C. Types of Orders

Author:Julien D. Payne - Marilyn A. Payne
Pages:217-237
 
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1) Diverse Types of Orders

The diverse types of spousal support orders that may be granted pursuant to subsection 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.

The 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; Final 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.4 Nominal 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 current need but there is a predictable future need. A nominal order for spousal support may be vacated on appeal where no current need has been demonstrated and any future need would be unrelated to the marriage.5According to the judgment of the British Columbia Court of Appeal in Gill-Sager v Sager,6the law is unsettled on the question whether the dismissal of an application for spousal support under section 15.2 of the Divorce Act precludes the applicant 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 definitive answer to this question. If the applicant is disentitled to spousal support at the time of the original application but might reasonably be subsequently entitled to relief in the event of a change of circumstances,

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for example, by reason of deteriorating health, an appropriate order should be couched in terms that do not preclude a subsequent application for spousal support.

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. An interim spousal support order is intended to provide a reasonably acceptable short-term solution until a pre-trial conference allows for a more thorough and judicious resolution of the issues7or the matter goes to trial when an in-depth examination can be undertaken.8The 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.9Nevertheless, a prima facie entitlement to interim support must be established in accordance with the provisions of section 15.2 of the Divorce Act.10Section 15.2(2) of the Divorce Act includes no explicit reference to the variation of an interim spousal support order, but the court has an inherent jurisdiction to vary such an order in response to a material change of circumstances or when the assumptions on which the order was made later prove to have been clearly understated.11Where an interim order provides for periodic spousal support to be paid from the date of the filing of the application but payment of the instant arrears thereby created is to be deferred pending the resolution of outstanding monetary issues, the arrears may be subsequently expunged by a trial judge without proof of a change of circumstances since the granting of the interim order. In addressing the wife’s contention that section 17(4.1) of the Divorce Act required the trial judge to find a change of circumstances before varying the interim spousal support order, the Newfoundland and Labrador Court of Appeal in Whelan v Whelan12observed that section 17(4.1)

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applies only when the court is considering an application to vary a "spousal support order," which is explicitly defined in section 2(1) of the Divorce Act. Since that definition stipulates that a "spousal support order" means an order made under section 15.2(1) of the Divorce Act, whereas interim spousal support orders are granted pursuant to section 15.2(2) of the Divorce Act, section 17(4.1) of the Divorce Act can have no application to the variation of interim orders. The Newfoundland and Labrador Court of Appeal further observed that the argument that finding a change of circumstance is required before a judge can grant a final order that is different from an interim order lacks any logical foundation. There would then be no difference between interim and final orders under the Divorce Act and both spouses would feel obliged to fully argue the whole case at the interim stage because of their concern that any subsequent adjustment would require a demonstrated change of circumstances. This would defeat Parliament’s objective of enabling temporary orders to be made expeditiously pending a final determination of the issue of spousal support. The Newfoundland and Labrador Court of Appeal also rejected the wife’s alternative contention that the trial judge had erred in failing to consider the five factors listed by Noonan J in Tremblett v Tremblett13as relevant to the remission of support arrears. In the opinion of the Newfoundland and Labrador Court of Appeal, these criteria relate to applications under section 17(4.1) of the Divorce Act to retroactively vary final orders for spousal support and have no application to original applications of the Divorce Act. In this latter context, the relevant factors to be applied are those specified in section 15.2(4) of the Divorce Act, namely, the condition, means, needs, and other circumstances of the spouses, which the Newfoundland and Labrador Court of Appeal found to have been properly applied by the trial judge in exercising his discretion to expunge the arrears under the interim order after a full and thorough review of the evidence.

However, Canadian courts have consistently asserted that interim support orders should only be varied when they are patently inappropriate. It is only where there has been a material change in circumstances since the prior interim order was made and the current circumstances provide a compelling reason, such as undue hardship, that a court will order variation of an interim order without awaiting trial.14Otherwise, any fine tuning or necessary adjustment can be accommodated at trial.15Parties with an interim order for

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support should move the matter forward to a settlement conference and, if necessary, a trial, to deal with any defect, real or perceived, in the temporary order, but the focus of the parties should be on settlement, and trial should be a last resort.16Absent some reasonably sound prospect of success at trial, interim spousal support should be denied.17Interim spousal support should not be ordered in the face of conflicting affidavits on crucial issues relating to spousal support entitlement.18Because of the difficulty of applying the objectives set out in section 15.2(6) of the Divorce Act relating to compensatory spousal support when interim spousal support is in dispute, a court will ordinarily focus on the needs of the applicant and the respondent’s ability to pay in light of the standard of living enjoyed prior to the spousal separation.19Need is a relative concept that is based on the standard of living that the parties were accustomed to during the marriage.20A court should not, at an interim stage, place too much emphasis on the applicant’s failure at that point to achieve self-sufficiency.21Some courts have held that the amount of spousal support ordered on an application for interim spousal support should, absent exceptional circumstances, generally fall within the range suggested by the Spousal Support Advisory Guidelines.22A court may impute income to a spouse for the purpose of determining interim spousal support. Although there is no express provision in the Divorce Act which sets out how this is to be done, courts may apply the same

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methodology as is used under the Federal Child Support Guidelines.23In determining what amount of income to impute to a spouse on the basis of intentional unemployment or under-employment, the court must have regard to the spouse’s capacity to earn income in light of such factors as employment history, age, education, skills, health, available employment opportunities, and the standard of living enjoyed during the spousal relationship. The court looks at the amount of income the party could earn if he or she worked to capacity.24In cases where the parties are wealthy, the court can consider lifestyle in determining the wife’s needs for the purposes of spousal support. Where there are the means available, the payee spouse is entitled to receive spousal support in an amount sufficient to enjoy a level of comfort beyond her basic needs.25Income that could be earned from capital is relevant to the quantification of interim spousal support, but the expenditure of capital is generally not required. There may be circumstances, however, where a support obligor ought reasonably to be compelled to utilize capital to pay interim spousal support. For example, where there has been a significant use of capital to support the marital lifestyle, the recipient of interim spousal support should not necessarily be relegated to a lifestyle based solely on the obligor’s income.26In Robles v Kuhn,27Master Keighley, of the Supreme Court of British Columbia, formulated the following useful list of principles governing applications for interim spousal support:

  1. On applications for interim support the applicant’s needs and...

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