Spousal Support on or After Divorce

• Author: Julien D. Payne,Marilyn A. Payne
• Date: 25 July 2022

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Chapter 8

Spousal Support on or After Divorce

A. DEFINITION OF “SPOUSE” AND “SPOUSAL SUPPORT”

Pursuant to section 3 of the Civil Marriage Act,1 “marriage, for civil purposes, is

the lawful union of two persons to the exclusion of all others.” Consequential

on this parliamentary recognition of the validity of same-sex marriages, sec-

tion 8(1) of the Civil Marriage Act has amended section 2(1) 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, there-

fore, invoke the primary and corollary relief provisions of the Divorce Act.2

e expression “spousal support” is somewhat misleading because

it includes the payment of support to an ex-spouse.3 Furthermore, some

provincial and territorial statutes impose “spousal” support obligations on

unmarried cohabitants who have lived together for a designated period of

time or who are the parents of a child.4

1 SC 2005, c 33.

2 RSC 1985, c 3 (2d Supp). See MM v JH, [2004] OJ No 5314 (Sup Ct). But see Civil Mar-

riage of Non-residents Act, SC 2013, c 30, s 8.

3 See the def‌inition of “spouse” in section 2(1) of the Divorce Act, which expressly

includes “a former spouse.”

4 As to interjurisdictional support orders, see sections 18–19 of the Divorce Act and see

also sections 28 to 29.5 whereby the provisions of the Hague Convention on the Inter-

national Recovery of Child Support and Other Forms of Family Maintenance have the force

of law in Canada insofar as they relate to subjects that fall within the legislative com-

petence of Parliament. And see John-Paul E Boyd, “A Brief Overview of Bill C-78, An

Act to Amend the Divorce Act and Related Legislation; Part 2: Amendments Relating

to Interjurisdictional Agreements and Treaties” online: Canadian Research Institute

for Law and the Family www.crilf.ca/Documents/Bill_C78_Overview_Part_II_-_

Chapter 8: Spousal Suppor t on or After Divorce 227

B. FORMAL LEGAL EQUALITY 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 f‌inancially independent wife as she has

if their f‌inancial situation is reversed.5 In reality, divorcing or divorced hus-

bands rarely seek or obtain spousal support.

C. TYPES OF ORDERS

1) Diverse Types of Orders

e diverse types of spousal support orders that may be granted pursuant to

section 15.2 of the Divorce Act are as follows:

• 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 periodic sums;

• an order to pay periodic sums; and

• an order to secure and pay periodic sums.

e court is not restricted to making only one type of order. A combination of

the various types of orders may be accommodated. Any of the aforementioned

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 change

of circumstances.

2) Nominal Orders

An order for nominal spousal support is not necessary for the purpose of

preserving a future right to claim spousal support following a divorce.6 Nom-

inal orders have, nevertheless, been granted where the applicant establishes

a present need but the respondent has no ability to pay or where there is no

Jun_2018.pdf (June 2018). And for more detailed analysis, see “Legislative Back-

ground Paper on Bill C-78 (An Act to amend the Divorce Act)” online: Dept of Justice,

Canada www.justice.gc.ca/eng/f‌l-df/cf‌l-mdf/dace-clde/index.html. And see “The

Divorce Act Changes Explained” online: Dept of Justice, Canada www.justice.gc.ca/

eng/f‌l-df/cf‌l-mdf/dace-clde/index.html.

5 Moge v Moge, [1992] 3 SCR 813 at 849; Rivard v Rivard, 2011 ONSC 2988.

6 Baiu v Baiu, 2015 ONCA 288. As to orders expressly reserving the issue of spousal

support, see Droit de la famille — 182390, 2018 QCCA 1940 at paras 39–42.

Canadian family law228

present need but there is a predictable future need.7 A nominal order for

spousal support may be vacated on appeal where no present need has been

demonstrated and any future need would be unrelated to the marriage.8

3) Interim Support Orders

Section 15.2(2) 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 court deems reasonable for the support of the other spouse.9 e pri-

mary purpose of interim spousal support is to allocate family income in a fair

and equitable manner pending the division of property and more complete

evidence touching on the applicable factors and objectives relevant to a f‌inal

spousal support determination.10 An interim spousal support order is intended

to provide a reasonably acceptable short-term solution until a pretrial con-

ference allows for a more thorough and judicious resolution of the issues11 or

the maer goes to trial when an in-depth examination can be undertaken.12

e nature of interim spousal support dictates that the court does not have to

embark upon a detailed examination of the merits of the claim for permanent

spousal support.13 Nevertheless, a prima facie entitlement to interim support

must be established in accordance with the provisions of section 15.2 of the

Divorce Act.14 While an application for interim spousal support oen narrows

the focus of the court’s analysis to the “means and needs” of the parties, the

7 See, for example, Petrunia v Petrunia, 2012 ABQB 568; Teed v Teed, 2002 NBQB 230;

Penney v Penney, 2006 NLUFC 17; Smith v Smith, [1998] NSJ No 583 (SC).

8 Vickers v Vickers, [2001] NSJ No 218 (CA). For the suggestion that nominal orders are

not “support orders” within the meaning of the Divorce Act, see Gill-Sager v Sager,

[2003] BCJ No 121 (CA). Compare Labbe v Labbe, 2009 BCSC 835.

9 For an excellent judicial summary of the principles to be applied where interim

spousal support is being sought, see Anand v Anand, 2016 ABCA 23; see also VLN v

SRN, 2019 ABQB 849; Furry v Goodwin, 2020 ABCA 127.

10 McCrea v McCrea, 2018 SKQB 215 at para 4, Goebel J. See also BDM v MMM, 2019

ABQB 839; Furry v Goodwin, 2020 ABCA 127; Merrif‌ield v Merrif‌ield, 2021 SKCA 85; MTP

v RLB, 2022 BCSC 156 .

11 Miller v White, 2018 PECA 11; Sane v Sane, 2015 SKQB 313, citing Jacobson v Jacobson,

2011 SKQB 402.

12 Lapp v Lapp, [2008] AJ No 208 (CA); AAA v KN, 2020 ABCA 141; Pownall v Pownall, 2015

MBQB 100; Gabel v Gabel, [2000] NWTJ No 54 (SC); Knowles v Lindstrom, 2015 ONSC

1408; EAG v DLG, 2010 YKSC 23.

13 Santelli v Trinetti, 2019 BCCA 319; Squires v Squires, 2014 NBBR 172; Moore v Moore, 2017

NSSC 258; Politis v Politis, 2018 ONSC 6830 at para 15; Kelly v Kelly, 2019 ONSC 3749.

14 Battaglini v Battaglini, 2020 ABQB 665; Santelli v Trinetti, 2019 BCCA 319; Holmes v

Fedoruk, 2021 BCSC 442; Noonan v Noonan, 2007 PEICAD 5; see also Fong v Fong, 2010

MBQB 5; Bolleter v Livingstone, 2015 NWTSC 47; Haughton v Corner, 2022 ONSC 869.

Compare Muchekeni v Muchekeni, [2008] NWTJ No 19 (SC); Balayo v Meadows, 2013