In Canada, spousal support is awarded against a backdrop that regards marriage as a financial partnership, in which, over the course of a relationship, the lives, finances, and standard of living of the parties become entwined. When that partnership ends one spouse may have an obligation to support a spouse that is less financially secure. While the law encourages economic self-sufficiency and financial independence, parties can establish an entitlement to support by demonstrating financial need.
The rationale behind spousal support is to achieve an equitable sharing of the economic outcomes of marriage and its breakdown. In determining the amount of support in situations involving married couples, courts take into account the objectives of spousal support orders which are set out in section 15.2(6) of the Divorce Act. That provides that an order for spousal support should:
- recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
- apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
- relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
- in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
Entitlement to spousal support can be founded on one of three conceptual models that courts have recognized: compensatory support which relates to the first two objectives, non-compensatory or “needs-based” support which is founded on the last two objectives, and contractual support. While the Divorce Act promotes the objective of economic self-sufficiency and independence, this is balanced against a spouse’s financial needs. Relationships create “interdependencies” with former spouses carrying the primary responsibility for supporting a dependent partner. In Bracklow v. Bracklow, it was recognized that a spouse’s lack of self-sufficiency could relate to disadvantages caused either by the marriage or its breakup or from completely external sources, such as the disappearance of the job the spouse was trained for to do or ill-health.
Non-Compensatory Support Accounts for Variation in Living Standards Between Spouses
Entitlement based on financial need entails consideration of the ability of recipient spouses to support themselves, looking towards their income, expenses, assets, and liabilities. Importantly, the focus on a claimant’s “needs” is not geared to ensuring that an individual can obtain the basic necessities of life. As Justice Weiler noted in Berger v. Berger, when fixing a quantum and duration of support the objective is not to settle on an amount that “meets expenses dollar for dollar”. Instead, the needs of a spouse are measured against the marital standard of living of the parties, though the weight that courts can fix to the standard of living in settling support can vary based on the facts in each case. Nevertheless, courts have clearly articulated that the lifestyle a spouse has been accustomed to during the relationship is a relevant consideration, while still being subject to a spouse’s ability to pay. Consequently, in Moge v. Moge, Justice L’Heureux-Dubé noted that “great disparities in the standard of living that would be experienced by spouses in the absence of support are often a revealing indication of the economic disadvantages inherent in the role assumed by one party. As marriage should be regarded as a joint endeavor, the longer the relationship endures, the closer the economic union, the greater will be the presumptive claim to equal standards of living upon its dissolution”.
Determination of a party’s need and prospects for self-sufficiency requires consideration of the spouse’s present and potential incomes, their standard of living during the marriage, the efficacy of any suggested steps to increase a party’s means, the parties’ likely post-separation circumstances (including the impact of equalization of their property), the duration of their cohabitation and any other relevant factors. In evaluating income, courts take note of the parties’ likely post-separation circumstances (including the impact of equalization of their property), the duration of their cohabitation, and any other relevant factors. In evaluating income, courts acknowledge the joint income that spouses anticipated they would enjoy.
Though equalization of the standards of living between parties is not an explicit objective, it has been reasoned that in marriages where parties have approached their roles as a partnership, equality of standard of living may be the just result. Yet, courts have also recognized that a non-compensatory claim that is based solely on the loss of marital standard of living can justify an award that is at the lower end of permissible ranges for support. Additionally, in cases where parties have limited resources, it may not be possible to replicate the stand of living that was enjoyed while the parties were living together. In such cases, a support order is directed to alleviating significant disparities in standards of living upon marriage breakdown.
How Does Spousal Support Treat Variation of Incomes?
Disparities in income levels between former spouses will not be unusual following marriage breakdown, and this raises issues about the intersection of income and standard of living, and to what extent a party should be compensated. A mere disparity in incomes and financial circumstances does not by itself lead to entitlement to spousal support. Further, the British Columbia Court of Appeal suggested that marriage does engage an automatic “tool of redistribution.” Spouses first must establish entitlement and cannot assume that marriage creates a lifelong income solely on the grounds that their spouse earns a larger salary. Despite this, recent Ontario decisions have recognized that in practice an entitlement to support will arise in circumstances where there is a significant income disparity at the time of the application.
Boudreau v. Jakobsen demonstrates the balance between economic self-sufficiency and financial obligation to former spouses that courts will strive for. In that case, one party was economically dependent throughout the relationship and required support following separation as he received disability benefits, lived in shelters, and relied on food banks. However, in fixing a level of support the judge noted the respondent’s failure to become self-sufficient, finding he had an aversion to low-level work. The support awarded likely aimed to motivate the respondent to meet a greater level of self-sufficiency.
Toronto Spousal Support Lawyers
The lawyers at Boulby Weinberg LLP in Toronto focus exclusively on family law matters for clients in Ontario and internationally and advise clients on complex family property and support strategies tailored to your unique situation. To discuss your matter further or arrange a consultation please complete our online questionnaire or contact the firm at 647-494-0113 ext. 102.