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Difference between revisions of "Basic Principles of Spousal Support"
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Basic Principles of Spousal Support (view source)
Revision as of 21:44, 24 July 2017
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#a spouse is in financial need after separation and the other spouse has the ability and disposable income to meet that need (needs-based entitlement). Need, in this context, is not limited to the basic necessities, but can mean being unable to maintain the prior married standard of living without assistance. | #a spouse is in financial need after separation and the other spouse has the ability and disposable income to meet that need (needs-based entitlement). Need, in this context, is not limited to the basic necessities, but can mean being unable to maintain the prior married standard of living without assistance. | ||
A person who is claiming spousal support in court will generally wind up making | A person who is claiming spousal support in court will generally wind up making their application based on one of these grounds. In determining whether the ground has been proven, the court will look at the factors and requirements set out in the relevant legislation. | ||
In BC, the amount and duration of support are largely determined with reference to [[The Spousal Support Advisory Guidelines]]. | In BC, the amount and duration of support are largely determined with reference to [[The Spousal Support Advisory Guidelines]]. | ||
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If the claim is being made under the provincial ''[[Family Law Act]]'', spousal support is available for married and unmarried spouses. For unmarried spouses, spousal support may be payable, providing that: | If the claim is being made under the provincial ''[[Family Law Act]]'', spousal support is available for married and unmarried spouses. For unmarried spouses, spousal support may be payable, providing that: | ||
#the parties lived in a | #the parties lived in a ''marriage-like relationship'' for at least two years, or | ||
#the parties lived in a marriage-like relationship for less than two years and have a child together. | #the parties lived in a marriage-like relationship for less than two years and have a child together. | ||
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===June and Ward Cleaver: An explanation of spousal support=== | ===June and Ward Cleaver: An explanation of spousal support=== | ||
The point of spousal support is to provide assistance to a spouse who is financially dependent on the other spouse, or to a spouse who has been financially disadvantaged as a result of the relationship. Let's use ''Leave it to Beaver'' as an example. | The point of spousal support is to provide assistance to a spouse who is financially dependent on the other spouse, or to a spouse who has been financially disadvantaged as a result of the relationship. Let's use the classic TV show, ''Leave it to Beaver'' as an example. | ||
<blockquote>June and Ward are married and have a very traditional relationship. Ward works in an office downtown and June stays at home caring for Wally and the Beaver.</blockquote> | <blockquote>June and Ward are married and have a very traditional relationship. Ward works in an office downtown and June stays at home caring for Wally and the Beaver.</blockquote> | ||
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===Spousal support and the division of property=== | ===Spousal support and the division of property=== | ||
The issues of spousal support and the division of the family property are somewhat intertwined. Before the Family Law Act, the court had to turn its mind to the question of spousal support after the family property, if any, had been divided between the parties. In other words, the division of property might have been adjusted in such a way as to have a direct effect on the support recipient’s need for support. There may be no need, or the amount of support required may be simply a | The issues of spousal support and the division of the family property are somewhat intertwined. Before the ''Family Law Act'', the court had to turn its mind to the question of spousal support after the family property, if any, had been divided between the parties. In other words, the division of property might have been adjusted in such a way as to have a direct effect on the support recipient’s need for support. There may be no need, or the amount of support required may be simply a top up to the order for property division for the objects of spousal support to be met. | ||
Now, the order is reversed. The court considers spousal support first and if, say, the paying spouse did not have the means to pay proper support, the court may adjust property division to redress the balance. | Now, the order is reversed. The court considers spousal support first and if, say, the paying spouse did not have the means to pay proper support, the court may adjust property division to redress the balance. | ||
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===Spousal support, fault and misconduct=== | ===Spousal support, fault and misconduct=== | ||
Divorce in Canada has been | Divorce in Canada has been ''no-fault'' since the ''[[Divorce Act]]'' was updated in 1968, and the ''Family Relations Act'' followed suit when it was introduced in 1972. | ||
A | A no-fault system means that the conduct of the spouses during their relationship and the reasons why their relationship has ended have nothing to do with whether spousal support is payable, how the children wind up being cared for, or how property and debt are divided. Whether someone was abusive or a cheater, for example, is not relevant to the court's consideration of these issues. In fact, s. 15.2(5) of the ''[[Divorce Act]]'' says: | ||
