Section 14.2 of the Divorce Act and Division 4 of Part 7 of British Columbia’s Family Law Act allow a court to order spousal support. Spousal support in Canada is very discretionary. The legislation describes four objectives of spousal support. The legislation also tells us what a judge will consider before ordering spousal support. But the legislation does not give us a formula. It does not tell us a clear answer as to whether a spouse is entitled to spousal support, how much spousal support is due, and for how long. The judge hearing the case will look at
- the objectives and factors listed in the Divorce Act or Family Law Act;
- the Spousal Support Advisory Guidelines, as described below; and
- the way previous cases with similar facts have been decided.
After looking at those things, the judge will come up with a number that is supposed to be fair for the particular case at court.
The Three Bases of Spousal Support
Before we look at what the legislation says, it is useful to think of spousal support as having three bases. These are described in the Supreme Court of Canada decision Bracklow v. Bracklow, 1999 CanLII 715. The three bases are:
The Compensatory Basis: A person can be entitled to spousal support because they gave up career opportunities during the relationship. Consider a “traditional” marriage, where one spouse works and the other stays at home. When those spouses separate, the spouse who stayed at home might have missed out on years of work experience. Those missing years can have long lasting consequences on their ability to earn an income. Meanwhile, the spouse who continued working throughout the relationship might have a higher ability to earn an income because they did not take any time off.
The Non-Compensatory Basis: A person can be entitled to spousal support on the basis of financial need, even if they did not give up career opportunities during the marriage. “Need” is measured relative to the length of time the parties were together, the standard of living that they had prior to separation, and their standard of living after separation.
The Contractual Basis: An agreement may affect whether a spouse has an obligation to pay spousal support.
Misconduct During the Relationship
One thing that you do not see in the three bases of spousal support is misconduct. Misconduct or fault is generally irrelevant to spousal support. Whether one person was more responsible for ending the relationship, whether the other person tried to reconcile, whether someone had an affair, whether someone was abusive, etc. is generally irrelevant. We have “no fault” divorce in Canada. What matters for spousal support is finances, each spouse’s ability to earn an income, and other similar factors.
What Do the Divorce Act and Family Law Act Say About Spousal Support?
The Divorce Act and Family Law Act list the objectives of spousal support and the factors that a judge must consider before making an order for spousal support. The sections of the Divorce Act and Family Law Act dealing with spousal support are similar, so I will simply quote some of the relevant sections of the Divorce Act.
First, section 15.2 allows a court to make a spousal support order:
Spousal support order
15.2 (1) A court … may … make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump and periodic sums, as the court thinks reasonable for the support of the other spouse.
Subsection 4 tells us what kind factors a judge is going to consider. In other words, this tells us some of the evidence that we will need to present to the court.
(4) In making an order under subsection (1) … the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including
(a) the length of time the spouses cohabited;
(b) the functions performed by each spouse during cohabitation; and
(c) any order, agreement or arrangement relating to support of either spouse.
Subsection (5) tells us explicitly that a judge is generally not going to consider any wrongdoing committed by a spouse during the relationship:
(5) In making an order under subsection (1) … the court shall not take into consideration any misconduct of a spouse in relation to the marriage.
Subsection (6) tells us what the goal of the spousal support order should be:
Objectives of spousal support order
(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should
(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.
As you can see, the legislation speaks in very general terms and do not contain any kind of formula. Thankfully, Professors Carol Rogerson, of the University of Toronto, and Rollie Thompson, of Dalhousie Law School, developed the Spousal Support Advisory Guidelines.
The Spousal Support Advisory Guidelines
The Spousal Support Advisory Guidelines (SSAG) are guidelines to help create more predictable and consistent awards of spousal support. The SSAG use two formulas: one for spouses with children, and another for spouses without children. The SSAG provide possible ranges of spousal support payable based on several facts including the length of the relationship and the parties’ net disposable incomes. They are a useful tool for figuring out the right amount and duration of spousal support.
Because of the term “Guidelines” you might think that the SSAG are similar to the Federal Child Support Guidelines. However, the SSAG are very different. I will give you just three of the important ways that the SSAG are very different from the Federal Child Support Guidelines:
- The SSAG are not law. They are just helpful guidelines created by law professors. A judge is not obligated to follow them. In fact, depending on the facts of a case, a judge might make an order that is different from what is suggested by the SSAG.
- The formulas do not give a clear answer to the questions “how much spousal support is payable” and “for how long?” They do not have a clear default rule that allows us to plug in some numbers and come out with an answer. The interpretation of the SSAG requires professional judgment.
- The SSAG do not give us a clear answer as to whether a person is entitled to spousal support in the first place. They give us ranges of spousal support assuming that the person is entitled to it.
In addition to the Spousal Support Advisory Guidelines, the judges will consider what previously decided cases say. There are a large number of cases that interpret and add more detail to what the Divorce Act and Family Law Act say. It is also useful to look at cases that have similar facts to yours. Cases can help a judge understand
- whether a spouse is entitled to support;
- whether the judge should order something different than what is suggested by the SSAG; and
- if the judge is going to make an order consistent with the SSAG, what range of spousal support is appropriate.
The Importance of Professional Judgment
As you can see, there is no hard and fast way to decide whether someone is entitled to spousal support, or how much. For that reason, spousal support is one area where professional judgment is very important. If you are looking to hire a lawyer to advise you on spousal support, you should get advice from a lawyer who has a history of focusing on family law, is familiar with the case law, and has taken spousal support cases to court.
Brennan J. Clarkson has helped clients with family law disputes including divorces and common law separations since 2008. He practices family and estate law in Port Moody, British Columbia at Clarkson Law Corporation.
Contact Clarkson Law Corporation today for a free 30 minute consultation.