A. Priority of Child Support over Spousal Support; Effect of Child Support Order on Assessment of Spousal Support

AuthorJulien D. Payne - Marilyn A. Payne
Pages357-361

Page 357

Section 15.3 of the Divorce Act provides as follows:

Priority to child support

15.3(1) Where a court is considering an application for a child support order and an application for a spousal support order, the court shall give priority to child support in determining the applications.

Reasons

15.3(2) Where, as a result of giving priority to child support, the court is unable to make a spousal support order or the court makes a spousal support order in an amount that is less than it otherwise would have been, the court shall record its reasons for having done so.

Consequences of reduction or termination of child support order

15.3(3) Where, as a result of giving priority to child support, a spousal support order was not made, or the amount of a spousal support order is less than it otherwise would have been, any subsequent reduction or termination of that child support constitutes a change of circumstances for the purposes of applying for a spousal support order, or a variation order in respect of the spousal support order, as the case may be.

Section 15.3 of the Divorce Act addresses the situation where the application for child support and the application for spousal support involve members of the same family. It does not establish priorities as between sequential families.1 For example, a former divorced wife’s order for spousal support will not be subject to a statutory priority in favour of the obligor’s children from a second subsequently dissolved marriage. The difficulties that have plagued the courts respecting the competing claims of sequential families remain unresolved.

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Where a needs-based spousal support order is precluded by the husband’s inability to pay after judicial regard is paid to the statutory priority which applies to child support orders, the husband may be directed to provide the wife with a copy of his income tax return on an annual basis so that she may revisit the issue of spousal support when appropriate.2In granting an order for periodic spousal support, a court may declare the amount to be less than would have been ordered but for the priority to be accorded to the needs of the children under section 15.3 of the Divorce Act.3In ordering the termination of a spousal support obligation having regard to the statutory priority to be accorded to the child support obligation, the court may acknowledge that economic self-sufficiency is an attainable goal for the former recipient of spousal support and declare that this factor will be closely scrutinized if section 15.3(3) of the Divorce Act is subsequently invoked in an attempt to reinstate a spousal support obligation.4Although section 15.3(1) of the Divorce Act requires the court to give priority to child support over spousal support, this does not signify that special or exceptional expenses should be ordered under section 7 of the Federal Child Support Guidelines to supplement the basic amount of child support payable under the applicable provincial or territorial table, where such a supplementary allocation would render the custodial spouse destitute.5

The priority of child support, including section 7 expenses,6over spousal support that is mandated by section 15(3)(1) of the Divorce Act does not preclude the court from giving consideration to spousal support and looking at the overall picture in determining the appropriate contribution, if any, to be made to special or extraordinary child-related expenses.7An order for interim spousal support may be subject to reduction in the event of a subsequent successful claim for special or extraordinary expenses under section 7 of the Guidelines.8A non-custodial parent who is ordered to pay periodic child support is not thereby disqualified from obtaining an order for periodic spousal support.9Child support and spousal support though sometimes intertwined, are based on distinct principles. The fact that the receipt of one may offset the payment of the other does not preclude an order for both kinds of relief in appropriate circumstances.10However, a custodial parent’s obligation to provide financially for a child of the marriage takes priority over the obligation to pay spousal support to the non-custodial parent and may result in a reduction of the amount of spousal support that would otherwise be ordered11or the denial of any order for spousal support.12A custodial parent cannot avoid the obligation to pay a reasonable amount of spousal sup-

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port on the dissolution of a long marriage by calling upon the non-custodial parent to live at below the poverty level in order for the custodial parent to provide a child of the marriage with luxuries.13Where a child has special needs due to a chronic illness, this may be taken into account in determining the ability of the payor spouse to pay spousal support when that individual is already committing significant resources to the child.14Where the spousal incomes are approximately equal after the payment of child support, a court may refuse to order spousal support until the child support obligation is eliminated.15The cessation of child support payments does not inevitably justify an increase in the amount of spousal support payments.16In consequence of giving priority to child support, a court may be unable to grant a spousal support order because the obligor has no ability to pay any amount to satisfy the demonstrated need of the other spouse.17Although periodic spousal support may be reduced or denied where child support obligations impair the...

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