Spousal support is legislated by the federal Divorce Act for married couples and the provincial Family Law Act for those in a common law/Adult Interdependent Partnership relationship. The overall objectives of spousal support are similar between these two pieces of legislation and the primarily purpose of spousal/partner support is to:
- Balance the economic advantages and disadvantages to both parties as a result of the separation;
- Lessen the financial hardship of both parties;
- Assist the parties with the financial costs arising from the care of children, which may be over and above what is covered through child support; and
- Encourage the parties to become self sufficient/supportive within a reasonable period of time.
Although the Divorce Act and Family Law Act have slightly different factors that the Court may take into consideration when determining whether a party is entitled to support and the amount of support they may receive, the general factors are:
- The financial means, needs and circumstances of the parties;
- The length of the relationship;
- The occupations of both parties and their roles during the relationship;
- Whether any financial hardship would result if a spousal support order is awarded; and
- Any previous Orders, Agreements or arrangements made regarding spousal support.
Before the amount of duration of spousal support can be addressed, the party seeking support must establish that they are entitled. Entitlement must be established on either a “compensatory” or “non-compensatory” basis. To establish entitlement on a compensatory basis the party seeking support must show an economic loss or disadvantage as a result of the roles adopted during the marriage or relationship. An entitlement to compensatory support can also be based on the recipient having provided an economic benefit to the payor throughout the relationship without adequate compensation. Some examples of this include: being a stay at home parent, making career choices that affect the recipient’s career trajectory but are for the benefit of the family, having primary care of children after separation, moving for the payor’s career, supporting the payor’s education or training and working primarily in a family business. Non-compensatory support is based on “need”. The need extends beyond a simple ability to cover basic living expenses and is intended to address a significant decline in standard of living from that which existed during the relationship.
The Spousal Support Advisory Guidelines (“Guidelines”) are a tool that the Court may take into consideration to assist with determining how much spousal support shall be paid and for how long. The Guidelines take into consideration the gross income of each party, the number of years the parties have lived together, and whether or not child support is payable. It is important to remember that these are guidelines and are not legally binding, as there is no legal requirement that the Court’s strictly follow them.
Spousal support may be paid on a monthly basis or if the parties agree, could be paid as a lump sum amount. The purpose of spousal support is not to punish the spouse for the breakdown of the marriage, or for a party’s conduct.
The legislation requires that child support be given priority over spousal/partner support. If there is not enough money to pay both types of support, the the spousal/partner support amount by be reduced accordingly.
Spousal support can be one of the most difficult areas of family law to navigate. There is no one size fits all approach and the outcome is usually very fact dependent. The family law and divorce lawyers at SVR can provide advice on potential outcomes that are specific to each client’s unique circumstances.