SPOUSAL SUPPORT BASICS

Spousal support is one of the most controversial topics in family law. One of the reasons for the controversy is that the law on spousal support is constantly evolving. In general, if one spouse earns more money than the other spouse, he/she may have to pay spousal support. Many people mistakenly refer to spousal support as "alimony" - which is a term used in the United States. In Canada, alimony is referred to as spousal support. You should be aware that there is a lot of misinformation available about spousal support. Many people getting divorced base their expectations on the experiences of their friends or business colleagues. In many cases the experiences of friends occurred years ago when the law on spousal support was different. A person who is ordered to pay support today will generally be ordered to pay a greater amount of support and for a longer period of time than would have been ordered even five years ago.

How Spousal Support is Determined

During a marriage it is common for spouses to share their incomes. Both contribute to and invest in their life together. Unfortunately, when they separate, it is difficult to know how to fairly divide their incomes. In some cases one spouse may have worked and paid all the bills. Or one spouse may have worked while the other went to school and trained to get a better job. In other cases, one spouse may have helped in the other’s business for little or no pay. If the parties had children, it is not uncommon for one spouse, typically the mother, to have given up their job so that he or she can stay home, manage the household, and care for the children. These contributions to a marriage all have value. Canadian courts have the authority, upon granting a divorce, to decide the issue of spousal support. The courts keep four objectives at the forefront when deciding spousal support issues. These are:

1. To recognize the economic advantages or disadvantages arising from the marriage or the divorce.
2. Once child support obligations have been established, to divide, between the spouses, any financial consequences arising from the care of any child.
3. To relieve any economic hardship a spouse might suffer as a result of the marriage breakdown and in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
4. 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.

The law views spousal relationships as financial partnerships. When the partnership breaks down, the person with more income or assets may have to pay support to the other. At the same time, the law expects adults to look after their own needs to the best of their abilities. There is no set formula for the amount of spousal support an individual should pay, although there are a set of non binding Spousal Support Guidelines that judges and lawyers follow. Despite this, spousal support is still decided on a case-by-case basis, and there is a lot of variability in the results. There are a number of factors that are considered in determining the amount of spousal support payable, including:

• The length of time the spouses have lived together and the length of the marriage
• Their ages and health
• What was the role of each spouse in the marriage
• Each party's assets and ability to be self sufficient
• What was the role of each spouse in the marriage
• If there are children, with whom are they living

A judge will review all of the factors and how they each party, with particular emphasis on the effect of the marriage and the divorce on the parties’ financial circumstances, and then apportion the family income in a fair way between the spouses. While there till is a great deal of variability in spousal support awards, there are several general rules that can be found within the Divorce Act, and relevant case-law, (that is, decisions previously decided by judges), which set out some general guidelines in determining spousal support.

• Each case is evaluated on it's own merits. There is ample 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.

• A court can make a temporary spousal support order (called an "interim" order). After you have filed your application for divorce, your lawyer may bring a motion to the court asking for interim support. If interim support is granted, it will usually remain in force until you either settle the matter or the divorce trial is held.

• The provisions of the Divorce Act do not favour either men or women. Officially, spousal support is not based on the gender of individuals. Men and women alike have an equal entitlement to receive and obligation to pay spousal support, although generally more men than women pay spousal support. The court, however, will not take the sex of an individual into consideration in making its decision.

• The Divorce Act states that 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.Spousal misconduct is not an issue in setting the entitlement to or amount of spousal support.

• Orders and agreements which provide for spousal support may be subject to a variation order by the court where a party experiences a significant, or material change in his or her financial circumstances. For example, spousal support payments are often reduced or suspended upon retirement of the payor or achievement of economic self sufficiency by the recipient. It should be noted that the party wishing to change the support order must prove that there has been a change in their circumstances,

• The court can order that spousal support will end at a certain date. This is used, at times, to encourage the support-recipient to become economically self-sufficient  Many spousal support payors face indefinite support orders based on the career sacrifice the support recipient hypothetically made in order to bear and rear their children. Such orders are still routinely granted.

• A spousal support order dies with the death of the support payor unless the order specifically says that the support is binding on the payor’s  estate.

• The effect of spouses getting back together again varies from province to province. For example, courts in Ontario and Saskatchewan have decided in some cases,  that reconciliation of the spouses automatically voids an exiting spousal support order. This means that if the reconciliation does not work out, a new support order is required. In 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 which granted the support.

• 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.

• 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.

• Spousal support payments may be deducted from the taxable income of the payor.

Courts now routinely use support to maintain an equality of lifestyles between separated spouses. If there is a disparity in income, support will generally be ordered. If the couple still has dependent children, equalization of incomes, is common. While a courts must consider the terms of any spousal support agreement, they are not bound by it. It should be noted that a valid spousal support agreement that has been negotiated with both parties who had the benefit of legal counsel, will only very exceptionally be set aside. A marriage contract would be more susceptible to judicial intervention. As with all issues in a family law situation, legal advice should always be obtained to determine:

• Whether there is an entitlement to spousal support;

• The amount of support which might be payable;

• The duration such support might be payable;

• Whether there are sufficient changes in circumstances to justify a variation of an existing spousal support order or agreement.

Please note that the information is general in nature and not intended to be a substitute for legal advice. If you are concerned about how to go about your spousal support rights or obligations following the breakdown your marriage or common law relationship, please contact a lawyer. You can get free information about how to select and retain a lawyer by getting a copy of the FREE REPORT offered at the top right-hand corner of this page. Do not sign a separation agreement without independent legal advice.