Spousal Support On or After Divorce
| Author | Julien D. Payne, Marilyn A. Payne |
| Pages | 216-369 |
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 (d Supp), c . See MM v JH, [ ] OJ No (Sup Ct).
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
subsection . of the Divorc e Act are as follow s:
• 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 combina-
tion of the various t ypes of orders may be accommodated . Any of the afore-
mentioned orders may be granted by way of inter im or permanent relief,
although they are a lways subject to var iation or rescission in the e vent of a
material ch ange of circumstances.
) Nominal Orders; Final Orders
An order for nominal spou sal support is not necessary for the purpose of
preserving a f uture right to claim spousa l support following a divorce. Nom-
inal orders have, never theless, been granted where the applicant establ ishes
a present need but the respondent has no ability to pay or where t here is
no current need but there is a predict able future need. A nomin al order for
spousal support m ay be vacated on appeal where no cur rent need has been
demonstrated and any futu re need would be unrelated to t he marri age. Ac-
cording to the judgment of the Br itish Columbia Court of Appeal in Gill-S ager
v Sager, the law is unsettled on the question whether the d ismissal of an ap-
plication for spousal suppor t under section . of the Divorce Act pre cludes
the applicant from ever succee ding on a subsequent application, regardles s of
a change in his or her c ircumstances. Only the Supreme Court of C anada can
provide a denitive an swer to this question. If the applicant is d isentitled to
spousal support at t he time of the original applicat ion but might reasonably
be subsequently entitled to rel ief in the event of a change of ci rcumstances,
Traversy v Glover, [] OJ No (Sup Ct).
Vickers v Vickers, [] NSJ No (CA). For the sug gestion that nomina l orders 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 (C A); see also BGD v RWD, [] BC J No (CA).
Compare Tierney-Hynes v Hynes, [] OJ No (CA).
for example, by reason of deteriorat ing health, an appropr iate order should
be couched in terms th at do not preclude a subsequent application for spousal
support.
) 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 pre-t rial conference allows for a more thorough and ju-
dicious resolution of the issues or the m atter goes to trial when an in-dept h
examin ation can be undert aken. e nature of interim spousal suppor t dic-
tates that the court does not have to embark upon a detailed e xamination
of the merits of the cla im for permanent spous al support. Nevert heless, a
prima fac ie entitlement to interim suppor t must be established in accord-
ance with the provi sions of section . of the Divorce Act. Sec tion .() of
the D ivorce Ac t includes no explic it reference to the variation of a n interim
spousal support order, but the cour t has an inherent jur isdiction to var y
such an order in response to a mater ial change of circums tances or when the
assumptions on which t he order was made later prove to have been c learly
understated. Where an interim order prov ides for periodic spousal support
to be paid from the date of the ling of the applicat ion but payment of the
instant arrea rs thereby created is to be deferred p ending the resolution of
outstanding monetar y issues, the arrears may be subsequently e xpunged by
a trial judge w ithout proof of a change of circu mstances since the g ranting
of the interim order. In addressing t he wife’s contention that section (.)
of the Divorce A ct required the trial judge to nd a change of circu mstances
before varyi ng the interim spous al support order, the Newfound land and
Labrador Court of Appea l in Whelan v Whelan observed that section (.)
DMB v DBB, SKQB , c iting Jacobson v Jacobson, SKQB .
Lapp v Lapp, [] AJ No (CA); Kowalski v Grant, [] MJ No (QB); Gab el v
Gabel, [] NWTJ No (SC); K nowles v Lindstrom, ONSC ; EAG v DLG,
YKSC .
Squires v Squires, NBQB .
Dunn v Dunn, A BQB ; Noonan v Noonan, PEICAD ; see als o Fong v Fong,
MBQB . Compare Muchek eni v Muchekeni, [] NWTJ No (SC); Balayo v Mead-
ows, ONSC .
Carvell v Carvell, [] OR (CA); Lipson v Lipson (), RF L (Ont CA); PLM v
SYB, NBQB ; Torres v Marin, [] YJ No (SC).
[] NJ No (CA). See also Janmohamed v Janmohamed, BCSC ; Colter v
Colter, NSSC ; Damaschin-Zamrescu v Damaschin-Zamrescu, ONSC at
paras –.
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