Chapter 8: Spousal Support on or After Divorce

• Date: 14 April 2025

185

 

Spousal Support on or After Divorce

A. DEFINITION OF “SPOUSE” AND “SPOUSAL SUPPORT”

Pursuant to section 3 of the Civil Marriage Act,1 “marriage, for civil purposes, is the lawf ul

union of two persons to the exclusion of all others.” Consequential on this parliamentary

recognition of the validity of same-sex marriages, section 8(1) of the Civil Marr iage Act has

amended section 2(1) of the Divorce Act to provide that “‘spouse’ means either of two persons

who are married to each other.” A same-sex couple, who are married according to the law, may,

therefore, invoke the primary and corollary relief provisions of the Divorce Act.2

e expression “spousal support” is somewhat misleading because it includes the payment

of support to an ex-spouse.3 Furthermore, some provincial and territorial statutes impose

“spousal” support obligations on unmarried cohabitants who have lived together for a desig-

nated period of time or who are the parents of a child.4

 SC , c .

 RSC , c  (d Supp). See MM v JH, [] OJ No  (Sup Ct). But see Civil Marriage of Non-

residents Act, SC , c , s .

 See the denition of “spouse” in section () of the Divorce Act, which expressly includes “a former spouse.”

 As to interjurisdictional support orders, see ss – of the Divorce Act; see also ss –. of the

Divorce Act whereby the provisions of the Convention of 23 November 2007 on the International Recovery

of Child Support and Other Forms of Family Maintenance ( Hague Child Support Convention) have

the force of law in Canada insofar as they relate to subjects that fall within the legislative competence of

Parliament. As to the implementation of the Convention of 19 October 1996 on Jurisdiction, Applicable

Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for

the Protection of Children, see the Divorce Act, ss –. And see John-Paul E Boyd, “A Brief Overview

of Bill C-, An Act to Amend the Divorce Act and Related Legislation; Part : Amendments Relating

to Interjurisdictional Agreements and Treaties” (June ), online: Canadian Research Institute For

Law and the Family https://afccontario.ca/wp-content/uploads///Boyd-Overview-of-Bill-C-Pt-

-June-.pdf; Department of Justice, Canada, “e Divorce Act Changes Explained: Par t II,” online:

www.justice.gc.ca/eng/-df/c-mdf/dace-clde/index.html. e  Hague Child Support Convention

came into force for Canada and applies to the provinces of Manitoba and Ontario on  February ,

and to British Columbia on  March . It is expected that the Convention will be progressively imple-

mented in other provinces and territories in Canada: see Department of Justice, Canada, “Enforcement

Canadian Family Law 10e.indb 185Canadian Family Law 10e.indb 185 11/18/2024 10:53:30 AM11/18/2024 10:53:30 AM

186   

B. FORMAL LEGAL EQUALITY BETWEEN SPOUSES

Formal legal equality exists between divorcing spouses insofar as support r ights and obliga-

tions are concerned. A husband in need has just as much right to seek spousal support from

his nancially independent wife as she has if their nancial situation is reversed.5 In reality,

divorcing or divorced husbands rarely seek or obtain spousal support.

C. TYPES OF ORDERS

1) Diverse Types of Orders

e diverse types of spousal support orders that may be granted pursuant to section 15.2 of

the Divorce Act are as follows:

• an order to secure a lump sum;

• an order to pay a lump sum;

• an order to secure and pay a lump sum;

• an order to secure periodic sums;

• an order to pay periodic sums; and

• an order to secure and pay periodic sums.

e court is not restricted to making only one type of order. A combination of the various

types of orders may be accommodated. Any of the aforementioned orders may be granted by

way of interim or permanent relief, although they are always subject to variation or rescission

in the event of a material change of circumstances.

2) Nominal Orders

An order for nominal spousal support is not necessary for the purpose of preser ving a future

right to claim spousal support following a divorce.6 Nominal orders have, nevertheless, been

granted where the applicant establishes a present need but the respondent has no ability to

pay or where there is no present need but there is a predictable future need.7 A nominal order

of Child and Spousal Support Payments between Provinces , Territories and Countries,” online: www.

justice.gc.ca/eng/-df/enforce-execution/enforce-execut.html. See also Ontario FRO website and the

Hague Conference on Private International Law website, sub-heading “Child Support,” online: HCCH.

net; and see Andina van Isschot & Annick Boulay, “Strengthening Family Justice Services: Recent

Changes to the Family Orders and Agreements Enforcement Assistance Act and Canada’s Implementa-

tion of the  Hague Child Support Convention” (County of Carleton Law Association, rd Annual

Institute of Family Law,  April , Montebello, Quebec).

