Following a separation, a couple may begin to think about spousal support. A key question is the length of time that support may be paid. The length of time that the spouses have cohabited is one of the factors that a court will consider. In general, the longer the term of the cohabitation, the longer spousal support will be payable. The Spousal Support Advisory Guidelines provide a starting point for the duration and quantum of support. But these are not fixed ranges, and each case will depend on the context of the specific relationship.
When making arrangements for spousal support, the Divorce Act requires the court to take into consideration the “the condition, means, needs, and other circumstances of each spouse”. Section 15.4(2) directs courts to consider factors including:
- The length of time the spouses cohabited;
- The functions performed by each spouse during cohabitation; and
- Any order, agreement or arrangement relating to support of either spouse.
The Supreme Court of Canada has been clear that in general, marriage creates a mutual duty of support. In Bracklow v. Bracklow, the court looked at the obligations brought on by marriage. The court found that a spouse has an obligation to support the other spouse in accordance with their need to the extent that they are capable of doing so. This is because the default presumption is that legally married spouses are in an economic partnership of interdependence.
The goal of spousal support is to “equitably alleviate the economic consequences of the breakdown of the relationship”, as the court put it in Rioux v. Rioux. Entitlement to spousal support can be based on financial need, compensatory, or contractual grounds. Entitlement must be established before proceeding to determine the quantum and duration of spousal support.
Once entitlement has been established, the Spousal Support Advisory Guidelines are the starting point to assess the quantum and duration of support. However, the facts of a case can require adjustment outside of the given ranges.
Moreover, the nature of the claim can be significant. Compensatory claims are often located at the higher end of the range for both the quantum and duration of support. By contrast, non-compensatory claims aimed at helping a spouse transition from a higher standard of living may fall at the shorter end of the duration range.
Regardless of the type of support sought, courts have acknowledged that the depth of need can push the amount of support higher in the range. In Wharry v. Wharry, the Spousal Support Advisory Guidelines set a duration between seven and 14 years. However, the Ontario Court of Appeal did not set a termination date for support, deciding that it was impossible to determine when the appellant would recover from the economic disadvantage that arose from the marriage breakdown. Instead, the court found that the termination date of support would be dealt with by an application for a variation at some point in the future.
The length of a marriage is one factor that weighs on the appropriate amount and duration of spousal support that is owed. However, this is only one characteristic that courts consider and is not determinative.
In Spurgeon, v Spurgeon, the court stated that “each marriage creates its own pattern of dependency and the court should recognize and redress such dependency in determining the duration of support.” In that decision, the court discussed that while the length of marriage is relevant, it was clear that even a brief marriage can give rise to lengthy or permanent support obligations.
Cases that involve short marriages where one spouse is left with little chance of becoming self-sufficient are illustrative of ongoing need that may require support to be paid over an extended duration. In Spurgeon, the trial judge erred by equating a short-term marriage to one where the spouse easily attains self-sufficiency in a short-term following divorce. While that is frequently the case, it is not absolute, with the court noting that it is less likely in short-term marriages involving older partners.
Short-term marriages where there are dependent children can give rise to extended support. In these circumstances, the support is primarily compensatory in nature due to a spouse’s childcare obligations. The Spousal Support Advisory Guidelines directly address this issue and state, at section 8.5.5, that the length of marriage in such instances does not provide a measure for the duration of support. Courts have accepted this, with Kuznetsova v. Flores explaining that for a spouse with young children, most of the disadvantage lies in the future in the labour market consequences for the primary caregiver. This suggests support can be geared to the higher end of the Guidelines ranges and can weigh against limiting support to a specific duration of time.
In Samson v. Metail the husband sought to vary the spousal support he was paying to his former wife. The parties had a sixteen-year marriage and had separated in 1991. The husband believed that spousal support should end. He argued his retirement in 2006 was a material change in circumstances and that with the former wife now receiving the Canada Pension and Old Age Security, that income replaced the amount of spousal support he was paying.
The husband also pointed to the Spousal Support Advisory Guidelines as prescribing a period of support in the range of eight to 16 years and that he had paid 11 years beyond that range. In his view, that duration should have overcome any economic disadvantage that the wife had suffered from the marriage.
The judge accepted that there had been a material change in circumstances but noted that the husband was in a much better position to finance his retirement. The wife experienced an economic disadvantage by caring for the parties’ children and entering the workforce later in life, and at an income that was lower than that of the husband. The original support order was tied to the wife’s continuing need.
In the judge’s view, the lengthy duration of spousal support that had been paid was not sufficient to overcome the wife’s economic disadvantage. Indeed, based on the wife’s current circumstances she was unlikely to achieve economic self-sufficiency in the future.
Consequently, as the wife had an ongoing need due to the economic disadvantage she suffered during the marriage, and as the husband had an ability to continue paying support, termination of support would “impoverish her unnecessarily”. The husband’s motion failed. Moreover, as the value of the existing support order eroded over 30 years, an increase in support was also warranted, with the husband’s monthly support payment raised to $750. Effectively, the duration of support prescribed by the Spousal Support Advisory Guidelines did not reflect the ongoing economic disadvantage to the wife.
Once entitlement to spousal support is established, courts have a range of factors to weigh to help settle on an appropriate duration or which support should be paid. This can involve balancing the need for finality for the payor with the moral obligation to support the other spouse. As a result, the length of the relationship is not always an accurate indicator of how long support should be paid. In some cases, this means that support should not be time-limited, such as when the parties have young children and one acts as primary caregiver. Support payors should also be aware that attempts to reduce support can result in courts increasing the amount that is payable.
The divorce lawyers at Bortolussi Family Law ensure clients understand their rights and obligations relating to spousal support and pay only what is fair and reasonable under the law. We are a full-service family law firm in the heart of Vaughan and have proudly helped clients throughout York Region, Toronto, Peel, and Halton Region for over 35 years. To discuss your matter or arrange a consultation with a member of our team, please contact us online or call 416-987-3300.