Mulligan Tam Pearson Lawyers

The objectives of ordering spousal support under the Divorce Actwhen a relationship breaks down are to:

• Recognize the economic advantage or disadvantage to a spouse during the marriage;
• Apportion the financial consequences arising from caring for any child(ren);
• Relieve economic hardship; and
• Promote self-sufficiency.

This list is similar, but not exactly the same, under the Family Relations Act.

Not necessarily. The above sets out the objectives of the Divorce Act in providing for spousal support. If the objectives can be satisfied without ordering spousal support, then it is possible that none is ordered. In other words, being married does not automatically entitled a spouse to spousal support upon a breakdown in the relationship.

Yes. Some jurisdictions use the term “alimony”. In BC, the terms “spousal support” or “spousal maintenance” are used.

Under the Family Relations Act, a spouse includes two people who have lived in a “marriage-like relationship” for at least 2 years, even if they are not married. In that scenario, spousal support obligations do arise upon a breakup.

The conduct (or misconduct) of the spouse is not a factor in determining whether and how much support is payable. It is the legislative objectives that are relevant.

Not necessarily. A court will always have the power to override an agreement depending on the circumstances under which it was originally made, and also whether the agreement complies with the objectives of the legislation. If an agreement is both fair and complies with the legislative objectives, a court would be slow to vary it.

As a starting point, the Spousal Support Advisory Guidelines (SSAGs) is a useful tool. However, unlike the Federal Child Support Guidelines, it has not been legislated and therefore is not “law”. In recent times, more and more courts are referring to it. The legislated objectives should still be referred to after the guidelines have been consulted.

The SSAGs suggest, as a starting point, that spousal support is payable for .5 to 1 year for each year of marriage. For example, a 6 year marriage with no children would result in support payable for 3-6 years. However, if the marriage is 20 years or longer, the support obligation is indefinite. Also, if the marriage has lasted 5 years or more, and the combined years in age of the support recipient and the years of marriage total 65 or more, the support is also payable on an indefinite basis.

Assuming a typical scenario where all of the children live with one parent, there are two tests for the duration of spousal support, each with an upper and lower end. In the “length of marriage” test, the range is the same as the “without child” formula: .5 to 1 year for every one year of marriage. The “age-of-children” test sets the upper limit at the length of time until the youngest child finishes high school. The lower limit is the length of time until the youngest child starts full time school. If the situation is a split or shared custody arrangement, there are further complications to the formula.

The SSAGs suggest a range of 1.5 to 2% of the difference between the spouses’ gross incomes for each year of cohabitation, up to a maximum of 50%.

The SSAGs has a special formula for this scenario. It is a fairly complicated calculation which requires special software to do. In theory, the formula is meant to create a situation in which the lower income recipient spouse is left with 40 to 46 percent of the combined Individual Net Disposable Income (INDI).

There is some flexibility in terms of how spousal support is structured. It could be made by way of a lump sum payment, or it can stretch out over a period of time. One can negotiate for a higher payment for a shorter period of time, or the court may order lower payment for a longer period of time.

If there is a “material change in circumstances”, the terms of spousal support can be reviewed. If the parties cannot come to an agreement, then a court can be asked to review the existing arrangement.