Spousal support refers to an amount of money one spouse pays to the other after getting separated or divorced. It can be paid once in a lump sum or periodically, usually monthly but sometimes weekly or at other intervals. In the US it is often referred to as alimony but that term is rarely used when speaking of divorced couples in Canada.
The issue of spousal support has become more contentious than ever in Canada as a result of a recent decision of the Supreme Court of Canada. For many years. It was the law that the alleged misbehavior of one or both spouses was not something that should be taken into account when determining how much, if any, support would be paid by one to the other. However, in the Laskun case, a divorced woman’s ability to earn enough income to support herself was reduced because of her anger toward her husband over the affair which had led to the breakdown of their relationship. The court determined that the effect of the husband’s behavior on the wife’s ability to support herself was to be taken into account when determining the level of spousal support.
It is necessary to note that this does not mean that one divorced partner will receive more support from the other thanks to misbehavior as such. Only if that misbehavior had some adverse effect on the first spouse’s ability to support him or herself will the misbehavior be considered. But even this has opened the floodgates to a great deal of extra litigation between divorced or divorcing couples on the matter of spousal support.
Prior to this determination, steps had been made to reduce the amount of litigation between divorced spouses over spousal support. Spousal support rules have been printed by the federal government. Although these are not compulsory, they were being used as a benchmark, helping spouses and their counsels to achieve out of court agreements and even permitting judges to use them as a basis for their judgments While still useful, these rules can only now be applied after thinking about the effect of bad behavior.
In general, the most vital issues entrenched by the Canada Divorce Act in deciding the amount of spousal support are: the necessity to compensate a spouse for economic hardships suffered as a consequence of the marriage ; the necessity to relieve any economic trouble caused by from the end of the marriage ; and the necessity to promote self-sufficiency inside a fair period of time. None of these takes priority over the other. Here are some illustrations of how these points to consider might 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 pair without kids get divorced after five years together. They each carried on their own careers and make adequate to meet their respective needs. In this example there’s likely no need for either one to pay spousal support to the other when they are divorced.
Sometimes an unequal division of matrimonial property or responsibility for debt is agreed upon between the couple getting divorced instead of spousal support. The advantage in this is that it provides a clean break between the spouses who probably desire to minimize their future involvement with one another. However, that clean break can also prevent a spouse who would have received periodic spousal support from seeking an increase due to some disadvantage suffered due to the relationship which only surfaces later – such as a latent health issue rendering him or her unable to work.
Common-law couples cannot get divorced and so the federal Divorce Act does not apply to them. However, similar principles are found under provincial legislation which are used in determining support between separating common-law couples.
Tags: divorce, family, finances, law, legal, marriage, Relationships