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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 18:55, 30 July 2019
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====Entitlement and the ''Divorce Act''==== | ====Entitlement and the ''Divorce Act''==== | ||
The objectives that the court will look at in deciding whether a spouse is entitled to spousal support are set out at | The objectives that the court will look at in deciding whether a spouse is entitled to spousal support are set out at section 15.2(6) of the ''[[Divorce 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 section 15.2(4). | ||
====Amount and duration of support==== | ====Amount and duration of support==== | ||
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====Entitlement==== | ====Entitlement==== | ||
The objectives that the court will look at in deciding whether a spouse is entitled to spousal support are set out at | The objectives that the court will look at in deciding whether a spouse is entitled to spousal support are set out at section 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 section 162. The ''[[Family Law Act]]'' objectives and factors for spousal support are the same as the ''[[Divorce Act]]'' objectives and factors | ||
====Amount and duration==== | ====Amount and duration==== | ||
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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. | 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, | 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, section 15.2(5) of the ''[[Divorce Act]]'' says: | ||
<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> | <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> | ||
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===Securing a spousal support obligation=== | ===Securing a spousal support obligation=== | ||
Under | Under section 170 of the ''[[Family Law Act]]'', the court may make a number of additional orders when it is making an order for spousal support that can help to ensure that spousal support continues to be paid, including after the death of the payor. The court may: | ||
*order that a charge be registered against property, | *order that a charge be registered against property, | ||
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*order that spousal support continue to be paid after the payor's death and be paid from their estate. | *order that spousal support continue to be paid after the payor's death and be paid from their estate. | ||
Before the court makes an order that requires spousal support to be paid from the payor's estate, under | Before the court makes an order that requires spousal support to be paid from the payor's estate, under section 171(1), the court must consider: | ||
*whether the recipient's need for support will survive the payor's death, | *whether the recipient's need for support will survive the payor's death, | ||
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===Spousal support when the payor dies=== | ===Spousal support when the payor dies=== | ||
When a payor dies, the recipient can apply to court for an order under | When a payor dies, the recipient can apply to court for an order under section 171(3)(b) of the ''[[Family Law Act]]'' that the payor's support obligation will continue and be paid from their 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 against the recipient's application or to vary or terminate a continuing obligation. | 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 against the recipient's application or to vary or terminate a continuing obligation. | ||
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==The objectives and factors of spousal support== | ==The objectives and factors of spousal support== | ||
Under | Under section 160 of the ''[[Family Law Act]]'', when a spouse applies for spousal support, the court must determine whether they are entitled to support by considering the ''objectives'' set out in section 161. If the court finds that they are entitled to spousal support, the court must then determine how much support should be paid and for how long by considering the ''factors'' set out in section 162. | ||
Section 15.2(6) of the ''[[Divorce Act]]'' and | Section 15.2(6) of the ''[[Divorce Act]]'' and section 161 of the ''[[Family Law Act]]'' set out the objectives for a spousal support order: | ||
<blockquote><tt>(a) to recognize any economic advantages or disadvantages to the spouses arising from the relationship between the spouses or the breakdown of that relationship;</tt></blockquote> | <blockquote><tt>(a) to recognize any economic advantages or disadvantages to the spouses arising from the relationship between the spouses or the breakdown of that relationship;</tt></blockquote> | ||
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The first three objectives are fairly straightforward and are self-explanatory. The last one deserves some comment. | The first three objectives are fairly straightforward and are self-explanatory. The last one deserves some comment. | ||
The effect of | The effect of section 15.2(6)(d) and section 161(d) is to impose almost an obligation on a recipient to make their 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 dependant 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 them to meet their daily needs. | 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 them to meet their daily needs. | ||
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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 that prevents them from becoming independent, there will likely be an end date to support payments. | 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 that prevents them from becoming independent, there will likely be an end date to support payments. | ||
Section 15.2(4) of the ''[[Divorce Act]]'' and | Section 15.2(4) of the ''[[Divorce Act]]'' and section 162 of the ''[[Family Law Act]]'' set out the factors for a spousal support order: | ||
<blockquote><tt>(a) the length of time the spouses cohabited;</tt></blockquote> | <blockquote><tt>(a) the length of time the spouses cohabited;</tt></blockquote> | ||
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===Spousal support and child support=== | ===Spousal support and child support=== | ||
Section 15.3 of the ''[[Divorce Act]]'' and | Section 15.3 of the ''[[Divorce Act]]'' and section 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=== | ===Statutory provisions=== | ||
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====Reviewable orders and agreements==== | ====Reviewable orders and agreements==== | ||
Under | Under section 168 of the ''[[Family Law Act]]'', an order or agreement that requires the payment of spousal support can be ''reviewable''. | ||
A reviewable order or agreement for spousal support is one that 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: | A reviewable order or agreement for spousal support is one that 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: | ||