Support during involuntary separation
Several of my previous columns commented on special issues that arise when older couples separate.
This discussion deals with another aspect of aging that may require the court’s assistance.
The Divorce Act only applies to married couples. In 2017 Nova Scotia enacted the Parenting and Support Act (PSA). It defines spouses as married people who are separated but not yet applying for a divorce, couples registered in Nova Scotia as a domestic partnership, unmarried/unregistered couples who lived together continuously for at least two years and unmarried/unregistered couples who lived together for any period of time and had a child together.
As Boomers age, involuntary separations for health reasons are increasing. A 2018 case in the Nova Scotia Family Court has confirmed that people classified as spouses under the PSA may have spousal support claims in this situation.
This case can be read on the free case reporting website at www.canlii.org, by searching for 2018 NSFC 13.
In this case, both spouses were in different long-term care facilities. The husband had the greater income.
The wife testified that she didn’t want to divorce and the only reason she and her husband were separated was because their respective infirmities required them to be in long term care.
Because she didn’t wish to divorce, she couldn’t apply for support under the Divorce Act. The Court allowed the wife to make a support claim.
When authorizing the claim to go forward, the judge considered several differences between the PSA and the Divorce Act, noting that only the Divorce
Act required proof of intent to end a marital relationship by separation before support can be claimed.
The judge was satisfied that even if the PSA required proof of separation to apply for support, separation could be for reasons outside the spouses’ control including “separation by necessity” when neither party intended to end the spousal relationship.
Although the outcome of the wife’s subsequent support application has not yet been publicly reported (and may have settled), if her application or a similar one went to Court, a judge would then look at all the factors set out in the PSA for awarding (or not awarding) spousal support.
Some (but not all) of these include either spouse’s physical or mental disability, the inability of a spouse to work, the reasonable financial needs of both parties, the ability of one spouse to pay support, each party’s separate property and the ability of the spouse requesting support to contribute to his/her own support.
There is little reported case law on spousal support caused by involuntary separation.
How a judge would decide a case depends on its specific facts so if you or a family member require spousal support arising from involuntary separation, it is wise to discuss how a judge might decide on the specific facts with a family law lawyer.
A 2018 case in the Nova Scotia Family Court has confirmed that people classified as spouses under the (Parenting and Support Act) may have spousal support claims.