Basic Principles of Spousal Support

Spousal support can be payable, or not payable, because of a family law agreement or because of a court order. When support can't be agreed on, married and formerly married spouses can apply for spousal support under the federal Divorce Act. Although both married and unmarried spouses can apply for spousal support under the provincial Family Law Act, there are special rules about how a couple qualify as spouses under that act and special rules about when claims for spousal support can be made.

This page provides an introduction to the basic principles of the law on spousal support, and explores how spousal support is awarded under the Divorce Act and the [Family Law Act]. It also discusses the basics of calculating the amount of support to be paid when someone is entitled to receive it and looks at the sort of support orders the court can make, including interim and final orders. The Spousal Support Advisory Guidelines is the subject of in the next page.

Introduction

Generally speaking, an order or agreement requiring the payment of spousal support is appropriate where:

1. a spouse has suffered economic loss or hardship as a result of the relationship or the breakdown of the relationship,
2. there is a contract between the spouses which requires that spousal support be paid, or
3. one spouses is in financial need after separation and the other spouses has the ability and disposable income to meet that need.

A person claiming spousal support in court will generally wind up making his or her application based on one of these grounds. In determining whether the ground has been proven, the court will look at the factors and requirements set out in the relevant legislation.

The Divorce Act

If the claim for spousal support is being made under the federal Divorce Act, the parties must be or have been married, and the person asking for spousal support must have lived in the province in which the court proceeding is started for at least a year before the proceeding is started.

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 review 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 Family Law Act

If the claim is being made under the provincial Family Law Act, spousal support is available for married and unmarried spouses. For unmarried spouses, spousal support may be payable, providing that:

1. the parties lived in a "marriage-like relationship" for at least two years, or
2. the parties lived in a marriage-like relationship for less than two years and have a child together.

Married spouses must start a court proceeding claiming spousal support within two years of the date of their divorce or an order annulling their marriage. Unmarried spouses must start a court proceeding within two years of the date of their separation. The Divorce Act doesn't have any rule about when an application for support can be brought following divorce; under that law, a spouse is always a spouse entitled to apply for support.

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 review 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, and 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.

June and Ward Cleaver: An explanation of spousal support

The point of spousal support is to provide assistance to a spouse who is financially dependent on the other spouse, or to a spouse who has been financially disadvantaged as a result of the relationship. Let's use Leave it to Beaver as an example.

June and Ward are married and have a very traditional relationship. Ward works in an office downtown and June stays at home caring for Wally and the Beaver.

June, who might well have been a research scientist at NASA before she got married, has chosen to abandon her career to take care of Wally and the Beaver and make sure that Ward has a nice hot dinner waiting when he comes home.

Ward, on the other hand, has been given the opportunity to have a fabulous career. June's labour in the home has freed his time up so that he can go to work and get raises and promotions, without having to worry about getting the Beaver ready for school, preparing meals for the family, or doing the dishes.

Skip forward a few years. Ward discovers that June's relationship with the mail carrier isn't quite as businesslike as he'd thought. Ward and June separate, Wally moves in with his girlfriend and the Beaver stays with June in the former family home. Ward moves into a new apartment with his secretary.

As a result of the way that Ward and June handled their marriage, Ward has been allowed to pursue a successful career and earn lots of money. Ward is in a great position to move on with his life.

June, however, isn't so lucky. Her research skills from her work at NASA are obsolete, her master's degree in orbital dynamics isn't relevant any more, and she has no idea how to operate the fancy new equipment that NASA has bought since she last worked there. Making matters worse, the last entry on her resume is fifteen years old. If June's going to go back to work, it won't be at NASA, it'll be at Denny's.

In this example, June has been financially disadvantaged as a result of the marriage. While Ward is in good shape and his career shows no sign of decline, June has no way to easily re-enter the workforce because her job skills are out of date. Of course, they have two great kids, but the best job June will be able to get will be as a Tim Horton's trainee, and that won't pay enough to cover the cost of the mortgage, the gas bill, the phone bill and all of life's sundry other expenses.

As a result of how Ward and June elected to manage their marriage, Ward will, in all likelihood, have to pay spousal support to June to help her get by and help maintain the house while she upgrades her education and gets some job retraining.

Spousal support and the division of property

The issues of spousal support and the division of the family property are somewhat intertwined. The court usually will only turn its mind to the question of spousal support after the family property, if any, has been divided between the parties. The reason for this is that the object of an order for spousal support may have been adequately addressed or partly addressed by the order the court makes about the division of property.

In such circumstances, there may be no order for spousal support, or the amount of support required may be intended to simply "top up" the order for property division such that the objects of spousal support will be met.

Spousal support, fault and misconduct

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:

In making an order [for spousal support] the court shall not take into consideration any misconduct of a spouse in relation to the marriage.

The Supreme Court of Canada, in a 2006 Divorce Act case called Leskun v. Leskun, [2006] 1 SCR 920 confirmed that the conduct 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.

