Am I Entitled to Spousal Support?

As a divorced or separated spouse in Ontario, you may be entitled to spousal support depending on your particular financial situation and the circumstances of your relationship. There are two pieces of legislation in Ontario that govern the concept of spousal support. The Divorce Act acts as the relevant legislation for spousal support pertaining to legally married couples about to obtain or who have already been granted a divorce. Alternatively, the Family Law Act applies to couples who have been legally married, but are opting for separation rather than divorce, and common law couples who have cohabited for three years and/or have children. However, irrespective of the applicable legislation in your case, it must be emphasized that entitlement to spousal support is not automatically assumed based solely on satisfying the definition of “spouse”.

The present article will briefly outline the legal principles that underpin spousal support and its related issue of entitlement, with an examination of relevant case law.

Guiding Principles for Entitlement

Entitlement to support is an inquiry that is made prior to looking at quantum and duration (an area that is not the subject of this paper).  Quantum and duration of support is determined by the Spousal Support Advisor Guidelines and in day to day practice, is largely arrived at with the help of support calculating software.

Generally, when looking at spousal support, courts are expected to consider the length of the relationship, the parties’ present financial situations, and the familial roles that were undertaken while together. The purpose of support is recognize economic advantages and disadvantages that flow from the marriage and its breakdown; to apportion between the spouses the financial consequences of caring for children; to relieve economic hardships from the breakdown of the marriage; and to promote the self-sufficiency of each spouse.

In the case of Bracklow v. Bracklow, [1999] S.C.J. No. 14, the Supreme Court of Canada used these overarching principles to establish three basis for entitlement to support: contractual, compensatory, or non-compensatory.

1. With a contractual basis for support, a court can determine entitlement if any agreements, whether implied or express, between the parties created or negated a support obligation.

2. With compensatory basis for support, courts can determine entitlement based on the economic disadvantages that were suffered as a result of the marriage by one spouse or the significant economic enrichment of the other spouse.

3. With non-compensatory or “needs-based” basis for support, courts consider the means, needs and circumstances of a spouse that justify the support. Here a recipient can be entitled to support if they are unable to be self-sufficient because they suffered economic disadvantage from the breakdown of the relationship – e. they depended greatly on the relationship, or they enjoyed a high standard of living during the relationship and after breakup they do not.

Irrelevant Factors to Entitlement

Although many are aware of spousal support obligations, there are often misconceptions as to what factors the court deems relevant in determining entitlement to such support.

Generally, under the Divorce Act, any spousal misconduct is immaterial to the consideration of entitlement. The Family Law Act does permit the consideration of spousal misconduct, but only in very rare and extreme cases where the conduct is so unconscionable that it effectively breaks up the relationship.

In addition, the formation of a spouse’s new relationship does not automatically lead to his or her disentitlement of support. That being said, the need for support may in turn be lessened by the new partner’s financial contributions.

So What?

When going through your own proceedings, keep in mind that in determining entitlement to support, a judge must consider all three bases of support with the result that any or all may factor into the final support order. Ultimately, it comes down to the fact that there is no simple “hard and fast rule” to be applied for claims for support. The courts approach the concept of spousal support with a great deal of discretion in a fact-specific manner.

In order to ensure that your rights are protected and to find out about your potential obligations, it is best if you contact a family lawyer.

The information contained herein is not intended to provide legal advice.