Difference between revisions of "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.

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 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 ''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:

#the parties lived in a "marriage-like relationship" for at least two years; or,

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''. 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 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.

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:

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.

The ''Family Law Act'' takes a slightly different approach. Section 166 says this:

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:

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.

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.

Section 15.2(6) of the ''Divorce Act'' and s. 161 of the ''Family Law Act'' set out the objectives for a spousal support order:

The first three objectives are fairly straightforward and are self-explanatory. The last one deserves some comment however. The effect of s. 15.2(6)(d) and s. 161(d) is to impose almost an obligation on a recipient to make his or her 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 dependent 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 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

Section 15.2(4) of the ''Divorce Act'' and s. 162 of the ''Family Law Act'' set out the factors for a spousal support order

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.

These are the primary sections of the ''Family Law Act'' dealing with 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, ________ .

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 a 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.

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.

*Does the person making the application, the ''Applicant'', have a need for support?

*Does the other person, the ''Respondent'', have the means to pay it?

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 an obvious case for entitlement is made out.

#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 is unable to pay his or her household bills without help.

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.

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's anticipated length of recovery from an illness,

 

 

* <span style="color: red;">bulleted list of linked legislation referred to in page</span>

* <span style="color: red;">bulleted list of linked external websites referred to in page</span>

* list of related public resources

public spousal support calculator, websites of DivorceMate and ChildView