By Jeff Jiehui Li*
Determination of the entitlement, quantum and duration of spousal support is one of the most complex issues in family law. In Ontario, an order for spousal support is governed by two acts: the Divorce Act, which is under the federal jurisdiction (Canada); and the Family Law Act, which is under provincial jurisdiction (Ontario). Unlike other jurisdictions such as China, courts in Ontario and Canada routinely order spousal support in separation and/or divorce cases.
Provisions in Statutes
Subsection 15.2 (6) of the Divorce Act, a court should have four objectives in mind in making a spousal support order:
(a) to recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
(b) to 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) to relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) to in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
Subsection 15.2 (4) of the Divorce Act stipulates that a court must consider a number of factors in ordering spousal support, that is, 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.
Under the Family Law Act (subsection 33(8)), the purposes of spousal support are to
(a) recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse;
(b) share the economic burden of child support equitably;
(c) make fair provision to assist the spouse to become able to contribute to his or her own support; and
(d) relieve financial hardship (if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home).
The Family Law Act (subsection 33(9)) further specifies more than 12 factors for a court to consider in determining the quantum and duration of spousal support:
(a) the dependant’s and respondent’s current assets and means;
(b) the assets and means that the dependant and respondent are likely to have in the future;
(c) the dependant’s capacity to contribute to his or her own support;
(d) the respondent’s capacity to provide support;
(e) the dependant’s and respondent’s age and physical and mental health;
(f) the dependant’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 dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;
(h) any legal obligation of the respondent or dependant to provide support for another person;
(i) the desirability of the dependant or respondent remaining at home to care for a child;
(j) a contribution by the dependant to the realization of the respondent’s career potential;
(l) if the dependant is a spouse,
(i) the length of time the dependant and respondent cohabited,
(ii) the effect on the spouse’s earning capacity of the responsibilities assumed during cohabitation,
(iii) whether the spouse has undertaken the care of a child who is of the age of eighteen years or over and unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents,
(iv) whether the spouse has undertaken to assist in the continuation of a program of education for a child eighteen years of age or over who is unable for that reason to withdraw from the charge of his or her parents,
(v) any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse were devoting the time spent in performing that service in remunerative employment and were contributing the earnings to the family’s support,
(vi) the effect on the spouse’s earnings and career development of the responsibility of caring for a child; and
(m) any other legal right of the dependant to support, other than out of public money.
In Case Law
While the provisions respecting spousal support under the Divorce Act and Family Law Act are different, in reality a judge will consider all relevant factors in determining spousal support.
In Bracklow v. Bracklow, the Supreme Court of Canada identified three conceptual grounds for the entitlement of spousal support. The first is based on compensation, that is, whether a party suffered economic disadvantage and contributed to the other’s economic advantage. Second, there is a non-compensatory, need-based support, which arises if the other party is not able to support himself or herself. Finally, there is a contract-based support, as the first two support bases can be modified through contracts between the parties. This basis requires the court to consider all express or implied agreements between the parties with respect to spousal support.
In Bracklow v. Bracklow, the Supreme Court of Canada held that there is no hard and fast rule in determining the quantum and duration of spousal support. In writing for the Court, Chief Justice McLachlin stressed that “the judge must look at all the factors in the light of the stipulated objectives of support, and exercise his or her discretion in a manner that equitably alleviates the adverse consequences of the marriage breakdown and strikes the balance that best achieves justice in the particular case.”
(To be continued)
Jeff J. Li is the principal lawyer at Jeff J. Li Professional Corporation. The law office of Jeff Li focuses on family law practice, serving individuals in the Greater Toronto Area.
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