Spousal Support
Practical guidance on one of the hardest financial questions.
Spousal support is meant to compensate a former spouse for missed economic opportunities that are a result of the relationship. Entitlement comes first; the Spousal Support Advisory Guidelines then drive amount and duration.
Objectives of Spousal Support
The objectives of spousal support are set out in section 15.2 of the Divorce Act for married spouses, and section 161 of the Family Law Act for unmarried spouses: (a) to recognize any economic advantages or disadvantages arising from the relationship or its breakdown; (b) to apportion between the spouses any financial consequences of caring for a child, beyond the duty to provide child support; (c) to relieve any economic hardship arising from the breakdown of the relationship; and (d) as far as practicable, to promote the economic self-sufficiency of each spouse within a reasonable period of time.
Calculating Spousal Support
The amount and duration of spousal support are set out in section 162 of the Family Law Act and are determined by considering the conditions, means, and needs of each spouse, the length of time the spouses lived together, and the functions performed by each during that time (such as housekeeping or raising children). Child support obligations take priority over spousal support obligations, pursuant to section 15.3 of the Divorce Act and section 173 of the Family Law Act. The calculation often involves the Spousal Support Advisory Guidelines — a complex formula best applied with professional judgment, not just a calculator.
Spousal Support Agreements
Spousal support agreements are a factor taken into account by a court pursuant to section 15.2(4)(c) of the Divorce Act and sections 162(c) and 163 of the Family Law Act. Agreements can determine whether spousal support will or will not be paid. Generally, agreements that are signed by both parties, witnessed, and filed in court operate as if they were court orders.
Setting Agreements Aside
Spousal support agreements can be changed or set aside in some circumstances. Along with the factors in section 164 of the Family Law Act, these include: failure to disclose, or lying or hiding financial information, that led to the agreement; improper advantage taken of the other's vulnerability, including ignorance, need, or distress; lack of understanding or mental capacity to enter the agreement; threats; or fundamental unfairness. A court may consider the time passed since the agreement, any changes in the spouses' circumstances, the intention to achieve certainty, the degree of reliance on the agreement, and how well the agreement meets the spousal support objectives in section 161.