Spousal Support: Entitlement, Amount and Duration feature image

Spousal Support: Entitlement, Amount and Duration

Written by Casey McQueen

Spousal support, or adult interdependent partner support, refers to financial support that is paid from one former spouse to another following the breakdown of a marriage or Adult Interdependent Partnership (commonly referred to as a “common-law relationship”).

Determining spousal support is a two-step test. Step one requires that the claimant must first establish entitlement, following which step two is then applied to determine the amount and duration of support.

Determining Entitlement to Support

The Supreme Court of Canada addressed three (3) models with respect to determining one’s entitlement: (1) contractual; (2) compensatory; and (3) non-compensatory (see Bracklow v Bracklow, “Bracklow”).

When reviewing the contractual model, consideration must be given to whether there is an agreement (express or implied) between the former spouses/adult interdependent partners whereby one is responsible to support and maintain the other (Bracklow at para 38). With respect to the compensatory model, the “condition” of the spouse/adult interdependent partner is important as consideration must be given to “the means, needs and other circumstances of the spouse, which may encompass a lack of ability to support oneself due to foregoing career opportunities during the marriage; and functions performed by each spouse during cohabitation” (Bracklow at para 39). Lastly, the non-compensatory model suggests that consideration must be given to the “spouse’s actual ability to fend for himself or herself and the effort that has been made to do so, including efforts after the marriage breakdown” (Bracklow at para 40).

While the above models assist with determining one’s entitlement, it is important to note that there is no presumptive entitlement to spousal support. For example, a long-term relationship and/or significant income differential may serve as factors to consider when determining a claim for spousal support, however, the same do not automatically satisfy the entitlement threshold.

Determining Quantum (How Much) and Duration (How Long)

In step two, the Spousal Support Advisory Guidelines assist with determining the appropriate amount and duration of spousal support by taking into account the parties’ incomes, the duration of the marriage/relationship and arrangements for any children they have.

Generally, the longer the relationship and the larger the discrepancy in income, the more support will be paid.

Put simply, when addressing the issue of spousal support, the following two-part test is applied:

Step 1: Entitlement Threshold

  1. Are you entitled to spousal support based on one of the following models?
    1. Contractual;
    2. Compensatory;
    3. Non-Compensatory.
  2. If entitlement is met, proceed with step 2.

Step 2: Determining Amount and Duration

  1. What amount of spousal support are you entitled to?
  2. What is the appropriate duration of spousal support?

While the Divorce Act (Canada) and Family Law Act (Alberta) outline the various objectives sought and factors considered regarding spousal support, and the Spousal Support Advisory Guidelines suggest ranges of spousal support, there is no question that spousal support remains a complex, and often highly contentious, issue.

If you have any questions or concerns surrounding spousal support or other family law matters, please contact HMC Lawyers LLP either online or by phone at 403-269-7220 and a member of our experienced team of family law lawyers will be happy to assist you.

 

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