Category: Spousal Support

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.

Should retroactive child or spousal support be ordered?

There are four factors to consider for retroactive child or spousal support:

1. A reasonable excuse for why support was not sought earlier

Certainty is important and the support seeker must have a reasonable excuse for why they did not seek support earlier. For instance, the recipient parent harboured justifiable fears that the payor parent would react vindictively to the application to the detriment of the family, the recipient parent lacked the financial or emotional means to bring an application, or was given inadequate legal advice.

2. Conduct of the payor parent

Courts take an expansive view of what constitutes blameworthy conduct. For instance, blameworthy conduct of the payor parent is anything that privileges the payor parent’s own interests over his/her children’s right to an appropriate amount of support. A payor parent cannot hide his/her income increases from the recipient parent in the hopes of avoiding larger child support payments. Even where a payor parent does nothing active to avoid his/her obligations, (s)he might still be acting in a blameworthy manner if (s)he consciously chooses to ignore them.

3. Circumstances of the child [recipient parent in the case of spousal support]

A retroactive award is a poor substitute for an obligation that was unfulfilled at an earlier time. However, a child who is currently enjoying a relatively high standard of living may benefit less from a retroactive award than a child who is currently in need. It is also worth considering the child’s needs at the time the support should have been paid.

4. Hardship by a retroactive award

Retroactive awards are usually based on past income rather than present income. A judge may order retroactive awards as lump sums, periodic payments, or a combination of the two. If the payor has behaved in a blameworthy fashion, then avoiding hardship is less relevant.

From what date should retroactive support be ordered?

There are four choices of dates from which the award could be retroactively awarded:

1. The date when an application was made to a court;
2. The date when formal notice was given to the payor parent;
3. The date when effective notice was given to the payor parent; and,
4. The date when the amount of child support should have increased.

The date of effective notice is the general rule.  This date will usually signal an effort by the recipient parent to alter the child support situation. However, a prolonged period of inactivity after effective notice may indicate that the payor parent’s reasonable interest in certainty has returned. Thus, even if effective notice has already been given, it will usually be inappropriate to delve too far into the past. It will usually be inappropriate to make a support award retroactive to a date more than three years before formal notice was given to the payor parent.

With that being said, when the payor parent engages in blameworthy conduct may cause the date from when increased support should have been paid to be the most appropriate date. Not disclosing a material change in circumstances — including an increase in income that one would expect to alter the amount of child support payable — is itself blameworthy conduct.

What quantum of retroactive support should be awarded?

The quantum of the retroactive award should be appropriate to the circumstances. Undue hardship of the payor may reduce a retroactive award. In addition, a court can reduce the quantum by changing the date of notice of from which retroactive support is owed. For instance, unreasonable delay after effective notice may cause it to be appropriate to exclude this period of unreasonable delay from the calculation of the award.

To learn more, contact the family lawyers at Krol & Krol Professional Corporation at 905.707.3370.

Considerations a Court takes into account when making an award for spousal support

Section 15.2 of the Divorce Act outlines when spousal support will be awarded for married couples.

Section 15.2(4) indicates that in making an Order for spousal support, the court shall consider the condition, means, needs, and other circumstances of each spouse. This includes:

• Length of the cohabitation;
• Functions performed by each spouse during cohabitation; and,
• Any order, agreement, or arrangement relating to support of either spouse.

In addition, section 15.2(6) provides that any Order for spousal support should:

• Recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
• Apportion between the spouses financial consequences arising from the care of a child;
• Relieve economic hardship of the spouses arising from the separation; and,
• Insofar as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

For spouses (which includes common-law spouses), section 30(8) and (9) of the Family Law Act details that:

An order for the support of a spouse should:

• Recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse;
• Share the economic burden of child support equitably;
• Make fair provision to assist the spouse to become able to contribute to his or her own support; and,
• Relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home).

