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  • Charles Baker

When Do Spousal Support Obligations Arise Under the Divorce Act?

The support provisions of the Divorce Act deal with the economic consequences, for both spouses, of the marriage or its breakdown. What the Act requires is a fair and equitable distribution of resources to address these consequences. The doctrine of equitable sharing of the economic consequences of the marriage or its breakdown, which the Act promotes, recognizes and accounts for the economic disadvantages or advantages flowing from the role adopted by the spouses in the marriage. While the objectives of certainty, finality, and the autonomy to settle one’s own affairs are enshrined in the Act, there are also specific factors and objectives set out in sections 15.2(4) and (6) regarding spousal support:

Factors

(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.

Objectives of 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)      a portion 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)      insofar as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

Self-sufficiency is only one of the objectives enumerated in the relevant sections of the Act. The Supreme Court of Canada has determined that “self-sufficiency” should not be given priority in determining the right to, quantum and duration of spousal support.  Instead, all relevant factors must be considered in determining the quantum and duration of support. Spouses still have an obligation after the marriage breakdown to contribute to his and her own support in a manner commensurate with his or her respective abilities.  The ultimate goal of spousal support, however, is to alleviate the disadvantaged spouse’s economic losses as fully as possible after accounting for all of the circumstances of the parties.


The Supreme Court of Canada has also provided a general framework within which the various factors relevant to entitlement to spousal support should be analyzed by establishing three general models for entitlement: compensatory grounds, non-compensatory “needs based” grounds, and entitlement based on contractual or consensual considerations. Entitlement to spousal support must be determined in accordance with the terms of the governing legislation, but that the issue should be considered keeping in mind the three general models for entitlement.


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