Author: Stacey Staios - Articling Student
Edited By: Ryan Carson

In addition to the equalization payments and division of property, divorcing couples may also bring a claim for corollary relief, which seeks orders from the court relating to financial support, custody and access. For married couples getting a divorce, one of the parties may initiate their spousal support by way of the Divorce Act. However, there must have been a divorce granted in order to seek corollary relief. For unmarried cohabitants, they may initiate their spousal support action by way of Part 3 of the Family Law Act.

Three questions must be addressed when considering spousal support. The first is entitlement, the second is quantum (how much), and the third is duration (how long).

For unmarried couples, entitlement starts with the definition of ‘spouse’ found in section 29 of the Family Law Act and includes either of two persons who are not married to each other and have cohabited continuously for a period of not less than three years, or are in a relationship of some permanence if they have a child together.¹ The definition of cohabitation can be broken down into sections, namely, time requirements, aspects of cohabitation and intention, which all contribute to the meaning of cohabitation. The purpose of spousal support for unmarried cohabitants is set out in section 33(8) of the Family Law Act and includes;

           (a) To recognize the spouse’s contribution to the relationship and the economic consequences                  of the relationship for the spouse,
           (b) To share the economic burden of child support equally,
           (c) To assist the spouse in becoming financially independent, and
           (d) To relieve financial hardship.²

For married couples seeking a divorce, section 15.2(4) of the Divorce Act sets out the factors taken into consideration when establishing entitlement to spousal support. Specifically, the length of the marriage, the functions performed by each spouse during cohabitation, and any order, agreement or arrangement relating to support of either spouse.³

Once entitlement is established, the next step is to determine quantum and duration. According to the Spousal Support Advisory Guidelines (SSAG) the length of marriage actually refers to the length of cohabitation, which includes periods of premarital cohabitation and ends with separation. Included in the Spousal Support Advisory Guidelines are several formulas that can be used to determine how much spousal support you may be entitled to, depending on whether you have children or not.

The ‘without child’ support formula is used where there are no dependant children. This amount usually yields monetary figures that are lower and shorter, which align with non-compensatory support, which are claims that generally arise from shorter marriages. This formula is based on the gross income difference between the spouses and the length of marriage. In terms of duration, this is simply calculated based upon the length of cohabitation. The general rule suggests that the payee spouse will get from ½ to 1 year for each year that they cohabited with the payor spouse. However, any relationship longer than 20 years suggests that the duration of the spousal support is indefinite, meaning that the range of duration is not specified.

In contrast, ‘with child’ formulas tend to result in higher amounts for a longer period of time, mirroring the compensatory model, which generally arise from longer marriages. As for the range of support the payee is entitled to, this may be based on individual factors in the marriage, such as the length of the relationship, the circumstances regarding the children and how dependant the spouse was. There are two tests to determine the duration of support using the ‘with child’ formula, the Length of Marriage Test, generally used for longer marriages and the Age of Children Test, generally used for shorter marriages. The test to be used will be the option that is most advantageous to the payee.

Support orders are not always indefinite. There are circumstances that may allow for a variation of a spousal support order. For example, spousal support orders can be modified if one party re-marries, the payee or payor gets a new job, or the children are no longer dependant. Such variation orders may apply for both quantum and duration and may be brought by application when there has been a change in circumstances with either party. In comparison, an application may be brought for a review order, which are temporary and are intended to set spousal support at a certain amount and re-visit the quantum and duration at a later date. A review order may be used if you know that dependent children will be finishing high school on a certain date or if you know that the payee spouse will be attending school that will give them access to a good job. The difference between a review order and a variation order is that under the review order, there does not have to be a change in circumstances in order to apply for review.

Articles written by Stacey Staios:

Disability Accommodation in the Workplace
Estate Planning: A How To Guide Should You Consider A Cohabitation Agreement? What Is Wrongful Dismissal?

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