Pursuant to the Divorce Act and the Family Law Act, a spouse can apply for both interim and final spousal support. This entitlement arises under the Divorce Act simply because the parties are married.
Under the Family Law Act, same sex couples and common law couples who are in a marriage like relationship for a period of 2 years can apply for an Order of spousal support from the other party. If a person is applying for spousal support under the Family Law Act, they must do so within 2 years after they have ceased living together in that minimum 2-year relationship or within 2 years of having a child with the other person if they did not live together or within two years of their divorce if they were married.
Although there are different objectives of support outlined in the federal and provincial legislation, in practice the entitlement to support, once the original entitlement outlined above is applied in a uniform way by the Courts.
The Courts look at various models of support in determining whether or not the parties are entitled to support.
These models of support are generally referred to as contractual support, compensatory support, and non-compensatory support.
The contractual model involves the parties either agreeing through a specific agreement or what by implication they agreed to in the marriage. In this context, the Court will determine if there was an actual agreement for support by the conduct of the parties or their words or in writing.
In the compensatory model of support, the Court is said to be recognizing that when a marriage breaks down, the parties are entitled to be compensated to the contributions made to the marriage and the losses incurred due to the breakdown of the marriage. The idea behind this support it recognizes that even if a party has not worked outside the home, they are entitled to the same or similar standard of living as the party who was working because they were essentially in an economic partnership.
In the non-compensatory model of support, the Court imposes a long-term support obligation simply because the effect of marriage breakdown results in one party having a financial need, which the other party can afford to pay for and is therefore obligated to pay for, to ensure the other party has a reasonable standard of living. It is solely based upon need and in fact, has been granted cases where the need for support did not directly arise from the marriage.
The judicial reasoning as to why support is granted may be of less interest to you than to determine whether or not you will be receiving support and the amount that support will be. The following sections deal with that issue:
INTERIM V. PERMANENT APPLICATIONS
Quite often it takes quite a while to get to trial. As such, the statutes applicable, being the Divorce Act and Family Law Act allow for temporary Orders to be made to be in place until trial. These applications are called interim applications.
To obtain interim support a spouse must establish a strong prima facie case to support. This means that on weighing the evidence on the interim application, on balance, the court must conclude that absent to other evidence, it will be likely that the applicant for interim support will be entitled to support on a final basis.
The Court often considers on interim applications the interplay of two important factors. These factors are whether or not a person has an ability to pay support and whether or not a person applying for support needs the support. These applications are generally done on limited financial information based upon financial statements.
The Court will look at need based upon the circumstances of the parties at the time of the application and those expenses that they reasonably need to get by given the standard of living of the spouses.
With respect to the person that is to be paying support, the Court will consider their income and all of the resources that they have available to them to pay support. The same factors will also apply to a person who is applying for support. Both parties generally will have an obligation to order their affairs in such a way as to maximize their income.
Long term needs like savings for the future and educational expenses are not usually considered as appropriate on interim applications. Both parties will prepare Financial Statements and brief Affidavits dealing with the immediate needs and means of the parties on an interim application.
Both on interim and final applications in the province of British Columbia, the court must consider the Spousal Support Guidelines and the court should only depart from these Guidelines is there is a significant reason for doing so. In this regard, when one considers these Guidelines and the manner in which child support is assessed, the opportunity for spouses who are earning in average income situations is often quite limited. The reason is the pursuant to the provisions of Divorce Act (Canada), and the Family Law Act the issue of child support is to be considered first. The child support obligations are also deducted from the paying spouse’s income in determining quantum of spousal support.
With respect to long-term support, because the Court gets to hear directly from the parties at trial, it is in a better position to consider a variety of factors. It is often difficult to determine whether or not a person will get support. As a rule of thumb, it is fair to say that in longer term marriages, the Courts are more inclined to grant support for a longer period of time, especially where one party is saddled with the cost of raising children and has not been in the work force. However, in shorter marriages, the Courts are not as willing to grant support and even if there is a need, will often grant more limited support for a period of a few years or less so that the party needing support can either retrain or children which are stopping the party from working increase in age. It is important to ensure that the granting of support does not become a disincentive to a recipient working and promotes financial independence.
Sometimes if there are sufficient assets, lump sum support can be an answer to a support which is required to alleviate a disadvantage acquired during the marriage or retraining.
DETERMINATION OF AMOUNT
As already discussed, the Court can look at all of the financial resources of the parties in granting spousal support. This includes the assets they have, be the family or other assets. It is for this reason that asset division is often considered first before spousal support.
One of the things that has to be considered as well in a determination of support is the ability of the parties to work and service their debts arising from the marriage and after the support Order. In fact, if one party is servicing all or much of the matrimonial debt, this is often a reason for the Court to deny significant spousal support or support at all.
Similarly, child support is to be determined first. Child support is not tax deductible by the payor and the person receiving the support does not have to include it in their income. As a result, often after child support is paid, there is little or no money to pay for a payor’s own reasonable expenses and spousal support. In this case, the Court is empowered under both statutes to decline or defer the granting of spousal support.
The Court will consider in the amount of support the tax consequences of spousal support to both parties. Where there is sufficient income, the Courts will grant support to allow each party to meet their needs in a reasonable fashion, having regard to how they lived while married. There is no guarantee of an equal standard of living for each spouse pursuant to a support Order or that they will have the same income.
One of the most important factors now in determining the amount and duration of support are the Spousal Support Guidelines. These are guidelines which establish a three tier range of support for the court to consider based on the age of the parties, their income and length of their relationship.
For example, if the payor makes $60,000.00, the recipient spouse makes $20,000.00, there are two children, $1,200.00 of daycare expenses, and the parties were married for five years, the recipient was 35 upon separation and the youngest child started full-time school in 2010 and was 5 years old at the date of separation. The Spousal Support Guidelines would suggest that at the low end of the range the payor should pay $0. In the mid-point of the range, the payor would pay $170.00 and in the upper end of the range, the payor would pay $360.00 per month to the recipient. If the payments were awarded, the duration would be between two and a half years to thirteen years of support.
In determining where to place the parties in the range, the court will consider how long it would think the recipient would need the support, how long it would take to retrain if at all, the amounts of assets the parties have and whether or not the income of the payor and the recipient would increase. These are some of the considerations. Generally, the greater the ability of the recipient to earn income in the future and the greater asset base after separation for the recipient, would generally establish a lower period of payment and payments in the lower to middle end of the range. On the other hand if the recipient has minimal ability to earn income, the marriage is a long one and is older, provided the payor has sufficient income the mid to higher end of the ranges would be more appropriate. These guidelines are complex and are structured to achieve various results. Our family law lawyers are well positioned to help you determine your obligation to pay support, if any or entitlement to receive spousal support.
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Dubas and Company
email: jdubas@divorcebc.net
605 – 938 Howe Street
Vancouver, BC V6Z 1N9
Tel: 604.697.9107
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