<blockquote><tt>In making an order [for spousal support] the court shall not take into consideration any misconduct of a spouse in relation to the marriage.</tt></blockquote> | <blockquote><tt>In making an order [for spousal support] the court shall not take into consideration any misconduct of a spouse in relation to the marriage.</tt></blockquote> | ||
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<blockquote><blockquote><tt>(b) affects the ability to provide spousal support.</tt></blockquote></blockquote> | <blockquote><blockquote><tt>(b) affects the ability to provide spousal support.</tt></blockquote></blockquote> | ||
In other words, under the ''Family Law Act'', the court cannot consider misconduct generally (the same as under the ''Divorce Act''), but the court can look at the effects of the parties' behaviour on whether the recipient is doing the things that need to be done to become economically self-sufficient or whether the payor is being undermined in | In other words, under the ''Family Law Act'', the court cannot consider misconduct generally (the same as under the ''Divorce Act''), but the court can look at the effects of the parties' behaviour on whether the recipient is doing the things that need to be done to become economically self-sufficient or whether the payor is being undermined in their ability to pay support. | ||
===Securing a spousal support obligation=== | ===Securing a spousal support obligation=== | ||
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Under s. 170 of the ''[[Family Law Act]]'', the court may make a number of additional orders when it is making an order for spousal support that can help to ensure that spousal support continues to be paid, including after the death of the payor. The court may: | Under s. 170 of the ''[[Family Law Act]]'', the court may make a number of additional orders when it is making an order for spousal support that can help to ensure that spousal support continues to be paid, including after the death of the payor. The court may: | ||
*order that a charge be registered against property, | |||
*require a payor with life insurance to maintain that policy and specify that a spouse will be the beneficiary or the policy, or | |||
*order that spousal support continue to be paid after the payor's death and be paid from their estate. | |||
Before the court makes an order that requires spousal support to be paid from the payor's estate, under s. 171(1), the court must consider: | Before the court makes an order that requires spousal support to be paid from the payor's estate, under s. 171(1), the court must consider: | ||
*whether the recipient's need for support will survive the payor's death, | |||
*whether the payor's estate is sufficient to meet the recipient's needs, taking into <span class="noglossary">account</span> the interests of the people who stand to inherit from the payor's estate and the creditors entitled to be paid from the payor's estate, | |||
*whether any other means exist to meet the recipient's needs. | |||
===Spousal support when the payor dies=== | ===Spousal support when the payor dies=== | ||
When a payor dies, the recipient can apply to court for an order under s. 171(3)(b) of the ''[[Family Law Act]]'' that the payor's support obligation will continue and be paid from | When a payor dies, the recipient can apply to court for an order under s. 171(3)(b) of the ''[[Family Law Act]]'' that the payor's support obligation will continue and be paid from their estate. | ||
When a recipient applies to continue a support obligation or if a support order says that the obligation will continue past the payor's death, the payor's ''personal representative'', the person managing the payor's estate and will, has the right to defend the recipient's application or to vary or terminate a continuing obligation. | When a recipient applies to continue a support obligation or if a support order says that the obligation will continue past the payor's death, the payor's ''personal representative'', the person managing the payor's estate and will, has the right to defend the recipient's application or to vary or terminate a continuing obligation. | ||
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==The objectives and factors of spousal support== | ==The objectives and factors of spousal support== | ||
Under s. 160 of the ''[[Family Law Act]]'', when a spouse applies for spousal support, the court must determine whether | Under s. 160 of the ''[[Family Law Act]]'', when a spouse applies for spousal support, the court must determine whether they are entitled to support by considering the ''objectives'' set out in s. 161. If the court finds that they are entitled to spousal support, the court must then determine how much support should be paid and for how long by considering the ''factors'' set out in s. 162. | ||
Section 15.2(6) of the ''[[Divorce Act]]'' and s. 161 of the ''[[Family Law Act]]'' set out the objectives for a spousal support order: | Section 15.2(6) of the ''[[Divorce Act]]'' and s. 161 of the ''[[Family Law Act]]'' set out the objectives for a spousal support order: | ||
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The first three objectives are fairly straightforward and are self-explanatory. The last one deserves some comment. | The first three objectives are fairly straightforward and are self-explanatory. The last one deserves some comment. | ||
