How Is Spousal Support Decided in Canada? It’s probably the most asked question our best spousal support lawyers get asked. MacLean Law’s best Vancouver spousal support lawyers are pleased to give you the answer. Entitlement to spousal support, the amount of spousal support, particularly where the amount sits on the range of the SSAG factors and for how long support is payable, all form a complicated array of factors that lead to a final spousal support result.
Lorne MacLean KC and MacLean Law hold the record for the highest Vancouver spousal support awards with our $100,000 a month win converted to a multi- million dollar lump sum award making headlines in the world wide media. This award was the highest and longest support order in BC and was on top of our client receiving nearly $25 million of property plus $1.5 million of special costs.
Vancouver – How Is Spousal Support Decided in Canada? 1 877 602 9900
In THOMAS v SAUNCHEZ a new Ontario decision reiterates what we successfully argued in our record setting BC decision of Devathasan. If you wonder: How Is Spousal Support Decided in Canada? read the extracts below:
[19] Spousal support is not merely a consideration of needs and means. In determining the appropriate amount of spousal support, compensatory and non-compensatory considerations should be taken into account in an effort to equitably alleviate the economic consequences of the breakdown of the relationship. See: Rioux v. Rioux, 2009 ONCA 569 (CanLII), [2009] 97 O.R. (3d) 102 (OCA). Entitlement can be based on compensatory, non-compensatory or contractual grounds. See: Bracklow v. Bracklow, 1999 CanLII 715 (S.C.C.).
[20] It is critical for the court to determine all grounds for entitlement, as the basis for entitlement may have a significant impact on quantum and duration of spousal support. See: Cassidy v. McNeil, 2010 ONCA 218 (C.A.), at para. 64.
There are numerous factors and components in deciding how Vancouver spousal support entitlement, quantum and duration is decided.
How Is Spousal Support Decided in Canada?Entitlement Must Be Established 1 877 602 9900
How Is Spousal Support Decided in Canada? Why entitlement is the first step. Without it, no spousal support is paid.
[21] The Court of Appeal in Fisher v. Fisher, 2008 ONCA 11 stated that before applying the Spousal Support Advisory Guidelines (SSAG), entitlement to support must first be established.
[22] In Beneteau v. Young, 2009 CanLII 40312 (ONSC), the court described three categories of compensatory support as follows:
- non-specific compensatory support (where a spouse’s ability to achieve self-sufficiency was comprised by career/job dislocation for the family);Walsh v. Walsh, 2006 CarswellNB 582 (Q.B.);
- specific calculable disadvantage (where a spouse can point to a specific calculable overriding loss resulting from the marriage or the roles adopted in marriage)’Spurgeon v. Spurgeon (2001), 2001 CanLII 38738 (ON SCDC), 15 R.F.L. (5th) 440 (Ont. Div. Ct.);
iii. specific calculable and advantage conferred (where a spouse conferred a substantial career enhancement opportunity on the other spouse): Caratun v. Caratun (1992), 1992 CanLII 7715 (ON CA), 42 R.F.L. (3d) 113 (Ont. C.A.).
What Is Compensatory Spousal Support? 1 877 602 9900
How Is Spousal Support Decided in Canada? Contractual, Compensatory and need based spousal support are the key factors for deciding entitlement.
[23] The legal considerations for the entitlement to compensatory support were reviewed by Chappel J. in Thompson v. Thompson,2013 ONSC 5500 (CanLII), at paras. 55–58, as follows:
[55] The compensatory basis for spousal support entitlement recognizes that upon marriage breakdown, there should be an equitable distribution between the parties of the economic consequences of the marriage. The objective of a compensatory award is to provide some degree of compensation for the sacrifices and contributions which a spouse made during the marriage, for economic losses which they experienced and may continue to experience as a result of the marriage, as well as the benefits which the other spouse has received as a result of these sacrifices and contributions. A compensatory award recognizes that such sacrifices, contributions and benefits conferred often lead to interdependency between the spouses and merger of their economic lives.
[56] Compensatory support claims arise most typically in situations where one spouse has suffered economic disadvantage and contributed to the other spouse’s income earning potential as a result of assuming primary responsibility for child care and/or home management obligations. However, a compensatory claim can also be founded on other forms of contribution to the other party’s career, such as supporting the family while the other party obtained or upgraded their education, selling assets or a business for the benefit of the family unit, or assisting a party in establishing and operating a business that is the source of that party’s income.
