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 persons 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 factors that the court will consider are set out in s. 15.2(4) of the Divorce Act. 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 dat te 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 objective the will court look at to determine whether someone is entitled to received spousal support are set out at

s at are those set out in s. 89 of the Family Relations Act, and the amount of the award will be determined bearing in mind the criteria set out in s. 93. 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.

C. The Cleaver Family: 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 — the show was filmed in the late 1950s and early 60s after all. 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, 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 business-like 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 accountant. 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 great 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.

D. Spousal Support and Asset Division The issues of spousal support and the division of the family assets are somewhat intertwined. The court usually will only turn its mind to the question of spousal support after the family assets, if any, have been divided between the parties. The reason for this is that the goal of an order for spousal support may have been adequately addressed or partly addressed by the order the court makes for 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 asset division such that the goals of spousal support will be met.

E. Spousal Support and Fault The Canadian divorce system is "no-fault," which means that the conduct of the spouses during their marriage that or the reasons why a marriage ends have nothing to do with whether spousal support is payable, how the children wind up being cared for, or how assets 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 decision called Leskun v. Leskun, 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.

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II. Spousal Support under the Divorce Act

Section 15.2(4) of the Divorce Act sets out the factors a court must take into consideration when making an order for spousal support:

In making an order ... the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including (a) the length of time the spouses cohabited; (b) the functions performed by each spouse during cohabitation; and (c) any order, agreement or arrangement relating to support of either spouse. Section 15.2(5) directs the court not to take into account "spousal misconduct," such as adultery, cruelty or generally being a repugnant ass, when making an order for spousal support.

Section 15.2(6) sets out the objectives for a spousal support order:

An order ... that provides for the support of a spouse should (a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; (c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. If a spouse is eligible to seek an order for spousal support, the court must consider whether the factors in s. 15.2(4) have been met, and then make an order which takes into account and reflects the objectives set out in s. 15.2(6).

The first three objectives are fairly straightforward and self-explanatory. The last, (d) in the list above, deserves some comment however. The effect of s. 15.2(6)(d) is to impose a obligation on a spouse receiving support, an obligation which almost amounts to a duty, to make his or her best efforts to become self-sufficient at some point following separation. Marriage is not intended to be a life-long meal ticket; at some point, a dependent spouse normally must become independent. This section of the Divorce Act allows the court to set a date on which spousal support payments will end in the expectation that by the termination date the dependent spouse 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.

There are two remaining principles that you should know about:

Section 15.3 of the Divorce Act states 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. The fact that a recipient is on welfare and therefore has some measure of financial independence is not relevant to the recipient's application for spousal support. If a spouse has the ability to make payments to support the other spouse, that spouse should support to financially needy spouse, not the taxpayors. A. 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: proceedings to change a support order Back to the top of this chapter.

III. Spousal Support under the Family Relations Act

The factors under the Family Relations Act which suggest someone is entitled to receive support are set out in s. 89(1) of the act:

A spouse is responsible and liable for the support and maintenance of the other spouse having regard to the following: (a) the role of each spouse in their family; (b) an express or implied agreement between the spouses that one has the responsibility to support and maintain the other; (c) custodial obligations respecting a child; (d) the ability and capacity of, and the reasonable efforts made by, either or both spouses to support themselves; (e) economic circumstances. Section 93(4) sets out the objectives of an order for spousal support:

If a spouse will be living separate and apart from the spouse against whom the application is made, the court may, as it considers appropriate, adjust the amount of its order under subsection (1) (b) to take into account the needs, means, capacities and economic circumstances of each spouse, including the following: (a) the effect on the earning capacity of each spouse arising from responsibilities assumed by each spouse during cohabitation; (b) any other source of support and maintenance for the applicant spouse; (c) the desirability of the applicant spouse having special assistance to achieve financial independence from the spouse against whom the application is made; (d) the obligation of the spouse against whom application is made to support another person; (e) the capacity and reasonable prospects of a spouse obtaining education or training. The spousal support provisions of the Family Relations Act are almost identical to those of the Divorce Act, and, like the Divorce Act, the Family Relations Act also provides that:

the court must, under s. 93.2, give priority to child support where a payor cannot afford to pay both spousal support and child support; and, under s. 89(2), a spouse is required to become self-sufficient. However, the Family Relations Act is unique in providing, at s. 96(5), that:

If the court finds that a spouse or former spouse is not making reasonable efforts under subsection (4), the court may reduce the amount of maintenance payable on behalf of the spouse or former spouse under a maintenance order. This section allows the court reduce a support order if the recipient isn't making a genuine effort to become financially independent.

A. Statutory Provisions These are the primary sections of the Family Relations Act dealing with spousal support.

s. 1: definitions s. 9: interim orders s. 20: changing or cancelling orders s. 89: the obligation to support a spouse s. 91: who may apply for a spousal support order s. 93: support orders generally s. 96: variation proceedings Back to the top of this chapter.

IV. 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 party's reasonable expenses and the disposable income available to 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 next chapter, Spousal Support > The 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 action has started or not. A Financial Statement is a court form available in both the Supreme Court and Provincial (Family) Court which sets out each party's income and assets, expenses and liabilities. Making Financial Statements is an excellent starting point for figuring out the amount of support which ought to be paid.

A. 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. 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 figure will the be payor's monthly disposable income, the amount of extra money the payor has each month to spend on luxuries or put into savings. 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 diposable income and the recipient's need, someone needs to trim some expenses somewhere. Ultimately, if 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, look at the income tax consequences to the dependant spouse of receiving the support and the income tax benefits received by the payor, and 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:

the tax consequences of spousal support can be ignored altogether (this is the most common approach); more spousal support could be paid each month to offset the year-end tax consequences; or 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.

B. Calculating Spousal Support With the Advisory Guidelines Assuming that the Advisory Guidelines will be used, you can visit DivorceMate's new website, mysupportcalculator.ca, to use their free spousal support calculator.

The next chapter, Spousal Support > The Advisory Guidelines, discusses the Advisory Guidelines formulas in a lot more detail.

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V. Spousal Support Orders and Agreements

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.

A. Interim Orders and Agreements 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.

Does the person making the application have a need for support? 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 which 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 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.

B. Final Orders and Agreements: Definite and Indefinite 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.

1. 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; 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 recipient's child care or other obligations make it impossible for him or to re-enter the work force; or, the consequences of the breakdown of the relationship, such as depression, have left the recipient unable to work. 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:

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 obtains employment and earns more than a specified amount; if the payor retires; or, if the recipient or the payor dies. 2. 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.

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.

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.

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

3. 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:

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 had a successful carreer 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 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 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. C. Final Orders and Agreements: Lump Sum Payments 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 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 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 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 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.

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