Divorce: Spousal Support

Originally intended to guide courts in determining the “purpose” of spousal support, the Divorce Act s.15.2(6) essentially sets the essence and principles of these rulings. Consequently, decisions on spousal support should adhere to the following principles:

1. Recognizing the financial losses incurred by both parties due to the breakdown of the marriage.

   • This effectively declares the root cause and reason for the existence of spousal support.

2. Sharing the financial responsibilities of child care post-divorce.

   • In other words, if there are children involved, spousal support and child support are intertwined, with the Divorce Act s.15.3 explicitly stating that child support takes priority.

3. Alleviating the financial hardships faced by both parties as a result of the marriage dissolution.

   • This principle revisits the causation, emphasizing that if one party is financially worse off post-divorce, they are entitled to some level of compensation for this “economic hardship.”

4. Promoting economic self-sufficiency for each spouse within a reasonable timeframe.

   • This implies that, while support is essential, it is equally important to encourage both parties to strive for financial independence and not solely rely on the other for sustenance.

The fundamental aspect of the Guidelines is that they are based on income sharing, as distinct from a budgetary analysis. Income sharing does not imply equal sharing of the combined income of the spouses. Mathematical formulas have been devised to determine the proportion of spousal incomes to be shared. 

• Here is where you can find the federal guidelines.
• Here are the guidelines provided by the Ontario government.

These guidelines should be seen as a reference point:

• The Guidelines are informal, voluntary, and advisory. They have not been legislatively endorsed and are not legally binding.

• They are a tool for mediators, lawyers, and judges to use when determining how separating spouses will share income. They are seen to provide a starting point for negotiations and decisions and encourage settlement in a cost-effective, simple, and consistent manner.

• These guidelines focus on “current circumstances,” meaning they can be adjusted based on evolving frameworks, such as changes in marital status, significant decreases in the payor’s income, or substantial increases in the recipient’s income.

• Unless exceptional circumstances, the Guidelines do not apply to paying spouses making $20K (gross, annual) or less.  Also, the Guidelines is not automatically applied to income apportionment when paying spouses’ gross annual income exceeds $350K, when income greatly exceeds $350K, a fully discretionary approach may be preferable to the Guidelines.

In Canadian family law, spousal support orders are categorized into 3 main types:

1. Interim orders: As per s.15.2(2) of the Divorce Act, courts have the authority to issue interim spousal support orders (ISOs) while the official divorce is pending. ISOs serve as a temporary fix to address immediate financial needs between separation and the final divorce. The goal is to allow the receiving spouse to maintain a lifestyle comparable to the one before separation, as long as the payor’s financial situation permits. Think of ISOs as a stopgap solution for temporary financial dilemmas. OLG v DCG

2. Permanent orders, which can be divided into two subcategories:

   • Lifetime orders: Essentially, this type of support order can be ordered for a lifetime but cannot continue upon the death of either spouse. Despote v Despot Estate

     Such orders seek to compensate the spouse for any unpaid domestic work they undertook during the marriage and address the economic consequences of long traditional marriages where W assumed primary responsibility for homemaking and childcare. Moge v Moge

     These orders are subject to review to ensure they continue to meet the parties’ needs. 

   • Fixed-term orders: Aimed at helping the receiving spouse achieve financial independence after a short-term marriage or adjust to a lower standard of living.

     Even in long-term marriages, if both parties are employable and financially independent, a fixed-term order might suffice. 

     But, in cases where childcare responsibilities persist post-divorce, the duration of support can extend significantly. Foster v Foster

3. Variation to previous orders or Retroactive orders: Courts may modify or revoke spousal support orders if there are changes in financial or family circumstances, or in cases of remarriage. For more on this, refer to the latter part of this article.

Regarding the type of payment, spousal support typically falls into two categories:

• Periodic payments: The most common form, where the payor makes monthly payments.

