Spousal support is not an automatic right associated with a breakdown of the marriage.
In 1999, the Supreme Court listed the three grounds necessary to establish an entitlement to spousal support (Bracklow v. Bracklow):
- To compensate a spouse for hardship or opportunities lost due to the marriage or its breakdown;
- To fulfill a contractual agreement, expressed or implied, that the parties were responsible for each other’s support; or
- On a non-compensatory basis, to assist a spouse in need where there is the capacity to pay, even in the absence of a contractual or compensatory foundation for the obligation.
In other words, a spouse seeking support must demonstrate either a compensatory basis for support, need, or a contractual obligation. The latter two are fairly self-explanatory criteria. Regarding the compensatory basis of support, in 1992, the Supreme Court held in Moge v. Moge that spouses are entitled to be compensated for contributions to the marriage, and for losses sustained as a consequence of the marriage: for example, as a result of staying out of the work force in order to raise children, or putting one’s career goals on hold in order to accommodate a spouse’s career.
This decision reflects the provisions of the Divorce Act, which states (s. 15.2(4)) that the court in considering a spousal support award shall take into consideration the condition, means, needs, and other circumstances of each spouse, including the length of time the spouses cohabited; the functions performed by each spouse in the relationship; and any order, agreement or arrangement relating to support of either spouse.
The Divorce Act further states (in s. 15.2 (6)) that the 4 objectives of a spousal support order are to:
- Recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
- 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;
- Relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
- In so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
Spousal support is not restricted to married parties. The Divorce Act governs spousal support for formerly married spouses, but the Family Law Act also includes spousal support provisions. In those provisions, the term “spouse” includes cohabiting couples who have lived together for a period of at least three years or cohabiting biological or adoptive parents (s. 29).
Whether the spouses are married or not, the court will not consider spousal misconduct when making a support award. This means that the conduct of either party has no impact on their entitlement for support. Even if adultery is the reason for the breakdown of the relationship, parties are still eligible to apply for spousal support.
The simplest way to initiate spousal support is by way of a separation agreement under the guidance of an Ontario family law lawyer. Lawyers use specialized software to calculate spousal support obligations that contemplate both current and future need.
For experienced counsel in your spousal support matter, call Feldstein Family Law Group P.C. at (905) 581-7222. We have offices in Markham, Vaughan, Mississauga, and Oakville and serve clients across the surrounding areas in Ontario, including in Aurora, Unionville, Kleinberg, Thornhill, Newmarket, Woodbridge, King City, Maple, and beyond.