Getting Divorced? What You Ought to Know About the Issue of Spousal Support
Spousal support refers to a quantity of money one partner pays to the other spouse after getting separated or divorced. It can be provided one time only in a one-off sum or according to a schedule, often monthly but infrequently weekly or at other intervals. In the States it is usually referred to as alimony but that term isn’t used when speaking of divorced couples in Canada.
The matter of spousal support has become more litigious than ever in Canada as a consequence of a recent declaration of the Supreme Court of Canada. For a number of years, it was the law the purported misbehavior of one or both spouses wasn’t something that ought be taken into account when concluding how much, if any, support would be provided by one to the other spouse. However, in the Laskun case, a divorced woman’s capability to make satisfactory revenue to support herself was lessened because of her anger toward her husband over the affair which had led to the disintegration of their marriage. The court resolved that the effects of the man’s behavior on the wife’s capability to support herself should be taken into account when determining the amount of spousal support.
It is vital to note that this does not mean that one divorced spouse will receive more support from the other thanks to impropriety as such. Only if that impropriety had some adverse effect on the first partner’s capability to support him or herself will the impropriety be considered. But even this has opened the floodgates to a great deal of extra litigation between divorced or divorcing couples on the issue of spousal support.
Prior to this decision, steps have been taken to reduce the amount of litigation between divorced spouses over spousal support. Spousal support guidelines have been published by the federal government. Although these are not mandatory, they were being used as a benchmark, enabling spouses and their lawyers to reach out of court agreements and even allowing judges to use them as a basis for their decisions. While still useful, these guidelines can only now be applied after considering the impact of bad behavior.
In general, the most important considerations established by the Canada Divorce Act in determining the amount of spousal support are: the need to compensate a spouse for economic disadvantages suffered as a result of the marriage; the need to relieve any economic hardship resulting from the end of the marriage; and the need to promote self-sufficiency within a reasonable time period. None of these takes priority over the other. Here are some examples of how these considerations may be applied.
Example: a couple who had a traditional marriage get divorced. She had stopped working to keep the house and care for the children while he continued to pursue his career. After 20 years they divorce. Obviously her ability to earn her own income has suffered as a result of the role she had in the relationship and her present financial circumstances may be dire. But if he has to pay enough permanent monthly spousal support to meet all her financial needs it would do nothing to promote her self-sufficiency over a reasonable time. However, depending on her background it may be unrealistic to suppose her capable of ever becoming self-sufficient now. If she was smart, had a degree or valuable experience prior to the marriage, and was still relatively young, perhaps a little extra short-term support will enable her to supplement her education and get back into the workforce.
Example : a couple without kids get divorced after five years of marriage. They each continued their own careers and earn sufficient to meet their respective needs. In this situation there’s likely no requirement for either one to pay spousal support to the other when they are divorced.
Sometimes an asymmetrical division of matrimonial assets or responsibility for debts is agreed upon between the couple getting divorced in place of spousal support. The advantage in this is that it gives a clean break between the spouses who possibly need to diminish their future association with one another. However, that clean break can also prevent one of the two, who would have collected periodic spousal support, from seeking an increase due to some drawback suffered due to the marriage which only becomes known later – like a latent health problem making him unable unable to work.
Common-law couples cannot get divorced and so the federal Divorce Act can’t apply to them. However, similar guidelines are found under provincial legislation which are used in determining support between common-law couples who separate.