Generally speaking, an order or agreement for the payment of spousal support is appropriate where:

1. a spouse or common-law partner has suffered economic hardship as a result of the relationship or the breakdown of that relationship;
2. there is a contract between the parties which requires that spousal support be paid; or,
3. one party has financial need and the other has the ability and disposable income to meet that need.

A party claiming spousal support will generally winding up making his or her application based on one of these grounds. In determining whether the ground has been proven, the court will look at the factors set out in the relevant legislation.

The Divorce Act

If the claim for spousal support is being made under the federal Divorce Act, the parties must be or have been married, and the person making the claim must have lived in the province in which the claim is made for at least a year before the action is started.

The factors that the court will consider are set out in s. 15.2(4) of the Divorce Act. The draft proposed Spousal Support Advisory Guidelines may also be used to help decide how much support should be paid and for how long it should be paid.

The Family Relations Act

If the claim is being made under the provincial Family Relations Act, spousal support is available for married and unmarried couples. For unmarried couples, spousal support may be payable, providing that:

1. the parties lived in a "marriage-like" relationship for at least two years; and,
2. the application is brought within one year of the relationship ending.

Married couples don't need to worry about these criteria. They simply need to have been married, however the application for support must be brought within two years of a court making an order for divorce or a declaration that the marriage is a nullity. Note that the Divorce Act doesn't have any rule about when an application for support can be brought following divorce.

The factors the court looks at are those set out in s. 89 of the Family Relations Act, and the amount of the award will be determined bearing in mind the criteria set out in s. 93. The draft proposed Spousal Support Advisory Guidelines may also be used to help decide how much support should be paid and for how long it should be paid.

The Cleaver Family: An Explanation of Spousal Support

The point of spousal support is to provide assistance to the spouse who is dependant on the other spouse, or to the spouse who has been financially disadvantaged as a result of the relationship. The classic example of financial disadvantagement is probably the Cleaver family, immortalized in television's "Leave it to Beaver" series. Think of it like this:

June and Ward are married and have a very traditional relationship — the show was filmed in the late 1950s and early 60s after all. Ward works in an office downtown and June stays at home caring for Wally and the Beaver.

June, who might well have been a research scientist at NASA, has chosen to abandon her career to take care of Wally and the Beaver, and make sure that Ward has a nice hot dinner waiting when he comes home.

Ward, on the other hand, has been given the opportunity to have a fabulous career. June's labour in the home has freed his time up so that he can go to work, and get raises and promotions, without having to worry about getting the Beaver ready for school, preparing meals for the family, or doing the dishes.

Skip forward a few years. Ward has discovered that June's relationship with the mail carrier isn't quite as business like as he'd thought. Ward and June separate, Wally moves in with his girlfriend and the Beaver stays with June in the former family home. Ward moves into a new apartment with his accountant.

As a result of the way that Ward and June handled their marriage, Ward has been allowed to pursue a successful career and earn lots of money. Ward is in a great position to move on with his life.

June, however, is not so lucky. Her research skills from her work at NASA are obsolete, her master's degree in orbital dynamics isn't relevant any more, and she has no idea how to operate the new equipment that NASA has bought since she last worked there. Making matters worse, the last entry on her resume is fifteen years old.

In this example, June has been financially disadvantaged as a result of the marriage. While Ward is in great shape and his career shows no sign of decline, June has no way to easily re-enter the workforce because her job skills are out of date. Of course, they have two great kids, but the best job June will be able to get will be at the local Tim Horton's, and that won't pay enough to cover the cost of the mortgage, the gas bill, the phone bill and all of life's other sundry expenses. As a result, Ward will, in all likelihood, have to pay spousal support to June, to help her get by and help maintain the house while she upgrades her education and gets some job retraining.

Spousal Support and Asset Division

The issues of spousal support and the division of the family assets are somewhat intertwined. The court usually will only turn its mind to the question of spousal support after the family assets, if any, have been divided between the parties. The reason for this is that the goal of an order for spousal support may have been adequately addressed or partly addressed by the order the court makes for the division of property.

In such circumstances, there may be no order for spousal support, or the amount of support required may be intended to simply "top up" the order for asset division such that the goals of spousal support will be met.

Spousal Support and Fault

The Canadian divorce system is "no-fault," which means that the reasons why a marriage ends and the conduct of the spouses have nothing to do with whether spousal support is payable, how the children wind up being cared for, or how assets are divided. Whether someone was abusive or a cheater, for example, is not relevant to these issues. In fact, s. 15.2(5) of the Divorce Act says:

The Supreme Court of Canada, in a 2006 decision called Leskun v. Leskun, confirmed that the conduct of the spouses must not be taken into consideration in making a decision about whether spousal support should be paid following the end of their marriage.

