"I come now to the issue of spousal support, historically the roulette of family law (blindfolds, darts and Ouija boards being optional)."
► Justice J. W. Quinn in the 2010 case of Bruni v Bruni.
See also Spousal Support Under B.C.'s Family Relations Act.
The following represent general legal information and should not be construed as legal advice (i.e., not to be used to resolve an actual spousal support situation). If you have a real spousal support situation, you should consult a legal professional as soon as possible. A wrong move at the onset could seriously harm your entitlement to, or liability for, spousal support in the future.
Spousal support is a periodic redistribution of wealth directed at a person, called the Payor, to a former spouse, called the Recipient, to ensure that the latter partakes in the former's wealth to the extent that such wealth, or earning power, accrued to the Payor during the mariage.
To this simple premise, over the ages, the law has forged many tweaks and exceptions.
At this time, the Canadian justice system is experimenting with Spousal Support Advisory Guidelines, called "advisory" as they are not binding on the Court. Clearly, the Courts are enamoured with them which is good in that, in theory, it adds an element of objective justice to this highly controversial and heavily charged topic of family law.
But, having been in the combat zome for decades, anywhere in the law that judges are free to roam is not good. The Romans figured that out thousands of years ago and even the common law systems are on a clear path to relying on statutes rather than judge-made law.
But the Guidelines are horribly complex and for all but the lawyers, chartered acountants or Mensa litigants, and require acess to a computer program to crunch out hypothetical and speculative numbers.
That, in turn, makes the calculations invisible to the self-represented litigant and what you can't see in law, you ought to be very wary of.
Here's the formula for the record, if the litigants have no children:
"The amount of spousal support is 1.5-2% of the difference between the spouses’ gross incomes for each year of marriage and duration is 0.5 to one year of support for each year of marriage, with duration becoming indefinite after 20 years."
The backbone of Canadaian spousal support remains the Divorce Act (which we'll call Act from here on in).
The main job of the court, under the Act, is to end the marriage; to allow for a divorce.
However, for decades now, Canadian courts have the authority, upon granting the divorce, to decide support and custody issues which will prevail after the divorce. The Act calls these related matters corollary relief (the English dictionary defines "corollary" as something which naturally accompanies something else).
Spousal support is corollary relief under the Act.
Although the Act gives Canadian courts the authority, after having considered the evidence of the parties, to order spousal support payable as a lump sum, it is much more common to see it payable in periodic payments, usually monthly.
There are several general rules that can be found within the Act, or relevant case-law, which set out the general guidelines in determining spousal support under the Divorce Act:
- A court can make a temporary spousal support order (called an "interim" order) as soon as the divorce petition is filed, to be in force until the divorce trial can be scheduled.
- The Act is not sexist and does not favour men or women.
- The court must consider the "condition, means, needs and other circumstances of each spouse for whom support is sought including the length of time the spouses cohabited, the functions performed by the spouse during cohabitation and any order or agreement relating to support of the spouse" in deciding whether to grant spousal support. The word "condition" includes the age, health and "station in life." The words "the functions performed by the spouse during cohabitation" includes homemaking duties and the requirement to compensate such sacrifice in making a spousal support order. Note also that while a court must consider the terms of any spousal support agreement, they are not bound by it. However, a valid spousal support agreement that has been negotiated with both parties having the benefit of legal counsel, will only very exceptionally be set aside but if the agreement also covers child support, a court will be much more inclined to intervene if that support is inadequate. A marriage contract would be more susceptible to judicial intervention.
- Spousal misconduct is not an issue in setting spousal support.
- If spousal support is granted, four objectives are listed in the Act:
- Recognizing economic advantages or disadvantages arising from the marriage or the divorce;
- Once any child support obligations have been divvied, divide between the spouses any financial consequences arising from the care of any child (child support payments take precedence over spousal support. In fact, where child support exhausts the debtor's ability to pay, spousal support, even though otherwise due, can be suspended);
- Relieve any economic hardship a spouse might suffer as a result of the marriage breakdown;
- In so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. Each case is evaluated on it's own merits and is dependent on market conditions. There is case law that suggests that life-long support is appropriate where a homemaker has devoted an entire life to raising children and, by the time of the divorce, cannot realistically be expected to retrain and compete for employment.
- Spousal support can be varied if there is a change in circumstances since the original order with the onus on the applicant to show that there has been a change.
- The court can order that spousal support will end at a certain date. This is sometimes used to encourage the support-creditor to become economically self-supportive. When this happens, the Act prevents a judge from later reviving the support payments past the cut-off date unless it is to relieve economic hardship resulting from a change in circumstances which, if it had existed at the time of the original order, would likely have resulted in a different order. Many spousal support defendants face indefinite support orders based on the career sacrifice the recipient hypothetically made re their children. These extraordinary orders are nonetheless routinely granted. Recently, the Alberta Court of Appeal may have sounded the long-awaited death knoll to the routiness of these life-pensions where, in Shields v Shields these words were used:
"While the recognition of any economic advantage or disadvantage arising from the marriage or its breakdown remains an overall objective to be considered by the court, that objective cannot dictate a result which guarantees that the payee spouse must support the other spouse ad infinitum... After a fifteen year marriage followed by an eight year separation, and taking into account the appropriate factors, a spousal support order ought to provide the mother with a realistic time frame to return to the workforce and acquire adequate income to achieve self sufficiency."
- A spousal support order dies with the death of the support debtor unless the order specifically says that the support is binding on the debtor's estate.
- The effect of spouses getting back together again varies from province to province. For example, it has been held in Ontario and Saskatchewan that reconciliation automatically voids a spousal support order. This means that if the reconciliation does not work out, a new support order is required. But B.C. and Manitoba courts have taken a different view and say that only another court order can end the obligations of the original order.
- A spousal support order may be transferred to the benefit of government social assistance agencies, to seek reimbursement of welfare money which has been paid to support a spouse while support payment were in default.
For an example, of how spousal support may differ when obtained under provincial family laws instead of the federal Divorce Act, readers are invited to consult Spousal Support under British Columbia's Family Relations Act.