Introduction
In family law, spousal support is central to helping spouses who have become financially disadvantaged due to the breakdown of a marriage or common-law relationship. This post examines the legal principles and case law surrounding spousal support, discussing child support priority, general principles, and various factors that influence support amounts and duration. Understanding these principles can help you navigate the complexities of spousal support in family law.
Priority to Child Support
According to Section 38.1(1) of the Family Law Act (“FLA”), child support takes precedence over spousal or same-sex partner support. Courts must document the reasons if prioritizing child support reduces or eliminates spousal support. Significant changes in child support may necessitate revisiting spousal support decisions, and the standard two-year limitation for spousal support applications is not applicable in these situations.
General Principles
The FLA’s spousal support principles resemble those of the Divorce Act, considering factors such as needs, income, assets, self-sufficiency, relationship duration, lump-sum payment, and written agreements. Courts are instructed by paragraph 33(8) of the FLA to acknowledge contributions, share child support burdens, aid in self-support, and alleviate financial hardship when determining support orders. These principles apply to both the Divorce Act and provincial legislation, as confirmed by the Supreme Court of Canada in Bracklow v. Bracklow.
Moge v. Moge
The Supreme Court of Canada established a compensatory model for spousal support in the 1992 case of Moge v. Moge, extending criteria beyond need and capacity to pay. Under the Divorce Act, courts must consider four objectives: (a) acknowledging economic advantages/disadvantages stemming from the marriage/breakdown, (b) allocating financial consequences from childcare, (c) alleviating economic hardship, and (d) promoting economic self-sufficiency when feasible. No single objective is paramount, and being married does not guarantee support. The goal is to address the disadvantaged spouse’s economic losses as fully as possible, considering the payor’s ability. Equitable distribution can be achieved through spousal/child support and property division. Moge transformed spousal support law, generally resulting in higher amounts and longer durations.
Bracklow v. Bracklow
In the 1999 case of Bracklow v. Bracklow, the Supreme Court of Canada identified three statutory bases for spousal support: contractual, compensatory, and non-compensatory. Factors such as agreements, financial circumstances, and self-sufficiency must be considered. In this case, Mrs. Bracklow received support due to the length of cohabitation, hardship, need, and her husband’s ability to pay. Compensatory support addresses economic disadvantages arising from marriage or its breakdown, while non-compensatory support recognizes interdependence and the potential need for support after marriage.
Quantum/Amount and Duration
Spousal support orders can be time-limited or indefinite, depending on factors like the length of the marriage, the presence of children, and each party’s ability to work. Support payments may be periodic or a lump sum. Courts consider various circumstances outlined in section 33(9) of the FLA, including assets, means, capacity to support, age, health, standard of living, career contributions, childcare responsibilities, cohabitation length, and other legal rights to support. Section 33(9)(m) clarifies that this list is not exhaustive.
In Climans v. Latner, a case involving a 14-year relationship with an opulent lifestyle and separate residences, the lower court determined the parties were “spouses” under section 29 of the FLA and granted spousal support. However, the Court of Appeal determined that the trial judge incorrectly applied the “rule of 65” for indefinite support, as the requirement of cohabiting in the first five months of the relationship was not met. The Court of Appeal reversed the indefinite support order and capped it at 10 years, following the Spousal Support Advisory Guidelines range of seven to 14 years.
Lump Sum Payments
In some cases, parties may agree or the court may order spousal support to be paid as a lump sum, rather than periodic payments. A lump sum payment represents the present value of the total spousal support obligation, paid in one installment. This approach can provide both parties with financial certainty and may help the recipient achieve financial independence more quickly.
There are several factors to consider when determining whether a lump sum payment is appropriate, including the financial circumstances of both parties, the tax implications of the payment, and the feasibility of making such a payment. It is essential to carefully assess these factors and consult with a knowledgeable family law professional to determine if a lump sum payment is appropriate in a particular case.
Impact of a Party’s New Relationship
The existence of a new relationship for either the payor or the recipient of spousal support can have an impact on the determination of spousal support. Generally, a new relationship may affect the recipient’s need for support or the payor’s ability to pay.
If the recipient enters a new relationship and begins cohabiting with a new partner, the court may consider the new partner’s financial contributions and reassess the recipient’s need for spousal support. This could result in a reduction or termination of spousal support payments, depending on the circumstances. However, each case is unique, and the court will consider various factors, such as the duration and financial arrangements of the new relationship, before making any adjustments to the spousal support order.