The effect of s. 15.2(6)(d) and s. 161(d) is to impose almost an obligation on a recipient to make | The effect of s. 15.2(6)(d) and s. 161(d) is to impose almost an obligation on a recipient to make their best efforts to become self-sufficient at some point following separation. A spousal relationship is not intended to be a lifelong meal ticket; at some point, a dependant spouse must usually become independent. | ||
These sections of the ''[[Divorce Act]]'' and the ''[[Family Law Act]]'' allow the court to set a date on which spousal support payments will end, in the expectation that by the termination date the recipient will have taken whatever steps are necessary to retrain and find a job which allows | These sections of the ''[[Divorce Act]]'' and the ''[[Family Law Act]]'' allow the court to set a date on which spousal support payments will end, in the expectation that by the termination date the recipient will have taken whatever steps are necessary to retrain and find a job which allows them to meet their daily needs. | ||
While termination dates are often subject to change, unless the recipient is of an advanced age, the relationship was extraordinarily long, or the recipient has a serious medical condition or some other factor that prevents | While termination dates are often subject to change, unless the recipient is of an advanced age, the relationship was extraordinarily long, or the recipient has a serious medical condition or some other factor that prevents them from becoming independent, there will likely be an end date to support payments. | ||
Section 15.2(4) of the ''[[Divorce Act]]'' and s. 162 of the ''[[Family Law Act]]'' set out the factors for a spousal support order | Section 15.2(4) of the ''[[Divorce Act]]'' and s. 162 of the ''[[Family Law Act]]'' set out the factors for a spousal support order | ||
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==Calculating spousal support== | ==Calculating spousal support== | ||
Once it is decided that a person is entitled to spousal support, the amount of spousal support has to be calculated. It is difficult to predict exactly how much spousal support will be paid in any given case. Many different factors can influence the amount spousal support. However, in British Columbia the Spousal Support Advisory Guidelines are frequently used by the courts to determine the amount of spousal support and so the Guidelines are a good starting point. | Once it is decided that a person is entitled to spousal support, the amount of spousal support has to be calculated. It is difficult to predict exactly how much spousal support will be paid in any given case. Many different factors can influence the amount spousal support. However, in British Columbia the [[Spousal Support Advisory Guidelines]] are frequently used by the courts to determine the amount of spousal support and so the Guidelines are a good starting point. | ||
You can visit DIVORCEmate’s website for their free spousal support calculator, [http://mysupportcalculator.ca mysupportcalculator.ca]. This calculator is very good for simple situations, but if there is anything complicated about your circumstances you may want to meet with a lawyer who has bought DIVORCEmate’s expensive commercial software. The lawyer should be able to give you some fairly fine-tuned numbers. This chapter’s section on the [[Spousal Support Advisory Guidelines]] discusses the Advisory Guidelines formulas in a lot more detail. | You can visit DIVORCEmate’s website for their free spousal support calculator, [http://mysupportcalculator.ca mysupportcalculator.ca]. This calculator is very good for simple situations, but if there is anything complicated about your circumstances you may want to meet with a lawyer who has bought DIVORCEmate’s expensive commercial software. The lawyer should be able to give you some fairly fine-tuned numbers. This chapter’s section on the [[Spousal Support Advisory Guidelines]] discusses the Advisory Guidelines formulas in a lot more detail. | ||
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When a spousal support calculation is done by the Spousal Support Advisory Guidelines, the calculation sets out three amounts of possible spousal support: a low amount, a mid amount and a high amount ([http://mysupportcalculator.ca/ mysupportcalculator.ca] only provides the high and low amounts, not the mid amount of the range). There can be hundreds of dollars difference between the low and high amounts of spousal support. The expenses of the parties that are set out in their financial statements can help decide whether spousal support should be at the low amount, the mid amount, the high amount or even outside of the amounts suggested by the Spousal Support Advisory Guidelines entirely. | When a spousal support calculation is done by the Spousal Support Advisory Guidelines, the calculation sets out three amounts of possible spousal support: a low amount, a mid amount and a high amount ([http://mysupportcalculator.ca/ mysupportcalculator.ca] only provides the high and low amounts, not the mid amount of the range). There can be hundreds of dollars difference between the low and high amounts of spousal support. The expenses of the parties that are set out in their financial statements can help decide whether spousal support should be at the low amount, the mid amount, the high amount or even outside of the amounts suggested by the Spousal Support Advisory Guidelines entirely. | ||
Ideally, a spousal support payment will leave both parties with enough | Ideally, a spousal support payment will leave both parties (not just the party who earns more money) with enough to look after their living expenses. The court will not bankrupt a payor in order to meet the dependent spouse’s needs. In many cases, this mean that both parties must adjust their standard of living to be able to live within the pool of income available to them. The parties’ expenses on their financial statement can help show how much money each party needs to meet their living expenses and how much money the payor has left over to pay spousal support after their | ||