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Section 15.2(4) of the Divorce Act sets out the factors a court must take into consideration when making an order for spousal support:

Section 15.2(5) directs the court not to take into account "spousal misconduct," such as adultery, cruelty, or generally being an ass, when making an order for spousal support.

Section 15.2(6) sets out the objectives for a spousal support order:

If a spouse is eligible to seek an order for spousal support, the court must consider whether the factors in s. 15.2(4) have been met, and then make an order which takes into account and reflects the objectives set out in s. 15.2(6).

The first three objectives are fairly straightforward and self-explanatory. The last, (d) in the list above, deserves some comment however.

The effect of s. 15.2(6)(d) is to impose an obligation on a spouse receiving support to make his or her best efforts to become, at some point, self-sufficient. Marriage is not intended to be a life-long meal ticket; at some point, a dependent spouse normally must become independent. This section of the Divorce Act allows the court to set a date on which spousal support payments will end, if it chooses, in the expectation that by the termination date the dependent spouse will have taken whatever steps are necessary to retrain and find a job which allows him or her to meet his or her daily needs. While the termination date is often subject to change, absent advanced age, an extraordinarily long relationship, or a serious medical condition or some other factor which prevents spouse from becoming independent, there will likely be an end date to support payments.

There are two remaining principles that you should know about:

• Section 15.3 of the Divorce Act states that child support must take priority over an order for spousal support. Where, according to the circumstances and income of the parties, the paying spouse simply cannot pay both spousal support and child support without going broke, the court is required to make an order for child support at the expense of an order for spousal support. Children come first.
• The fact that the receiving spouse is on welfare and therefore has a source of income is never, ever relevant to an order for spousal support. The courts will not take the view that the receiving spouse's dependence on social assistance somehow relieves the other spouse of his or her obligation to pay spousal support. From a social policy perspective, if one spouse has the ability to make payments to support the other spouse, whose disadvantaged state was caused by the marriage or its breakdown, that spouse should help the dependant spouse get by, not the taxpayors of this province.

Statutory Provisions

The following are the primary sections of the Divorce Act dealing with spousal support:

• s. 2: definitions
• s. 4: jurisdiction to make spousal support orders
• s. 5: jurisdiction to change orders
• s. 15: definition of "spouse"
• s. 15.2: spousal support orders
• s. 15.3: child support has priority over spousal support
• s. 17: proceedings to change a support order

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The factors which entitle a party to support under the Family Relations Act are set out in s. 89(1) of the act:

Section 93(4) sets out the objectives of an order for spousal support:

The spousal support provisions of the Family Relations Act are almost identical to those of the Divorce Act. As well,

1. s. 93.2 of the Family Relations Act requires the court to give priority to child support where a the payor cannot afford to pay both spousal support and child support; and,
2. s. 89(2) of the act provides that a spouse is required to become self-sufficient.

Note that this punitive provision is not echoed in the Divorce Act.

Statutory Provisions

The following are the primary sections of the Family Relations Act dealing with spousal support:

• s. 1: definitions
• s. 9: interim orders
• s. 20: changing or cancelling orders
• s. 89: the obligation to support a spouse
• s. 91: who may apply for a spousal support order
• s. 93: support orders generally
• s. 96: variation proceedings

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It is usually impossible to say how much support will be paid in any given case. You can, however, get a rough idea by looking at each party's reasonable monthly needs and the monthly disposable income of the payor. You could also look at the draft proposed Spousal Support Advisory Guidelines, which the court may also use to fix a spousal support obligation.

In order to decide what should be paid, assuming that the recipient has established an entitlement to receive support, it is critical that each party prepare a proper, sworn Financial Statement for this purpose, even if legal action hasn't started. A Financial Statement is a court form available in both the Supreme Court and Provincial (Family) Court which sets out each party's income and assets, expenses and liabilities. Unless the payor is fabulously wealthy, a Financial Statement is an excellent starting point for figuring out the amount of support which ought to be paid.