• Lump sum payments: Sometimes, courts may order a one-time payment, especially in situations like:

  • When the payor has substantial assets but limited income (the court may order selling an asset to make the payment). Baker v Baker
  • The payor’s income is unstable or unpredictable. Murphy v Murphy
  • The payor has a history of defaulting on periodic payments. Brodystch v Brodystch
  • Payor unlikely or unable to pay periodic support at all or for the appropriate length of time Babowech v Von Como
  • Lump sum payments give the couple financial freedom that is desirable rather than being tied to periodic payments. Pennington v Pennington

Moge v Moge [1992]

• This case involved a wife who had been a homemaker throughout the marriage. Post-separation, she struggled to find employment. Her husband paid child and spousal support, but upon her securing a decent job, he sought to terminate the support. The trial court sided with the husband, suggesting that the wife’s financial independence meant an end to his support obligations. However, on appeal, it was ruled that he must pay her $150 monthly for life.
• The court’s reasoning highlighted that even if a spouse becomes financially independent, the disruption caused by the marriage’s dissolution justifies continued support.
• This case underscores the principle of marriage as a contractual commitment, with obligations that persist even after separation.

Miglin v Miglin [2003]

• In this 14-year marriage with four children, the couple signed a separation agreement, where the husband agreed to pay child support and a limited period of spousal support. Later, the wife sought an increase in support.
• The Supreme Court of Canada upheld the original separation agreement, emphasizing the importance of contracts being openly and fairly negotiated.
• The Court laid out three criteria for assessing the fairness of a spousal support contract:
  1. the fairness of negotiations,
  2. the substance of the agreement in line with the Divorce Act’s principles,
  3. whether the agreement genuinely reflects the parties’ intentions.

Boston v Boston [2001]

• This case clarified that using assets already divided in marital property settlement for spousal support payments is unfair, a concept known as “double-dipping.” When the couple separated, the husband’s pension and the wife’s share of the matrimonial home were evenly split. The husband later sought to reduce his support payments, arguing that he was paying out of assets already divided. The Supreme Court agreed, stating that both parties should reasonably use their divided assets to maintain themselves.

Leskun v Leskun [2006]

• This case revolved around a “fault-divorce” where the husband’s infidelity led to divorce after 20 years of marriage.
• Initially, the court sympathized with the wife, granting her $2,250 monthly.
• When the husband, later remarried and unemployed, asked to stop the payments, the court refused.
• The ruling emphasized that while spousal misconduct itself isn’t a factor in spousal support, its impact on the other spouse’s financial independence is relevant. The court’s decision indicated that if marital misconduct affects one’s ability to be self-sufficient, it becomes pertinent to the spousal support discussion.

Let’s delve into the intricacies of varying and retroactively applying spousal support orders, which, despite falling under the umbrella of post-judgment adjustments in family law, represent distinct concepts:

Varying Spousal Support
This refers to amending previously ordered spousal support due to significant changes over time. For instance, the payor might seek to reduce or cease payments, or the recipient may request increased support from a certain point forward.

Retroactive Spousal Support
Contrastingly, retroactive support involves cases where no support order was initially made (often due to neither spouse raising the issue at the time) but, years later, one party seeks to claim what should have been paid in the past.

Factors Considered by Courts in Varying Support Orders

• The Divorce Act, specifically s.17(4.1), states that support orders can only be modified if there’s a significant, unforeseen, and enduring change in circumstances. LMP v LS 
• Market fluctuations or business downturns alone don’t justify support reduction. RP v RC
• A recipient’s sizable inheritance could prompt the court to consider reducing or terminating support. LeBlanc v LeBlanc
• Economic self-sufficiency is a key principle, implying that support should reflect the standard of living during the marriage, not the payor’s current income. Purdue v Purdue
• Changes in employment status, such as retirement, need a case-by-case analysis Swales v Swales
• Self-induced income reductions don’t qualify as substantial changes. Irvien v Irvine
• The recipient’s lifestyle changes, like purchasing a luxury apartment leading to financial strain, don’t warrant increased support. WCP v CP
• The payor’s right to reassess support upon the recipient’s remarriage is reasonable. Purdue v Purdue

Considerations for Retroactive Spousal Support

When contemplating retroactive support, courts weigh several factors:

• Whether incomplete financial disclosure by the payor initially prevented the support claim.
• The reasons behind the recipient’s initial failure to seek support. Lack of justification might lead the court to deny retroactive claims. Ellis v Ellis
• Proof of financial need during the period for which retroactive support is sought.
• The payor’s ability to pay the retroactively determined support.