On the other hand, if the payor enters a new relationship, the court may consider the new partner’s financial resources in assessing the payor’s ability to pay spousal support. However, it is important to note that the payor’s primary obligation is to their former spouse, and the court will not allow the payor to avoid their spousal support obligations by voluntarily choosing to support a new partner.
Variation of Support Orders
Spousal support orders can be varied if there is a material change in circumstances. This may include changes in the financial situation of either party, the emergence of health issues, or a change in childcare responsibilities. The court has the authority to modify, suspend, or terminate spousal support orders as it deems appropriate in response to these changes.
Termination of Support
Spousal support can be terminated upon the death of either party, the remarriage of the recipient, or in cases where the court deems that the recipient is now self-sufficient. A court may also set a specific end date for spousal support payments in the original order, depending on the circumstances of the case.
Impact of Taxes
Spousal support payments are considered taxable income for the recipient and tax-deductible for the payor. This tax treatment may have implications on the net amount of spousal support received or paid. Parties should consider the tax implications when negotiating spousal support agreements, and the court may take these factors into account when determining the appropriate amount of support.
Enforcement of Support Orders
Spousal support orders can be enforced through the Family Responsibility Office (“FRO”) in Ontario. The FRO has the authority to take various measures to ensure compliance with support orders, such as garnishing wages, suspending driver’s licenses, or initiating legal proceedings against the non-compliant party.
Understanding the Time Limits for Seeking Spousal Support
In the case of Kyle v. Atwill, the Court of Appeal discussed the interplay between the Limitations Act and the Family Law Act in determining limitation periods for spousal support (and equalization claims). The Court of Appeal acknowledged that, in most cases, the limitation periods provided in the family law context are more generous than the two-year period set out in s. 4 of the Limitations Act, due to the unique circumstances surrounding the dissolution of a marriage.
Section 19(1)(a) of the Limitations Act allows for the application of limitation periods contained in other acts, such as the Family Law Act. For equalization of net family property, s. 7(3) of the Family Law Act outlines three limitation periods for applications. Unlike the Limitations Act, the court may extend limitation periods provided in the Family Law Act under s. 2(8) of that Act in certain circumstances.
Regarding spousal support, the Family Law Act does not provide a limitation period for seeking an order under s. 33(1). Instead, s. 16(1)(c) of the Limitations Act establishes that there is no limitation period for bringing a proceeding to obtain support or enforce a support contract under the Family Law Act. This accounts for the need to allow spouses more time to resolve property issues and address changing support needs.
The Court of Appeal also examined limitation periods for setting aside domestic contracts, such as marriage contracts under s. 52 of the Family Law Act. The Family Law Act includes provisions that allow a court to set aside all or part of a marriage contract in certain situations, as outlined in s. 33(4) and s. 56(4). However, no limitation period is provided in the Family Law Act for setting aside a domestic contract under s. 56(4) or a spousal support provision of a marriage contract under s. 33(4).
Since the Family Law Act is silent on the limitation period for an application to set aside a marriage contract under s. 56(4), the court must look to the Limitations Act to determine the applicable provisions. The Court of Appeal in Kyle v. Atwill rejected the view that the limitation period for equalization should also apply to an application to set aside a marriage contract under s. 56(4) of the Family Law Act. Instead, the absence of a limitation period in the Family Law Act for this action indicates that the Limitations Act should apply.
Conclusion
Spousal support is a complex area of family law, with many factors influencing the determination of entitlement, amount, and duration. Understanding the legal principles, relevant statutes, and case law can provide valuable insight into the potential outcomes of a spousal support case. If you are facing a spousal support issue, it is essential to consult with a knowledgeable family law lawyer to navigate this challenging legal landscape.
Spousal support aims to address the economic consequences of a relationship breakdown, taking into account various factors such as the needs and means of each party, the duration of the relationship, and the contributions made by each spouse. As illustrated by the cases discussed in this blog post, the courts will assess these factors on a case-by-case basis, considering the unique circumstances of each couple. It is crucial for anyone involved in a spousal support dispute to seek legal advice from an experienced family law lawyer to ensure a fair and equitable outcome.
