Duration of Spousal Support

Unlike Child Support, concrete legislation does not exist with respect to Spousal Support. Instead, the legal realm has come to rely on the Spousal Support Advisory Guidelines (SSAG).

The fact that judges do not have the law to resort to when faced with the issue of spousal support, has proven difficult for the courts in determining the duration of spousal support.

In the case of Bracklow v. Bracklow, the Court conveyed the notion that circumstances where one of the parties are disabled or struggle with ill health, does not always require his/her spouse to pay lifetime spousal support. Although, it is interesting to note that the case of Bracklow did not involve a long-term marriage.

The SSAG dictate that a marriage that has lasted for 20 years or more will result in an obligation of “indefinite” spousal support. Justice Beryl MacDonald analyzes the term “indefinite” in his ruling in Bridgen v. Gaudet as follows:

"I realize there are many who suggest there is a compensatory element to be considered because of the existence of a long-term relationship. I have some difficulty with that analysis although there is support for it in Bracklow (see "Spousal Support Post-Bracklow: The Pendulum Swings Again?", Carol Rogerson, (2001) 19 Can. Fam. L.Q. 185). I prefer to consider compensatory support in the context of a known lost career advance or lost employment and benefits a person may have pursued, or received, but for the marriage. Many spousal recipients had no employment before marriage or their employment may have been in minimum wage endeavors that may still be pursued if the spouse's health permits. There is no specific loss that can be identified. Long marriages do lull these persons into a permanent state of financial dependency but I would still categorize these as non-compensatory cases.

Given that the Supreme Court of Canada has directed illness does not mean an entitlement to lifetime spousal support some objective criteria must be developed to rationalize an appropriate time when support should end. Ability to pay is not a factor in determining as appropriate termination date unless we are to revert to the concept that, although on the one hand the court says marriage does not mean support for life, even if you're disabled, if the payor spouse can afford it, then a spouse will receive lifetime support. I do not consider that to be an objective criteria upon which to analyze these very difficult situations."

To learn more about duration of spousal support as well as the services provided by Krol & Krol, call 905.707.3370 today.