Difference between revisions of "Basic Principles of Spousal Support"

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 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 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.

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.

<blockquote>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.</blockquote>

<blockquote>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.</blockquote>

<blockquote>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.</blockquote>

<blockquote>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.</blockquote>

<blockquote>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.</blockquote>

<blockquote>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.</blockquote>

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.

===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.

 

 

<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>

 

The Supreme Court of Canada, in a 2006 ''Divorce Act'' case 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.

 

 

 

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.