Spousal Support on or After Divorce

AuthorJulien D. Payne,Marilyn A. Payne
Date25 July 2022
Chapter 8
Spousal Support on or After Divorce
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
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.
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/
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,
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

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