Spousal Support

Who is entitled?

The Divorce Act says that spousal support is paid by one person to another if they're married at the time or were previously married to each other. Each of the provinces (which includes the 'territories") have their own legislation providing for spousal support even if the "spouses" aren't, and never were, married to each other but fit the particular definition of a spouse. Generally that includes people if they're the parent of a child born of the relationship or lived in a spouse-like relationship ("common-law partner") for a specified period of time, and make their application within the time set out. (There's no time limit to seek support under the Divorce Act.) You need to see what legislation applies where you live if you're not under the Divorce Act. Being in a same-sex relationship doesn't matter under the Divorce Act because if you're married you qualify. Most provincial legislation specifically covers same-sex relationships in the same way as heterosexual relationships, and if they don't, any attempt to bar same-sex partners from the same spousal support as other common-law partners is unconstitutional.

What is it for?

If you're a "spouse" you need to fit yourself into particular legislative objectives to be entitled to support. While the stated objectives differ from one province to another, for practical purposes spousal support orders should fit one of these objectives – as set out in the Divorce Act but generally followed one way or another by provincial legislation:

• Recognize any economic advantages or disadvantages to the spouses arising from the relationship or its breakdown
• Apportion any financial consequences arising from the care of any child of the relationship over and above the child support arrangement
• Relieve any economic hardship of the spouses arising from the breakdown of the relationship 
• Promote the economic self-sufficiency of each spouse, as far as practical, within a reasonable period of time

Fitting into any one of these categories is sufficient and it's fair to say that courts today will find reasons to pay spousal support more readily than not. The principles apply whether the spouses were in a same-sex or heterosexual relationship and whether it's the male or female who applies (although many lawyers and litigants feel that a male in the same situation as a female will have greater difficulty getting the same size award).

Three types of spousal support

The Supreme Court of Canada held that there are 3 types of support:

• Compensatory support - to address the economic advantages and disadvantages flowing from the marriage or the roles adopted in the marriage;
• Non-compensatory support - to address the disparity between the needs and means of the parties upon marriage breakdown; and
• Contractual support - to reflect an express or implied agreements between the parties concerning their respective financial obligations upon the breakdown of the marriage.

General observations

In their book "Annual Review of Family Law, 2004" James McLeod and Alfred Mamo make 13 "general observations" with respect to what courts say and do about spousal support:

• Courts will uphold reasonable support agreements made by the parties
• There doesn't need to be any "causal connection" between the need for support and anything which occurred in, or is related to, the marriage
• Support will generally be ordered if a spouse can't maintain a lifestyle similar to that during the relationship even if there hasn't been any disadvantage as a result of the roles adopted in the marriage
• Spousal support is usually paid monthly
• Duration of support depends upon the purpose of the support order
• Support is limited by the ability of the payor to pay it
• Dependency due to illness arising during the relationship may make support time-limited unless you can show there's an economic disadvantage resulting from the roles adopted during the marriage
• The principles in the Divorce Act apply subject to specific wording to the contrary in a particular province's legislation
• The same principles that apply whether spouses are married or unmarried
• If support is "compensatory" there's no general principle of "clean break" or deemed "self-sufficiency"
• Forming a new relationship with another person doesn't disentitle a spouse to support
• Spouses must accept, at some point, the consequences of their own economic decisions if they were taken for personal, not family, reasons
• Generally the court should wait until the property division has taken place before making a final decision regarding support.

What if there are kids?

It's clear that spousal support should be considered after child support has been dealt with. Sometimes that means that even though the applicant spouse really needs support, there simply may not be enough money left for the payor spouse to pay it. The court will then grant less for spousal support than it would if there weren't children. But when child support ends the recipient spouse can ask the court to readjust the spousal support because that obligation is no longer there.

Can it be changed?

Yes. Generally you'll need to show that there's been a material change in circumstances and prove the new situation, but spousal support can be, and is often, varied.

Pretty clear, huh? But that's not all.

Spousal Support Advisory Guidelines

In January 2005 Spousal Support Advisory Guidelines were introduced. These aren't legislative requirements directing judges what to do and are specifically NOT intended to replace the various principles and legislation referred to above. But they were created to establish a general outline of what the courts seem to have awarded in broad categories over recent years. They're not a Table, so you can't look up the amount. They're 2 separate formulas (for whether there are or aren't children) to establish a general range of suggested amounts to be paid, and for how long, if your situation is pretty average. They give you an idea of what would likely seem to be pretty average for people in your situation (same number of years of marriage, ages, and incomes as you and your spouse, whether or not you have children).

What does this mean for me?

If you're not a lawyer, consult one. Wherever there's a question about whether or not there should be any spousal support to pay or to receive, or how much, or for how long, you're well advised to invest in a consultation with an experienced family law lawyer so you'll have an idea about your rights or obligations.