Spousal Support & The Family Law Act

Family Law Act R.S.O. 1990, c. F.3

If you and your spouse/partner are either:

• legally married and have made the decision to separate, or
• are not married but have cohabited:
• continuously for a period of 3 years or more, or
• in a relationship of some permanence and have a natural or adoptive child together

then you may bring an application for either an interim or final order for spousal support pursuant to s. 33(1) of the Family Law Act. This Act places an obligation on every “spouse” to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so.

You should be aware of the fact that if parties maintain separate residences for specific purposes (such as facilitating access with one’s children) they may still be found to cohabit for the purposes of the s. 29 definition. Moreover, continuous daily cohabitation is not necessary especially where there is a long period of companionship and commitment between the individuals or where they have held themselves out to be “spouses” and there was acceptance of such by all the people who knew them.

Determining Factors

It is appropriate to consider the Moldowich factors here when attempting to determine whether or not the definition of “spouse” is satisfied. The factors are as follows:

1. Shelter
   • Did the parties live under the same roof?
   • What were the sleeping arrangements?
   • Did anyone else occupy or share the available accommodation?
2. Sexual and Personal Behaviour
   • Did the parties have sexual relations? If not, why not?
   • Did they maintain an attitude of fidelity to each other?
   • What where their feelings toward each other?
   • Did they communicate on a personal level?
   • Did they eat their meals together?
   • What, if anything, did they do to assist each other with problems or during illness?
   • Did they buy gifts for each other on special occasions?
3. Services: what was the conduct and habit of the parties in relation to:
   • preparation of meals;
   • washing and mending clothes;
   • shopping;
   • household maintenance; and
   • Any other domestic services?
4. Social
   • Did they participate together or separately in neighborhood and community activities?
   • What was the relationship and conduct of each of them towards members of their respective families and how did such families behave toward the parties?
5. Societal
   • What was the attitude and conduct of the community toward each of them and as a couple?
6. Economic Support
   • What were the financial arrangements between the parties regarding the provision of or contribution toward the necessities of life such as food, clothing, shelter, and recreation?
   • What were the arrangements concerning the acquisition and ownership of property?
   • Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship?
7. Children
   • What was the attitude and conduct of the parties concerning their children?

You should also note that similarly to the Divorce Act there does not seem to be a limitation period imposed on partners/spouses regarding when they make bring an application. All that is required is that the definitions in s. 1(1) and s. 29 be met and that the applicants prove entitlement.

With regards to conduct, s.33(10) states that it is generally not considered unless the conduct is so unconscionable that it constitutes an obvious and gross repudiation of the relationship. In 1999 the Ontario Superior Court of Justice provided the test that the courts must use when determining whether this section of the Act applies.

1. The conduct must be exceptionally bad.
2. The conduct must be such as could reasonably be expected to destroy the marriage.
3. The conduct must have persisted in the fact of innocence and virtual blamelessness on the part of the other spouse.
4. The commission of a so-called matrimonial offence is not sufficient by any means.
5. The party raising the issue of relevant conduct should be prepared to undertake that there is a bona fide belief that the test can be satisfied while acknowledging the risks of punitive costs if the court finds on the whole that the issue is frivolous.
6. The pleadings or subsequent written particulars should set out a summary of the conduct relied on to meet the test so that the courts can make a preliminary ruling based on the likelihood of the test’s being met.

Much like child support an application may be brought by the dependent, his or her parent or an agency that is providing social assistance to the partner/spouse.

Bases for Entitlement

Regardless of who brings the application, the courts must ensure that the purposes of an order for spousal support (listed in s. 33(8)) are met. The bases for entitlement also apply and so orders for spousal support under this Act may be compensatory, contractual or non-compensatory given the facts of each case.

These bases for entitlement were also discussed in a 2002 Ontario Court of Appeal decision. The court, in this case, stated that compensatory support is intended to compensate a spouse upon the breakdown of a marriage for contributions made to the marriage, such as sacrifices made for a spouse’s career and loss of economic opportunity sustained as a consequence of raising children.

Furthermore, where a spouse has the capacity to be self-sufficient but the spouse’s ability to enjoy the same standard of living as during the marriage has been negatively impacted as a result of the marriage breakdown, compensatory support helps to ensure that the economic impact of this breakdown is equitably shared. The court then articulated that non-compensatory support arises where there is an economic dependency that may be due to a variety of factors such as age, illness or disability and these factors need not necessarily be connected to the marriage.

(8) An order for the support of a spouse should, (a) 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).

Determining Amount and Duration of Support

The next step for the courts is to determine the amount and duration of support that is to be awarded. The Family Law Act offers a very lengthy list of factors that the courts will consider when making a determination regarding spousal support.

