Spousal Support On or After Divorce
| Author | Julien D. Payne, Marilyn A. Payne |
| Pages | 208-352 |
Spousal Support On or After Divorce
A. DEFINITION OF “SPOUSE” AND “SPOUSAL SUPPORT”
Pursuant to section of t he Civil Marriage Act, “marriage, for c ivil purposes, is
the lawfu l union of two persons to the exclusion of all ot hers.” Consequential
on this parli amentary recog nition of the validity of same- sex marr iages, sec-
tion () of the Civil Marriage Act h as amended section () of the Divorce Act
to provide that “‘spouse’ mea ns either of two persons who are marr ied to each
other.” A same-sex couple, who are mar ried according to the l aw, may, there-
fore, invoke the prima ry and corollary re lief provisions of the Divorce Act.
e expression “spousal support” is somewhat misleading because it
includes the payment of sup port to an ex-s pouse. Further more, some prov-
incial and ter ritorial st atutes impose “spousal ” support obligat ions on un-
married coh abitants who have lived together for a designated period of t ime
or who are the parents of a chi ld.
B. FORMAL LEGAL EQUALITY BETWEEN SPOUSES
Formal legal e quality e xists betwe en divorcing spouses i nsofar as suppor t
rights and obligat ions are concerned. A husband in need h as just as much
right to seek spousa l support from his nancia lly independent wife a s she
has if their n ancial situat ion is reversed. In reality, divorci ng or divorced
husbands rarely seek or obt ain spousal support.
SC , c .
RSC (d Supp), c . See MM v JH, [ ] OJ No (Sup Ct).
Moge v Moge, [] SCR at ; Rivard v Rivard, ONSC .
Chapter : Spousal Support On or Af ter Divorce
C. TYPES OF ORDERS
) Diverse Types of Orders
e diverse types of s pousal support orders that may be gra nted pursuant to
subsection . of the Divorce Act are as fol lows:
t an order to secure a lump sum;
t an order to pay a lump sum;
t an order to secure and pay a lump sum;
t an order to secure period ic sums;
t an order to pay periodic sums; a nd
t an order to secure and pay period ic sums.
e court is not restricted to making only one type of order. A combina-
tion of the variou s types of orders may be accom modated. Any of the a fore-
mentioned orders may be granted by way of inter im or permanent rel ief,
although they are a lways subject to var iation or rescission in the event of a
material ch ange of circumstances.
) Nominal Orders; Final Orders
An order for nominal s pousal support i s not necessary for the pu rpose of
preserving a f uture right to claim spou sal support following a d ivorce.Nom-
inal orders have, nevertheless, been granted where the applicant establishes
a present need but the respondent has no ability to pay or where t here is
no current need but there is a pred ictable futu re need. A nominal order for
spousal support may be vacated on appeal where no current need has been
demonstrated and any fut ure need would be unre lated to the mar riage. Ac-
cording to the judgment of t he British Columbia Court of Appea l in Gill-Sager
v Sager, the law is unsettled on the question whether the di smissal of an ap-
plication for spousa l support under sect ion . of the Divorce Act precludes
the applicant from e ver succeeding on a subsequent appl ication, regardless of
a change in hi s or her circumstances. Only the Supreme Cou rt of Canada can
provide a denitive a nswer to this question. If the applica nt is disentitled to
spousal suppor t at the time of the origina l application but might reasonably
be subsequently entitled to relief in the event of a change of circumstances,
Traversy v Glover, [] OJ No (Sup Ct).
Vickers v Vicker s, [] NSJ No (CA). For the sugg estion that nomina l orders are
not “support orders” w ithin the meaning of t he Divorce Act, see Gill-Sager v Sager, []
BCJ No (CA ). Compare Labbe v Labbe, BCSC .
Gill-Sager v Sager,ibid; see also BGD v RWD, [] BCJ No (CA). Compare Tierney-
Hynes v Hynes, [] OJ No (CA ).
for example, by reason of deter iorating health, a n appropriate order should
be couched in terms t hat do not preclude a subsequent application for spous-
al support.
) Interim Support Orders
Section .() of the Divorce Act empowers a court to g rant an interim order
requiring a sp ouse to secure and/or pay such lump sum and/or periodic su ms
as the court deem s reasonable for the support of the ot her spouse. An interim
spousal suppor t order is intended to provide a reason ably acceptable short-
term solution unti l a pre-trial conference al lows for a more thorough and ju-
dicious resolution of t he issues or the matter goes to tri al when an in-depth
examination can be undertaken. e nature of interi m spousal support dic-
tates that the cour t does not have to embark upon a detailed exam ination of
the merits of the cl aim for permanent spousa l support. Nevertheless, a pr ima
facie entitlement to inter im support must be established in accordance w ith
the provisions of sect ion . of the Divorce Act. Section .() of the Divorce
Act includes no explicit refere nce to the variat ion of an interim spous al sup-
port order, but the court has an inherent jurisdiction to vary such an order
in response to a materia l change of circumstances or when the a ssumptions
on which the order was made later prove to have been clearly understated.
Where an interim order prov ides for periodic spou sal support to be pa id
from the date of the l ing of the applicat ion but payment of the instant ar -
rears thereby created is to be de ferred pending the resolution of outs tand-
ing monetary issues, the ar rears may be subsequently expu nged by a trial
judge without proof of a change of c ircumstances si nce the granting of t he
interim order. In addressing the wi fe’s contention t hat section (.) of the
Divorce Act required the tr ial judge to nd a change of circu mstances before
varyi ng the interim spousal suppor t order, the Newfoundl and and Labrador
Court of Appea l in Whelan v Whelan observed t hat section (.) applies
only when the court is con sidering an application to var y a “spousal suppor t
order,” which is explicitly de ned in section () of the Divorce Act. Since that
DMB v DBB, SKQB , c iting Jacobson v Jacobson, SKQB .
Lapp v Lapp, [] AJ No (CA); Kowalski v Grant, [] MJ No (QB); Gabel v
Gabel, [] NWTJ No (SC); Tu rk v Tu rk, [] OJ No (Sup Ct); E AG v DLG,
YKSC .
Dunn v Dunn, ABQB ; Noonan v Noonan, PEICAD ; see al so Fong v Fong,
MBQB . Compare Muchekeni v Muchekeni, [ ] NWTJ No (SC); Fyfe v Joup-
pien, ONSC .
Carvell v Carvell, [] OR (CA); Lipson v Lipson (), RFL (Ont CA); Lah-
anky v Lahank y, NBQB ; Torres v Marin, [] YJ No (SC ).
[] NJ No (CA).
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