Spousal Support on or after Divorce
| Author | Julien D. Payne/Marilyn A. Payne |
| Pages | 209-280 |
SPOUSAL SUPPORT ON OR
AFTER DIVORCE1
A. DEFINITION OF “SPOUSE” AND “SPOUSAL
SUPPORT”
Asamesexcouple,whoaremarriedaccordingtothelaw,mayinvokethe
primar y and corollar y relief provisions of the Divorce Act.Pursuant to
s.oftheCivil Marriage Act, “marriage, for civil purposes, is the lawfu l
unionoftwopersonstotheexclusionofallothers.”
Asaconsequence
of the parlia mentary reco gnition of the v alidit y of same sex marriages, s.
() of the Civil Marriage Act has amended s . () of the Divorce Act to
provide that “’spouse’ mean s either of two person s who are marrie d to
each other.”
e expression “spousal support” is somewhat misleading because it
includes the payment of suppor t to an ex-spouse. Furthermore, s ome pro-
vincia l and territor ial statutes impose “spousa l” suppor t obligations on
unmar ried cohabitants who have l ived together for a designated p eriod of
time or who are the parents of a child .
efollowinganalysisreliesheavily,butnotexclusively,onapreviouslypublished
articlebyoneoftheauthors:seeJulien D.Payne,“AnOverviewofeoryand
RealityintheJudicial DispositionofSpousalSupportClaimsUndertheCanadian
Divorce Act”()Sask. L.Rev..
M.M. v. J.H., []O.J. No.(Sup.Ct.).
S.C.,c..
CANADIAN FAMILY LAW
B. FORMAL LEGAL EQUALITY BETWEEN SPOUSES
Formallegal equality existsbetween divorcingspouses insofar as support
rights and obligations are concerned. A husba ndi n need has just as much
righttoseekspousalsupportfromhisfinanciallyindependentwifeas
she has if t heir financ ial situat ion is reversed . In realit y, divorcing or di-
vorced husbands ra rely need or obtain spousal support. Even wives, who
are in need, ra rely apply for or receive spous al support. S eparated and
divorced women who stay at home for sus tained per iods of time to r aise
their children are the new poor in Canada. ey are often untrained for
thelabourforceandcannotregainlostyearswhentheywereunemployed
and consequent ly had no opportu nity to bu ild a career or cont ribute to
a pension plan. A federal study has concluded that “[for] women whose
labour force interruptions havelasted for ten years or longer, the cumula-
tive present value of post re-entry earnings losses will t ypically exceed
,.”
Or in everyday l anguage, women who are out of the labou r
force for more than ten years sacrifice more than , in lost future
income potentia l that will never be recaptu red when they enter or return
tothelabourforce.
C. TYPES OF ORDER
) Diverse Types of Order
e diverse ty pes of spousal support orders t hat may be granted pursuant
to subsection . of the Divorce Act areasfollows:
(i) Anordertosecurealumpsum;
(ii) Anordertopayalumpsum;
(iii) Anordertosecureandpayalumpsum;
(iv) Anordertosecureperiodicsums;
(v) Anordertopayperiodicsums;
(vi) Anordertosecureandpayperiodicsums.
ecourtisnotrestrictedtomakingonlyonetypeoforder. A combina-
tion of the various types of orders may be accommodated. Any of the
aforementioned orders may be g ranted by way of i nterim or perma nent
Richard Kerr for Depart ment of Justice and Status of Women Canada, An Economic
ModeltoAssistintheDeterminationofSpousalSupport(Ott awa: Department of
Justice, ).
Spousal Support on o r after Divorce
relief, although they are always subject to variation or rescission in the
event of a material change of circumstances.
) Nominal Orders; Final Orders
An order for nomina l spousal supp ort is not necess ary for the pu rpose
of preservi ng a future right to clai m spousal support followi ng a divorce.
Nominal orders have, nevertheless, been granted where the applicant es-
tablishes a pres ent need but the respondent has no ability t o pay or where
there is no cur rent need but there is a predictable futu re need. A nominal
order for spousal suppor t may be vacated on appe al where no current
need has been demon strated and a ny future nee d would be unrelate d to
the marriage.
According to t he judgment of the Br itish Colu mbia Court of Ap-
peal in Gill-Sager v. Sager,the law is unsettled on the question whether
the dismi ssal of an appl ication for spousa l support under sec tion . of
the Divorce Act precludes the applicant from ever succeeding on a s ub-
sequent application, rega rdless of a cha nge in his or her ci rcumsta nces.
Only the Supreme Cou rt of Canada c an provide a defin itive answer t o
this question. If theapplicant isdisentitled tospousal supportat the time
of the origin al application but m ight reasonably be s ubsequently entit led
toreliefintheeventofachangeofcircumstances,forexample,byreason
of deteriorating health, an appropr iate order should be couched i n terms
that do not preclude a subsequent appl ication for spousal support.
) Interim Support Orders
Section .() of the Divorce Act empowersacourttograntaninterim
orderrequiringaspousetosecureand/orpaysuchlumpsumand/orpe
-
riodic sums as the court deems reasonable for the support of the other
spouse. An i nterim spousal supp ort order is intended to provide a reason-
ably acceptable short-term solut ion until t he trial when a n in-depth ex-
amination can be undertaken, if the spouses have not previously reached
a consensua l resolution of thei r support rig hts and obligat ions. Interim
spousal suppor t orders are subject t o variation i n light of a materi al
change ofcircumstances but Canadian courts have consistently asserted
Vickersv.Vickers,[] N.S.J. No.(C.A.).Forthesuggestionthatnominalor-
dersare not “supportorders”within the meaning of the Divorce Act,seeGill-Sager
v. Sage r,[]B.C.J. No.(C.A.).
Gill-Sager v. Sager;ibid.; see also B.G. D. v.R .W.D., [] B .C.J. No. (C. A.).
Gabel v. Gabel, [] N.W.T.J. No. (S.C.).
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