The basis for spousal support

Spousal Support post-marriage breakdown is governed by s. 15.2 of the Divorce Act. In making an order under this section the court shall take into consideration the condition, means, needs and circumstances of each spouse. Spousal support is not as of right – the claimant must demonstrate that they are “entitled” to spousal support.

In deciding whether a person is entitled, the courts will focus on the length of time the spouses lived together, the functions preformed by each spouse while living together, and any order, agreement, or arrangement related to either spouse, and various other factors that may demonstrate that a party is “entitled” to receive support. It is important to note that in making decisions related to spousal support, that courts will explicitly not take into consideration any misconduct of a spouse in relation to the marriage. In particular, spousal infidelity during the marriage will not play any role when determining whether a party is entitled to support.

An Order made under this section related to support of a spouse should do the following: (1) recognize any economic advantages or disadvantages to the spouses that resulted from the marriage or its breakdown, (2) allocate between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligations for the support of any child of the marriage, (3) relieve any economic hardship of the spouses arising from the breakdown of the marriage and (4) as far as practicable, promote economic self-sufficiency of each spouse within a reasonable period of time.

The framework for determining spousal support

The two seminal cases of Moge v Moge (1992) and Bracklow v Bracklow (1999), combined with section 15.2 of the Divorce Act form the current legal basis for determining spousal support orders after marriage. The Spousal Support Guidelines also play an important role in how courts consider the amount and duration of spousal support, but it is important to note that the Spousal Support Guidelines are explicitly not the law. Rather, the guidelines are a helpful tool used by most judges when considering spousal support orders, although the guidelines do not necessarily have to be followed in all situations of spousal support.

In Moge the courts established that all four factors of the Divorce Act listed above (paragraph 2) must be given weight, and that no one factor can be given greater weight to the determinant of the other three. This case acted to focus the view of spousal support as being for the purpose of an “equitable distribution of the economic consequences of marriage between the spouses”. This meant that, in determining spousal support, a judge had to consider both the full economic advantages and disadvantages of each party that entered into the marriage. This case acted to transform spousal support to its modern understanding, which is as a way for the courts to compensate a party for the loss of economic opportunity which resulted from the role the party played during the course of marriage.

The courts established in Ross v Ross that in cases where it is not possible for courts to determine the measure of the economic loss of a disadvantaged spouse, that courts will need to focus specifically on the spouses standard of living during the marriage, and the ability of the other spouse to pay for this standard. This concept can be understood to be tied to the significance of the duration of a marriage in relation to spousal support orders, as this directly factors into the regular standard of living experienced by a party over the period of time the parties were married. This concept is directly reflected in the methodology used for spousal support calculation under the Spousal Support Guidelines.

The case of Bracklow was significant in that it added the new concept of a non-compensatory basis for support under the Divorce Act, based on economic need alone. This meant that after Bracklow, a former spouse would have an obligation to pay spousal support to the other party if they are experiencing any form of economic need at marriage breakdown, even if this need did not arise from the roles they adopted during marriage. This ruling effectively transformed spousal support to be highly discretionary, as the court importantly did not provide a limited definition of need. The result of is that judges are very flexible in regards to balancing the support objectives of the Divorce Act and its relevant factors to individual cases.

The Spousal Support Guidelines

The Spousal Support Guidelines were developed in the aftermath of Bracklow, and can be seen as an attempt to create a greater degree of predictability to the highly discretionary nature of spousal support orders. As noted above, the Spousal Support Guidelines themselves are not law, but they are often used by judges in determining spousal support issues, as well as by family lawyers when advising clients on out of court spousal support agreements. The Spousal Support Guidelines use a series of mathematical formulas to create possible ranges of spousal support, in terms of both duration and amount, based upon the nature of each relationship (i.e. whether there were children, duration of marriage, etc.).  In Mason v Mason the courts determined that the guidelines are only advisory and not mandatory, and that a judge should either rely upon the guidelines in their entirety (including for purposes of determining income), or explain why the guidelines should not apply. What this case emphasizes is that while the guidelines are not law, they have been adapted by the courts to the degree that judges who choose not to apply them must provide reasons why they should not apply to a situation, on a case by case basis.

For more information on the formulas and application of these laws to your Spousal Support scenario, please contact one of our Toronto Spousal Support lawyers and North York Spousal Support Lawyers.

 

By Adam Jaffer, Articling Student

*This article should in no way be deemed to be legal advice. For further information related to your particular matter, please contact our law firm for an appointment.