Spousal Support on or after Divorce
| Author | Julien D. Payne/Marilyn A. Payne |
| Pages | 222-352 |
SPOUSAL SUPPORT ON OR
AFTER DIVORCE
A. DEFINITION OF “SPOUSE” AND “SPOUSAL
SUPPORT”
Pursuant to section of the Civil Marriage Act, S.C. , c. , “mar-
riage, for civil purposes, is the lawful union of two persons to the ex-
clusion of all others.” Consequenti al on thi s parliamentary reco gnition
of the valid ity of same-s ex marriage s, section () of the Civil Marri age
Act has amended sec tion () of the Divorce Act to provide that “‘spouse’
means either of two persons who are marr ied to each other.” A same-sex
couple, who are married according to the law, may, therefore, invoke the
primary and corolla ry relief provisions of the Divorce Act.
e expression “spousal support” is somewhat misleading because
it includes the payment of support to an ex-spouse. Furthermore, some
provincial and territorial st atutes impose “spousal” support obligations
on unmarried cohabitants who have lived together for a designated per-
iod of time or who are the parents of a child.
M.M. v. J.H., [] O.J. No. (S.C.J.).
222
223Spousal Support on o r after Divorce
B. FORMAL LEGAL EQUALITY BETWEEN SPOUSES
Formal legal equality ex ists between divorcing spouses insofar a s support
rights and obligations are concerned. A husba nd in need has just as much
right to seek spousal support from h is financial ly independent wife as
she has if their financial situation is reversed. In real ity, divorcing or di-
vorced husbands rarely need or obtain spousal support. Even wives, who
are in need, rarely apply for or receive spousal support. Separated and
divorced women who stay at home for sustained periods of time to raise
their children are the new poor i n Canada. ey are often untr ained for
the labour force and cannot regain lost yea rs when they were unemployed
and consequently had no opportunity to bui ld a career or contribute to
a pension plan. A federal study has concluded that “[for] women whose
labour force interruptions have lasted for ten years or longer, the cumula-
tive present value of post re-entry earnings losses will typically exceed
,.” Or in everyday language, women who are out of the labour
force for more than ten years sacrifice more than , in lost future
income potentia l that will never be recaptured when they enter or return
to the labour force.
C. TYPES OF ORDERS
1) Diverse Types of Order
e diverse types of spousal support orders that may be gra nted pursuant
to subsection . of the Divorce Act are as follows:
(i) An order to secure a lump su m;
(ii) An order to pay a lump sum;
(iii) An order to secure and pay a lump sum;
(iv) An order to secu re periodic sums;
(v) An order to pay periodic sums;
(vi) An order to secu re and pay periodic sums.
e court is not restricted to making only one type of order. A combin-
ation of the various typ es of order may be accommodated. Any of the
aforementioned orders may b e granted by w ay of interim or p ermanent
DepartmentofJusticeandStatusofWomenCanada,Department of Just ice and Status of Women Canada, An Economic Mode l to Assist
in the Determina tion of Spousal Support by Richa rd Kerr (Ottawa: Department of
Justice, ).
224 CANADIAN FAMILY LAW
relief, although they are always subject to variation or rescission in the
event of a material change of circumst ances.
2) Nominal Orders; Final Orders
An order for nominal spousal support is not necessar y for the purpose of
preserving a futu re 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 predict able future need. A nominal
order for spousal support may be vacated on appeal where no current
need has been demonstrated and any futu re need would be unrelated to
the marriage. According to the judgment of the British Columbia Cou rt
of Appeal in Gill-Sager v. Sager, the law is unsettled on the question
whether the dismissa l of an application for spousal support under sec-
tion . of the Divorce Act precludes the applicant from ever succeeding
on a subsequent application, regardless of a change in his or her circum-
stances. Only the Supreme Court of Ca nada can provide a definitive an-
swer to this question. If the applica nt is disentitled to spousal support at
the time of t he original applicat ion but might reasonably be s ubsequently
entitled to relief in the event of a change of circum stances, for example,
by reason of deterior ating health, an appropr iate order should be couched
in terms that do not preclude a subsequent application for spousal sup-
port.
3) Interim Support Orders
Section .() of the Divorce Act empowers a court to grant an interim
order requiring a spouse to secure and/or pay such lump sum and/
or periodic sums as the cour t deems reasonable for the support of the
other spouse. An interim spousa l support order is intended to provide
a reasonably accept able short-term solution u ntil the t rial when a n in-
depth exam ination can be undert aken, if the spouses have not pre viously
Traversy v. Glover, [] O.J. No. (Sup. Ct.).
Vickers v. Vickers, [] N.S.J. No. (C.A.). For the suggest ion that nominal or-
ders are not “support orders” with in the meaning of the Divorc e Act, see Gill-Sager
v. Sag er, [] B.C.J. No. (C.A.).
Gill-Sager v. Sager,ibid.; see also B.G.D. v. R.W.D.,[] B.C.J. No. (C.A.).
Compare Tierney-Hynes v. Hynes, [] O.J. No. (C.A.).
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