By far, the most misunderstood and thorny topic in the event of separation is spousal support. The notion that one would have to financially support the ex-spouse after separation, is one of the toughest sells in Family Law to a client, in particular in high-conflict situations.

When spouses separate, usually the desire to put a final end to the battle and move on with their lives, separate and apart, ranks high on their priorities. Against that light, having to pay spousal support is seen not just as insult to injury, but as the inability to untie the knot, making achieving finality but just a dream pipe down a long road.

WHO DECIDES?
Unless the parties consent, which is usually strongly resisted, a court of competent jurisdiction may make an order requiring a spouse to pay a lump sum (one payment) or monthly sums. The court has discretion in deciding what amount is reasonable, which makes it difficult to calculate with precision. On the other hand, there is criteria that has developed over the years that the court can’t ignore when it assesses how much and for how long this amount will be paid.

UNDERLYING THE NOTION IS THAT EVERY SPOUSE HAS AN OBLIGATION:

1. to provide support for himself or herself.
2. for the other spouse.
3. in accordance with need, to the extent that he or she is capable of doing so.

WHO IS A SPOUSE
Under the Divorce Act, spouse means either of two persons who are married to each other.
Under the Family law act, it includes parties who are not married but have lived together:
(a) continuously for a period of not less than three years, or
(b) in a relationship of some permanence if they are the parents of a child.
This means that if you are not married and your relationship breaks before three (3) years you could be entitled to spousal support if there are children of the relationship.

FACTORS THE COURTS TAKE INTO ACCOUNT
(a) the length of time the spouses have lived together.
(b) the role each assumed during the period of time they lived together; and
(c) any order, agreement, or arrangement between the parties that include spousal support.

DOES IT MATTER WHO IS AT FAULT
No. The law is clear that in making an order…… the court shall not take into consideration any misconduct of a spouse in relation to the marriage. This means for example that if the party that is entitled to support is the same one who was engaged in an affair during the relationship, this affair in itself does not take that right away.

THE OBJECTIVES OF SPOUSAL SUPPORT ARE TO:
Spousal support seeks to recognize the contributions both parties made to the relationship based on the following considerations, by all means not exhaustive, in the analysis of support:
 Standard of Living during the marriage
 Loss of earning capacity during marriage continuing after the dissolution
 Child care and impact on earning capacity
 Career advancement and stagnation of the other
 Investment in the career advancement of the other to his/her detriment
 Promote the economic self-sufficiency of each spouse, in so far as practicable

Spousal support is a legal right that has developed over many years of court decisions and amendments to legislation. It responds to the times in extending it for example to same-sex marriages/couples.

Understanding this right makes a difference between ending up destitute after years of marriage or attaining a standard of living after separation that is equivalent or as close as possible to the one enjoyed when you were married.

Claudia Falquez-Warkentin, Davies Spina Falquez LLP