(9) In determining the amount and duration, if any, of support for a spouse or parent in relation to need, the court shall consider all the circumstances of the parties, including, (a) the dependant’s and respondent’s current assets and means; (b) the assets and means that the dependant and respondent are likely to have in the future; (c) the dependant’s capacity to contribute to his or her own support; (d) the respondent’s capacity to provide support; (e) the dependant’s and respondent’s age and physical and mental health; (f) the dependant’s needs, in determining which the court shall have regard to the accustomed standard of living while the parties resided together; (g) the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures; (h) any legal obligation of the respondent or dependant to provide support for another person; (i) the desirability of the dependant or respondent remaining at home to care for a child; (j) a contribution by the dependant to the realization of the respondent’s career potential; (k) Repealed: 1997, c. 20, s. 3 (3). (l) if the dependant is a spouse, (i) the length of time the dependant and respondent cohabited, (ii) the effect on the spouse’s earning capacity of the responsibilities assumed during cohabitation, (iii) whether the spouse has undertaken the care of a child who is of the age of eighteen years or over and unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents, (iv) whether the spouse has undertaken to assist in the continuation of a program of education for a child eighteen years of age or over who is unable for that reason to withdraw from the charge of his or her parents, (v) any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse were devoting the time spent in performing that service in remunerative employment and were contributing the earnings to the family’s support, (v.1) Repealed: 2005, c. 5, s. 27 (12). (vi) the effect on the spouse’s earnings and career development of the responsibility of caring for a child; and (m) any other legal right of the dependant to support, othedr than out of public money.

Interim or Final Orders

Once the courts consider these factors and decide how much support to award and for how long they have the power under s. 34(1) to make an interim or final order:

1. requiring that an amount be paid periodically, whether annually or otherwise and whether for an indefinite or limited period, or until the happening of a specified event;
2. requiring that a lump sum be paid or held in trust;
3. requiring that property be transferred to or in trust for or vested in the dependant, whether absolutely, for life or for a term of years;
4. respecting any matter authorized to be ordered under clause 24 (1) (a), (b), (c), (d) or (e) (matrimonial home);
5. requiring that some or all of the money payable under the order be paid into court or to another appropriate person or agency for the dependant’s benefit;
6. requiring that support be paid in respect of any period before the date of the order;
7. requiring payment to an agency referred to in subsection 33 (3) of an amount in reimbursement for a benefit or assistance referred to in that subsection, including a benefit or assistance provided before the date of the order;
8. requiring payment of expenses in respect of a child’s prenatal care and birth;
9. requiring that a spouse who has a policy of life insurance as defined under the Insurance Act designate the other spouse or a child as the beneficiary irrevocably;
10. requiring that a spouse who has an interest in a pension plan or other benefit plan designate the other spouse or a child as beneficiary under the plan and not change that designation; and
11. requiring the securing of payment under the order, by a charge on property or otherwise.

If an order is made under s. 34(1) and the paying partner/spouse dies before fulfilling his or her obligation then s. 34(4) binds the estate unless the order expressly provides otherwise.

The court may also index orders made pursuant to s. 34(1)(a) according to s. 34(5). This means that periodic payments may be increased annually to account for inflation resulting in an increased cost of living. The Ontario Court of Appeal explained the purpose of indexation in a 1990 decision:

“It seems to me the purpose of indexation is twofold. First, indexation will insulate the payee from the erosion of her support entitlement by inflation. It results in the continuation of support in constant dollars, in this case 1988 dollars. Second, as noted by La Forest J. in Richardson, indexation avoids additional variation applications.”

Review orders, which were discussed above, are another alternative that may be considered in lieu of those listed in s. 34(1).

Variation Orders

An order made pursuant to s. 33(1) may be modified, varied, suspended, or discharged according to s. 37(2) of the Act if the court is satisfied that there has been a “material change in the circumstances” of the dependant. Applications may be brought by:

1. a dependant or respondent named in the order;
2. a parent of a dependant referred to in clause (a);
3. the personal representative of a respondent referred to in clause (a); or
4. an agency referred to in subsection 33 (3).

The Supreme Court of Canada interpreted the expression “material change in circumstances” in a 1994 decision. The court stated that “In deciding whether the conditions for variation exist, it is common ground that the change must be a material change of circumstances. This means a change, such that, if known at the time, would likely have resulted in the order of a different amount (of support). If the matter which is relied on as constituting a change was known at the relevant time, it cannot be relied on as the basis for variation.”

Therefore, a material change in circumstances may be (but is not limited to):

• where the recipient spouse receives an inheritance and the paying spouse experiences a drastic decline in income resulting in the recipient earning more than paying spouse, or
• where the financial situation of the recipient spouse deteriorates significantly and his or her ill health interferes with the ability to work.
• where an economic slowdown occurs (limiting the recipient spouse’s ability to find a job) even after academic credentials are achieved.

If you would like to vary a pre-existing order then you should be aware of the limitation imposed by subsection (3) which states that:

(3) No application for variation shall be made within six months after the making of the order for support or the disposition of another application for variation in respect of the same order, except by leave of the court.

Priority is given to child support under this Act similarly to the Divorce Act and under s. 47 the court has the power to direct that an application for support stand over until an application for custody has been determined.

Lastly, a divorce proceeding commenced under the Divorce Act has the effect of staying any application for support, brought under this Act, that has not been adjudicated unless the court orders otherwise. See s. 36(1). Or,

Arrears may be included in order (2) The court that deals with a divorce proceeding under the Divorce Act (Canada) may determine the amount of arrears owing under an order for support made under this Part and make an order respecting that amount at the same time as it makes an order under the Divorce Act (Canada).
Idem (3) If a marriage is terminated by divorce or judgment of nullity and the question of support is not adjudicated in the divorce or nullity proceedings, an order for support made under this Part continues in force according to its terms.