Spousal support is a concept that is hard to grasp for a lot of couples going through separation and divorce. As a family lawyer, I often encounter spouses who are willing to pay the child support, but not the spousal support. Given that this is a broad concept, this article is only going to focus on the entitlement and the calculation of the spousal support.
A lot of people have the misconception that as long as there is an income difference, the spouse with the higher income will have to pay spousal support to the spouse with lower income. This is not always the case. Under the Family Law Act, the spousal support should “recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse; (b) share the economic burden of child support equitably; (c) make fair provision to assist the spouse to become able to contribute to his or her own support; and (d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home).”
The Supreme Court of Canada has identified three conceptual models to find the entitlement of spousal support:
- Contractual: the court will consider any express or implied agreement between the parties to create or limit mutual support obligations.
- Compensatory: the court will compensate a spouse who has suffered economic disadvantages as a result of the marriage or has contributed to the economic advantage of the other spouse.
- Needs-based: the court will consider the needs, means and other circumstances of the spouse to determine if the spouse is able to support himself or herself at the end of the marriage without the assistance of the other party.
There is no limitation period in respect of a proceeding to obtain support under the Family Law Act or to enforce a provision for support or maintenance contained in a contract or agreement that could be enforced.
To determine the amount of the spousal support, the court usually considers the parties current and future assets and means, the dependent’s capacity to provide support, both parties’ age and health conditions, the dependent’s needs, parties’ standard of living while together, length of time parties cohabited, the effect on the spouse’s earnings and career development of the responsibility of caring for a child, etc.
The Spousal Support Advisory Guidelines introduced by the Department of Justice are routinely consulted by courts in calculating the spousal support payment. They do not necessarily apply to payor spouses who earn over $ 350,000 a year, although they may be considered. With the development of technology, software such as Divorcemate is usually utilized to assist family lawyers in doing the calculation. For more information please get in touch with MEHDI AU LLP’s Family Lawyers.
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