 Moge v Moge, []  SCR  at ; Rivard v Rivard,  ONSC ; Scheibler v Scheibler, 

ONCA . See generally, Claire Houston, “Spousal Support for Men: An Analysis of Reported Can-

adian Decisions” ()  CFLQ .

 Baiu v Baiu,  ONCA . As to orders expressly reserving the issue of spousal support, see D roit

de la famille — 182390,  QCCA  at paras –.

 See, for example, Petrunia v Petrunia,  ABQB ; Teed v Teed,  NBQB ; Penney v Penney,

 NLUFC ; Smith v Smith, [] NSJ No  (SC).

Canadian Family Law 10e.indb 186Canadian Family Law 10e.indb 186 11/18/2024 10:53:30 AM11/18/2024 10:53:30 AM

Spousal Support on or Af ter Divorce 187

for spousal support may be vacated on appeal where no present need has be en demonstrated

and any future need would be unrelated to the marriage.8

3) Interim Support Orders

Section 15.2(2) of the Divorce Act empowers a court to grant an interim order requiring

a spouse to secure and/or pay such lump sum and/or periodic sums as the court deems

reasonable for the support of the other spouse.9 e primary purpose of interim spousal

support is to allocate family income in a fair and equitable manner pending the division

of property and more complete evidence touching on the applicable factors and objectives

relevant to a nal spousal support determination.10 An interim spousal support order is

intended to provide a reasonably acceptable short-term solution until a pretrial conference

allows for a more thorough and judicious resolution of the issues11 or the matter goes to trial

when an in-depth examination can be undertaken.12 e nature of interim spousal support

dictates that the court does not have to embark upon a detailed examination of the merits

of the claim for permanent spousal support.13 Nevertheless , a prima facie entitlement to

interim support must be established in accordance with the provisions of section 15.2 of the

Divorce Act.14 While an application for interim spousal support often narrows the focus of the

court’s analysis to the “means and needs” of the parties, the question of entitlement cannot

be overlooked or go unaddressed by the court.15 Absent some reasonably sound prospe ct of

success at trial, interim spousal support should be denied.16 Interim spousal support should

not be ordered in the face of conicting adavits on crucial issues relating to spousal sup-

port entitlement.17 Caution must be exercised when the evidence in an interim application

conicts on a threshold issue. at is especially so if resolving a conict requires the court

 Vickers v Vickers, [] NSJ No  (CA). For the suggestion that nominal orders are not “support

orders” within the meaning of the Divorce Act, see Gill-Sager v Sager, [] BCJ No  (CA). Compare

Labbe v Labbe,  BCSC .

 For an excellent judicial summary of the principles to be applied where interim spousal support is being

sought, see Anand v Anand,  ABCA ; see also VLN v SRN,  ABQB ; Furry v Goodwin,

 ABCA .

 McCrea v McCrea,  SKQB  at para , Goebel J. See also Furry v Goodwin,  ABCA ; McCon-

key v McConkey,  ONSC ; MTP v RLB,  BCSC ; Merrield v Merrield,  SKCA .

 Miller v White,  PECA ; Sane v Sane,  SKQB , citing Jacobson v Jacobson,  SKQB .

 Lapp v Lapp, [] AJ No  (CA); AAA v KN,  ABC A ; Pownall v Pownall,  MBQB ;

Gabel v Gabel, [] NW TJ No  (SC); Knowles v Lindstrom,  ONSC ; EAG v DLG, 

YKSC .

 Santelli v Trinetti,  BCCA ; Squires v Squires,  NBBR ; Moore v Moore,  NSSC ;

Politis v Politis,  ONSC  at para ; Kelly v Kelly,  ONSC .

 Battaglini v Battaglini,  ABQB ; Santelli v Trinetti,  BCCA ; Holmes v Fedoruk, 

BCSC ; Noonan v Noonan,  PEICAD ; see also Fong v Fong,  MBQB ; Bolleter v Living-

stone,  NWTSC ; Haughton v Corner,  ONSC ; Phair v Phair,  SKKB . Compare

Muchekeni v Muchekeni, [] NWTJ No  (SC); Balayo v Meadows,  ONSC . See also Blaney

v Murphy,  ABQB  at para  (interim interdependent partner support under the Family Law

Act, Alberta); Kinross v Bleau,  ONSC  (application under Ontario Family Law Act).

 Wongstedt v Wongstedt,  SKCA  at para , Caldwell JA; McCrea v McCrea,  SKQB .

 Howdle v Betteridge,  MBQB ; Politis v Politis,  ONSC  at para .

 Duder v Rowe, [] AJ No  (QB); Boucher v Garnett,  BCSC ; MacKinnon v MacKinnon

(),  OR (d)  (CA).

Canadian Family Law 10e.indb 187Canadian Family Law 10e.indb 187 11/18/2024 10:53:30 AM11/18/2024 10:53:30 AM