Upon the end of a marriage or a common-law relationship, the separating parties generally do not like each other any longer. They wish to end their connection to one another. I say “generally” as sometimes, one party wishes to reconcile, but the other party has already “moved on” – whether mentally or physically –from the relationship. One of the most contentious issues upon separation of the parties is the issue of spousal support. Please note that we do not use the term “alimony” (which is an American term) or the term “maintenance” (which is a term used in some other Canadian provinces). Let me explain some of the basics surrounding this issue.
What Is Spousal Support?
Spousal support is the money that one spouse pays to another spouse upon separation and/or divorce.
Who Can Ask for Spousal Support?
The spouse who made less money during the relationship will be the party who seeks an order for spousal support from the other spouse. Both spouses are entitled to make a claim, and it is not determined by the spouse’s gender (or non-gender). As well, opposite-sex spouses and same-sex spouses can both make a claim for spousal support against their former spouse.
Who Is A Spouse?
In order to qualify as a spouse, the person seeking spousal support must:
- have been married to the other person, or,
- have lived together with the other person as a couple for at least three (3) years, or,
- have been in a relationship of some permanence with the other person for any length of time and had a child together.
What Is The Purpose For Spousal Support?
Under the governing laws, i.e., the federal Divorce Act (for married spouses) and the provincial Family Law Act (for non-married and yet-to-be divorced spouses), spousal support is available:
- to help a spouse become financially self-sufficient, and/or,
- to prevent a spouse from experiencing serious financial difficulty due to the breakdown of the relationship, and/or,
- to share the costs of caring for children, and/or,
- to compensate one spouse for being financially disadvantaged during the relationship
How Do You Know If You Are Entitled To Spousal Support?
The issue of “entitlement” to spousal support will be determined by several factors, including, but not limited to:
- Did the spouse claiming support have responsibilities during the relationship that prevented them from building their own career?
- Did the spouse claiming support stay at home to care for the children of the relationship?
- Did the spouse claiming support stay at home to care for the domestic chores of the relationship?
- Did the spouse claiming support rely primarily or exclusively on the other spouse to pay for the couple’s day-to-day expenses?
- Did the separation or divorce leave the spouse claiming support in need of financial support?
- Does the other spouse have enough income and assets to pay support?
- Does the spouse claiming support have a legal agreement that says they will get spousal support if the spouses separate?
How Much Spousal Support Will Be Awarded?
Up until 10-15 years ago, the calculation of spousal support also referred to as the “quantum” of spousal support, was more of an art than a science. Unlike the Child Support Guidelines, which are clear in its application, both legal practitioners and regular folk have had to rely on multiple factors to arrive at a fair amount of spousal support to be awarded, including, but not limited to:
- the spouses’ past and current incomes
- the spouses’ current and future employment situations
- the spouses’ past, current, and future responsibility to care for children of the relationship
- the spouses’ past roles they each had during the relationship
- the spouses’ respective ages
- the spouses’ current mental and physical health
- the spouses’ ability to support themselves
Since then, the courts will generally refer to a tool known as the Spousal Support Advisory Guidelines (the “SSAGs”) to help both the parties and legal professionals determine the appropriate amount of support to be awarded under the parties’ existing circumstances. As the name implies, the SSAGs are only “guidelines” and are not mandatory to be considered. However, they are generally relied upon by both lawyers and judges to help decide the quantum and duration of spousal support to be paid. The factors above continue to be used, but by using the SSAGs, legal professionals and others can input certain data into computer-based programs to generate options for spousal support awards. The data to be inputted includes, but is not limited to:
- the parties’ ages
- the number of children (and their ages)
- the parties’ parenting time with the children (shared, split, sole, etc.)
- whether child support is going to be paid
- whether children’s special and extraordinary expenses are going to be paid
- the number of years the parties were together
- the parties’ current incomes
The SSAGs will generate three (3) options for a spousal support award:
- a low-range award
- a mid-range award
- a high-range award
To determine which proposed “range” should be used, the SSAGs provide considerable guidance on location within the range, setting out a list of factors to assist everyone in determining both the amount of spousal support and its duration. These factors include, but are not limited to:
- the strength of the intended support recipient’s claim for compensatory spousal support
- the need for the intended support recipient for spousal support
- the age of both parties
- the health and well-being of both parties
- the number of children, their needs, and the standard of living of the children
- the needs and ability to pay of the intended support payor to pay spousal support
- the work incentives for the intended support payor
- the property division and debts between the parties
- the self-sufficiency incentives for the intended support recipient
- the legal obligation of the intended support payor to support others
How Long Will Spousal Support Have To Be Paid?
Once again, the SSAGs will generate an option/recommendation for the duration of the spousal support award. There are some general rules that legal professionals use as guidelines, but these are not hard-and-fast rules:
- if the parties have been married for between 3 to 10 years, the amount of support to be paid can be from (low end) one-half of the number of years the parties married/lived together to (high end) one full year of spousal support for every year the parties married/lived together
- if the age of the intended support recipient plus the number of years the spouses were married or were together is 65 or more, then spousal support may be paid indefinitely
e.g., #1 – if the parties were married for 15 years, and the party seeking support is 40 years old, the combined amount is 55 (15 + 40), and thus, spousal support will likely be owing for a defined number of years
e.g., #2 – if the parties were married for 23 years, and the party seeking support is 47 years old, the combined amount is 70 (23 + 47), and thus, spousal support will likely be owing indefinitely
This does not mean that spousal support will be paid until the support payor dies. Rather, there will be no fixed end date to the spousal support award. The duration of spousal support can then be reviewed, at a later date, to determine if current factors at that time merit the end of the spousal support award. The same factors I referred to in the section above can be used once again to assess whether spousal support should or should not end. Other factors that will determine a review of whether spousal support should or should terminate include, but are not limited to:
- has the support recipient become self-sufficient?
- has the support recipient remarried or re-cohabitated with a new spouse/partner?
- has the support payor acquired new family law responsibilities?
- has the support payor retired?
This blog is not meant to be a comprehensive guide to the law of spousal support, but rather, it should draw your mind towards some of the issues and questions raised to help the parties address the issues surrounding spousal support. Whether you are the prospective support recipient or payor, this issue can be complicated, so I highly recommend that you consult with an experienced family law lawyer before you reach a decision. Otherwise, you may not like the decision that will be made for you!