Spousal support (known as “alimony” in the United States of America) is the financial compensation paid by one partner to the other partner following separation or divorce, generally paid on a monthly basis or by a lump sum.
There are two statutes pursuant to which an order for spousal support can be made: the Divorce Act and the Family Law Act (FLA). Which of those two statutes applies to your circumstances will generally depend on whether or not you are married:
Family Law Act
|Family Law Act|
For unmarried couples, the definition of “spouse” in section 29 of the FLA restricts applications for spousal support to common law couples who:
Applications for spousal support from same-sex parties, whether pursuant to the Divorce Act or the FLA, are treated identically to that of opposite-sex couples.
The first step in any spousal support analysis is to determine entitlement, that is, whether a prospective recipient has sufficient grounds for a claim to support. This is based on consideration of factors unique to their situation. In a recent decision (Thompson v. Thompson), Justice Chappel indicated that:
“Entitlement does not limit or value one reason over the other, and so entitlement may be established on more than one ground. It is critical for the court and your lawyers to determine all grounds for entitlement, as the basis for entitlement may have a significant impact on amount and duration of spousal support.”
As such, although a support claim need only establish one of two (other than contractual) grounds, if it can establish both that the party is entitled to support on both a “needs” and “compensatory” basis (both explained below), then the amount and duration of any support will likely be greater than it would have been were there only a single basis for entitlement.
In the realm of financial matters, marriage in Canada is treated much like a business partnership. Addressed in section 15.2 of the Divorce Act, and interpreted by the Supreme Court of Canada in Bracklow v. Bracklow, there are three reasons a spouse would be entitled to spousal support:
When determining these bases for entitlement to spousal support, there are many factors to consider (s. 15.2(4) of the Divorce Act), and an appropriate spousal support order should recognise the situations of both spouses (s. 15.2(6) of the Divorce Act), including:
Surprising to many, subsection 15.2(5) states that in determining the appropriate spousal support arrangement, “the court shall not take into consideration any misconduct of a spouse in relation to the marriage,” which includes adultery.
Spousal support can be agreed to in a separation agreement or be part of a court order. If a court order, subsection 15.2(1) provides that a court may on application by either or both spouses require a spousal support order as the court thinks reasonable.
Subsection 15.2(2) gives the court the power to make an interim support order, which is a temporary support order designed to govern the situation until a final order can be made at trial, or the parties come to agreement without trial.
Historically, the courts have applied a standard of “rough justice” when determining support arrangements on an interim (temporary) basis, versus when the court is making a determination on a final and permanent basis (at trial). The financial need of the spouse claiming support, together with the ability of the other spouse to pay, is given strong consideration in these situations.
The courts can also make a subsequent order for retroactive adjustment of an interim order to correct an overpayment or underpayment of support that occurred as a result of an interim order.
The spousal support provisions of the FLA are similar to those found in the Divorce Act, though there are some differences. However, the motivation behind spousal support remains the same in the FLA, as stated in section 30:
“Every spouse has an obligation to provide support for themselves and for the other spouse, in accordance with need, to the extent that they are capable of doing so.”
The FLA determines entitlement to spousal support, through the consideration of many factors (s. 33(9)), and an appropriate spousal support order should recognise the situations of both spouses (s. 33(8)), including:
Under the FLA, the obligation to provide support for a spouse exists without regard to the conduct of either spouse. In determining the amount of support, however, the FLA states that the court may consider conduct that is so unconscionable as to constitute an obvious and gross repudiation of the relationship. In rare cases this could affect a support order.
The FLA also sets out provisions that can be included by the court when making either an interim or final support order.
Generally speaking, when a person is collecting financial support through a government funded benefit program but has a spouse with the ability and obligation to pay support, an application may be commenced by a third party (government and social services agency) on behalf of the spouse in need, against the spouse with the ability to pay. Accordingly, subsection 33(3) of the FLA further extends the rights to seek spousal support to various third parties.
Spousal support is a comprehensive calculation, and like entitlement, involves many different financial factors unique to each case.
If, and only if, the court determines that the claimant is entitled to spousal support on at least one ground, the next step is how much (the “quantum”) and for how long support is to be payable (the “duration”).
Generally speaking, a court and/or your lawyers will rely on the Spousal Support Advisory Guidelines (SSAGs) to help determine spousal support for both separation agreements or court orders. It is important to keep in mind that the SSAGs are not law. Rather, they are a useful tool used by the courts and your lawyers.
The courts have the discretion to make an order outside the parameters of the SSAGs and are not bound by them. The SSAGs are only assistive to the court, although they are used more and more by the judiciary to guide decisions on this subject as time passes.
Your lawyer has access to special software that applies the SSAGs to the individual circumstances of your situation and generates a potential range for both the quantum and duration of support.
Although it is best to have these matters addressed professionally by a lawyer who knows how all the pieces fit together, anyone interested in obtaining a very rough idea of the amount and duration of spousal support can complete a very limited SSAGs calculation at mysupportcalculator.ca.
Please be careful when using this tool, as it cannot fully capture all the details of your situation. The software used by lawyers practicing family law is significantly more sophisticated and is capable of including all relevant data, financial and otherwise, to provide an accurate a picture of the potential support claim.
The duration of monthly (or “periodic”) spousal support can be for a limited period of time or continue indefinitely until a change in circumstances requires a change in quantum or termination of the support.
There is no universal rule for how long a support payor will be obligated to pay or a support recipient will be entitled to receive. The time will be determined by the financial conditions, needs, means, and circumstances of the spouses. As such, the duration of a potential spousal support claim order or agreement depends on the facts of each individual case. Frequently, a court may order, or parties may agree, to a timeline for review or variation of support arrangements.
Generally speaking, once an order or agreement that requires payment of spousal support is in effect, support must continue to be paid unless:
A court, on consent, or you and your former spouse, may change a spousal support order if there has been a significant change in circumstances for either the payor or the recipient. If you have experienced a change of circumstance that affects your spousal support payments, please consult with your lawyer to determine the options available to you.
If your order or separation agreement has a stipulation for ending spousal support, normally this will be explicitly stated as a specific date or once certain conditions are met.
|Divorce Act||Family Law Act|
|The calculation and payment of child support must be given priority over spousal support.|
If child support is being paid, it can affect the spousal support analysis, both in quantum and duration of spousal support payable.
If the obligation to pay child support ends and the obligation to pay spousal support continues, there could be a further adjustment to spousal support due to the change in circumstances.
Your lawyer is in the best position to advise you about the differences between child and spousal support and how they impact each other.
Your support payments may be included or deducted from your tax return. The Canada Revenue Agency has information to help you determine how your support payments will be considered. Your lawyer and your accountant can help by giving you information about how support will impact your taxes, including potential tax relief for legal fees you incur for the purpose of obtaining support (both child support and spousal support). This can be quite significant and should be discussed with your legal counsel.
Stephen Durbin & Associates’ experience determining, negotiating, and arguing spousal support makes us proactive in navigating your case with transparency and clarity, so you can be confident in receiving your full entitlement, or minimizing the entitlement of the other party to approach a reasonable level. Protect your rights. Start the process with knowledge. Consult with us today.
Please be advised that all articles written on this website are for informational purposes only and do not constitute legal advice on any subject matter. The information contained within these articles is subject to change at any time and should not be acted upon without previous consultation with legal counsel.