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Difference between revisions of "Basic Principles of Spousal Support"
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Basic Principles of Spousal Support (view source)
Revision as of 04:52, 15 May 2019
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When analyzing a spousal support claim, the court will consider the following questions: | When analyzing a spousal support claim, the court will consider the following questions: | ||
#Is the person applying as a ''spouse''? That is, do they fit within the category of persons allowed to apply? | #Is the person applying as a ''spouse''? That is, do they fit within the category of persons allowed to apply? Or, as it is sometimes put, do they have ''standing'' to apply? | ||
#Is the person applying in time? That is, do they fit within the applicable ''limitation period''? | #Is the person applying in time? That is, do they fit within the applicable ''limitation period''? | ||
#Has the person demonstrated an ''entitlement'' to spousal support? | #Has the person demonstrated an ''entitlement'' to spousal support? | ||
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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: | 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: | ||
#the parties lived in a ''marriage-like relationship'' for at least two years, or | #the parties lived in a ''marriage-like relationship'' for a continuous period of at least two years, or | ||
#the parties lived in a marriage-like relationship for less than two years and have a child together. | #the parties lived in a marriage-like relationship for less than two years and have a child together. | ||
As to what constitutes a “marriage-like relationship”, the courts take a holistic approach. The presence or absence of any particular factor is not determinative: [http://canlii.ca/t/1txxkand Austin v. Goerz] 2007 BCCA 586 and [http://canlii.ca/t/gm9nx Weber v Leclerc], 2015 BCCA 492. It does not require a blending of finances, monogamy, planning for retirement or death, a decision to have children, or other hallmarks of traditional (whatever that is) marriage. The presence of such factors can help; but their absence may not be fatal. What is essential is that the court can see a committed relationship in some sense sufficient to raise an obligation for support. That may sound circular (and it is), but it is nonetheless the task for a judge where the question is in doubt. | |||
If the parties have a child, and live together with that child in a marriage-like relationship, a plain reading of the statute suggests that not only is two years co-habitation not required, any length of cohabitation will do. | |||
====Limitation period==== | ====Limitation period==== | ||
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''. | 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''. | ||
“Separation” does not equate to moving out. Under section 3(4) of the the ''[[Family Law Act]]'', for spouses to be separated there must be: | |||
#communication by one spouse of an intention to separate permanently and | |||
#some action to demonstrate this intention | |||
That could be moving into the guest room, or to the couch. Spouses can be separated while still living under the same roof. Two years from the date of separation – especially where ``separation`` can be uncertain – is a short period of time. It can take you by surprise and sneak up on you, especially if it `feels` like you are still together, even if desperately unhappy. If there is any doubt whether you have been separated, seek legal advice. | |||
In certain cases, if a former spouse has been led by the other spouse to feel they are still together, or that the other spouse will not take advantage of the limitation period, the other spouse my be prevented (``estopped``) from relying on the limitation period. Such will be the case, for example, where the other spouse makes voluntary support payments: [http://canlii.ca/t/1f3ss Pierce v Pierce], 1997 CanLII 2583. But do not place all your hopes in this life basket. If there is talk of separation, better to know your rights than be sorry you didn’t. | |||
The limitation period will also be suspended for so long as the parties engage in ``family dispute resolution with a family dispute resolution professional``. These are defined terms and regrettably do not apply to all efforts to resolve the dispute out of court. | |||
====Entitlement==== | ====Entitlement==== | ||
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 <span class="noglossary">review</span> 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 | 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 <span class="noglossary">review</span> 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 | ||
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{{REVIEWED | reviewer = [[David Dundee]] and [[Gillian Oliver]], | {{REVIEWED | reviewer = [[David Dundee]] and [[Gillian Oliver]], May 15, 2019}} | ||
{{JP Boyd on Family Law Navbox|type=chapters}} | {{JP Boyd on Family Law Navbox|type=chapters}} | ||