Spousal Support on or after Divorce
| Author | Julien D. Payne - Marilyn A. Payne |
| Pages | 222-388 |
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’ mean s either of two persons who are ma rried to
each other.” A same-sex couple, who are mar ried according to the law, may,
therefore, invoke the prima ry and corollary re lief provisions of the Divorc e Act.
e expression “spousal supp ort” is somewhat misle ading because it
includes the pay ment of support to an ex-spou se. Furthe rmore, some prov-
incial and ter ritorial st atutes impose “spousal ” support obligations on u n-
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 equ ality ex ists between d ivorcing spouses insofa r as support
rights and obligations a re concerned. A husband in need ha s just as much
right to seek spousa l support from his nancial ly independent wife as she
has if their nancial situ ation is reversed. In realit y, 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 m aking only one t ype of order. A combination
of the various ty pes of orders may be accommodated. A ny of the afore-
mentioned orders may be granted by way of interi m or permanent relief, a l-
though they are alw ays subject to vari ation or rescission in the event of a
material ch ange of circumstances.
) Nominal Orders; Final Orders
An order for nominal spou sal support is not necessa ry for the purpos e of
preserving a f uture right to cl aim spousal sup port following a d ivorce.
Nominal orders have, never theless, been gra nted where the applicant es-
tablishes a present need but the respondent has no abi lity to pay or where
there is no current need but there is a pred ictable future need . A nominal
order for spousal support may be v acated on appeal where no cur rent 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 eve r succeeding on a subsequent applic ation,
regardless of a chan ge in his or her circumstances. Only the Supreme Cour t
of Canada can prov ide a denitive answer to this question. If t he applicant
is disentitled to spou sal support at the ti me 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 cha nge
of circumsta nces, for example, by reason of deteriorat ing health, an appro -
priate order should be couched in terms t hat 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 shor t-
term solution until a pretr ial conference allows for a more thorough and judi-
cious resolution of the issues or the matter goes to t rial when an i n-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 e xamination
of the merits of the cla im for permanent spou sal support. Nevert heless, 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 conicti ng adavits on cr ucial issues relating to spousal s upport
entitle ment. Caution must be exerci sed when the evidence in a n interim
application conicts on a t hreshold issue. at is especi ally so if resolv ing a
conict requires t he court to assess and make ndings of c redibility; a court
should make an inter im order where the evidence on the t hreshold issue of
entitlement is in irreconci lable conict. Because of the d iculty 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
ordinari ly focus on the needs of the appl icant 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 .
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