What is spousal support and why is it granted?
Spousal support is generally paid on a monthly basis although it may also be paid in a lump sum. It is governed by Section 15 of the Divorce Act (federal legislation) and Sections 30 and 33 of the Family Law Act (provincial legislation). Spousal support after a marriage is covered under the Divorce Act, whereas spousal support for couples who cohabited outside of marriage (and meet the legal definition of having cohabited continuously for a period of not less than three years or who have cohabited in a relationship of some permanence and are the natural or adoptive parents of a child) must use the Family Law Act.
The factors to be considered in determining the amount and duration of spousal support to be paid include:
- both parties’ current assets and means,
- likely future assets and means of both parties,
- a dependant’s capacity to contribute to her own support,
- the respondent’s capacity to provide support,
- the parties’ age and physical and mental health,
- the dependant’s needs with respect to accustomed standard of living during cohabitation,
- the length of time and cost involved, as well as means available to assist dependant in becoming self-supporting,
- any contribution by the dependant to the respondent’s career potential during the time of cohabitation,
- the need for either party to stay at home to care for a child and the history of child care responsibilities during the time of cohabitation,
- the length of cohabitation and the effect on the dependant’s earning capacity because of responsibilities, including housekeeping and other domestic services, assumed during cohabitation.
Other Facts About Spousal Support
If the parties have children, then child support will take priority over any order for spousal support. The court does not take improper behaviour by either spouse into consideration when calculating spousal support. Unlike child support, spousal support is tax-deductible to the person paying it and taxable income to the person receiving it.
Spousal Support and Same Sex Couples
Because of relatively recent changes to the Divorce Act, same sex couples who marry are covered by the definition of “spouse” and are, therefore, entitled to apply for spousal support if the marriage breaks down. Both same-sex and opposite sex couples who meet the definition of spouses under the Family Law Act (persons who have cohabited continuously for a period of not less than three years or who have cohabited in a relationship of some permanence if they are the natural or adoptive parents of a child) are eligible to apply for spousal support under the Provincial Legislation. The Act establishes an obligation on all spouses and same-sex partners to provide support for themselves and for the other partner in accordance with need to the extent that he or she is capable of doing so.
Spousal Support Guidelines from the Federal Government of Canada
The federal Department of Justice has recently released spousal support guidelines. They include tables laying out expected ranges of support that take into account such factors as:
- length of the marriage,
- income levels,
- work history of each spouse, and
- number of offspring.
Unlike the federal guidelines for child support, these guidelines are only recommendations from the federal government – the courts are not obliged to follow them in deciding the issue of spousal support. At this time, some judges find the guidelines helpful and other judges do not use them.
How is spousal support calculated?
When a spousal support claim is made to the courts, both parties will be required to file a Financial Statement which containing a budget showing the court the total income and expenses of each of the parties. This shows the court the ability of one party to pay support and the need of the other party for this support. The court will examine these documents to determine how much money is available to be paid. It will also allow the court to determine the credibility of the expenses being claimed by the party seeking spousal support.
The court will examine the standard of living in the relationship at the time of the separation and at the efforts both parties have made to provide for themselves and each other. The court order may take the path of supporting a party for a specific period of time to allow for an upgrading course or for the completion of a post secondary degree that was ongoing at the time of the separation. The court can also impute income that is not being earned if it feels one of the parties could be making more money but is instead deliberately taking a lower paying job. This is done to make sure no one is “rewarded” for earning less money as a means of avoiding a spousal support obligation.