In determining whether spousal support is payable, a two-step analysis is undertaken. These two steps can be summarized in the following manner:
- Determining whether a spouse is entitled to receive support; and
- If entitled, determining the quantum (i.e. the amount) and duration of such support.
The objectives of spousal support, as set out in the Divorce Act, are:
- To recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
- To apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
- To relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
- To, in so far as practicable, promote the self-sufficiency of each spouse within a reasonable period of time.
A spouse may be found to be entitled to spousal support in accordance with the following principles: 1) compensatory; 2) non-compensatory (or needs based support) and 3) contractual. A spouse may be found to be entitled based on one or more of the above-detailed principles.
A spouse may be entitled to support on a compensatory basis as a result of the role they assumed during their marriage or common-law relationship. Under this model, claims for spousal support are often based on the need to compensate a spouse who has sacrificed labour force participation and career opportunities in order to perform family responsibilities. A spouse may also be entitled to support on a compensatory basis where they make other types of sacrifices, such as moving to another location in support of their spouse’s career.
A spouse may also be entitled to spousal support on a non-compensatory or needs basis. In this scenario, a spouse is entitled to spousal support as a result of an income disparity between the parties and after considering the lifestyle that the parties have become accustomed to throughout their relationship.
A spouse may be entitled to support pursuant to a contract, such as a marriage contract or cohabitation agreement. That is, spouses may have agreed that a certain amount of support will be payable upon separation.
Once a spouse has established entitlement to spousal support, the second step of the analysis is determining the quantum (amount of support) and duration of such support.
The Spousal Support Advisory Guidelines
) were developed in order to create more certainty and predictability in the determination of spousal support awards. The Spousal Support Advisory Guidelines produce a range of support (low, medium, and high) based on a multitude of factors, including, but not limited to, the incomes of the parties, the duration of the cohabitation period, the ages of the parties, and children of the relationship.
The duration over which support must be paid depends on the duration of the parties’ relationship, the age of the recipient at the date of separation, and, in some cases, the age of the youngest child. There are two exceptions whereby a Court may order support for an indefinite period of time. These two exceptions are:
- The Rule of 20: Where the parties have been together for twenty years or more; and
- The Rule of 65: Where the sum of the length of the marriage/cohabitation and the recipient’s age total sixty-five or higher.
Whereby the circumstances surrounding a relationship and its breakdown meet neither of the above-detailed thresholds, duration of support depends upon the length of the relationship or, in some cases, the length of time until the youngest child is no longer dependent. The simple formula utilized to calculate the range for duration of support is the following: for every year of your relationship, the payor is to pay half a year to a full year of support in accordance with the Spousal Support Advisory Guidelines