Spousal Support On or After Divorce
| Author | Julien D. Payne/Marilyn A. Payne |
| Pages | 215-358 |
Spousal Support On or After Divorce
A. DEFINITION OF “SPOUSE” AND “SPOUSAL SUPPORT”
Pursuant to section of the Civil Marriage Ac t, “marriag e, for civil purposes, is
the lawf ul union of two persons to the exclusion of al l others.” Consequential
on thi s parliamentar y recognition of the va lidity of same-sex mar riages, sec-
tion () of the Civil Ma rriage Act has amended section () of t he Divorce Act
to provide that “‘spouse ’ means either of two persons who are mar ried to each
other.” A sa me-sex couple, who are ma rried according to the law, may, there-
fore, invoke the primar y and corollary relief prov isions of the Divorce Act.
e expression “spousal support ” is somewhat misleading because it
includes t he payment of support to an ex-spouse. Fur thermore, some prov-
incial and territorial statutes impose “spousal” support obligations on un-
married cohabit ants who have lived together for a designated period of time
or who are the parents of a child .
B. FORMAL LEGAL EQUALITY BETWEEN SPOUSES
Formal legal equ ality e xists bet ween divorcing spouses insofar as support
rights and obligations are concerned . A husba nd in need has just as much
right to seek spousa l support from his fi nancially independent wife as she
has if their financial situation is reversed. In reality, divorcing or divorced
husbands rarely seek or obta in spousal support.
S.C. , c. .
R.S.C. , (d Sup p.) c. . See M.M. v. J.H., [] O.J. No. (Sup. Ct .).
C. TYPES OF ORDERS
) Diverse Types of Order
e diverse types of spou sal support orders that may be granted pursuant to
subsection . of the Divorce Act are as fol lows:
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 combination of
the various types of order may be accommodated. Any of the aforementioned
orders may be gra nted by way of interim or perm anent relief, although they
are always subject to variation or rescission in the event of a material change
of circumstances.
) Nominal Orders; Final Orders
An order for nomi nal spousal support is not necessar y for the purpose of
preserving a future right to cla im spousal support following a divorce. 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 cur-
rent need but t here is a predict able future need. A nominal order for spousal
support may be vacated on appeal where no current need has been demon-
strated and any future need would be unrelated to the marriage. Accord ing to
the judgment of the British Columbia Court of Appeal in Gill-Sager v. Sager, the
law is unsettled on the question whether the dismissal of an application for
spousal support under sec tion . of t he Divorce Act precludes the applica nt
from ever succeeding on a subsequent application, regardless of a change in his
or her circumstances. Only the Supreme Court of Canada can provide a defin-
itive answer to th is question. If the applicant is d isentitled to spousal suppor t
at the time of the original application but might reasonably be s ubsequently
entitled to relief in the event of a change of circumstances, for example, by rea-
Traversy v. Glover, [] O.J. No. (Sup. Ct.).
Vickers v. Vickers, [] N. S.J. No. (C.A.). For the sug gestion that nomin al orders
are not “support order s” within the mea ning of the Divorce Act, see G ill-Sager v. Sager,
[] B.C.J. No. (C.A.). Compare Labbe v. Labbe, BCSC .
Gill-Sager v. Sager, ibid.; see also B.G.D. v. R .W.D., [] B.C.J. No. (C.A .). Compare
Tierney-Hy nes v. Hynes, [] O.J. No. (C.A .).
Chapter : Spousa l Support On or After Di vorce
son of deteriorating health, an appropriate order should be couched in terms
that do not preclude a subsequent application for spou sal support.
) Interim Support Orders
Section .() of the Divorce Act empowers a cour t to grant an interim order
requiring a spouse to secure and/or pay such lump sum and/or periodic sums
as the court deems reasonable for the support of the other spouse. An interim
spousal support order is intended to prov ide a reasonably acceptable short-
term solution until the t rial when an in-depth e xamination can be under-
taken, if the spouses have not previously reac hed a consensual resolution of
their support rights and obligations. e nature of interim spousal support
dictates that the court does not have to embark upon a detailed examin ation
of the merits of the cl aim for permanent spousa l support. Nevertheless, a
prima facie entitlement to interim support must be established in accordance
with the provisions of section . of the Divorce Act. Sect ion . () of the Di-
vorce Act includes no explicit reference to the vari ation of an interim spousal
support order, but the court has an in herent jurisdiction to v ary such an or -
der in respon se to a material change of circu mstances. However, Canadia n
courts have consistently asser ted that interim support orders should only be
varied w hen they are patent ly inappropriate. Other wise, any fi ne tuning or
necessary adjust ment can be accommodated at trial.
Absent some reasona bly sound prospect of success at tr ial, interim spou s-
al support should be de nied. Interim spousal support shou ld not be ordered
in t he face of conflicting a ffidavits on crucial issues relating to spousal sup-
port entitlement. Because of the diffic ulty of applying the object ives set out
in section .() of the Divorce A ct relating to compensatory spousal support,
Lapp v. Lapp, [] A. J. No. (C.A.); Kowalski v. Grant, [] M. J. No. (Q.B.);
Gabel v. Gabel, [] N.W.T.J. No. (S.C.); Turk v. Turk, [] O.J. No. (Sup. Ct.);
E.A.G. v. D.L .G., YKSC .
Dunn v. Dunn, ABQB ; Noonan v. Noonan, PEICAD . See al so Fong v. Fong,
MBQB . Compare Mu chekeni v. Muchekeni, [] N.W.T.J. No. (S.C.).
Carvell v. Carvell, [] O.R. (C.A.); Lipson v. Lipson (), R.F.L. (Ont. C.A.);
Dumont v. Dumont, [] N.B.J. No. (Q.B.); Torres v. Marin, [] Y.J. No. (S.C.).
Owokalu v. Owokalu, [ ] A.J. No. (Q.B.); Burke v. Burke, BCSC (spousa l and
child supp ort); Coley v. Coley (), R.F.L. (d) (Man. C.A.); Hope v. Hope, []
O.J. No. (Sup. Ct.) (child sup port); compare Michaud v. Kuszele wski, NSCA ;
Walter v. Silvester-Purdon, SKC A ; MacDonald v. MacDonald, SKCA ; Reid v.
McDougall, SKQB . As t o retroactive adjust ment of an interim spou sal support
order, see also La pp v. Lapp, [] A.J. No. (C.A .); Fisher v. Fisher, ONCA .
Kowalski v. Grant, [] M.J. No. (Q.B.); Belcourt v. Chartrand, [] O.J. No.
(Sup. C t.).
Duder v. Rowe, [] A.J. No. (Q.B.).
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