When a relationship ends after sharing a residence, expenses and being generally financially interdependent, some of the main questions a person will ask themselves are: Where am I going to live? How am I going to support myself now that I don’t have the financial support of my partner?
If you are the higher income earner: What are my obligations to financially support my spouse and for how long?
The Obligation to Pay Spousal Support
The Family Law Act, in section 30, provides that every spouse has an obligation to support him/herself and the other spouse, in accordance with need, to the extent he or she is capable of doing so.
A spouse is defined as someone you are married to or that you have been living with for at least two years.
You may be asking yourself well why should I pay my ex when I was the breadwinner throughout the duration of our relationship and I’m the one that has already shared my income and increased my spouse’s standard of living? If it weren’t for me, my ex wouldn’t have had nearly as good of a life. Isn’t that enough? Why should I continue to pay after I already gave so much?
The Supreme Court of Canada, in Moge v. Moge, (1992), held that the purpose of spousal support is to relieve economic hardship resulting from marriage or its breakdown. McLachlan J. stated:
… the judge’s order should … grant relief from any economic hardship arising from the breakdown of the marriage. The focus here, it seems to me, is not on compensation for what the spouses have contributed to or gained from the marriage. The focus is rather post-marital need; if the breakdown of the marriage has created economic hardship for one or the other, the judge must attempt to grant relief from that hardship.
The Court further held, in another case that spousal support provisions of the Family Law Act help protect the economic interests of individuals in intimate relationships. When a relationship breaks down, the support provisions help ensure that a spouse who has contributed to the couple’s welfare in intangible ways will not find himself or herself “utterly abandoned”.
However, marriage per se does not automatically entitle a spouse to support,” and the support provisions of the Divorce Act are not a “… general tool of redistribution which is activated by the mere fact of marriage.”20 As marriage should be regarded as a joint endeavour, the longer the relationship endures, the closer the economic union, the greater will be the presumptive claim to equal standards of living upon its dissolution …
Orders for spousal support are designed to achieve the objectives set out in Section 15.2 of the Divorce Act.23 Subsection 15.2 (6) provides that spousal support should:
1. recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
2. 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;
3. relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
4. in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.24
The courts have based orders for spousal support on: (a) compensatory, (b) contractual, and (c) non-compensatory considerations.
a) Compensatory support
Because marriage and marriage-like relationships are joint endeavours, spousal support orders are designed to be compensatory, to bring about an equitable sharing of the benefits and burdens of the relationship, having regard to all the circumstances, including the advantages each of the parties derived from their relationship.
L’Heureux-DubÈ, J. stated in Moge:
Essentially, compensatory support intends that both spouses profit from the joint venture of marriage. The question is not what the disadvantaged spouse would have achieved had he or she not entered into the marriage. Rather the question is what was that spouse’s contribution to the marriage and was the other spouse advantaged by that contribution. If so, does equity demand a sharing of any advantage gained should the benefits of an advantaged spouse be apportioned. In practical terms, the issue will generally revolve around whether one spouse has gained an advantage in his or her ability to earn income or acquire assets that should be shared for at least some period of time.22 [Emphasis added]
b) Contractual entitlement
Contractual entitlement flows from the express or implied agreement between the parties to the marriage. For example if a spouse has a reasonable expectation, from the marriage, that they would derive an equal benefit form their respective contributions to the marriage, such as paying for the spouse’s debts acquired to prior to the marriage, contributing to house hold expenses while the other spouse goes to school and increases his or her earning potential with the understanding that one day he or she will get their turn to go to school as well with the support of their spouse.
c) Non-compensatory Support
Non-compensatory support is a residual basis for ordering support “where it is fit and just to do so.
When it is determined that spousal support ought to be paid, the next question you may have is well for how long? And how much? I was only married to him or her for 5 years, should I now pay for my mistake for the rest of my life?
The simple answer is that it depends on the length of your marriage and how much you both make. To assist courts with determining the amount and duration of spousal support the Spousal Support Advisory Guidelines were created. After punching in the numbers of your income and your spouse’s income, along with the length of the marriage, the SSAG will advise the amount and duration of spousal support.
The court has held that the Spousal Support Advisory Guidelines while advisory in nature, are a useful starting point when determining the appropriate amount of spousal support. The court has further held that once it finds a spouse to be entitled to spousal support, it must take the Spousal Support Guidelines into account when determining the amount.
Section 33(9) of the Family Law Act sets out factors that the court should consider when determining the amount of spousal support to be paid. These include:
a) The dependent’s and respondent’s current assets and means;
b) The assets and means that the dependent and respondent are likely to have in the future;
c) The dependent’s capacity to contribute to his or her own support;
d) The respondent’s capacity to provide support;
e) The dependent’s and respondent’s age and physical and mental health;
f) The dependent’s needs, in determining which the court shall have regard to the accustomed standard of living while the parties resided together;
g) The measures available for the dependent to become able to provide for his or her own support and the length of time and cost involved to enable the dependent to take those measures;
l) If the dependent is a spouse:
(i) The length of time the dependent and respondent cohabited;
(ii) The effect on the spouse’s earning capacity of the responsibilities assumed during cohabitation.5
In shorter marriages however, the Spousal Support Guidelines may not be so useful. They provide too little spousal support in shorter marriages where the recipient has little or no income. In these shorter marriage cases, the formula may generate too little support for the low income recipient even to meet her or his basic needs for a transitional period. The amount required to meet those basic needs will vary from big city to small city to town to rural area. Whether restructuring provides a satisfactory outcome, i.e. more support for a shorter time, will depend upon where the recipient lives. Thus the problem for these short-to-medium-marriage-low-income cases is most acute in big cities.
For these sets of cases a carefully-tailored exception was created — the basic needs/undue hardship exception for short marriages.
Some of the factors the courts have considered in shorter marriages in past cases are:
a) Relocating for the marriage – Facing entry into a workplace that is unfamiliar and more difficult to navigate than the one he or she would have faced if the marriage had not entailed emigration to Canada. In such cases the courts have also considered the fact that the spouse that emigrated may face the special challenges of linguistic and cultural adjustment.
b) Requiring significantly more time to reach self-sufficiency than if the party had achieved qualifications and held employment in Canada before the parties’ marriage.
c) A large discrepancy between the parties’ respective income and circumstances.
In Stergios v. Kim,  O.J. No. 5900 where the wife deferred her education plans to move to Canada. Even though the marriage was a 5 year marriage, the court awarded support at range for a 20 year marriage. In this case the wife deferred her education plans and gave up her career in South Korea to be a “proper wife” to her husband. At the husband’s request she incurred debt in South Korea supporting her husband and in Canada after separation she relied on her husband’s promise that he would pay for her schooling in Canada if she left her employment.