Family Law: How to know if you’re entitled to spousal support.

Children, length of relationship among factors

Family Law

When a relationship breaks down, there are usually a number of legal issues a couple must resolve.

If they have children, or if one of the spouses has been “standing in the shoes of a parent,” there will likely be custody, access and child support issues. If the couple has property — which includes pensions, RRSPs, savings, shares, options, restricted share units, an interest in a private business or partnership, or even money owed to them — there are likely property rights and obligations.

And if one of the spouses has been out of the workforce for a period of time or if there is an inequity in the earning power of the spouses, it is likely that spousal support is payable.

Since the mid-1980s, whether one spouse has an “entitlement” to spousal support is rarely litigated. Most spousal support disputes focus on “how much” and for “how long.” In all but the shortest relationships, if there are children, entitlement to spousal support is conceded. While the language of the legislation differs whether the separating couple is common law or married, the general principles of governing entitlement are the same.

The right to spousal support does not arise only if one spouse has unmet basic financial needs after separation. Spousal support is intended to distribute future income in a way that takes into account the economic effect of the relationship and its breakdown. The most common example of this economic effect is the unequal sharing of household labour and childcare, both before and after separation. While the legislation also promotes efforts at economic self-sufficiency within a reasonable time, this is simply one of a number of objectives of spousal support.

The ultimate goal of spousal support is to alleviate the disadvantaged spouse’s economic losses as completely as possible after separation.

Economic advantages and disadvantages are difficult to quantify, making spousal support one of the most difficult and discretionary issues for separating couples to resolve. It is such a common problem, though, that even the Supreme Court of Canada has said that “it is a rare case where spouses are able to make a ‘clean break.’”

Because spousal support can be “needs-based” “compensatory,” or “contractual,” spousal support can be payable in a myriad of different situations.

So who is entitled to spousal support when a couple separates?

There are a few rules of thumb.

First, the longer the relationship, the greater likelihood that the lower-income spouse is entitled to spousal support. the existence of young children gives rise to a longterm, continuing burden for child care. Spousal support is one of several ways that the economic disadvantages are shared after separation.

Fourth, where there is significant income disparity between the spouses at separation, even where there are no children, there is likely an entitlement to transitional spousal support, even if the lower-income spouse maintained his income level throughout the relationship. The purpose of transitional support is, quite simply, to transition the lower income spouse back to the pre-relationship lifestyle.

Fifth, where there is an agreement such as a cohabitation agreement or marriage contract that sets out the terms of spousal support, the separating couple may rely on that agreement when they separate. Contractual support arrangements should be approached with caution, though, as in certain circumstances, these agreements can be set aside.

Once entitlement to spousal support has been established, the focus of spousal support turns to how much for how long.

Because there was so much disparity in the amount of spousal support being ordered across Canada, and even amongst judicial regions in the same province, the Spousal Support Advisory Guidelines (“SSAG”) were introduced in 2008.

The SSAGs do not determine whether a separating spouse is entitled to spousal support. However, once entitlement has been established or conceded, the SSAGs are intended to be used as the first calculation of the monthly spousal support payment and the length of time support is expected to be paid.

While these guidelines have taken some of the pain and uncertainty out of the process, spousal support remains one of the most contentious issues separating couples must navigate.