The Family Law Act takes a slightly different approach. Section 166 says this:

In making an order respecting spousal support, the court must not consider any misconduct of a spouse, except conduct that arbitrarily or unreasonably

(a) causes, prolongs or aggravates the need for spousal support, or

(b) affects the ability to provide spousal support.

In other words, like the Divorce Act, the court cannot consider misconduct in relation to the relationship, but the court can look at the parties' behaviour after they separate, and whether the recipient is doing the things that need to be done to become economically self-sufficient or the payor is doing things that undermine his or her ability to pay support.

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 which can help to ensure that spousal support continues to be paid, including after the death of the payor. The court may:

1. order that a charge be registered against property,
2. require a payor with life insurance to maintain that policy and specify that a spouse will be the beneficiary or the policy, or
3. order that spousal support continue to be paid after the payor's death and be paid from his or her 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:

1. whether the recipient's need for support will survive the payor's death,
2. whether the payor's estate is sufficient to meet the recipient's needs, taking into account the interests of the people who stand to inherit from the payor's estate and the creditors entitled to be paid from the payor's estate,
3. whether any other means exist to meet the recipient's needs.

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 his or her 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.

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 he or she is entitled to support by considering the objectives set out in s. 161. If entitled is found, the court must then determine how much support should be paid and for how long by considering the factors set out in s. 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:

(a) to recognize any economic advantages or disadvantages to the spouses arising from the relationship between the spouses or the breakdown of that relationship;

(b) to apportion between the spouses any financial consequences arising from the care of their child, beyond the duty to provide support for the child;

(c) to relieve any economic hardship of the spouses arising from the breakdown of the relationship between the spouses; and

(d) as far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

The first three objectives are fairly straightforward and are self-explanatory. The last one deserves some comment however. The effect of s. 15.2(6)(d) and s. 161(d) is to impose almost an obligation on a recipient to make his or her 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 dependent 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 him or her to meet his or her daily needs. 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 which prevents him or her 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

(a) the length of time the spouses cohabited;

(b) the functions performed by each spouse during the period they lived together; and

(c) an agreement between the spouses, or an order, relating to support of either spouse.

These factors help the court decide how much spousal support should be paid and for how long, but the court will consider facts about the spouses, their relationship and their circumstances in addition to these.

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.

Statutory provisions

These are the primary sections of the Divorce Act dealing with spousal support.

• s. 2: definitions
• s. 4: jurisdiction to make spousal support orders
• s. 5: jurisdiction to change orders
• s. 15: definition of spouse
• s. 15.2: spousal support orders
• s. 15.3: child support has priority over spousal support
• s. 17: varying support orders

These are the primary sections of the Family Law Act dealing with spousal support.

• s. 1: definitions
• s. 3: spouses and relationships between spouses
• s. 146: more definitions
• s. 161: objectives of spousal support
• s. 162: factors to determine the amount and duration of spousal support
• s. 163: agreements about spousal support
• s. 164: setting aside agreements about spousal support
• s. 166: misconduct
• s. 167: varying spousal support orders
• s. 168: review of spousal support

Calculating spousal support

It is difficult to predict how much spousal support will be paid in any given case. You can, however, get a rough idea by looking at each spouse's expenses and the disposable income available to each of them, especially the payor. You should also look at the Spousal Support Advisory Guidelines, which lawyers and the court routinely rely on to determine spousal support payments. These are discussed in the page on The Spousal Support Advisory Guidelines.

In order to decide what should be paid, assuming of course that the recipient is entitled to receive support, it is critical that each party prepare a sworn Financial Statement where a court proceeding has started or not. A Financial Statement is a court form used in both the Supreme Court and the Provincial Court that sets out each party's income and assets, expenses and liabilities. Exchanging sworn Financial Statements is an excellent starting point for figuring out the amount of support which ought to be paid.

Calculating spousal support without the Advisory Guidelines

Assuming that the Advisory Guidelines will not be used, you can use this process to get a rough idea about how much spousal support will be paid.

• First, figure out what the reasonable monthly expenses of the recipient are. These needs will include things like paying the rent, utilities, groceries and so forth. Reasonable expenses won't usually include things like savings for RRSPs, vacations or days at the spa; these are luxury items, not necessities.
• Second, subtract from the recipient's monthly expenses any income he or she might have. Typical sources of income include employment income, child tax benefits, baby bonus payments and so forth. The shortfall between the recipient's income and his or her expenses will be the amount of the recipient's monthly needs.
• Third, figure out what the payor's reasonable monthly disposable income is. Take the payor's net monthly pay, subtract the payor's reasonable monthly expenses, and subtract any child support payments. The resulting amount will the be payor's monthly disposable income, the amount of extra money the payor has each month for discretionary spending, to put into savings or to provide to his or her spouse.
• Fourth, compare the recipient's monthly needs to the payor's disposable income. If the recipient's needs can be met from the payor's disposable income, a support order will likely be made in that amount. If the recipient's needs can't be met from the payor's disposable income, go back to step one and be more conservative with both parties' expenses.

