Spousal support, partner support, alimony – whatever you call it, paying your former spouse money is quite often a major point of contention between separated spouses, and for good reason.
Some former partners believe that they are automatically entitled to receive large sums of money each month, whereas their counterparts believe that their former partners are receiving money for doing nothing. However, support is not that simple.
This article explains the legal principles that define when support is payable and how it is calculated.
What is Spousal Support?
Spousal support is a live issue when married spouses separate and partner support is a live issue when unmarried partners separate. Although termed differently, the concept and principles are similar. For the sake of simplicity, we use the term spousal support to mean all forms of spousal and partner support.
In order for a former spouse to receive spousal support, they must first prove entitlement to support. The Supreme Court of Canada has defined three separate entitlements to spousal support:
Contractual Support – This is when you have an agreement (prenuptial, cohabitation, separation, etc.) that specifies that one spouse is to receive support. If this exists, you may have to pay due to your contractual obligations.
Compensatory Support – This most often occurs when one spouse has forgone career, education, or earning opportunities as a result of their role in the relationship. The idea here is that one spouse should not bear a disproportionate financial burden as a result of the role that spouse adopted during the relationship.
Non-compensatory Support – This most often occurs when one spouse experiences a significant economic hardship as a result of the breakdown of the relationship. The idea here is that one spouse should not experience a serious reduction in their standard of living due to the breakdown of the relationship and them becoming self-sufficient.
If a former spouse proves entitlement to support on any of the above, the next step is to determine quantum, or amount payable. The amount of spousal support is most often calculated using each former spouse’s income through the Spousal Support Advisory Guidelines. These Guidelines, however, are not mandatory, and the Court has discretion. The Guidelines calculate a range of support that should be paid based on incomes, and then a determination must be made as to whether support should be on the low, middle, or high end of the range. A number of factors must be considered when determining quantum. Most often we look at income disparity, roles during the marriage, each former spouse’s earning potential, each former spouse’s attempts at becoming self-sufficient, and any other extenuating circumstances such as health.
Once entitlement and quantum are determined, the final aspect to consider is duration. This most often presents itself in the question of: “How long do I have to pay?” The duration of support is most often tied to the length of the relationship. A short-term relationship (less than 20 years) usually produces a duration of 0.5 to 1.0 times the number of years of the relationship. For example, a 10 year relationship may produce a duration of 5 to 10 years of support being paid. A long-term relationship (more than 20 years) usually produces an indefinite term that is reviewable when certain events occur (i.e. the former spouse receiving support remarries).
But Do I Really Have to Pay My Former Spouse?
Spousal support is not automatic, unlike child support. As such, negotiating on spousal support is permitted and quite often encouraged, particularly when there is property to be divided as well. Further, if there is enough equity available, spousal support can be paid in a lump sum payment, removing the necessity of paying ongoing support each month. However, monthly support is tax deductible for the person paying, whereas lump sum support is not. In other words, taxes are another factor to consider.
Spousal support can be confusing and seem overwhelming, but a lawyer can help clarify whether you or your former spouse is entitled to receive spousal support and what that spousal support should look like. Call to arrange a free, 15 minute consultation with an experienced spousal support lawyer in Vancouver or Calgary.