One of the foremost questions that arises in the mind when considering separation is the division of property and or the length and amount of support that can be agreed upon or claimed in the courts. This article deals with the question of the length of spousal support that can be agreed upon or ordered by the parties.
In this regard it is to be noted that there is no statutory limitation, and neither is it, by virtue of the Supreme Court of Canada’s decision in Bracklow v. Bracklow , possible for the courts to create a statute of limitations on marriage. The notion of “till death do us part” may end with divorce but it is not a light matter and the ‘responsibilities of marriage’ can potentially carry on until either party dies (or in some instances even after; charges upon the estate).
In the case of spousal support Miglin v. Miglin  clarifies that in the absence of any evidence that the recipient or the payee of spousal support is thwarting his or her economic ability to self-sustain themselves there is no policy or legal reason for the courts to impose a time limit on the duration of support. The question of whether an unlimited support order is to be made is nevertheless based upon the facts a discretionary matter of the courts. As Fisher v. Fisher  states that the “jurisprudential law has evolved on the position that spousal support should be time-limited only in unusual circumstances. A court however in every case must consider the circumstances of those particular parties”. That is to say that despite there being no legal requirement to place a time-limit on the duration of spousal support the courts can based upon the facts of the case determine that there should be a temporal duration of spousal support.
Krauss v. Krauss  provides guidance on the factors which are considered by the Courts in making the determination as to whether spousal support should be for an unlimited or temporal time period;
- The length of the marriage
- One party or the other forgoing career opportunities due to child or household responsibilities
- The party’s age (advance or not)
- Poor health or disabilities which restrict job availability, opportunities or self-sufficiency
- Any other general limitation on employment availability or opportunities
As earlier case law suggested, there is no policy objective in placing a time limit on the duration of spousal support, other than to prevent a recipient of spousal support to thwart his or her economic ability to self-sustain themselves. But it can be said that a more wholesome approach to the duration time-limit of spousal support is more consistent with the approach of the courts in order to determine whether there should be a time constraint. For indeed, ongoing need of the recipient and the ability of payor to pay is not sufficient in making a consideration of the duration of spousal support ( Cavanaugh v. Cassidy  ), the determination is made in order to fulfill the spousal support objectives of the Divorce Act 1985. It is also important to note where an unlimited or time-limited duration of support has been agreed upon or ordered by the courts any change in the circumstances of parties does not warrant a spousal support cut off or continuation arbitrarily, rather the determination is made under the rules of the variation application under s.17 of the Divorce Act 1986.
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