Spousal Support Lawyers in Calgary deal with issues of entitlement, duration and the amount of spousal support. Our calgary clients routinely ask us: How long do I have to pay calgary spousal support for? The Divorce Act and the Spousal Support advisory guideline provide guidance in cases involving both the WITH and WITHOUT Child Support Formulas.
MacLean Law’s Spousal Support Lawyers in Calgary note a recent case where a husband who was unhappy with a short term spousal support award to his injured and unemployed spouse had his appeal dismissed. The result the husband obtained was in fact a relatively good result for him given the young ages of the two children. The duration rules for the With child spousal support formula dwarf the length of payment calculations those of the Without formula in short term relationships.
Lorne N. MacLean, QC founder of MacLean Law’s Spousal Support Lawyers in Calgary explains that young children arising from a short relationship need focused care moving forward and this means the economic disadvantage to the primary caregiver lies in the future. In longer marriages the economic disadvantage likely occurred in the past with lost opportunities and sacrifices being made by the homemaker. So how can the court decide what a fair amount and term of spousal support should be?
Spousal Support Lawyers in Calgary 403-444-5503
In Shigehiro v Shigehiro, 2017 ABCA 392 the court explained how spousal support entitlement works:
After a short 3.75 year relationship where two young children were born, the trial judge’s short term support award was unsuccessfully appealed as follows:
[9] Following trial, the summary trial judge determined that the respondent was entitled to spousal support in the amount of $2,000 per month, for a total period of 36 months, but found that 6 months of that support had already been paid. The trial judge also ordered that there would be no review of spousal support after expiry of the ordered payments in December of 2018.
[22] Moge sets out a framework for analyzing both entitlement to and quantum of spousal support. The general categories are commonly referred to as compensatory, non-compensatory and contractual. Shields v Shields, 2008 ABCA 213 (CanLII) at paras 18-21, 432 AR 266 provides a succinct review of the applicable analytical framework:
The statutory provisions found in the Divorce Act are the starting point in determining spousal support. It is useful to review them:
15.2 (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
(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.
(5) In making an order under subsection (1) or an interim order under subsection (2), the court shall not take into consideration any misconduct of a spouse in relation to the marriage.
(6) An order made under subsection (1) or an interim order made 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.
Spousal Support Lawyers in Calgary Moge Principles Explained
In Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 SCR 813 at para. 77, the Supreme Court of Canada recognized the importance of the presiding judge’s discretion and the difficulty of setting down principles that would guide every case:
The four objectives set out in the Act can be viewed as an attempt to achieve an equitable sharing of the economic consequences of marriage or marriage breakdown. At the end of the day however, courts have an overriding discretion and the exercise of such discretion will depend on the particular facts of each case, having regard to the factors and objectives designated in the Act.
In Moge, the court made three general observations: the distinction between “traditional” and “modern” marriages is not very useful; the support provisions of the Divorce Act are intended to deal with the economic consequences for both parties of the marriage or its breakdown; and what the Divorce Act requires is a fair and equitable distribution of resources to alleviate the economic consequences of marriage or marriage breakdown for both spouses.
The crucial issue is to find the right balance and then exercise discretion in making an award. As McLachlin J. (as she then was) said in Moge at para. 107:
. . . the judge’s task under . . . the statute is to make an order which provides compensation for marital contributions and sacrifices, which takes into account financial consequences of looking after children of the marriage, which relieves against need induced by the separation, and, to the extent it may be “practicable,” promotes the economic self-sufficiency of each spouse. Neither a “compensation model” nor a “self-sufficiency model” captures the full content of the section, though both may be relevant to the judge’s decision. The judge must base her decision on a number of factors: compensation, child care, post-separation need, and the goal, insofar as practicable, of promoting economic self-sufficiency.
Length Of Marriage Critical Explain Spousal Support Lawyers in Calgary
[23] As noted in Moge at 870, the longer a marriage endures the greater the presumptive claim to equal standards of living upon its dissolution.
[24] The judgment of the trial court was rendered on July 8, 2016; the parties’ children were then 2 and 4 years of age respectively, and the appellant’s then 8 ½ year old child from a previous relationship was in the parties’ care as part of the appellant’s shared parenting regime involving that child. The trial judge well recognized that the provisions of the Divorce Act, cited above, applied in determining entitlement to spousal support, if any, and to quantum and duration of spousal support, if entitlement was found.
[25] The trial judge preferred the evidence of the respondent in finding that the relationship lasted from October 2011 to June 2015, a period of 3 years and 8 months. The trial judge was correct in calculating spousal support on the basis of the total length of the relationship and not on the basis of the length of the marriage: Divorce Act, s 15.2(4)(a).
[26] The trial judge found as fact that the respondent “has not worked much, if at all, during the relationship outside of the home, due to two pregnancies, two maternity leaves, and a car accident that happened just days before the wedding ceremony,” in March of 2013.
[42] Although McLachlin J specifically notes at paras 53-54, that it may be difficult “to make a case for a full obligation and expectation of mutual support in a very short marriage”, the mere fact that a marriage is of comparatively short duration does not, however, negate or extinguish the judicial discretion in an appropriate case, to grant limited duration spousal support. Multiple factors must be weighed and balanced in the exercise of judicial discretion, but such discretion nonetheless exists.
