Family Primer Series – Spousal Support

This week’s topic is spousal support, perhaps the most difficult financial remedy to accurately assess under the Divorce Act.

Spousal support is an amount paid from one spouse to the other as a result of the breakdown of a spousal relationship. Spousal support can be payable either under section 15.2 of the Divorce Act or under Part III of the Family Law Act.

In order to be considered for spousal support, a party must have either been married or in a common-law relationship. In Ontario, a common-law relationship is one in which a couple has either resided together continuously for at least 3 years, or have resided together in a relationship of some permanence if they are the natural or adoptive parents of a child[1].

A party needs to demonstrate that that are eligible for spousal support. Not every relationship breakdown merits a spousal support order. To do this, the judge needs to take into account the following information, as per section 15.2(4) of the Divorce Act:

(a) the length of time the spouses cohabited;
(b) the functions performed by each spouse during cohabitation; and
(c) any order, agreement or arrangement relating to support of either spouse.

After considering the means and needs of the spouses, the duration of cohabitation, the functions performed by the parties during the relationship, and any prior agreement or order relating to support, the judge needs to make an order to fairly do the following, per sub-section 15.2(6) of the Divorce Act:

(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

Many people believe that the purpose of spousal support is to compensate the lower income-earning spouse for lost income-earning potential resulting from a couple’s decisions during the relationship, and the circumstances of their separation. This view is more in line with the now-defunct principle of alimony, or support amounts paid in compensation for lost income resulting from a relationship breakdown. The Supreme Court of Canada in the landmark decision of Moge v. Moge, [1992] 3 S.C.R. 813  ruled that the Court should take into account both compensatory (factors (a) and (b)) and non-compensatory (factors (c) and (d)) factors in awarding spousal support.

While equalization of the parties’ standard of living is not an objective listed in the Divorce Act, the Supreme Court of Canada has found in Moge that the resultant standards of living of the Parties are significant in determining what spousal support award, if any, should be payable in a given case. While there is no presumption in favour of equalizing the parties’ standards of living in the text of the Divorce Act, the Supreme Court ruled in Moge that, in the case of longer spousal relationships there is “greater presumptive claim” in favour of the equalization of the standard of living between the Parties.

There is much uncertainty in predicting the outcome of spousal support orders in Ontario. It is difficult to predict outcomes in spousal support cases, as awards can vary wildly between judges despite similar facts. To remedy this, a government commission was created to perform an extensive study on spousal support legislation and case law. This commission created a detailed set of guidelines to summarize the Canadian law of spousal support known as the Spousal Support Advisory Guidelines.

The Spousal Support Advisory Guidelines take into account all relevant factors under the Divorce Act and under case law to create a system that determines potential ranges and durations of spousal support payable by referring to the length of the spousal relationship, whether there are any children (and their ages), and the parties’ respective incomes and ages. While the Spousal Support Advisory Guidelines are not binding on judges, they are often used by courts in coming to decisions about spousal support. A failure to consider the suggested amounts under the Guidelines is seen in some jurisdictions (namely, British Columbia) as an appealable error of law. The Guidelines have somewhat increased the degree of predictability in spousal support awards, and are often used as a reference point for negotiations and judicial decisions regarding spousal support.

Spousal support orders (even final and/or indefinite term spousal support orders) can be varied if there has been a change in the means, needs, or circumstances of the parties warranting the change. The variation must not have been reasonably contemplated by the Parties (or the Court) at the time that the initial support order was made, or else the motion will likely fail. Common reasons for variation can include termination of employment or retirement, disability, new legal obligations to support other persons, or unexpected changes in income. Claims for variation of indefinite-term support orders can be complicated, as they often relate to a party’s ability to subsist in retirement. If you would like to discuss a potential variation in spousal support, you should speak with a lawyer immediately.

There are a number of online support calculators available that calculate spousal support in accordance with the Spousal Support Advisory Guidelines. I have included here a link to one for your convenience.

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[1] As per section 29 of the Family Law Act.

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