Spousal Support

• Author: Julien D. Payne/Marilyn A. Payne
• Pages: 191-216

191

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Spousal Support

A. INTRODUCTION

The following analysis will focus on the regulation of spousal support rights

and obligations under the Divorce Act and the Spousal Support Advisory

Guidelines. It should be pointed out, however, that spousal support rights

and obligations that exist under provincial and territorial legislation broadly

correspond to those existing under the Divorce Act; while the statutory lan-

guage may dier, the dierences are more often dierences of form rather

than substance. One notable dierence is that provincial and territorial stat-

utes (except in Quebec) impose “spousal support” obligations on former

unmarried cohabitants who have lived together for a designated period of

time or who are the joint parents of a child. It is also noteworthy that the

Spousal Support Advisory Guidelines, though formulated with divorce in mind,

have been consistently applied under both the Divorce Act and provincial and

territorial legislation.

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

For the present purposes, “spousal support” can be dened as nancial pay-

ments made for the support of a spouse or an ex-spouse, whether of the same

sex or the opposite sex. Such payments are still called spousal support, even

after divorce. As far as spousal support is concerned, formal legal equality

192       

has existed between divorcing husbands and wives in Canada since 1968.

A divorcing husband in need has the same right to seek spousal support

from his nancially independent wife as she has to seek it from him if their

nancial positions are reversed. However, singularly few divorced husbands

obtain spousal support from their wives. This is probably attributable to the

fact that divorcing husbands usually have full-time employment and men

often earn higher incomes than women.

Two groups of women pay a high price on divorce. The rst group is

young mothers. The second group is middle-aged wives who stayed at home

while the children were growing up. Many women in these groups encoun-

ter nancial diculties on divorce that they have never before experienced.

Their problems are compounded by the non-payment of court orders for

spousal and child support. A CBC report in 2014 identied an aggregate

default in court-ordered support payments of $3.7billion across Canada.

C. DIVERSE TYPES OF ORDERS

The 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.

The court is not restricted to making only one type of order. A combina-

tion of the various types of orders may be accommodated. Any of the afore-

mentioned 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.

1) Interim Spousal Support Orders

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

for spousal support. An interim 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 issues or the matter goes to trial