Spousal Support & The Divorce Act
During your divorce proceedings or once you have been granted a valid divorce you may realize that you are in need of support in order to avoid financial difficulty. Therefore, you may bring an application for an order for spousal support under s. 15.2(1) of the Divorce Act to either the Superior Court of Justice or the unified Family Court if either or both you and your former spouse/partner live in Ontario or accept the jurisdiction of the court. See: s. 4(1)(a)-(b).
If you find that your need for support is immediate such that you cannot wait for a final order to be made before receiving the payments then you may make an application for an order for interim support under s. 15.2(2).
15.2 (1) A court of competent jurisdiction may, on application by either
or both spouses, make an order requiring a spouse to secure or pay, or
to secure and pay, such lump sum or periodic sums, or such lump sum and
periodic sums, as the court thinks reasonable for the support of the other spouse.
The orders made may be for periodic payments or lump sum payments and the court may make the order for a definite or indefinite period of time and may also impose conditions, terms or restrictions on the order. See: s. 15.2(3).
(3) The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just.
The court may also choose to impose a review order which allows it to review the support initially ordered, after a number of years, to see if it needs to be modified. This type of order allows for changes to be made without the hassle of bringing an application for variation and trying to prove that a “change in circumstances” has occurred1. The courts will usually choose to impose a review order when the recipient is out of the workforce at the time the order is made but is likely to return to it. Therefore, a review order allows support to be reduced or terminated if the recipient eventually finds a job and becomes self-sufficient.
In order to determine entitlement the courts will look at whether or not you classify as a “spouse” for the purposes of support. The definition is found in s. 2(1) and states that:
“spouse” means either of two persons who are married to each other
As was previously mentioned this definition includes same-sex couples. Moreover, s. 15 of the Act extends the definition to include former spouses as well.
It is interesting to note that s. 15.2, which regulates entitlement to and the availability of support, does not place a limitation period on spousal support claims. Therefore, it seems as though spouses/former spouses are able to bring claims for support whenever.
This is different from child support which placed numerous limitations on entitlement. Children were only entitled to support under this Act if they were under the age of majority, or over the age of majority but dependent due to an illness/disability, enrolment in a full-time education program or because of some “other cause”.
Once you have satisfied the definition of “spouse” under this Act the court will then look to various factors, listed under s. 15.2(4), to determine whether or not an order for support should be made.
(4) In making an order under subsection (1) or an interim order under subsection
(2), the court shall take into consideration the condition, means, needs
and other circumstances of each spouse, including
The courts will look at things such as: the age, health and status of both spouses. Under subsections (a) and (b) the courts will generally use the Moldowich factors in order to make a determination as to the nature and quality of the cohabitation. This is necessary because “the existence of a conjugal relationship with cohabitation at some point is a crucial underlying conceptual basis to entitlement for support. […] It is impossible to apply s. 15.2(4) without first determining whether the parties cohabited in a conjugal relationship, and if so, the quality of that relationship.”
The factors are as follows:
- Did the parties live under the same roof?
- What were the sleeping arrangements?
- Did anyone else occupy or share the available accommodation?
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?
Services: what was the conduct and habit of the parties in relation to:
- preparation of meals;
- washing and mending clothes;
- household maintenance; and
- Any other domestic services?
- 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?
- What was the attitude and conduct of the community toward each of them and as a couple?
- 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?
- What was the attitude and conduct of the parties concerning their children?
This Act expressly states that misconduct will not be taken into consideration when making a determination regarding spousal support. Therefore, a paying spouse cannot get a reduction in the amount of support he or she needs to pay because the recipient spouse was abusive or unfaithful during the marriage.
Every order made for spousal support should strive to achieve the four objectives listed in s. 15.2(6) of this Act.
(6) An order made under subsection (1) or an interim order under subsection
(2) that provides for the support of a spouse should
Therefore, an order for spousal support will try to lessen the impact that a divorce may have on a spouse/former spouse who forewent employment in order to care for the children and as a result lessened his or her ability to become self-sufficient. However, this is not the only situation in which an order for spousal support will be made.
A 1999 decision from the Supreme Court of Canada suggested that there are three bases for entitlement to spousal support:
- non-compensatory (strictly needs-based)
Compensatory entitlement is premised on the fact that it is just to compensate a spouse for his or her contributions to the marriage or for sacrifices made or hardships suffered as a result of the marriage or its breakdown.
For example, the recipient spouse took charge of the household so to allow the paying parent to advance his or her career and as a result was unable to become financially independent. Upon marriage breakdown the recipient spouse has little or no income coming in and may have foregone viable career opportunities yet still performed numerous, necessary functions during cohabitation. Therefore, he or she should be compensated for those contributions.
A 1992 decision from the Supreme Court of Canada is illustrative as the court ruled that a spouse who stayed out of the labor force for significant periods of time to look after children was entitled to support. It was seen as a form of compensation for the long term effect that the role she had assumed in the marriage had had on her earning potential.
Contractual entitlement contemplates the existence of agreements. According to this basis for entitlement, where an agreement is available it will generally be deferred to and enforced.
Lastly, non-compensatory entitlement allows a spouse to make a claim for support on the basis of need regardless of whether or not his or her need is due to the role assumed during marriage. The recipient spouse may be needy due to an illness, disability, etc. and as a result should be supported since the inability to become self-sufficient is a possibility. Here, spouses are permitted to recover for the economic disadvantages of the marriage breakdown, and not only for the disadvantages of the marriage, because a spouse who once enjoyed intra-spousal entitlements and advantages will now find himself or herself without it.
An example of this type of entitlement is where the husband was ordered to pay indefinite support to his estranged spouse who suffered from health problems which prohibited her from working yet which were not caused by the marriage or its breakdown.
Variation Order Application
If there has been a change in the circumstances of either the paying spouse or the recipient spouse then either may make an application to vary the initial order made under s. 17(1)(a) of the Act.
A change in circumstances can be anything from the paying spouse losing his or her source of income, to the recipient spouse finding a job that pays incredibly well thus eliminating the need for support. Regardless of the basis for variation a “change in circumstances” as listed under s. 17(4.1) may warrant either a reduction or an increase of spousal support.
The objectives found in s. 15.2(6) are repeated here under subsection (7) which emphasizes the importance of furthering the objectives with every support order. Moreover, this Act places a limitation on the bringing of applications for variation. This section states that when a support order has been made and is time-limited, or until a specific event occurs, a court may not make a variation order for the purposes of resuming support once the period has expired. However, you should be aware of the “first family first” principle. Essentially, this principle states that “a spouse may not avoid support obligations to his or her previous family by assuming second family obligations.” Also, a 1997 Ontario Court of Appeal decision stands for the proposition that “remarriage does not constitute a bar to continued support.” Therefore, it will not always be the case that remarriage of either the paying spouse or recipient spouse will constitute “a change in circumstances” to effect a reduction of spousal support. Lastly, conduct will not be considered when the courts are reviewing an application for variation.
Once an order is made under ss. 15.2 or 17 of the Divorce Act then according to s. 20(2)-(4) it has legal effect throughout Canada and may be registered, enforced or varied in any province.
1. However, you should be aware of the fact that imposing a review order does not necessarily mean that every time the court chooses to review it, there will be changes made.