Assuming that the Advisory Guidelines will not be used, this is how to get a rough idea about how much spousal support will be paid:

• First, figure out what the reasonable monthly expenses of the recipient are. These needs will include things like paying the rent, utilities, groceries and so forth. "Reasonable expenses" won't usually include things like savings for RRSPs or for vacations.
• Second, subtract from the recipient's monthly expenses any income he or she might have. Typical sources of income include employment income, child tax benefits, baby bonus payments and so forth. The shortfall between his or her income and his or her expenses will be the amount of the recipient's monthly needs.
• Third, figure out what the payor's reasonable monthly disposable income is. Take the payor's net monthly pay, subtract the payor's reasonable monthly needs and subtract any child support payments. The resulting figure will the be payor's monthly disposable income, the amount of extra money the payor has each month to spend on luxuries or put into savings.
• Fourth, compare the recipient's monthly needs to the payor's disposable income.

The payor's disposable income becomes the starting point. How much does he or she have left each month? Can the recipient's reasonable needs be met out of the payor's disposable income?

The court will not bankrupt a payor in order to meet the dependant spouse's needs. Obviously, there must be a balancing. In many cases this means that both parties must adjust their standard of living to be able to live within the pool of income available.

• Finally, once a starting figure has been reached, look at the income tax consequences to the dependant spouse of receiving the support and the income tax benefits received by the payor, and readjust the amount of support to be paid if desired.

Since spousal support qualifies as a tax deduction for payors and as taxable income for dependant spouses, you may wish to change the basic amount of spousal support to be paid. Since support is a deduction for the payor, he or she will pay less taxes and have more money left over at the end of the year. From the dependent spouse's point of view, the support may result in taxes being paid, leaving him or her with less money each year.

This tax issue is ususally resolved in one of three ways. First, the tax consequences of spousal support can be ignored altogether. Second, more spousal support could be paid each month to offset the year-end tax consequences. Third, the payor could agree to pay any tax debt the dependent spouse might have at the end of the year.

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Spousal support is a very gray area of the law, with few hard and fast rules. As a result, every order or agreement for spousal support is tailored to the particular circumstances of each couple.

Interim Orders and Agreements

That's the general rule. However, in reality the courts generally take a looser approach to the question on interim applications, and will usually ask two questions, called the "means and needs" test:

• Does the person making the application have a need for support?
• Does the other person have the ability to pay support?

The court will not usually attempt to determine whether the applicant's need is related to the relationship or its breakdown in making an interim order for spousal support. In general, all that will be required to demonstrate a genuine, actual need for financial assistance.

Typically, interim spousal support will be awarded where:

1. there are young children which need a stay-at-home caregiver;
2. the applicant is unemployed, and hasn't been employed outside the home for a number of years;
3. the applicant is unemployed and faces barriers to employment, such as a lack of training or poor language skills; or,
4. the applicant is obviously unable pay his or her household bills without help.

Of course, need alone isn't enough. The person against whom the application is brought must have the ability to actually pay support.

Whether the payor has the ability to pay support is based on the payor's monthly income, less his or her child support obligation, less the payor's reasonable monthly expenses. If there is money left over, usually described as the payor's "disposable income," some or all of that money is available to be paid as spousal support.

Once the court has established that the applicant has need of support and that the respondent has the means to pay spousal support, the court must then establish how much support the respondent should pay. Depending on the respondent's ability to pay, the amount of spousal support awarded is often enough to equalize the parties' incomes and, sometimes, enough to help the applicant enjoy more or less the same standard of living that he or she enjoyed before the parties separated.

Final Orders and Agreements: Definite and Indefinite Periodic Payments

Under both the Divorce Act and the Family Relations Act, a court may make an order for spousal support for periodic payments for a fixed period of time (a "definite" term), or for forever (an "indefinite" term). Whether the order requires that spousal support be paid for a definite or indefinite term will depend on the particular circumstances of each case. In general, however, the longer the marriage or common-law relationship was, and the older the parties are, the more likely the court will be to make an indefinite order for spousal support.

Indefinite Obligations

Indefinite orders for spousal support are often made where one or more of the following conditions apply to a relationship:

1. the parties' marriage or common-law relationship was quite lengthy;
2. the dependent person is unable to re-enter the work force because of physical or mental health issues;
3. the dependent person is elderly and unable or likely unable to re-enter the work force;
4. the dependent person's child care or other obligations make it impossible for the spouse to re-enter the work force; or,
5. the consequences of the breakdown of the relationship, such as depression, have left a party unable to work.

An indefinite order or agreement for spousal support can also set out conditions for the termination of that obligation. The most typical of these conditions are that:

1. a spousal support obligation will end if the recipient marries;
2. an obligation will end if the recipient cohabits with another person in a marriage-like relationship of more than a certain number of days, usually 90; or,
3. an obligation will end if the recipient obtains employment and earns more than a specified amount.

