An Introduction to
Spousal Support
The Canadian court has the right to make decisions prevail to a couple’s divorce, such as spousal support.
Spousal support (also called maintenance or alimony) is the financial support paid to a former spouse under a court order or agreement.
Currently, the Supreme Court of Canada held that there are 3 types of support:
- Compensatory support - to address the economic advantages and disadvantages flowing from the marriage or the roles adopted in the marriage;
- Non-compensatory support - to address the disparity between the needs and means of the parties upon marriage breakdown; and
- Contractual support - to reflect an express or implied agreements between the parties concerning their respective financial obligations upon the breakdown of the marriage.
Other types of spousal support that a court may order:
In rare cases, an Interim support, an order for support that only lasts until the court makes a final order, can be ordered.
4 main purposes of spousal support:
-to recognize the economical advantage/disadvantage arising from the divorce
-to take care of any needs arisen from the child(ren)
-to relieve any economical hardship one spouse may face as a result of the breakdown of the relationship
-to promote the economic self-sufficiency of each spouse within a reasonable period of time
Factors that judges may look at when granting spousal support:
-length of cohabitation
-functions performed by both spouses during that time
-any orders, agreements or arrangements made by the spouses
-likely future assets and means of both parties
-dependant's capacity to contribute to his/her own support
-respondent's capacity to provide support, parties' age and physical and mental health
-dependant's needs with respect to accustomed standard of living during cohabitation
-length of time and cost involved as well as means available to assist dependant in becoming self-supporting
-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
-effect on the dependant's earning capacity because of responsibilities (such as housekeeping and other domestic services, assumed during cohabitation).
General observations on spousal support (Annual Review of Family Law, 2004):
• Courts will uphold reasonable support agreements made by the parties
• Support will generally be ordered if a spouse can't maintain a lifestyle similar to that during the relationship even if there hasn't been any disadvantage as a result of the roles adopted in the marriage
• Spousal support is usually paid monthly
• Duration of support depends upon the purpose of the support order
• Support is limited by the ability of the payer to pay it
• Dependency due to illness arising during the relationship may make support time-limited unless you can show there's an economic disadvantage resulting from the roles adopted during the marriage
• The same principles that apply whether spouses are married or unmarried
• Forming a new relationship with another person doesn't disentitle a spouse to support
• Spouses must accept, at some point, the consequences of their own economic decisions if they were taken for personal, not family, reasons
• Generally the court should wait until the property division has taken place before making a final decision regarding support.
***The amount of money and the time of support vary between cases, as they are evaluated on their own merits and is dependent on market conditions
Controversial Issue:
Many lawyers argue that spousal support is often carried out in favour of women, as a woman can always find a reason to claim spousal payment: if she worked outside the home and supported her husband, her claim is for "compensatory support." If she stayed at home while the husband supported her, her claim is for "developing a pattern of economic dependency."
Other related facts:
-Spousal support payments are taxable in Ontario
-Spousal support payment may be only paid to the Family Support Plan (who also enforces the payment if there is a default).
-The support obligations will not be affected by any bankruptcy.
-Where child support is also to be paid, priority is given to child support over spousal support; the amount of spousal payment is related to the child as well.
MOGE v. MOGE: A NEW VISION OF SPOUSAL SUPPORT
INTRODUCTION
In the Moge v. Moge decision ([1992] 3 S.C.R. 813), handed down 17 December 1992, the Supreme Court of Canada rejected the "self-sufficiency" model for spousal support, and developed a new series of policy considerations to aid the courts in the application of the statutory criteria for spousal support awards. These guidelines seek to accomplish an equitable sharing of the economic consequences of marriage. Rather than creating a set of concrete rules to guide the lower courts, the Court discussed the economic and social realities for divorcing couples in Canada today (as of 1992), and recognized the harsh prospects faced by spouses, particularly women.
THE FACTS
The case came to the Supreme Court of Canada on appeal from the Manitoba Court of Appeal. The parties had been married in Poland before they arrived in Manitoba in 1960. Throughout their 16-year marriage, the husband had worked full-time outside the home, making no contribution to the work of the household or the care of the children. The wife had been a full-time homemaker, caring for the couple's three children, and had also worked in the evenings, cleaning offices, to supplement her husband's income. After the parties separated in 1973, the wife was awarded child and spousal support. In 1989, Mr. Moge applied to vary or terminate his support obligations to his wife. Mrs. Moge was then 55 years old, working part-time cleaning offices, and none of the children was eligible for child support.
THE RESULT
The Manitoba Court of Queen's Bench terminated the child support obligation, and held that the spousal support obligation would terminate as of 1 December 1989. Mrs. Moge appealed successfully to the Manitoba Court of Appeal, which recognized the economic disadvantage that had resulted to Mrs. Moge from the marriage, and found that she could not be expected to achieve the same level of self-sufficiency as her husband. She was awarded indefinite spousal support in the amount of $150 per month. Mr. Justice Twaddle held that the objectives for a spousal support order set out in the Divorce Act could best be met by supplementing the wife's earnings with some support.
On appeal by Mr. Moge, the Manitoba Court of Appeal decision was upheld. Madam Justice L'Heureux-Dubé, for the Supreme Court of Canada, pointed out that, although the case arose under section 17 of the Divorce Act, which deals with variation applications, "n a broader sense ... this case turns upon the basic philosophy of support within the Act as a whole" (p. 824). Her reasons outlined a series of general principles that should be considered by the courts in applying the provisions of the Divorce Act relating to spousal support, but did not set out any clear rules to govern the courts in exercising discretion. While the Divorce Act does include self-sufficiency as an objective of spousal support, the Divorce Act does not ask spouses to "sink or swim"; this is not the paramount objective, but one of four. Each case should be decided on its merits but where economic disadvantage continues to be experienced by a spouse as a consequence of the marriage and its breakdown, where she suffers a material change in circumstances which is causally related to the marriage or its breakdown, continued support, even after many years, is appropriate. Mrs. Moge was granted increased support. (source: Government of Canada)
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