In determining amount and duration, if any, of support for a spouse or parent in relation to need, the court shall consider all the circumstances of the parties. These circumstances include:

• The dependant’s and respondent’s current assets and means;
• The assets and means that the dependant and respondent are likely to have in the future;
• The dependant’s capacity to contribute to his or her own support;
• The respondent’s capacity to provide support;
• The dependant’s and respondent’s age and physical and mental health;
• The dependant’s needs, in determining which the court shall have regard to the accustomed standard of living while the parties resided together;
• The measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;
• Any legal obligation of the respondent or dependant to provide support for another person;
• The desirability of the dependant or respondent remaining at home to care for a child;
• A contribution by the dependant to the realization of the respondent’s career potential;
• Repealed:  1997, c. 20, s. 3 (3);
• If the dependant is a spouse, the length of cohabitation; the effect on the spouse’s earning capacity of the responsibilities assumed during cohabitation; whether the spouse has undertaken the care of a child; whether the spouse has undertaken to assist in the continuation of a program of education for a child eighteen years of age or over who is unable for that reason to withdraw from the charge of his or her parents; any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse were devoting the time spent in performing that service in remunerative employment and were contributing the earnings to the family’s support; the effect on the spouse’s earnings and career development of the responsibility of caring for a child;
• Any other legal right of the dependant to support, other than out of public money.

Impact of immigration sponsorship on an award for spousal support

When a Canadian citizen sponsors someone to come to Canada, the sponsor must sign an undertaking with the Canadian government that the sponsor will support the immigrant for a period of time, usually three years.

Family law courts in Ontario have held that where there is a sponsorship agreement for a period of time, spousal support will be owing for the period of the length of the sponsorship agreement, even if the duration of spousal support would not normally be that long otherwise.

Both Carty-Pusey v. Pusey, 2015 ONCJ 382 and Gidey v. Abay, 2007 CarswellOnt 6145 held that an immigration sponsorship agreement is a relevant factor in determining entitlement to spousal support and the duration of spousal support was held to be the length of the immigration undertaking the payor signed.

To learn more, contact the family lawyers at Krol & Krol at 905.707.3370.

High-range spousal support is an increased amount of spousal support versus the mid-range or low-range amount.

High-range spousal support is not routinely ordered; however, an award of high-range of spousal support may be appropriate and reasonable in certain circumstances.

Generally, a recipient spouse will have to prove that there is a good reason why they should be awarded high-range spousal support. Chapter 9 of the SSAG lists the following non-exhaustive factors that determine location within the ranges provided:

1. Strength of any compensatory claim;
2. Recipient’s needs;
3. Age, number, needs, and standard of living of children (if any);
4. Needs and ability to pay of payor;
5. Work incentives for payor;
6. Property division and debts; and,
7. Self-sufficiency incentives.

Factor 1/7: Strength of any compensatory claim

Spousal support may be compensatory (meant to compensate the recipient for some economic detriment suffered) or non-compensatory (involving claims based on need) in nature.

A strong compensatory claim indicates that both amount and duration (length of time spousal support should be paid) should be at the higher end of the range.

Factor 2/7: Recipient’s needs

If the recipient has reduced income and/or earning potential because of age or other factors, the award of spousal support may be higher in amount and duration. In Bastarache v. Bastarache, 2012 NBQB 75 there was a disparity in living standards between the parties. The wife also had significant needs which resulted in an award between the mid and the high-range.

A discussion of the remaining factors (i.e. 3-7) that affect the amount of spousal support are continued in our next blog post.

Should you wish to discuss any of these factors with a lawyer at Krol & Krol, telephone our offices at 905.707.3370 to book a consultation.

Factor 3/7: Age, number, needs, and standard of living of the children

A child with special needs, or a young child, will usually require more time and resources from the care-giving parent which will indicate a spousal support award in amount and duration at the high end of the range.

A low standard of living or lower income levels also indicates a spousal support award at the high end of the range.

Factor 4/7: Needs and ability to pay of payor

If the payor spouse has high need and low ability to pay, this may indicate an award of spousal support at the low end of the range.

Factor 5/7: Work incentives for payor

Some types of employment are associated with significant expenses that are not covered by the employer or reflected in income or deductions from pay, such as parking, cost of commuting, tools, and so on.

If a payor has significant expenses associated with his employment, then this may be a factor indicating the low end of the range is appropriate.

Factor 6/7: Property division and debts

A low amount of property to be divided would suggest an award at the high end of the range while a large amount of property to be divided would suggest an award at the low end of the range. In Qaraan v Qaraan, 2012 ONSC 6017, an equalization of $1,571,409.29 was found to be sufficiently large to push the spousal support award towards the low end of the range.

Factor 7/7: Self-sufficiency incentives

Spousal support awards may be made at the lower end of the range in order to encourage self-sufficiency in the recipient.

Additional Factor: Length of the marriage

A longer marriage would also indicate that the spousal support should be located at the high end of the range.

