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Spousal Support - What is the Law?

Topic: Spousal Support. Tags: Spousal Support

When separating spouses begin to untangle their affairs, they eventually reach the point where the question of spousal support - payable by one spouse to the other - will arise. The amount, structure, and duration of the spousal support payable will be determined after the spouses evaluate a broad range of factors.

Of course any negotiated settlement must be legally "valid", or else it risks being subject to court scrutiny and/or overridden entirely. This goes beyond the initial question of whether the parties reach a legally-binding, freely-negotiated "contract"; instead, there are several more esoteric factors dictating whether a settlement is appropriate and justifiable in the context of Canadian family law principles and objectives.

Two important Supreme Court of Canada decisions provide the context for this evaluation. In a case called Bracklow v. Bracklow, the Court clarified the general legal principles that apply to the process of deciding entitlement, form, amount, and duration of spousal support. For one thing, it concluded that such settlements must reflect the objectives set out in the Divorce Act, which expressly recognizes the role of spousal support as being:

to recognize any economic advantages or disadvantages to the spouses arising from the marriage or its break-down;
to apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above the obligations reflected in child support payments;
to relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
as far as practicable, to promote the economic self-sufficiency of each spouse within a reasonable period of time.

The Court also concluded that these factors to be given equal weight - i.e. no single objective overrides any of the others. This means that any good, valid negotiated spousal support agreement must even-handedly reflect these considerations.

Next, the Court also concluded in Bracklow that these determinations as to support entitlement, form, amount and duration are each driven by the underlying basis or purpose behind a spouse's support entitlement, which essentially can fall into three types:

Compensatory support (to address the economic advantages and disadvantages to the spouses flowing from the marriage);
Non-compensatory dependency-based support (to address the disparity between the parties' needs and means upon marriage breakdown); and
Contractual support (to reflect any express or implied agreement between the parties concerning the parties' financial obligations to each other).

As such, any feasible spousal support settlement must also reflect the underlying basis upon which the support entitlement from one spouse to the other arises.

So what happens when a settlement fails to take all the necessary factors into account? In a second decision, called Miglin v. Miglin, the Supreme Court of Canada affirmed that courts do indeed retain the power to override a negotiated spousal support settlement, but added that it was reluctant to do so unless the resulting spousal support arrangements are unreasonable. It confirmed that a spousal support settlement is entitled to be respected, unless there are unforeseen or unexpected changes which undermines the integrity of that agreement.

This conclusion by the Court reflects the prevailing Canadian legal approach, which is to encourage spouses to settle support between them without court intervention. This means that it is all the more important for parties to structure a good spousal support settlement agreement in the first place, one that is fair, valid, and addresses (to the extent possible) all the various circumstances that might arise in the future.

The issues sorounding spousal support are quite complex and case specific. Please contact our office to set a meeting to discuss your matter in detail.