Academic journal article Houston Journal of International Law

Spousal Support Eh? Sorry, Not Your American Alimony

Academic journal article Houston Journal of International Law

Spousal Support Eh? Sorry, Not Your American Alimony

Article excerpt

I. ENTITLEMENT TO SUPPORT: A GENEROUS APPROACH       A.   Moge and Compensatory Support       B.   Bracklow and Non-Compensatory Support       C.   Other Entitlement Issues  II. THE SPOUSAL SUPPORT ADVISORY GUIDELINES: AMOUNT       AND DURATION  III. VARIATION/MODIFICATION OF SPOUSAL SUPPORT  IV. THE REMARRIAGE OR RE-PARTNERING OF THE RECIPIENT  V. RETIREMENT  A. Early Retirement       B.   Pensions, Spousal Support and "Double-Dipping"       C.   Duration and the End of Entitlement  VI. MARRIAGE CONTRACTS, PRENUPS AND SPOUSAL SUPPORT  VII. CONCLUSION 

I tried to pack as many "Canadianisms" into that title as possible, not just the ubiquitous "eh?", but also our cultural tendency to apologise, even if we are not at fault. Canadian spousal support is itself a reflection of our distinctive family law culture and history. We no longer use the terms "alimony" or "maintenance." In this short article, I will spell out some of the distinctive characteristics of our spousal support law, which I can summarise in a series of propositions here:

1. Entitlement. In Canadian law, there is a very broad basis for initial entitlement to spousal support, on compensatory or non-compensatory (needs-based) grounds or both. In crude terms, a significant disparity in incomes at the end of the marriage or relationship will likely result in spousal support of some kind.

2. Guidelines. Since 2005, there have been national "Spousal Support Advisory Guidelines", informal guidelines widely used to determine the amount and duration of spousal support in most cases (except for the French-speaking province of Quebec). At the heart of the Advisory Guidelines are two formulas, one for cases with child support and another for cases without child support, that generate ranges for amount and duration.

3. Variation/Modification. Spousal support can be varied or modified, when there is a material change in circumstances since the previous order. Courts have also created another route to changing support, the "review order." Most of the "hard" issues in spousal support law come up at this stage: the post-separation income increase of the payor spouse, the recipient's remarriage or re-partnering, second families and subsequent children, retirement, retroactive support, and the recipient's efforts to attain self-sufficiency.

4. Remarriage/Re-partnering. In Canada, the remarriage or re-partnering of the recipient is NOT automatic grounds for termination of support. Much depends upon the basis for continuing entitlement: non-compensatory (or needs-based) support is more likely to be reduced or even terminated than compensatory support.

5. Retirement. Retirement does not automatically or presumptively terminate spousal support. The Canadian courts have struggled over what constitutes "early" retirement in variation cases. Where a pension has been divided as property, there is a general rule against "double-dipping" by way of spousal support, with a large exception for need or economic hardship.

6. Marriage Contracts/Prenups. For the most part, attempts to waive, bar, or severely limit spousal support in prenuptial agreements, marriage contracts or cohabitation agreements are unsuccessful, especially now that the Advisory Guidelines are so widely used to provide an objective measure for the amount and duration of support.

Before digging in to these specific support issues, it is important to sketch out the Canadian constitutional backdrop and the general structure of family law in Canada. I promise it will be brief, but not necessarily painless.

In Canada, divorce is a matter confided legislatively to the federal government under our constitution. (1) Thus, Canada has a national Divorce Act that addresses parenting/custody, child support and spousal support for divorcing married couples. (2) Apart from divorce, all other family law matters fall under provincial legislation, including the division of family property. …

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