To learn more about the high-range of spousal support, contact the lawyers at Krol & Krol today.

The Spousal Support Advisory Guidelines (SSAG) are guidelines that underpin the calculation of spousal support. The final version of these guidelines were released in 2008. The SSAG have not been legislated by any level of government. In other words, the SSAG are not law. Rather, they are guidelines. Even though they are not binding law, lawyers and judges regularly rely on the SSAG (Fisher v. Fisher, 2008 ONCA 11). According to case law judges must consider these SSAG on an initial application for support. The SSAG also have a role to play on variation applications of spousal support; however, in variation cases there may be complicating factors that a court must consider before applying the SSAG wholesale.

The Spousal Support Advisory Guidelines: The Revised User’s Guidelines (which are sometimes called the “RUG”) were released in April of 2016 and update the SSAG. The RUG do not provide a comprehensive review of all case law relating to the SSAG since 2008. However, the RUG focuses on leading appellate and trial decisions since the release of the SSAG in 2008.

The SSAG and DivorceMate are closely connected as DivorceMate is a computer program that provides calculations based on the SSAG. Family lawyers and judges in Ontario often use DivorceMate to assist in calculating spousal support. On the issue of spousal support, DivorceMate does not determine whether a spouse is actually entitled to spousal support. Entitlement depends on the particular facts of each case. The issue of entitlement should be discussed with you family lawyer before producing any DivorceMate calculations. DivorceMate provides a range of amounts (quantum) of spousal support, which include the “low-range,” “mid-range,” and “high-range” amounts. DivorceMate also provides a range of the length of time that spousal support ought to be paid. This is often referred to as the duration of spousal support.

If you have questions relating to spousal support, contact one of the lawyers at Krol & Krol for a consultation.

There may be instances where a spouse that is ordered or agrees to pay spousal support to a former spouse receives a raise or some form of an increase in income after the order is made or the agreement is signed. The question in these cases is whether the recipient of spousal support can ask for an increase in his/her support based on the recent increase in the payor’s income.

Cases such as Fargey v. Fargey and Abernethy v. Peacock have dealt with this issue, and highlight various important factors as well as objectives that a court must consider prior to making a ruling on the matter.

The cited legislation that deals with varying/increasing spousal support is section 17 of the Divorce Act and section 37 of the Family Law Act.

Section 17 of the Divorce Act states that:

17(1) A court of competent jurisdiction may make an order varying, rescinding, or suspending, prospectively or retroactively,

• (a) A support order or any provision thereof on application by either or both former spouses; or,
• (b) A custody order or any provision thereof on application by either or both former spouses or by any other person.

17(4.1) Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs, or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration.

17(7) A variation order varying a spousal support order should

• (a) Recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown;
• (b) Apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
• (c) Relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and,
• (d) Insofar as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.

The cases of Abernethy and Fargey conveyed that the most vital factor that a Judge must consider when ruling on an Application to vary spousal support is whether there has been a material change in circumstances.

In the case of Abernethy, because there was a material change in circumstances, the Applicant was entitled to a variation of support based on “contract, on need, and on compensation.”

The Court in Fargey cited the case of Willick to properly define the meaning of a “material change in circumstances.” A material change in circumstances was defined as a change that, “if known at the time, would likely have resulted in different terms.”
To learn more about an increase in spousal support as well as the services provided by Krol & Krol, call 905.707.3370 today.

Courts take a different approach in making a ruling on temporary spousal support during a motion than the approach taken on a determination of a final award of spousal support at a trial.

Specifically, in determining whether a party is responsible to provide his/her spouse with temporary or interim spousal support, the Court will look to cases such as Thomas v. Thomas and Hughes v. Hughes. The jurisprudence (i.e. case law) conveys that an award of temporary spousal support should seek to allow the recipient to obtain support from the date of the commencement of the litigation until the final trial. An adjudicator should primarily take into account the needs and means of the recipient of support, and attempt to place the parties on equal ground with respect to the financial support available to them individually.

Interestingly, if a party feels as though he/she is disadvantaged due to the unlimited resources available to their counterpart, they may apply to the Court for “advance costs” to fund the litigation and place the parties on relatively equal ground. However, a motion for “advance costs” should not be relied on and should only be used in extreme cases, as Justice Gates pointed out in the case of Lakhoo v. Lakhoo.

To learn more about temporary spousal support as well as other issues relating to spousal support, call 905.707.3370 today.

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.