[57] In considering whether a compensatory claim exists, the court must undertake a broad and expansive analysis of advantages and disadvantages which each party experienced throughout the relationship as a result of the marital union. In some situations, a compensatory claim may be defeated or weakened by the fact that disadvantage suffered by the claimant spouse is offset by disadvantage of a different type experienced by the other spouse.
[58] A compensatory claim for spousal support may be established even where the recipient spouse is employed and reasonably self-supporting at the time of the parties’ separation. This situation can arise where, despite that spouse’s ability to meet their own needs, their financial advancement has been impaired as a result of subordinating their career to that of the other spouse, or from adopting a less lucrative career path in order to accommodate the needs of the family.
Need is Based On The Historical Standard Of Living 1 877 602 9900
[24] In determining need, courts ought to be guided in part by the principle that the spouse receiving support is entitled to maintain the standard of living to which she was accustomed at the time cohabitation ceased. The analysis must consider the recipient’s ability to support herself, in light of her income and reasonable expenses. See: Gray v. Gray, 2014 ONCA 659.
[25] The word “need” is not limited to one’s basic needs. It can be interpreted to cover situations where a spouse suffers a significant decline in the standard of living he or she enjoyed during the relationship. See: McIntyre v. Winter, 2020 ONSC 4376; Nixon v. Lumsden, 2020 ONSC 147.
[26] On its own, a mere disparity of income that would generate an amount under the SSAG does not automatically lead to entitlement,although a disparity of income may lead to a finding that there is an economic hardship arising from the breakdown of the marriage. See: Lee v. Lee, 2014 BCCA 383; R.L. v. L.A.B., 2013 PESC 24; Berger v. Berger, 2016 ONCA 884.
[27] In practice, entitlement will generally be found in cases where there is a significant income disparity at the time of the initial application. See: Spousal Support Advisory Guidelines: The Revised User’s Guide, April 2016: Professor Carol Rogerson and Professor Rollie Thompson.
[28] The depth of need can be a strong non-compensatory factor pushing the amount of support higher in the range. See: Bastarache v. Bastarache, 2012 NBQB 75.
How Is Spousal Support Decided in Canada?Amount Plus Duration Both Matter
[38] Amount and duration are interrelated parts of the SSAG formula. See: Domirti v. Domirti, 2010 BCCA 472. Using one part of the formula without the other undermines its integrity and coherence. Extending duration beyond the formula ranges, for example, may require a corresponding adjustment of amount by means of restructuring (see SSAG Ch. 10) or a finding that the facts of the case require an exception (see SSAG Ch. 12). See: Spousal Support Advisory Guidelines: Revised User’s Guide, supra, Chapter 7).
More Disadvantage Means Higher Support For Longer Period 1 877 602 9900
[40] In Mason, the Ontario Court of Appeal cautioned against courts defaulting to the middle range of the SSAG in a spousal support determination. Each case requires a contextual analysis. It wrote in paragraph 122:
Further, in The Spousal Support Advisory Guidelines: A New and Improved User’s Guide to the Final Version, the authors note, at p. 1 of the Introduction, that one of the challenges of the SSAGs “is the problem of unsophisticated use.” The authors continue by stating:
For too many, using the Guidelines means just plugging the income figures into the software program, getting the range and choosing the mid-point. There is more to the advisory guidelines than this, and using them in this way can lead to inappropriate results.
[41] A strong compensatory claim suggests support in the higher end of the ranges for both amount and duration. See: Wharry v. Wharry, 2016 ONCA 930, paragraph 95.
Reasonable Efforts To Become Self Sufficient Required 1 877 602 9900
It is often unrealistic to expect the spouse of a high income earner will ever earn more than $50,000 a year. Repartnering also does not immediately end spousal support after long marriages but it can help reduce the duration and possibly the amount.
[45] A basic principle of spousal support law is that the recipient must make reasonable efforts to become economically self-sufficient. See: Dingle v. Dingle, 2010 ONCJ 731.
Indefinite Support Does Not mean Forever
Of course if someone loses their job, suffers an illness, or reaches retirement age the amount may be reduced or cancelled entirely. Call us if you have issues regarding termination or reduction of support. In Devathasan, we were able to maintain support for our client until the high income earning husband reached age 75 with a review to see if he could work even longer as a neurologist.
Call our top Vancouver spousal support lawyers today at 1 877 602 9900 across Canada.
