A lot of clients going through divorces may have this question: am I entitled to spousal support? To answer this question, we need to look at couples’ respective income first. However, what even some junior family lawyers may not be aware is that mere income disparity does not lead to a finding of entitlement of spousal support. Before you refer to the Spousal Support Advisory Guidelines (SSAG) for calculation of the spousal support amount, there must be a finding of entitlement, as the SSAG does not deal with entitlement issues.
In determining a support dispute, the starting point is the objectives which the Divorce Act , in s. 15.2(6) , stipulates the support order should serve.
“(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
(b) 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;
(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.”
(a) and (b) are compensatory basis, while (c) gives the spousal support claimant a basis for non-compensatory claim. The court will also look at any agreements between the parties on spousal support. (contractual basis) The case Bracklow has made it clear that no single objective is more paramount. In the event where self-sufficiency is not possible and there is no compensatory claim, a support obligation may still be found as a result of the loss of the marital standard of living.
However, under the current law, it is possible to argue that an income disparity reflects neither economic disadvantage flowing from the marriage nor economic need and hence that there is no entitlement to support. Some no-entitlement cases involve findings where both parties have similar standard of living because of their differences in asset positions or costs of living. In other cases, the recipient experiences job loss or the payor’s income increases after separation.
Many of the no-entitlement cases involve somewhat atypical situations: short marriages, second marriages, claims by men (unfortunately, gender bias is not dead), or claims made by non-custodial parents. Even though there are relatively few reported cases where entitlement has not been found, family law proceeding participants and practitioners still need to be aware of these possibilities. Contact one of our experienced Family Lawyers at MEHDI AU LLP today to better understand your options.
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