Spousal support is money that’s payable from one spouse to another when there’s a breakdown of a relationship.
The federal Divorce Act as well as the provincial counterparts contain provisions that set out the objectives of spousal support, and the factors to consider when determining whether spousal support is appropriate.
How do you determine if spousal support is payable?
There’s a 2-step process in determining whether spousal support may be payable to a spouse:
First, we have to look at entitlement. Until and unless it’s determined that a person is entitled to spousal support, we don’t move forward in the analysis.
Second, if and only if entitlement is found, then we look to how much is payable, and for how long.
Let’s break that down. How does a person know if they’re entitled to spousal support under that first step?
The word “entitlement” is a legal word that helps us to determine eligibility for spousal support. However, in my experience it’s a word that sometimes can cause fire to come out of people’s ears instantaneously.
In the context of spousal support, entitlement is the first thing that needs to be determined before we even bother with any numbers.
So, how is entitlement determined? A person needs to fit within one of 3 headings in order to qualify for spousal support – let’s go through them now:
- Contractual support – in this case, a person would be entitled to support if there’s a contractual obligation – a perfect example would be an interspousal or prenuptial agreement between spouses which specifically sets out how spousal support will be paid on the breakdown of the relationship. That contractual obligation can arise anytime – before starting to live together, once living together, or even once separation has occurred.
- Compensatory support – you can think of this as looking backward into the relationship to compensate one spouse for decisions that were made which will affect that spouse’s income-earning potential. This type of support often arises when a spouse has taken time off work to care for children, or to geographically move to follow a spouse’s career advancements. The goal here is to compensate for economic advantages or disadvantages arising as a result of the breakdown of the relationship.
- Non-compensatory support – this is what I consider the “forward-looking” spousal support – it’s based on need going forward, and ability to be or to become self-sufficient after the relationship ends. Think about budgets, economic inter-dependence between the spouses, or even changes to one’s standard of living as a result of the breakdown of the relationship.
If spousal support is payable, how much would a person have to pay?
If and only if entitlement is found, then we go on to how much is payable.
This is where the Spousal Support Advisory Guidelines come into play. This is a formulaic way to determine how much spousal support is payable. They came into effect in 2005 and have grown in significance in the legal landscape since then.
There’s 2 different formulas – one is when there’s child support being paid, and one is when there’s no child support being paid.
In order to figure out the amount payable, we input both spouse’s income levels, as well as child support payable if any, and out spits the amount as a range. In every calculation there’s the low end of the range, mid, and high end.
So, within the range of calculations, there’s room for negotiation as to why a person would choose a particular spot within that range.
It’s not an exact science, but the formulas do help to put some predictability into the calculations.
How long is spousal support payable for?
The Spousal Support Advisory Guidelines also takes care of helping us with this question of duration.
There’s a few rules that come into play, and it can get complicated. There’s a few guiding principles to consider.
First, there’s 2 situations where spousal support goes on indefinitely:
- If spouses have lived together for over 20 years, or
- The Rule of 65 – it’s where the number of years living together PLUS the recipient’s age is over 65.
Indefinitely doesn’t mean forever, it just means without a specific end. It’s subject to review and/or variation based on future circumstances as they unfold.
The second guiding principle is that if there’s no child support payable, then the duration is usually somewhere between .5 and 1 year for every year that the spouses lived together. So if they lived together for 10 years, then the range would be between 5-10 years.
Lastly, if there is child support payable, then there’s more flexibility in the duration depending on the circumstances – it could be the same .5-1 year principle, or it could be in line with children starting or finishing full-time school.
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