When a married couple separates, one of the spouses may be entitled to spousal support. The amount and duration of spousal support depends on several factors. The spouse with less income may not be automatically entitled to spousal support. The Spousal Support Advisory Guidelines can be a useful tool in the determination of the amount and duration of spousal support. However, the Spousal Support Advisory Guidelines is not a binding tool. The amount and duration of spousal support needs to be analyzed on a case-by-case basis.
In a spousal support matter, a Court exercises its discretion after conducting a thorough review of the objectives of spousal support payment in the section 15.2(6) of the Divorce Act:
- 15.2(6) … 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.
Further, section 15.2(4) of the Divorce Act describes the factors which a court must consider before making a spousal support order. The first clause requires consideration of “condition, means, needs and other circumstances” of the parties. Then, the three subsections identify three more factors:
- the length of time the spouses cohabited;
- the functions performed by each spouse during cohabitation; and
- any order, agreement, or arrangement relating to support of either spouse.
In Bracklow v Bracklow,  1 SCR 420, the Supreme Court of Canada emphasized three conceptual approaches to spousal support being compensatory, non-compensatory, and contractual.
Compensatory approach requires consideration of contributions to the marriage and losses sustained as a result of the marriage, including a loss of earning capacity. Non-compensatory support is a needs and means based approach. This requires consideration of the needs of the support recipient and the means of the support payor. The contractual approach considers any agreements between the parties in relation to spousal support.
As outlined by the Divorce Act and the case law, the amount and duration of spousal support may vary depending on the difference in income, assets, and liabilities between the parties, the length of the marriage, the parties’ age at the time of separation, the functions performed by each spouse during the marriage and economic advantages or disadvantages to the spouses arising from the marriage or its breakdown.
Author: Amit Chowdhury