Varying Calgary Alberta Spousal Support lawyers handle cases involving, increasing and decreasing the amount of spousal support and shortening or extending how long it is paid for. In this blog, Peter Graburn, Calgary senior family law associate, explains the rules for Varying Calgary Alberta Spousal Support. Peter Graburn can be reached direct at 403 444 5503.
Calgary Alberta Spousal support can often be a very contentious issue in marriage (or common-law relationship) breakdown – ex-partners sometimes do not see the need (or simply do not want) to pay spousal/partner support. In a previous article “Am I a Candidate for Calgary Spousal Support?”
Peter Graburn outlined the general principles of spousal support, being:
- Entitlement to support based on certain grounds:
- Contractual (ie. by agreement);
- Non-Compensatory (ie. based on need), and;
- Compensatory (ie. for something given up for the relationship);
- Duration (how long?);
- Quantum (How much?);
- Form (how? ie. periodic payments v. lump-sum).
But what are the legal authorities and specific factors a Court will look at to determine if someone is entitled to receive spousal support and, particularly, to vary that spousal support if circumstances change? It depends on whether the couple is getting divorced or not. In Alberta, if the couple is divorcing, you look to the federal Divorce Act. If the couple is married but not divorcing, or are determined to be in an Adult Interdependent Partnership (ie. common-law), you look to the Alberta Family Law Act.
Section 15.2 of the Divorce Act sets out very specific factors and objectives the Court will look at in determining whether a spousal support order should be granted, including:
Factors:
► the length of time the spouses cohabited;
► the functions each spouse performed during the relationship;
► any order, agreement or arrangement between the spouses for support;
Objectives:
► recognize any economic (dis)advantages to the spouses from the marriage or its breakdown;
► apportion between the spouses any financial consequences from the care of children of the marriage (over and above child support payments);
► relieve any economic hardship of the spouses arising from the breakdown of the marriage, and;
► promote the economic self-sufficiency of each spouse within a reasonable period of time.
Section 58 of the Family Law Act contains a few additional factors or considerations the Court will take into account in making a spousal support order, namely:
► any legal obligation of a spouse to provide support for any other person;
► the extent to which any other person living with the spouse contributes towards household expenses.
Aside from these general factors and objectives set out in the legislation, some specific factors the Courts will look at in determining whether to impose a spousal support Order and for how much and how long, include:
- Ages of each person;
- Income and earning capacity;
- Duty to become self-sufficient;
- Length of time out of work;
- Budgets;
- Education and training/work experience;
- Children’s ages;
- Lifestyles;
- Health;
- Parenting;
- Job security
But spousal support can sometimes be even more contentious if there has been a change in either party’s situation since the spousal support order was made; these situations can often involve a change in employment, income, health, relationship status, or retirement, etc. Furthermore, spousal support is generally intended to be a temporary, limited-time form of support until the financially-dependent spouse is back on their financial feet (ie. economically self-sufficient).
So what are the considerations to vary (ie. change) a spousal support order that no longer fits the current situation of the parties? Section 17(4.1) of the Divorce Act indicates there must be a material change in the circumstances of either party before the Court will vary a spousal support order. A material change in circumstances is a significant change from the original situation such that the Court would have likely awarded a different original order if the situation had occurred in the first place (see Klann v. Klann, 2018 BCCA 48). The Divorce Act then goes on to set out the specific objectives the Court will look at in determining whether to vary a spousal support order (being the very same objectives set out for determining the original order, ie. relief of economic hardship, economic self-sufficiency, etc.).
Calgary Spousal Support Lawyers assist their clients to understand the various factors and objectives the Court will look at in making (or varying) a spousal support order, and assist their clients to assemble the specific evidence required to successfully bring an application in this highly discretionary area of family law.
