Difference between revisions of "Basic Principles of Spousal Support"

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

#one spouses is in financial need after separation and the other spouses has the ability and disposable income to meet that need.

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.

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.

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.

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 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.

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:

#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:

#whether any other means exist to meet the recipient's needs.

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.

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.

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.

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.

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

*s. 168: review of 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 next page, ________ .

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.

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.

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

#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.

Assuming that the Advisory Guidelines will be used, you can visit DivorceMate's website, mysupportcalculator.ca, to use their free spousal support calculator. 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 next page, ________ , discusses the Advisory Guidelines formulas in a lot more detail.

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'' 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.

Spousal support will often be awarded on an interim basis where:

#the Applicant is employed but is unable to pay his or her household bills without help.

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.

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

#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:

#if the recipient or the payor dies.

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:

#the recipient entering into a new spousal relationship.

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.

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 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:

#the age at which the children will enter school or the age at which they can enter daycare.

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.

The court may be prepared to make an order for a lump sum, either alone or in addition to a periodic support order, where:

#periodic payments will not encourage the recipient to become self-sufficient.

==Further Reading in this Chapter==

* <span style="color: red;">bulleted list of other pages in this chapter, linked</span>

===Legislation===