In the aftermath of a separation or divorce, most people are aware that child support may be part of the arrangement. Fewer are aware that spousal support may also be on the table.
After the breakdown of a relationship or marriage, both spouses have a duty to become self-sufficient. But, in some instances, a true economic disadvantage or a financial need is present. In this case, the court may order spousal support.
Spousal support can be awarded both through the Divorce Act and the Family Law Act. This means both married and common-law spouses can be awarded spousal support. The Government of Canada has published guidelines for spousal support, which can be found here.
There are three different kinds of spousal support, each of which works slightly differently, and is awarded based on different criteria, especially when considered alongside child support. Understanding these differences can be crucial in understanding court proceedings.
Awarded by Contract, as Compensation for Loss, and for Basic Needs
In family law there are three different types of spousal support:
- Contractual
- Compensatory
- Non-compensatory
Contractual is as straightforward as it sounds. This spousal support is when the parties agree to it in a contract, such as a cohabitation agreement or marriage contract. As such, these are generally voluntary, not court ordered.
Compensatory and non-compensatory support can be more difficult to define and are often intertwined. These types of spousal support are usually awarded by court order.
Compensatory spousal support is awarded in situations where there is a clear economic loss suffered by one spouse during the marriage so another spouse could receive an economic benefit.
Non-compensatory spousal support, on the other hand, is mostly needs-based, meaning it is awarded when one spouse has an inability to meet basic needs. This may also mean that the standard of living of one spouse has greatly depreciated because of the breakdown in the relationship or marriage.
Child Support Also a Factor
A further wrinkle is child support. There are two formulas that are generally used for calculating spousal support. One is in the absence of child support, and the other is when both spousal support and child support are needed.
The formula used in the absence of child support relies heavily on the length of the relationship. Support is generally around two per cent of the difference in gross income for each year of marriage, up to a maximum of 25 years. Support duration is generally six months to one year per year of marriage. But for a marriage that lasted over 20 years, the support is usually indefinite. Also relevant is the age of the spouses: if the length of the marriage added to their age totals 65 or more (i.e., a five-year marriage and a 61-year old spouse would equal 66), the spousal support is again usually indefinite.
When spousal support is paid alongside child support, child support is calculated first. The spousal support amount the payor sends, and the recipient receives, generally has the amount of child support paid subtracted from it. In some cases, this could reduce the amount of spousal support to zero.
Custody Arrangements Complicate Calculations
Spousal support becomes even more complex when custody arrangements are considered. The calculations involved are too complicated to deal with here, but it’s important to note that spousal support may be on the table in both shared and split custody arrangements. Depending on relative incomes and the financial effects of the split, it’s even possible for the spouse considered the primary parent to end up paying spousal support.
