Difference between revisions of "Basic Principles of Spousal Support"

The next page, ________ , discusses the Advisory Guidelines formulas in a lot more detail.

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.

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.

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.

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.

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

if the payor retires; or,

if the recipient or the payor dies.

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.

Whether the order for spousal support will continue in the same amount as before will depend entirely on the particular circumstances of each case.

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'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.

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.