Spousal support update.

• Author: Christopher, Michelle C.
• Position: Family law

Getting divorced? Worried about spousal support? You're not alone. While the potential to pay spousal support is often cited as the primary reason to avoid marriage in the first place, the reality for many couples facing marriage breakdown is that support payments do loom large on the post-marriage horizon. Whether to pay, how much to pay, and for how long are questions which often shape the behaviour of divorcing spouses well before the actual divorce. During divorce proceedings, uncertainty and argument about the answers to these questions can unfortunately escalate conflict and provide fuel for continued litigation, making matters much worse for the disputants and their counsel alike.

Fortunately, help is near at hand in the form of recently released Spousal Support Advisory Guidelines developed in consultation with the federal Department of Justice. Unlike the 1997 Federal Child Support Guidelines, the proposed Spousal Support Advisory Guidelines are not being brought into force as legislation at this time but rather are meant to serve as informal guidelines that will operate on an advisory basis only, within the existing legislative framework for divorce in Canada. It is hoped that by providing guidelines for the payment of spousal support--whether or not there are children of the marriage to consider --there will be greater certainty, and uniformity, in making decisions about spousal support. At the very least, it is hoped that the advisory guidelines will provide a starting point for negotiation and potential settlement.

How will the Spousal Support Advisory Guidelines work? As stated, they are not legislation but are meant to operate within the existing legislative framework. Currently, the federal Divorce Act specifies that spousal support may be ordered by the court, either on a periodic basis or as a lump sum, on the application of either spouse. This means that the court must first determine whether there is any entitlement to spousal support. In doing so, the court must consider the condition, means, needs, and other circumstances of each spouse, including the length of time the spouses cohabited, the functions performed by each spouse during the cohabitation and any order, agreement, or arrangement relating to the support of either spouse.

Once the threshold of entitlement to support has been met, the court will consider a number of statutory objectives in deciding how much support to award and for what period of time. The...