When your marriage comes to an end, are you entitled to spousal support? The answer depends on whether you can establish an entitlement to spousal support on one of the three recognized grounds:
- Contractual (g. a marriage agreement);
- Compensatory; and
- Non-compensatory (also referred to as “needs-based”).
The basis for spousal support – contractual, compensatory, needs-based, or a combination thereof – impacts the quantum and duration of the award (in other words, how much spousal support you are entitled to and for how long).
Are you entitled to spousal support if you were in a common-law relationship?
Yes. A partner in a common law relationship can be entitled to spousal support if the relationship was “marriage-like” for a continuous period of at least two years, as I discussed here. The same basis for spousal support applies whether the spouses were married or common-law.
The law that applies to answer “Are you entitled to spousal support”?
Factors that determine the amount and duration of spousal support
When analyzing a claim for spousal support, the court will consider the condition, means, needs and other circumstances of each spouse, including the following factors (as set out in s. 15.2(4) of the Divorce Act and mirrored in s. 162 of BC’s Family Law Act):
- the length of time you cohabited;
- the functions performed by each of you during cohabitation; and
- any order, agreement or arrangement relating to support of either spouse.
Objectives of spousal support
In determining if you are entitled to spousal support, the court must consider the four objectives of a spousal support order (as set out in s. 15.2(6) of the Divorce Act and in s. 161 of BC’s Family Law Act). The objectives of a spousal support order are:
- To recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
- To apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
- To relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
- To promote the economic self-sufficiency of each spouse within a reasonable period of time.
Is there a marriage contract that answers whether you are entitled to spousal support?
The first consideration in answering whether you are entitled to spousal support is whether you and your spouse entered into a prenuptial or marriage contract that sets out what you agreed to with respect to spousal support. If there is a marriage agreement that deals with spousal support, it will apply (though it may be possible to contest its application; see here for my earlier discussion of applications to change spousal support agreements).
Are you entitled to spousal support on a compensatory basis?
Compensatory support is meant to address both economic disadvantages suffered by the spouse who will receive support and economic advantages enjoyed by the spouse who will pay support. The most significant economic consequence of marriage or marriage breakdown usually arises from the birth of children. This generally requires that the wife cut back on her paid labour force participation in order to care for the home and the children, an arrangement which jeopardizes her ability to ensure her own income security and independent economic well-being. In such situations, spousal support is way to compensate such economic disadvantage and acknowledge that the disadvantage of one spouse has conferred economic advantage on the other spouse who was “freed up” to focus on building a career.
Are you entitled to spousal support on a non-compensatory basis?
Non-compensatory or “needs-based” support is grounded in s. 15.2(6)(c) and (d) of the Divorce Act. Need is defined by both the marital standard of living and the other spouse’s post-separation standard of living. Generally speaking, income disparity, without more, does not entitle a spouse to needs-based support.
A case example where wife asked: Am I entitled to spousal support?
The spouses in H.C.F. v. D.T.F., 2017 BCSC 1226 married in 2004, had a son in 2005, and were found by the court to have separated in November 2014. <add link to post on H.C.F. v. D.T.F. called Divorce Law BC: “Meeting of the Minds” Not Needed for Spouses to Separate> Throughout the marriage, the husband built a very successful career, earning an annual income of approximately $1 million from his employment with ScotiaMcLeod. The wife held a B.A. and a M.Sc. in Business Administration and worked as a consultant prior to the marriage, but had not been employed since 2004. After the spouses separated in 2014, the wife made no effort to seek employment. The court found her to be “quite indifferent to the positive obligation that lies with her to endeavour to become economically self-sufficient.” (at para. 191) and found it appropriate in the circumstances to impute income of $60,000 to her for the purposes of calculating child and spousal support.
Despite the court’s dim view of the wife’s efforts to seek employment, this was a long-term marriage and the court agreed that the wife was entitled to spousal support on both a compensatory and needs basis. Both, however, required some further explanation given the circumstances of the case.
Limit on compensatory basis: Wife unemployed by her own choice
In H.C.F. v. D.T.F. the compensatory basis was present, but it had a limit. The spouses agreed that the wife would initially leave the workforce while their home was being renovated and when their son was born in 2005. The spouses then agreed that the wife would not return to work until after the son was in school. The court acknowledged the fact that the wife cared for their home and for the son, which enabled the husband to work the long hours that he did. However, it was clear that for several years before the spouses separated, the husband wanted the wife return to work, but she “unilaterally” chose not to. The evidence at trial showed that this was a contentious issue and something the spouses talked about repeatedly. At the time of trial, the child of the marriage was about to start high school and the wife had been out of the workforce for 12 years. The undisputed evidence also established that at various times other people had been paid to perform child care and to take care of the garden at the family home.
In the court’s view, those factors were relevant to the wife’s compensatory claim. This was not, at least for the last number of years of the marriage, a case where both spouses agreed that one of them should stay at home to advance their interests as a family unit. Nor was this in the last years of the marriage, a measured decision made by the parties to help advance the husband’s career. Instead, this is a case where the wife, after a point in time, made the personal choice over the expressed wishes of her spouse, to stay at home rather than to return to work. The court viewed there to be a significant difference between an experienced, well-educated and intelligent person such as the wife being out of the workforce for perhaps six years (when their son would have started school) or ten years (when the spouses separated) or nearly 13 years (at the time of trial).While the wife was entitled to do as she wished, the court found it “would be curious if [the wife] could make a personal decision to stay out of the workforce and concurrently assert that that decision strengthened her compensatory claim for spousal support.” (at para. 211).
Standard of living and budget/expenses relevant to needs-based spousal support
In H.C.F. v. D.T.F. the spouses’ marital standard of living was modest compared to the husband’s high income. While they owned an expensive home in an exclusive part of Vancouver and a vacation property in Whistler, their lifestyle was comparatively modest because they did not have other expensive hobbies or interests. The Form 8 Financial Statements prepared by each of the spouses also demonstrated that their expenditures were not extravagant.
Using the wife’s calculations, the Spousal Support Advisory Guidelines (“SSAG”) suggested a spousal support order in the range of $21,500 at the low end and about $25,600 at the high end. The wife sought an order for spousal support toward the high end of the range. However, her current Form 8 Financial Statement estimated that her monthly expenses were only about $7,000. The husband’s own current living expenses and living standards were similar. In the court’s view, the amount the wife sought for spousal support could not be justified on a needs-based basis having regard to either her pre-separation standard of living or to her husband’s present standard of living.
Other factors: Division of family property and child support order
The court also noted that both spouses would receive significant funds from the eventual sale of their home and vacation property, and that the division of other family assets would provide the wife with various investments valued at approximately $1.2 million. The court has also ordered the husband to pay $7,123 per month in child support. Without in any way attaching a “budget” to the child support payments that the child will receive, the court noted the reality that those payments are generous. The son was not in private school, nor did he belong to and “elite” sports teams. The son’s ongoing expenses were comparatively modest.
Having regard to all of those the considerations discussed above, the court was satisfied that spousal support of $16,000 per month, payable for ten years, would enable the wife to generally maintain her current standard of living and address the other objectives of a spousal support order.
Are you entitled to spousal support? The bottom line
In determining if you are entitled to spousal support the court will examine the circumstances of your relationship in light of the factors and objectives discussed above. Entitlement to spousal support is a threshold issue, which means that you must establish that you are entitled to spousal support using a contractual, compensatory, or needs-based approach (or a combination thereof). The court will only deal with the amount and duration of support after a finding of entitlement.