Spousal Support On or After Divorce

• Author: Julien D. Payne, Marilyn A. Payne
• Pages: 216-369

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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  (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 making only one type of order. A combina-

tion 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,

although 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 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 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 any future need would be unrelated to the marriage. 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 precludes

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 denitive 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 relief in the event of a change of circumstances,

 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 deteriorating health, an appropriate 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 short-

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 examination

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

prima facie entitlement to interim support must be established in accord-

ance with the provi sions of section . of the Divorce Act. Sec tion .() of

the Divorce Act includes no explicit reference to the variation of an interim

spousal support order, but the court has an inherent jurisdiction to vary

such an order in response to a mater ial change of circums tances or when the

assumptions on which the order was made later prove to have been clearly

understated. Where an interim order prov ides for periodic spousal support

to be paid from the date of the ling of the application but payment of the

instant arrears thereby created is to be deferred pending the resolution of

outstanding monetar y issues, the arrears may be subsequently e xpunged by

a trial judge without proof of a change of circumstances since the granting

of the interim order. In addressing the wife’s contention that section (.)

of the Divorce A ct required the trial judge to nd a change of circumstances

before varying the interim spousal support order, the Newfoundland 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-Zamrescu v Damaschin-Zamrescu,  ONSC  at

paras  –.