Entitlement to Spousal Support in Ontario Family Law
Background
Spousal support is the obligation of one party to financially provide for the other after separation of spouses. Spousal support is also called spousal maintenance or alimony, particularly in other jurisdictions. The principles of spousal support are gender neutral. Men or women may apply for support or need to pay it, depending on their circumstances and those surrounding the relationship.
Spousal support may be a short-term transitional award, time limited, or a long-term award.
Fault is not a factor considered in awarding spousal support. In 1986, the Divorce Act stated in section 15.2(5) that "the court shall not take into consideration any misconduct of a spouse in relation to the marriage." In the case of Leskun, Justice Binnie explained that "misconduct, as such, is off the table as a relevant consideration." Justice Binnie went on to explain that in any event "there is ... a distinction between the emotional consequences of misconduct and the misconduct itself."
The cases that underpin entitlement to spousal support are: Moge and Bracklow. The Spousal Support Advisory Guidelines underpin determining the amount and duration of spousal support, and also the entitlement of spousal support.
Moge
Moge reversed the trend of minimalist spousal support awards. According to the Supreme Court of Canada in Moge:
- The four objectives in section 15.2(6) of the Divorce Act must be considered. Self sufficiency is only one of those aims;
- The compensatory model of spousal support compensates a spouse the economic advantages and disadvantages resulting from the roles in the relationship;
- A significant source of these disadvantages and advantages is when one party largely shoulders child care, both in past and future. There are also other compensatory sources. A spouse may contribute to the operation of a business, through secretarial or bookkeeping services that enable the other to pursue degrees or training. To the extent that these activities are not compensated for through the division of assets, they are considered in a spousal support award;
- A great disparity in one spouse's financial situation in the absence of support from the other may well point to economic disadvantages inherent in the role adopted by one party;
- The longer the relationship, the closer the financial union, the greater the presumption that the parties should have equal standards of living when they separate;
- Moge was focused on compensatory spousal support. However, there are other grounds of entitlement for support. This is apparent from the language used in section 15.2(6)(c) of the Divorce Act, and Moge left the door open for non-compensatory spousal support.
Bracklow
According to the Supreme Court of Canada in Bracklow:
- While compensation is the main entitlement for support, it is not the only basis for it;
- There are three grounds for entitlement to spousal support: contractual, compensatory, and non-compensatory;
- If economic hardship arises from the breakdown of the marriage, need alone may be enough to ground a claim for spousal support. A spouse's lack of self-sufficiency may be related to different sources, like poor health;
- The considerations that go to entitlement also affect quantum (how much spousal support) and duration (how long will spousal support last).
These seminal cases are nuanced and your Ontario lawyer ought to be well versed in them. If you have questions relating to spousal support, contact our family lawyers at 905.707.3370.
