February 20, 2016 MasterEditor

Spousal Support

The issue of spousal support may be a significant aspect of any separation or divorce.  Spousal support is often misunderstood.  The Supreme Court of Canada has proposed two models of spousal support that are often referred to by our courts. 

The first model is referred to as ‘compensatory support’, which is largely premised on the notion that the financial cost of one spouse’s lost economic opportunity as a result of remaining at home to raise children should be borne equally by the spouses upon marriage breakdown. 

The Court recognized that the curtailment of outside employment has a significant impact on a spouse’s future earning capacity.  This model does not guarantee the same standard of living that was enjoyed during the marriage.  However, the longer the marriage the more likely the courts will attempt to equalize standards of living.  In other words, in a long marriage the courts recognize that based on the compensatory model the incomes of the parties will more likely have to be equalized through payment of spousal support for a significant period of time. 

The other model referred to by the Supreme Court of Canada is the ‘non-compensatory’ model, also known as ‘needs- based support’.  A marriage itself does not automatically entitle a spouse to support, especially following a short marriage.  However, in some circumstances a marriage or relationship may give rise to a support obligation based on a financial need.  Non-compensatory support is rooted in the social obligation model of marriage in that the burden of meeting the needs of a disadvantaged spouse falls on the other spouse and not the public.  Even in a short marriage, there may be an obligation to support an ill or disabled spouse. 

Once entitlement to spousal support is established, the courts will usually apply the Spousal Support Advisory Guidelines.  The Guidelines will provide a range of monthly support to be paid.  The factors that are used by the Guidelines, include, but are not limited to the following:

(a) respective incomes of the parties;

(b) ages of the parties;

(c) ages of the children of the parties;

(d) length of the marriage or relationship;

(d) government benefits that are paid to one or both of the parties, including Child Tax Benefits and other non-taxable benefits such as WCB payments.

Sometimes, particularly following a long marriage, the payment of spousal support is for an indefinite period of time which often means the payment will continue until there has been a material change in the circumstances of the parties.  Such a change of circumstances may include loss of jobs or retirement.  However, the court may order or the parties may agree that spousal support is paid for a limited period of time. 

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