reasonable monthly living expenses for things like rent, utilities, groceries and so forth are met. | |||
==Orders and agreements on spousal support== | ==Orders and agreements on spousal support== | ||
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''Interim orders'' are temporary orders made once a court proceeding has started. Interim orders are not meant to be permanent. They last until another interim order is made or the proceeding wraps up with a trial or a settlement. Likewise, ''interim agreements'' are agreements made when settlement discussions have started, and they are meant to last only until a final agreement is negotiated. | ''Interim orders'' are temporary orders made once a court proceeding has started. Interim orders are not meant to be permanent. They last until another interim order is made or the proceeding wraps up with a trial or a settlement. Likewise, ''interim agreements'' are agreements made when settlement discussions have started, and they are meant to last only until a final agreement is negotiated. | ||
The court will think about the same things when it hears an application for an interim spousal support order as it does at the hearing for a final order. At least, that's the general rule. In reality, however, the court usually takes a pretty rough and ready approach to interim applications based on something called the ''means and needs'' test. | The court will think about the same things when it hears an application for an interim spousal support order as it does at the hearing for a final order. At least, that's the general rule. In reality, however, the court usually takes a pretty rough and ready approach to interim applications based on something called the ''means and needs'' test. This test asks: | ||
*Does the person making the application, the ''applicant'', have a need for support? | *Does the person making the application, the ''applicant'', have a need for support? | ||
*Does the other person, the ''respondent'', have the means to pay it? | *Does the other person, the ''respondent'', have the means to pay it? | ||
The court will not usually attempt to | The court will not usually attempt to decide whether the applicant's need is related to the relationship or its breakdown in making an interim order for spousal support. In a case called ''[http://canlii.ca/t/1mtw3 L.C.M. v. M.A.C.M.]'', 2005 BCSC 1786 (a 2005 decision of our Supreme Court), the judge said that interim spousal support should only be awarded where an obvious case for entitlement is made out. | ||
Spousal support will often be awarded on an interim basis where: | Spousal support will often be awarded on an interim basis where: | ||
*there are young children who need a stay-at-home caregiver, | |||
*the applicant is unemployed at the time of the application and hasn't worked outside the home for a number of years, | |||
*the applicant is unemployed and faces barriers to employment, such as a lack of training or poor language skills, or | |||
*the applicant is employed but is unable to pay the household bills without help. | |||
Of course, ''need'' alone isn't enough, and the person against whom the application is brought must have the ability to actually ''pay'' support. Whether the payor has the means to pay support is usually figured out by looking at the payor's monthly income, less any child support obligations, less | Of course, ''need'' alone isn't enough, and the person against whom the application is brought must have the ability to actually ''pay'' support. Whether the payor has the means to pay support is usually figured out by looking at the payor's monthly income, less any child support obligations, less their reasonable monthly expenses. If there is money left over, (''disposable income''), some or all of that money is available to be paid as spousal support. | ||
Depending on the respondent's ability to pay, the amount of spousal support awarded may be enough to equalize the parties' incomes and, sometimes | Depending on the respondent's ability to pay, the amount of spousal support awarded may be enough to equalize the parties' incomes and, sometimes enough to help the applicant enjoy more or less the same standard of living that they enjoyed before the parties separated. | ||
===Final orders and agreements: periodic payments=== | ===Final orders and agreements: periodic payments=== | ||
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Indefinite orders for spousal support are often made where one or more of the following circumstances exist: | Indefinite orders for spousal support are often made where one or more of the following circumstances exist: | ||
*the parties' relationship was lengthy, | |||
*the recipient is unable to re-enter the work force because of physical or mental health issues, | |||
*the recipient is elderly and unable or likely unable to re-enter the workforce, | |||
*the recipient's child care or other obligations make it impossible for him or to re-enter the workforce, or | |||
*the consequences of the breakdown of the relationship, including mental health issues such as depression, have left the recipient unable to work. | |||
An indefinite order or agreement for spousal support can also set out the conditions for the termination of that obligation. The most typical of these conditions are that: | An indefinite order or agreement for spousal support can also set out the conditions for the termination of that obligation. The most typical of these conditions are that: | ||
*if the recipient remarries, | |||
