Our previous blog post on spousal support dealt with how spousal support is calculated, specifically the amount of spousal support and the duration of its payment.  I also made mention to the Spousal Support Advisory Guidelines (“SSAG”) and how they influence the calculation of spousal support in Ontario.

In this post, we will be delving deeper into the different types of spousal support and how they are determined when parties separate. It will focus mostly on married spouses and on the legislation that guides how spousal support is determined. Two significant cases helped cement the two types of spousal support:

  1. The leading case on compensatory support: Moge v. Moge, 1992 CanLII 25, [1992] S.C.J. No. 107, 1992 CarswellMan 143; and
  2. The leading case on non-compensatory support: Bracklow v. Bracklow, 1999 CanLII 715, [1999] S.C.J. No. 14, 1999 CarswellBC 532.

 

The Legislation

S. 15.2 of the Divorce Act (“DA”), states the entitlement to spousal support.

S. 15.4 of the DA provides the factors to be considered:

(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.

And s. 15.6 of the DA provides the objectives of a spousal support order:

(6) An order made under subsection (1) or an interim order 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 [Emphasis added].

This is all well and good for married couples, but does this apply to common law spouses as well?  See our previous post regarding the difference between common law and married spouses for more information.

 

The Common Law Spouse

The Family Law Act (“FLA”) also has spousal support provisions.  S. 30 of the FLA provides the eligibility for spousal support while s. 33(8) provide the purpose for spousal support, s. 33(9) provides us with the factors to determine support, and finally s. 33(10) provides us with how spousal misconduct is factored in regarding its relevance.

Under the FLA, need is a determinative factor for awarding spousal support.  It also does not require proof of economic loss or disadvantage caused by the cohabitation.

 

The Case Law – Moge v. Moge – Compensatory Spousal Support

Courts recognized that divorce can have economic effects on the parties, especially against the wife.  Looking at the DA, Justice L’Hereux-Dube found that entitlement to spousal support is based on compensation.  The language of the DA as provided above indicates that a court should look at the economic disadvantages and advantages that resulted from the marriage or separation, consider economic disadvantages resulting from caring for children outside of child support, and to alleviate financial hardship resulting from the marriage.

Spouses are obligated to become self-sufficient, but this is only one factor a court will consider. Also, compensatory support is not appropriate in every case.  To determine if spousal support should fall under this category, a court will look at whether a spouse suffered financial disadvantages during the marriage while the other spouse received economic benefits.  Long term compensatory support would be appropriate in these instances where a former spouse would likely continue to suffer those economic disadvantages suffered during the marriage and its dissolution.

 

The Case Law – Bracklow v. Bracklow – Breaking down the three types of spousal support

Here, the court recognized that the DA provides for the three types of spousal support obligations:

  1. Contractual
  2. Compensatory
  3. Non-compensatory

A judge would need to consider all types, and an order may even include all three, if appropriate.  They further recognized that, although compensation and encouraging self-sufficiency were important elements to consider on the breakdown of a marriage, if compensation was not described, and if self-sufficiency is not possible, a support obligation may arise from the marriage relationship itself. As such, need alone may be enough to warrant spousal support. Previous to Bracklow, support had been denied because the applicant did not suffer any economic disadvantage due to the marriage.

Essentially, what this means is that a spouse does not have to prove they suffered an economic disadvantage during the marriage, indicating they should be compensated for that disadvantage.  Just simply showing they need assistance with monthly bill payments, etc., now that the relationship has ended could be enough.

 

No Spousal support until Equalization determined

It is important to note that spousal support has to be calculated after the parties have determined the Equalization payment as failure to do so would be an error[1] (see previous blog post for more details on equalization and how it is calculated).  Basically, if the equalization payment is sufficient to meet the recipient spouse’s needs, no spousal support should be awarded[2].

 

Summary

From this case law and the legislation, we can describe the types of spousal support as follows:

  1. Contractual
    1. What parties agree to in a contract, i.e. a separation agreement (see our previous blog post for more details on separation agreements).
  2.  Compensatory
    1. Based on an economic loss suffered by one spouse due to the roles each spouse played during the marriage so that the other spouse could receive an economic benefit;
    2. Common elements that could result in this type of spousal support include: staying at home with children on full- or part-time basis, being a secondary earner in the home, having primary care of children AFTER separation, moving for the other spouse’s career, supporting the payor’s education or training, or even working primarily in a family business.
  3. Non-Compensatory
    1. Mostly means an inability for a spouse to meet their basic needs (monthly bills, etc.), but it can also mean that a former spouse will need to be supported now that there is a decline in their standard of living from the marital standard;
    2. Common elements here that could result in this type of support are: length of the relationship, drop in standard of living after separation, and the economic hardship experienced by the former spouse

This blog is intended for legal information purposes only and is not to be construed as legal advice.

[1] Greenglass v. Greenglass, 2010 ONCA 675, [2010] O.J. No. 4409, 2010 CarswellOnt 7761, var’g 2009 CanLII 39995 (S.C.J.).

[2] Linton v. Linton, 1990 CanLII 2597, [1990] O.J. No. 2267, 1990 CarswellOnt 316 (C.A.).