By Darnell Smith –
Spousal support is money paid from one spouse to the other spouse after a relationship ends. Both married and common-law spouses have a right to spousal support.
The purpose of spousal support is to ease the financial effects of the relationship for the spouses getting support. The law does not assume spousal support is owed. Rather, the court looks at factors to decide if spousal support is payable. These factors include:
- The finances of both spouses;
- The length of the relationship;
- The spouse’s roles during their relationship;
- The need to care for the children, if any; and
- Any agreements or orders.
Spousal support is payable for one or more of the following basis:
- compensatory basis,
- non-compensatory basis, and
- contractual basis.
A contractual basis requires an agreement. Because of this, the court will try to enforce an agreement about spousal support. however, an agreement may not be enforceable if it is very unfair or big changes have occurred. The ability to enforce an agreement is a hard legal question that requires specific legal advice.
Compensatory support is available when one spouse makes sacrifices. This sacrifice can take many forms. In a traditional marriage (i.e. breadwinner and homemaker), the homemaker sacrifices their career to keep the house. This benefits the breadwinner and creates the need for compensatory support.
In Moge v. Moge, the Supreme Court of Canada says this about the compensatory basis for support:
The financial consequences of the end of a marriage extend beyond the simple loss of future earning power or losses directly related to the care of children. They will often encompass loss of seniority, missed promotions and lack of access to fringe benefits such as pension plans, life, disability, dental and health insurance.
A non-compensatory basis is often thought of as a needs basis. If one person has greater needs than the other, spousal support may be payable. Therefore, if a spouse is unable to meet their basic needs (rent, groceries, other bills, etc.), then spousal support can satisfy this need. However, need is not equal to want and the need must be a real need.
The landmark decision on non-compensatory spousal support is in Bracklaw v. Bracklaw. In Bracklow, the Supreme Court of Canada says that needs alone may be a basis for spousal support.
Once a party proves spousal support is payable, then the court looks at the duration and amount to pay. The Spousal Support Advisory Guidelines (SSAG) play a big role in answering how much and how long.
A rule of thumb is that spousal support is payable for 0.5 – 1.0 times the length of the relationship. Other factors like age of the parties, extremely short or long relationships, and capacity all impact the rule of thumb.
Calculating the amount is a tricky process, but this process starts by looking at the line 150 income. This is the income a person reports on their tax returns. If the person is under reporting, under employed, or hiding income steps can be taken to impute a higher income. Then, the spousal support is calculated based on the higher imputed income.
Separation and divorce are emotionally draining and uncertain times. Spousal support is one of the many areas a family law lawyers can help. If found this article helpful, call Darnell Smith at:
604-496-5096 ext. 41