If you are going through a separation, and asking yourself how much spousal support you may have to pay to your previous spouse, or how much your previous spouse may be obligated to pay you, it is important to understand what spousal support is.
The person who receives spousal support is referenced as the “recipient spouse” in this blog. The person paying spousal support is referenced as the “payor.”
What is Spousal Support?
Spousal support is money paid from one spouse to the other after they separate in order to compensate the recipient spouse for a sacrifice made during the relationship, or to help them with financial need arising from the breakdown of the relationship. Spousal support is also sometimes referred to as “alimony.” Spousal support is addressed in the Divorce Act, Family Law Act, and in detail in the Spousal Support Advisory Guidelines, including in the Revised User’s Guide.1
The purpose of spousal support is to support the recipient spouse in becoming self-sufficient, compensate the recipient spouse for financial disadvantage experienced during the relationship, and attempt to assist the recipient spouse from experiencing severe financial strain due to the breakdown of the relationship.
What Does “Entitlement” Mean?
In order to qualify for spousal support, you must qualify as a “spouse” under the appropriate legislation. The Divorce Act governs spousal support for spouses who were married and are now separated or divorced. The Family Law Act includes the law on spousal support for common law couples, meaning those who have cohabited for at least 3 years or are in a relationship of some permanence and are the parents of a child.
There are three different bases of entitlement to spousal support:
- Compensatory: based on the recipient’s economic loss or disadvantage due to the roles taken on during the parties’ relationship, or to compensate the recipient for an economic benefit they provided to the payor and were not adequately compensated for;
- Non-compensatory: based on need of the recipient with the goal of helping someone transition from the standard of living enjoyed during the relationship to a new way of living after the relationship; and
- Contractual: referred to far less, but where there is a contractual obligation for spousal support, either express or implied.
There are some typical markers of a likely claim for compensatory spousal support, such as: being a full-time stay-at-home parent, primarily caring for the children post-separation, relocating for the payor’s career, supporting the payor’s education, and/or working primarily in a family business.
It is not true that any long-term relationship will automatically give rise to compensatory support claims.
“It is now well-settled law that spouses must compensate each other for foregone careers and missed opportunities during the marriage upon the breakdown of their union.” – Justice McLachlin, Bracklow v. Bracklow 2
A non-compensatory claim is highly focused on the economic interdependency that results between spouses when they share their life, demonstrating a merger of their worlds over time. Factors such as the length of the relationship, drop in standard of living of the recipient post-separation, and economic hardship are all considered in non-compensatory spousal support claims.
Lastly, a contractual basis for a spousal support claim exists where there are formal, or implied/informal agreements governing spousal support to be paid.
Each case is fact specific. If you need help in determining entitlement for spousal support, or if you wish to better understand your potential obligations or claims, contact our family law team for assistance.
[1] Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), at s. 15.2; Family Law Act, R.S.O. 1990, c. F.3, Part III, s. 30; and Department of Justice Canada, “Spousal Support Advisory Guidelines: The Revised User’s Guide” (April 2016), online: Government of Canada.
[2] Bracklow v. Bracklow, [1999] 1 SCR 420, at para 1.
The content of this article is intended to provide a general guide to the subject matter and is not legal advice. Specialist advice should be sought regarding your specific circumstance.