some reason other than a lack of effort, for example, the court may require the support to continue as before. A recipient of spousal support is only required to "make reasonable efforts" to become independent, not to actually become independent.
When the review date arrives, the obligation to pay spousal support does not automatically expire unless the order or agreement expressly says so. The obligation usually continues until the review finally takes place, whether the review is started by the recipient or the payor.


Whether the order for spousal support will continue in the same amount as before will depend entirely on the particular circumstances of each case.
At the review, either spouse may seek to cancel or extend the support obligation, or to reduce or increase the amount of spousal support paid. The review will usually be based on parties' financial circumstances at the time of the review, but can take into account other factors, like the recipient's health or the recipient's efforts to find employment. A reviewable order or agreement can specify how the review will be conducted, which might be by mediation, a collaborative settlement process or arbitration. Reviews don't have to happen in court.


====Definite-Term Obligations====
====Definite-Term Obligations====
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Orders or agreements which provide that spousal support is to be paid for a specific period of time are usually made when it is clear that a dependent person has the ability to become self-sufficient within a fairly short amount of time or a payor's resources are plainly limited. Definite term orders and agreements for spousal support are often made where one or more of the following conditions apply to a relationship:
Orders or agreements which provide that spousal support is to be paid for a specific period of time are usually made when it is clear that a dependent person has the ability to become self-sufficient within a fairly short amount of time or a payor's resources are plainly limited. Definite term orders and agreements for spousal support are often made where one or more of the following conditions apply to a relationship:


the recipient of support is in a new relationship and the new person's income is expected to contribute to the recipient's needs;
#the recipient of support is in a new relationship and the new person's income is expected to contribute to the recipient's needs;
the recipient has relevant job training or skills at the time that the relationship breaks down and is expected to return to work in short order;
#the recipient has relevant job training or skills at the time that the relationship breaks down and is expected to return to work in short order;
the recipient had a successful carreer before or during the relationship and is expected to return to work in short order;
#the recipient had a successful career before or during the relationship and is expected to return to work in short order;
the recipient merely requires some time to adjust to his or her new living circumstances and will become self-sufficient relatively quickly; or,
#the recipient merely requires some time to adjust to his or her new living circumstances and will become self-sufficient relatively quickly; or,
the recipient is ill or disabled at the time of the making of the order or agreement but is expected to recover and re-enter the work force.
#the recipient is ill or disabled at the time of the making of the order or agreement but is expected to recover and re-enter the work force.
The duration for which support must be paid usually reflects one or more of the following factors:
 
The length of time for which support must be paid usually reflects one or more of the following factors:
 
#the length of the parties' relationship;
#the extent and nature of the parties' employment during their relationship;
#the time the court estimates it will take the recipient to complete job training, if unemployed;
#the amount of the recipient's income, if employed;
#the payor's retirement date;
#the recipient's anticipated length of recovery from an illness; and,
#the age at which the children will enter school or the age at which they can enter daycare.


the length of the parties' relationship;
===Final Orders and Agreements: Lump Sum Payments===
the extent and nature of the parties' employment during their relationship;
the time the court estimates it will take the recipient to complete job training, if unemployed;
the amount of the recipient's income, if employed;
the payor's retirement date;
the recipient's anticipated length of recovery from an illness; and,
the age at which the children will enter school or the age at which they can enter daycare.


===Final Orders and Agreements: Lump Sum Payment===
A ''lump sum'' order or agreement for spousal support requires the payor to make a large, one-time-only payment of spousal support. This kind of spousal support payment is fairly rare, partly because the payment of a lump sum of spousal support is often difficult to distinguish from the division of property, partly because a lump sum payment may not adequately address the need the payment of spousal support is meant to address, and partly because few payors can afford to make a lump sum payment.


A "lump sum" order or agreement for spousal support requires the payor to make a one-time-only payment of spousal support. This kind of spousal support payment is fairly rare, partly because the payment of a lump sum of spousal support is often difficult to distinguish from the division of property, partly because a lump sum payment may not adequately address the objectives of the payment of spousal support, and partly because few payors can afford to make a lump sum payment.
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 or as a hidden supplement to the division of family assets. 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 which will contribute to their future security.


Payors are sometimes interested in lump sum spousal support payments on the basis 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 lum sum spousal support payments where the cash is needed to make a downpayment or some other payment which 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 will be inclined to make an order for a lump sum, either alone or in addition to a periodic support order, where:
#the payor has a history of failing to make periodic support payments;
#the payor has been dishonest or deceitful during the trial, particularly with respect to the extent of his or her finances;
#there is so much anger and animosity between the parties that the payor is unlikely to comply with an order for periodic payments;
#the money is necessary to provide a home for the recipient;
#the money is necessary to give the recipient financial security that cannot be had by periodic payments;
#the payor is financially well-off and can afford to make the payment;
#the payor is able to pay a lump sum and the likelihood of the payor being able to make future periodic payments of support is low;
#the money will promote the recipient's self-sufficiency; or,
#periodic payments will not encourage the recipient to become self-sufficient.


the payor has a history of deliberately failing to make periodic support payments;
the payor has been dishonest or deceitful during the trial, particularly with respect to his or her finances;
there is so much anger and animosity between the parties that the payor is unlikely to comply with an order for periodic payments;
the money is necessary to provide a home for the recipient;
the money is necessary to give the recipient financial security that cannot be had by periodic payments;
the payor is financially well-off and can afford to make the payment;
the payor is able to pay a lump sum and the likelihood of the payor being able to make future periodic payments of support is low;
the money will promote the recipient's self-sufficiency; or,
periodic payments will not encourage the recipient to become self-sufficient.
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; ongoing monthly payments will not be necessary; and, the payor has the ability to make the payment.
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; ongoing monthly payments will not be necessary; and, the payor has the ability to make the payment.


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