*if the recipient lives with another person in a marriage-like relationship for longer than a certain amount of time, | |||
*if the recipient obtains employment and earns more than a specified amount, | |||
*if the payor retires, or | |||
*if the recipient or the payor dies. | |||
====Reviewable orders and agreements==== | ====Reviewable orders and agreements==== | ||
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A reviewable order or agreement for spousal support is one that says that spousal support must be paid indefinitely but that the payor's obligation to pay support or the recipient's entitlement to receive it will be reviewed at a later date, called a ''review date''. A review date may be a particular day, usually not sooner than two years after the date of the agreement or order, or it may be triggered by a particular event such as: | A reviewable order or agreement for spousal support is one that says that spousal support must be paid indefinitely but that the payor's obligation to pay support or the recipient's entitlement to receive it will be reviewed at a later date, called a ''review date''. A review date may be a particular day, usually not sooner than two years after the date of the agreement or order, or it may be triggered by a particular event such as: | ||
*the children leaving home, | |||
*the recipient recovering from an illness, | |||
*the recipient becoming employed or finishing a course of training or education, | |||
*the recipient or the payor reaching a certain age or retiring, | |||
*the recipient or the payor beginning to receive pension benefits, | |||
*the sale of a property, or | |||
*the recipient entering into a new spousal relationship. | |||
When the review date arrives, the obligation to pay spousal support does not automatically expire unless the order or agreement expressly says so. The obligation usually continues until the review finally takes place, whether the review is started by the recipient or the payor. | When the review date arrives, the obligation to pay spousal support does not automatically expire unless the order or agreement expressly says so. The obligation usually continues until the review finally takes place, whether the review is started by the recipient or the payor. | ||
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Definite term orders and agreements for spousal support are often made where one or more of the following conditions apply to a relationship: | Definite term orders and agreements for spousal support are often made where one or more of the following conditions apply to a relationship: | ||
*the recipient of support is in a new relationship and the new person's income is expected to contribute to the recipient's needs, | |||
*the recipient has relevant job training or skills at the time that the relationship breaks down and is expected to return to work in short order, | |||
*the recipient had a successful career before or during the relationship and is expected to return to work in short order, | |||
*the recipient merely requires some time to adjust to their new living circumstances and will become self-sufficient relatively quickly, or | |||
*the recipient is ill or disabled at the time of the making of the order or agreement but is expected to recover and re-enter the work force. | |||
The length of time for which support must be paid usually reflects one or more of the following factors: | The length of time for which support must be paid usually reflects one or more of the following factors: | ||
*the length of the parties' relationship, | |||
*the extent and nature of the parties' employment during their relationship, | |||
*the time the court estimates it will take the recipient to complete job training, if unemployed, | |||
*the amount of the recipient's income, if employed, | |||
*the payor's retirement date, | |||
*the recipient's anticipated length of recovery from an illness, or | |||
*the age at which the children will enter school or the age at which they can enter daycare. | |||
===Final orders and agreements: lump-sum payments=== | ===Final orders and agreements: lump-sum payments=== | ||
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The court may be prepared to make an order for a lump sum, either alone or in addition to a periodic support order, where: | The court may be prepared to make an order for a lump sum, either alone or in addition to a periodic support order, where: | ||
*the payor has a history of failing to make periodic support payments, | |||
*the payor has been dishonest or deceitful during the trial, particularly with respect to the extent of their finances, | |||
*there is so much anger and animosity between the parties that the payor is unlikely to comply with an order for periodic payments, | |||
*the money is necessary to provide a home for the recipient, | |||
*the money is necessary to give the recipient financial security that cannot be had by periodic payments, | |||
*the payor is financially well-off and can afford to make the payment, | |||
*the payor is able to pay a lump sum and the likelihood of the payor being able to make future periodic payments of support is low, | |||
*the money will promote the recipient's self-sufficiency, or | |||
*periodic payments will not encourage the recipient to become self-sufficient. | |||
Lump-sum awards are available on interim applications, but such awards are unusual. A lump-sum payment may be ordered if it is clear that: | |||
*the payment will provide immediate relief for the recipient | |||
*ongoing monthly payments will not be necessary and, | |||
*the payor has the ability to make the payment. | |||
<!---HIDDEN | <!---HIDDEN | ||
==Further Reading in this Chapter== | ==Further Reading in this Chapter== | ||