The payor's monthly disposable income is an obvious place to begin talking about how much spousal support he or she can afford to pay. However, if there is a shortfall between the payor's disposable income and the recipient's need, someone needs to trim some expenses somewhere. Ultimately, if a compromise can't be reached, one of the parties may have to accumulate some debt over the short term. This will usually be the party better able to shoulder the financial burden... usually the payor.

The court will not bankrupt a payor in order to meet the dependant spouse's needs. Obviously, there must be a balancing. In many cases this means that both parties must adjust their standard of living to be able to live within the pool of income available to them.

Finally, once a starting figure has been reached, it can be important to look at the income tax consequences to the recipient from receiving support and the income tax benefits to the payor from paying it, and then readjust the amount of support to be paid if desired.

The tax consequences of spousal support sometimes suggest that the basic amount should be adjusted. Because support is a deduction for the payor, he or she will pay less taxes and have more money left over at the end of the year; for a recipient, taxes will be owing on the support payments, and he or she will have less money than expected at the end of the year.

These tax issues are ususally resolved in one of three ways:

1. the tax consequences of spousal support can be ignored altogether (this is the most common approach),
2. more spousal support could be paid each month to offset the year-end tax consequences, or
3. the payor could agree to pay any tax debt owed by the recipient resulting from the spousal support.

Where an order or agreement for spousal support does not address these tax issues, it is very important that the recipient set aside a portion of the support he or she receives to pay the tax man. Few recipients are able to pay unexpected tax debts without difficulty.

Calculating spousal support with the Advisory Guidelines

Assuming that the Advisory Guidelines will be used, you can visit DivorceMate's website for their free spousal support calculator, http://mysupportcalculator.ca. This calculator is very good for simple situations, but if there is anything complicated about your circumstances you may want to meet with a lawyer who has bought DivorceMate's expensive commercial software. The lawyer should be able to give you some fairly fine-tuned numbers.

The page on The Spousal Support Advisory Guidelines discusses the Advisory Guidelines formulas in a lot more detail.

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 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 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 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., 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:

1. there are young children who need a stay-at-home caregiver,
2. the applicant is unemployed at the time of the application and hasn't worked outside the home for a number of years,
3. the applicant is unemployed and faces barriers to employment, such as a lack of training or poor language skills, or
4. the applicant is employed but is unable to 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. 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.

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: periodic payments

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 orders for spousal support are often made where one or more of the following circumstances exist:

1. the parties' relationship was lengthy,
2. the recipient is unable to re-enter the work force because of physical or mental health issues,
3. the recipient is elderly and unable or likely unable to re-enter the workforce,
4. the recipient's child care or other obligations make it impossible for him or to re-enter the workforce, or
5. 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:

1. if the recipient remarries,
2. if the recipient lives with another person in a marriage-like relationship for longer than a certain amount of time,
3. if the recipient obtains employment and earns more than a specified amount,
4. if the payor retires, or
5. if the recipient or the payor dies.

Reviewable orders and agreements

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:

1. the children leaving home,
2. the recipient recovering from an illness,
3. the recipient becoming employed or finishing a course of training or education,
4. the recipient or the payor reaching a certain age or retiring,
5. the recipient or the payor beginning to receive pension benefits,
6. the sale of a property, or
7. the recipient entering into a new spousal relationship.

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.

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

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:

1. the recipient of support is in a new relationship and the new person's income is expected to contribute to the recipient's needs,
2. 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,
3. the recipient had a successful career before or during the relationship and is expected to return to work in short order,
4. the recipient merely requires some time to adjust to his or her new living circumstances and will become self-sufficient relatively quickly, or
5. 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 length of time for which support must be paid usually reflects one or more of the following factors:

1. the length of the parties' relationship,
2. the extent and nature of the parties' employment during their relationship,
3. the time the court estimates it will take the recipient to complete job training, if unemployed,
4. the amount of the recipient's income, if employed,
5. the payor's retirement date,
6. the recipient's anticipated length of recovery from an illness, or
7. the age at which the children will enter school or the age at which they can enter daycare.

Final orders and agreements: lump sum payments

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.

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 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:

1. the payor has a history of failing to make periodic support payments,
2. the payor has been dishonest or deceitful during the trial, particularly with respect to the extent of his or her finances,
3. there is so much anger and animosity between the parties that the payor is unlikely to comply with an order for periodic payments,
4. the money is necessary to provide a home for the recipient,
5. the money is necessary to give the recipient financial security that cannot be had by periodic payments,
6. the payor is financially well-off and can afford to make the payment,
7. 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,
8. the money will promote the recipient's self-sufficiency, or
9. 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, the payor has the ability to make the payment.

Page resources and links

Legislation

• Family Law Act
• Divorce Act
• Spousal Support Advisory Guidelines (not technically a piece of legislation)

Links

• Free Basic Spousal Support Calculator from Divorcemate
• ChildView Spousal Support Calculator Software