At the end of a marriage, are you entitled to spousal support? The question of entitlement to spousal support in BC is a threshold question that must be answered before considering the amount of spousal support and its duration (i.e., limited term or indefinite) by reference to the Spousal Support Advisory Guidelines (“SSAG”). The SSAG is a useful tool in guiding the determination of the appropriate quantum and duration of spousal support, but the SSAG formulas are not to be applied until the question of entitlement to spousal support is answered in the affirmative.
Are you entitled to spousal support because your ex has a higher income?
On its own, a difference of income does not automatically lead to entitlement. Before the formulas and the rest of the SSAG are applied, there must be a finding or an agreement on entitlement on one of the “conceptual bases” for entitlement: compensatory support, non-compensatory support (needs based) and contractual support. The contractual basis for support arises from a marriage agreement (such as a prenuptial agreement or marriage contract). The other two bases for entitlement – compensatory and non-compensatory – were recently discussed by the BC Court of Appeal in Parton v. Parton, 2018 BCCA 273 (a family law matter in which a wife was found to be entitled to lump sum spousal support of $388,000 on both compensatory and non-compensatory principles):
- The goal of compensatory support is the equitable sharing of the economic consequences of a marriage or its breakdown. Compensatory support provides redress for economic disadvantage arising from the marriage (such as diminished earning capacity and sacrificed career opportunities to take on child care responsibilities) or the conferral of an economic advantage upon the other spouse (such as contributions to enhanced career development).
- The goal of non-compensatory support is to narrow the gap between the needs and means of the spouses. For purposes of non-compensatory support, at least for longer marriages, “need” is generally measured against the marital standard of living. BC courts have recognized that the economic and non-economic lives of spouses become more intertwined the longer the marriage.
Are you entitled to spousal support in addition your claim for family property?
The fact that a spouse receives assets via property division does not defeat a spousal support claim, even where property has been reapportioned in favour of the support-seeker (i.e., where family property is divided unequally in favour of the spouse seeking spousal support). Where property has been reapportioned in favour of a support-seeking spouse, that spouse’s entitlement to and the quantum of support is determined by the extent to which the reapportionment adequately compensates for the economic consequences of the marriage and its breakdown, including any claims for compensatory and non-compensatory support. In some cases, property division may address all or most of the objectives of spousal support and thus eliminate or reduce the need for a spousal support award, but in others it may not. This is particularly so where entitlement to spousal support is based on compensatory grounds.
Are you entitled to spousal support if you stayed home to raise the kids?
When one spouse acts as the primary parent, significant economic advantages and disadvantages may arise that form the grounds for entitlement to spousal support on a compensatory basis. In such situations, the primary income earner will have been in a position to earn money to accumulate assets, often in large part because he or she was relieved of many aspects of raising children. On marriage breakdown, the primary earner has three benefits: the benefit of a share of the assets; the benefit of having had children; and the benefit of a higher income earning ability because of full participation in the work force, substantially unencumbered by child care responsibilities. On the other hand, the spouse who took on the role of primary parent typically has only two of these benefits: the benefit of a share of the assets accumulated; and the benefit of having had children. That spouse often does not have the same income earning ability at the time of separation because of the role played in the marriage. It is that disadvantage, and the concurrent advantage to the other spouse, that can be addressed by a compensatory spousal support award.
Bottom Line: Are You Entitled to Spousal Support?
The SSAG formulas take into account case-specific factors such as the length of the marriage, the parties’ ages and their respective incomes or capacities to earn income to provide a range for periodic payment or lump sum spousal support awards (check back soon, as I will be discussing lump sum spousal support in my next post). However, before the SSAG formulas can be applied, the threshold question of entitlement to spousal support must be answered in the affirmative. Entitlement to spousal support is established on compensatory, non-compensatory, or contractual bases. If you would like to know if you are entitled to spousal support, contact Onyx Law Group at 604 900 2538 to arrange for your initial 30 minute complementary consultation.
