Spousal Support on or after Divorce

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 222-388

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 

Spousal Support on or after Divorce

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

Pursuant to sect ion  of the Civil Marriage Ac t, “marriage, for civil pur poses,

is the lawfu l union of two persons to the exclusion of al l others.” Consequen-

tial on thi s parliamentary recognition of t he validity of same-sex ma rriages,

section () of the Civil Marriage Ac t has amended section () 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 prima ry and corollary re lief provisions of the Divorc e Act.

e expression “spousal support” is somewhat misleading because it

includes the payment of support to an ex-spouse. Furthermore, some prov-

incial and territorial statutes impose “spousal” support obligations on un-

married coha bitants who have lived together for a designated period of ti me

or who are the parents of a child .

B. FORMAL LEGAL EQUALIT Y BETWEEN SPOUSES

Formal legal equality exists between divorcing spouses insofar as support

rights and obligations 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. In reality, divorcing or divorced

husbands rarely seek or obta in spousal support.

 SC , c .

 RSC , c  (d Supp). See MM v JH, [ ] OJ No  (Sup Ct). Compare Civil Mar-

riage of Non-reside nts Act, SC , c , s .

 Moge v Moge, []  SCR  at ; Rivard v Rivard,  ONSC .

Chapter : Spousal S upport on or after Divorce

C. TYPES OF ORDERS

) Diverse Types of Orders

e diverse typ es of spousal support orders that may be gra nted pursuant to

section . 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 period ic sums;

• an order to pay periodic sums; a nd

• an order to secure and pay period ic 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 afore-

mentioned orders may be granted by way of interim or permanent relief, al-

though they are always subject to variation or rescission in the event of a

material ch ange of circumstances.

) Nominal Orders; Final Orders

An order for nominal spousal support is not necessary for the purpose of

preserving a future right to claim spousal support following a divorce.

Nominal orders have, nevertheless, been granted where the applicant es-

tablishes a present need but the respondent has no ability to pay or where

there is no current need but there is a predictable future need. A nominal

order for spousal support may be vacated on appeal where no current need

has been demonstrated and a ny future need would be unrelated to the mar -

riage. According to t he judgment of the British Columbia Cour t of Appeal in

Gill-Sager v Sager, the law is unsett led on the question whether the dismiss-

al of an application for spous al support under section . of the Divorce A ct

precludes the applicant from ever succeeding on a subsequent application,

regardless of a chan ge in his or her circumstances. Only the Supreme Cour t

of Canada can prov ide a denitive answer to this question. If t he applicant

is disentitled to spousal support at the time of the origina l application but

 Baiu v Baiu,  ONCA  .

 See, for example, Pet runia v Pe trunia ,  ABQB ; Te ed v Te ed,  N BQB ; Pen-

ney v Penney,  NLUF C ; Smith v Smith, [] NSJ No  (SC).

 Vickers v Vickers, [] NSJ No  (CA). For the suggest ion that nominal orde rs are

not “support orders” w ithin the meani ng of the Divorce Act, s ee Gill-Sager v Sager, []

BCJ No  (CA ). Compare Labbe v Labbe,  B CSC .

 Gill-Sager v Sager, [] BCJ No  (CA); see al so BGD v RWD,[] BCJ No  (C A).

Compare Tierney-Hynes v Hynes,[] OJ No   (CA).

  

might reasona bly be subsequently entitled to relief in the event of a change

of circumstances, for example, by reason of deteriorating health, an appro-

priate order should be couched in terms that do not preclude a subsequent

application for spousal s upport.

) Interim Support Orders

Section .() of the Divorce A ct empowers a court to grant an inter im order

requiring a spou se to secure and/or pay such lump sum and/or periodic sums

as the court deems rea sonable for the support of the other spouse. A n interim

spousal support order is intended to provide a reasonably acceptable short-

term solution until a pretr ial conference allows for a more thorough and judi-

cious resolution of the issues or the matter goes to trial when an in-depth

examin ation can be undertaken. e nature of i nterim spousal support dic-

tates that the court does not have to embark upon a detailed examination

of the merits of the claim for permanent spousal support. Nevertheless, a

prima fac ie entitlement to interim support must be est ablished in accordance

with the provision s of section . of the Divorce Act.

Absent some reasonably sound prospect of success at t rial, interim sp ousal

support should be denied. Inter im spousal support should not be ordered in

the face of conicting adavits on cr ucial issues relating to spousal support

entitlement. 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 t he court to assess and make ndings of c redibility; a court

should make an interim order where the evidence on the threshold issue of

entitlement is in irreconci lable conict. Because of the d iculty of applying

the objectives set out in sect ion .() of the Divorce Act relating to compensa-

tory spousal supp ort when interim spousal support is i n dispute, a court will

ordinarily focus on the needs of the applicant and the respondent’s ability

 For an excell ent judicial sum mary of the prin ciples to be applied where inte rim spousal

support is bei ng sought, see Anand v Ana nd,  ABCA  .

 Sane v Sane,  SKQB , c iting Jacobson v Jacobson,  SKQB .

Lapp v Lapp, [] AJ No  (CA); Pownall v Pownall,  MBQB ; Gabel v Ga bel,

[] NWTJ No  (SC); Kn owles v Lindstrom,  ONSC  ; EAG v DLG,  YKSC  .

IF v RJR,  BCSC  ; Squires v Squires,  NBQB ; Kelly v Kelly,  ONSC  .

Dunn v Dunn,  ABQB  ; Boucher v Garnett,  BCSC  ; Noonan v Noonan,

 PEICA D ; see also Fong v Fong ,  MBQB ; Bolleter v Livingstone,  NW TSC

; Kelly v Kelly,  ONS C . Compare Muchekeni v Muchekeni, [] NW TJ No 

(SC); Balayo v Meadows,  ONSC  .

Howdle v Better idge,  MBQB ; Belcour t v Chartrand, [] OJ No  (Sup Ct).

Duder v Rowe, [] AJ No  (QB); Boucher v Garne tt,  BCSC ; M acKinnon v

MacKinnon (),  OR (d )  (CA).

Boucher v Garnett,  BC SC .