Reviewable Orders and Agreements

A "reviewable" order or agreement for spousal support is one which says that support must be paid indefinitely, but also that the payor's obligation to pay support or the recipient's entitlement to continue to receive support may be reviewed at a later date, called a "review date." Review dates are not usually set for less than two years after the date of the agreement or order.

At the time set for the review, either party may seek to cancel the support obligation or reduce the amount of the obligation. The review will be based on parties' financial circumstances at that time.

It is important to know that when the review date arrives, the obligation to pay spousal support does not automatically expire. That obligation will continue until the recipient's entitlement to receive support is reviewed, whether that review is started by the recipient or the payor.

An order or agreement for the payment of spousal support can be reviewed to determine:

1. whether the obligation to pay support should be cancelled;
2. whether the amount of the support should go up or down;
3. whether the payor remains able to make his or her support payments; and,
4. whether the dependent spouse is still in need of support and has become self-sufficient.

Most often, the review is intended to assess the recipient's entitlement to receive support.

If a recipient has, at the time of the review, failed to become self-sufficient, the court may need to hear evidence as to why this is the case. Where the failure is the fault of the recipient, the court may decide to cancel the support order. If the recipient's failure to become self-sufficient and find gainful employment is because of some reason other than a lack of effort, for example, the court may require the support to continue as before. Note that a recipient of spousal support is only required to "make reasonable efforts" to become independent, not to actually become independent.

Whether the order for spousal support will continue in the same amount as before will depend entirely on the particular circumstances of each case.

Definite-Term Obligations

Orders or agreements which provide that spousal support is to be paid for a specific period of time are usually made when it is clear that a dependent person has the ability to become self-sufficient within a fairly short amount of time. Definite term orders and agreements for spousal support are often made where one or more of the following conditions apply to a relationship:

1. the recipient of support is in a new relationship and the new person's income is expected to contribute to the household of the recipient ;
2. the recipient has existing and relevant job training or skills at the time that the relationship breaks down;
3. the recipient had a successful carreer before or during the relationship;
4. the recipient merely requires some time to adjust to his or her new living circumstances and is expected to be self-sufficient relatively quickly; or,
5. the recipient is ill or disabled at the time of the making of the order or agreement but is expected to recover and re-enter the work force.

The duration for which support must be paid in orders and agreement for definite term spousal suport usually reflects one or more of the following factors:

1. the time the court estimates it will take the recipient of support to complete job training;
2. the payor's retirement date;
3. the recipient's anticipated length of recovery from an illness; and,
4. the age at which the children will enter school or the age at which that can enter daycare.

Final Orders and Agreements: Lump Sum Payments

A "lump sum" order or agreement for spousal support requires the payor to make a one-time-only payment of spousal support. This kind of spousal support payment is fairly rare, partly because the payment of a lump sum of spousal support is often difficult to distinguish from the division of property, and partly because a lump sum payment may not adequately address the objectives of the payment of spousal support.

Whether the court is dealing with an application for lump sum spousal support rather than the more usual periodic-payment support obligation, the court will usually be concerned that the payment of spousal support isn't going to act as a substitute or as a hidden supplement to the division of family assets. The court will also be concerned that a lump sum payment may not actually help the recipient become independent.

Payors are sometimes interested in lump sum spousal support payments as a single payment will allow them to wash their hair of the of the other party and have done with it immediately, rather than having to deal with the other party on an ongoing basis.

The court will be inclined to make an order for a lump sum, either alone or in addition to a periodic support order, where:

1. the payor has a history of deliberately failing to make periodic support payments;
2. the payor has been dishonest or deceitful during the trial, particularly with respect to his or her finances;
3. there is so much anger and animosity between the parties that the payor is unlikely to comply with an order for periodic payments;
4. the money is necessary to provide a home for the recipient;
5. the money is necessary to give the recipient financial security that cannot be had by periodic payments;
6. the payor is financially well-off;
7. the payor is able to pay a lump sum and is unemployed or not expected to be employed, such that his or her likelihood of being able to make period payments of support is poor;
8. the money will promote the recipient's self-sufficiency; or,
9. periodic payments will not encourage the recipient to become self-sufficient.

Lump sum payments are not likely to be ordered where the payor has a similar need for financial independence to the recipient or where the recipient has a significant amount of debt.

Note that lump sum awards are also available on interim applications, but will only be awarded if it is clear that the payment will provide immediate relief for the recipient, ongoing monthly payments will not be necessary, and the payor has the ability to make the payment. Lump sum interim spousal support orders are fairly rare.

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